[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 1997 Edition]
[From the U.S. Government Printing Office]


          25



          Indians



[[Page i]]

          Revised as of April 1, 1997
          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF APRIL 1, 1997
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1997



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents


                                                                    Page
  Explanation.................................................       v

  Title 25:
    Chapter I--Bureau of Indian Affairs, Department of the 
        Interior..............................................       3
    Chapter II--Indian Arts and Crafts Board, Department of 
        the Interior..........................................     675
    Chapter III--National Indian Gaming Commission, Department 
        of the Interior.......................................     685
    Chapter IV--The Office of Navajo and Hopi Indian 
        Relocation............................................     735
    Chapter V--Bureau of Indian Affairs, Department of the 
        Interior, and Indian Health Service, Department of 
        Health and Human Services.............................     821
    Chapter VI--Office of the Assistant Secretary, Indian 
        Affairs, Department of the Interior...................     887
    Chapter VII--Office of the Special Trustee for American 
        Indians, Department of the Interior...................     893
  Finding Aids:
    Table of CFR Titles and Chapters..........................     905
    Alphabetical List of Agencies Appearing in the CFR........     921
    List of CFR Sections Affected.............................     931

[[Page iv]]



      



                                                                                                                
                                  ----------------------------------------------------------                    

  Cite this Code:  CFR                                   

  To cite the regulations in this volume use title, part
  and section number. Thus, 25 CFR 1.2 refers to
  title 25, part 1, section 2.

---------------------------------------------------------- 



[[Page v]]

                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 1997), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.
SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
M-F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours 
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Customer Service call 202-512-1803.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 1997.



[[Page vii]]



                               THIS TITLE

    Title 25--Indians is composed of one volume. The contents of this 
volume represent all current regulations codified under this title of 
the CFR as of April 1, 1997.

    For this volume, Scott D. Andreae was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page viii]]




[[Page 1]]



                            TITLE 25--INDIANS




  --------------------------------------------------------------------
                                                                    Part
chapter i--Bureau of Indian Affairs, Department of the 
  Interior..................................................           1
chapter ii--Indian Arts and Crafts Board, Department of the 
  Interior..................................................         301
chapter iii--National Indian Gaming Commission, Department 
  of the Interior...........................................         501
chapter iv--The Office of Navajo and Hopi Indian Relocation.         700
chapter v--Bureau of Indian Affairs, Department of the 
  Interior, and Indian Health Service, Department of Health 
  and Human Services........................................         900
chapter vi--Office of the Assistant Secretary, Indian 
  Affairs, Department of the Interior.......................        1001
chapter vii--Office of the Special Trustee for American 
  Indians, Department of the Interior.......................        1200

  Cross References: Regulations pertaining to migratory birds, 
applicable to Indians living on reservations: See Wildlife and 
Fisheries, 50 CFR chapter I.

  Bureau of Land Management regulations pertaining to Indians: See 
Bureau of Land Management, 43 CFR part 2530.

  Public Health regulations pertaining to contracts and health: See 
Public Health, 42 CFR chapter I.

  Note: Other regulations issued by the Department of the Interior 
appear in title 30, chapters II, III, IV, VI, VII; title 36, chapter I; 
title 41, chapter 114; title 48, chapter 14; title 43; and title 50, 
chapters I and IV, Code of Federal Regulations.

[[Page 3]]




     CHAPTER I--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR    



  --------------------------------------------------------------------

                  SUBCHAPTER A--PROCEDURES AND PRACTICE
Part                                                                Page
1               Applicability of rules of the Bureau of 
                    Indian Affairs..........................           9
2               Appeals from administrative actions.........          10
5               Preference in employment....................          16
                       SUBCHAPTER B--LAW AND ORDER
10              Indian country detention facilities and 
                    programs................................          17
11              Law and order on Indian reservations........          19
12              The Indian police...........................          55
13              Tribal reassumption of jurisdiction over 
                    child custody proceedings...............          59
                          SUBCHAPTER C--PROBATE
15              Determination of heirs and approval of 
                    wills, except as to members of the Five 
                    Civilized Tribes and Osage Indians......          63
16              Estates of Indians of the Five Civilized 
                    Tribes..................................          63
17              Action on wills of Osage Indians............          65
                      SUBCHAPTER D--HUMAN SERVICES
20              Financial assistance and social services 
                    program.................................          69
21              Arrangement with States, Territories, or 
                    other agencies for relief of distress 
                    and social welfare of Indians...........          79
23              Indian Child Welfare Act....................          80
26              Employment assistance for adult Indians.....         100
27              Vocational training for adult Indians.......         103
                         SUBCHAPTER E--EDUCATION
31              Federal schools for Indians.................         108
32              Indian education policies...................         109

[[Page 4]]

33              Transfer of Indian education functions......         114
36              Minimum academic standards for the basic 
                    education of Indian children and 
                    national criteria for dormitory 
                    situations..............................         116
38              Education personnel.........................         136
39              The Indian school equalization program......         150
40              Administration of educational loans, grants 
                    and other assistance for higher 
                    education...............................         172
41              Grants to tribally controlled community 
                    colleges and Navajo Community College...         172
42              Student rights and due process procedures...         183
43              Maintenance and control of student records 
                    in Bureau schools.......................         184
45              Special education...........................         190
                     SUBCHAPTER F--TRIBAL GOVERNMENT
61              Preparation of rolls of Indians.............         216
62              Enrollment appeals..........................         226
63              Indian child protection and family violence 
                    prevention..............................         229
67              Preparation of a roll of independent 
                    Seminole Indians of Florida.............         238
75              Revision of the membership roll of the 
                    Eastern Band of Cherokee Indians, North 
                    Carolina................................         242
81              Tribal reorganization under a Federal 
                    statute.................................         247
82              Petitioning procedures for tribes 
                    reorganized under Federal statute and 
                    other organized tribes..................         256
83              Procedures for establishing that an American 
                    Indian group exists as an Indian tribe..         258
87              Use or distribution of Indian judgment funds         272
88              Recognition of attorneys and agents to 
                    represent claimants.....................         277
89              Attorney contracts with Indian tribes.......         277
90              Election of officers of the Osage Tribe.....         284
91              Government of Indian villages, Osage 
                    Reservation, Oklahoma...................         290
                   SUBCHAPTER G--FINANCIAL ACTIVITIES
101             Loans to Indians from the Revolving Loan 
                    Fund....................................         295
103             Loan guaranty, insurance, and interest 
                    subsidy.................................         306
111             Annuity and other per capita payments.......         323
112             Regulations for pro rata shares of tribal 
                    funds...................................         324
114             Special deposits............................         326
115             Individual Indian money accounts............         329
116             Creation of trusts for restricted property 
                    of Indians, Five Civilized Tribes, 
                    Oklahoma................................         333

[[Page 5]]

117             Deposit and expenditure of individual funds 
                    of members of the Osage Tribe of Indians 
                    who do not have certificates of 
                    competency..............................         336
121             Distribution of judgment funds awarded to 
                    the Osage Tribe of Indians in Oklahoma..         344
122             Management of Osage judgment funds for 
                    education...............................         347
123             Alaska Native Fund..........................         349
124             Procedures for depositing funds to the 
                    credit of 14X6140-deposits of proceeds 
                    of lands withdrawn for Native selection, 
                    BIA.....................................         352
125             Payment of Sioux benefits...................         353
134             Partial payment construction charges on 
                    Indian irrigation projects..............         356
135             Construction assessments, Crow Indian 
                    irrigation project......................         359
136             Fort Hall Indian irrigation project, Idaho..         360
137             Reimbursement of construction costs, San 
                    Carlos Indian irrigation project, 
                    Arizona.................................         361
138             Reimbursement of construction costs, Ahtanum 
                    Unit, Wapato Indian irrigation project, 
                    Washington..............................         363
139             Reimbursement of construction costs, Wapato-
                    Satus Unit, Wapato Indian irrigation 
                    project, Washington.....................         363
140             Licensed Indian traders.....................         364
141             Business practices on the Navajo, Hopi and 
                    Zuni Reservations.......................         369
142             Operation of U.S.M.S. ``North Star'' between 
                    Seattle, Wash., and stations of the 
                    Bureau of Indian Affairs and other 
                    Government agencies, Alaska.............         384
143             Charges for goods and services provided to 
                    non-Federal users.......................         385
                      SUBCHAPTER H--LAND AND WATER
150             Land records and title documents............         387
151             Land acquisitions...........................         390
152             Issuance of patents in fee, certificates of 
                    competency, removal of restrictions, and 
                    sale of certain Indian lands............         394
153             Determination of competency: Crow Indians...         403
154             Osage roll, certificate of competency.......         404
156             Reallotment of lands to unallotted Indian 
                    children................................         405
158             Osage lands.................................         406
159             Sale of irrigable lands, special water 
                    contract requirements...................         407

[[Page 6]]

160             Inclusion of liens in all patents and 
                    instruments executed....................         408
162             Leasing and permitting......................         409
163             General forestry regulations................         417
166             General grazing regulations.................         443
167             Navajo grazing regulations..................         451
168             Grazing regulations for the Hopi Partitioned 
                    Lands area..............................         456
169             Rights-of-way over Indian lands.............         462
170             Roads of the Bureau of Indian Affairs.......         475
171             Operation and maintenance...................         478
172             Pueblo Indian lands benefited by irrigation 
                    and drainage works of Middle Rio Grande 
                    Conservancy District, New Mexico........         488
173             Concessions, permits and leases on lands 
                    withdrawn or acquired in connection with 
                    Indian irrigation projects..............         489
175             Indian electric power utilities.............         492
178             Resale of lands within the Badlands Air 
                    Force Gunnery Range (Pine Ridge Aerial 
                    Gunnery Range)..........................         498
179             Life estates and future interests...........         503
                    SUBCHAPTER I--ENERGY AND MINERALS
200             Terms and conditions: Coal leases...........         507
211             Leasing of tribal lands for mineral 
                    development.............................         507
212             Leasing of allotted lands for mineral 
                    development.............................         521
213             Leasing of restricted lands of members of 
                    Five Civilized Tribes, Oklahoma, for 
                    mining..................................         530
214             Leasing of Osage Reservation lands, 
                    Oklahoma, for mining, except oil and gas         543
215             Lead and zinc mining operations and leases, 
                    Quapaw Agency...........................         548
216             Surface exploration, mining, and reclamation 
                    of lands................................         557
217             Management of tribal assets of Ute Indian 
                    Tribe, Uintah and Ouray Reservation, 
                    Utah, by the tribe and the Ute 
                    Distribution Corp.......................         563
225             Oil and gas, geothermal, and solid minerals 
                    agreements..............................         564
226             Leasing of Osage Reservation lands for oil 
                    and gas mining..........................         575
227             Leasing of certain lands in Wind River 
                    Indian Reservation, Wyoming, for oil and 
                    gas mining..............................         592
                     SUBCHAPTER J--FISH AND WILDLIFE
241             Indian fishing in Alaska....................         600

[[Page 7]]

242             Commercial fishing on Red Lake Indian 
                    Reservation.............................         603
243             Reindeer in Alaska..........................         604
248             Use of Columbia River Indian in-lieu fishing 
                    sites...................................         605
249             Off-reservation treaty fishing..............         607
                          SUBCHAPTER K--HOUSING
256             Housing Improvement Program.................         611
                   SUBCHAPTER L--HERITAGE PRESERVATION
262             Protection of archaeological resources......         619
265             Establishment of roadless and wild areas on 
                    Indian reservations.....................         624
  SUBCHAPTER M--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT 
                                 PROGRAM
273             Education contracts under Johnson-O'Malley 
                    Act.....................................         625
275             Staffing....................................         639
276             Uniform administrative requirements for 
                    grants..................................         641
                   SUBCHAPTER N--ECONOMIC ENTERPRISES
286             Indian Business Development Program.........         664
                 SUBCHAPTER O--MISCELLANEOUS [RESERVED]
 
Appendix to Chapter I--Extension of the Trust or Restricted Status of 
  Certain Indian Lands

[[Page 9]]



                  SUBCHAPTER A--PROCEDURES AND PRACTICE





PART 1--APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS--Table of Contents




Sec.
1.1  [Reserved]
1.2  Applicability of regulations and reserved authority of the 
          Secretary of the Interior.
1.3  Scope.
1.4  State and local regulation of the use of Indian property.
1.10  Availability of forms.

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2.
Sec. 1.1  [Reserved]



Sec. 1.2  Applicability of regulations and reserved authority of the Secretary of the Interior.

    The regulations in chapter I of title 25 of the Code of Federal 
Regulations are of general application. Notwithstanding any limitations 
contained in the regulations of this chapter, the Secretary retains the 
power to waive or make exceptions to his regulations as found in chapter 
I of title 25 CFR in all cases where permitted by law and the Secretary 
finds that such waiver or exception is in the best interest of the 
Indians.

[25 FR 3124, Apr. 12, 1960]



Sec. 1.3  Scope.

    Chapters I and II of this title contain the bulk of the regulations 
of the Department of the Interior of general application relating to 
Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal 
Regulations contains rules relating to the relationship of Indians to 
public lands and townsites. Subtitle A of title 43 CFR has application 
to certain aspects of Indian affairs and, among other things, contains 
procedural rules for appellate and other administrative review and for 
practice before the Department of the Interior, of which the Bureau of 
Indian Affairs is a part. Indian health matters are covered in 42 CFR 
part 36. Title 30 CFR contains regulations on oil and gas and other 
mining operations, which, under certain circumstances, may be applicable 
to Indian resources.

[25 FR 3124, Apr. 12, 1960, as amended at 40 FR 20625, May 12, 1975; 48 
FR 13414, Mar. 31, 1983]



Sec. 1.4  State and local regulation of the use of Indian property.

    (a) Except as provided in paragraph (b) of this section, none of the 
laws, ordinances, codes, resolutions, rules or other regulations of any 
State or political subdivision thereof limiting, zoning or otherwise 
governing, regulating, or controlling the use or development of any real 
or personal property, including water rights, shall be applicable to any 
such property leased from or held or used under agreement with and 
belonging to any Indian or Indian tribe, band, or community that is held 
in trust by the United States or is subject to a restriction against 
alienation imposed by the United States.
    (b) The Secretary of the Interior or his authorized representative 
may in specific cases or in specific geographic areas adopt or make 
applicable to Indian lands all or any part of such laws, ordinances, 
codes, resolutions, rules or other regulations referred to in paragraph 
(a) of this section as he shall determine to be in the best interest of 
the Indian owner or owners in achieving the highest and best use of such 
property. In determining whether, or to what extent, such laws, 
ordinances, codes, resolutions, rules or other regulations shall be 
adopted or made applicable, the Secretary or his authorized 
representative may consult with the Indian owner or owners and may 
consider the use of, and restrictions or limitations on the use of, 
other property in the vicinity, and such other factors as he shall deem 
appropriate.

[30 FR 7520, June 9, 1965]



Sec. 1.10  Availability of forms.

    Forms upon which applications and related documents may be filed and 
upon which rights and privileges may be granted may be inspected and 
procured at the Bureau of Indian Affairs, Washington, DC, and at the 
office of

[[Page 10]]

any Area Director or Agency Superintendent.

[25 FR 3124, Apr. 12, 1960]



PART 2--APPEALS FROM ADMINISTRATIVE ACTIONS--Table of Contents




Sec.
2.1  Information collection.
2.2  Definitions.
2.3  Applicability.
2.4  Officials who may decide appeals.
2.5  Appeal bond.
2.6  Finality of decisions.
2.7  Notice of administrative decision or action.
2.8  Appeal from inaction of official.
2.9  Notice of an appeal.
2.10  Statement of reasons.
2.11  Answer of interested party.
2.12  Service of appeal documents.
2.13  Filing documents.
2.14  Record address.
2.15  Computation of time.
2.16  Extensions of time.
2.17  Summary dismissal.
2.18  Consolidation of appeals.
2.19  Action by Area Directors and Education Programs officials on 
          appeal.
2.20  Action by the Assistant Secretary--Indian Affairs on appeal.
2.21  Scope of review.

    Authority: R.S. 463, 465; 5 U.S.C. 301, 25 U.S.C. 2, 9.
    Source: 54 FR 6480, Feb. 10, 1989, unless otherwise noted.



Sec. 2.1  Information collection.

    In accordance with Office of Management and Budget regulations in 5 
CFR 1320.3(c), approval of information collections contained in this 
regulation is not required.



Sec. 2.2  Definitions.

    Appeal means a written request for review of an action or the 
inaction of an official of the Bureau of Indian Affairs that is claimed 
to adversely affect the interested party making the request.
    Appellant means any interested party who files an appeal under this 
part.
    Interested party means any person whose interests could be adversely 
affected by a decision in an appeal.
    Legal holiday means a Federal holiday as designated by the President 
or the Congress of the United States.
    Notice of appeal means the written document sent to the official 
designated in this part, indicating that a decision is being appealed 
(see Sec. 2.9).
    Person includes any Indian or non-Indian individual, corporation, 
tribe or other organization.
    Statement of reasons means a written document submitted by the 
appellant explaining why the decision being appealed is in error (see 
Sec. 2.10).

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.3  Applicability.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all appeals from decisions made by officials of the Bureau of 
Indian Affairs by persons who may be adversely affected by such 
decisions.
    (b) This part does not apply if any other regulation or Federal 
statute provides a different administrative appeal procedure applicable 
to a specific type of decision.



Sec. 2.4  Officials who may decide appeals.

    The following officials may decide appeals:
    (a) An Area Director, if the subject of appeal is a decision by a 
person under the authority of that Area Director.
    (b) An Area Education Programs Administrator, Agency Superintendent 
for Education, President of a Post-Secondary School, or the Deputy to 
the Assistant Secretary--Indian Affairs/Director (Indian Education 
Programs), if the appeal is from a decision by an Office of Indian 
Education Programs (OIEP) official under his/her jurisdiction.
    (c) The Assistant Secretary--Indian Affairs pursuant to the 
provisions of Sec. 2.20 of this part.
    (d) A Deputy to the Assistant Secretary--Indian Affairs pursuant to 
the provisions of Sec. 2.20(c) of this part.
    (e) The Interior Board of Indian Appeals, pursuant to the provisions 
of 43 CFR part 4, subpart D, if the appeal is from a decision made by an 
Area Director or a Deputy to the Assistant Secretary--Indian Affairs 
other than the Deputy to the Assistant Secretary--Indian Affairs/
Director (Indian Education Programs).

[[Page 11]]



Sec. 2.5  Appeal bond.

    (a) If a person believes that he/she may suffer a measurable and 
substantial financial loss as a direct result of the delay caused by an 
appeal, that person may request that the official before whom the appeal 
is pending require the posting of a reasonable bond by the appellant 
adequate to protect against that financial loss.
    (b) A person requesting that a bond be posted bears the burden of 
proving the likelihood that he/she may suffer a measurable and 
substantial financial loss as a direct result of the delay caused by the 
appeal.
    (c) In those cases in which the official before whom an appeal is 
pending determines that a bond is necessary to protect the financial 
interests of an Indian or Indian tribe, that official may require the 
posting of a bond on his/her own initiative.
    (d) Where the official before whom an appeal is pending requires a 
bond to be posted or denies a request that a bond be posted, he/she 
shall give notice of his/her decision pursuant to Sec. 2.7.



Sec. 2.6  Finality of decisions.

    (a) No decision, which at the time of its rendition is subject to 
appeal to a superior authority in the Department, shall be considered 
final so as to constitute Departmental action subject to judicial review 
under 5 U.S.C. 704, unless when an appeal is filed, the official to whom 
the appeal is made determines that public safety, protection of trust 
resources, or other public exigency requires that the decision be made 
effective immediately.
    (b) Decisions made by officials of the Bureau of Indian Affairs 
shall be effective when the time for filing a notice of appeal has 
expired and no notice of appeal has been filed.
    (c) Decisions made by the Assistant Secretary--Indian Affairs shall 
be final for the Department and effective immediately unless the 
Assistant Secretary--Indian Affairs provides otherwise in the decision.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.7  Notice of administrative decision or action.

    (a) The official making a decision shall give all interested parties 
known to the decisionmaker written notice of the decision by personal 
delivery or mail.
    (b) Failure to give such notice shall not affect the validity of the 
decision or action but the time to file a notice of appeal regarding 
such a decision shall not begin to run until notice has been given in 
accordance with paragraph (c) of this section.
    (c) All written decisions, except decisions which are final for the 
Department pursuant to Sec. 2.6(c), shall include a statement that the 
decision may be appealed pursuant to this part, identify the official to 
whom it may be appealed and indicate the appeal procedures, including 
the 30-day time limit for filing a notice of appeal.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.8  Appeal from inaction of official.

    (a) A person or persons whose interests are adversely affected, or 
whose ability to protect such interests is impeded by the failure of an 
official to act on a request to the official, can make the official's 
inaction the subject of appeal, as follows:
    (1) Request in writing that the official take the action originally 
asked of him/her;
    (2) Describe the interest adversely affected by the official's 
inaction, including a description of the loss, impairment or impediment 
of such interest caused by the official's inaction;
    (3) State that, unless the official involved either takes action on 
the merits of the written request within 10 days of receipt of such 
request by the official, or establishes a date by which action will be 
taken, an appeal shall be filed in accordance with this part.
    (b) The official receiving a request as specified in paragraph (a) 
of this section must either make a decision on the merits of the initial 
request within 10 days from receipt of the request for a decision or 
establish a reasonable later date by which the decision shall be made, 
not to exceed 60 days from the

[[Page 12]]

date of request. If an official establishes a date by which a requested 
decision shall be made, this date shall be the date by which failure to 
make a decision shall be appealable under this part. If the official, 
within the 10-day period specified in paragraph (a) of this section, 
neither makes a decision on the merits of the initial request nor 
establishes a later date by which a decision shall be made, the 
official's inaction shall be appealable to the next official in the 
process established in this part.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.9  Notice of an appeal.

    (a) An appellant must file a written notice of appeal in the office 
of the official whose decision is being appealed. The appellant must 
also send a copy of the notice of appeal to the official who will decide 
the appeal and to all known interested parties. The notice of appeal 
must be filed in the office of the official whose decision is being 
appealed within 30 days of receipt by the appellant of the notice of 
administrative action described in Sec. 2.7. A notice of appeal that is 
filed by mail is considered filed on the date that it is postmarked. The 
burden of proof of timely filing is on the appellant. No extension of 
time shall be granted for filing a notice of appeal. Notices of appeal 
not filed in the specified time shall not be considered, and the 
decision involved shall be considered final for the Department and 
effective in accordance with Sec. 2.6(b).
    (b) When the appellant is an Indian or Indian tribe not represented 
by counsel, the official who issued the decision appealed shall, upon 
request of the appellant, render such assistance as is appropriate in 
the preparation of the appeal.
    (c) The notice of appeal shall:
    (1) Include name, address, and phone number of appellant.
    (2) Be clearly labeled or titled with the words ``NOTICE OF 
APPEAL.''
    (3) Have on the face of any envelope in which the notice is mailed 
or delivered, in addition to the address, the clearly visible words 
``NOTICE OF APPEAL.''
    (4) Contain a statement of the decision being appealed that is 
sufficient to permit identification of the decision.
    (5) If possible, attach either a copy of the notice of the 
administrative decision recieved under Sec. 2.7, or when an official has 
failed to make a decision or take any action, attach a copy of the 
appellant's request for a decision or action under Sec. 2.8 with a 
written statement that the official failed to make a decision or take 
any action or to establish a date by which a decision would be made upon 
the request.
    (6) Certify that copies of the notice of appeal have been served on 
interested parties, as prescribed in Sec. 2.12(a).



Sec. 2.10  Statement of reasons.

    (a) A statement of reasons shall be filed by the appellant in every 
appeal, and shall be accompanied by or otherwise incorporate all 
supporting documents.
    (b) The statement of reasons may be included in or filed with the 
notice of appeal.
    (c) If the statement of reasons is not filed with the notice of 
appeal, the appellant shall file a separate statement of reasons in the 
office of the official whose decision is being appealed within 30 days 
after the notice of appeal was filed in that office.
    (d) The statement of reasons whether filed with the notice of appeal 
or filed separately should:
    (1) Be clearly labeled ``STATEMENT OF REASONS''.
    (2) Have on the face of any envelope in which the statement of 
reasons is mailed or delivered, in addition to the address, the clearly 
visible words ``STATEMENT OF REASONS''.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.11  Answer of interested party.

    (a) Any interested party wishing to participate in an appeal 
proceeding should file a written answer responding to the appellant's 
notice of appeal and statement of reasons. An answer should describe the 
party's interest.
    (b) An answer shall state the party's position or response to the 
appeal in any manner the party deems appropriate and may be accompanied 
by or

[[Page 13]]

otherwise incorporate supporting documents.
    (c) An answer must be filed within 30 days after receipt of the 
statement of reasons by the person filing an answer.
    (d) An answer and any supporting documents shall be filed in the 
office of the official before whom the appeal is pending as specified in 
Sec. 2.13.
    (e) An answer should:
    (1) Be clearly labelled or titled with the words ``ANSWER OF 
INTERESTED PARTY.''
    (2) Have on the face of any envelope in which the answer is mailed 
or delivered, in addition to the address, the clearly visible words 
``ANSWER OF INTERESTED PARTY,'' and
    (3) Contain a statement of the decision being appealed that is 
sufficient to permit identification of the decision.



Sec. 2.12  Service of appeal documents.

    (a) Persons filing documents in an appeal must serve copies of those 
documents on all other interested parties known to the person making the 
filing. A person serving a document either by mail or personal delivery 
must, at the time of filing the document, also file a written statement 
certifying service on each interested party, showing the document 
involved, the name and address of the party served, and the date of 
service.
    (b) If an appeal is filed with the Interior Board of Indian Appeals, 
a copy of the notice of appeal shall also be sent to the Assistant 
Secretary--Indian Affairs. The notice of appeal sent to the Interior 
Board of Indian Appeals shall certify that a copy has been sent to the 
Assistant Secretary--Indian Affairs.
    (c) If the appellant is an Indian or Indian tribe not represented by 
counsel, the official with whom the appeal is filed (i.e., official 
making the decision being appealed) shall, in the manner prescribed in 
this section, personally or by mail serve a copy of all appeal documents 
on the official who will decide the appeal and on each interested party 
known to the official making such service.
    (d) Service of any document under this part shall be by personal 
delivery or by mail to the record address as specified in Sec. 2.14. 
Service on a tribe shall be to the principal or designated tribal 
official or to the governing body.
    (e) In all cases where a party is represented by an attorney in an 
appeal, service of any document on the attorney is service on the party 
represented. Where a party is represented by more than one attorney, 
service on any one attorney is sufficient. The certificate of service on 
an attorney shall include the name of the party whom the attorney 
represents and indicate that service was made on the attorney 
representing that party.
    (f) When an official deciding an appeal determines that there has 
not been service of a document affecting a person's interest, the 
official shall either serve the document on the person or direct the 
appropriate legal counsel to serve the document on the person and allow 
the person an opportunity to respond.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]



Sec. 2.13  Filing documents.

    (a) An appeal document is properly filed with an official of the 
Bureau of Indian Affairs:
    (1) By personal delivery during regular business hours to the person 
designated to receive mail in the immediate office of the official, or
    (2) By mail to the facility officially designated for receipt of 
mail addressed to the official; the document is considered filed by mail 
on the date that it is postmarked.
    (b) Bureau of Indian Affairs offices receiving a misdirected appeal 
document shall forward the document to the proper office promptly. If a 
person delivers an appeal document to the wrong office or mails an 
appeal document to an incorrect address, no extension of time should be 
allowed because of the time necessary for a Bureau office to redirect 
the document to the correct address.
    (c) Notwithstanding any other provision of this section, an official 
deciding an appeal shall allow late filing of a misdirected document, 
including a notice of appeal, where the official finds that the 
misdirection is the fault of the government.

[[Page 14]]



Sec. 2.14  Record address.

    (a) Every interested party who files a document in connection with 
an appeal shall, when he/she files the document, also indicate his/her 
address. Thereafter, any change of address shall be promptly reported to 
the official with whom the previous address was filed. The most current 
address on file under this subsection shall be deemed the proper address 
for all purposes under this part.
    (b) The successors in interest of a party shall also promptly inform 
the official specified in paragraph (a) of this section of their 
interest in the appeal and their address.
    (c) An appellant or interested party failing to file an address or 
change of address as specified in this section may not object to lack of 
notice or service attributable to his/her failure to indicate a new 
address.



Sec. 2.15  Computation of time.

    In computing any period of time prescribed or allowed in this part, 
calendar days shall be used. Computation shall not include the day on 
which a decision being appealed was made, service or notice was 
received, a document was filed, or other event occurred causing time to 
begin to run. Computation shall include the last day of the period, 
unless it is a Saturday, a Sunday, or a legal holiday, in which event 
the period runs until the end of the next day which is not a Saturday, a 
Sunday, or a legal holiday.



Sec. 2.16  Extensions of time.

    An official to whom an appeal is made may, upon a showing of good 
cause by a party and with notice to all other parties, extend the period 
for filing or serving any document; provided, however, that no extension 
will be granted for filing a notice of appeal under Sec. 2.9 of this 
part or serve by itself to extend any period specified by law or 
regulation other than in this part.



Sec. 2.17  Summary dismissal.

    (a) An appeal under this part will be dismissed if the notice of 
appeal is not filed within the time specified in Sec. 2.9(a).
    (b) An appeal under this part may be subject to summary dismissal 
for the following causes:
    (1) If after the appellant is given an opportunity to amend them, 
the appeal documents do not state the reasons why the appellant believes 
the decision being appealed is in error, or the reasons for the appeal 
are not otherwise evident in the documents, or
    (2) If the appellant has been required to post a bond and fails to 
do so.



Sec. 2.18  Consolidation of appeals.

    Separate proceedings pending before one official under this part and 
involving common questions of law or fact may be consolidated by the 
official conducting such proceedings, pursuant to a motion by any party 
or on the initiative of the official.



Sec. 2.19  Action by Area Directors and Education Programs officials on appeal.

    (a) Area Directors, Area Education Programs Administrators, Agency 
Superintendents for Education, Presidents of Post-Secondary Schools and 
the Deputy to the Assistant Secretary--Indian Affairs/Director (Indian 
Education Programs) shall render written decisions in all cases appealed 
to them within 60 days after all time for pleadings (including all 
extensions granted) has expired. The decision shall include a statement 
that the decision may be appealed pursuant to this part, identify the 
official to whom it may be appealed and indicate thhe appeal procedures, 
including the 30-day time limit for filing a notice of appeal.
    (b) A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record.



Sec. 2.20  Action by the Assistant Secretary--Indian Affairs on appeal.

    (a) When a decision is appealed to the Interior Board of Indian 
Appeals, a copy of the notice of appeal shall be sent to the Assistant 
Secretary--Indian Affairs.
    (b) The notice of appeal sent to the Interior Board of Indian 
Appeals shall

[[Page 15]]

certify that a copy has been sent to the Assistant Secretary--Indian 
Affairs.
    (c) In accordance with the provisions of Sec. 4.332(b) of title 43 
of the Code of Federal Regulations, a notice of appeal to the Board of 
Indian Appeals shall not be effective until 20 days after receipt by the 
Board, during which time the Assistant Secretary--Indian Affairs shall 
have authority to decide to:
    (1) Issue a decision in the appeal, or
    (2) Assign responsibility to issue a decision in the appeal to a 
Deputy to the Assistant Secretary--Indian Affairs.

The Assistant Secretary--Indian Affairs will not consider petitions to 
exercise this authority. If the Assistant Secretary--Indian Affairs 
decides to issue a decision in the appeal or to assign responsibility to 
issue a decision in the appeal to a Deputy to the Assistant Secretary--
Indian Affairs, he/she shall notify the Board of Indian Appeals, the 
deciding official, the appellant, and interested parties within 15 days 
of his/her receipt of a copy of the notice of appeal. Upon receipt of 
such notification, the Board of Indian Appeals shall transfer the appeal 
to the Assistant Secretary--Indian Affairs. The decision shall be signed 
by the Assistant Secretary--Indian Affairs or a Deputy to the Assistant 
Secretary--Indian Affairs within 60 days after all time for pleadings 
(including all extensions granted) has expired. If the decision is 
signed by the Assistant Secretary--Indian Affairs, it shall be final for 
the Department and effective immediately unless the Assistant 
Secretary--Indian Affairs provides otherwise in the decision. Except as 
otherwise provided in Sec. 2.20(g), if the decision is signed by a 
Deputy to the Assistant Secretary--Indian Affairs, it may be appealed to 
the Board of Indian Appeals pursuant to the provisions of 43 CFR part 4, 
subpart D.
    (d) A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record.
    (e) If the Assistant Secretary--Indian Affairs or the Deputy to the 
Assistant Secretary--Indian Affairs to whom the authority to issue a 
decision has been assigned pursuant to Sec. 2.20(c) does not make a 
decision within 60 days after all time for pleadings (including all 
extensions granted) has expired, any party may move the Board of Indian 
Appeals to assume jurisdiction subject to 43 CFR 4.337(b). A motion for 
Board decision under this section shall invest the Board with 
jurisdiction as of the date the motion is received by the Board.
    (f) When the Board of Indian Appeals, in accordance with 43 CFR 
4.337(b), refers an appeal containing one or more discretionary issues 
to the Assistant Secretary--Indian Affairs for further consideration, 
the Assistant Secretary--Indian Affairs shall take action on the appeal 
consistent with the procedures in this section.
    (g) The Assistant Secretary--Indian Affairs shall render a written 
decision in an appeal from a decision of the Deputy to the Assistant 
Secretary--Indian Affairs/Director (Indian Education Programs) within 60 
days after all time for pleadings (including all extensions granted) has 
expired. A copy of the decision shall be sent to the appellant and each 
known interested party by certified or registered mail, return receipt 
requested. Such receipts shall become a permanent part of the record. 
The decision shall be final for the Department and effective immediately 
unless the Assistant Secretary--Indian Affairs provides otherwise in the 
decision.



Sec. 2.21  Scope of review.

    (a) When a decision has been appealed, any information available to 
the reviewing official may be used in reaching a decision whether part 
of the record or not.
    (b) When the official deciding an appeal believes it appropriate to 
consider documents or information not contained in the record on appeal, 
the official shall notify all interested parties of the information and 
they shall be given not less than 10 days to comment on the information 
before the appeal is decided. The deciding official shall include in the 
record copies of documents or a description of the information used in 
arriving at the decision. Except where disclosure of the actual 
documents used may be prohibited by law, copies of the information shall 
be made

[[Page 16]]

available to the parties upon request and at their expense.



PART 5--PREFERENCE IN EMPLOYMENT--Table of Contents




Sec.
5.1  Definitions.
5.2  Appointment actions.
5.3  Application procedure for preference eligibility.
5.4  Information collection.

    Authority: 4 Stat. 737, 25 U.S.C. 43; 22 Stat. 88, 25 U.S.C. 46; 28 
Stat. 313, 25 U.S.C. 44; 24 Stat. 389, 25 U.S.C. 348; and 48 Stat. 986, 
25 U.S.C. 472 and 479.



Sec. 5.1  Definitions.

    For purposes of making appointments to vacancies in all positions in 
the Bureau of Indian Affairs a preference will be extended to persons of 
Indian descent who are:
    (a) Members of any recognized Indian tribe now under Federal 
Jurisdiction;
    (b) Descendants of such members who were, on June 1, 1934, residing 
within the present boundaries of any Indian reservation;
    (c) All others of one-half or more Indian blood of tribes indigenous 
to the United States;
    (d) Eskimos and other aboriginal people of Alaska; and
    (e) For one (1) year or until the Osage Tribe has formally 
organized, whichever comes first, effective January 5, 1989, a person of 
at least one-quarter degree Indian ancestry of the Osage Tribe of 
Indians, whose rolls were closed by an act of Congress.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 283, Jan. 5, 1989]



Sec. 5.2  Appointment actions.

    (a) Preference will be afforded a person meeting any one of the 
standards of Sec. 5.1 whether the appointment involves initial hiring, 
reinstatement, transfer, reassignment or promotion.
    (b) Preference eligibles may be given a Schedule A excepted 
appointment under Exception Number 213.3112(a)(7). However, if the 
individuals are within reach on a Civil Service Register, they may be 
given a competitive appointment.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 12702, Mar. 30, 1984]



Sec. 5.3  Application procedure for preference eligibility.

    (a) Proof of eligibility must be submitted with the person's 
application for a position.
    (b) In order for a person to be considered a preference eligible 
according to the standards of Sec. 5.1, they must submit proof of 
membership, descendancy or degree of Indian ancestry as indicated on 
rolls or records acceptable to the Secretary.

[43 FR 2393, Jan. 17, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 5.4  Information collection.

    The Office of Management and Budget has informed the Department of 
the Interior that the information collection requirements contained in 
part 5 need not be reviewed by them under the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.).

[54 FR 283, Jan. 5, 1989]

[[Page 17]]



                       SUBCHAPTER B--LAW AND ORDER





PART 10--INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS--Table of Contents




Sec.
10.1  Why are policies and standards needed for Indian country detention 
          programs?
10.2  Who is responsible for developing and maintaining the policies and 
          standards for detention and holding facilities in Indian 
          country?
10.3  Who must follow these policies and standards?
10.4  What happens if the policies and standards are not followed?
10.5   Where can I find the policies and standards for the 
          administration, operation, services, and physical plant/
          construction of Indian country detention, community 
          residential, and holding facilities?
10.6  How is the BIA assured that the policies and standards are being 
          applied uniformly and facilities are properly accredited?
10.7  Where do I find help or receive technical assistance in complying 
          with the policies and standards?
10.8  What minimum records must be kept and reports made at each 
          detention, community residential, or holding facility in 
          Indian country?
10.9  If a person is detained or incarcerated in an Indian country 
          detention, community residential, or holding facility, how 
          would they know what their rights, privileges, safety, 
          protection and expected behavior would be?
10.10  What happens if I believe my civil rights have been violated 
          while incarcerated in an Indian country detention or holding 
          facility?
10.11  How would someone detained or incarcerated, or their 
          representative, get the BIA policies and standards?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and 2802.

    Source: 61 FR 34374, July 2, 1996, unless otherwise noted.



Sec. 10.1   Why are policies and standards needed for Indian country detention programs?

    Policies and standards are required to ensure that all Bureau of 
Indian Affairs (BIA) and tribal entities that receive Federal funding 
for the operation, maintenance, design and construction or renovation of 
detention facilities, community residential, or holding facilities are 
supporting constitutional rights and are complying with the Indian Law 
Enforcement Reform Act of 1990. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. The provision for funding 
tribes for detention programs under the Indian Alcohol and Substance 
Abuse Prevention and Treatment Act, Public Law 99-570, (25 U.S.C. 2453) 
requires standards and procedures for such facilities.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.2   Who is responsible for developing and maintaining the policies and standards for detention and holding facilities in Indian country?

    The Director, Office of Law Enforcement Services who reports to the 
Deputy Commissioner of Indian Affairs, BIA, establishes policies, 
procedures, and standards for the operations, design, planning, 
maintenance, renovation, and construction of detention programs in the 
BIA and by tribal contract under Indian Self-Determination and Education 
Assistance Act, Public Law 93-638, as amended, 25 U.S.C. 450.



Sec. 10.3   Who must follow these policies and standards?

    You must follow these minimum policies, standards, and guides if you 
are part of the BIA or tribal detention or rehabilitation program 
receiving Federal funding. Self-governance tribes and tribes with 
limited jurisdiction are encouraged to follow the regulations in this 
part, and other BIA manuals and handbooks. Detention officers, guards, 
cooks and other staff conducting business in the facilities must meet 
minimum standards of law enforcement personnel as prescribed in 25 CFR 
part 12, subpart D, ``Qualifications and Training Requirements.'' Those 
tribal programs not receiving Federal funding under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638, as 
amended) who wish to be accredited are encouraged to use the policies 
and standards in that part

[[Page 18]]

since they have been modified and approved for Indian country.



Sec. 10.4   What happens if the policies and standards are not followed?

    The risk for human and civil rights violations due to lack of common 
standards will subject the operation and/or facility to unnecessary 
exposure to liability. Lack of employee standards, particularly for 
training and background checks, will increase the risk of misconduct and 
vicarious liability of the tribes and the Federal government through 
tort claims. Funding sources for detention programs may become scarce to 
nonexistent because of contract noncompliance. The tribes' opportunity 
to receive funding from potential resource sharing agreements with other 
law enforcement agencies may be damaged because the facility may have to 
be closed for cause due to violation of the life safety codes.



Sec. 10.5   Where can I find the policies and standards for the administration, operation, services, and physical plant/construction of Indian country 
          detention, community residential, and holding facilities?

    The Bureau of Indian Affairs, Department of the Interior, maintains 
a manual of policies and procedures called the Bureau of Indian Affairs 
Manual (BIAM). The Chapter 69 BIAM titled ``Indian Country Detention 
Facilities and Programs,'' contains the BIA's policies, procedures, and 
standards for detention and holding programs in Indian country. The 
standards for the programs within the BIAM are in handbook format for 
easy field reference and use. Copies of the Chapter 69 BIAM and 
handbooks may be obtained from the Director, Office of Law Enforcement 
Services.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.6   How is the BIA assured that the policies and standards are being applied uniformly and facilities are properly accredited?

    The tribes and BIA programs will use a phased approach to meeting 
all non-mandatory detention standards and will document progress on 
uniform reporting. The BIA Office of Law Enforcement Services will 
conduct periodic operational evaluations for oversight.



Sec. 10.7  Where do I find help or receive technical assistance in complying with the policies and standards?

    The BIA has a trained Detention Specialist on the staff of the 
Office of Law Enforcement Services, Albuquerque, New Mexico, who is 
available to conduct evaluations and provide technical assistance or 
guidance in all facets of Indian country detention programs.



Sec. 10.8  What minimum records must be kept and reports made at each detention, community residential, or holding facility in Indian country?

    The Director, Office of Law Enforcement Services, BIA, will develop 
all necessary requirements for maintaining records, reporting data, and 
archiving information. These requirements will be published in 69 BIAM, 
``Indian Country Detention Facilities and Programs.''

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



Sec. 10.9  If a person is detained or incarcerated in an Indian country detention, community residential, or holding facility, how would they know what their 
          rights, privileges, safety, protection and expected behavior 
          would be?

    When an individual is incarcerated in an Indian country detention, 
community residential, or holding facility, he/she will be given, or in 
some cases notified of the availability of, an Inmate Handbook. This 
book of guidelines describes in detail the inmate's rights, privileges, 
protection and safety, cleanliness and sanitation, and general health 
and nutritional standards. The Inmate Handbook describes the emergency 
evacuation procedures, medical, counseling, rehabilitation services, 
visitation procedures, and other appropriate information. The Inmate 
Handbook is published by the Director, Office of Law Enforcement 
Services and maintained by the detention facility administrator at each 
facility location.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]

[[Page 19]]



Sec. 10.10  What happens if I believe my civil rights have been violated while incarcerated in an Indian country detention or holding facility?

    All allegations of civil rights violations must be reported 
immediately to the Internal Affairs Branch of the Office of Law 
Enforcement Services. This office will ensure that such allegations are 
immediately reported to the Civil Rights Division of the U.S. Department 
of Justice through established procedures. The BIA Internal Affairs 
Branch may also investigate alleged violations and make recommendations 
for additional action as necessary. Detailed instructions on the 
procedure to report violations can be found in the Inmate Handbook.



Sec. 10.11  How would someone detained or incarcerated, or their representative, get the BIA policies and standards?

    At each detention, community residential, or holding facility 
located in a tribal jurisdiction where federal funds are used for 
operations or maintenance programs, the BIA's policies, standards, and 
procedures will be made available upon request. The Inmate Handbook will 
be made available to all persons at the time they are incarcerated or 
detained in a facility. There may be times when this may be delayed due 
to the physical or mental condition of the person at time of 
incarceration. In these cases, the Inmate Handbook will be made 
available when the person is deemed receptive and cognizant by the 
detention officer in charge. All policies, standards, procedures, and 
guidelines are available at each facility to the public or by writing to 
the Director, Office of Law Enforcement Services.

[61 FR 34374, July 2, 1996; 61 FR 65473, Dec. 13, 1996]



PART 11--LAW AND ORDER ON INDIAN RESERVATIONS--Table of Contents




                  Subpart A--Application; Jurisdiction

Sec.
11.100  Listing of Courts of Indian Offenses.
11.101  Prospective application of regulations.
11.102  Criminal jurisdiction; limitation of actions.
11.103  Civil jurisdiction; limitation of actions.
11.104  Jurisdictional limitations.

     Subpart B--Courts of Indian Offenses; Personnel; Administration

11.200  Composition of court.
11.201  Appointment of magistrates.
11.202  Removal of magistrates.
11.203  Court clerks.
11.204  Prosecutors.
11.205  Standard governing appearance of attorneys and lay counselors.
11.206  Court records.
11.207  Cooperation of Bureau of Indian Affairs employees.
11.208  Payment of judgments from individual Indian money accounts.
11.209  Disposition of fines.

                      Subpart C--Criminal Procedure

11.300  Complaints.
11.301  Arrests.
11.302  Arrest warrants.
11.303  Notification of rights prior to custodial interrogation.
11.304  Summons in lieu of warrant.
11.305  Search warrants.
11.306  Search without a warrant.
11.307  Disposition of seized property.
11.308  Commitments.
11.309  Arraignments.
11.310  Bail.
11.311  Subpoenas.
11.312  Witness fees.
11.313  Trial procedure.
11.314  Jury trials.
11.315  Sentencing.
11.316  Probation.
11.317  Parole.
11.318  Extradition.

                      Subpart D--Criminal Offenses

11.400  Assault.
11.401  Recklessly endangering another person.
11.402  Terroristic threats.
11.403  Unlawful restraint.
11.404  False imprisonment.
11.405  Interference with custody.
11.406  Criminal coercion.
11.407  Sexual assault.
11.408  Indecent exposure.
11.409  Reckless burning or exploding.
11.410  Criminal mischief.
11.411  Criminal trespass.
11.412  Theft.
11.413  Receiving stolen property.
11.414  Embezzlement.
11.415  Fraud.
11.416  Forgery.
11.417  Extortion.

[[Page 20]]

11.418  Misbranding.
11.419  Unauthorized use of automobiles and other vehicles.
11.420  Tampering with records.
11.421  Bad checks.
11.422  Unauthorized use of credit cards.
11.423  Defrauding secured creditors.
11.424  Neglect of children.
11.425  Persistent non-support.
11.426  Bribery.
11.427  Threats and other improper influence in official and political 
          matters.
11.428  Retaliation for past official action.
11.429  Perjury.
11.430  False alarms.
11.431  False reports.
11.432  Impersonating a public servant.
11.433  Disobedience to lawful order of court.
11.434  Resisting arrest.
11.435  Obstructing justice.
11.436  Escape.
11.437  Bail jumping.
11.438  Flight to avoid prosecution or judicial process.
11.439  Witness tampering.
11.440  Tampering with or fabricating physical evidence.
11.441  Disorderly conduct.
11.442  Riot; failure to disperse.
11.443  Harassment.
11.444  Carrying concealed weapons.
11.445  Driving violations.
11.446  Cruelty to animals.
11.447  Maintaining a public nuisance.
11.448  Abuse of office.
11.449  Violation of an approved tribal ordinance.
11.450  Maximum fines and sentences of imprisonment.

                        Subpart E--Civil Actions

11.500  Law applicable to civil actions.
11.501  Judgments in civil actions.
11.502  Costs in civil actions.
11.503  Applicable civil procedure.
11.504  Applicable rules of evidence.

                      Subpart F--Domestic Relations

11.600  Marriages.
11.601  Marriage licenses.
11.602  Solemnization.
11.603  Invalid or prohibited marriages.
11.604  Declaration of invalidity.
11.605  Dissolution.
11.606  Dissolution proceedings.
11.607  Temporary orders and temporary injunctions.
11.608  Final decree; disposition of property; maintenance; child 
          support; custody.
11.609  Determination of paternity and support.
11.610  Appointment of guardians.
11.611  Change of name.

                     Subpart G--Probate Proceedings

11.700  Probate jurisdiction.
11.701  Duty to present will for probate.
11.702  Proving and admitting will.
11.703  Petition and order to probate estate.
11.704  Appointment and duties of executor or administrator.
11.705  Removal of executor or administrator.
11.706  Appointment and duties of appraiser.
11.707  Claims against estate.
11.708  Sale of property.
11.709  Final account.
11.710  Determination of the court.
11.711  Descent and distribution.
11.712  Closing estate.
11.713  Small estates.

                    Subpart H--Appellate Proceedings

11.800  Jurisdiction of appellate division.
11.801  Procedure on appeal.
11.802  Judgment against surety.
11.803  Record on appeal.
11.804  Briefs and memoranda.
11.805  Oral argument.
11.806  Rules of court.

                       Subpart I--Children's Court

11.900  Definitions.
11.901  The children's court established.
11.902  Non-criminal proceedings.
11.903  Presenting officer.
11.904  Guardian ad litem.
11.905  Jurisdiction.
11.906  Rights of parties.
11.907  Transfer to Court of Indian Offenses.
11.908  Court records.
11.909  Law enforcement records.
11.910  Expungement.
11.911  Appeal.
11.912  Contempt of court.

                 Subpart J--Juvenile Offender Procedure

11.1000  Complaint.
11.1001  Warrant.
11.1002  Custody.
11.1003  Law enforcement officer's duties.
11.1004  Detention and shelter care.
11.1005  Preliminary inquiry.
11.1006  Investigation by the presenting officer.
11.1007  Petition.
11.1008  Date of hearing.
11.1009  Summons.
11.1010  Adjudicatory hearing.
11.1011  Dispositional hearing.
11.1012  Dispositional alternatives.
11.1013  Modification of dispositional order.
11.1014  Medical examination.

               Subpart K--Minor-in-Need-of-Care Procedure

11.1100  Complaint.

[[Page 21]]

11.1101  Warrant.
11.1102  Custody.
11.1103  Law enforcement officer's duties.
11.1104  Shelter care.
11.1105  Preliminary inquiry.
11.1106  Investigation by the presenting officer.
11.1107  Petition.
11.1108  Date of hearing.
11.1109  Summons.
11.1110  Minor-in-need-of-care adjudicatory hearing.
11.1111  Minor-in-need-of-care dispositional hearing.
11.1112  Dispositional alternatives.
11.1113  Modification of dispositional order.
11.1114  Termination.
11.1115  Information collection.

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 
9; 42 Stat. 208, 25 U.S.C. 13; 38 Stat. 586, 25 U.S.C. 200.

    Source: 58 FR 54411, Oct. 21, 1993, unless otherwise noted.



                  Subpart A--Application; Jurisdiction



Sec. 11.100  Listing of Courts of Indian Offenses.

    (a) Except as otherwise provided in this title, the regulations 
under this part are applicable to the Indian country (as defined in 18 
U.S.C. 1151) occupied by the following tribes:
    (1) Red Lake Band of Chippewa Indians (Minnesota).
    (2) Confederated Tribes of the Goshute Reservation (Nevada).
    (3) Lovelock Paiute Tribe (Nevada).
    (4) Te-Moak Band of Western Shoshone Indians (Nevada).
    (5) Yomba Shoshone Tribe (Nevada).
    (6) Kootenai Tribe (Idaho).
    (7) Shoalwater Bay Tribe (Washington).
    (8) Eastern Band of Cherokee Indians (North Carolina).
    (9) For the following tribes located in the former Oklahoma 
Territory (Oklahoma):
    (i) Absentee Shawnee Tribe of Indians of Oklahoma
    (ii) Apache Tribe of Oklahoma
    (iii) Caddo Tribe of Oklahoma
    (iv) Cheyenne-Arapaho Tribe of Oklahoma
    (v) Citizen Band of Potawatomi Indians of Oklahoma
    (vi) Comanche Tribe of Oklahoma (except Comanche Children's Court)
    (vii) Delaware Tribe of Western Oklahoma
    (viii) Fort Sill Apache Tribe of Oklahoma
    (ix) Iowa Tribe of Oklahoma
    (x) Kaw Tribe of Oklahoma
    (xi) Kickapoo Tribe of Oklahoma
    (xii) Kiowa Tribe of Oklahoma
    (xiii) Otoe-Missouria Tribe of Oklahoma
    (xiv) Pawnee Tribe of Oklahoma
    (xv) Ponca Tribe of Oklahoma
    (xvi) Tonkawa Tribe of Oklahoma
    (xvii) Wichita and Affiliated Tribes of Oklahoma.
    (10) Hoopa Valley Tribe, Yurok Tribe, and Coast Indian Community of 
California (California Jurisdiction limited to special fishing 
regulations).
    (11) Louisiana Area (includes Coushatta and other tribes in the 
State of Louisiana which occupy Indian country and which accept the 
application of this part);
Provided that this part shall not apply to any Louisiana tribe other 
than the Coushatta Tribe until notice of such application has been 
published in the Federal Register.
    (12) For the following tribes located in the former Indian Territory 
(Oklahoma):
    (i) Chickasaw Nation
    (ii) Choctaw Nation
    (iii) Thlopthlocco Tribal Town
    (iv) Seminole Nation
    (v) Eastern Shawnee Tribe
    (vi) Miami Tribe
    (vii) Modoc Tribe
    (viii) Ottawa Tribe
    (ix) Peoria Tribe
    (x) Quapaw Tribe
    (xi) Wyandotte Tribe
    (xii) Seneca-Cayuga Tribe
    (xiii) Osage Tribe.
    (13) Ute Mountain Ute Tribe (Colorado).
    (b) It is the purpose of the regulations in this part to provide 
adequate machinery for the administration of justice for Indian tribes 
in those areas of Indian country where tribes retain jurisdiction over 
Indians that is exclusive of state jurisdiction but where tribal courts 
have not been established to exercise that jurisdiction.
    (c) The regulations in this part shall continue to apply to tribes 
listed under Sec. 11.100(a) until a law and order code

[[Page 22]]

which includes the establishment of a court system has been adopted by 
the tribe in accordance with its constitution and by-laws or other 
governing documents, has become effective, and the Assistant Secretary--
Indian Affairs or his or her designee has received a valid tribal 
enactment identifying the effective date of the code's implementation, 
and the name of the tribe has been deleted from the listing of Courts of 
Indian Offenses under Sec. 11.100(a).
    (d) For the purposes of the enforcement of the regulations in this 
part, an Indian is defined as a person who is a member of an Indian 
tribe which is recognized by the Federal Government as eligible for 
services from the BIA, and any other individual who is an ``Indian'' for 
purposes of 18 U.S.C. 1152-1153.
    (e) The governing body of each tribe occupying the Indian country 
over which a Court of Indian Offenses has jurisdiction may enact 
ordinances which, when approved by the Assistant Secretary--Indian 
Affairs or his or her designee, shall be enforceable in the Court of 
Indian Offenses having jurisdiction over the Indian country occupied by 
that tribe, and shall supersede any conflicting regulation in this part.
    (f) Each Court of Indian Offenses shall apply the customs of the 
tribe occupying the Indian country over which it has jurisdiction to the 
extent that they are consistent with the regulations of this part.

[58 FR 54411, Oct. 21, 1993, as amended at 59 FR 48722, Sept. 22, 1994; 
61 FR 10674, Mar. 15, 1996]



Sec. 11.101  Prospective application of regulations.

    Civil and criminal causes of actions arising prior to the effective 
date of these regulations shall not abate but shall be determined in 
accordance with the regulations in effect at the time the cause arose.



Sec. 11.102  Criminal jurisdiction; limitation of actions.

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses shall have jurisdiction over any action by an Indian (hereafter 
referred to as person) that is made a criminal offense under this part 
and that occurred within the Indian country subject to the court's 
jurisdiction.
    (b) No person shall be prosecuted, tried or punished for any offense 
unless the complaint is filed within five years after such offense shall 
have been committed.



Sec. 11.103  Civil jurisdiction; limitation of actions.

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses shall have jurisdiction over any civil action arising within 
the territorial jurisdiction of the court in which the defendant is an 
Indian, and of all other suits between Indians and non-Indians which are 
brought before the court by stipulation of the parties.
    (b) Any civil action commenced in a Court of Indian Offenses shall 
be barred unless the complaint is filed within three years after the 
right of action first accrues.



Sec. 11.104  Jurisdictional limitations.

    (a) No Court of Indian Offenses may exercise any jurisdiction over a 
Federal or state official that it could not exercise if it were a tribal 
court.
    (b) Unless otherwise provided by a resolution or ordinance of the 
tribal governing body of the tribe occupying the Indian country over 
which a Court of Indian country over which a Court of Indian Offenses 
has jurisdiction, no Court of Indian Offenses may adjudicate an election 
dispute or take jurisdiction over a suit against the tribe or adjudicate 
any internal tribal government dispute.
    (c) The decision of the BIA on who is a tribal official is binding 
in a Court of Indian Offenses.
    (d) The Department of the Interior will accord the same weight to 
decisions of a Court of Indian Offenses that it accords to decisions of 
a tribal court.
    (e) A tribe may not be sued in a Court of Indian Offenses unless its 
tribal governing body explicitly waives its tribal immunity by tribal 
resolution or ordinance.

[[Page 23]]



     Subpart B--Courts of Indian Offenses; Personnel; Administration



Sec. 11.200  Composition of court.

    (a) Each court shall be composed of a trial division and an 
appellate division.
    (b) A chief magistrate will be appointed for each court who will, in 
addition to other judicial duties, be responsible for the administration 
of the court and the supervision of all court personnel.
    (c) Appeals shall be heard by a panel of three magistrates who were 
not involved in the trial of the case.
    (d) Decisions of the appellate division are final and are not 
subject to administrative appeals within the Department of the Interior.



Sec. 11.201  Appointment of magistrates.

    (a) Each magistrate shall be appointed by the Assistant Secretary--
Indian Affairs or his or her designee subject to confirmation by a 
majority vote of the tribal governing body of the tribe occupying the 
Indian country over which the court has jurisdiction, or, in the case of 
multi-tribal courts, confirmation by a majority of the tribal governing 
bodies of the tribes under the jurisdiction of a Court of Indian 
Offenses.
    (b) Each magistrate shall hold office for a period of four years, 
unless sooner removed for cause or by reason of the abolition of the 
office, but is eligible for reappointment.
    (c) No person is eligible to serve as a magistrate of a Court of 
Indian Offenses who has ever been convicted of a felony or, within one 
year of the date of service or application, of a misdemeanor.
    (d) No magistrate shall be qualified to act as such wherein he or 
she has any direct conflicting interest, real or apparent.
    (e) A tribal governing body may set forth such other qualifications 
for magistrates of the Court of Indian Offenses as it deems appropriate, 
subject to the approval of the Assistant Secretary--Indian Affairs, or 
his or her designee.
    (f) A tribal governing body may also recommend requirements for the 
training of magistrates of the Court of Indian Offenses to the Assistant 
Secretary--Indian Affairs.



Sec. 11.202  Removal of magistrates.

    Any magistrate of a Court of Indian Offenses may be suspended, 
dismissed or removed by the Assistant Secretary--Indian Affairs, or his 
or her designee, for cause, upon the written recommendation of the 
tribal governing body, and, in the case of multi-tribal courts, upon the 
recommendation of a majority of the tribal governing bodies of the 
tribes under the jurisdiction of a Court of Indian Offenses, or pursuant 
to his or her own discretion.



Sec. 11.203  Court clerks.

    (a) Except as may otherwise be provided in a contract with the tribe 
occupying the Indian country over which the court has jurisdiction, the 
chief magistrate shall appoint a clerk of court for the Court of Indian 
Offenses within his or her jurisdiction, subject to the superintendent's 
approval.
    (b) The clerk shall render assistance to the court, to local law 
enforcement officers and to individual members of the tribe in the 
drafting of complaints, subpoenas, warrants, commitments, and other 
documents incidental to the functions of the court. The clerk shall also 
attend and keep a record of all proceedings of the court and manage all 
monies received by the court.
    (c) The clerk of court shall forward any monies received on 
judgments due to the person, agency, or corporation to which entitled, 
within 30 days unless directed otherwise by a magistrate of the Court of 
Indian Offenses.



Sec. 11.204  Prosecutors.

    Except as may otherwise be provided in a contract with the tribe 
occupying the Indian country over which the court has jurisdiction, the 
superintendent shall appoint a prosecutor for each Court of Indian 
Offenses within his or her jurisdiction.



Sec. 11.205  Standards governing appearance of attorneys and lay counselors.

    (a) No defendant in a criminal proceeding shall be denied the right 
to counsel.

[[Page 24]]

    (b) The chief magistrate shall prescribe in writing standards 
governing the admission and practice in the Court of Indian Offenses of 
professional attorneys and lay counselors.



Sec. 11.206  Court records.

    (a) Each Court of Indian Offenses shall keep a record of all 
proceedings of the court containing the title of the case, the names of 
the parties, the complaint, all pleadings, the names and addresses of 
all witnesses, the date of any hearing or trial, the name of any 
magistrate conducting such hearing or trial, the findings of the court 
or jury, the judgment and any other information the court determines is 
important to the case.
    (b) The record in each case shall be available for inspection by the 
parties to the case.
    (c) Except for cases in which a juvenile is a party or the subject 
of a proceeding, and for cases whose records have been sealed by the 
court, all case records shall be available for inspection by the public.
    (d) Such court records are part of the records of the BIA agency 
having jurisdiction over the Indian country where the Court of Indian 
Offenses is located and shall be protected in accordance with 44 U.S.C. 
3102.



Sec. 11.207  Cooperation by Bureau of Indian Affairs Employees.

    (a) No employee of the BIA may obstruct, interfere with, or control 
the functions of any Court of Indian Offenses, or influence such 
functions in any manner except as permitted by Federal statutes or the 
regulations in this part or in response to a request for advice or 
information from the court.
    (b) Employees of the BIA shall assist the court, upon its request, 
in the preparation and presentation of facts in the case and in the 
proper treatment of individual offenders.



Sec. 11.208  Payment of judgments from individual Indian money accounts.

    (a) Any Court of Indian Offenses may make application to the 
superintendent who administers the individual Indian money account of a 
defendant who has failed to satisfy a money judgment from the court to 
obtain payment of the judgment from funds in the defendant's account. 
The court shall certify the record of the case to the superintendent. If 
the superintendent so directs, the disbursing agent shall pay over to 
the injured party the amount of the judgment or such lesser amount as 
may be specified by the superintendent.
    (b) A judgment of a Court of Indian Offenses shall be considered a 
lawful debt in all proceedings held by the Department of the Interior or 
by a Court of Indian Offenses to distribute decedents' estates.



Sec. 11.209  Disposition of fines.

    All money fines imposed for the commission of an offense shall be in 
the nature of an assessment for the payment of designated court 
expenses. The fines assessed shall be paid over by the clerk of the 
court to the disbursing agent of the reservation for deposit as a 
``special deposit, court funds'' to the disbursing agent's official 
credit in the Treasury of the United States. The disbursing agent shall 
withdraw such funds, in accordance with existing regulations, upon order 
of the clerk of the court signed by a judge of the court for the payment 
of specified expenses. The disbursing agent and the clerk of the court 
shall keep an account of all such deposits and withdrawals available for 
public inspection.



                      Subpart C--Criminal Procedure



Sec. 11.300  Complaints.

    (a) A complaint is a written statement of the essential facts 
charging that a named individual(s) has committed a particular offense. 
All criminal prosecutions shall be initiated by a complaint filed with 
the court by a law enforcement officer and sworn to by a person having 
personal knowledge of the offense.
    (b) Complaints shall contain:
    (1) The signature of the complaining witness, or witnesses, sworn 
before a magistrate, a court clerk, a prosecutor, or any law enforcement 
officer.
    (2) A written statement by the complaining witness or witnesses 
having personal knowledge of the violation,

[[Page 25]]

describing in ordinary language the nature of the offense committed 
including the time and place as nearly as may be ascertained.
    (3) The name or description of the person alleged to have committed 
the offense.
    (4) A description of the offense charged and the section of the code 
allegedly violated.
    (c) Complaints must be submitted without unnecessary delay by a law 
enforcement officer to the prosecutor and, if he or she approves, to a 
judge to determine whether an arrest warrant or summons should be 
issued.
    (d) When an accused has been arrested without a warrant, a complaint 
shall be filed forthwith with the court for review as to whether 
probable cause exists to hold the accused, and in no instance shall a 
complaint be filed later than at the time of arraignment.



Sec. 11.301  Arrests.

    (a) Arrest is the taking of a person into police custody in order 
that he or she may be held to answer for a criminal offense.
    (b) No law enforcement officer shall arrest any person for a 
criminal offense except when:
    (1) The officer shall have a warrant signed by a magistrate 
commanding the arrest of such person, or the officer knows for a 
certainty that such a warrant has been issued; or
    (2) The offense shall occur in the presence of the arresting 
officer; or
    (3) The officer shall have probable cause to believe that the person 
arrested has committed an offense.



Sec. 11.302  Arrest warrants.

    (a) Each magistrate of a Court of Indian Offenses shall have the 
authority to issue warrants to apprehend any person the magistrate has 
probable cause to believe has committed a criminal offense in violation 
of the regulations under this part based on a written complaint filed 
with the court by a law enforcement officer and bearing the signature of 
the complainant.
    (b) The arrest warrant shall contain the following information:
    (1) Name or description and address, if known, of the person to be 
arrested.
    (2) Date of issuance of the warrant.
    (3) Description of the offense charged.
    (4) Signature of the issuing magistrate.
    (c) Such warrants may be served only by a BIA or tribal police 
officer or other officer commissioned to enforce the regulations of this 
part.



Sec. 11.303  Notification of rights prior to custodial interrogation.

    Prior to custodial interrogation, the suspect shall be advised of 
the following rights:
    (a) That he or she has the right to remain silent.
    (b) That any statements made by him or her may be used against him 
or her in court.
    (c) That he or she has the right to obtain counsel and, if indigent, 
to have counsel appointed for him/her.



Sec. 11.304  Summons in lieu of warrant.

    (a) When otherwise authorized to arrest a suspect, a law enforcement 
officer or a magistrate may, in lieu of a warrant, issue a summons 
commanding the accused to appear before the Court of Indian Offenses at 
a stated time and place and answer to the charge.
    (b) The summons shall contain the same information as a warrant, 
except that it may be signed by a police officer.
    (c) The summons shall state that if a defendant fails to appear in 
response to a summons, a warrant for his or her arrest shall be issued.
    (d) The summons, together with a copy of the complaint, shall be 
served upon the defendant by delivering a copy to the defendant 
personally or by leaving a copy at his or her usual residence or place 
of business with any person 18 years of age or older who also resides or 
works there. Service shall be made by an authorized law enforcement 
officer, who shall file with the record of the case a form indicating 
when the summons was served.



Sec. 11.305  Search warrants.

    (a) Each magistrate of a Court of Indian Offenses shall have the 
authority to issue a warrant for the search of premises and for the 
seizure of physical evidence of a criminal violation under the 
regulations of this part located

[[Page 26]]

within the Indian country over which the court has jurisdiction.
    (b) No warrant for search or seizure may be issued unless it is 
based on a written and signed statement establishing, to the 
satisfaction of the magistrate, that probable cause exists to believe 
that the search will lead to discovery of evidence of a criminal 
violation under the regulations of this part.
    (c) No warrant for search or seizure shall be valid unless it 
contains the name or description of the person, vehicle, or premises to 
be searched, describes the evidence to be seized, and bears the 
signature of the magistrate who issued it.
    (d) Warrants may be executed only by a BIA or tribal police officer 
or other official commissioned to enforce the regulations under this 
part. The executing officer shall return the warrant to the Court of 
Indian Offenses within the time limit shown on the face of the warrant, 
which in no case shall be longer than ten (10) days from the date of 
issuance. Warrants not returned within such time limits shall be void.



Sec. 11.306  Search without a warrant.

    No law enforcement officer shall conduct any search without a valid 
warrant except:
    (a) Incident to making a lawful arrest; or
    (b) With the voluntary consent of the person being searched; or
    (c) When the search is of a moving vehicle and the officer has 
probable cause to believe that it contains contraband, stolen property, 
or property otherwise unlawfully possessed.



Sec. 11.307  Disposition of seized property.

    (a) The officer serving and executing a warrant shall make an 
inventory of all seized property, and a copy of such inventory shall be 
left with every person from whom property is seized.
    (b) A hearing shall be held by the Court of Indian Offenses to 
determine the disposition of all seized property. Upon satisfactory 
proof of ownership, the property shall be delivered immediately to the 
owner, unless such property is contraband or is to be used as evidence 
in a pending case. Property seized as evidence shall be returned to the 
owner after final judgment. Property confiscated as contraband shall be 
destroyed or otherwise lawfully disposed of as ordered by the Court of 
Indian Offenses.



Sec. 11.308  Commitments.

    No person may be detained, jailed or imprisoned under the 
regulations of this part for longer than 48 hours unless the Court of 
Indian Offenses issues a commitment bearing the signature of a 
magistrate. A temporary commitment shall be issued for each person held 
before trial. A final commitment shall be issued for each person 
sentenced to jail after trial.



Sec. 11.309  Arraignments.

    (a) Arraignment is the bringing of an accused before the court, 
informing him or her of his or her rights and of the charge(s) against 
him or her, receiving the plea, and setting conditions of pretrial 
release as appropriate in accordance with this part.
    (b) Arraignment shall be held in open court without unnecessary 
delay after the accused is taken into custody and in no instance shall 
arraignment be later than the next regular session of court.
    (c) Before an accused is required to plead to any criminal charges 
the magistrate shall:
    (1) Read the complaint to the accused and determine that he or she 
understands it and the section(s) of this part that he or she is charged 
with violating, including the maximum authorized penalty; and
    (2) Advise the accused that he or she has the right to remain 
silent, to be tried by a jury if the offense charged is punishable by 
imprisonment, to be represented by counsel (which shall be paid for by 
the government if the accused is indigent) and that the arraignment will 
be postponed should he or she desire to consult with counsel.
    (d) The magistrate shall call upon the defendant to plead to the 
charge:
    (1) If the accused pleads ``not guilty'' to the charge, the 
magistrate shall then inform the accused of the trial date and set 
conditions for release prior to trial.
    (2) If the accused pleads ``guilty'' to the charge, the magistrate 
shall accept

[[Page 27]]

the plea only if he or she is satisfied that the plea is made 
voluntarily and that the accused understands the consequences of the 
plea, including the rights waived by the plea. The magistrate may then 
impose sentence or defer sentencing for a reasonable time in order to 
obtain any information he or she deems necessary for the imposition of a 
just sentence. The accused shall be afforded an opportunity to be heard 
by the court prior to sentencing.
    (3) If the accused refuses to plead, the judge shall enter a plea of 
``not guilty'' on his or her behalf.
    (3) The court may, in its discretion, allow a defendant to withdraw 
a plea of guilty if it appears that the interest of justice would be 
served by doing so.



Sec. 11.310  Bail.

    (a) Each person charged with a criminal offense under this part 
shall be entitled to release from custody pending trial under whichever 
one or more of the following conditions is deemed necessary to 
reasonably assure the appearance of the person at any time lawfully 
required:
    (1) Release on personal recognizance upon execution by the accused 
of a written promise to appear at trial and all other lawfully required 
times;
    (2) Release to the custody of a designated person or organization 
agreeing to assure the accused's appearance;
    (3) Release with reasonable restrictions on the travel, association, 
or place of residence of the accused during the period of release;
    (4) Release after deposit of a bond or other sufficient collateral 
in an amount specified by the magistrate or a bail schedule;
    (5) Release after execution of a bail agreement by two responsible 
members of the community; or
    (6) Release upon any other condition deemed reasonably necessary to 
assure the appearance of the accused as required.
    (b) Any law enforcement officer authorized to do so by the court may 
admit an arrested person to bail pending trial pursuant to a bail 
schedule and conditions prepared by the court.
    (c) A convicted person may be released from custody pending appeal 
on such conditions as the magistrate determines will reasonably assure 
the appearance of the accused unless the magistrate determines that 
release of the accused is likely to pose a danger to the community, the 
accused, or any other person.
    (d) The Court of Indian Offenses may revoke its release of the 
defendant and order him or her committed at any time where it determines 
that the conditions of release will not reasonably assure the appearance 
of the defendant, or if any conditions of release have been violated.



Sec. 11.311  Subpoenas.

    (a) Upon request of any party, the court shall issue subpoenas to 
compel the testimony of witnesses, or the production of books, records, 
documents or any other physical evidence relevant to the determination 
of the case and not an undue burden on the person possessing the 
evidence. The clerk of the court may act on behalf of the court and 
issue subpoenas which have been signed either by the clerk of the court 
or by a magistrate of the Court of Indian Offenses and which are to be 
served within Indian country over which the Court of Indian Offenses has 
jurisdiction.
    (b) A subpoena shall bear the signature of the chief magistrate of 
the Court of Indian Offenses, and it shall state the name of the court, 
the name of the person or description of the physical evidence to be 
subpoenaed, the title of the proceeding, and the time and place where 
the witness is to appear or the evidence is to be produced.
    (c) A subpoena may be served at any place but any subpoena to be 
served outside of the Indian country over which the Court of Indian 
Offenses has jurisdiction shall be issued personally by a magistrate of 
the Court of Indian Offenses.
    (d) A subpoena may be served by any law enforcement officer or other 
person appointed by the court for such purpose. Service of a subpoena 
shall be made by delivering a copy of it to the person named or by 
leaving a copy at his or her place of residence or business with any 
person 18 years of age or older who also resides or works there.

[[Page 28]]

    (e) Proof of service of the subpoena shall be filed with the clerk 
of the court by noting on the back of the subpoena the date, time and 
place that it was served and noting the name of the person to whom it 
was delivered. Proof of service shall be signed by the person who 
actually served the subpoena.
    (f) In the absence of a justification satisfactory to the court, a 
person who fails to obey a subpoena may be deemed to be in contempt of 
court and a bench warrant may be issued for his or her arrest.



Sec. 11.312  Witness fees.

    (a) Each fact witness answering a subpoena is entitled to a fee of 
not less than the hourly minimum wage scale established by 29 U.S.C. 
206(a)(1) and any of its subsequent revisions, plus actual cost of 
travel. Each fact witness testifying at a hearing shall receive pay for 
a full day (eight hours) plus travel allowance.
    (b) The Court of Indian Offenses may order any party calling a 
witness to testify without a subpoena to compensate the witness for 
actual traveling and living expenses incurred in testifying.
    (c) If the Court of Indian Offenses finds that a complaint was not 
filed in good faith but with a frivolous or malicious intent, it may 
order the complainant to reimburse the court for expenditures incurred 
under this section, and such order may constitute a judgment upon which 
execution may levy.



Sec. 11.313  Trial procedure.

    (a) The time and place of court sessions, and all other details of 
judicial procedure shall be set out in rules of court approved by the 
chief magistrate of the Court of Indian Offenses.
    (b) Courts of Indian Offenses shall be bound by the Federal Rules of 
Evidence, except insofar as such rules are superseded by order of the 
court or by the existence of inconsistent tribal rules of evidence.



Sec. 11.314  Jury trials.

    (a) In any criminal case punishable by a sentence of six months in 
jail and in any criminal case in which the prosecutor informs the court 
before the case comes to trial that a jail sentence will be sought, the 
defendant has a right, upon demand, to a jury trial. If the prosecutor 
informs the court that no prison sentence will be sought, the court may 
not impose a prison sentence for the offense.
    (b) A jury shall consist of eight Indian residents of the vicinity 
in which trial is held, selected from a list of eligible jurors prepared 
each year by the court. An eligible juror shall be at least 18 years of 
age, shall not have been convicted of a felony, and shall not otherwise 
be unqualified according to standards established by the Court of Indian 
Offenses under its general rulemaking authority. Any party may challenge 
without cause not more than three members of the jury panel so chosen.
    (c) The magistrate shall instruct the jury with regard to the 
applicable law and the jury shall decide all questions of fact on the 
basis of the law.
    (d) The jury shall deliberate in secret and return a verdict of 
guilty or not guilty. Six out of the eight jurors must concur to render 
a verdict.
    (e) Each juror who serves on a jury is entitled to a fee not less 
than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1), 
and any of its subsequent revisions, plus mileage not to exceed the 
maximum rate per mile established by the Federal Government of jurors 
and witnesses. Each juror shall receive pay for a full day (eight hours) 
for any portion of a day served, plus travel allowance.



Sec. 11.315  Sentencing.

    (a) Any person who has been convicted in a Court of Indian Offenses 
of a criminal offense under the regulations of this part may be 
sentenced to one or a combination of the following penalties:
    (1) Imprisonment for a period not to exceed the maximum permitted by 
the section defining the offense, which in no case shall be greater than 
six months.
    (2) A money fine in an amount not to exceed the maximum permitted by 
the section defining the offense, which in no case shall be greater than 
five hundred dollars ($500).
    (3) Labor for the benefit of the tribe.
    (4) Rehabilitative measures.

[[Page 29]]

    (b) In addition to or in lieu of the penalties provided in paragraph 
(a) of this section, the court may require a convicted offender who has 
inflicted injury upon the person or property of another to make 
restitution or compensate the injured person by means of the surrender 
of property, payment of money damages, or the performance of any other 
act for the benefit of the injured party.
    (c) If, solely because of indigence, a convicted offender is unable 
to pay forthwith a money fine assessed under any applicable section, the 
court shall allow him or her a reasonable period of time to pay the 
entire sum or allow him or her to make reasonable installment payments 
to the clerk of the court at specified intervals until the entire sum is 
paid. If the offender defaults on such payments the court may find him 
or her in contempt of court and imprison him or her accordingly.



Sec. 11.316  Probation.

    (a) Where a sentence of imprisonment has been imposed on a convicted 
offender, the Court of Indian Offenses may, in its discretion, suspend 
the serving of such sentence and release the person on probation under 
any reasonable conditions deemed appropriate by the court, provided that 
the period of probation shall not exceed one year.
    (b) Any person who violates the terms of his or her probation may be 
required by the court to serve the sentence originally imposed or such 
part of it as the court may determine to be suitable giving 
consideration to all the circumstances, provided that such revocation of 
probation shall not be ordered without a hearing before the court at 
which the offender shall have the opportunity to explain his or her 
actions.



Sec. 11.317  Parole.

    (a) Any person sentenced by the court of detention or labor shall be 
eligible for parole at such time and under such reasonable conditions as 
set by the Court of Indian Offenses.
    (b) Any person who violates the conditions of his or her parole may 
be required by the court to serve the whole original sentence, provided 
that such revocation or parole shall not be ordered without a hearing 
before the court at which the offender shall have the opportunity to 
explain his or her actions.



Sec. 11.318  Extradition.

    Any Court of Indian Offenses may order delivery to the proper state, 
tribal or BIA law enforcement authorities of any person found within the 
jurisdiction of the court, who is charged with an offense in another 
jurisdiction. Prior to delivery to the proper officials, the accused 
shall be accorded a right to contest the propriety of the court's order 
in a hearing before the court.



                      Subpart D--Criminal Offenses



Sec. 11.400  Assault.

    (a) A person is guilty of assault if he or she:
    (1) Attempts to cause or purposely, knowingly or recklessly causes 
bodily injury to another; or
    (2) Negligently causes bodily injury to another with a deadly 
weapon; or
    (3) Attempts by physical menace to put another in fear of imminent 
serious bodily injury.
    (b) Assault is a misdemeanor unless committed in a fight or scuffle 
entered into by mutual consent, in which case it is a petty misdemeanor.



Sec. 11.401  Recklessly endangering another person.

    A person commits a misdemeanor if he or she recklessly engages in 
conduct which places or may place another person in danger of death or 
serious bodily injury. Recklessness and danger shall be presumed where a 
person knowingly points a firearm at or in the direction of another 
person, whether or not the actor believed the firearm to be loaded.

[58 FR 54411, Oct. 21, 1993; 58 FR 58729, Nov. 3, 1993]



Sec. 11.402  Terroristic threats.

    A person is guilty of a misdemeanor if he or she threatens to commit 
any crime of violence with purpose to terrorize another or to cause 
evacuation

[[Page 30]]

of a building, place of assembly or facility of public transportation, 
or otherwise to cause serious public inconvenience or in reckless 
disregard of the risk of causing such terror or inconvenience.



Sec. 11.403  Unlawful restraint.

    A person commits a misdemeanor if he or she knowingly:
    (a) Restrains another unlawfully in circumstances exposing him or 
her to risk of serious bodily injury; or
    (b) Holds another in a condition of involuntary servitude.



Sec. 11.404  False imprisonment.

    A person commits a misdemeanor if he or she knowingly restrains 
another unlawfully so as to interfere substantially with his or her 
liberty.



Sec. 11.405  Interference with custody.

    (a) Custody of children. A person commits a misdemeanor if he or she 
knowingly or recklessly takes or entices any child under the age of 18 
from the custody of his or her parent, guardian or other lawful 
custodian, when he or she has no privilege to do so.
    (b) Custody of committed person. A person is guilty of a misdemeanor 
if he or she knowingly or recklessly takes or entices any committed 
person away from lawful custody when he or she does not have the 
privilege to do so. Committed person means, in addition to anyone 
committed under judicial warrant, any orphan, neglected or delinquent 
child, mentally defective or insane person, or other dependent or 
incompetent person entrusted to another's custody by or through a 
recognized social agency or otherwise by authority of law.



Sec. 11.406  Criminal coercion.

    (a) A person is guilty of criminal coercion if, with purpose to 
unlawfully restrict another's feedom of action to his or her detriment, 
he or she threatens to:
    (1) Commit any criminal offense; or
    (2) Accuse anyone of a criminal offense; or
    (3) Take or withhold action as an official, or cause an official to 
take or withhold action.
    (b) Criminal coercion is classified as a misdemeanor.



Sec. 11.407  Sexual assault.

    (a) A person who has sexual contact with another person not his or 
her spouse, or causes such other person to have sexual contact with him 
or her, is guilty of sexual assualt as a misdemeanor, if:
    (1) He or she knows that the conduct is offensive to the other 
person; or
    (2) He or she knows that the other person suffers from a mental 
disease or defect which renders him or her incapable of appraising the 
nature or his or her conduct; or
    (3) He or she knows that the other person is unaware that a sexual 
act is being committed; or
    (4) The other person is less than 10 years old; or
    (5) He or she has substantially impaired the other person's power to 
appraise or control his or her conduct, by administering or employing 
without the other's knowledge drugs, intoxicants or other means for the 
purpose of preventing resistance; or
    (6) The other person is less than 16 years old and the actor is at 
least four years older than the other person; or
    (7) The other person is less than 21 years old and the actor is his 
or her guardian or otherwise responsible for general supervision of his 
or her welfare; or
    (8) The other person is in custody of law or detained in a hospital 
or other institution and the actor has supervisory or disciplinary 
authority over him or her.
    (b) Sexual contact is any touching of the sexual or other intimate 
parts of the person for the purpose of arousing or gratifying sexual 
desire, or for the purpose of abusing, humiliating, harassing, or 
degrading the victim.



Sec. 11.408  Indecent exposure.

    A person commits a misdemeanor if he or she exposes his or her 
genitals under circumstances in which he or she knows his or her conduct 
is likely to cause affront or alarm.

[[Page 31]]



Sec. 11.409  Reckless burning or exploding.

    A person commits a misdemeanor if he or she purposely starts a fire 
or causes an explosion, whether on his or her property or another's, and 
thereby recklessly:
    (a) Places another person in danger of death or bodily injury; or
    (b) Places a building or occupied structure of another in danger of 
damage or destruction.



Sec. 11.410  Criminal mischief.

    (a) A person is guilty of criminal mischief if he or she:
    (1) Damages tangible property of another purposely, recklessly, or 
by negligence in the employment of fire, explosives, or other dangerous 
means; or
    (2) Purposely or recklessly tampers with tangible property of 
another so as to endanger person or property; or
    (3) Purposely or recklessly causes another to suffer pecuniary loss 
by deception or threat.
    (b) Criminal mischief is a misdemeanor if the actor purposely causes 
pecuniary loss in excess of $100, or a petty misdemeanor if he or she 
purposely or recklessly causes precuniary loss in excess of $25. 
Otherwise, criminal mischief is a violation.



Sec. 11.411  Criminal trespass.

    (a) A person commits an offense if, knowing that he or she is not 
licensed or privileged to do so, he or she enters or surreptitiously 
remains in any building or occupied structure. An offense under this 
subsection is a misdemeanor if it is committed in a dwelling at night. 
Otherwise it is a petty misdemeanor.
    (b) A person commits an offense if, knowing that he or she is not 
licensed or privileged to do so, he or she enters or remains in any 
place as to which notice against trespass is given by:
    (1) Actual communication to the actor; or
    (2) Posting in a manner prescribed by law or reasonably likely to 
come to the attention of intruders; or
    (3) Fencing or other enclosure manifestly designed to exclude 
intruders.
    (c) An offense under this section constitutes a petty misdemeanor if 
the offender defies an order to leave personally communicated to him or 
her by the owner of the premises or other authorized person. Otherwise 
it is a violation.



Sec. 11.412  Theft.

    A person who, without permission of the owner, shall take, shoplift, 
possess or exercise unlawful control over movable property not his or 
her own or under his or her control with the purpose to deprive the 
owner thereof or who unlawfully transfers immovable property of another 
or any interest therein with the purpose to benefit himself or herself 
or another not entitled thereto shall be guilty of theft, a misdemeanor.



Sec. 11.413  Receiving stolen property.

    A person is guilty of receiving stolen property, a misdemeanor, if 
he or she purposely receives, retains, or disposes of movable property 
of another knowing that it has been stolen, or believing that it has 
probably been stolen, unless the property is received, retained, or 
disposed with purpose to restore it to the owner. Receiving means 
acquiring possession, control or title, or lending on the security of 
the property.



Sec. 11.414  Embezzlement.

    A person who shall, having lawful custody of property not his or her 
own, appropriate the same to his or her own use, with intent to deprive 
the owner thereof, shall be guilty of embezzlement, a misdemeanor.



Sec. 11.415  Fraud.

    A person who shall by willful misrepresentation or deceit, or by 
false interpreting, or by the use of false weights or measures obtain 
any money or other property, shall be guilty of fraud, a misdemeanor.



Sec. 11.416  Forgery.

    (a) A person is guilty of forgery, a misdemeanor, if, with purpose 
to defraud or injure anyone, or with knowledge that he or she is 
facilitating fraud or injury to be perpetrated by anyone, he or she:
    (1) Alters, makes, completes, authenticates, issues or transfers any 
writing of another without his or her authority; or

[[Page 32]]

    (2) Utters any writing which he or she knows to be forged in a 
manner above specified.
    (b) ``Writing'' includes printing or any other method of recording 
information, money, coins, tokens, stamps, seals, credit cards, badges, 
trademarks, and other symbols of value, right, privilege, or 
identification.



Sec. 11.417  Extortion.

    A person who shall willfully, by making false charges against 
another person or by any other means whatsoever, extort or attempt to 
extort any moneys, goods, property, or anything else of any value, shall 
be guilty of extortion, a misdemeanor.



Sec. 11.418  Misbranding.

    A person who shall knowingly and willfully misbrand or alter any 
brand or mark on any livestock of another person, shall be guilty of a 
misdemeanor.



Sec. 11.419  Unauthorized use of automobiles and other vehicles.

    A person commits a misdemeanor if he or she operates another 
person's automobile, airplane, motorcycle, motorboat, or other motor-
propelled vehicle without consent of the owner. It is an affirmative 
defense to prosecution under this section that the actor reasonably 
believed that the owner would have consented to the operation had he or 
she known of it.



Sec. 11.420  Tampering with records.

    A person commits a misdemeanor if, knowing that he or she has no 
privilege to do so, he or she falsifies, destroys, removes or conceals 
any writing or record, with purpose to deceive or injure anyone or to 
conceal any wrongdoing.



Sec. 11.421  Bad checks.

    (a) A person who issues or passes a check or similar sight order for 
the payment of money, knowing that it will not be honored by the drawee, 
commits a misdemeanor.
    (b) For the purposes of this section, an issuer is presumed to know 
that the check or order would not be paid, if:
    (1) The issuer had no account with the drawee at the time the check 
or order was issued; or
    (2) Payment was refused by the drawee for lack of funds, upon 
presentation within 30 days after issue, and the issuer failed to make 
good within 10 days after receiving notice of that refusal.



Sec. 11.422  Unauthorized use of credit cards.

    (a) A person commits a misdemeanor if he or she uses a credit card 
for the purpose of obtaining property or services with knowledge that:
    (1) The card is stolen or forged; or
    (2) The card has been revoked or cancelled; or
    (3) For any other reason his or her use of the card is unauthorized 
by the issuer.
    (b) Credit card means a writing or other evidence of an undertaking 
to pay for property or services delivered or rendered to or upon the 
order of a designated person or bearer.



Sec. 11.423  Defrauding secured creditors.

    A person commits a misdemeanor if he or she destroys, conceals, 
encumbers, transfers or otherwise deals with property subject to a 
security interest with purpose to hinder that interest.



Sec. 11.424  Neglect of children.

    (a) A parent, guardian, or other person supervising the welfare of a 
child under 18 commits a misdemeanor if he or she knowingly endangers 
the child's welfare by violating a duty of care, protection or support.
    (b) A parent, guardian, or other person supervising the welfare of a 
child under 18 commits a violation if he or she neglects or refuses to 
send the child to school.



Sec. 11.425  Persistent non-support.

    A person commits a misdemeanor if he or she persistently fails to 
provide support which he or she can provide and which he or she knows he 
or she is legally obliged to provide to a spouse, child or other 
dependent.



Sec. 11.426  Bribery.

    (a) A person is guilty of bribery, a misdemeanor, if he or she 
offers, confers or agrees to confer upon another,

[[Page 33]]

or solicits, accepts or agrees to accept from another:
    (1) Any pecuniary benefit as consideration for the recipient's 
decision, opinion, recommendation, vote or other exercise of discretion 
as a public servant, party official or voter; or
    (2) Any benefit as consideration for the recipient's decision, vote, 
recommendation or other exercise of official discretion in a judicial or 
administrative proceeding; or
    (3) Any benefit as consideration for a violation of a known legal 
duty as a public servant or party official.
    (b) It is no defense to prosecution under this section that a person 
whom the actor sought to influence was not qualified to act in the 
desired way, whether because he or she had not yet assumed office, or 
lacked jurisdiction, or for any other reason.



Sec. 11.427  Threats and other improper influence in official and political matters.

    (a) A person commits a misdemeanor if he or she:
    (1) Threatens unlawful harm to any person with purpose to influence 
his or her decision, vote or other exercise of discretion as a public 
servant, party official or voter; or
    (2) Threatens harm to any public servant with purpose to influence 
his decision, opinion, recommendation, vote or other exercise of 
discretion in a judicial or administrative proceeding; or
    (3) Threatens harm to any public servant with purpose to influence 
his decision, opinion, recommendation, vote or other exercise of 
discretion in a judicial or administrative proceeding; or
    (b) It is no defense to prosecution under this section that a person 
whom the actor sought to influence was not qualified to act in the 
desired way, whether because he or she had not yet assumed office, or 
lacked jurisdiction, or for any other reason.



Sec. 11.428  Retaliation for past official action.

    A person commits a misdemeanor if he or she harms another by any 
unlawful act in retaliation for anything lawfully done by the latter in 
the capacity of public servant.



Sec. 11.429  Perjury.

    A person is guilty of perjury, a misdemeanor, if in any official 
proceeding he or she makes a false statement under oath or equivalent 
affirmation, or swears or affirms the truth of a statement previously 
made, when the statement is material and he or she does not believe it 
to be true.
    (a) No person shall be guilty of an offense under this section if he 
or she retracted the falsification in the course of the proceeding in 
which it was made before it became manifest that the falsification was 
or would be exposed and before the falsification substantially affected 
the proceeding.
    (b) No person shall be convicted of an offense under this section 
where proof of falsity rests solely upon contradiction by testimony of a 
single person other than the defendant.



Sec. 11.430  False alarms.

    A person who knowingly causes a false alarm of fire or other 
emergency to be transmitted to, or within any organization, official or 
volunteer, for dealing with emergencies involving danger to life or 
property commits a misdemeanor.



Sec. 11.431  False reports.

    (a) A person who knowingly gives false information to any law 
enforcement officer with the purpose to implicate another commits a 
misdemeanor.
    (b) A person commits a petty misdemeanor if he or she:
    (1) Reports to law enforcement authorities an offense or other 
incident within their concern knowing that it did not occur; or
    (2) Pretends to furnish such authorities with information relating 
to an offense or incident when he or she knows he or she has no 
information relating to such offense or incident.



Sec. 11.432  Impersonating a public servant.

    A person commits a misdemeanor if he or she falsely pretends to hold 
a position in the public service with purpose to induce another to 
submit to such pretended official authority or

[[Page 34]]

otherwise to act in reliance upon that pretense to his or her prejudice.



Sec. 11.433  Disobedience to lawful order of court.

    A person who willfully disobeys any order, subpoena, summons, 
warrant or command duly issued, made or given by any Court of Indian 
Offenses or any officer thereof is guilty of a misdemeanor.



Sec. 11.434  Resisting arrest.

    A person commits a misdemeanor if, for the purpose of preventing a 
public servant from effecting a lawful arrest or discharging any other 
duty, he or she creates a substantial risk of bodily injury to the 
public servant or anyone else, or employs means justifying or requiring 
substantial force to overcome the resistance.



Sec. 11.435  Obstructing justice.

    A person commits a misdemeanor if, with purpose to hinder the 
apprehension, prosecution, conviction or punishment of another for a 
crime, he or she harbors or conceals the other, provides a weapon, 
transportation, disguise or other means of escape, warns the other of 
impending discovery, or volunteers false information to a law 
enforcement officer.



Sec. 11.436  Escape.

    A person is guilty of the offense of escape, a misdemeanor, if he or 
she unlawfully removes himself or herself from official detention or 
fails to return to official detention following temporary leave granted 
for a specific purpose or limited period.



Sec. 11.437  Bail jumping.

    A person set at liberty by court order, with or without bail, upon 
condition that he or she will subsequently appear at a specified time or 
place, commits a misdemeanor if, without lawful excuse, he or she fails 
to appear at that time and place.



Sec. 11.438  Flight to avoid prosecution or judicial process.

    A person who shall absent himself or herself from the Indian country 
over which the Court of Indian Offenses exercises jurisdiction for the 
purpose of avoiding arrest, prosecution or other judicial process shall 
be guilty of a misdemeanor.



Sec. 11.439  Witness tampering.

    (a) A person commits a misdemeanor if, believing that an official 
proceeding or investigation is pending or about to be instituted, he or 
she attempts to induce or otherwise cause a witness or informant to:
    (1) Testify or inform falsely; or
    (2) Withhold any testimony, information, document or thing; or
    (3) Elude legal process summoning him or her to supply evidence; or
    (4) Absent himself or herself from any proceeding or investigation 
to which he or she has been legally summoned.
    (b) A person commits a misdemeanor if he or she harms another by any 
unlawful act in retaliation for anything lawfully done in the capacity 
of witness or informant.



Sec. 11.440  Tampering with or fabricating physical evidence.

    A person commits a misdemeanor if, believing that an official 
proceeding or investigation is pending or about to be instituted, he or 
she:
    (a) Alters, destroys, conceals, or removes any record, document or 
thing with purpose to impair its verity or availability in such 
proceeding or investigation; or
    (b) Makes, presents or uses any record, document or thing knowing it 
to be false and with the purpose to mislead a public servant who is or 
may be engaged in such proceeding or investigation.



Sec. 11.441  Disorderly conduct.

    (a) A person is guilty of disorderly conduct if, with purpose to 
cause public inconvenience, annoyance or alarm or recklessly creating a 
risk thereof, he or she:
    (1) Engages in fighting or threatening, or in violent or tumultuous 
behavior;
    (2) Makes unreasonable noise or offensively coarse utterance, 
gesture or display, or addresses abusive language to any person present; 
or
    (3) Creates a hazardous or physically offensive condition by any act 
which

[[Page 35]]

serves no legitimate purpose of the actor.
    (b) Public means affecting or likely to affect persons in a place to 
which the public has access; among the places included are highways, 
schools, prisons, apartments, places of business or amusement, or any 
neighborhood.
    (c) An offense under this section is a petty misdemeanor if the 
actor's purpose is to cause substantial harm or serious inconvenience, 
or if he or she persists in disorderly conduct after reasonable warning 
or request to desist. Otherwise, disorderly conduct is a violation.



Sec. 11.442  Riot; failure to disperse.

    (a) A person is guilty of riot, a misdemeanor, if he or she 
participates with two or more others in a course of disorderly conduct:
    (1) With purpose to commit or facilitate the commission of a felony 
or misdemeanor; or
    (2) With purpose to prevent or coerce official action; or
    (3) When the actor or any other participant to the knowledge of the 
actor uses or plans to use a firearm or other deadly weapon.
    (b) Where three or more persons are participating in a course of 
disorderly conduct likely to cause substantial harm or serious 
inconvenience, a law enforcement officer may order the participants and 
others in the immediate vicinity to disperse. A person who refuses or 
knowingly fails to obey such an order commits a misdemeanor.



Sec. 11.443  Harassment.

    A person commits a petty misdemeanor if, with purpose to harass 
another, he or she:
    (a) Makes a telephone call without purpose or legitimate 
communication; or
    (b) Insults, taunts or challenges another in a manner likely to 
provoke violent or disorderly response; or
    (c) Makes repeated communications anonymously or at extremely 
inconvenient hours, or in offensively coarse language; or
    (d) Subjects another to an offensive touching; or
    (e) Engages in any other course of alarming conduct serving no 
legitimate purpose.



Sec. 11.444  Carrying concealed weapons.

    A person who goes about in public places armed with a dangerous 
weapon concealed upon his or her person is guilty of a misdemeanor 
unless he or she has a permit to do so signed by a magistrate of the 
Court of Indian Offenses.



Sec. 11.445  Driving violations.

    (a) A person who shall operate any vehicle in a manner dangerous to 
the public safety is guilty of reckless driving, a petty misdemeanor, 
unless it is committed while under the influence of alcohol, in which 
case it is a misdemeanor.
    (b) A person who shall drive, operate or be in physical control of 
any motor vehicle when his or her alcohol concentration is 0.10 or more 
shall be guilty of driving while intoxicated, a misdemeanor.
    (c) Any person who drives, operates, or is in physical control of a 
motor vehicle within the Indian country under the jurisdiction of a 
Court of Indian Offenses consents to a chemical test of his or her 
blood, breath, or urine for the purpose of determining the presence of 
alcohol, to be administered at the direction of a law enforcement 
officer. The test may be required when the officer has reasonable cause 
to believe that a person is driving while intoxicated, and the person 
has either been lawfully placed under arrest for a violation of this 
section, or has been involved in a motor vehicle accident or collision 
resulting in property damage, personal injury, or death.
    (d) In the absence of an applicable tribal traffic code, the 
provisions of state traffic laws applicable in the state where a Court 
of Indian Offenses is located shall apply to the operation of motor 
vehicles within the Indian country under the jurisdiction of the Court 
of Indian Offenses with the exception that any person found guilty of 
violating such laws shall, in lieu of the penalties provided under state 
law, be sentenced according to the standards found in Sec. 11.450 
depending on the nature of the traffic code violation, and

[[Page 36]]

may be deprived of the right to operate any motor vehicle for a period 
not to exceed 6 months.



Sec. 11.446  Cruelty to animals.

    A person commits a misdemeanor if he or she purposely or recklessly:
    (a) Subjects any animal in his or her custody to cruel neglect; or
    (b) Subjects any animal to cruel mistreatment; or
    (c) Kills or injures any animal belonging to another without legal 
privilege or consent of the owner.
    (d) Causes one animal to fight with another.



Sec. 11.447  Maintaining a public nuisance.

    A person who permits his or her property to fall into such condition 
as to injure or endanger the safety, health, comfort, or property of his 
or her neighbors, is guilty of a violation.



Sec. 11.448  Abuse of office.

    A person acting or purporting to act in an official capacity or 
taking advantage of such actual or purported capacity commits a 
misdemeanor if, knowing that his or her conduct is illegal, he or she:
    (a) Subjects another to arrest, detention, search, seizure, 
mistreatment, dispossession, assessment, lien or other infringement of 
personal or property rights; or
    (b) Denies or impedes another in the exercise or enjoyment of any 
right, privilege, power or immunity.



Sec. 11.449  Violation of an approved tribal ordinance.

    A person who violates the terms of any tribal ordinance duly enacted 
by the governing body of the tribe occupying the Indian country under 
the jurisdiction of the Court of Indian Offenses and approved by the 
Assistant Secretary--Indian Affairs or his or her designee, is guilty of 
an offense and upon conviction thereof shall be sentenced as provided in 
the ordinance.



Sec. 11.450  Maximum fines and sentences of imprisonment.

    (a) A person convicted of an offense under this code may be 
sentenced as follows:
    (1) If the offense is a misdemeanor, to a term of imprisonment not 
to exceed six months or to a fine not to exceed $500.00, or both;
    (2) If the offense is a petty misdemeanor, to a term of imprisonment 
not to exceed three months or to a fine not to exceed $250.00, or both;
    (3) If the offense is a violation, to a term of imprisonment not to 
exceed one month or to a fine not to exceed $100.00, or both;
    (b) The fines listed above may be imposed in addition to any amounts 
ordered paid as restitution.



                        Subpart E--Civil Actions



Sec. 11.500  Law applicable to civil actions.

    (a) In all civil cases the Court of Indian Offenses shall apply any 
laws of the United States that may be applicable, any authorized 
regulations of the Interior Department, and any ordinances or customs of 
the tribe occupying the area of Indian country over which the court has 
jurisdiction, not prohibited by Federal laws.
    (b) Where any doubt arises as to the customs and usages of the tribe 
the court may request the advice of counselors familiar with these 
customs and usages.
    (c) Any matters that are not covered by the traditional customs and 
usages of the tribe, or by applicable Federal laws and regulations, 
shall be decided by the Court of Indian Offenses according to the law of 
the State in which the matter in dispute lies.



Sec. 11.501  Judgments in civil actions.

    (a) In all civil cases, judgment shall consist of an order of the 
court awarding damages to be paid to the injured party, or directing the 
surrender of certain property to the injured party, or the performance 
of some other act for the benefit of the injured party, including 
injunctive relief and declaratory judgments.
    (b) Where the injury inflicted was the result of carelessness of the 
defendant, the judgment shall fairly compensate the injured party for 
the loss he or she has suffered.
    (c) Where the injury was deliberately inflicted, the judgment shall 
impose an

[[Page 37]]

additional penalty upon the defendant, which additional penalty may run 
either in favor of the injured party or in favor of the tribe.
    (d) Where the injury was inflicted as a result of accident, or where 
both the complainant and the defendant were at fault, the judgment shall 
compensate the injured party for a reasonable part of the loss he or she 
has suffered.
    (e) No judgment shall be given on any suit unless the defendant has 
actually received notice of such suit and ample opportunity to appear in 
court in his or her defense.



Sec. 11.502  Costs in civil actions.

    (a) The court may assess the accruing costs of the case against the 
party or parties against whom judgment is given. Such costs shall 
consist of the expenses of voluntary witnesses for which either party 
may be responsible and the fees of jurors in those cases where a jury 
trial is had, and any further incidental expenses connected with the 
procedure before the court as the court may direct.
    (b) In all civil suits the complainant may be required to deposit 
with the clerk of the court a fee or other security in a reasonable 
amount to cover costs and disbursements in the case.



Sec. 11.503   Applicable civil procedure.

    The procedure to be followed in civil cases shall be the Federal 
Rules of Civil Procedure applicable to United States district courts, 
except insofar as such procedures are superseded by order of the Court 
of Indian Offenses or by the existence of inconsistent tribal rules of 
procedure.



Sec. 11.504   Applicable rules of evidence.

    Courts of Indian Offenses shall be bound by the Federal Rules of 
Evidence, except insofar as such rules are superseded by order of the 
Court of Indian Offenses, or by the existence of inconsistent tribal 
rules of evidence.



                      Subpart F--Domestic Relations



Sec. 11.600   Marriages.

    (a) A magistrate of the Court of Indian Offenses shall have the 
authority to perform marriages.
    (b) A valid marriage shall be constituted by:
    (1) The issuance of a marriage license by the Court of Indian 
Offenses and by execution of a consent to marriage by both parties to 
the marriage and recorded with the clerk of the court; or
    (2) The recording of a tribal custom marriage with the Court of 
Indian Offenses within 30 days of the tribal custom marriage ceremony by 
the signing by both parties of a marriage register maintained by the 
clerk of the court.
    (c) A marriage license application shall include the following 
information:
    (1) Name, sex, occupation, address, social security number, and date 
and place of birth of each party to the proposed marriage;
    (2) If either party was previously married, his or her name, and the 
date, place, and court in which the marriage was dissolved or declared 
invalid or the date and place of death of the former spouse;
    (3) Name and address of the parents or guardian of each party;
    (4) Whether the parties are related to each other and, if so, their 
relationship; and
    (5) The name and date of birth of any child of which both parties 
are parents, born before the making of the application, unless their 
parental rights and the parent and child relationship with respect to 
the child have been terminated.
    (6) A certificate of the results of any medical examination required 
by either applicable tribal ordinances, or the laws of the State in 
which the Indian country under the jurisdiction of the Court of Indian 
Offenses is located.



Sec. 11.601   Marriage licenses.

    A marriage license shall be issued by the clerk of the court in the 
absence of any showing that the proposed marriage would be invalid under 
any provision of this part or tribal custom, and upon written 
application of an unmarried male and unmarried female, both of whom must 
be eighteen (18) years or older. If either party to the marriage is 
under the age of eighteen (18), that party must have the written consent 
of parent or his or her legal guardian.

[[Page 38]]



Sec. 11.602   Solemnization.

    (a) In the event a judge, clergyman, tribal official or anyone 
authorized to do so solemnizes a marriage, he or she shall file with the 
clerk of the court certification thereof within thirty (30) days of the 
solemnization.
    (b) Upon receipt of the marriage certificate, the clerk of the court 
shall register the marriage.



Sec. 11.603   Invalid or prohibited marriages.

    (a) The following marriages are prohibited:
    (1) A marriage entered into prior to the dissolution of an earlier 
marriage of one of the parties;
    (2) A marriage between an ancestor and a descendant, or between a 
brother and a sister, whether the relationship is by the half or the 
whole blood;
    (3) A marriage between an aunt and a nephew or between an uncle and 
a niece, whether the relationship is by the half or the whole blood, 
except as to marriages permitted by established tribal custom;
    (4) A marriage prohibited by custom and usage of the tribe.
    (b) Children born of a prohibited marriage are legitimate.



Sec. 11.604  Declaration of invalidity.

    (a) The Court of Indian Offenses shall enter a decree declaring the 
invalidity of a marriage entered into under the following circumstances:
    (1) A party lacked capacity to consent to the marriage, either 
because of mental incapacity or infirmity or by the influence of 
alcohol, drugs, or other incapacitating substances; or
    (2) A party was induced to enter into a marriage by fraud or duress; 
or
    (3) A party lacks the physical capacity to consummate the marriage 
by sexual intercourse and at the time the marriage was entered into, the 
other party did not know of the incapacity; or
    (4) The marriage is prohibited under Sec. 11.603.
    (b) A declaration of invalidity may be sought by either party to the 
marriage or by the legal representative of the party who lacked capacity 
to consent.



Sec. 11.605  Dissolution.

    (a) The Court of Indian Offenses shall enter a decree of dissolution 
of marriage if:
    (1) The court finds that the marriage is irretrievably broken, if 
the finding is supported by evidence that (i) the parties have lived 
separate and apart for a period of more than 180 days next preceding the 
commencement of the proceeding, or (ii) there is serious marital discord 
adversely affecting the attitude of one or both of the parties towards 
the marriage;
    (2) The court finds that either party, at the time the action was 
commenced, was domiciled within the Indian country under the 
jurisdiction of the court, and that the domicile has been maintained for 
90 days next preceding the making of the findings; and
    (3) To the extent it has jurisdiction to do so, the court has 
considered, approved, or provided for child custody, the support of any 
child entitled to support, the maintenance of either spouse, and the 
disposition of property; or has provided for a separate later hearing to 
complete these matters.
    (b) If a party requests a decree of legal separation rather than a 
decree of dissolution of marriage, the Court of Indian Offenses shall 
grant the decree in that form unless the other party objects.



Sec. 11.606  Dissolution proceedings.

    (a) Either or both parties to the marriage may initiate dissolution 
proceedings.
    (b) If a proceeding is commenced by one of the parties, the other 
party shall be served in the manner provided by the applicable rule of 
civil procedure and within thirty days after the date of service may 
file a verified response.
    (c) The verified petition in a proceeding for dissolution of 
marriage or legal separation shall allege that the marriage is 
irretrievably broken and shall set forth:
    (1) The age, occupation, and length of residence within the Indian 
country under the jurisdiction of the court of each party;
    (2) The date of the marriage and the place at which it was 
registered;
    (3) That jurisdictional requirements are met and that the marriage 
is

[[Page 39]]

irretrievably broken in that either (i) the parties have lived separate 
and apart for a period of more than 180 days next preceding the 
commencement of the proceeding or (ii) there is a serious marital 
discord adversely affecting the attitude of one or both of the parties 
toward the marriage, and there is no reasonable prospect of 
reconciliation;
    (4) The names, age, and addresses of all living children of the 
marriage and whether the wife is pregnant;
    (5) Any arrangement as to support, custody, and visitation of the 
children and maintenance of a spouse; and
    (6) The relief sought.



Sec. 11.607  Temporary orders and temporary injunctions.

    (a) In a proceeding for dissolution of marriage or for legal 
separation, either party may move for temporary maintenance or temporary 
support of a child of the marriage entitled to support. The motion shall 
be accompanied by an affidavit setting forth the factual basis for the 
motion and the amounts requested.
    (b) As a part of a motion for temporary maintenance or support or by 
an independent motion accompanied by an affidavit, either party may 
request the Court of Indian Offenses to issue a temporary injunction for 
any of the following relief:
    (1) Restraining any person from transferring, encumbering, 
concealing, or otherwise disposing of any property except in the usual 
course of business or for the necessities of life, and, if so 
restrained, requiring him or her to notify the moving party of any 
proposed extraordinary expenditures made after the order is issued;
    (2) Enjoining a party from molesting or disturbing the peace of the 
other party or of any child;
    (3) Excluding a party from the family home or from the home of the 
other party upon a showing that physical or emotional harm would 
otherwise result;
    (4) Enjoining a party from removing a child from the jurisdiction of 
the court; and
    (5) Providing other injunctive relief proper in the circumstances.
    (c) The court may issue a temporary restraining order without 
requiring notice to the other party only if it finds on the basis of the 
moving affidavit or other evidence that irreparable injury will result 
to the moving party if no order is issued until the time for responding 
has elapsed.
    (d) A response may be filed within 20 days after service of notice 
of a motion or at the time specified in the temporary restraining order.
    (e) On the basis of the showing made, the Court of Indian Offenses 
may issue a temporary injunction and an order for temporary maintenance 
or support in amounts and on terms just and proper under the 
circumstances.
    (f) A temporary order or temporary injunction:
    (1) Does not prejudice the rights of the parties or the child which 
are to be adjudicated at subsequent hearings in a proceeding;
    (2) May be revoked or modified before the final decree as deemed 
necessary by the court;
    (3) Terminates when the final decree is entered or when the petition 
for dissolution or legal separation is voluntarily dismissed.



Sec. 11.608  Final decree; disposition of property; maintenance; child support; custody.

    (a) A decree of dissolution of marriage or of legal separation is 
final when entered, subject to the right of appeal.
    (b) The Court of Indian Offenses shall have the power to impose 
judgment as follows in dissolution or separation proceedings:
    (1) Apportion or assign between the parties the non-trust property 
and non-trust assets belonging to either or both and whenever acquired, 
and whether the title thereto is in the name of the husband or wife or 
both;
    (2) Grant a maintenance order for either spouse in amounts and for 
periods of time the court deems just;
    (3) Order either or both parents owing a duty of support to a child 
to pay an amount reasonable or necessary for his or her support, without 
regard to marital misconduct, after considering all relevant factors. In 
addition:
    (i) When a support order is issued by a Court of Indian Offenses, 
the order

[[Page 40]]

may provide that a portion of an absent parent's wages be withheld to 
comply with the order on the earliest of the following dates: When an 
amount equal to one month's support becomes overdue; when the absent 
parent requests withholding; or at such time as the Court of Indian 
Offenses selects. The amount to be withheld may include an amount to be 
applied toward liquidation of any overdue support.
    (ii) If the Court of Indian Offenses finds that an absent parent who 
has been ordered to pay child support is now residing within the 
jurisdiction of another Court of Indian Offenses, an Indian tribal 
court, or a state court, it shall petition such court for reciprocal 
enforcement and provide it with a copy of the support order.
    (iii) If the Court of Indian Offenses receives a petition from 
another Court of Indian Offenses, an Indian tribal court or a state 
court, it shall take necessary steps to determine paternity, establish 
an order for child support, register a foreign child support order or 
enforce orders as requested in the petition.
    (iv) The Court of Indian Offenses shall assist a state in the 
enforcement and collection of past-due support from Federal tax refunds 
of absent parents living within the Indian country over which the court 
has jurisdiction.
    (v) Any person or agency who has provided support or assistance to a 
child under 18 years of age shall be a proper person to bring an action 
under this section and to recover judgment in an amount equal to such 
past-paid support or assistance, including costs of bringing the action.
    (4) Make child custody determinations in accordance with the best 
interest of the child.
    (5) Restore the maiden name of the wife.



Sec. 11.609  Determination of paternity and support.

    The Court of Indian Offenses shall have jurisdiction of all suits 
brought to determine the paternity of a child and to obtain a judgment 
for the support of the child. A judgment of the court establishing the 
identity of the father of the child shall be conclusive of that fact in 
all subsequent determinations of inheritance by the Court of Indian 
Offenses or by the Department of the Interior.



Sec. 11.610  Appointment of guardians.

    The court shall have the jurisdiction to appoint or remove legal 
guardians for minors and for persons who are incapable of managing their 
own affairs under terms and conditions to be prescribed by the court.



Sec. 11.611  Change of name.

    The Court of Indian Offenses shall have the authority to change the 
name of any person upon petition of such person or upon the petition of 
the parents of any minor, if at least one parent is Indian. Any order 
issued by the court for a change of name shall be kept as a permanent 
record and copies shall be filed with the agency superintendent, the 
governing body of the tribe occupying the Indian country under the 
jurisdiction of the court, and any appropriate agency of the State in 
which the court is located.



                     Subpart G--Probate Proceedings



Sec. 11.700  Probate jurisdiction.

    The Court of Indian Offenses shall have jurisdiction to administer 
in probate the estate of a deceased Indian who, at the time of his or 
her death, was domiciled or owned real or personal property situated 
within the Indian country under the jurisdiction of the court to the 
extent that such estate consists of property which does not come within 
the jurisdiction of the Secretary of the Interior.



Sec. 11.701  Duty to present will for probate.

    Any custodian of a will shall deliver the same to the Court of 
Indian Offenses within 30 days after receipt of information that the 
maker thereof is deceased. Any custodian who fails to do so shall be 
liable for damages sustained by any person injured thereby.



Sec. 11.702  Proving and admitting will.

    (a) Upon initiating the probate of an estate, the will of the 
decedent shall be filed with the court. Such will may be proven and 
admitted to probate by filing an affidavit of an attesting witness

[[Page 41]]

which identifies such will as being the will which the decedent executed 
and declared to be his or her last will. If the evidence of none of the 
attesting witnesses is available, the court may allow proof of the will 
by testimony that the signature of the testator is genuine.
    (b) At any time within 90 days after a will has been admitted to 
probate, any person having an interest in the decedent's estate may 
contest the validity of such will. In the event of such contest, a 
hearing shall be held to determine the validity of such will.
    (c) Upon considering all relevant information concerning the will, 
the Court of Indian Offenses shall enter an order affirming the 
admission of such will to probate, or rejecting such will and ordering 
that the probate of the decedent's estate proceed as if the decedent had 
died intestate.



Sec. 11.703  Petition and order to probate estate.

    (a) Any person having an interest in the administration of an estate 
which is subject to the jurisdiction of the court may file a written 
petition with the court requesting that such estate be administered in 
probate.
    (b) The Court of Indian Offenses shall enter an order directing that 
the estate be probated upon finding that the decedent was an Indian who, 
at the time of his or her death, was domiciled or owned real or personal 
property situated within the Indian country under the jurisdiction of 
the court other than trust or other restricted property, that the 
decedent left an estate subject to the jurisdiction of the court, and 
that it is necessary to probate such estate.



Sec. 11.704  Appointment and duties of executor or administrator.

    (a) Upon ordering the estate to be probated, the court shall appoint 
an administrator to administer the estate of the decedent. The person 
nominated by the decedent's will, if any, to be the executor of the 
estate shall be so appointed, provided such person is willing to serve 
in such capacity.
    (b) The executor or administrator appointed by the court shall have 
the following duties and powers during the administration of the estate 
and until discharged by the court:
    (1) To send by certified mail true copies of the order to probate 
the estate and the will of the decedent admitted to probate by such 
order, if any, to each heir, devisee and legatee of the decedent, at 
their last known address, to the governing body of the tribe or tribes 
occupying the Indian country over which the court has jurisdiction, and 
to the agency superintendent;
    (2) To preserve and protect the decedent's property within the 
estate and the heirs, so far as is possible;
    (3) To investigate promptly all claims against the decedent's estate 
and determine their validity;
    (4) To cause a written inventory of all the decedent's property 
within the estate to be prepared promptly with each article or item 
being separately set forth and cause such property to be exhibited to 
and appraised by an appraiser, and the inventory and appraisal thereof 
to be filed with the court;
    (5) To give promptly all persons entitled thereto such notice as is 
required under these proceedings;
    (6) To account for all property within the estate which may come 
into his or her possession or control, and to maintain accurate records 
of all income received and disbursements made during the course of the 
administration.



Sec. 11.705  Removal of executor or administrator.

    The Court of Indian Offenses may order the executor or administrator 
to show cause why he or she should not be discharged, and may discharge 
the executor or administrator for failure, neglect or improper 
performance of his or her duties.



Sec. 11.706  Appointment and duties of appraiser.

    (a) Upon ordering an estate to be probated, the court shall appoint 
a disinterested and competent person as an appraiser to appraise all of 
the decedent's real and personal property within the estate.
    (b) It shall be the duty of the appraiser to appraise separately the 
true cash value of each article or item of property within the estate, 
including

[[Page 42]]

debts due the decedent, and to indicate the appraised value of each such 
article or item of property set forth in the inventory of the estate and 
to certify such appraisal by subscribing his or her name to the 
inventory and appraisal.



Sec. 11.707  Claims against estate.

    (a) Creditors of the estate or those having a claim against the 
decedent shall file their claim with the clerk of the court or with the 
executor or administrator within 60 days from official notice of the 
appointment of the executor or administrator published locally in the 
press or posting of signs at the tribal and agency offices, giving 
appropriate notice for the filing of claims.
    (b) The executor or administrator shall examine all claims within 90 
days of his or her appointment and notify the claimant whether his or 
her claim is accepted or rejected. If the claimant is notified of 
rejection, he or she may request a hearing before the court by filing a 
petition requesting such hearing within 30 days following the notice of 
rejection.



Sec. 11.708  Sale of property.

    After filing the inventory and appraisal, the executor or 
administrator may petition the court for authority to sell personal 
property of the estate for purposes of paying the expenses of last 
illness and burial expenses, expenses of administration, claims, if any, 
against the estate, and for the purpose of distribution. If, in the 
court's judgment, such sale is in the best interest of the estate, the 
court shall order such sale and prescribe the terms upon which the 
property shall be sold.



Sec. 11.709  Final account.

    (a) When the affairs of an estate have been fully administered, the 
executor or administrator shall file a final account with the court, 
verified by his or her oath. Such final account shall affirmatively set 
forth:
    (1) That all claims against the estate have been paid, except as 
shown, and that the estate has adequate unexpended and unappropriated 
funds to fully pay such remaining claims;
    (2) The amount of money received and expended by him or her, from 
whom received and to whom paid, referring to the vouchers for each of 
such payments;
    (3) That there is nothing further to be done in the administration 
of the estate except as shown in the final account;
    (4) The remaining assets of the estate, including unexpended and 
unappropriated money, at the time of filing the final account;
    (5) The proposed determination of heirs and indicate the names, 
ages, addresses and relationship to the decedent of each distributee and 
the proposed distributive share and value thereof each heir, devisee or 
legatee is to receive; and
    (6) A petition that the court set a date for conducting a hearing to 
approve the final account, to determine the heirs, devisees and legatees 
of the decedent and the distributive share each distributee is to 
receive.



Sec. 11.710  Determination of the court.

    At the time set for hearing upon the final account, the Court of 
Indian Offenses shall proceed to examine all evidence relating to the 
distribution of the decedent's estate, and consider objections to the 
final account which may have been filed by any heir, devisee, legatee, 
or other person having an interest in the distribution of the estate. 
Upon conclusion of the hearing, the court shall enter an order:
    (a) Providing for payment of approved claims;
    (b) Determining the decedent's heirs, devisees and legatees, 
indicating the names, ages and addresses of each, and the distributive 
share of the remaining estate which each distributee is to receive; and
    (c) Directing the administrator or executor to distribute such 
distributive share to those entitled thereto.



Sec. 11.711  Descent and distribution.

    (a) The court shall distribute the estate according to the terms of 
the will of the decedent which has been admitted to probate.
    (b) If the decedent died intestate or having left a will which has 
been rejected by the court, the estate shall be distributed as follows:

[[Page 43]]

    (1) According to the laws and customs of the tribe if such laws and 
customs are proved; or
    (2) According to state law absent the existence of tribal laws or 
customs.
    (c) If no person takes under the above subsections, the estate shall 
escheat to the tribe.



Sec. 11.712  Closing estate.

    (a) Upon finding that the estate has been fully administered and is 
in a condition to be closed, the court shall enter an order closing the 
estate and discharging the executor or administrator.
    (b) If an order closing the estate has not been entered by the end 
of nine months following appointment of executor or administrator, the 
executor or administrator shall file a written report with the court 
stating the reasons why the estate has not been closed.



Sec. 11.713  Small estates.

    An estate having an appraised value which does not exceed $2,000.00 
and which is to be inherited by a surviving spouse and/or minor children 
of the deceased may, upon petition of the executor or administrator, and 
a hearing before the court, be distributed without administration to 
those entitled thereto, upon which the estate shall be closed.



                    Subpart H--Appellate Proceedings



Sec. 11.800  Jurisdiction of appellate division.

    The jurisdiction of the appellate division shall extend to all 
appeals from final orders and judgments of the trial division, by any 
party except the prosecution in a criminal case where there has been a 
jury verdict. The appellate division shall review all issues of law 
presented to it which arose in the case, but shall not reverse the trial 
division decision unless the legal error committed affected a 
substantial right of a party or the outcome of the case.



Sec. 11.801  Procedure on appeal.

    (a) An appeal must be taken within 15 days from the judgment 
appealed from by filing a written notice of appeal with the clerk of the 
court.
    (b) The notice of appeal shall specify the party or parties taking 
the appeal, shall designate the judgment, or part thereof appealed from, 
and shall contain a short statement of reasons for the appeal. The clerk 
of the court shall mail a copy of the notice of appeal to all parties 
other than parties taking the appeal.
    (c) In civil cases, other parties shall have 15 days to respond to 
the notice of appeal.
    (d) In civil cases, the appellant may request the trial division to 
stay the judgment pending action on the notice of appeal, and, if the 
appeal is allowed, either party may request the trial division to grant 
or stay an injunction pending appeal. The trial division may condition a 
stay or injunction pending appeal on the depositing of cash or bond 
sufficient to cover damages awarded by the court together with interest.



Sec. 11.802  Judgment against surety.

    Any surety to a bond submits himself or herself to the jurisdiction 
of the Court of Indian Offenses, and irrevocably appoints the clerk of 
the court as his or her agent upon whom any papers affecting his or her 
liability on the bond may be served.



Sec. 11.803  Record on appeal.

    Within 20 days after a notice of appeal is filed, the clerk of court 
shall certify and file with the appellate division the record of the 
case.



Sec. 11.804  Briefs and memoranda.

    (a) Within 30 days after the notice of appeal is filed, the 
appellant may file a written brief in support of his or her appeal. An 
original and one copy for each appellee shall be filed with the clerk of 
court who shall mail one copy by registered or certified mail to each 
appellee.
    (b) The appellee shall have 30 days after receipt of the appellant's 
brief within which to file an answer brief. An original and one copy for 
each appellant shall be filed with the clerk of the court who shall mail 
one copy, by registered or certified mail, to each appellant.

[[Page 44]]



Sec. 11.805  Oral argument.

    The appellate division shall assign all criminal cases for oral 
argument. The court may in its discretion assign civil cases for oral 
argument or may dispose of civil cases on the briefs without argument.



Sec. 11.806  Rules of court.

    The chief magistrate of the appellate division shall prescribe all 
necessary rules concerning the operation of the appellate division and 
the time and place of meeting of the court.



                       Subpart I--Children's Court



Sec. 11.900  Definitions.

    For purposes of sections pertaining to the children's court:
    (a) Abandon means the leaving of a minor without communication or 
failing to support a minor for a period of one year or more with no 
indication of the parents' willingness to assume a parental role.
    (b) Adult means a person eighteen (18) years or older.
    (c) Counsel means an attorney admitted to the bar of a state or the 
District of Columbia or a lay advocate admitted to practice before the 
Court of Indian Offenses.
    (d) Custodian means one who has physical custody of a minor and who 
is providing food, shelter and supervision to the minor.
    (e) Custody means the power to control the day-to-day activities of 
the minor.
    (f) Delinquent act means an act which, if committed by an adult, 
would be designated a crime under this part or under an ordinance of the 
tribe.
    (g) Detention means the placement of a minor in a physically 
restrictive facility.
    (h) Guardian means a person other than the minor's parent who is by 
law responsible for the care of the minor.
    (i) Guardian ad Litem means a person appointed by the court to 
represent the minor's interests before the court.
    (j) Juvenile offender means a person who commits a delinquent act 
prior to his or her eighteenth birthday.
    (k) Minor means:
    (1) A person under 18 years of age,
    (2) A person 18 years of age or older concerning whom proceedings 
are commenced in the children's court prior to his or her eighteenth 
birthday, or
    (3) A person 18 years of age or older who is under the continuing 
jurisdiction of the children's court.
    (l) Minor-in-need-of-care means a minor who:
    (1) Has no parent or guardian available and willing to take care of 
him or her;
    (2) Is unwilling to allow his or her parent or guardian to take care 
of him or her;
    (3) Has suffered or is likely to suffer a physical or emotional 
injury, inflicted by other than accidental means, which causes or 
creates a substantial risk of death, disfigurement, impairment of bodily 
functions or emotional health;
    (4) Has not been provided with adequate food, clothing, shelter, 
medical care, education or supervision by his or her parent, guardian or 
custodian;
    (5) Has been sexually abused;
    (6) Has been committing delinquent acts as a result of parental 
pressure, guidance or approval; or,
    (7) Has been committing status offenses.
    (m) Status offense means an offense which, if committed by an adult, 
would not be designated a crime under this part or under an ordinance of 
the tribe.



Sec. 11.901  The children's court established.

    When conducting proceedings under Secs. 11.900-11.1114 of this part, 
the Court of Indian Offenses shall be known as the ``Children's Court''.



Sec. 11.902  Non-criminal proceedings.

    No adjudication upon the status of any minor in the jurisdiction of 
the children's court shall be deemed criminal or be deemed a conviction 
of a crime, unless the children's court refers the matter to the Court 
of Indian Offenses. Neither the disposition nor evidence given before 
the children's court shall be admissible as evidence against the child 
in any proceeding in another court.

[[Page 45]]



Sec. 11.903  Presenting officer.

    (a) The agency superintendent and the chief magistrate of the 
children's court shall jointly appoint a presenting officer to carry out 
the duties and responsibilities set forth under Secs. 11.900-11.1114 of 
this part. The presenting officer's qualifications shall be the same as 
the qualifications for the official who acts as prosecutor for the Court 
of Indian Offenses. The presenting officer may be the same person who 
acts as prosecutor in the Court of Indian Offenses.
    (b) The presenting officer shall represent the tribe in all 
proceedings under Secs. 11.900-11.1114 of this part.



Sec. 11.904  Guardian ad litem.

    The children's court, under any proceeding authorized by this part, 
shall appoint, for the purposes of the proceeding, a guardian ad litem 
for a minor, where the court finds that the minor does not have a 
natural or adoptive parent, guardian or custodian willing and able to 
exercise effective guardianship, or where the parent, guardian, or 
custodian has been accused of abusing or neglecting the minor.



Sec. 11.905  Jurisdiction.

    The children's court has exclusive, original jurisdiction of the 
following proceedings:
    (a) Proceedings in which a minor who resides in a community for 
which the court is established is alleged to be a juvenile offender, 
unless the children's court transfers jurisdiction to the Court of 
Indian Offenses pursuant to Sec. 11.907 of this part.
    (b) Proceedings in which a minor who resides in a community for 
which the court is established is alleged to be a minor-in-need-of-care.



Sec. 11.906  Rights of parties.

    (a) In all hearings and proceedings under Secs. 11.900-11.1114 of 
this part the following rights will be observed unless modified by the 
particular section describing a hearing or proceeding:
    (1) Notice of the hearing or proceeding shall be given the minor, 
his or her parents, guardian or custodian and their counsel. The notice 
shall be delivered by certified mail. The notice shall contain:
    (i) The name of the court;
    (ii) The title of the proceeding; and
    (iii) The date, time and place of the proceeding.
    (b) The children's court magistrate shall inform the minor and his 
or her parents, guardian or custodian of their right to retain counsel, 
and, in juvenile delinquency proceedings, shall tell them: ``You have a 
right to have a lawyer or other person represent you at this proceeding. 
If you cannot afford to hire counsel, the court will appoint counsel for 
you.''
    (c) If the children's court magistrate believes there is a potential 
conflict of interest between the minor and his or her parents, guardian, 
or custodian with respect to legal representation, the court shall 
appoint another person to act as counsel for the minor.
    (d) The minor need not be a witness against, nor otherwise 
incriminate, himself or herself.
    (e) The children's court shall give the minor, and the minor's 
parent, guardian or custodian the opportunity to introduce evidence, to 
be heard on their own behalf and to examine witnesses.



Sec. 11.907  Transfer to Court of Indian Offenses.

    (a) The presenting officer or the minor may file a petition 
requesting the children's court to transfer the minor to the Court of 
Indian Offenses if the minor is 14 years of age or older and is alleged 
to have committed an act that would have been considered a crime if 
committed by an adult.
    (b) The children's court shall conduct a hearing to determine 
whether jurisdiction of the minor should be transferred to the Court of 
Indian Offenses.
    (1) The transfer hearing shall be held no more than 30 days after 
the petition is filed.
    (2) Written notice of the transfer hearing shall be given to the 
minor and the minor's parents, guardian or custodian at least 72 hours 
prior to the hearing.
    (c) All the rights listed in Sec. 11.906 shall be afforded the 
parties at the transfer hearing.
    (d) The following factors shall be considered when determining 
whether to

[[Page 46]]

transfer jurisdiction of the minor to the Court of Indian Offenses:
    (1) The nature and seriousness of the offense with which the minor 
is charged.
    (2) The nature and condition of the minor, as evidenced by his or 
her age; mental and physical condition; past record of offenses; and 
responses to past children's court efforts at rehabilitation.
    (e) The children's court may transfer jurisdiction of the minor to 
the Court of Indian Offenses if the children's court finds clear and 
convincing evidence that both of the following circumstances exist:
    (1) There are no reasonable prospects for rehabilitating the minor 
through resources available to the children's court; and
    (2) The offense allegedly committed by the minor evidences a pattern 
of conduct which constitutes a substantial danger to the public.
    (f) When a minor is transferred to the Court of Indian Offenses, the 
children's court shall issue a written transfer order containing reasons 
for its order. The transfer order constitutes a final order for purposes 
of appeal.



Sec. 11.908  Court records.

    (a) A record of all hearings under Secs. 11.900-11.1114 of this part 
shall be made and preserved.
    (b) All children's court records shall be confidential and shall not 
be open to inspection to anyone but the minor, the minor's parents or 
guardian, the presenting officer, or others by order of the children's 
court.



Sec. 11.909  Law enforcement records.

    (a) Law enforcement records and files concerning a minor shall be 
kept separate from the records and files of adults.
    (b) All law enforcement records and files shall be confidential and 
shall not be open to inspection to anyone but the minor, the minor's 
parents or guardian, the presenting officer, or others by order of the 
children's court.



Sec. 11.910  Expungement.

    When a minor who has been the subject of any proceeding before the 
children's court attains his or her twenty-first birthday, the 
children's court magistrate shall order the court records and the law 
enforcement records pertaining to the minor to be destroyed, except for 
adoption records which shall not be destroyed under any circumstances.



Sec. 11.911  Appeal.

    (a) For purposes of appeal, a record of the proceedings shall be 
made available to the minor and parents, guardian or custodian. Costs of 
obtaining the record shall be paid by the party seeking the appeal.
    (b) Any party to a children's court hearing may appeal a final order 
or disposition of the case by filing a written notice of appeal with the 
children's court within 30 days of the final order of disposition.
    (c) No decree or disposition of a hearing shall be stayed by such 
appeal.
    (d) All appeals shall be conducted in accordance with this part.



Sec. 11.912  Contempt of court.

    Any willful disobedience or interference with any order of the 
children's court constitutes contempt of court which may be punished in 
accordance with this part.



                 Subpart J--Juvenile Offender Procedure



Sec. 11.1000  Complaint.

    A complaint must be filed by a law enforcement officer or by the 
presenting officer and sworn to by a person who has knowledge of the 
facts alleged. The complaint shall be signed by the complaining witness, 
and shall contain:
    (a) A citation to the specific section(s) of this part which gives 
the children's court jurisdiction of the proceedings;
    (b) A citation to the section(s) of this part which the minor is 
alleged to have violated;
    (c) The name, age, and address of the minor who is the subject of 
the complaint, if known; and
    (d) A plain and concise statement of the facts upon which the 
allegations are based, including the date, time, and location at which 
the alleged facts occurred.

[[Page 47]]



Sec. 11.1001  Warrant.

    The children's court may issue a warrant directing that a minor be 
taken into custody if the court finds there is probable cause to believe 
the minor committed the delinquent act alleged in the complaint.



Sec. 11.1002  Custody.

    A minor may be taken into custody by a law enforcement officer if:
    (a) The officer observes the minor committing a delinquent act; or
    (b) The officer has reasonable grounds to believe a delinquent act 
has been committed that would be a crime if committed by an adult, and 
that the minor has committed the delinquent act; or
    (c) A warrant pursuant to Sec. 11.1001 has been issued for the 
minor.



Sec. 11.1003  Law enforcement officer's duties.

    A law enforcement officer who takes a minor into custody pursuant to 
Sec. 11.1002 of this part shall:
    (a) Give the following warnings to any minor taken into custody 
prior to any questioning:
    (1) The minor has a right to remain silent;
    (2) Anything the minor says can be used against the minor in court;
    (3) The minor has the right to the presence of counsel during 
questioning; and
    (4) If he or she cannot afford counsel, the court will appoint one.
    (b) Release the minor to the minor's parent, guardian, or custodian 
and issue a verbal advice or warning as may be appropriate, unless 
shelter care or detention is necessary.
    (c) If the minor is not released, make immediate and recurring 
efforts to notify the minor's parents, guardian, or custodian to inform 
them that the minor has been taken into custody and inform them of their 
right to be present with the minor until an investigation to determine 
the need for shelter care or detention is made by the court.



Sec. 11.1004  Detention and shelter care.

    (a) A minor alleged to be a juvenile offender may be detained, 
pending a court hearing, in the following places:
    (1) A foster care facility approved by the tribe;
    (2) A detention home approved by the tribe; or
    (3) A private family home approved by the tribe.
    (b) A minor who is 16 years of age or older may be detained in a 
jail facility used for the detention of adults only if:
    (1) A facility in paragraph (a) of this section is not available or 
would not assure adequate supervision of the minor;
    (2) The minor is housed in a separate room from the detained adults; 
and
    (3) Routine inspection of the room where the minor is housed is 
conducted every 30 minutes to assure his or her safety and welfare.



Sec. 11.1005  Preliminary inquiry.

    (a) If a minor is placed in detention or shelter care, the 
children's court shall conduct a preliminary inquiry within 24 hours for 
the purpose of determining:
    (1) Whether probable cause exist to believe the minor committed the 
alleged delinquent act; and
    (2) Whether continued detention or shelter care is necessary pending 
further proceedings.
    (b) If a minor has been released to the parents, guardian or 
custodian, the children's court shall conduct a preliminary inquiry 
within three days after receipt of the complaint for the sole purpose of 
determining whether probable cause exists to believe the minor committed 
the alleged delinquent act.
    (c) If the minor's parents, guardian or custodian is not present at 
the preliminary inquiry, the children's court shall determine what 
efforts have been made to notify and to obtain the presence of the 
parents, guardian, or custodian. If it appears that further efforts are 
likely to produce the parents, guardian or custodian, the children's 
court shall recess for no more than 24 hours and direct that continued 
efforts be made to obtain the presence of parents, guardian or 
custodian.
    (d) All the rights listed in Sec. 11.906 shall be afforded the 
parties in a preliminary inquiry.
    (e) The children's court shall hear testimony concerning:

[[Page 48]]

    (1) The circumstances that gave rise to the complaint or the taking 
of the minor into custody; and
    (2) The need for detention or shelter care.
    (f) If the children's court finds that probable cause exists to 
believe the minor performed the delinquent act, the minor shall be 
released to the parents, guardian or custodian, and ordered to appear at 
the adjudicatory hearing unless:
    (1) The act is serious enough to warrant continued detention or 
shelter care;
    (2) There is reasonable cause to believe the minor will run away and 
be unavailable for further proceedings; or
    (3) There is reasonable cause to believe that the minor will commit 
a serious act causing damage to person or property.
    (g) The children's court may release a minor pursuant to paragraph 
(f) of this section to a relative or other responsible adult tribal 
member if the parent, guardian, or custodian of the minor consents to 
the release. If the minor is ten years of age or older, the minor and 
the parents, guardian or custodian must both consent to the release.
    (h) Upon a finding that probable cause exists to believe that the 
minor has committed the alleged delinquent act and that there is need 
for detention or shelter care, the minor's detention or shelter care 
shall be continued. Otherwise, the complaint shall be dismissed and the 
minor released.



Sec. 11.1006  Investigation by the presenting officer.

    (a) The presenting officer shall make an investigation following the 
preliminary inquiry or the release of the minor to his or her parents, 
guardian or custodian to determine whether the interests of the minor 
and the public require that further action be taken. Upon the basis of 
this investigation, the presenting officer may:
    (1) Determine that no further action be taken;
    (2) Begin transfer proceedings to the Court of Indian Offenses 
pursuant to Sec. 11.907 of this part; or
    (3) File a petition pursuant to Sec. 11.1007 of this part to 
initiate further proceedings. The petition shall be filed within 48 
hours of the preliminary inquiry if the minor is in detention or shelter 
care. If the minor has been previously released to his or her parents, 
guardian or custodian, relative or responsible adult, the petition shall 
be filed within ten days of the preliminary inquiry.



Sec. 11.1007  Petition.

    (a) Proceedings under Secs. 11.1000-11.1014 of this part shall be 
instituted by a petition filed by the presenting officer on behalf of 
the tribe and in the interests of the minor. The petition shall state:
    (1) The name, birth date, and residence of the minor;
    (2) The names and residences of the minor's parents, guardian or 
custodian;
    (3) A citation to the specific section(s) of this part which gives 
the children's court jurisdiction of the proceedings;
    (4) A citation to the section(s) of this part which the minor is 
alleged to have violated; and
    (5) If the minor is in detention or shelter care, the time the minor 
was taken into custody.



Sec. 11.1008  Date of hearing.

    Upon receipt of the petition, the children's court shall set a date 
for the hearing which shall not be more than 15 days after the 
children's court receives the petition from the presenting officer. If 
the adjudicatory hearing is not held within 15 days after filing of the 
petition, the petition shall be dismissed and cannot be filed again, 
unless;
    (a) The hearing is continued upon motion of the minor; or
    (b) The hearing is continued upon motion of the presenting officer 
by reason of the unavailability of material evidence or witnesses and 
the children's court finds the presenting officer has exercised due 
diligence to obtain the material evidence or witnesses and reasonable 
grounds exist to believe that the material evidence or witnesses will 
become available.

[[Page 49]]



Sec. 11.1009  Summons.

    (a) At least five working days prior to the adjudicatory hearing, 
the children's court shall issue summons to:
    (1) The minor;
    (2) The minor's parents, guardian or custodian; and
    (3) Any person the children's court or the minor believes necessary 
for the adjudication of the hearing.
    (b) The summons shall contain the name of the court, the title of 
the proceedings, and the date, time and place of the hearing.
    (c) A copy of the petition shall be attached to the summons.
    (d) The summons shall be delivered personally by a law enforcement 
officer or appointee of the children's court. If the summons cannot be 
delivered personally, the court may deliver it by certified mail.



Sec. 11.1010  Adjudicatory hearing.

    (a) The children's court shall conduct the adjudicatory hearing for 
the sole purpose of determining the guilt or innocence of the minor. The 
hearing shall be private and closed.
    (b) All the rights listed in Sec. 11.906 shall be afforded the 
parties at the adjudicatory hearing. The notice requirements of 
Sec. 11.906(a) are met by a summons issued pursuant to Sec. 11.1009.
    (c) If the minor admits the allegations of the petition, the 
children's court shall proceed to the dispositional stage only if the 
children's court finds that:
    (1) The minor fully understands his or her rights as set forth in 
Sec. 11.906 of this part and fully understands the potential 
consequences of admitting the allegations;
    (2) The minor voluntarily, intelligently and knowingly admits to all 
facts necessary to constitute a basis for children's court action; and
    (3) The minor has not, in the purported admission to the 
allegations, set forth facts which, if found to be true, constitute a 
defense to the allegations.
    (d) The children's court shall hear testimony concerning the 
circumstances which gave rise to the complaint.
    (e) If the allegations of the petition are sustained by proof beyond 
a reasonable doubt, the children's court shall find the minor to be a 
juvenile offender and proceed to the dispositional hearing.
    (f) A finding that a minor is a juvenile offender constitutes a 
final order for purposes of appeal.



Sec. 11.1011  Dispositional hearing.

    (a) A dispositional hearing shall take place not more than 15 days 
after the adjudicatory hearing.
    (b) At the dispositional hearing, the children's court shall hear 
evidence on the question of proper disposition.
    (c) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the dispositional hearing.
    (d) At the dispositional hearing, the children's court shall 
consider any predisposition report, physician's report or social study 
it may have ordered and afford the parents an opportunity to controvert 
the factual contents and conclusions of the reports. The children's 
court shall also consider the alternative predisposition report prepared 
by the minor and his or her attorney, if any.
    (e) The dispositional order constitutes a final order for purposes 
of appeal.



Sec. 11.1012  Dispositional alternatives.

    (a) If a minor has been adjudged a juvenile offender, the children's 
court may make the following disposition:
    (1) Place the minor on probation subject to conditions set by the 
children's court;
    (2) Place the minor in an agency or institution designated by the 
children's court; or
    (3) Order restitution to the aggrieved party.
    (b) The dispositional orders are to be in effect for the time limit 
set by the children's court, but no order may continue after the minor 
reaches 18 years of age, unless the dispositional order was made within 
six months of the minor's eighteenth birthday or after the minor had 
reached 18 years of age, in which case the disposition may not continue 
for more than six months.
    (c) The dispositional order is to be reviewed at the children's 
court discretion, but at least once every six months.

[[Page 50]]



Sec. 11.1013  Modification of dispositional order.

    (a) A dispositional order of the children's court may be modified 
upon a showing of a change of circumstances.
    (b) The children's court may modify a dispositional order at any 
time upon the motion of the minor or the minor's parents, guardian or 
custodian.
    (c) If the modification involves a change of custody, the children's 
court shall conduct a hearing pursuant to paragraph (d) of this section.
    (d) A hearing to review a dispositional order shall be conducted as 
follows:
    (1) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the hearing to review the dispositional order. The notice 
required by paragraph (a) of Sec. 11.906 shall be given at least 48 
hours before the hearing.
    (2) The children's court shall review the performance of the minor, 
the minor's parents, guardian or custodian, and other persons providing 
assistance to the minor and the minor's family.
    (3) In determining modification of disposition, the procedures 
prescribed in Sec. 11.1011 of this part shall apply.
    (4) If the request for review of disposition is based upon an 
alleged violation of a court order, the children's court shall not 
modify its dispositional order unless it finds clear and convincing 
evidence of the violation.



Sec. 11.1014  Medical examination.

    The children's court may order a medical examination for a minor who 
is alleged to be a juvenile offender.



               Subpart K--Minor-in-Need-of-Care Procedure



Sec. 11.1100  Complaint.

    A complaint must be filed by a law enforcement officer or by the 
presenting officer and sworn to by a person who has knowledge of the 
facts alleged. The complaint shall be signed by the complaining witness 
and shall contain:
    (a) A citation to the specific section of this part which gives the 
children's court jurisdiction of the proceedings;
    (b) The name, age and address of the minor who is the subject of the 
complaint, if known; and
    (c) A plain and concise statement of the facts upon which the 
allegations are based, including the date, time and location at which 
the alleged facts occurred.



Sec. 11.1101  Warrant.

    The children's court may issue a warrant, directing that a minor be 
taken into custody if the children's court finds there is probable cause 
to believe the minor is a minor-in-need-of-care.



Sec. 11.1102  Custody.

    A minor may be taken into custody by a law enforcement officer if:
    (a) The officer has reasonable grounds to believe that the minor is 
a minor-in-need-of-care and that the minor is in immediate danger from 
his or her surroundings and that removal is necessary; or
    (b) A warrant pursuant to Sec. 11.1101 of this part has been issued 
for the minor.



Sec. 11.1103  Law enforcement officer's duties.

    Upon taking a minor into custody the officer shall:
    (a) Release the minor to the minor's parents, guardian or custodian 
and issue a verbal advice or warning as may be appropriate, unless 
shelter care is necessary.
    (b) If the minor is not released, make immediate and recurring 
efforts to notify the minor's parents, guardian or custodian to inform 
them that the minor has been taken into custody and inform them of their 
right to be present with the minor until an investigation to determine 
the need for shelter care is made by the children's court.



Sec. 11.1104  Shelter care.

    (a) A minor alleged to be a minor-in-need-of-care may be detained, 
pending a court hearing, in the following places:
    (1) A foster care facility authorized under tribal or state law to 
provide foster care, group care or protective residence;
    (2) A private family home approved by the tribe; or
    (3) A shelter care facility operated by a licensed child welfare 
services agency and approved by the tribe.

[[Page 51]]

    (b) A minor alleged to be a minor-in-need-of care may not be 
detained in a jail or other facility used for the detention of adults. 
If such minor is detained in a facility used for the detention of 
juvenile offenders, he or she must be detained in a room separate from 
juvenile offenders, and routine inspection of the room where the minor 
is detained must be conducted every 30 minutes to assure his or her 
safety and welfare.



Sec. 11.1105  Preliminary inquiry.

    (a) If a minor is placed in shelter care, the children's court shall 
conduct a preliminary inquiry with 24 hours for the purpose of 
determining:
    (1) Whether probable cause exists to believe the minor is a minor-
in-need-of care; and
    (2) Whether continued shelter care is necessary pending further 
proceedings.
    (b) If a minor has been released to the parents, guardian or 
custodian, the children's court shall conduct a preliminary inquiry 
within three days after receipt of the complaint for the sole purpose of 
determining whether probable cause exists to believe the minor is a 
minor-in-need-of-care.
    (c) If the minor's parents, guardian or custodian is not present at 
the preliminary inquiry, the children's court shall determine what 
efforts have been made to notify and obtain the presence of the parent, 
guardian or custodian. If it appears that further efforts are likely to 
produce the parent, guardian or custodian, the children's court shall 
recess for no more than 24 hours and direct that continued efforts be 
made to obtain the presence of the parents, guardian or custodian.
    (d) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the minor-in-need-of care preliminary inquiry 
except that the court is not required to appoint counsel if the parties 
cannot afford one. Notice of the inquiry shall be given to the minor, 
and his or her parents, guardian or custodian and their counsel as soon 
as the time for the inquiry has been established.
    (e) The children's court shall hear testimony concerning:
    (1) The circumstances that gave rise to the complaint or the taking 
of the minor into custody; and
    (2) The need for shelter care.
    (f) If the children's court finds that probable cause exists to 
believe the minor is a minor-in-need-of-care, the minor shall be 
released to the parents, guardian or custodian, and ordered to appear at 
the adjudicatory hearing, unless:
    (1) There is reasonable cause to believe that the minor will run 
away and be unavailable for further proceedings;
    (2) There is reasonable cause to believe that the minor is in 
immediate danger from parents, guardian or custodian and that removal 
from them is necessary; or
    (3) There is a reasonable cause to believe that the minor will 
commit a serious act causing damage to person or property.
    (g) The children's court may release the minor pursuant to paragraph 
(f) of this section to a relative or other responsible adult tribal 
member if the parents, guardian or custodian of the minor consent to the 
release. If the minor is ten years to age or older, the minor and the 
parents, guardian or custodian must both consent to the release.
    (h) Upon finding that probable cause exists to believe that the 
minor is a minor-in-need-of-care and that there is a need for shelter 
care, the minor's shelter care shall be continued. Otherwise, the 
complaint shall be dismissed and the minor released.



Sec. 11.1106  Investigation by the presenting officer.

    The presenting officer shall make an investigation following the 
preliminary inquiry or the release of the minor to the parents, guardian 
or custodian to determine whether the interests of the minor and the 
public require that further action be taken. Upon the basis of this 
investigation, the presenting officer may:
    (a) Determine that no further action be taken; or
    (b) File a petition pursuant to Sec. 11.1107 of this part in the 
children's court to initiate further proceedings. The petition shall be 
filed within 48 hours of the preliminary inquiry if the

[[Page 52]]

minor is in shelter care. If the minor has been previously released to 
the parents, guardian or custodian, relative or responsible adult, the 
petition shall be filed within ten days of the preliminary inquiry.



Sec. 11.1107  Petition.

    Proceedings under Secs. 11.1100-11.1114 of this part shall be 
instituted by a petition filed by the presenting officer on behalf of 
the tribe and the interests of the minor. The petition shall state:
    (a) The name, birth date, and residence of the minor;
    (b) The names and residences of the minor's parents, guardian or 
custodian;
    (c) A citation to the specific section of this part which gives the 
children's court jurisdiction of the proceedings; and
    (d) If the minor is in shelter care, the place of shelter care and 
the time he or she was taken into custody.



Sec. 11.1108  Date of hearing.

    Upon receipt of the minor-in-need-of-care petition, the children's 
court shall set a date for the hearing which shall not be more than 15 
days after the children's court receives the petition from the 
presenting officer. If the adjudicatory hearing is not held within 15 
days after the filing of the petition, it shall be dismissed unless;
    (a) The hearing is continued upon motion of the minor; or
    (b) The hearing is continued upon motion of the presenting officer 
by reason of the unavailability of material evidence or witnesses and 
the children's court finds the presenting officer has exercised due 
diligence to obtain the material evidence or witnesses and reasonable 
grounds exist to believe that the material evidence or witnesses will 
become available.



Sec. 11.1109  Summons.

    (a) At least five working days prior to the adjudicatory hearing for 
a minor-in-need-of-care, the children's court shall issue summons to:
    (1) The minor;
    (2) The minor's parents, guardian or custodian; and
    (3) Any person the children's court or the minor believes necessary 
for the proper adjudication of the hearing.
    (b) The summons shall contain the name of the court; the title of 
the proceedings, and the date, time and place of the hearing.
    (c) A copy of the petition shall be attached to the summons.
    (d) The summons shall be delivered personally by a tribal law 
enforcement officer or appointee of the children's court. If the summons 
cannot be delivered personally, the court may deliver it by certified 
mail.



Sec. 11.1110  Minor-in-need-of-care adjudicatory hearing.

    (a) The children's court shall conduct the adjudicatory hearing for 
the sole purpose of determining whether the minor is a minor-in-need-of-
care. The hearing shall be private and closed.
    (b) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the adjudicatory hearing, except that the court 
may not appoint counsel if the parties cannot afford one. The notice 
requirements of Sec. 11.906(a) are met by a summons issued pursuant to 
Sec. 11.1109.
    (c) The children's court shall hear testimony concerning the 
circumstances which gave rise to the complaint.
    (d) If the circumstances of the petition are sustained by clear and 
convincing evidence, the children's court shall find the minor to be a 
minor-in-need-of-care and proceed to the dispositional hearing.
    (e) A finding that a minor is a minor-in-need-of-care constitutes a 
final order for purposes of appeal.



Sec. 11.1111  Minor-in-need-of-care dispositional hearing.

    (a) No later than 15 days after the adjudicatory hearing, a 
dispositional hearing shall take place to hear evidence on the question 
of proper disposition.
    (b) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the dispositional hearing except the right to 
free court-appointed counsel. Notice of the hearing shall be given to 
the parties at least 48 hours before the hearing.
    (c) At the dispositional hearing the children's court shall consider 
any predisposition report or other study it

[[Page 53]]

may have ordered and afford the parties an opportunity to controvert the 
factual contents and conclusions of the reports. The children's court 
shall also consider the alternative predisposition report prepared by 
the minor and his or her attorney, if any.
    (d) The dispositional order constitutes a final order for purposes 
of appeal.



Sec. 11.1112  Dispositional alternatives.

    (a) If a minor has been adjudged a minor-in-need-of-care, the 
children's court may:
    (1) Permit the minor to remain with his or her parents, guardian or 
custodian subject to such limitations and conditions as the court may 
prescribe; or, if reasonable efforts to have the minor return or remain 
in his or her own home are unsuccessful, the children's court may make 
whichever of the following dispositions is in the best interest of the 
minor;
    (2) Place the minor with a relative within the boundaries of the 
reservation subject to such limitations and conditions as the court may 
prescribe;
    (3) Place the minor in a foster home within the boundaries of the 
reservation which has been approved by the tribe subject to such 
limitations and conditions as the court may prescribe;
    (4) Place the minor in shelter care facilities designated by the 
court;
    (5) Place the minor in a foster home or a relative's home outside 
the boundaries of the reservation subject to such limitations and 
conditions as the court may prescribe; or
    (6) Recommend that termination proceedings begin.
    (b) Whenever a minor is placed in a home or facility located outside 
the boundaries of the reservation, the court may require the party 
receiving custody of the minor to sign an agreement that the minor will 
be returned to the court upon order of the court.
    (c) The dispositional orders are to be in effect for the time limit 
set by the children's court, but no order may continue after the minor 
reaches 18 years of age, unless the dispositional order was made within 
six months of the minor's eighteenth birthday, in which case the 
disposition may not continue for more than six months.
    (d) The dispositional orders are to be reviewed at the children's 
court discretion, but at least once every six months to determine the 
continuing need for and appropriateness of placement, to determine the 
extent of progress made, and to assess the probability of the minor's 
return to his or her home.
    (e) A permanency planning hearing must be held within 18 months 
after the original placement and every six months thereafter to 
determine the future status of the minor except when the minor is 
returned to his or her home and court supervision ceases.



Sec. 11.1113  Modification of dispositional order.

    (a) A dispositional order of the children's court may be modified 
upon a showing of a change of circumstances.
    (b) The children's court may modify a dispositional order at any 
time upon motion of the minor or the minor's parents, guardian or 
custodian.
    (c) If the modification involves a change of custody, the children's 
court shall conduct a hearing pursuant to paragraph (d) of this section 
to review the dispositional order.
    (d) A hearing to review a dispositional order shall be conducted as 
follows:
    (1) All the rights listed in Sec. 11.906 of this part shall be 
afforded the parties in the review of the disposition hearing except the 
right to free court-appointed counsel. Notice of the hearing shall be 
given the parties at least 48 hours before the hearing.
    (2) The children's court shall review the performance of the minor, 
the minor's parents, guardian or custodian, and other persons providing 
assistance to the minor and the minor's family.
    (3) In determining modification of disposition, the procedures 
prescribed in Sec. 11.1111 of this part shall apply.
    (4) If the request for review of disposition is based upon an 
alleged violation of a court order, the children's court shall not 
modify its dispositional order unless it finds clear and convincing 
evidence of the violation.

[[Page 54]]



Sec. 11.1114  Termination.

    (a) Parental rights to a child may be terminated by the children's 
court according to the procedures in this section.
    (b) Proceedings to terminate parental rights shall be instituted by 
a petition filed by the presenting officer on behalf of the tribe or by 
the parents or guardian of the child. The petition shall state:
    (1) The name, birth date, and residence of the minor;
    (2) The names and residences of the minor's parents, guardian or 
custodian;
    (3) If the child is in detention or shelter care, the place of 
detention or shelter care and the time he was taken into custody; and
    (4) The reasons for the petition.
    (c) Upon receipt of the petition, the children's court shall set a 
date for the termination hearing which shall not be more than 15 days 
after the children's court receives the petition from the presenting 
officer. The hearing may be continued:
    (1) On motion of the minor's parents, guardian or custodian; or
    (2) Upon motion of the presenting officer by reason of the 
unavailability of material evidence or witnesses and the children's 
court finds the presenting officer has exercised due diligence to obtain 
the material evidence or witnesses and reasonable grounds exist to 
believe that the material evidence or witnesses will become available.
    (d) Summons:
    (1) At least five working days prior to the termination hearing, the 
children's court shall issue summons to the minor, the minor's parents, 
guardian or custodian, and any other person the court or the minor's 
parents, guardian or custodian believes necessary for the proper 
adjudication of the hearing.
    (2) The summons shall contain the name of the court, the title of 
the proceedings, and the date, time and place of the hearing.
    (3) A copy of the petition shall be attached to the summons.
    (4) The summons shall be delivered personally by a law enforcement 
officer or appointee of the children's court. If the summons cannot be 
delivered personally, the court may deliver it by certified mail.
    (e) The children's court shall conduct the termination hearing for 
the sole purpose of determining whether parental rights shall be 
terminated. The hearing shall be private and closed.
    (1) All the rights listed in Sec. 11.906 shall be afforded the 
parties in the termination hearing except the right to a free court-
appointed counsel. The minor's parents may not be compelled to be 
witnesses against, nor otherwise incriminate themselves.
    (2) The children's court shall hear testimony concerning the 
circumstances that gave rise to the petition, and the need for 
termination of parental rights.
    (3) The children's court may terminate parental rights if, following 
efforts to prevent or eliminate the need to remove the minor, it finds 
such efforts to have been unsuccessful, and it finds beyond a reasonable 
doubt that:
    (i) The child has been abandoned;
    (ii) The minor has suffered physical injuries, willfully and 
repeatedly inflicted by his or her parent(s) which cause or create a 
substantial risk of death, disfigurement, or impairment of bodily 
functions;
    (iii) The parent(s) has subjected the minor to willful and repeated 
acts of sexual abuse;
    (iv) The minor has suffered serious emotional or mental harm due to 
the act of the parent(s); or
    (v) The voluntary written consent of both parents has been 
acknowledged before the court.
    (f) Dispositional alternatives:
    (1) If parental rights to a child are terminated, the children's 
court shall place the minor in a foster care or shelter care facility 
which has been approved by the tribe, and follow the adoption procedures 
of the tribe, or, in their absence, the adoption procedures of the state 
within which it is located.
    (2) If parental rights to a child are not terminated, the children's 
court shall make a disposition according to Sec. 11.1112 of this part.
    (g) The termination order constitutes a final order for purposes of 
appeal.
    (h) No adjudication of termination of parental rights shall affect 
the minor's enrollment status as a member of any tribe or the minor's 
degree of blood quantum of any tribe.

[[Page 55]]



Sec. 11.1115  Information collection.

    (a) The information collection requirements contained in Sec. 11.600 
and Sec. 11.606 have been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq., and assigned approval number 1076-
0094. The information is being collected to obtain a marriage license 
(Sec. 11.600) and a divorce decree (Sec. 11.606) from the Courts of 
Indian Offenses, and will be used by the courts to issue a marriage 
license or divorce decree. Response to this request is required to 
obtain a benefit.
    (b) Public reporting for this information collection is estimated to 
average .25 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any other aspect of this information collection to 
the Bureau of Indian Affairs, Information Collection Clearance Officer, 
Room 336-SIB, 1849 C Street, NW., Washington, DC 20240; and the Office 
of Information and Regulatory Affairs [Project 1076-0094], Office of 
Management and Budget, Washington, DC 20502.



PART 12--THE INDIAN POLICE--Table of Contents




Sec.
12.100  Superintendent in command.
12.101  Police commissioners.
12.102  Police training.
12.103  Minimum standards for police programs.
12.104  Minimum standards for detention programs.
12.105  Return of equipment.

    Authority: 25 U.S.C. 2, 13.

    Source: 22 FR 10515, Dec. 24, 1957. Redesignated at 58 FR 54411, 
Oct. 21, 1993.



Sec. 12.100  Superintendent in command.

    The superintendent of each Indian reservation shall be recognized as 
commander of the Indian police force and will be held responsible for 
the general efficiency and conduct of the members thereof. It shall be 
the duty of the superintendent, or his duly qualified representative, to 
keep himself informed as to the efficiency of the Indian police in the 
discharge of their duties, to subject them to a regular inspection, to 
inform them as to their duties and keep a strict accounting of the 
equipment issued them in connection with their official duties. It shall 
be the duty of the superintendent to detail such Indian policemen as may 
be necessary to carry out the orders of the Court of Indian Offenses and 
to preserve order during the court sessions. The superintendent shall 
investigate all reports and charges of misconduct on the part of Indian 
policemen and shall exercise such proper disciplinary measures as may be 
consistent with existing regulations. No superintendent of any Indian 
reservation shall assign or detail any member of the Indian police force 
for duty as janitor or chauffeur or for any duty not connected with the 
administration of law and order.



Sec. 12.101  Police commissioners.

    The superintendent of any Indian reservation may, with the approval 
of the Commissioner of Indian Affairs, designate as police commissioner 
any qualified person. Wherever any special or deputy special officer is 
regularly employed in any Indian jurisdiction, he shall be police 
commissioner for that jurisdiction. Such police commissioner shall obey 
the orders of the superintendent of the reservation where employed and 
shall see that the orders of the Court of Indian Offenses are properly 
carried out. The police commissioner shall be responsible to the 
superintendent for the conduct and efficiency of the Indian police under 
his direction and shall give such instruction and advice to them as may 
be necessary. The police commissioner shall also report to the 
superintendent all violations of law or regulation and any misconduct of 
any member of the Indian police.



Sec. 12.102  Police training.

    It shall be the duty of the superintendent to maintain from time to 
time as circumstances require and permit classes of instruction for the 
Indian policemen. Such classes shall familiarize the policemen with the 
manner of making searches and arrests, the proper and humane handling of 
prisoners, the keeping of records of offenses and police activities, and 
with court orders and legal forms and the

[[Page 56]]

duties of the police in relation thereto, and other subjects of 
importance for efficient police duty. It shall further be the purpose of 
the classes to consider methods of preventing crime and of securing 
cooperation with Indian communities in establishing better social 
relations.



Sec. 12.103  Minimum standards for police programs.

    The following minimum standards are required of all law enforcement 
programs that receive funding from the Bureau of Indian Affairs:
    (a) Each law enforcement officer shall be specifically identified as 
such and shall be individually authorized to make arrests and carry 
firearms. Only employees assigned duties as law enforcement officers and 
qualified under paragraph (e) of this section may be authorized to carry 
firearms or make arrests.
    (b) Uniforms, when worn, shall positively identify the wearer as a 
law enforcement officer. Badge, name plate and tribal or Bureau of 
Indian Affairs patch shall be visible at all times. Uniforms of all 
enforcement personnel shall be plainly distinguishable from the uniforms 
of any non-enforcement personnel working on the reservation. Each 
officer shall be issued a standard identification card bearing a 
photograph of the officer.
    (c) A firearm may be discharged only when in the considered judgment 
of the officer there is imminent danger of loss of life or serious 
bodily injury to the officer or to another person. The weapon may be 
fired only for the purpose of rendering the person at whom it is fired 
incapable of continuing the activity prompting the officer to shoot. The 
firing of warning shots is prohibited. This policy does not apply to the 
use of firearms to participate in official marksmanship training or to 
kill a dangerous or seriously injured animal.
    (d) Except in firearms training, each time a firearm is used for law 
enforcement purposes a report shall be filed with the superior of the 
officer who used the weapon. Whenever use of a weapon results in serious 
injury or death of any person, the officer firing the weapon shall be 
placed on administrative leave, or be assigned to strictly 
administrative duties pending a thorough investigation of all 
circumstances surrounding the incident.
    (e) Each law enforcement officer must have attained a score of 70 
percent or better on an approved firearms qualification course within 
the previous six months to be qualified to carry a firearm. Whenever an 
officer's firearms qualification lapses, the officer shall return all 
weapons issued. The following courses are approved firearms 
qualification courses:
    (1) The National Rifle Association National Police Course.
    (2) The National Rifle Association 25-Yard Course.
    (3) The National Rifle Association Practical Pistol Course.
    (4) The Federal Bureau of Investigation Practical Pistol Course.
    (f)(1) Law enforcement officers shall be issued the standard police 
.38 caliber revolver and ammunition. The use of other types of hand guns 
such as automatics, parabellums, or calibers other than the authorized 
.38 caliber is prohibited. The barrel length may be not more than 6 
inches nor less than 4 inches for uniformed personnel, and not less than 
2 inches for plainclothes personnel. Only standard load ammunition may 
be used. Bureau of Indian Affairs officers who carried a .357 Magnum 
revolver while performing law enforcement functions for the Bureau of 
Indian Affairs before July 17, 1972, may be authorized to carry a .357 
Magnum revolver. The Commissioner of Indian Affairs may grant a written 
waiver to permit Bureau of Indian Affairs officers to carry hand guns 
not authorized by this paragraph.
    (2) Each tribe shall specify the type of firearms, ammunition and 
auxiliary equipment to be used by the law enforcement officers of that 
tribe.
    (g)(1) Newly employed patrol officers shall successfully complete 
within their first year of service the approved Basic Police Training 
Course conducted at the Indian Police Academy or a similar course 
substantially meeting or exceeding the level of training provided by the 
Indian Police Academy and approved by the Commissioner of Indian 
Affairs. An officer who fails to complete the training required by this

[[Page 57]]

paragraph shall be discharged or transferred to a position not involving 
law enforcement duties. Transfer may result in demotion.
    (2) Prior to, or within one year after, promotion or appointment to 
a supervisory enforcement position, an employee shall complete the 
approved Supervisory Enforcement Officer Training Course conducted at 
the Indian Police Academy or a similar course substantially meeting or 
exceeding the level of training provided by the Indian Police Academy 
and approved by the Commissioner of Indian Affairs. An officer who is 
serving in a supervisory position and fails to complete the training 
required in this paragraph shall be transferred to a nonsupervisory 
position. Transfer may result in demotion.
    (3) Prior to, or within one year after, promotion or appointment to 
a criminal-investigator position, an officer shall successfully complete 
the Criminal-Investigator Training Course conducted at the Indian Police 
Academy or a similar course substantially meeting or exceeding the level 
of training provided by the Indian Police Academy and approved by the 
Commissioner of Indian Affairs. An officer who is serving in a criminal-
investigator position and fails to complete the training required in 
this paragraph shall be transferred to a noncriminal-investigator 
position. Transfer may result in demotion.
    (4) Prior to, or within one year after, promotion or appointment to 
a supervisory criminal-investigator position, an officer shall 
successfully complete the Executive Management Course of Training 
conducted at the Indian Police Academy or a similar course substantially 
meeting or exceeding the level of training provided by the Indian Police 
Academy approved by the Commissioner of Indian Affairs. An Officer who 
is serving in a supervisory criminal-investigator position and fails to 
complete the training required in this paragraph shall be transferred to 
a nonsupervisory criminal-investigator position. Transfer may result in 
demotion.
    (h) Each law enforcement officer shall receive a minimum of forty 
hours of local in-service training annually to meet training needs 
determined by the tribe and to keep abreast with developments in the 
field of law enforcement.
    (i) The Civil Service Commission accepted Bureau of Indian Affairs 
standards for skill level GS-083 are the minimum entry level 
qualifications for a patrol officer. The Civil Service Commission 
standards for skill level GS-1811 are the minimum entry level 
qualifications for criminal investigators. The standards are available 
for inspection or copying at any Bureau, Agency, Area, or Central 
Personnel Office.
    (j) Salaries paid law enforcement officers by a tribal organization 
under a contract under part 271 of this chapter or by a tribal governing 
body under a grant under part 272 of this chapter shall be equal to or 
greater than the salaries paid officers with similar responsibilities 
employed directly by the Bureau of Indian Affairs.
    (k) Prior to taking an adverse action against any employee, the 
contractor under part 271 of this chapter or grantee under part 272 of 
this chapter shall take the following steps:
    (1) Notify the employee of the contemplated action and give a full 
specification of the reasons such action is contemplated.
    (2) Provide the employee with a written statement of any specific 
violation of rules, regulations, or statutes the contractor or grantee 
alleges the employee has committed and the names of all persons upon 
whose testimony these allegations are based.
    (3) Set a hearing date not less than 15 days after the employee has 
been given the written statement of allegation.
    (4) Provide the employee and the employee's counsel at the hearing 
with an opportunity to confront and cross-examine each adverse witness.
    (5) Provide the employee and the employee's counsel at the hearing 
with an opportunity to delineate issues, to present factual contentions 
in an orderly manner and to generally protect the employee's interest.
    (6) Reconsider the decision to take the adverse action based solely 
on the evidence given at the hearing and provide the employee at the 
time the decision is announced with a written statement of the reasons 
for the decision

[[Page 58]]

and the evidence relied upon in reaching the decision.
    (7) Issue a final order based on the decision reached after the 
hearing.
    (l) After October 1, 1977, the tribe shall require each law 
enforcement officer it employs to adhere to a law enforcement code of 
conduct prescribed by the tribe. The code shall establish specific rules 
concerning conflicts of interest, employee conduct both on and off duty, 
impartiality and thoroughness in performance of duty, and acceptance of 
gifts or favors.
    (m) A contractor under part 271 of this chapter shall use the same 
report forms and submit the same statistical reports to the Central 
Office that are required of Bureau of Indian Affairs police programs.
    (n)(1) When a law enforcement officer receives an oral or written 
allegation that a law enforcement officer employed by a program funded 
by the Bureau of Indian Affairs has violated the civil rights of any 
person, the officer receiving the allegation shall prepare a written 
report of the allegation and transmit it through the chain of command to 
the chief law enforcement officer within seven days of receipt of the 
allegation.
    (2) Not later than seven days after being notified of the 
allegation, the chief law enforcement officer shall take the following 
actions:
    (i) Notify the Federal Bureau of Investigation, the agency 
superintendent or contracting officer's representative, and the tribal 
council. The notice to the Federal Bureau of Investigation shall state 
whether an investigation is being conducted to determine whether tribal 
law was violated and shall cite any relevant provisions of the tribal 
code.
    (ii) If the officer against whom the allegation is made is an 
employee of the Bureau of Indian Affairs, prepare a memorandum to the 
superintendent, who shall, through the area director and the Assistant 
Secretary--Indian Affairs, transmit to the Director, Office of Audit and 
Investigation, a request that the allegation be investigated to 
determine whether any administrative action is warranted. The memorandum 
shall be transmitted through the superintendent and the area director. 
The tribal council shall receive a copy of any such memorandum.
    (iii) If the officer against whom the allegation is made is an 
employee of a tribal contractor, notify both the top Bureau of Indian 
Affairs law enforcement officer assigned to the agency and the tribal 
council. If there is no Bureau of Indian Affairs law enforcement officer 
at the agency, the superintendent and the area special officer shall be 
notified.
    (3) If the chief law enforcement officer is accused of a civil 
rights violation, the report of the allegation shall be transmitted 
directly to the agency superintendent, who shall take the actions 
required by paragraph (n)(2) of this section. If there is no agency 
superintendent, the report of the allegation shall be transmitted 
directly to the area director, who shall take the actions required by 
paragraph (n)(2) of this section.
    (4) As soon as all actions required by paragraphs (n) (1), (2), and 
(3) of this section have been completed, a copy of all documents 
concerning the allegation shall be transmitted to the Chief, Division of 
Law Enforcement Services, in the Central Office.

(5 U.S.C. 301, 25 U.S.C. 2, 450m)

[41 FR 47234, Oct. 28, 1976; 41 FR 51012, Nov. 19, 1976, as amended at 
42 FR 46518, Sept. 16, 1977; 43 FR 16973, Apr. 12, 1978]



Sec. 12.104  Minimum standards for detention programs.

    Each detention program that receives funds from the Bureau of Indian 
Affairs shall meet the following minimum standards:
    (a) No sick or injured person may be booked or held in a detention 
facility unless a medical release has been obtained from a medical 
officer.
    (b) Any inmate requiring medical attention shall be treated as soon 
as possible.
    (c) The jailor or other responsible employee shall maintain control 
over the custody and issue of all medicine to prisoners under treatment 
for chronic ailments to insure proper use and to guard against overdose.
    (d) Routine inspections of all cells shall be conducted every thirty 
(30)

[[Page 59]]

minutes to protect the safety and welfare of prisoners. A record of each 
inspection shall be logged in appropriate records.
    (e) Only persons who have been specifically authorized by the jailor 
to visit a prisoner or prisoners may be allowed in the cell block areas.
    (f) Special attention shall be given to cells occupied by persons 
jailed for intoxication to guard against the infliction of personal 
injury.
    (g) No juvenile may be kept in the same cell with any adult.
    (h) Each prisoner shall be served three nutritionally adequate meals 
a day.
    (i) Each foodhandler shall be given a medical examination and, if 
training in foodhandling is available locally from the Indian Health 
Service, shall complete the foodhandler training offered by the Indian 
Health Service prior to employment.
    (j) All jail facilities including kitchens shall be subject to 
periodic inspections by personnel from the Indian Health Service or 
other appropriate agency to insure proper sanitary conditions.
    (k) The number of persons in each cell may not exceed the number for 
which the cell was designed.
    (l) A record of all visitors shall be maintained indicating date, 
time and identity of each visitor.
    (m) Proper precautions shall be taken to insure the safekeeping of 
property belonging to inmates.
    (n) Prior to, or within six months after, promotion or appointment 
to a position involving detention/jail duties, an employee shall 
successfully complete a Detention/Jail Operations and Management 
Training Course approved by the Commissioner of Indian Affairs. An 
employee who is serving in a position involving detention/jail duties 
and fails to complete the training required by this paragraph shall be 
transferred to a position not involving detention/jail or law 
enforcement duties or discharged. Transfer may result in demotion.

(5 U.S.C. 301, 25 U.S.C. 2, 450k)

[41 FR 47235, Oct. 28, 1976, as amended at 42 FR 46518, Sept. 16, 1977]



Sec. 12.105  Return of equipment.

    Upon the resignation, death or discharge of any member of the Indian 
police all articles or property issued him in connection with his 
official duties must be returned to the superintendent or his 
representative.



PART 13--TRIBAL REASSUMPTION OF JURISDICTION OVER CHILD CUSTODY PROCEEDINGS--Table of Contents




                           Subpart A--Purpose

Sec.
13.1  Purpose.
13.2  Information collection.

                         Subpart B--Reassumption

13.11  Contents of reassumption petitions.
13.12  Criteria for approval of reassumption petitions.
13.13  Technical assistance prior to petitioning.
13.14  Secretarial review procedure.
13.15  Administrative appeals.
13.16  Technical assistance after disapproval.

    Authority: 25 U.S.C. 1952.

    Source: 44 FR 45095, July 31, 1979, unless otherwise noted.



                           Subpart A--Purpose



Sec. 13.1  Purpose.

    (a) The regulations of this part establish the procedures by which 
an Indian tribe that occupies a reservation as defined in 25 U.S.C. 
1903(10) over which a state asserts any jurisdiction pursuant to the 
provisions of the Act of August 15, 1953 (67 Stat. 588) Pub. L. 83-280, 
or pursuant to any other federal law (including any special federal law 
applicable only to a tribe or tribes in Oklahoma), may reassume 
jurisdiction over Indian child custody proceedings as authorized by the 
Indian Child Welfare Act, Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1918.
    (b) On some reservations there are disputes concerning whether 
certain federal statutes have subjected Indian child custody proceedings 
to state jurisdiction or whether any such jurisdiction conferred on a 
state is exclusive of tribal jurisdiction. Tribes located on those 
reservations may wish to exercise exclusive jurisdiction or other 
jurisdiction currently exercised by the

[[Page 60]]

state without the necessity of engaging in protracted litigation. The 
procedures in this part also permit such tribes to secure unquestioned 
exclusive, concurrent or partial jurisdiction over Indian child custody 
matters without relinquishing their claim that no Federal statute had 
ever deprived them of that jurisdiction.
    (c) Some tribes may wish to join together in a consortium to 
establish a single entity that will exercise jurisdiction over all their 
members located on the reservations of tribes participating in the 
consortium. These regulations also provide a procedure by which tribes 
may reassume jurisdiction through such a consortium.
    (d) These regulations also provide for limited reassumptions 
including jurisdiction restricted to cases transferred from state courts 
under 25 U.S.C. 1911(b) and jurisdiction over limited geographical 
areas.
    (e) Unless the petition for reassumption specifically states 
otherwise, where a tribe reassumes jurisdiction over the reservation it 
occupies, any land or community occupied by that tribe which 
subsequently acquires the status of reservation as defined in 25 U.S.C. 
1903(10) also becomes subject to tribal jurisdiction over Indian child 
custody matters.



Sec. 13.2  Information collection.

    The information collection requirement contained in Sec. 13.11 has 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. and assigned clearance number 1076-0112. The information is 
being collected when federally recognized tribes request reassumption of 
jurisdiction over child custody proceedings. The information will be 
used to determine if reassumption of jurisdiction over Indian child 
custody proceedings is feasible. Response is required to obtain a 
benefit.

[53 FR 21994, June 13, 1988]



                         Subpart B--Reassumption



Sec. 13.11  Contents of reassumption petitions.

    (a) Each petition to reassume jurisdiction over Indian child custody 
proceedings and the accompanying plan shall contain, where available, 
the following information in sufficient detail to permit the Secretary 
to determine whether reassumption is feasible:
    (1) Full name, address and telephone number of the petitioning tribe 
or tribes.
    (2) A resolution by the tribal governing body supporting the 
petition and plan. If the territory involved is occupied by more than 
one tribe and jurisdiction is to be reassumed over all Indians residing 
in the territory, the governing body of each tribe involved must adopt 
such a resolution. A tribe that shares territory with another tribe or 
tribes may reassume jurisdiction only over its own members without 
obtaining the consent of the other tribe or tribes. Where a group of 
tribes form a consortium to reassume jurisdiction, the governing body of 
each participating tribe must submit a resolution.
    (3) The proposed date on which jurisdiction would be reassumed.
    (4) Estimated total number of members in the petitioning tribe or 
tribes, together with an explanation of how the number was estimated.
    (5) Current criteria for membership in the tribe or tribes.
    (6) Explanation of procedure by which a participant in an Indian 
child custody proceeding may determine whether a particular individual 
is a member of a petitioning tribe.
    (7) Citation to provision in tribal constitution or similar 
governing document, if any, that authorizes the tribal governing body to 
exercise jurisdiction over Indian child custody matters.
    (8) Description of the tribal court as defined in 25 U.S.C. 1903(12) 
that has been or will be established to exercise jurisdiction over 
Indian child custody matters. The description shall include an 
organization chart and budget for the court. The source and amount of 
non-tribal funds that will be used to fund the court shall be 
identified. Funds that will become available only when the tribe 
reassumes jurisdiction may be included.
    (9) Copy of any tribal ordinances or tribal court rules establishing 
procedures or rules for the exercise of jurisdiction over child custody 
matters.

[[Page 61]]

    (10) Description of child and family support services that will be 
available to the tribe or tribes when jurisdiction reassumed. Such 
services include any resource to maintain family stability or provide 
support for an Indian child in the absence of a family--regardless of 
whether or not they are the type of services traditionally employed by 
social services agencies. The description shall include not only those 
resources of the tribe itself, but also any state or federal resources 
that will continue to be available after reassumption of jurisdiction.
    (11) Estimate of the number of child custody cases expected during a 
year together with an explanation of how the number was estimated.
    (12) Copy of any tribal agreements with states, other tribes or non-
Indian local governments relating to child custody matters.
    (b) If the petition is for jurisdiction other than transferral 
jurisdiction under 25 U.S.C. 1911(b), the following information shall 
also be included in the petition and plan:
    (1) Citation of the statute or statutes upon which the state has 
based its assertion of jurisdiction over Indian child custody matters.
    (2) Clear and definite description of the territory over which 
jurisdiction will be reassumed together with a statement of the size of 
the territory in square miles.
    (3) If a statute upon which the state bases its assertion of 
jurisdiction is a surplus land statute, a clear and definite description 
of the reservation boundaries that will be reestablished for purposes of 
the Indian Child Welfare Act.
    (4) Estimated total number of Indian children residing in the 
affected territory together with an explanation of how the number was 
estimated.



Sec. 13.12  Criteria for approval of reassumption petitions.

    (a) The Assistant Secretary--Indian Affairs shall approve a tribal 
petition to reassume jurisdiction over Indian child custody matters if:
    (1) Any reservation, as defined in 25 U.S.C. 1903(10), presently 
affected by the petition is presently occupied by the petitioning tribe 
or tribes;
    (2) The constitution or other governing document, if any, of the 
petitioning tribe or tribes authorizes the tribal governing body or 
bodies to exercise jurisdiction over Indian child custody matters;
    (3) The information and documents required by Sec. 13.11 of this 
part have been provided;
    (4) A tribal court, as defined in 25 U.S.C. 1903(12), has been 
established or will be established before reassumption and that tribal 
court will be able to exercise jurisdiction over Indian child custody 
matters in a manner that meets the requirements of the Indian Civil 
Rights Act, 25 U.S.C. 1302;
    (5) Child care services sufficient to meet the needs of most 
children the tribal court finds must be removed from parental custody 
are available or will be available at the time of reassumption of 
jurisdiction; and
    (6) The tribe or tribes have established a procedure for clearly 
identifying persons who will be subject to the jurisdiction of the tribe 
or tribes upon reassumption of jurisdiction.
    (b) If the technical assistance provided by the Bureau to the tribe 
to correct any deficiency which the Assistant Secretary--Indian Affairs 
has identified as a basis for disapproving a petition for reassumption 
of exclusive jurisdiction has proved unsuccessful in eliminating 
entirely such problem, the Bureau, at the request of the tribe, shall 
assist the tribe to assert whatever partial jurisdiction as provided in 
25 U.S.C. 1918(b) that is feasible and desired by the tribe. In the 
alternative, the Bureau, if requested by the concerned tribe, shall 
assist the tribe to enter into agreements with a state or states 
regarding the care and custody of Indian children and jurisdiction over 
Indian child custody proceedings, including agreements which may provide 
for the orderly transfer of jurisdiction to the tribe on a case-by-case 
basis or agreements which provide for concurrent jurisdiction between 
the state and the Indian tribe.



Sec. 13.13  Technical assistance prior to petitioning.

    (a) Upon the request of a tribe desiring to reassume jurisdiction 
over Indian child custody matters, Bureau

[[Page 62]]

agency and Area Offices shall provide technical assistance and make 
available any pertinent documents, records, maps or reports in the 
Bureau's possession to enable the tribe to meet the requirements for 
Secretarial approval of the petition.
    (b) Upon the request of such a tribe, to the extent funds are 
available, the Bureau may provide funding under the procedures 
established under 25 CFR 23.22 to assist the tribe in developing the 
tribal court and child care services that will be needed when 
jurisdiction is reassumed.



Sec. 13.14  Secretarial review procedure.

    (a) Upon receipt of the petition, the Assistant Secretary--Indian 
Affairs shall cause to be published in the Federal Register a notice 
stating that the petition has been received and is under review and that 
it may be inspected and copied at the Bureau agency office that serves 
the petitioning tribe or tribes.
    (1) No final action shall be taken until 45 days after the petition 
has been received.
    (2) Notice that a petition has been disapproved shall be published 
in the Federal Register no later than 75 days after the petition has 
been received.
    (3) Notice that a petition has been approved shall be published on a 
date requested by the petitioning tribe or within 75 days after the 
petition has been received--whichever is later.
    (b) Notice of approval shall include a clear and definite 
description of the territory presently subject to the reassumption of 
jurisdiction and shall state the date on which the reassumption becomes 
effective. A copy of the notice shall immediately be sent to the 
petitioning tribe and to the attorney general, governor and highest 
court of the affected State or States.
    (c) Reasons for disapproval of a petition shall be sent immediately 
to the petitioning tribe or tribes.
    (d) When a petition has been disapproved a tribe or tribes may 
repetition after taking action to overcome the deficiencies of the first 
petition.



Sec. 13.15  Administrative appeals.

    The decision of the Assistant Secretary--Indian Affairs may be 
appealed under procedures established in 43 CFR 4.350-4.369.\1\
---------------------------------------------------------------------------

    \1\Sections 4.350-4.369 of 43 CFR part 4, were removed at 46 FR 
7335, Jan. 23, 1981.
---------------------------------------------------------------------------



Sec. 13.16  Technical assistance after disapproval.

    If a petition is disapproved, the Bureau shall immediately offer 
technical assistance to the tribal governing body for the purpose of 
overcoming the defect in the petition or plan that resulted in the 
disapproval.

[[Page 63]]



                          SUBCHAPTER C--PROBATE





PART 15--DETERMINATION OF HEIRS AND APPROVAL OF WILLS, EXCEPT AS TO MEMBERS OF THE FIVE CIVILIZED TRIBES AND OSAGE INDIANS--Table of Contents




    Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended, 
sec. 1, 38 Stat. 588, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 
1021, 1022; 25 U.S.C. 372, 373, 374, 373a, 373b.



Sec. 15.1  Cross reference.

    For special rules applicable to proceedings in Indian Probate 
(Determination of Heirs and Approval of Wills, Except as to Members of 
the Five Civilized Tribes and Osage Indians), including hearings, and 
appeals relating to such matters within the jurisdiction of the Board of 
Indian Appeals, Office of Hearings and Appeals, see subpart D of part 4 
of subtitle A--Office of the Secretary of the Interior, of title 43 of 
the Code of Federal Regulations, subpart A of part 4 and all of the 
general rules in subpart B of part 4, not inconsistent with the special 
rules in subpart D of part 4 are also applicable to such Indian probate 
proceedings.

[36 FR 7184, Apr. 15, 1971]



PART 16--ESTATES OF INDIANS OF THE FIVE CIVILIZED TRIBES--Table of Contents




Sec.
16.1  Definitions.
16.2  Scope of regulations.
16.3  Legal representation in State courts.
16.4  Exchange of information within the Department.
16.5   Acceptance and acknowledgement of service of process.
16.6  Authority of attorneys in State court litigation.
16.7  Performance of Federal functions by successor State courts.
16.8  Summary distribution of small liquid estates.
16.9  Escheat of estates of decedents.

    Authority: 5 U.S.C. 301 (Interprets or applies Act of Apr. 26, 1906, 
ch. 1876, 34 Stat. 137, see 25 U.S.C. 355nt (1970); Act of May 27, 1908, 
ch. 199, 35 Stat. 312, see 25 U.S.C. 355nt (1970); Act of June 14, 1918, 
ch. 101, 40 Stat. 606, 25 U.S.C. 355, 375 (1970); Act of Apr. 12, 1926, 
ch. 115, 44 Stat. 239, see 25 U.S.C. 355nt (1970); Act of June 26, 1936, 
ch. 831, 49 Stat. 1967, 25 U.S.C. 501-509 (1970); Act of Aug. 4, 1947, 
ch. 458, 61 Stat. 731, 25 U.S.C. 502 (1970) and see 25 U.S.C. 355nt 
(1970); Act of Aug. 12, 1953, ch. 409, 67 Stat. 558, 25 U.S.C. 375c 
(1970) and see 25 U.S.C. 355nt (1970); Act of Aug. 11, 1955, ch. 786, 69 
Stat. 666, see 25 U.S.C. 355nt (1970); Act of Aug. 29, 1967, Pub. L. 90-
76, 81 Stat. 177, 25 U.S.C. 786-788 (1970); and Act of May 7, 1970, Pub. 
L. 91-240, 84 Stat. 203, 25 U.S.C. 375d (1970)).

    Source: 37 FR 7082, Apr. 8, 1972, unless otherwise noted.



Sec. 16.1  Definitions.

    (a) The term Secretary means the Secretary of the Interior and his 
authorized representatives.
    (b) The term Bureau means the Bureau of Indian Affairs, acting 
through the Commissioner of Indian Affairs and his authorized 
representatives, including field officials who are responsible for 
matters affecting properties in which a restricted interest is owned by 
an Indian of the Five Civilized Tribes.
    (c) The term Field Solicitor means the Regional Solicitor, Southwest 
Region, Page Belcher Federal Building, P.O. Box 3156, Tulsa, Oklahoma 
74101.
    (d) The term Indian of the Five Civilized Tribes means an individual 
who is either an enrolled member of the Cherokee, Chickasaw, Choctaw, 
Creek, or Seminole Tribes of Oklahoma, or a descendant of an enrolled 
member thereof.
    (e) The term restricted interest means an interest owned in real or 
personal property subject to restraints upon alienation imposed either 
by Federal statute or by administrative action authorized by Federal 
statute. Although this term includes property subject to restraints 
which may be removed by administrative action, its use in this part 
refers primarily to property subject to restraints which State courts 
have jurisdiction to remove in proceedings such as those specified in 
Sec. 16.2.

[37 FR 7082, Apr. 8, 1972, as amended at 50 FR 12529, Mar. 29, 1985]

[[Page 64]]



Sec. 16.2  Scope of regulations.

    The regulations in this part set forth procedures for discharging 
the responsibilities of the Secretary in connection with the performance 
by State courts, as authorized by Federal statutes, of certain functions 
which affect properties in which a restricted interest is owned by an 
Indian of the Five Civilized Tribes. These State court functions pertain 
to such proceedings as guardianship, heirship determination, will 
probate, estate administration, conveyance approval, partition of real 
property, confirmation of title to real property, and appeal from action 
removing or failing to remove restrictions against alienation. In 
addition, the regulations in this part set forth procedures for 
discharging certain other responsibilities of the Secretary not 
necessarily involving State court functions, such as escheat of estates 
of deceased Indians of the Five Civilized Tribes.



Sec. 16.3  Legal representation in State courts.

    The statutory duties of the Secretary to furnish legal advice to any 
Indian of the Five Civilized Tribes, and to represent such Indian in 
State courts, in matters affecting a restricted interest owned by such 
Indian, shall be performed by attorneys on the staff of the Solicitor, 
under the supervision of the Field Solicitor. Such advice and 
representation shall be undertaken to the extent that the Field 
Solicitor in his discretion shall consider necessary to discharge said 
duties, with due regard to the complexity of the legal action 
contemplated, the availability of staff attorneys for such purposes, the 
value and extent of the restricted interests involved, possible 
conflicts between Indians claiming to be owners of such interests, the 
preference of such owners concerning legal representation, the financial 
resources available to such owners, the extent to which such owners 
require similar legal services in connection with their unrestricted 
properties, and any other factor appropriate for consideration.



Sec. 16.4  Exchange of information within the Department.

    To the extent that information may be useful in discharging the 
duties covered by the regulations in this part, the Bureau shall furnish 
to the Field Solicitor, either on a current basis or at periodic 
intervals, processes and notices received concerning court cases and 
information, as current and complete as may reasonably be obtainable, 
concerning the estate and status of an Indian of the Five Civilized 
Tribes for whom legal assistance should be rendered pursuant to the 
regulations in this part. Similarly, to the extent that such information 
may be useful for Bureau action or records, the Field Solicitor shall 
advise the Bureau of court proceedings, information received, and action 
taken in furnishing legal services pursuant to the regulations in this 
part.



Sec. 16.5  Acceptance and acknowledgement of service of process.

    Service by the Field Solicitor or any other person of any process or 
notice, pursuant to any Federal statute which by its express terms is 
applicable to Indians of the Five Civilized Tribes, may be accepted and 
acknowledged by the Field Solicitor, or by any attorney authorized to 
perform the duties specified in Sec. 16.3, on behalf of the Secretary 
and the Bureau, notwithstanding any specific designation in such statute 
of the official to be served (such as the Secretary, superintendent for 
the Five Civilized Tribes, Probate Attorney, etc.).



Sec. 16.6  Authority of attorneys in State court litigation.

    Attorneys authorized to perform the duties specified in Sec. 16.3 
appearing in State court litigation in their official capacities are 
authorized to take such action as the Secretary could take if he were 
personally appearing in his official capacity as counsel therein, 
including but not limited to the filing or decision against filing of 
initial, responsive, or supplemental pleadings and appeals from adverse 
judgments, the exercise or decision against exercise of a preferential 
right to purchase property subject to sale, the removal or decision 
against removal of actions

[[Page 65]]

to Federal courts, and the waiver or decision against waiver of the 
failure to make timely service of process or notice.



Sec. 16.7  Performance of Federal functions by successor State courts.

    All authority to perform functions relating to Indians of the Five 
Civilized Tribes which by express provisions of Federal statute had been 
conferred upon probate or county courts of Oklahoma before such county 
courts were abolished on January 12, 1969, has since that date been 
vested in the successor district courts of that State, and all rights of 
litigants continue undiminished in the successor forum, including the 
right to appeal from adverse decisions rendered therein to the successor 
appellate court.

(Interprets or applies Okla. Op. Atty. Gen. No. 68-381 (Dec. 20, 1968))



Sec. 16.8  Summary distribution of small liquid estates.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes contains no restricted land but consists of a 
restricted interest in funds not exceeding $500 on deposit to the credit 
of the decedent, the Field Solicitor shall, in the absence of any final 
decree determining the heirs or legatees of the decedent, prepare and 
furnish to the Bureau a finding and order of distribution, based on 
affidavit or other proof of death and heirship or bequest, setting forth 
the facts of death and heirship or bequest and the amount payable from 
the estate to each person determined to be an heir or legatee of the 
decedent. The Field Solicitor shall mail to each person considered a 
possible claimant to any portion of the estate, as an heir or legatee or 
otherwise, a copy of the order with a notice that the order shall become 
final 30 days after the date of mailing thereof unless within that 
period the officer by whom the order was signed shall have received a 
written request for reconsideration of the order. After final action on 
any order has been taken by the Field Solicitor, the Bureau shall 
distribute the funds in the estate of the decedent in accordance with 
such final action, unless a timely appeal therefrom has been filed in 
accordance with part 2 of this title.



Sec. 16.9  Escheat of estates of decedents.

    Where information, furnished by the Bureau pursuant to Sec. 16.4 or 
otherwise obtained, reveals that the estate of a deceased Indian of the 
Five Civilized Tribes, who has been dead 5 or more years after having 
died intestate without heirs, consists of restricted interests in lands 
or rents or profits therefrom, the Field Solicitor shall, in the absence 
of any final decree determining that the decedent died without heirs or 
devisees, prepare and furnish to the Bureau a finding and order of 
escheat, based on affidavit or other proof of intestate death without 
heirs, setting forth the restricted interests in lands or rents or 
profits therefrom which have by escheat vested in the tribe which 
allotted the lands. The Field Solicitor shall mail to each person 
considered a possible claimant to any portion of the estate, as an heir 
or devisee or otherwise, a copy of the order with a notice that the 
order shall become final 30 days after the date of mailing thereof 
unless within that period the officer by whom the order was signed shall 
have received a written request for reconsideration of the order. After 
final action on any order has been taken by the Field Solicitor, the 
Bureau shall cause a certified copy thereof to be filed in the land 
records of each county within which are located any escheated lands 
described therein and shall cause the tribe to be credited with any 
funds in said estate which arose from rents or profits from such lands, 
unless a timely appeal therefrom has been filed in accordance with part 
2 of this title.



PART 17--ACTION ON WILLS OF OSAGE INDIANS--Table of Contents




Sec.
17.1  Definitions.
17.2  Attorneys.
17.3  Pleadings, notice and hearings.
17.4  Service on interested parties.
17.5  Minors represented at hearings.
17.6  Examination of witness.
17.7  Limiting number of witnesses.
17.8  Supplemental hearing.
17.9  Briefs.

[[Page 66]]

17.10  Record.
17.11  Inspection of wills and approval as to form during testator's 
          lifetime.
17.12  Approval.
17.13  Government employees as beneficiaries.
17.14  Appeals.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10530, Dec. 24, 1957, unless otherwise noted.



Sec. 17.1  Definitions.

    When used in the regulations in this part the following words or 
terms shall have the meaning shown below:
    (a) Secretary means the Secretary of the Interior.
    (b) Commissioner means the Commissioner of Indian Affairs.
    (c) Superintendent means the superintendent of the Osage Indian 
Agency.
    (d) Special attorney means the special attorney for Osage Indians, 
or other legal officer designated by the Commissioner.



Sec. 17.2  Attorneys.

    Interested parties may appear in person or by attorneys at law. 
Attorneys must file written authority to appear for their clients in the 
proceedings.



Sec. 17.3  Pleadings, notice and hearings.

    (a) The petition for approval of the will of a deceased Osage Indian 
may be set down for hearing at a date not less than 30 days from the 
date the petition is filed. Hearings shall be conducted only after 
notice of the time and place of such hearings shall have been given by 
mail. The notice shall be mailed not less than 10 days preceding the 
date of the hearing and shall state that the special attorney will, at 
the time and place specified therein, take testimony to determine 
whether the will of the deceased Osage Indian shall be approved or 
disapproved. The notice shall list the presumptive heirs of the decedent 
and the beneficiaries under such will, and shall notify the attesting 
witnesses to be present and testify. It shall state that all persons 
interested in the estate of the decedent may be present at the hearing. 
The notice shall further state that the special attorney may, in his 
discretion, continue the hearing to another time or place to be 
announced at the original hearing.
    (b) Any interested party desiring to contest approval of the will 
may, not less than 5 days before the date set for hearing, file written 
objections in triplicate, showing that a copy thereof was served upon 
attorneys for the proponent and other attorneys of record in the case. 
Such contestant shall clearly state the interest he takes under the will 
and, if a presumptive heir, the interest he would take under the 
Oklahoma law. The contestant shall further state specifically the ground 
on which his contest is based.



Sec. 17.4  Service on interested parties.

    A copy of the notice of hearing shall be served by mail, at his last 
known place of residence, on each presumptive heir; each beneficiary 
under the will offered for consideration; and each attesting witness 
thereto. Such notice must be mailed not less than 10 days preceding the 
date set for the hearing.



Sec. 17.5  Minors represented at hearings.

    Minor heirs at law, who by the terms of the will are devised a 
lesser interest in the estate than they would take by descent, of whose 
interests are challenged, shall, with the approval of the special 
attorney, be represented at the hearing by guardians ad litem. Such 
minors 14 years of age or over may indicate in writing their choice of 
guardians ad litem. If no such choice has been indicated on the date of 
the hearing, the special attorney shall make the selection and 
appointment.



Sec. 17.6  Examination of witness.

    All testimony taken at the hearing shall be reduced to writing. Any 
interested party may cross-examine any witness. Attorneys and others 
will be required to adhere to the rules of evidence of the State of 
Oklahoma. If, in addition to oral testimony, affidavits or dispositions 
are introduced, they must be read, and any opposing claimant may require 
the presence of the affiant, if practicable, either at that or a 
subsequent hearing, and opportunity shall be given for cross-examination 
or for having counter interrogatories answered.

[[Page 67]]



Sec. 17.7  Limiting number of witnesses.

    When the evidence seems clear and conclusive, the special attorney 
may, in his discretion, limit the number of witnesses to be examined 
formally upon any matter.



Sec. 17.8  Supplemental hearing.

    When it appears that a supplemental hearing is necessary to secure 
material evidence, such a hearing may be conducted after notice has been 
given to those persons on whom notice of the original hearing was served 
and to such other persons as the testimony taken at the original hearing 
indicates may have a possible interest in the estate.



Sec. 17.9  Briefs.

    When there are two or more parties with conflicting interests, the 
party upon whom the burden of proof may fall may be allowed a reasonable 
time, not to exceed 30 days following the conclusion of the hearing, in 
which to file a brief or other statement of his contentions, showing 
service on opposing counsel or litigant. The latter shall then be 
allowed not to exceed 20 days in which to file an answer brief or 
statement, and his opponent shall have 10 days thereafter to file a 
reply brief or statement. Upon proper showing the special attorney may 
grant extensions of time. Each brief or statement shall be filed in 
duplicate.



Sec. 17.10  Record.

    After the hearing or hearings on the will have been terminated the 
special attorney shall make up the record and transmit it with his 
recommendation to the superintendent. The record shall contain:
    (a) Copy of notices mailed to the attesting witnesses and the 
interested parties.
    (b) Proof of mailing of notices.
    (c) The evidence received at the hearing or hearings.
    (d) The original of the will or wills considered at the hearings.
    (e) A copy of all the pleadings.

The record, except the original will, shall be a part of the permanent 
files of the Osage Agency.



Sec. 17.11  Inspection of wills and approval as to form during testator's lifetime.

    When a will has been executed and filed with the superintendent 
during the lifetime of the testator, the will shall be considered by the 
special attorney who may endorse on such will ``approved as to form.'' A 
will shall be held in absolute confidence and its contents shall not be 
divulged prior to the death of the testator.



Sec. 17.12  Approval.

    After hearings have been concluded in conformity with this part the 
superintendent shall approve or disapprove the wills of deceased Osage 
Indians.



Sec. 17.13  Government employees as beneficiaries.

    In considering the will of a deceased Osage Indian the 
superintendent may disapprove any will which names as a beneficiary 
thereunder a government employee who is not related to the testator by 
blood, or otherwise the natural object of the testator's bounty.



Sec. 17.14  Appeals.

    (a) Notwithstanding the provisions in part 2 of this chapter 
concerning appeals generally from administrative actions, any appeal 
from the action of the superintendent of approving or disapproving a 
will shall be taken to the Secretary. Upon the superintendent's final 
action of approval or disapproval of a will, he shall immediately notify 
by mail all attorneys appearing in the case, together with interested 
parties who are not represented by attorneys, of his decision and of 
their right to file an appeal.
    (b) Any party desiring to appeal from the action of the 
superintendent shall, within 15 days after the date of the mailing of 
notice of the decision file with the superintendent a notice in writing 
of his intention to appeal to the Secretary, and shall, within 30 days 
after the mailing date of such notice by the superintendent, perfect his 
appeal to the Secretary by service of the appeal upon the superintendent 
who will transmit the entire record to the Secretary. If no notice of 
intention to appeal is given within 15 days, the superintendent's 
decision will be final.

[[Page 68]]

    (c) Upon the filing of notice with the superintendent of intention 
to appeal or the perfecting of an appeal by service upon the 
superintendent, at the same time similar notice and service shall be 
effected by the party taking an appeal upon opposing counsel or 
litigants, and a statement included in the appeal that this has been 
done. A party taking an appeal may, within the same 30-day period 
allowed for perfecting an appeal, file a brief or other written 
statement of his contentions, showing also service of that brief upon 
opposing counsel or litigants. Opposing counsel or litigants shall have 
30 days from the date of the service of appellant's brief upon them in 
which to file an answer brief, copies of which also shall be served upon 
the appellant or opposing counsel and litigants. Except by special 
permission, no other briefs will be allowed on appeal.

[26 FR 10930, Nov. 22, 1961]

[[Page 69]]



                      SUBCHAPTER D--HUMAN SERVICES





PART 20--FINANCIAL ASSISTANCE AND SOCIAL SERVICES PROGRAM--Table of Contents




               Subpart A--Definitions, Purpose and Policy

Sec.
20.1  Definitions.
20.2  Purpose.
20.3  Policy.
20.4  Information collection.

                  Subpart B--Administrative Procedures

20.10  Application for assistance or services.
20.11  Securing information.
20.12  Decision.
20.13  Written notice of proposed decision.
20.14  Adjusting incorrect payments.

                    Subpart C--Eligibility Conditions

20.20  General.
20.21  General assistance.
20.22  Child welfare assistance.
20.23  Miscellaneous assistance.
20.24  Family and community services.
20.25  Consultation with tribes.

                     Subpart D--Hearings and Appeals

20.30  Hearings and appeals.

    Authority: 25 U.S.C. 13; Sec. 20.21 also issued under Pub. L. 98-
473.

    Source: 42 FR 6568, Feb. 2, 1977, unless otherwise noted.



               Subpart A--Definitions, Purpose and Policy



Sec. 20.1  Definitions.

    (a) Appeal means a written request for correction of an action or 
decision claimed to violate a person's legal rights or privileges as 
provided in part 2 of this chapter.
    (b) Applicant means an individual or persons on whose behalf an 
application for assistance and/or services has been made under the part.
    (c) Application means the process through which a request is made 
for assistance or services.
    (d) Area Director means the Bureau official in charge of an Area 
Office.
    (e) Authorized representative means a parent or other caretaker 
relative, conservator, legal guardian, foster parent, attorney, 
paralegal acting under the supervision of an attorney, friend or other 
spokesperson acting on behalf or representing the applicant or 
recipient.
    (f) Bureau means the Bureau of Indian Affairs, U.S. Department of 
the Interior.
    (g) Child means a person under the age of 18 or such other age of 
majority as may be established for purposes of parental support by 
tribal or state law (if any) applicable to the person at his or her 
residence, except that no person who has been emancipated by marriage 
shall be deemed a child.
    (h) Child welfare assistance means financial assistance provided on 
behalf of an Indian child, or an Indian under age 22 if assistance was 
initiated before age 18, who requires placement in a foster home or 
specialized non-medical care facility in accordance with standards of 
payments established by the State pursuant to the foster care program 
under title IV of the Social Security Act (49 Stat. 620) or who has need 
of special services not available under general assistance.
    (i) Commissioner means the Commissioner of Indian Affairs.
    (j) Designated representative means an official of the Bureau 
designated by a Superintendent to hold a hearing as prescribed in 
Sec. 20.30 and who has had no prior involvement in the proposed decision 
under Sec. 20.12 and whose hearing decision under Sec. 20.30 shall have 
the same force and effect as if rendered by the Superintendent.
    (k) Family and community services means social services, including 
protective services, usually not including money payments, provided 
through the social work skills of casework, group work or community 
development to solve social problems involving children, adults or 
communities.
    (l) Foster care service means those social services provided when an 
Indian person lives away from the family home.
    (m) BIA general assistance is a secondary or residual source of 
assistance for eligible Indian people and means financial aid payments 
to eligible Indian individuals and households for assistance in meeting 
the cost of essential needs.

[[Page 70]]

    (n) Indian means any person who is a member, or a one-fourth degree 
or more blood quantum descendant of a member of any Indian tribe.
    (o) Indian court means Indian tribal court or court of Indian 
offenses.
    (p) Indian tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony, or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688) which is 
federally recognized as eligible by the U.S. Government for the special 
programs and services provided by the Secretary to Indians because of 
their status as Indians.
    (q) Miscellaneous assistance means a financial payment made for 
burial services, to facilitate the provision of emergency food or 
disaster programs, or for other financial needs not defined in this part 
but related to assistance for needy Indians.
    (r) Near reservation means those areas or communities adjacent or 
contiguous to reservations which are designated by the Commissioner upon 
recommendation of the local Bureau Superintendent, which recommendation 
shall be based upon consultation with the tribal governing body of those 
reservations, as locales appropriate for the extension of financial 
assistance and/or social services, on the basis of such general criteria 
as: (1) Number of Indian people native to the reservation residing in 
the area, (2) a written designation by the tribal governing body that 
members of their tribe and family members who are Indian residing in the 
area, are socially, culturally and economically affiliated with their 
tribe and reservation, (3) geographical proximity of the area to the 
reservation, and (4) administrative feasibility of providing an adequate 
level of services to the area. The Commissioner shall designate each 
area and publish the designations in the Federal Register.
    (s) Need means the deficit after consideration of income and other 
liquid assets necessary to meet the cost of basic need items and special 
need items as defined by the Bureau standard of assistance for the State 
in which the applicant or recipient resides.
    (t) Public assistance means those programs of assistance provided 
under title IV of the Social Security Act (49 Stat. 620), as amended, 
and includes the Aid to Families with Dependent Children (AFDC) Program 
provided under title IV-A.
    (u) Recipient means an individual or persons who have been 
determined as eligible and are receiving financial assistance or 
services under this part.
    (v) Reservation means any federally recognized Indian tribe's 
reservation, Pueblo, or Colony, including former reservations in 
Oklahoma, Alaska Native regions established pursuant to the Alaska 
Native Claims Settlement Act (85 Stat. 688), and Indian allotments.
    (w) Resources means income and other liquid assets available to an 
Indian person or household to meet current living costs, unless 
otherwise specifically excluded by Federal statute. Liquid assets are 
those properties in the form of cash or other financial instruments 
which can be converted to cash, such as savings or checking accounts, 
promissory notes, mortgages and similar properties.
    (x) Secretary means the Secretary of the Interior.
    (y) Superintendent means the Bureau official in charge of an agency 
office.
    (z) Supplemental Security Income means those programs of assistance 
provided under title XVI of the Social Security Act (49 Stat. 620), as 
amended.
    (aa) Traditional Indian country means the State of Oklahoma except 
Oklahoma City and non-trust land in the city of Tulsa.
    (bb) Tribal governing body means the recognized governing body of an 
Indian tribe.
    (cc) Essential needs include at a minimum shelter, food, clothing 
and utilities, but do not include needs, except for burial expenses, 
beyond those basic and special needs included in the Bureau standard of 
assistance for the State where the Indian individual or household lives.
    (dd) Household means persons living together with the head of 
household who may be related or unrelated to the head of household and 
who function as members of the family.

[[Page 71]]

    (ee) Tribal Work Experience Program (TWEP) means a program operated 
by tribal contract which provides eligible participants with work 
experience and training that promotes and preserves work habits and 
develops work skills.
    (ff) Recipient means an individual to whom or for whom a BIA general 
assistance payment is made for the month.
    (gg) Case includes all individuals in the household as defined in 
Sec. 20.1(dd) whose needs are included in the BIA general assistance 
payment made for the month.

(25 U.S.C. 2 and 9)

[42 FR 6568, Feb. 2, 1977, as amended at 50 FR 39928, Sept. 30, 1985]



Sec. 20.2  Purpose.

    The regulations in this part govern the provision of general 
assistance, child welfare assistance, miscellaneous assistance and 
family and community services to eligible Indians.



Sec. 20.3  Policy.

    When assistance or services are not available or not being provided 
by state, local, or other agencies, general assistance, child welfare 
assistance, miscellaneous assistance and family and community services 
shall be provided for eligible Indians by the Bureau in a manner 
designed to promote personal and family unity and economic and social 
stability, working toward attainment of self-sufficiency.



Sec. 20.4  Information collection.

    The information collection requirements contained in Secs. 20.10, 
20.11, 20.22, 20.23, and 20.24 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq. and assigned 
clearance number 1076-0017. The information is collected to determine 
applicant eligibility for services. The information will be used to 
determine eligibility and to insure uniformity of services. Response is 
required to obtain a benefit.

[53 FR 21994, June 13, 1988]



                  Subpart B--Administrative Procedures



Sec. 20.10  Application for assistance or services.

    (a) Written or oral applications by or on behalf of any individual 
or group will be accepted for assistance or services under this part. In 
addition to applications from persons desiring assistance or services, 
referrals will be accepted directly from relatives, interested 
individuals, social welfare agencies, law enforcement agencies, courts 
and others.
    (b) Applications for assistance or services under this part shall be 
made to the Superintendent or an official representative. All 
applications for assistance shall ultimately be reduced to a written 
form. However, a written statement by an appropriate representative of 
the Bureau social services program as to why protective social services 
under Sec. 20.24(b)(2) were provided may be accepted in lieu of a 
written application.



Sec. 20.11  Securing information.

    (a) The applicant will be the primary source of information 
regarding his circumstances for the purpose of determining eligibility 
and need. If it is necessary to secure information from other sources, 
the applicant will be asked to authorize the release of information. The 
applicant will be informed, in advance, of the kinds of information 
needed, the source to be used, and that the information obtained will be 
used only in connection with the application for assistance or services 
under this part or as otherwise required by law.
    (b) Recipients shall be required to make timely and accurate reports 
of any change in circumstances which may affect their eligibility or the 
amount of financial assistance.



Sec. 20.12  Decision.

    (a) Action on an application for assistance shall consist of the 
following:
    (1) The application shall be approved if the applicant meets the 
appropriate eligibility criteria set forth in subpart C of this part for 
the type of assistance

[[Page 72]]

requested, and financial assistance may be retroactive, as appropriate, 
to the date of application.
    (2) The application shall be denied if the applicant does not meet 
the appropriate eligibility criteria set forth in subpart C of this part 
for the type of assistance requested.
    (3) Action to approve or deny an application shall be made within 30 
days of the date of the application, or if not the applicant shall be 
notified in writing of the reasons why such a decision cannot be made, 
but in no event shall any application be held pending beyond 45 days of 
the date of the application.
    (b) As appropriate, other decision actions include the following:
    (1) To increase or decrease the amount of recipient's financial 
assistance pursuant to the eligibility criteria set forth in subpart C 
of this part.
    (2) To suspend or terminate recipient's financial assistance 
pursuant to the eligibility criteria set forth in subpart C of this 
part.



Sec. 20.13  Written notice of proposed decision.

    Written notice of all proposed decisions shall be mailed or hand 
delivered to the applicant or recipient which clearly and completely 
advise of their legal rights to contest any adverse proposed decision as 
set forth in Sec. 20.30 or under part 2 of this chapter and shall 
further consist of the following:
    (a) A statement of the action being taken, the effective date, and 
the reasons for the decision.
    (b) If the action is to reduce, suspend, or terminate financial 
assistance to the recipient, the written notice shall be provided to the 
recipient 20 days in advance of the proposed effective date.
    (c) Shall advise the applicant or recipient of his right to request 
a hearing if dissatisfied with the proposed decision.
    (d) Shall advise the applicant or recipient of his right to be 
represented by an authorized representative at no expense to the Bureau.
    (e) Shall advise the applicant or recipient that failure to request 
a hearing within the 20 day period following the date of notice of 
proposed decision will cause the proposed decision to become final 
subject to appeal under part 2 of this chapter, and that the decision 
will not be disturbed except for fraud or gross irregularity or where 
found by higher authority that failure to appeal on the part of the 
applicant or recipient would result in inequity or injustice to the 
parties.



Sec. 20.14  Adjusting incorrect payments.

    (a) When the Bureau finds that an incorrect payment of financial 
assistance has been made to an individual or family, proper adjustment 
or recovery shall be required, based upon individual need as appropriate 
to the circumstances that resulted in an incorrect payment. However, 
prior to adjustment or recovery by the Bureau, the recipient shall be 
notified of the proposal to correct the payment and given an informal 
opportunity to resolve the matter. If an informal resolution cannot be 
attained the recipient is entitled to a written notice of decision, and 
a hearing if requested, in accordance with Secs. 20.12, 20.13 and 20.30. 
Unless a hearing is requested or an appeal made, the proposed decision 
shall become final within 20 days after written notice is mailed or 
delivered to the recipient.
    (b) Applicants and recipients who knowingly and willfully provide 
the Bureau with false, fictitious or fraudulent information are subject 
to prosecution under 18 U.S.C. 1001, which carries a fine of not more 
than $10,000 or imprisonment for not more than five years, or both.



                    Subpart C--Eligibility Conditions



Sec. 20.20  General.

    (a) Basic eligibility conditions shall be:
    (1) The applicant must be an Indian, except that in the States of 
Alaska and Oklahoma a one-fourth degree or more Indian or Native blood 
quantum will be an additional eligibility requirement; and
    (2) The applicant must reside on a reservation; or
    (3) The applicant must reside near reservation as specifically 
defined in Sec. 20.1(r) and be a member of the tribe that requested 
designation of the near reservation service area.

[[Page 73]]

    (b) The applicant must further meet the additional eligibility 
requirements for each of the specific programs of assistance or services 
as set forth in Secs. 20.21 through 20.24 in order to be eligible for 
assistance or services under that program.
    (c) Upon written request of an appropriate tribal governing body or 
the appropriate Bureau line official, the Deputy Assistant Secretary may 
authorize emergency short-term assistance and services to Indians, not 
otherwise eligible under this part, who reside on a reservation or in 
designated near-reservation areas, when necessary to meet need as 
defined at Sec. 20.21(s) and prevent hardship caused by fire, flood or 
acts of nature.

[42 FR 6568, Feb. 2, 1977, as amended at 50 FR 12529, Mar. 29, 1985; 50 
FR 39928, Sept. 30, 1985]



Sec. 20.21  General assistance.

    In States where BIA general assistance would otherwise be available, 
the Bureau will not provide general assistance:
    (a) To on or near-reservation members of tribes currently not served 
by BIA general assistance unless the tribe formally requests, through 
final governing body action, that the Bureau operate a general 
assistance program. Such request for BIA general assistance should be 
timed with the Bureau's next fiscal year for the general assistance 
program;
    (b) In any State having a general assistance program available to 
meet the needs of eligible citizens, including the needs of Indians. A 
State general assistance program is available if payments are:
    (1) Available statewide to eligible individuals and families, 
including Indians on reservations;
    (2) Authorized by State law with funds regularly appropriated to 
make such payments, or if State law requires all county governments or 
localities to make such payments even though payments may fluctuate 
subject to the limited availability of funds;
    (3) For the purpose of meeting monthly minimum essential needs on a 
continuing basis; and,
    (4) Where the Bureau provides general assistance on a reservation in 
one State and that reservation extends into a bordering State(s), the 
Bureau will provide general assistance to members of the tribe in the 
other bordering State(s) based on the standard of assistance in the 
State where the recipient or applicant resides. However, the Bureau will 
provide such assistance in the bordering State(s) only to those members 
who are not eligible for State general assistance as defined in 
Sec. 20.21.
    (c) In States where the Bureau provides general assistance, Indians, 
in order to be considered eligible for general assistance under this 
part, must meet the requirements prescribed in Sec. 20.20(a); and the 
following conditions:
    (1) Must not receive financial assistance from AFDC or Supplemental 
Security Income (SSI);
    (i) Indians eligible to receive AFDC or SSI will be allowed to 
receive BIA general assistance once they have applied for and until they 
begin to receive assistance payments from AFDC or SSI, except that 
payment shall be authorized when good cause reasons, such as physical 
isolation, lack of transportation or intermittent availability of State 
eligibility specialists, temporarily prevent concurrent application; and 
when it can be documented that the application process has been 
initiated by scheduling an appointment, or that the BIA/tribal 
caseworker has initiated the application process on behalf of the 
general assistance applicant.
    (ii) The Bureau will not make payments for any month for which AFDC 
or SSI payments are made.
    (2) Must have insufficient resources to meet the basic and special 
need items defined by the Bureau standard of assistance;
    (3) Must apply for assistance from other Federal, State, county, or 
local programs for which they may be eligible concurrent with 
application to the Bureau for general assistance, unless good cause 
reasons, such as physical isolation with sporadic access to 
transportation or intermittent availability of State eligibility 
specialists, temporarily prevent concurrent application; and when it can 
be documented that the application process has been initiated by 
scheduling an appointment, or

[[Page 74]]

that the BIA/tribal caseworker has initiated the application process on 
behalf of the general assistance applicant.
    (d) Redeterminations. (1) The Bureau shall determine eligibility and 
the amount of the BIA general assistance payment based on its best 
estimate of income and circumstances which will exist in the month for 
which the Bureau is to provide assistance. Recipients are required to 
immediately inform the Bureau of any changes in status which may affect 
their eligibility or amount of assistance. The Bureau shall redetermine 
eligibility:
    (i) Whenever there is an indication of a change in circumstances;
    (ii) Not less frequently than every three (3) months for individuals 
who are not exempt under paragraph 20.21(i) from seeking or accepting 
employment;
    (iii) Not less frequently than one every six (6) months for all 
households.
    (2) The redetermination process shall include personal contact with 
the recipient, preferably a home visit, not less than once a year to 
evaluate changes in living circumstances and household composition, and 
to assess the need for continued assistance.
    (e) Standards of assistance. (1) Where the Bureau operates a general 
assistance program, its standard of assistance shall be the AFDC payment 
standard used in the State where the applicant or recipient resides. In 
a State that meets 100 percent of the need standard, the Bureau standard 
is the need standard. In a State that does not meet need in full and 
applies a rateable reduction to the need standard, the Bureau standard 
is the rateable reduced amount. The AFDC payment standard incorporates 
the same basic and special need items as the AFDC standard of 
assistance, and is the amount from which the Bureau will subtract net 
income and liquid assets to determine eligibility for and the amount of 
the Bureau's general assistance payment.
    (2) In the event the State has no standard for one adult, the Bureau 
standard for one adult shall be the difference between the standard for 
one child and the standard for a household of two which includes an 
adult, or one-half the amount of the standard for a household of two, 
whichever is greater.
    (f) Resources. In determining eligibility for and the amount of the 
general assistance payment, the Bureau shall consider all types of 
income and other liquid assets available for support and maintenance 
unless otherwise disregarded under Sec. 20.21(g), or specifically 
excluded by Federal statute. All earned or unearned income will be 
counted as income in the month received and as a liquid asset 
thereafter, except certain income from the sale of real personal 
property as provided for under Sec. 20.21(f)(2)(i). Resources are 
considered available both when actually available and when the applicant 
or recipient has a legal interest in a liquidated sum, as defined at 25 
CFR 20.1(w), and has the ability to make such sum available for support 
and maintenance.
    (1) Earned income means in cash or in kind earned by an individual 
through the receipt of wages, salary, commissions, or profit from 
activities in which he is engaged as a self-employed individual or as an 
employee.
    (i) Earned income includes earnings over a period of time for which 
settlement is made at one given time, as in the instance of the sale of 
farm crops, livestock, etc.
    (ii) With respect to self-employment, earned income means total 
profit from business enterprise, i.e., gross receipts after subtracting 
business expenses directly related to producing the goods or services 
and without which the goods or services could not be produced. Business 
expenses do not include items such as depreciation, personal business 
and entertainment expenses, personal transportation, purchase of capital 
equipment and payments on the principal on loans for capital assets or 
durable goods.
    (2) Unearned income includes but is not limited to:
    (i) Income from: Interest; oil and gas and other mineral royalties; 
rental property; cash contributions such as child support and alimony; 
retirement, disability and unemployment benefits; per capita payments 
not excluded by Federal statute; sale of trust land and real or personal 
property which is not

[[Page 75]]

set aside for the purpose of reinvestment in trust land or a primary 
residence, or if set aside, has not been reinvested in trust land or a 
primary residence at the end of one year from the date the income was 
received; Federal and State tax refunds. All of the above shall be 
counted to the extent they are not disregarded by Federal statute.
    (ii) Income in kind contributions providing shelter at no cost to 
the individual or household: In establishing the amount of the in kind 
contribution, the Bureau shall use the amount for shelter included in 
the standard, if identifiable, or 25 percent of the standard unless 
there is evidence provided that the value of free shelter is less; and,
    (iii) Assistance provided by a State, county or local agency.
    (3) The Bureau shall prorate (i): Over a 12-month period recurring 
annual income received by individuals, such as teachers whose regular 
employment does not engage them on a year round basis; (ii) income 
received by individuals employed on a contractual basis over the period 
of the contract; and (iii) intermittent income received quarterly, 
semiannually or yearly over the period covered by the income. The Bureau 
shall prorate the income unless there is evidence that the income will 
not continue to be received in the future. However, for a period of 
three years from the publication date of these regulations, the Bureau 
will not prorate lease income which has been obligated by a household in 
a manner which makes it unavailable in consumable form to the household.
    (g) Disregards. (1) The Bureau shall disregard, from the gross 
amount of earned income, amounts deducted for:
    (i) Federal, State and local taxes;
    (ii) Social Security (FICA);
    (iii) Health insurance;
    (iv) Work related expenses, including reasonable transportation 
costs;
    (v) Child care costs except where the other parent in the home is 
not working or is not disabled; and
    (vi) The cost of special clothing, tools and equipment directly 
related to the individual's employment. All of the above, as 
appropriate, will be disregarded from self-employment income after 
deducting costs of doing business.
    (2) The Bureau shall disregard as income, or other liquid assets:
    (i) The first $1000 of liquid resources available to the household;
    (ii) Any home produce from garden, livestock and poultry utilized by 
the applicant or recipient and his/her household for their consumption;
    (iii) Resources specifically excluded by Federal statute.
    (h) Payments. (1) The Bureau shall make assistance payments in an 
amount not to exceed the difference between the Bureau standard of 
assistance and all resources not otherwise disregarded. In the event the 
State in which the individual or household lives applies a rateable 
reduction to that difference or maintains a system of dollar maximums on 
the payment, the Bureau shall also apply the rateable reduction and/or 
the maximum to the payment.
    (2) If there is more than one household living in a dwelling and the 
household(s) receiving general assistance contribute to shelter 
expenses, the Bureau shall prorate the actual shelter cost, but the 
amount in the payment for shelter will not exceed the amount in the 
Bureau standard of assistance for shelter, or if not identifiable, the 
prorated amount, in addition to other needs, cannot exceed the total 
amount in the standard for individuals or households in similar 
circumstances.
    (3) The Bureau will round the payment down to the next lower whole 
dollar.
    (4) In no case shall the Bureau provide retroactive payments of 
general assistance for any period prior to the date of application for 
assistance.
    (i) Employment. (1) An applicant or recipient must actively seek 
employment, including use of available tribally or Bureau-funded 
employment assistance services. The individual is also required to 
accept available local employment. An individual who does not comply 
will not be eligible for general assistance. These requirements do not 
apply to:
    (i) A person under the age of 16 years;
    (ii) A full-time student under the age of 19 who is attending an 
elementary or secondary school, or a vocational or technical school 
equivalent to a secondary school;

[[Page 76]]

    (iii) A person suffering from an illness, when it is determined on 
medical evidence or on other sound basis that the individual's illness 
or injury is serious enough to temporarily prevent entry into 
employment;
    (iv) An incapacitated person, when verified that a physical or 
mental impairment determined by a physician or licensed or certified 
psychologist, by itself or in conjunction with age, prevents the 
individual from engaging in employment;
    (v) A person who, upon the documented assessment of the social 
services caseworker, and pending examination by a physician or other 
appropriate professional, is deemed essentially incapacitated because of 
age, physical or mental impairment;
    (vi) An individual responsible for a person in the home who has a 
verified physical or mental impairment that requires the individual in 
the home on a virtually continuous basis, and there is no other 
appropriate household member available;
    (vii) A parent or other individual who personally provides full-time 
care of a child under that age of 6;
    (viii) A parent or minor living in the household if the other parent 
is not exempt from seeking or accepting employment;
    (ix) A person who is working 30 hours or more per week in 
unsubsidized employment expected to last a minimum of 30 days. This 
exemption continues to apply if there is a temporary break in full-time 
employment expected to last no longer than 10 work days; and
    (x) A person for whom employment is not accessible in a commuting 
time that is reasonable and comparable with others in similar 
circumstances.
    (2) Where the tribe administers a Tribal Work Experience Program 
(TWEP), the nonexempt individual shall be available to participate. 
However, participation does not relieve the individual from seeking or 
accepting employment.
    (3) Individuals not exempt under one of the preceding clauses of 
this section must, in seeking employment, provide evidence of efforts to 
obtain employment.
    (4) Individuals not exempt under one of the preceding clauses of 
this section, who refuse, or otherwise fail to seek and accept available 
local employment, or who voluntarily and without good cause do not 
maintain their employed status, will not be eligible to receive general 
assistance for a period of 60 days following the date of application, or 
eligibility redetermination.
    (i) The 60-day period of ineligibility will be renewed upon each 
application for general assistance until the applicant complies with the 
requirement to seek and accept available local employment.
    (ii) An unemployed individual against whom a 60-day eligibility 
suspension has been levied will have the suspension period reduced by 30 
days upon providing evidence that he/she has made effort to seek 
employment.
    (iii) Periods of eligibility suspension shall affect only the 
individual who fails to comply with the provision of this section, but 
shall not apply to other members of his/her household.

[50 FR 39928, Sept. 30, 1985]



Sec. 20.22  Child welfare assistance.

    An Indian child meeting the requirements prescribed in Sec. 20.20(a) 
shall be considered eligible for child welfare assistance or services 
under this part. Provided, That:
    (a) The child's legally responsible parent, guardian, or Indian 
court having jurisdiction:
    (1) Requests such assistance in writing and is unable to provide 
necessary care and guidance for the child in his own home for other than 
financial reasons and is unable to meet the cost of foster care.
    (2) Requests such assistance in writing and is unable to provide for 
the child's special needs which cannot be through other assistance 
programs including the Bureau's general assistance program.
    (b) The child is not receiving and is not eligible to receive public 
assistance or Supplemental Security Income payments and is not included 
in such payments made to others. However, an otherwise eligible child 
may receive child welfare assistance under this part upon application 
for and pending initial receipt of public assistance or Supplemental 
Security Income payments

[[Page 77]]

and may receive continued services irrespective of assistance payments 
if such services are not otherwise available.
    (c) The child resides in an area where comparable child welfare 
assistance and services are not available or are not being provided to 
all residents on the same basis from a State, county or local public 
jurisdiction.



Sec. 20.23  Miscellaneous assistance.

    In the absence of other resources, miscellaneous assistance shall be 
provided to eligible Indians meeting the requirements prescribed in 
Sec. 20.20(a): Provided, That they reside in areas where comparable 
miscellaneous assistance is not available or is not being provided to 
all residents on the same basis from a State, county or local public 
jurisdiction.



Sec. 20.24  Family and community services.

    (a) Family and community services shall be provided for Indians 
meeting the requirements prescribed in Sec. 20.20(a) who request such 
services or on whose behalf such services are requested.
    (b) Family and community services may include, but are not limited 
to, the following:
    (1) Family and individual counseling to assist in solving problems 
related to family functioning, housekeeping practices, care and 
supervision of children, interpersonal relationships, economic 
opportunity, money management, and problems related to illness, physical 
or mental handicaps, drug abuse, alcoholism and violation of law.
    (2) Protective services which are provided when children or adults 
are deprived temporarily or permanently of needed supervision by 
responsible adults, or are neglected, exploited, or need services when 
they are mentally or physically handicapped or otherwise disabled, and 
for children who have run away from home. Protective services will be 
developed in consultation and cooperation with tribal protective 
services, if applicable. Such services may include but are not limited 
to the following:
    (i) Response to requests from members of the community on behalf of 
children or adults alleged to need protective services.
    (ii) Family and supplemental services, including referral for 
homemaker and day care services, which appropriately divert children 
from the juvenile justice system.
    (iii) Services to responsible family members or guardians to seek 
appropriate court protections for the child or adult and, in the absence 
of such responsible adult, to seek the appointment of a guardian.
    (3) Services to Indian courts, which may include but are not limited 
to the following:
    (i) Investigations and reports as to allegations of child and adult 
abuse and neglect, abandonment, delinquency, running away from home, and 
conditions such as mentally or physically handicapped or otherwise 
disabled.
    (ii) Provision of social information related to the disposition of a 
case, including evaluation of alternative resources of treatment.
    (iii) Provision of services requested by the court prior to 
adjudication such as marriage and divorce counseling, child custody, and 
after adjudication such as probation, foster care, supervision of 
children and adults in their own home.
    (4) Foster care services for children which shall be provided when 
an Indian child is a recipient of child welfare assistance under 
Sec. 20.22 and services are not available from another source, and may 
be provided as needed for an Indian child living away from its parent(s) 
in the absence of a child welfare assistance payment. Such services 
shall include but are not limited to:
    (i) Determination that foster care is the best available plan for 
the child.
    (ii) Development of an immediate and long range plan to establish a 
more stable emotional and social life for the child and its family, 
including referral of the child for adoption when indicated.
    (iii) Services in the recruitment and development of suitable foster 
homes and other foster care facilities.
    (iv) Services to responsible family members, or at the request of an 
Indian court having jurisdiction, in the selection of a suitable foster 
care facility

[[Page 78]]

and a continued evaluation of the suitability of the facility.
    (v) Services in the placement of an Indian child for long or short 
term foster care suited to his needs and to review the plan 
periodically.
    (vi) Services to parent(s), foster parent(s), or other caretaker(s) 
to provide care and guidance for the child in foster care.
    (5) Foster care services for adults which shall be provided when a 
general assistance payment under Sec. 20.21 is made for their care in a 
foster care facilty, or when needed in the absence of a general 
assistance payment. The services may include but are not limited to:
    (i) Arranging for care in a private family home, or a facility for 
the care of the aged or disabled except where the primary service 
provided by the facility is medical.
    (ii) Services to responsible family members, guardians, or at the 
request of an Indian court having jurisdiction, in selecting a facility 
which will provide needed care.
    (iii) Services providing for continuity with family and community 
ties.
    (iv) Services to continually evaluate the suitability of the 
selected care facility, including referral for other care as indicated.
    (6) Community services which are services involving other groups, 
agencies, and facilities in the community may include but are not 
limited to:
    (i) Responses to community needs for evaluating social conditions 
affecting the well-being of its citizens.
    (ii) Treatment of the identified conditions that are within the 
competence of social services.
    (iii) Maintenance of a liaison relationship with other community 
agencies for the purpose of:
    (A) Identifying the availability of services that may be utilized to 
assist in solving the social problems of individuals, families and 
children.
    (B) Facilitating the use of available community services by Indian 
persons who need them.



Sec. 20.25  Consultation with tribes.

    Bureau personnel shall upon request provide consultation and advice 
to tribal governing bodies and other tribal entities including Indian 
courts seeking to organize their social services to meet more 
effectively the social service needs of their people. See Sec. 11.21 of 
this chapter. All programs provided for in this part shall, insofar as 
possible, be consistent with tribal custom, codes and law.



                     Subpart D--Hearings and Appeals



Sec. 20.30  Hearings and appeals.

    (a) Any applicant or recipient of financial assistance under this 
part who is dissatisfied with any decision or action concerning 
eligibility for or receipt of financial assistance may request a hearing 
before the Superintendent or his designated representative within 20 
days after the date of mailing or delivery of the written notice of the 
proposed decision as provided in Sec. 20.13. The Superintendent may 
extend the 20 day period for good cause shown and documented in the 
record.
    (b) Upon request for a hearing by a recipient dissatisfied by a 
proposed decision the recipient's financial assistance will be continued 
or reinstated to provide no break in financial assistance until the date 
of decision by the Superintendent or his designated representative in 
accordance with Sec. 20.30(f).
    (c) The Superintendent or his designated representative shall set a 
date for the hearing within 10 days of the date of request for a 
hearing, at a location convenient to both parties, and give written 
notice to the applicant or recipient.
    (d) The written notice of hearing date and location shall include:
    (1) A statement of the issues.
    (2) The applicant or recipient's right to be heard in person, or to 
be represented by an authorized representative at no expense to the 
Bureau.
    (3) The applicant or recipient's right to present both oral and 
written evidence, and written statements prior to or during the hearing.
    (4) The applicant or recipient's right to confront and cross-examine 
witnesses at the hearing.
    (5) The applicant or recipient shall have the right of one 
continuance of not more than 10 days with respect to the date of 
hearing.

[[Page 79]]

    (6) The applicant or recipient's right to examine and copy, at a 
reasonable time before and during the hearing, his case record as it 
relates to the proposed action being contested.
    (e) The Superintendent or his designated representative shall 
conduct the hearing in an informal but orderly manner, record the 
hearing, and provide the applicant or recipient with a transcript of the 
hearing upon request.
    (f) The Superintendent or his designated representative shall render 
a written decision within 10 days of the completion of the hearing. The 
written decision shall consist of the following:
    (1) A written statement covering the evidence relied upon and 
reasons for the decision.
    (2) The applicant or recipient's right to further appeal from any 
dissatisfied decision in accordance with procedures for appeals from 
administrative actions set forth in part 2 of this chapter.
    (g) An interested party wishing to make such an appeal may request 
Bureau assistance in preparation of the appeal also as prescribed in 
part 2 of this chapter.



PART 21--ARRANGEMENT WITH STATES, TERRITORIES, OR OTHER AGENCIES FOR RELIEF OF DISTRESS AND SOCIAL WELFARE OF INDIANS--Table of Contents




Sec.
21.1  Commissioner to negotiate contracts.
21.2  Contracts; by whom executed.
21.3  State or other contracting agency furnish plan of operation.
21.4  Standards of service.
21.5  Personnel.
21.6  Financial statement.
21.7  Cooperative services.
21.8  Use of Government property and facilities.
21.9  Information collection.

    Authority: Sec. 3, 48 Stat. 596, as amended; 25 U.S.C. 454.

    Source: 22 FR 10531, Dec. 24, 1957, unless otherwise noted.



Sec. 21.1  Commissioner to negotiate contracts.

    The Commissioner of Indian Affairs may negotiate with State, 
territory, county or other Federal welfare agencies for such agencies to 
provide welfare services as contemplated by the Act of June 4, 1936 (49 
Stat. 1458; 25 U.S.C. 452), for Indians residing within a particular 
State within the exterior boundaries of Indian reservations under the 
jurisdiction of the Bureau of Indian Affairs or on trust or restricted 
lands under the jurisdiction of the Bureau of Indian Affairs.

[29 FR 5828, May 2, 1964]



Sec. 21.2  Contracts; by whom executed.

    All contracts executed for the purposes of Sec. 21.1 shall be signed 
on behalf of the United States by the Commissioner of Indian Affairs. 
The proper officer of the State, territory, county or welfare agency 
shall execute the contract on its behalf. Evidence of the authority of 
such officer must accompany the contract. All contracts must be executed 
in quintuplicate. (They shall become effective only after approval by 
the Secretary of the Interior.)



Sec. 21.3  State or other contracting agency furnish plan of operation.

    A plan executed by the proper State or other agency entering into 
the contract shall accompany each instrument. This plan shall describe 
the services and assistance to be rendered under the terms of the 
contract. It shall include a budget showing the plan of expenditure of 
the funds to be turned over to the State or other agency. Upon the 
approval of the contract, no deviation from the plan shall be made 
unless approved in advance by the Commissioner of Indian Affairs.



Sec. 21.4  Standards of service.

    Standards of aid, care, and service rendered to the Indians under 
the contracts shall not be less than those standards maintained by the 
State for other clients requiring similar aid, care and services.



Sec. 21.5  Personnel.

    The personnel employed for public welfare services to Indians under 
the contract shall be subject to the State merit system and to the 
approval of the Commissioner of Indian Affairs and the welfare 
authorities of the State, unless otherwise provided in the contract.

[[Page 80]]



Sec. 21.6  Financial statement.

    Thirty days after the close of each fiscal year, the State or other 
agency to which funds have been furnished pursuant to the contract shall 
submit to the Commissioner of Indian Affairs a detailed financial 
statement showing all expenditures made pursuant to the contract. An 
explanation shall be contained of any deviation from the plan originally 
submitted by the agency. The records of the contractor shall be 
available for inspection by representatives of the Bureau of Indian 
Affairs.



Sec. 21.7  Cooperative services.

    The Bureau will maintain cooperative services through its 
superintendents and other personnel to further the purposes of the 
contract. When mutually agreed to in the contract, the Bureau may 
maintain on its payroll one or more representatives whose duties shall 
be described in the contract and the salary and expenses of any such 
person or persons shall constitute part of the funds to be furnished to 
the State or other contracting agency.



Sec. 21.8  Use of Government property and facilities.

    The contract shall specify the terms upon which property, other 
facilities and equipment of the Government may be used by the State or 
other agency. All contracts which provide for the use of Government 
automobiles shall require that the particular State or other agency 
shall be responsible for the return of the equipment in as good 
condition as when received, excepting usual wear and tear and 
depreciation and such agency shall be responsible for all damage or 
injury done to property or persons and shall carry sufficient insurance 
to cover same and expressly relieve the Government of any and all 
liability for any such personal injury or property damages committed 
while such automobile is in the possession of the contracting agency.



Sec. 21.9  Information collection.

    The information collection requirements contained in Secs. 21.3 and 
21.6 have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance numbers 1076-0113 and 1076-
0110, respectively. The information in Sec. 21.3 is being collected to 
determine how contract funds are utilized. The information will be used 
to measure performance of the contractor and plan for future contracts. 
The information in Sec. 21.6 is collected to specify the services or 
assistance to be rendered and the plan for expenditure of funds to be 
turned over to the state or agency. The information will be used to 
determine the adequacy of services and utilization of the budget 
provided by the contracting agency. Response is required to obtain a 
benefit.

[53 FR 21994, June 13, 1988]



PART 23--INDIAN CHILD WELFARE ACT--Table of Contents




               Subpart A--Purpose, Definitions, and Policy

Sec.
23.1  Purpose.
23.2  Definitions.
23.3  Policy.
23.4  Information collection.

 Subpart B--Notice of Involuntary Child Custody Proceedings and Payment 
                  for Appointed Counsel in State Courts

23.11  Notice.
23.12  Designated tribal agent for service of notice.
23.13  Payment for appointed counsel in involuntary Indian child custody 
          proceedings in state courts.

Subpart C--Grants to Indian Tribes for Title II Indian Child and Family 
                            Service Programs

23.21  Noncompetitive tribal government grants.
23.22  Purpose of tribal government grants.
23.23  Tribal government application contents.

 Subpart D--Grants to Off-Reservation Indian Organizations for Title II 
                Indian Child and Family Service Programs

23.31  Competitive off-reservation grant process.
23.32  Purpose of off-reservation grants.
23.33  Competitive off-reservation application contents and application 
          selection criteria.
23.34  Review and decision on off-reservation applications by Area 
          Director.
23.35  Deadline for Central Office action.

[[Page 81]]

   Subpart E--General and Uniform Grant Administration Provisions and 
                              Requirements

23.41  Uniform grant administration provisions, requirements and 
          applicability.
23.42  Technical assistance.
23.43  Authority for grant approval and execution.
23.44  Grant administration and monitoring.
23.45  Subgrants.
23.46  Financial management, internal and external controls and other 
          assurances.
23.47  Reports and availability of information to Indians.
23.48  Matching shares and agreements.
23.49  Fair and uniform provision of services.
23.50  Service eligibility.
23.51  Grant carry-over authority.
23.52  Grant suspension.
23.53  Cancellation.

                           Subpart F--Appeals

23.61  Appeals from decision or action by Agency Superintendent, Area 
          Director or Grants Officer.
23.62  Appeals from decision or action by Area Director under subpart D.
23.63  Appeals from inaction of official.

                  Subpart G--Administrative Provisions

23.71  Recordkeeping and information availability.

                  Subpart H--Assistance to State Courts

23.81  Assistance in identifying witnesses.
23.82  Assistance in identifying language interpreters.
23.83  Assistance in locating biological parents of Indian child after 
          termination of adoption.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.

    Source: 59 FR 2256, Jan. 13, 1994, unless otherwise noted.



               Subpart A--Purpose, Definitions, and Policy



Sec. 23.1  Purpose.

    The purpose of the regulations in this part is to govern the 
provision of funding for, and the administration of Indian child and 
family service programs as authorized by the Indian Child Welfare Act of 
1978 (Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 2, 9, 1901-1952).



Sec. 23.2  Definitions.

    Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92 
Stat. 3069, 25 U.S.C. 1901 et seq.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
the Department of the Interior.
    Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, 
the Department of the Interior.
    Child custody proceeding includes:
    (1) Foster care placement, which shall mean any action removing an 
Indian child from his or her parent or Indian custodian for temporary 
placement in a foster home or institution or the home of a guardian or 
conservator where the parent or Indian custodian cannot have the child 
returned upon demand, but where parental rights have not been 
terminated;
    (2) Termination of parental rights, which shall mean any action 
resulting in the termination of the parent-child relationship;
    (3) Preadoptive placement, which shall mean the temporary placement 
of an Indian child in a foster home or institution after the termination 
of parental rights, but prior to or in lieu of adoptive placement;
    (4) Adoptive placement, which shall mean the permanent placement of 
an Indian child for adoption, including any action resulting in a final 
decree of adoption; and
    (5) Other tribal placements made in accordance with the placement 
preferences of the Act, including the temporary or permanent placement 
of an Indian child in accordance with tribal children's codes and local 
tribal custom or tradition;
    (6) The above terms shall not include a placement based upon an act 
which, if committed by an adult, would be deemed a crime in the 
jurisdiction where the act occurred or upon an award, in a divorce 
proceeding, of custody to one of the parents.
    Consortium means an association or partnership of two or more 
eligible applicants who enter into an agreement to administer a grant 
program and to provide services under the grant to Indian residents in a 
specific geographical area when it is administratively feasible to 
provide an adequate level of services within the area.

[[Page 82]]

    Extended family member shall be as defined by the law or custom of 
the Indian child's tribe or, in the absence of such law or custom, shall 
be a person who has reached the age of 18 and who is the Indian child's 
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-
in-law, niece or nephew, first or second cousin, or stepparent.
    Grant means a written agreement between the BIA and the governing 
body of an Indian tribe or Indian organization wherein the BIA provides 
funds to the grantee to plan, conduct or administer specific programs, 
services, or activities and where the administrative and programmatic 
provisions are specifically delineated.
    Grantee means the tribal governing body of an Indian tribe or Board 
of Directors of an Indian organization responsible for grant 
administration.
    Grants officer means an officially designated officer who 
administers ICWA grants awarded by the Bureau of Indian Affairs, the 
Department of the Interior.
    Indian means any person who is a member of an Indian tribe, or who 
is an Alaska Native and a member of a Regional Corporation as defined in 
section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606.
    Indian child means any unmarried person who is under age 18 and is 
either a member of an Indian tribe, or is eligible for membership in an 
Indian tribe and is the biological child of a member of an Indian tribe.
    Indian child's tribe means the Indian tribe in which an Indian child 
is a member or is eligible for membership or, in the case of an Indian 
child who is a member of or is eligible for membership in more than one 
tribe, the Indian tribe with which the Indian child has the more 
significant contacts, to be determined in accordance with the BIA's 
``Guidelines for State Courts--Indian Child Custody Proceedings.''
    Indian custodian means any Indian person who has legal custody of an 
Indian child under tribal law or custom or under state law or to whom 
temporary physical care, custody and control has been transferred by the 
parent of such child.
    Indian organization, solely for purposes of eligibility for grants 
under subpart D of this part, means any legally established group, 
association, partnership, corporation, or other legal entity which is 
owned or controlled by Indians, or a majority (51 percent or more) of 
whose members are Indians.
    Indian preference means preference and opportunities for employment 
and training provided to Indians in the administration of grants in 
accordance with section 7 (b) of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians federally recognized as eligible 
for the services provided to Indians by the Secretary because of their 
status as Indians, including any Alaska Native village as defined in 
section 3 (c) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602 
(c).
    Off-reservation ICWA program means an ICWA program administered in 
accordance with 25 U.S.C. 1932 by an off-reservation Indian 
organization.
    Parent means the biological parent or parents of an Indian child or 
any Indian person who has lawfully adopted an Indian child, including 
adoptions under tribal law or custom. The term does not include the 
unwed father where paternity has not been acknowledged or established.
    Reservation means Indian country as defined in 18 U.S.C. 1151 and 
any lands not covered under such section, title to which is either held 
by the United States in trust for the benefit of any Indian tribe or 
individual or held by any Indian tribe or individual subject to a 
restriction by the United States against alienation.
    Secretary means the Secretary of the Interior.
    Service areas solely for newly recognized or restored Indian tribes 
without established reservations means those service areas 
congressionally established by Federal law to be the equivalent of a 
reservation for the purpose of determining the eligibility of a newly 
recognized or restored Indian tribe and its members for all Federal 
services and benefits.
    State court means any agent or agency of a state, including the 
District of

[[Page 83]]

Columbia or any territory or possession of the United States, or any 
political subdivision empowered by law to terminate parental rights or 
to make foster care placements, preadoptive placements, or adoptive 
placements.
    Subgrant means a secondary grant that undertakes part of the 
obligations of the primary grant, and assumes the legal and financial 
responsibility for the funds awarded and for the performance of the 
grant-supported activity.
    Technical assistance means the provision of oral, written, or other 
relevant information and assistance to prospective grant applicants in 
the development of their grant proposals. Technical assistance may 
include a preliminary review of an application to assist the applicant 
in identifying the strengths and weaknesses of the proposal, ongoing 
program planning, design and evaluation, and such other program-specific 
assistance as is necessary for ongoing grant administration and 
management.
    Title II means title II of Public Law 95-608, the Indian Child 
Welfare Act of 1978, which authorizes the Secretary to make grants to 
Indian tribes and off-reservation Indian organizations for the 
establishment and operation of Indian child and family service programs.
    Tribal Court means a court with jurisdiction over child custody 
proceedings and which is either a Court of Indian Offenses, a court 
established and operated under the code or custom of an Indian tribe, or 
any other administrative body of a tribe which is vested with authority 
over child custody proceedings.
    Tribal government means the federally recognized governing body of 
an Indian tribe.
    Value means face, par, or market value, or cost price, either 
wholesale or retail, whichever is greater.



Sec. 23.3  Policy.

    In enacting the Indian Child Welfare Act of 1978, Pub. L. 95-608, 
the Congress has declared that it is the policy of this Nation to 
protect the best interests of Indian children and to promote the 
stability and security of Indian tribes and Indian families by the 
establishment of minimum Federal standards to prevent the arbitrary 
removal of Indian children from their families and tribes and to ensure 
that measures which prevent the breakup of Indian families are followed 
in child custody proceedings (25 U.S.C. 1902). Indian child and family 
service programs receiving title II funds and operated by federally 
recognized Indian tribes and off-reservation Indian organizations shall 
reflect the unique values of Indian culture and promote the stability 
and security of Indian children, Indian families and Indian communities. 
It is the policy of the Bureau of Indian Affairs to emphasize and 
facilitate the comprehensive design, development and implementation of 
Indian child and family service programs in coordination with other 
Federal, state, local, and tribal programs which strengthen and preserve 
Indian families and Indian tribes.



Sec. 23.4  Information collection.

    (a) The information collection requirements contained in Sec. 23.13 
of this part have been approved by the Office of Management and Budget 
(OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1076-
0111.
    (1) This information will be used to determine eligibility for 
payment of legal fees for indigent Indian parents and Indian custodians, 
involved in involuntary Indian child custody proceedings in state 
courts, who are not eligible for legal services through other 
mechanisms. Response to this request is required to obtain a benefit.
    (2) Public reporting for this information collection is estimated to 
average 10 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any aspect of this information collection should be 
mailed or hand-delivered to the Bureau of Indian Affairs, Information 
Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW., 
Washington, DC 20240; and the Office of Information and Regulatory 
Affairs Paperwork Reduction Project--1076-0111, Office of Management and 
Budget, Washington, DC 20503.
    (b) The information collection requirements contained in 
Secs. 23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the 
Office of Management

[[Page 84]]

and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 
1076-0131. The information collection requirements under Secs. 23.21 and 
23.31 are collected in the form of ICWA grant applications from Indian 
tribes and off-reservation Indian organizations. A response to this 
request is required to obtain grant funds. The information collection 
requirements under Sec. 23.46 are collected in compliance with 
applicable OMB circulars on financial management, internal and external 
controls and other fiscal assurances in accordance with existing Federal 
grant administration and reporting requirements. The grantee information 
collection requirements under Sec. 23.47 are collected in the form of 
quarterly and annual program performance narrative reports and 
statistical data as required by the grant award document. Pursuant to 25 
U.S.C. 1951, the information collection requirement under Sec. 23.71 is 
collected from state courts entering final adoption decrees for any 
Indian child and is provided to and maintained by the Secretary.
    (1) Public reporting for the information collection at Secs. 23.21 
and 23.31 is estimated to average 32 hours per response, including the 
time for reviewing the grant application instructions, gathering the 
necessary information and data, and completing the grant application. 
Public reporting for the information collection at Secs. 23.46 and 23.47 
is estimated to average a combined total of 16 annual hours per grantee, 
including the time for gathering the necessary information and data, and 
completing the required forms and reports. Public reporting for the 
information collection at Sec. 23.71 is estimated to average 4 hours per 
response, including the time for obtaining and preparing the final 
adoption decree for transmittal to the Secretary.
    (2) Direct comments regarding any of these burden estimates or any 
aspect of these information collection requirements should be mailed or 
hand-delivered to the Bureau of Indian Affairs, Information Collection 
Clearance Officer, room 336-SIB, 1849 C Street, NW., Washington, DC, 
20240; and the Office of Information and Regulatory Affairs Paperwork 
Reduction Project--1076-0131, Office of Management and Budget, 
Washington, DC 20503.



 Subpart B--Notice of Involuntary Child Custody Proceedings and Payment 
                  for Appointed Counsel in State Courts



Sec. 23.11  Notice.

    (a) In any involuntary proceeding in a state court where the court 
knows or has reason to know that an Indian child is involved, and where 
the identity and location of the child's Indian parents or custodians or 
tribe is known, the party seeking the foster care placement of, or 
termination of parental rights to, an Indian child shall directly notify 
the Indian parents, Indian custodians, and the child's tribe by 
certified mail with return receipt requested, of the pending proceedings 
and of their right of intervention. Notice shall include requisite 
information identified at paragraphs (d)(1) through (4) and (e)(1) 
through (6) of this section, consistent with the confidentiality 
requirement in paragraph (e)(7) of this section. Copies of these notices 
shall be sent to the Secretary and the appropriate Area Director listed 
in paragraphs (c)(1) through (12) of this section.
    (b) If the identity or location of the Indian parents, Indian 
custodians or the child's tribe cannot be determined, notice of the 
pendency of any involuntary child custody proceeding involving an Indian 
child in a state court shall be sent by certified mail with return 
receipt requested to the appropriate Area Director listed in paragraphs 
(c)(1) through (12) of this section. In order to establish tribal 
identity, it is necessary to provide as much information as is known on 
the Indian child's direct lineal ancestors including, but not limited 
to, the information delineated at paragraph (d)(1) through (4) of this 
section.
    (c)(1) For proceedings in Alabama, Connecticut, Delaware, District 
of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, 
Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North 
Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee, 
Vermont, Virginia, West Virginia or any territory or

[[Page 85]]

possession of the United States, notices shall be sent to the following 
address: Eastern Area Director, Bureau of Indian Affairs, 3701 N. 
Fairfax Drive, Suite 260, Arlington, Virginia 22201.
    (2) For proceedings in Illinois, Indiana, Iowa, Michigan, Minnesota, 
Ohio, or Wisconsin, notices shall be sent to the following address: 
Minneapolis Area Director, Bureau of Indian Affairs, 331 Second Avenue 
South, Minneapolis, Minnesota 55401-2241.
    (3) For proceedings in Nebraska, North Dakota, or South Dakota, 
notices shall be sent to the following address: Aberdeen Area Director, 
Bureau of Indian Affairs, 115 Fourth Avenue, SE, Aberdeen, South Dakota 
57401.
    (4) For proceedings in Kansas, Texas (except for notices to the 
Ysleta del Sur Pueblo of El Paso County, Texas), and the western 
Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo, Canadian, 
Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, 
Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln, 
Logan, Major, Noble, Oklahoma, Pawnee, Payne, Pottawatomie, Roger Mills, 
Texas, Tillman, Washita, Woods and Woodward, notices shall be sent to 
the following address: Anadarko Area Director, Bureau of Indian Affairs, 
P.O. Box 368, Anadarko, Oklahoma 73005. Notices to the Ysleta del Sur 
Pueblo of El Paso County, Texas shall be sent to the Albuquerque Area 
Director at the address listed in paragraph (c)(6) of this section.
    (5) For proceedings in Wyoming or Montana (except for notices to the 
Confederated Salish & Kootenai Tribes of the Flathead Reservation, 
Montana), notices shall be sent to the following address: Billings Area 
Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings, 
Montana 59101. Notices to the Confederated Salish & Kootenai Tribes of 
the Flathead Reservation, Montana, shall be sent to the Portland Area 
Director at the address listed in paragraph (c)(11) of this section.
    (6) For proceedings in the Texas counties of El Paso and Hudspeth 
and proceedings in Colorado or New Mexico (exclusive of notices to the 
Navajo Tribe from the New Mexico counties listed in paragraph (c)(9) of 
this section), notices shall be sent to the following address: 
Albuquerque Area Director, Bureau of Indian Affairs, 615 First Street, 
P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the Navajo 
Tribe shall be sent to the Navajo Area Director at the address listed in 
paragraph (c)(9) of this section.
    (7) For proceedings in Alaska (except for notices to the Metlakatla 
Indian Community, Alaska), notices shall be sent to the following 
address: Juneau Area Director, Bureau of Indian Affairs, 709 West 9th 
Street, Juneau, Alaska 99802-1219. Notices to the Metlakatla Indian 
Community of the Annette Islands Reserve, Alaska, shall be sent to the 
Portland Area Director at the address listed in paragraph (c)(11) of 
this section.
    (8) For proceedings in Arkansas, Missouri, and the eastern Oklahoma 
counties of Adair, Atoka, Bryan, Carter, Cherokee, Craig, Creek, 
Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes, Jefferson, 
Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, McIntosh, 
Murray, Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg, 
Pontotoc, Pushmataha, Marshall, Rogers, Seminole, Sequoyah, Wagoner, 
Washington, Stephens, and Tulsa, notices shall be sent to the following 
address: Muskogee Area Director, Bureau of Indian Affairs, 101 North 
Fifth Street, Muskogee, Oklahoma 74401.
    (9) For proceedings in the Arizona counties of Apache, Coconino 
(except for notices to the Hopi and San Juan Paiute Tribes) and Navajo 
(except for notices to the Hopi Tribe); the New Mexico counties of 
McKinley (except for notices to the Zuni Tribe), San Juan, and Socorro; 
and the Utah county of San Juan, notices shall be sent to the following 
address: Navajo Area Director, Bureau of Indian Affairs, P.O. Box 1060, 
Gallup, New Mexico 87301. Notices to the Hopi and San Juan Paiute Tribes 
shall be sent to the Phoenix Area Director at the address listed in 
paragraph (c)(10) of this section. Notices to the Zuni Tribe shall be 
sent to the Albuquerque Area Director at the address listed in paragraph 
(c)(6) of this section.
    (10) For proceedings in Arizona (exclusive of notices to the Navajo 
Tribe

[[Page 86]]

from those counties listed in paragraph (c)(9) of this section), Nevada 
or Utah (exclusive of San Juan county), notices shall be sent to the 
following address: Phoenix Area Director, Bureau of Indian Affairs, 1 
North First Street, P.O. Box 10, Phoenix, Arizona 85001.
    (11) For proceedings in Idaho, Oregon or Washington, notices shall 
be sent to the following address: Portland Area Director, Bureau of 
Indian Affairs, 911 NE 11th Avenue, Portland, Oregon 97232. All notices 
to the Confederated Salish & Kootenai Tribes of the Flathead 
Reservation, located in the Montana counties of Flathead, Lake, 
Missoula, and Sanders, shall also be sent to the Portland Area Director.
    (12) For proceedings in California or Hawaii, notices shall be sent 
to the following address: Sacramento Area Director, Bureau of Indian 
Affairs, Federal Office Building, 2800 Cottage Way, Sacramento, 
California 95825.
    (d) Notice to the appropriate Area Director pursuant to paragraph 
(b) of this section may be sent by certified mail with return receipt 
requested or by personal service and shall include the following 
information, if known:
    (1) Name of the Indian child, the child's birthdate and birthplace.
    (2) Name of Indian tribe(s) in which the child is enrolled or may be 
eligible for enrollment.
    (3) All names known, and current and former addresses of the Indian 
child's biological mother, biological father, maternal and paternal 
grandparents and great grandparents or Indian custodians, including 
maiden, married and former names or aliases; birthdates; places of birth 
and death; tribal enrollment numbers, and/or other identifying 
information.
    (4) A copy of the petition, complaint or other document by which the 
proceeding was initiated.
    (e) In addition, notice provided to the appropriate Area Director 
pursuant to paragraph (b) of this section shall include the following:
    (1) A statement of the absolute right of the biological Indian 
parents, the child's Indian custodians and the child's tribe to 
intervene in the proceedings.
    (2) A statement that if the Indian parent(s) or Indian custodian(s) 
is (are) unable to afford counsel, and where a state court determines 
indigency, counsel will be appointed to represent the Indian parent or 
Indian custodian where authorized by state law.
    (3) A statement of the right of the Indian parents, Indian 
custodians and child's tribe to be granted, upon request, up to 20 
additional days to prepare for the proceedings.
    (4) The location, mailing address, and telephone number of the court 
and all parties notified pursuant to this section.
    (5) A statement of the right of the Indian parents, Indian 
custodians and the child's tribe to petition the court for transfer of 
the proceeding to the child's tribal court pursuant to 25 U.S.C. 1911, 
absent objection by either parent: Provided, that such transfer shall be 
subject to declination by the tribal court of said tribe.
    (6) A statement of the potential legal consequences of the 
proceedings on the future custodial and parental rights of the Indian 
parents or Indian custodians.
    (7) A statement that, since child custody proceedings are conducted 
on a confidential basis, all parties notified shall keep confidential 
the information contained in the notice concerning the particular 
proceeding. The notices shall not be handled by anyone not needing the 
information contained in the notices in order to exercise the tribe's 
rights under the Act.
    (f) Upon receipt of the notice, the Secretary or his/her designee 
shall make reasonable documented efforts to locate and notify the 
child's tribe and the child's Indian parents or Indian custodians. The 
Secretary or his/her designee shall have 15 days, after receipt of the 
notice from the persons initiating the proceedings, to notify the 
child's tribe and Indian parents or Indian custodians and send a copy of 
the notice to the court. If within the 15-day time period the Secretary 
or his/her designee is unable to verify that the child meets the 
criteria of an Indian child as defined in 25 U.S.C. 1903, or is unable 
to locate the Indian parents or Indian custodians, the Secretary or his/
her designee shall so inform the court prior to initiation of the 
proceedings and state how much

[[Page 87]]

more time, if any, will be needed to complete the search. The Secretary 
or his/her designee shall complete all research efforts, even if those 
efforts cannot be completed before the child custody proceeding begins.
    (g) Upon request from a party to an Indian child custody proceeding, 
the Secretary or his/her designee shall make a reasonable attempt to 
identify and locate the child's tribe, Indian parents or Indian 
custodians to assist the party seeking the information.



Sec. 23.12  Designated tribal agent for service of notice.

    Any Indian tribe entitled to notice pursuant to 25 U.S.C. 1912 may 
designate by resolution, or by such other form as the tribe's 
constitution or current practice requires, an agent for service of 
notice other than the tribal chairman and send a copy of the designation 
to the Secretary or his/her designee. The Secretary or his/her designee 
shall update and publish as necessary the names and addresses of the 
designated agents in the Federal Register. A current listing of such 
agents shall be available through the area offices.



Sec. 23.13  Payment for appointed counsel in involuntary Indian child custody proceedings in state courts.

    (a) When a state court appoints counsel for an indigent Indian party 
in an involuntary Indian child custody proceeding for which the 
appointment of counsel is not authorized under state law, the court 
shall send written notice of the appointment to the BIA Area Director 
designated for that state in Sec. 23.11. The notice shall include the 
following:
    (1) Name, address, and telephone number of attorney who has been 
appointed.
    (2) Name and address of client for whom counsel is appointed.
    (3) Relationship of client to child.
    (4) Name of Indian child's tribe.
    (5) Copy of the petition or complaint.
    (6) Certification by the court that state law makes no provision for 
appointment of counsel in such proceedings.
    (7) Certification by the court that the Indian client is indigent.
    (b) The Area Director shall certify that the client is eligible to 
have his or her appointed counsel compensated by the BIA unless:
    (1) The litigation does not involve a child custody proceeding as 
defined in 25 U.S.C. 1903 (1);
    (2) The child who is the subject of the litigation is not an Indian 
child as defined in 25 U.S.C. 1903 (4);
    (3) The client is neither the Indian child who is the subject of the 
litigation, the Indian child's parent as defined in 25 U.S.C. 1903 (9), 
nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);
    (4) State law provides for appointment of counsel in such 
proceedings;
    (5) The notice to the Area Director of appointment of counsel is 
incomplete; or
    (6) Funds are not available for the particular fiscal year.
    (c) No later than 10 days after receipt of the notice of appointment 
of counsel, the Area Director shall notify the court, the client, and 
the attorney in writing whether the client has been certified as 
eligible to have his or her attorney fees and expenses paid by the BIA. 
If certification is denied, the notice shall include written reasons for 
that decision, together with a statement that complies with 25 CFR 2.7 
and that informs the applicant that the decision may be appealed to the 
Assistant Secretary. The Assistant Secretary shall consider appeals 
under this subsection in accordance with 25 CFR 2.20 (c) through (e). 
Appeal procedures shall be as set out in part 2 of this chapter.
    (d) When determining attorney fees and expenses, the court shall:
    (1) Determine the amount of payment due appointed counsel by the 
same procedures and criteria it uses in determining the fees and 
expenses to be paid appointed counsel in state juvenile delinquency 
proceedings; and
    (2) Submit approved vouchers to the Area Director who certified 
eligibility for BIA payment, together with the court's certification 
that the amount requested is reasonable under the state standards 
considering the work actually performed in light of criteria that apply 
in determining fees and expenses for appointed counsel in state juvenile 
delinquency proceedings.

[[Page 88]]

    (e) The Area Director shall authorize the payment of attorney fees 
and expenses in the amount requested in the voucher approved by the 
court unless:
    (1) The amount of payment due the state-appointed counsel is 
inconsistent with the fees and expenses specified in Sec. 23.13 (d)(1); 
or
    (2) The client has not been certified previously as eligible under 
paragraph (c) of this section; or
    (3) The voucher is submitted later than 90 days after completion of 
the legal action involving a client certified as eligible for payment of 
legal fees under paragraph (b) of this section.
    (f) No later than 15 days after receipt of a payment voucher, the 
Area Director shall send written notice to the court, the client, and 
the attorney stating the amount of payment, if any, that has been 
authorized. If the payment has been denied, or the amount authorized is 
less than the amount requested in the voucher approved by the court, the 
notice shall include a written statement of the reasons for the decision 
together with a statement that complies with 25 CFR 2.7 and that informs 
the client that the decision may be appealed to the Interior Board of 
Indian Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through 
4.318 and 43 CFR 4.330 through 4.340.
    (g) Failure of the Area Director to meet the deadline specified in 
paragraphs (c) and (f) of this section may be treated as a denial for 
purposes of appeal under paragraph (f) of this section.
    (h) Payment for appointed counsel does not extend to Indian tribes 
involved in state court child custody proceedings or to Indian families 
involved in Indian child custody proceedings in tribal courts.



Subpart C--Grants to Indian Tribes for Title II Indian Child and Family 
                            Service Programs



Sec. 23.21  Noncompetitive tribal government grants.

    (a) Grant application information and technical assistance. 
Information on grant application procedures and related information may 
be obtained from the appropriate Agency Superintendent or Area Director. 
Pre-award and ongoing technical assistance to tribal governments shall 
be provided in accordance with Sec. 23.42 of this part.
    (b) Eligibility requirements for tribal governments. The tribal 
government(s) of any Indian tribe or consortium of tribes may submit a 
properly documented application for a grant to the appropriate Agency 
Superintendent or Area Director. A tribe may neither submit more than 
one application for a grant nor be the beneficiary of more than one 
grant under this subpart.
    (1) Through the publication of a Federal Register announcement at 
the outset of the implementation of the noncompetitive grant award 
process during which tribal applications will be solicited, the 
Assistant Secretary will notify eligible tribal applicants under this 
subpart of the amount of core funds available for their ICWA program. 
The funding levels will be based on the service area population to be 
served. Upon the receipt of this notice from the Agency Superintendent 
or appropriate Area Director, tribal applicants shall submit a completed 
ICWA application no later than 60 days after the receipt of this notice.
    (2) A grant to be awarded under this subpart shall be limited to the 
tribal governing body(ies) of the tribe(s) to be served by the grant.
    (3) For purposes of eligibility for newly recognized or restored 
Indian tribes without established reservations, such tribes shall be 
deemed eligible to apply for grants under this subpart to provide ICWA 
services within those service areas legislatively identified for such 
tribes.
    (4) A grantee under this subpart may make a subgrant to another 
Indian tribe or an Indian organization subject to the provisions of 
Sec. 23.45.
    (c) Revision or amendment of grants. A grantee under this subpart 
may submit a written request and justification for a post-award grant 
modification covering material changes to the terms and conditions of 
the grant, subject to the approval of the grants officer. The request 
shall include a narrative description of any significant additions, 
deletions, or changes to the approved program activities or budget in 
the form of a grant amendment proposal.
    (d) Continued annual funding of an ICWA grant under this subpart 
shall be

[[Page 89]]

contingent upon the fulfillment of the requirements delineated at 
Sec. 23.23(c).
    (e) Monitoring and program reporting requirements for grantees under 
this subpart are delineated at Secs. 23.44 and 23.47.



Sec. 23.22  Purpose of tribal government grants.

    (a) Grants awarded under this subpart are for the establishment and 
operation of tribally designed Indian child and family service programs. 
The objective of every Indian child and family service program shall be 
to prevent the breakup of Indian families and to ensure that the 
permanent removal of an Indian child from the custody of his or her 
Indian parent or Indian custodian shall be a last resort. Such child and 
family service programs may include, but need not be limited to:
    (1) A system for licensing or otherwise regulating Indian foster and 
adoptive homes, such as establishing tribal standards for approval of 
on-reservation foster or adoptive homes;
    (2) The operation and maintenance of facilities for counseling and 
treatment of Indian families and for the temporary custody of Indian 
children with the goal of strengthening Indian families and preventing 
parent-child separations;
    (3) Family assistance, including homemaker and home counselors, 
protective day care and afterschool care, recreational activities, 
respite care, and employment support services with the goal of 
strengthening Indian families and contributing to family stability;
    (4) Home improvement programs with the primary emphasis on 
preventing the removal of children due to unsafe home environments by 
making homes safer, but not to make extensive structural home 
improvements;
    (5) The employment of professional and other trained personnel to 
assist the tribal court in the disposition of domestic relations and 
child welfare matters, but not to establish tribal court systems;
    (6) Education and training of Indians, including tribal court judges 
and staff, in skills relating to child and family assistance and service 
programs;
    (7) A subsidy program under which Indian adoptive children not 
eligible for state or BIA subsidy programs may be provided support 
comparable to that for which they could be eligible as foster children, 
taking into account the appropriate state standards of support for 
maintenance and medical needs;
    (8) Guidance, legal representation and advice to Indian families 
involved in tribal, state, or Federal child custody proceedings; and
    (9) Other programs designed to meet the intent and purposes of the 
Act.
    (b) Grants may be provided to tribes in the preparation and 
implementation of child welfare codes within their jurisdiction or 
pursuant to a tribal-state agreement.
    (c) Grantees under this subpart may enhance their capabilities by 
utilizing ICWA funds as non-Federal matching shares in connection with 
funds provided under titles IV-B, IV-E and XX of the Social Security Act 
or other Federal programs which contribute to and promote the intent and 
purposes of the Act through the provision of comprehensive child and 
family services in coordination with other tribal, Federal, state, and 
local resources available for the same purpose.
    (d) Program income resulting from the operation of programs under 
this subpart, such as day care operations, may be retained and used for 
purposes similar to those for which the grant was awarded.



Sec. 23.23  Tribal government application contents.

    (a) The appropriate Area Director shall, subject to the tribe's 
fulfillment of the mandatory application requirements and the 
availability of appropriated funds, make a grant to the tribal governing 
body of a tribe or consortium of tribes eligible to apply for a grant 
under this subpart.
    (b) The following mandatory tribal application requirements must be 
submitted to the appropriate Agency Superintendent or Area Director in 
accordance with the timeframe established in Sec. 23.21 (b) of this 
subpart:
    (1) A current tribal resolution requesting a grant by the Indian 
tribe(s) to be served by the grant. If an applicant is applying for a 
grant benefiting

[[Page 90]]

more than one tribe (consortium), an authorizing resolution from each 
tribal government to be served must be included. The request must be in 
the form of a current tribal resolution by the tribal governing body and 
shall include the following information:
    (i) The official name of tribe(s) applying for the grant and who 
will directly benefit from or receive services from the grant;
    (ii) The proposed beginning and ending dates of the grant;
    (iii) A provision stating that the resolution will remain in effect 
for the duration of the program or until the resolution expires or is 
rescinded; and
    (iv) The signature of the authorized representative of the tribal 
government and the date thereof.
    (2) A completed Application for Federal Assistance form, SF-424.
    (3) A narrative needs assessment of the social problems or issues 
affecting the resident Indian population to be served; the geographic 
area(s) to be served; and estimated number of resident Indian families 
and/or persons to receive benefits or services from the program.
    (4) A comprehensive developmental multi-year plan in narrative form 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems or 
issues. At a minimum, the plan must include:
    (i) The program goals and objectives, stated in measurable terms, to 
be achieved through the grant;
    (ii) A narrative description of how Indian families and communities 
will benefit from the program; and
    (iii) The methodology, including culturally defined approaches, and 
procedures by which the tribe(s) will accomplish the identified goals 
and objectives.
    (5) An internal monitoring system to measure progress and 
accomplishments, and to assure that the quality and quantity of actual 
performance conforms to the requirements of the grant.
    (6) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services.
    (i) The plan must include proposed key personnel; their 
qualifications, training or experience relevant to the services to be 
provided; responsibilities; Indian preference criteria for employment; 
and position descriptions.
    (ii) In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), 
title IV, the Indian Child Protection and Family Violence Prevention 
Act, grantees shall conduct character and background investigations of 
those personnel identified in that statute. Grantees must initiate 
character and background investigations of said personnel prior to their 
actual employment, and complete the investigations in a timely manner.
    (7) A program budget and budget narrative justification submitted on 
an annual basis for the amount of the award and supported by the 
proposed plan, appropriate program services and activities for the 
applicable grant year.
    (8) Identification of any consultants and/or subgrantees the 
applicant proposes to employ; a description of the consultant and/or 
subgrantee services to be rendered; the qualifications and experience in 
performing the identified services; and the basis for the cost and 
amount to be paid for such services.
    (9) A certification by a licensed accountant that the bookkeeping 
and accounting procedures which the tribe(s) uses or intends to use meet 
existing Federal standards for grant management and administration 
specified at Sec. 23.46.
    (10) A system for managing property and recordkeeping which complies 
with subpart D of 43 CFR part 2 implementing the Privacy Act (5 U.S.C. 
552a) and with existing Federal requirements for grants at 25 CFR 276.5 
and 276.11, including the maintenance and safeguarding of direct service 
case records on families and/or individuals served by the grant.
    (11) A listing of equipment, facilities, and buildings necessary to 
carry out the grant program. Liability insurance coverage for buildings 
and their contents is recommended for grantees under this subpart.
    (12) Pursuant to the Drug-Free Workplace Act of 1988, tribal 
programs shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory

[[Page 91]]

requirement for Federal grant recipients.
    (c) Continued annual funding of an ICWA program under this subpart 
shall be contingent upon the existing grant program receiving a 
satisfactory program evaluation from the area social services office for 
the previous year of operation. A copy of this evaluation must be 
submitted together with an annual budget and budget narrative 
justification in accordance with paragraph (b)(7) of this section. 
Minimum standards for receiving a satisfactory evaluation shall include:
    (1) The timely submission of all fiscal and programmatic reports;
    (2) A narrative program report indicating work accomplished in 
accordance with the applicant's approved multi-year plan and, if 
applicable, a description of any modification in programs or activities 
to be funded in the next fiscal year; and
    (3) The implementation of mutually determined corrective action 
measures, if applicable.



 Subpart D--Grants to Off-Reservation Indian Organizations for Title II 
                Indian Child and Family Service Programs



Sec. 23.31  Competitive off-reservation grant process.

    (a) Grant application procedures and related information may be 
obtained from the Area Director designated at Sec. 23.11 for processing 
ICWA notices for the state in which the applicant is located. Pre-award 
and ongoing technical assistance of off-reservation Indian organization 
grantees shall be provided in accordance with Sec. 23.42.
    (b) Prior to the beginning of or during the applicable year(s) in 
which grants for off-reservation programs will be awarded competitively, 
the Assistant Secretary--Indian Affairs shall publish in the Federal 
Register an announcement of the grant application process for the 
year(s), including program priorities or special considerations (if 
any), applicant eligibility criteria, the required application contents, 
the amount of available funding and evaluation criteria for off-
reservation programs.
    (c) Based on the announcement described in paragraph (b) of this 
section, an off-reservation applicant shall prepare a multi-year 
developmental application in accordance with Sec. 23.33 of this subpart. 
To be considered in the area competitive review and scoring process, a 
complete application must be received by the deadline announced in the 
Federal Register by the Area Director designated at Sec. 23.11 for 
processing ICWA notices for the state in which the applicant is located.
    (d) Eligibility requirements for off-reservation Indian 
organizations. The Secretary or his/her designee shall, contingent upon 
the availability of funds, make a multi-year grant under this subpart 
for an off-reservation program when officially requested by a resolution 
of the board of directors of the Indian organization applicant, upon the 
applicant's fulfillment of the mandatory application requirements and 
upon the applicant's successful competition pursuant to Sec. 23.33 of 
this subpart.
    (e) A grant under this subpart for an off-reservation Indian 
organization shall be limited to the board of directors of the Indian 
organization which will administer the grant.
    (f) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon the 
grantee's fulfillment of the requirements delineated at Sec. 23.33 (e).
    (g) Monitoring and program reporting requirements for grants awarded 
to off-reservation Indian organizations under this subpart are 
delineated at Secs. 23.44 and 23.47.



Sec. 23.32  Purpose of off-reservation grants.

    The Secretary or his/her designee is authorized to make grants to 
off-reservation Indian organizations to establish and operate off-
reservation Indian child and family service programs for the purpose of 
stabilizing Indian families and tribes, preventing the breakup of Indian 
families and, in particular, to ensure that the permanent removal of an 
Indian child from the custody of his/her Indian parent or Indian 
custodian shall be a last resort. Child and family

[[Page 92]]

service programs may include, but are not limited to:
    (a) A system for regulating, maintaining, and supporting Indian 
foster and adoptive homes, including a subsidy program under which 
Indian adoptive children may be provided support comparable to that for 
which they would be eligible as Indian foster children, taking into 
account the appropriate state standards of support for maintenance and 
medical needs;
    (b) The operation and maintenance of facilities and services for 
counseling and treatment of Indian families and Indian foster and 
adoptive children with the goal of strengthening and stabilizing Indian 
families;
    (c) Family assistance (including homemaker and home counselors), 
protective day care and afterschool care, employment support services, 
recreational activities, and respite care with the goal of strengthening 
Indian families and contributing toward family stability; and
    (d) Guidance, legal representation and advice to Indian families 
involved in state child custody proceedings.



Sec. 23.33  Competitive off-reservation application contents and application selection criteria.

    (a) An application for a competitive multi-year grant under this 
subpart shall be submitted to the appropriate Area Director prior to or 
on the announced deadline date published in the Federal Register. The 
Area Director shall certify the application contents pursuant to 
Sec. 23.34 and forward the application within five working days to the 
area review committee, composed of members designated by the Area 
Director, for competitive review and action. Modifications and/or 
information received after the close of the application period, as 
announced in the Federal Register, shall not be reviewed or considered 
by the area review committee in the competitive process.
    (b) Mandatory application requirements for Indian organization 
applicants shall include:
    (1) An official request for an ICWA grant program from the 
organization's board of directors covering the duration of the proposed 
program;
    (2) A completed Application for Federal Assistance form, SF 424;
    (3) Written assurances that the organization meets the definition of 
Indian organization at Sec. 23.2;
    (4) A copy of the organization's current Articles of Incorporation 
for the applicable grant years;
    (5) Proof of the organization's nonprofit status;
    (6) A copy of the organization's IRS tax exemption certificate and 
IRS employer identification number;
    (7) Proof of liability insurance for the applicable grant years; and
    (8) Current written assurances that the requirements of Circular A-
128 for fiscal management, accounting, and recordkeeping are met.
    (9) Pursuant to the Drug-Free Workplace Act of 1988, all grantees 
under this subpart shall comply with the mandatory Drug-Free Workplace 
Certification, a regulatory requirement for Federal grant recipients.
    (c) Competitive application selection criteria. The Area Director or 
his/her designated representative shall select those proposals which 
will in his/her judgment best promote the proposes of the Act. Selection 
shall be made through the area review committee process in which each 
application will be scored individually and ranked according to score, 
taking into consideration the mandatory requirements as specified above 
and the following selection criteria:
    (1) The degree to which the application reflects an understanding of 
the social problems or issues affecting the resident Indian client 
population which the applicant proposes to serve;
    (2) Whether the applicant presents a narrative needs assessment, 
quantitative data and demographics of the client Indian population to be 
served;
    (3) Estimates of the number of Indian people to receive benefits or 
services from the program based on available data;
    (4) Program goals and objectives to be achieved through the grant;
    (5) A comprehensive developmental multi-year narrative plan 
describing what specific services and/or activities will be provided 
each program year and addressing the above-identified social problems or 
issues. At a minimum, the

[[Page 93]]

plan must include a narrative description of the program; the program 
goals and objectives, stated in measurable terms, to be achieved through 
the grant; and the methodology, including culturally defined approaches, 
and procedures by which the grantee will accomplish the identified goals 
and objectives;
    (6) An internal monitoring system the grantee will use to measure 
progress and accomplishments, and to ensure that the quality and 
quantity of actual performance conforms to the requirements of the 
grant;
    (7) Documentation of the relative accessibility which the Indian 
population to be served under a specific proposal already has to 
existing child and family service programs emphasizing the prevention of 
Indian family breakups, such as mandatory state services. Factors to be 
considered in determining accessibility include:
    (i) Cultural barriers;
    (ii) Discrimination against Indians;
    (iii) Inability of potential Indian clientele to pay for services;
    (iv) Technical barriers created by existing public or private 
programs;
    (v) Availability of transportation to existing programs;
    (vi) Distance between the Indian community to be served under the 
proposal and the nearest existing programs;
    (vii) Quality of services provided to Indian clientele; and
    (viii) Relevance of services provided to specific needs of the 
Indian clientele.
    (8) If the proposed program duplicates existing Federal, state, or 
local child and family service programs emphasizing the prevention of 
Indian family breakups, proper and current documented evidence that 
repeated attempts to obtain services have been unsuccessful;
    (9) Evidence of substantial support from the Indian community or 
communities to be served, including but not limited to:
    (i) Tribal support evidenced by a tribal resolution or cooperative 
service agreements between the administrative bodies of the affected 
tribe(s) and the applicant for the duration of the grant period, or
    (ii) Letters of support from social services organizations familiar 
with the applicant's past work experience;
    (10) A staffing plan that is consistent with the implementation of 
the above-described program plan of operation and the procedures 
necessary for the successful delivery of services. The plan must include 
proposed key personnel, their qualifications, training or experience 
relevant to the services to be provided, responsibilities, Indian 
preference criteria for employment and position descriptions. In 
accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), Title IV, the 
Indian Child Protection and Family Violence Prevention Act, grantees 
shall conduct character and background investigations of those personnel 
identified in that statute prior to their actual employment;
    (11) The reasonableness and relevance of the estimated overall costs 
of the proposed program or services and their overall relation to the 
organization's funding base, activities, and mission;
    (12) The degree to which the detailed annual budget and 
justification for the requested funds are consistent with, and clearly 
supported by, the proposed plan and by appropriate program services and 
activities for the applicable grant year;
    (13) The applicant's identification of any consultants and/or 
subgrantees it proposes to employ; description of the services to be 
rendered; the qualifications and experience of said personnel, 
reflecting the requirements for performing the identified services; and 
the basis for the cost and the amount to be paid for such services;
    (14) Certification by a licensed accountant that the bookkeeping and 
accounting procedures that the applicant uses or intends to use meet 
existing Federal standards for grant administration and management 
specified at Sec. 23.46;
    (15) The compliance of property management and recordkeeping systems 
with subpart D of 43 CFR part 2 (the Privacy Act, 5 U.S.C. 552a), and 
with existing Federal requirements for grants at 25 CFR 276.5 and 
276.11, including the maintenance and safeguarding of direct service 
case records on families and/or individuals served by the grant;

[[Page 94]]

    (16) A description of the proposed facilities, equipment, and 
buildings necessary to carry out the grant activities; and
    (17) Proof of liability insurance coverage for the applicable grant 
year(s).
    (d) Two or more applications receiving the same competitive score 
will be prioritized in accordance with announcements made in the Federal 
Register pursuant to Sec. 23.31 (b) for the applicable year(s).
    (e) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon the 
availability of appropriated funds and upon the existing grant program 
receiving a satisfactory program evaluation from the area social 
services office for the previous year of operation. A copy of this 
evaluation shall be submitted together with an annual budget and budget 
narrative justification in accordance with paragraph (c)(10) of this 
section. Minimum standards for receiving a satisfactory evaluation shall 
include the timely submission of all fiscal and programmatic reports; a 
narrative program report indicating work accomplished in accordance with 
the initial approved multi-year plan; and the implementation of mutually 
determined corrective action measures, if applicable.



Sec. 23.34  Review and decision on off-reservation applications by Area Director.

    (a) Area office certification. Upon receipt of an application for a 
grant by an off-reservation Indian organization at the area office, the 
Area Director shall:
    (1) Complete and sign the area office certification form. In 
completing the area certification form, the Area Director shall assess 
and certify whether applications contain and meet all the application 
requirements specified at Sec. 23.33. Area Directors shall be 
responsible for the completion of the area office certification forms 
for all applications submitted by off-reservation Indian organizations.
    (2) Acknowledge receipt of the application to the applicant and 
advise the applicant of the disposition of the application within 10 
days of receipt; and
    (3) Transmit all applications within five working days of receipt to 
the area review committee for competitive review and subsequent approval 
or disapproval of the applications.
    (b) Area office competitive review and decision for off-reservation 
applications. Upon receipt of an application for an off-reservation 
grant under this part requiring the approval of the Area Director, the 
Area Director shall:
    (1) Establish and convene an area review committee, chaired by a 
person qualified by knowledge, training and experience in the delivery 
of Indian child and family services.
    (2) Review the area office certification form required in paragraph 
(a) of this section.
    (3) Review the application in accordance with the competitive review 
procedures prescribed in Sec. 23.33. An application shall not receive 
approval for funding under the area competitive review and scoring 
process unless a review of the application determines that it:
    (i) Contains all the information required in Sec. 23.33 which must 
be received by the close of the application period. Modifications of the 
grant application received after the close of the application period 
shall not be considered in the competitive review process.
    (ii) Receives at least the established minimum score in an area 
competitive review, using the application selection criteria and scoring 
process set out in Sec. 23.33. The minimum score shall be established by 
the Central Office prior to each application period and announced in the 
Federal Register for the applicable grants year(s).
    (4) Approve or disapprove the application and promptly notify the 
applicant in writing of the approval or disapproval of the application. 
If the application is disapproved, the Area Director shall include in 
the written notice the specific reasons therefore.
    (c) The actual funding amounts for the initial grant year shall be 
subject to appropriations available nationwide and the continued funding 
of an approved off-reservation grant application under subpart D of this 
part shall be subject to available funds received

[[Page 95]]

by the respective area office for the applicable grant year. Initial 
funding decisions and subsequent decisions with respect to funding level 
amounts for all approved grant applications under this part shall be 
made by the Area Director.



Sec. 23.35  Deadline for Central Office action.

    Within 30 days of the receipt of grant reporting forms from the Area 
Directors identifying approved and disapproved applications pursuant to 
subpart D of this part and recommended funding levels for approved 
applications, the Secretary or his/her designee shall process the Area 
Directors' funding requests.



   Subpart E--General and Uniform Grant Administration Provisions and 
                              Requirements



Sec. 23.41  Uniform grant administration provisions, requirements and applicability.

    The general and uniform grant administration provisions and 
requirements specified at 25 CFR part 276 and under this subpart are 
applicable to all grants awarded to tribal governments and off-
reservation Indian organizations under this part, except to the extent 
inconsistent with an applicable Federal statute, regulation or OMB 
circular.



Sec. 23.42  Technical assistance.

    (a) Pre-award and ongoing technical assistance may be requested by 
an Indian tribe or off-reservation Indian organization from the 
appropriate agency or area office to which the tribe or organization 
will be submitting an application for funds under subparts C and D of 
this part. A request for pre-award technical assistance by an off-
reservation Indian organization must be received by the Area Director 
designated at Sec. 23.11 for the state in which the applicant is located 
no later than 10 days prior to the application deadline to assure 
sufficient time for area response.
    (b) Pre-award and ongoing technical assistance may be provided by 
the appropriate BIA agency or area office for purposes of program 
planning and design, assistance in establishing internal program 
monitoring and evaluation criteria for ongoing grant administration and 
management, and for other appropriate assistance requested.
    (c) The area social services staff shall provide technical 
assistance to grantees upon receipt of an authorized request from the 
grantee or when review of the grantee's quarterly performance reports 
shows that:
    (1) An ICWA program is yielding results that are or will be 
detrimental to the welfare of the intended Indian beneficiaries of the 
program;
    (2) A program has substantially failed to implement its goals and 
objectives;
    (3) There are serious irregularities in the fiscal management of the 
grant; or
    (4) The grantee is otherwise deficient in its program performance.
    (5) Upon receiving an authorized request from the grantee, the area 
social services staff and/or grants officer shall provide the necessary 
technical assistance to arrive at mutually determined corrective action 
measures and their actual implementation, if necessary, and the 
timeframes within which said corrective actions will be implemented.



Sec. 23.43  Authority for grant approval and execution.

    (a) Tribal government programs. The appropriate Agency 
Superintendent or Area Director may approve a grant application and its 
subsequent execution under subpart C when the intent, purpose and scope 
of the application pertains solely to reservations located within the 
service area jurisdiction of the agency or area office.
    (b) Off-reservation programs. The appropriate Area Director may 
approve a grant application and its subsequent execution under subpart D 
when the intent, purpose and scope of the grant proposal pertains to 
off-reservation Indian service populations or programs.



Sec. 23.44  Grant administration and monitoring.

    All grantees under this part shall be responsible for managing day-
to-day program operations to ensure that program performance goals are 
being achieved and to ensure compliance with the provisions of the grant 
award document and other applicable Federal

[[Page 96]]

requirements. Unless delegated to the Agency Superintendent, appropriate 
area office personnel designated by the Area Director shall be 
responsible for all grant program and fiscal monitoring 
responsibilities.



Sec. 23.45  Subgrants.

    A tribal government grantee may make a subgrant under subpart C of 
this part, provided that such subgrants are for the purpose for which 
the grant was made and that the grantee retains administrative and 
financial responsibility over the activity and the funds.



Sec. 23.46  Financial management, internal and external controls and other assurances.

    Grantee financial management systems shall comply with the following 
standards for accurate, current and complete disclosure of financial 
activities.
    (a) OMB Circular A-87 (Cost principles for state and local 
governments and federally recognized Indian tribal governments).
    (b) OMB Circular A-102 (Common rule 43 CFR part 12).
    (c) OMB Circular A-128 (Single Audit Act).
    (d) OMB Circular A-110 or 122 (Cost principles for non-profit 
organizations and tribal organizations, where applicable).
    (e) Internal control. Effective control and accountability must be 
maintained for all grants. Grantees must adequately safeguard any 
property and must ensure that it is used solely for authorized purposes.
    (f) Budget control. Actual expenditures must be compared with 
budgeted amounts for the grant. Financial information must be related to 
program performance requirements.
    (g) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, grant documents, or other information 
required by the grantee's financial management system. The Secretary or 
his/her designee may review the adequacy of the financial management 
system of an Indian tribe(s) or off-reservation Indian organization 
applying for a grant under this part.
    (h) Pursuant to 18 U.S.C. 641, whoever embezzles, steals, purloins, 
or knowingly converts to his or her use or the use of another, or 
without authority, sells, conveys or disposes of any record, voucher, 
money, or thing of value of the United States or of any department or 
agency thereof, or any property made or being made under contract for 
the United States or any department or agency thereof; or whoever 
receives, conceals, or retains the same with intent to convert it to his 
or her use or gain, knowing it to have been embezzled, stolen, 
purloined, or converted shall be fined not more than $10,000 or 
imprisoned not more than 10 years, or both; but if the value of such 
property does not exceed the sum of $100, he or she shall be fined not 
more than $1,000 or imprisoned not more than one year, or both.



Sec. 23.47  Reports and availability of information to Indians.

    (a) Any tribal government or off-reservation Indian organization 
receiving a grant under this part shall make general programmatic 
information and reports concerning that grant available to the Indian 
people it serves or represents. Access to this information may be 
requested in writing and shall be made available within 10 days of 
receipt of the request. Except as required by title IV of Pub. L. 101-
630, the Indian Child Protection and Family Violence Prevention Act, 
grantees shall hold confidential all information obtained from persons 
receiving services from the program, and shall not release such 
information without the individual's written consent. Information may be 
disclosed in a manner which does not identify or lead to the 
identification of particular individuals.
    (b) Grantees shall submit Standard Form 269 or 269A on a quarterly 
and an annual basis to report their status of funds by the dates 
specified in the grant award document.
    (c) Grantees shall furnish and submit the following written 
quarterly and annual program reports by the dates specified in the award 
document:

[[Page 97]]

    (1) Quarterly and annual statistical and narrative program 
performance reports which shall include, but need not be limited to, the 
following;
    (i) A summary of actual accomplishments and significant activities 
as related to program objectives established for the grant period;
    (ii) The grantee's evaluation of program performance using the 
internal monitoring system submitted in their application;
    (iii) Reports on all significant ICWA direct service grant 
activities including but not limited to the following information:
    (A) Significant title II activities;
    (B) Data reflecting numbers of individuals referred for out-of-home 
placements, number of individuals benefiting from title II services and 
types of services provided, and
    (C) Information and referral activities.
    (iv) Child abuse and neglect statistical reports and related 
information as required by 25 U.S.C. 2434, Pub. L. 99-570, the Indian 
Alcohol and Substance Abuse Prevention and Treatment Act of 1986;
    (v) A summary of problems encountered or reasons for not meeting 
established objectives;
    (vi) Any deliverable or product required in the grant; and
    (vii) Additional pertinent information when appropriate.
    (2) The BIA may negotiate for the provision of other grant-related 
reports not previously identified.
    (d) Events may occur between scheduled performance reporting dates 
which have significant impact on the grant-supported activity. In such 
cases, the grantee must inform the awarding agency as soon as problems, 
delays, adverse conditions, or serious incidents giving rise to 
liability become known and which will materially impair its ability to 
meet the objectives of the grant.



Sec. 23.48  Matching shares and agreements.

    (a) Grant funds provided to Indian tribes under subpart C of this 
part may be used as non-Federal matching shares in connection with funds 
provided under titles IV-B, IV-E and XX of the Social Security Act or 
such other Federal programs which contribute to and promote the purposes 
of the Act as specified in Secs. 23.3 and 23.22 (25 U.S.C. 1931).
    (b) Pursuant to 25 U.S.C. 1933, in furtherance of the establishment, 
operation, and funding of programs funded under subparts C and D of this 
part, the Secretary may enter into agreements with the Secretary of 
Health and Human Services. The latter Secretary is authorized by the Act 
to use funds appropriated for the Department of Health and Human 
Services for programs similar to those funded under subparts C and D of 
this part (25 U.S.C. 1931 and 1932), provided that authority to make 
payment pursuant to such agreements shall be effective only to the 
extent and in such amounts as may be provided in advance by 
appropriation Acts.



Sec. 23.49  Fair and uniform provision of services.

    (a) Grants awarded under this part shall include provisions assuring 
compliance with the Indian Civil Rights Act; prohibiting discriminatory 
distinctions among eligible Indian beneficiaries; and assuring the fair 
and uniform provision by the grantees of the services and assistance 
they provide to eligible Indian beneficiaries under such grants. Such 
procedures must include criteria by which eligible Indian beneficiaries 
will receive services, recordkeeping mechanisms adequate to verify the 
fairness and uniformity of services in cases of formal complaints, and 
an explanation of what rights will be afforded an individual pending the 
resolution of a complaint.
    (b) Indian beneficiaries of the services to be rendered under a 
grant shall be afforded access to administrative or judicial bodies 
empowered to adjudicate complaints, claims, or grievances brought by 
such Indian beneficiaries against the grantee arising out of the 
performance of the grant.



Sec. 23.50  Service eligibility.

    (a) Tribal government Indian child and family service programs. Any 
person meeting the definition of Indian, Indian child, Indian custodian, 
or Indian parent of any unmarried person

[[Page 98]]

under the age of 18 as defined in Sec. 23.2 is eligible for services 
provided under 25 U.S.C. 1931 of the Act. Tribal membership status shall 
be determined by tribal law, ordinance, or custom. The tribe may, under 
subpart C, extend services to nontribal family members related by 
marriage to tribal members, provided such services promote the intent 
and purposes of the Act. A tribe may also, within available resources, 
extend services under this part to individuals who are members of, or 
are eligible for membership in other Indian tribes, and who reside 
within the tribe's designated service area.
    (b) Off-reservation Indian child and family service programs and 
agreements with the Secretary of Health and Human Services pursuant to 
25 U.S.C. 1933. For purposes of eligibility for services provided under 
25 U.S.C. 1932 and 1933 of the Act, any person meeting the definition of 
Indian, Indian child, Indian custodian, or Indian parent of any 
unmarried person under the age of 18 as defined in Sec. 23.2, or the 
definition of Indian as defined in 25 U.S.C. 1603(c), shall be eligible 
for services. Tribal membership status shall be determined by tribal 
law, ordinance, or custom.



Sec. 23.51  Grant carry-over authority.

    Unless restricted by appropriation, and contingent upon satisfactory 
program evaluations from the appropriate area or agency office for an 
existing program, grantees are authorized to carry over unliquidated 
grant funds which remain at the end of a budget period. Such funds may 
be carried over for a maximum period of two years beyond the initial 
grant funding period and must be utilized only for the intent, purpose 
and scope of the original grant. These carry-over grant funds shall not 
be reprogrammed into other appropriation activities or subactivities. 
Funds carried over into another fiscal year will be added to the 
grantee's new fiscal year funding amount.



Sec. 23.52  Grant suspension.

    (a) When a grantee has materially failed to comply and remains out 
of compliance with the terms and conditions of the grant, the grants 
officer may, after reasonable notice to the grantee and the provision of 
requested technical assistance, suspend the grant. The notice preceding 
the suspension shall include the effective date of the suspension, the 
corrective measures necessary for reinstatement of the grant and, if 
there is no immediate threat to safety, a reasonable timeframe for 
corrective action prior to actual suspension.
    (b) No obligation incurred by the grantee during the period of 
suspension shall be allowable under the suspended grant, except that the 
grants officer may at his/her discretion allow necessary and proper 
costs which the grantee could not reasonably avoid during the period of 
suspension if such costs would otherwise be allowable under the 
applicable cost principles.
    (c) Appropriate adjustments to the payments under the suspended 
grant will be made either by withholding the payments or by not allowing 
the grantee credit for disbursements which the grantee may make in 
liquidation of unauthorized obligations the grantee incurs during the 
period of suspension.
    (d) Suspension shall remain in effect until the grantee has taken 
corrective action to the satisfaction of the grants officer, or given 
assurances satisfactory to the grants officer that corrective action 
will be taken, or until the grants officer cancels the grant.



Sec. 23.53  Cancellation.

    (a) The grants officer may cancel any grant, in whole or in part, at 
any time before the date of completion whenever it is determined that 
the grantee has:
    (1) Materially failed to comply with the terms and conditions of the 
grant;
    (2) Violated the rights as specified in Sec. 23.49 or endangered the 
health, safety, or welfare of any person; or
    (3) Been grossly negligent in, or has mismanaged the handling or use 
of funds provided under the grant.
    (b) When it appears that cancellation of the grant will become 
necessary, the grants officer shall promptly notify the grantee in 
writing of this possibility. This written notice shall advise the 
grantee of the reason for the possible cancellation and the corrective 
action necessary to avoid cancellation. The grants officer shall also 
offer, and shall provide, if requested by the grantee,

[[Page 99]]

any technical assistance which may be required to effect the corrective 
action. The grantee shall have 60 days in which to effect this 
corrective action before the grants officer provides notice of intent to 
cancel the grant as provided for in paragraph (c) of this section.
    (c) Upon deciding to cancel for cause, the grants officer shall 
promptly notify the grantee in writing of that decision, the reason for 
the cancellation, and the effective date. The Area Director or his/her 
designated official shall also provide a hearing for the grantee before 
cancellation. However, the grants officer may immediately cancel the 
grant, upon notice to the grantee, if the grants officer determines that 
continuance of the grant poses an immediate threat to safety. In this 
event, the Area Director or his/her designated official shall provide a 
hearing for the grantee within 10 days of the cancellation.
    (d) The hearing referred to in paragraph (c) of this section shall 
be conducted as follows:
    (1) The grantee affected shall be notified, in writing, at least 10 
days before the hearing. The notice should give the date, time, place, 
and purpose of the hearing.
    (2) A written record of the hearing shall be made. The record shall 
include written statements submitted at the hearing or within five days 
following the hearing.



                           Subpart F--Appeals



Sec. 23.61  Appeals from decision or action by Agency Superintendent, Area Director or Grants Officer.

    A grantee or prospective applicant may appeal any decision made or 
action taken by the Agency Superintendent, Area Director, or grants 
officer under subpart C or E of this part. Such an appeal shall be made 
to the Assistant Secretary who shall consider the appeal in accordance 
with 25 CFR 2.20 (c) through (e). Appeal procedures shall be as set out 
in part 2 of this chapter.



Sec. 23.62  Appeals from decision or action by Area Director under subpart D.

    A grantee or applicant may appeal any decision made or action taken 
by the Area Director under subpart D that is alleged to be in violation 
of the U.S. Constitution, Federal statutes, or the regulations of this 
part. These appeals shall be filed with the Interior Board of Indian 
Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through 4.318 
and 43 CFR 4.330 through 4.340. However, an applicant may not appeal a 
score assigned to its application or the amount of grant funds awarded.



Sec. 23.63  Appeals from inaction of official.

    A person or persons whose interests are adversely affected, or whose 
ability to protect such interests is impeded by the failure of an 
official to act on a request to the official, may make the official's 
inaction the subject of an appeal under part 2 of this chapter.



                  Subpart G--Administrative Provisions



Sec. 23.71  Recordkeeping and information availability.

    (a)(1) Any state court entering a final decree or adoptive order for 
any Indian child shall provide the Secretary or his/her designee within 
30 days a copy of said decree or order, together with any information 
necessary to show:
    (i) The Indian child's name, birthdate and tribal affiliation, 
pursuant to 25 U.S.C. 1951;
    (ii) Names and addresses of the biological parents and the adoptive 
parents; and
    (iii) Identity of any agency having relevant information relating to 
said adoptive placement.
    (2) To assure and maintain confidentiality where the biological 
parent(s) have by affidavit requested that their identity remain 
confidential, a copy of such affidavit shall be provided to the 
Secretary or his/her designee. Information provided pursuant to 25 
U.S.C. 1951(a) is not subject to the Freedom of Information Act (5 
U.S.C. 552), as amended. The Secretary or his/her designee shall ensure 
that the confidentiality of such information is maintained. The address 
for transmittal of information required by 25 U.S.C. 1951(a) is: Chief, 
Division of Social Services, Bureau of Indian Affairs, 1849 C Street, 
NW., Mail Stop 310-SIB, Washington, DC 20240. The envelope

[[Page 100]]

containing all such information should be marked ``Confidential.'' This 
address shall be sent to the highest court of appeal, the Attorney 
General and the Governor of each state. In some states, a state agency 
has been designated to be repository for all state court adoption 
information. Where such a system is operative, that agency may assume 
reporting responsibilities for the purposes of the Act.
    (b) The Division of Social Services, Bureau of Indian Affairs, is 
authorized to receive all information and to maintain a central file on 
all state Indian adoptions. This file shall be confidential and only 
designated persons shall have access to it. Upon the request of an 
adopted Indian individual over the age of 18, the adoptive or foster 
parents of an Indian child, or an Indian tribe, the Division of Social 
Services shall disclose such information as may be necessary for 
purposes of tribal enrollment or determining any rights or benefits 
associated with tribal membership, except the names of the biological 
parents where an affidavit of confidentiality has been filed, to those 
persons eligible under the Act to request such information. The chief 
tribal enrollment officer of the BIA is authorized to disclose 
enrollment information relating to an adopted Indian child where the 
biological parents have by affidavit requested anonymity. In such cases, 
the chief tribal enrollment officer shall certify the child's tribe, 
and, where the information warrants, that the child's parentage and 
other circumstances entitle the child to enrollment consideration under 
the criteria established by the tribe.



                  Subpart H--Assistance to State Courts



Sec. 23.81  Assistance in identifying witnesses.

    Upon the request of a party in an involuntary Indian child custody 
proceeding or of a court, the Secretary or his/her designee shall assist 
in identifying qualified expert witnesses. Such requests for assistance 
shall be sent to the Area Director designated in Sec. 23.11(c). The BIA 
is not obligated to pay for the services of such expert witnesses.



Sec. 23.82  Assistance in identifying language interpreters.

    Upon the request of a party in an Indian child custody proceeding or 
of a court, the Secretary or his/her designee shall assist in 
identifying language interpreters. Such requests for assistance should 
be sent to the Area Director designated in Sec. 23.11(c). The BIA is not 
obligated to pay for the services of such language interpreters.



Sec. 23.83  Assistance in locating biological parents of Indian child after termination of adoption.

    Upon the request of a child placement agency, the court or an Indian 
tribe, the Secretary or his/her designee shall assist in locating the 
biological parents or prior Indian custodians of an adopted Indian child 
whose adoption has been terminated pursuant to 25 U.S.C. 1914. Such 
requests for assistance should be sent to the Area Director designated 
in Sec. 23.11(c).



PART 26--EMPLOYMENT ASSISTANCE FOR ADULT INDIANS--Table of Contents




 Subpart A--Definitions, Scope of the Employment Assistance Program and 
                         Information Collection

Sec.
26.1  Definitions.
26.2  Scope of the Employment Assistance Program.
26.3  Information collection.

                  Subpart B--Administrative Procedures

26.4  Filing applications.
26.5  Selection of applicants.
26.6  Program services and client participation.
26.7  Financial assistance for program participants.

                           Subpart C--Appeals

26.8  Appeals.

    Authority: 25 U.S.C. 13.

    Source: 49 FR 2098, Jan. 18, 1984, unless otherwise noted.

[[Page 101]]



 Subpart A--Definitions, Scope of the Employment Assistance Program and 
                         Information Collection



Sec. 26.1  Definitions.

    (a) Agency office means the current organization unit of the Bureau 
which provides direct services to the governing body or bodies and 
members of one or more specified Indian tribes.
    (b) Appeal means a written request for correction of an action or 
decision claimed to violate a person's legal rights or privileges as 
provided in part 2 of this chapter.
    (c) Applicant means an individual applying under this part.
    (d) Application means the process through which a request is made 
for assistance or services.
    (e) Area Director means the Bureau official in charge of an Area 
Office.
    (f) Contract office means the office established by a tribe or 
tribes who have a contract to administer the Employment Assistance 
Program.
    (g) Indian means any person of Indian or Alaska native descent who 
is an enrolled member of any of those tribes listed or eligible to be 
listed in the Federal Register pursuant to 25 CFR 83.6 as recognized by 
and receiving services from the Bureau of Indian Affairs or a descendant 
of one-fourth degree or more Indian blood of an enrolled member; and any 
person not a member of one of the listed or eligible to be listed tribes 
who possesses at least one-half degree of Indian blood which is not 
derived from a tribe whose relationship is terminated by an Act of 
Congress.
    (h) Indian tribe means any Indian tribe, band, nation or other 
organized group or community including any Alaska Native Village which 
is recognized by the Secretary of the Interior as having special rights 
and responsibilities and is recognized as eligible for the services 
provided by the United States to Indians because of their status as 
Indians.
    (i) Near reservation means those areas or communities adjacent or 
contiguous to reservations which are designated by the Assistant 
Secretary upon recommendation of the local Bureau superintendent, which 
recommendation shall be based upon agreement with the tribal governing 
body of those reservations, as locales appropriate for the extension of 
financial and/or social services, on the basis of such general criteria 
as:
    (1) Number of Indian people native to the reservation residing in 
the area,
    (2) Geographical proximity of the area to the reservation, and
    (3) Administrative feasibility of providing an adequate level of 
services to the area. The Assistant Secretary shall designate each area 
and publish the designations in the Federal Register.
    (j) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order or interpreted by court 
decision and over which a federally recognized Indian Tribal entity may 
exercise certain jurisdiction.
    (k) Superintendent means the Superintendent or Officer in Charge of 
any one of the Agency offices of the Bureau of Indian Affairs or his/her 
authorized representative.
    (l) Tribal governing body means the recognized entity empowered to 
exercise the governmental authority of a federally recognized tribe.



Sec. 26.2  Scope of the Employment Assistance Program.

    The purpose of the Employment Assistance Program is to assist Indian 
people who have a job skill to obtain and retain permanent employment. 
Within that framework, the program provides services to eligible 
Indians, as provided in Sec. 26.5, including vocational counseling and 
employment services on reservations and at other home areas, in 
communities near reservations and in off-reservation areas. Support 
services are also included, as provided in Sec. 26.6.



Sec. 26.3  Information collection.

    The information collection requirements contained in Secs. 26.4 and 
26.6 have been approved by the Office of Management and Budget (OMB) 
under 44 U.S.C. 3504(h) and are assigned clearance numbers 1076-0062 and 
1076-0061. Information necessary for an application for employment 
assistance will be submitted on an application form

[[Page 102]]

which may be obtained at a local Bureau of Indian Affairs Agency or 
tribal program contractor office. This information is being collected 
for the purpose of applying for Federal assistance. The information will 
be used to determine if an Indian person is eligible to participate in 
this program and to determine the amount of assistance needed. The 
obligation to respond is a requirement to obtain the benefits.



                  Subpart B--Administrative Procedures



Sec. 26.4  Filing applications.

    (a) Application for Employment Assistance services must be filed at 
Bureau of Indian Affairs Agency offices, or at facilities under contract 
with the Bureau or contract offices which are located on or near 
reservations or other geographic areas of eligibility. Applications are 
approved by the Agency Superintendent or designated contractor. An 
eligible applicant should apply, be funded and receive services at the 
servicing office nearest to his/her residence at the time of 
application.
    (b) For clarity and uniformity, application forms used will be in 
accordance with the requirements of the Paperwork Reduction Act, section 
3504(h) of Pub. L. 96-511.



Sec. 26.5  Selection of applicants.

    (a) Applicants must be adult Indians residing on or near Indian 
reservations and demonstrate a need for employment services.
    (b) An applicant must be unemployed or underemployed in order to 
receive employment services.
    (c) Selection of applicants shall be made without regard to sex or 
marital status.
    (d) Only those applicants who declare a desire and intent to accept 
and retain full time permanent employment at the employment location 
chosen shall be selected, with the exception of those individuals 
participating in the temporary summer placement program as provided in 
Sec. 26.6(b)(1).
    (e) Repeat employment services involving expenditure of grant funds 
are to be determined on an individual basis, considering ability, prior 
performance, need and motivation. No client shall automatically be 
entitled to funded repeat services. No more than two (2) funded repeat 
services for a client shall be allowed. Exceptions may be made if 
additional funded services not provided would create extreme hardship on 
the client. Applications are to be submitted with proper justification 
for repeat service to the Area Director for approval or disapproval.



Sec. 26.6  Program services and client participation.

    (a) When a request is made for employment services, the applicant 
shall be offered assistance to assess his/her job skills and work 
experience and to relate these to available employment opportunities. In 
many cases, applicants for placement services will already possess 
training skills, and/or experience sufficient for entry into job 
placement. In other cases, applicants may be encouraged to consider 
further education or training options as a preliminary to permanent 
employment. In any case, vocational counseling appropriate to the 
individual situation shall be made available.
    (b) Services may be provided either with or without the expenditure 
of financial grants depending upon the type of service requested and the 
need for financial assistance. Funds shall not be provided to finance 
temporary employment except for the following:
    (1) High school students who are at least 17 years of age or college 
students participating in summer placement programs to gain work 
experience and temporary income may receive limited funding as needed to 
enable such persons to secure and hold summer jobs. This special service 
will not count against the number of services allowed under 
Sec. 26.5(e).
    (2) Persons who have moved to an off-reservation area for permanent 
employment, through services of the Employment Assistance program, may 
at times be required to accept temporary employment until permanent 
employment is available. Such persons may receive funds as needed within 
established limitations and justifiable circumstances, as allowed by the 
Area Director, until permanent employment is found and/or the need is 
met.

[[Page 103]]

    (c) Permanent employment shall normally be defined as employment 
which is generally anticipated to be of one year or more in duration. 
Employment in the construction or other trades where moving from one job 
to another is generally required of persons engaged in such occupations 
shall be considered as permanent employment.
    (d) In those cases where applicants apply and are selected for 
employment services in off-reservation urban locations, a variety of 
services may be provided, based upon individual client needs and 
requests for assistance. These may include advice in rental of housing, 
shopping, money management, community adjustment, counseling, applying 
for and seeking employment, and emergency financial assistance for up to 
six months from the date of entry into this program. Continuing non-
financial assistance, as needed, shall remain indefinitely available.
    (e) Assistance as needed may be provided to enable clients who move 
for employment to an off-reservation urban or non-urban area to accept a 
specific job offer. In such cases, however, transportation or financial 
assistance may be provided only after confirmation has been obtained 
from the employer, giving details of employment, including the 
following:
    (1) Job title,
    (2) Beginning wage,
    (3) Date to start work,
    (4) First payday,
    (5) First full payday, and
    (6) A statement that the job is anticipated to be of a permanent 
nature.



Sec. 26.7  Financial assistance for program participants.

    (a) Individuals or families with a family member participating in 
the Employment Assistance program may be granted financial assistance, 
as needed, based upon rates established by the Area Director for the 
respective areas or jurisdictions within those areas.
    (b) Not more than thirty (30) percent of the funds appropriated for 
any program year may be used to pay for the costs of administration. 
Administrative costs include salaries and fringe benefits of direct 
program administrative positions such as program director or program 
officer, program/financial analyst, labor market analyst, clerical 
personnel, travel costs, materials, supplies, equipment, space and 
utilities. The remaining seventy (70) percent of funds available may be 
used for transportation and subsistence enroute to employment location; 
subsistence for one month or until the first paycheck from employment is 
received; emergency assistance is allowed where verified emergencies 
justify such grants and must have Area Director approval; and supportive 
services. Supportive services includes tools for employment, initial 
union dues, transportation of household effects, security and safety 
deposits, personal appearance and housewares, child care, and costs of 
employment counselors engaged in providing services to applicants 
(salaries, fringe benefits and travel costs).
    (c) Marital status of applicants is not a consideration for 
determining eligibility for services, but this factor is a consideration 
for determining appropriate subsistence grants. Proof of a legal 
relationship requiring support shall be required as a basis for 
application of family subsistence rates. In the case of married persons, 
proof of marriage shall be required to satisfy this requirement.
    (d) Financial assistance shall not be used to supplement the income 
of a person already employed.



                           Subpart C--Appeals



Sec. 26.8  Appeals.

    The decision of any Bureau official under this part can be appealed 
pursuant to the procedures in 25 CFR part 2.



PART 27--VOCATIONAL TRAINING FOR ADULT INDIANS--Table of Contents




  Subpart A--Definitions, Scope of the Vocational Training Program and 
                         Information Collection

Sec.
27.1  Definitions.
27.2  Scope of the vocational training program.
27.3  Information collection.

                  Subpart B--Administrative Procedures

27.4  Filing applications.

[[Page 104]]

27.5  Selection of applicants.
27.6  Satisfactory progress during training.
27.7  Approval of courses for vocational training at institutions.
27.8  Approval of apprenticeship training.
27.9  Approval of on-the-job training.
27.10  Financial assistance for trainees.
27.11  Contracts and agreements.

                           Subpart C--Appeals

27.12  Appeals.

    Authority: Sec. 1, Pub. L. 84-959, 70 Stat. 986 as amended by Pub. 
L. 88-230, 77 Stat. 471 (25 U.S.C. 309).

    Source: 49 FR 2101, Jan. 18, 1984, unless otherwise noted.



  Subpart A--Definitions, Scope of the Vocational Training Program and 
                         Information Collection



Sec. 27.1  Definitions.

    (a) Agency office means the current organization unit of the Bureau 
which provides direct services to the governing body or bodies and 
members of one or more specified Indian tribes.
    (b) Appeal means a written request for correction of an action or 
decision claimed to violate a person's legal rights or privileges as 
provided in part 2 of this chapter.
    (c) Applicant means an individual applying under this part.
    (d) Application means the process through which a request is made 
for assistance or services.
    (e) Area Director means the Bureau official in charge of an Area 
Office or his/her authorized representative.
    (f) Assistant Secretary means the Assistant Secretary of the 
Interior for Indian Affairs or his/her authorized representative.
    (g) Contract office means the office established by a tribe or 
tribes who have a contract to administer the adult vocational training 
program.
    (h) Full time institutional training is:
    (1) An institutional trade or technical course offered on a clock-
hour basis below the college level, involving shop practices as an 
integral part thereof when a minimum of thirty (30) hours per week of 
attendance is required with not more than 2\1/2\ hours of rest periods 
per week allowed.
    (2) An institutional vocational course offered on a clock-hour basis 
below the college level in which theoretical or classroom instruction 
predominates when a minimum of twenty-five (25) hours per week net of 
instruction is required, or
    (3) An institutional undergraduate vocational course offered by a 
college or university on a quarter or semester-hour basis when a minimum 
of twelve (12) semester credit hours or its equivalent is required.
    (i) Indian means any person of Indian or Alaska native descent who 
is an enrolled member of any of those tribes listed or eligible to be 
listed in the Federal Register pursuant to 25 CFR 83.6 as recognized by 
and receiving services from the Bureau of Indian Affairs or a descendant 
of one-fourth degree or more Indian blood of an enrolled member and any 
person not a member of one of the listed or eligible to be listed tribes 
who possesses at least one-half degree of Indian blood which is not 
derived from a tribe whose relationship is terminated by an Act of 
Congress.
    (j) Indian tribe means any Indian tribe, band, nation or other 
organized group or community, including any Alaska native village, which 
is recognized by the Secretary of the Interior as having special rights 
and responsibilities and is recognized as eligible for the services 
provided by the United States to Indians because of their status as 
Indians.
    (k) Near reservation means those areas or communities adjacent or 
contiguous to reservations which are designated by the Assistant 
Secretary upon recommendation of the local Bureau superintendent, which 
recommendation shall be based upon agreement with the tribal governing 
body of those reservations, as locales appropriate for the extension of 
financial assistance and/or social services, on the basis of such 
general criteria as:
    (1) Number of Indian people native to the reservation residing in 
the area,
    (2) Geographical proximity of the area to the reservation, and
    (3) Administrative feasibility of providing an adequate level of 
services to the area. The Assistant Secretary shall

[[Page 105]]

designate each area and publish the designations in the Federal 
Register.
    (l) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order or as interpreted by court 
decision and over which a Federally recognized Indian tribal entity may 
exercise certain jurisdiction.
    (m) Superintendent means the Superintendent or Officer in Charge of 
any of the Agency offices of the Bureau of Indian Affairs or his/her 
authorized representative.
    (n) Tribal governing body means the recognized entity empowered to 
exercise the governmental authority of a Federally recognized tribe.



Sec. 27.2  Scope of the vocational training program.

    The purpose of the vocational training program is to assist Indian 
people to acquire the job skills necessary for full time satisfactory 
employment. Within that framework, the program provides testing, 
vocational counseling or guidance to assist program participants to make 
career choices relating personal assets to training option and 
availability of jobs in the labor market. The program provides for full 
time institutional training in any vocational or trade school as 
provided in Sec. 27.7. Apprenticeship and on-the-job training are also 
provided. Institutional, apprenticeship, or on-the-job training courses 
shall not exceed twenty-four (24) months in length, with the exception 
that Registered Nurses training may be for periods not to exceed thirty-
six (36) months. Individual program recipients may not receive more than 
twenty-four (24) months of full-time training, except that Registered 
Nursing students may receive not more than thirty-six (36) months of 
training.



Sec. 27.3  Information collection.

    The information collection requirements contained in Secs. 27.4, 
27.6 and 27.9 have been approved by the Office of Management and Budget 
(OMB) under 44 U.S.C. 3504(h) and are assigned clearance numbers 1076-
0062, 1076-0063 and 1076-0069. Information necessary for an application 
for vocational training assistance will be submitted on an application 
form which may be obtained at a local Bureau of Indian Affairs Agency or 
tribal program contractor office. This information is being collected 
for the purpose of applying for Federal assistance. The information will 
be used to determine if an Indian individual is eligible to participate 
in this program and to determine the amount of assistance needed. The 
obligation to respond is a requirement to obtain the benefits.



                  Subpart B--Administrative Procedures



Sec. 27.4  Filing applications.

    (a) Applications for adult vocational training services must be 
filed at Bureau of Indian Affairs agency offices, or at facilities under 
contract with the Bureau or contract offices located on or near 
reservations or other geographic areas of eligibility. Applications are 
approved by the Agency Superintendent or designated contractor. An 
eligible applicant should apply, be funded and receive services at the 
servicing office nearest to his/her residence at the time of 
application.
    (b) For clarity and uniformity, application forms used will be in 
accordance with the requirements of the Paperwork Reduction Act, section 
3504(h) of Pub. L. 96-511.



Sec. 27.5  Selection of applicants.

    (a) Applicants must be adult Indians residing on or near Indian 
reservations.
    (b) Eligible individuals shall be at least eighteen (18) years of 
age, except that high school graduates shall be eligible at the age of 
seventeen (17) years. Also, while the program is designed primarily for 
persons between the ages of eighteen (18) and thirty-five (35), persons 
over the age of thirty-five (35) shall be eligible, assuming training 
and permanent employment to be otherwise feasible in terms of health and 
physical capability.
    (c) An applicant must be in need of training in order to obtain 
reasonable and satisfactory employment or is underemployed and without 
additional training would result in extreme hardship for the applicant, 
and is in need of financial assistance in order to obtain such training. 
It must also be feasible for the applicant to pursue training.

[[Page 106]]

    (d) Selection of applicants shall be made without regard to sex or 
marital status, providing they meet the requirements of paragraphs (a), 
(b), and (c) of this section. Non-Indian spouses shall not be eligible 
for training.
    (e) No more than two (2) repeat training services will be allowed. 
Repeat training services will be on a lower priority than the initial 
service and will be determined on an individual basis, considering need, 
ability, prior performance and present motivation of the applicant. In 
order to be in need of repeat institutional training, an applicant must 
be unemployed, underemployed, or unable to work in his/her primary 
occupation due to physical or other disabilities. Time spent in on-the-
job training programs will be deducted from the maximum of institutional 
training eligibility.
    (f) Only those applicants who willingly declare intent to accept 
full time employment as soon as possible after completion of training 
shall be selected. Plans may subsequently change, but the intent of the 
training program is preparation for employment, and this must be the 
initial intent of program participants. The program is not meant to 
serve as a preliminary to immediate further education.



Sec. 27.6  Satisfactory progress during training.

    An individual who enters training pursuant to the provisions of this 
part is required to make satisfactory progress in training. Individuals 
in institutional vocational training courses are required to give 
evidence of progress by authorizing the institution attended to provide 
grade and/or progress reports to the appropriate Bureau of Indian 
Affairs or contract office. Program participants shall maintain a 
reasonable standard of conduct. Failure to meet these requirements due 
to reasons within the trainee's control may result in termination of 
training benefits.



Sec. 27.7  Approval of courses for vocational training at institutions.

    (a) A course of vocational training at any institution, public or 
private, offering vocational training may be approved by the Assistance 
Secretary; provided:
    (1) The institution is accredited by a recognized national regional 
accrediting association; or
    (2) The institution is approved for training by a state agency 
authorized to make such approvals; and
    (3) It is determined that there is reasonable certainty of 
employment for graduates of the institution in their respective fields 
of training.
    (b) Cooperative education (a combination of classroom theory with 
related practical job experience) is considered as valuable learning 
experience and is specifically allowed and encouraged.
    (c) Vocational training courses offered through Indian tribal 
governments need not be accredited but must show reasonable expectation 
of leading to employment and be approved by the Area Director.



Sec. 27.8  Approval of apprenticeship training.

    A program of apprenticeship training may be approved when such 
training:
    (a) Is offered by a corporation or association which has furnished 
such training to bona fide apprentices for at least one year preceding 
participation in this program;
    (b) Is under the supervision of a State apprenticeship agency, a 
State Apprenticeship Council, or the Federal Apprenticeship Training 
Services;
    (c) Leads to an occupation which requires the use of skills that 
normally are learned through training on the job and employment which is 
based upon training on the job rather than upon such elements as length 
of service, normal turnover, personality, and other personal 
characteristics; and
    (d) Is identified expressly as apprenticeship training by the 
establishment offering it.



Sec. 27.9  Approval of on-the-job training.

    (a) On-the-job training contracts shall be approved only by the 
official to whom such authority has been delegated in the 10 BIAM.
    (b) On-the-job training may be approved when such training is 
offered by a corporation, small business, association, tribe or tribal 
enterprise which

[[Page 107]]

provides an on-the-job training program offering definite potential for 
skilled permanent employment.
    (c) Yearly on-the-job training contractual agreements with a 
specific contractor shall not be renewed beyond the second year without 
review and written approval from the Assistant Secretary-Indian Affairs. 
Extension of contracts exceeding two years will be based upon a 
contractors demonstrated expansion of the enterprise, need for 
additional trainees, and placement of trainees completing the program.
    (d) Reimbursement to the on-the-job training contractor may include 
one-half of the hourly wage paid during the training period with the 
contractor paying the other half. The hourly rate must be at least the 
established minimum wage under the Fair Labor Standards Act of 1938, as 
amended.



Sec. 27.10  Financial assistance for trainees.

    (a) Applicants entering full-time training under this part may be 
granted financial assistance as needed, based upon rates established by 
the Area Director for the respective areas, or jurisdictions within 
those areas. Trainees may be assisted to secure educational grants from 
other sources for which they qualify. Such income shall be considered in 
computing amounts of financial assistance to be provided by the Bureau 
of Indian Affairs. Marital status of trainees is not a consideration for 
determining eligibility for training, but this factor is a consideration 
in determining appropriate subsistence grants. Proof of a legal 
relationship requiring support shall be required as a basis for 
application of family subsistence rates. In the case of married persons, 
proof of marriage shall be required to satisfy this requirement. 
Financial assistance may be provided for transportation and subsistence 
enroute to training; tuition and related training costs; subsistence 
while in training; emergency assistance is allowed where verified 
emergencies justify such grants and must have Area Director approval; 
and supportive services while in training. Supportive services includes 
tools for employment, initial union dues, transportation of household 
effects, security and safety deposits, personal appearance and 
housewares, child care, and cost of vocational training counselors 
engaged in providing services to trainees (salaries, fringe benefits and 
travel costs).
    (b) Not more than thirty (30) percent of the funds appropriated for 
any program year may be used to pay for the costs of administration. 
Administrative costs include salaries and fringe benefits of direct 
program administrative positions such as program director or program 
officer, program/financial analyst, labor market analyst, clerical 
personnel, travel costs, materials, supplies, equipment, space and 
utilities.



Sec. 27.11  Contracts and agreements.

    Training facilities and services required for programs of vocational 
training may be arranged through contracts or agreements with agencies, 
establishments or organizations. These may include:
    (a) Indian tribal governing bodies,
    (b) Appropriate Federal, State or local government agencies,
    (c) Public or private schools which have a recognized reputation in 
vocational education as successfully obtaining employment for graduates 
in the fields of training approved by the Assistant Secretary or his/her 
authorized representative for purposes of the program,
    (d) Educational firms to operate residential training centers, or
    (e) Corporations and associations or small business establishments 
with apprenticeship or on-the-job training programs leading to skilled 
employment.



                           Subpart C--Appeals



Sec. 27.12  Appeals.

    The decisions of any Bureau official under this part can be appealed 
pursuant to the procedures in 25 CFR part 2.

[[Page 108]]



                         SUBCHAPTER E--EDUCATION





PART 31--FEDERAL SCHOOLS FOR INDIANS--Table of Contents




Sec.
31.0  Definitions.
31.1  Enrollment in Federal schools.
31.2  Use of Federal school facilities.
31.3  Non-Indian pupils in Indian schools.
31.4  Compulsory attendance.
31.5  Consent for transfer.
31.6  Coercion prohibited.
31.7  Handling of student funds in Federal school facilities.

    Authority: Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise 
noted.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.



Sec. 31.0  Definitions.

    As used in this part:
    (a) School district means the local unit of school administration as 
defined by the laws of the State in which it is located.
    (b) Cooperative school means a school operated under a cooperative 
agreement between a school district and the Bureau of Indian Affairs in 
conformance with State and Federal school laws and regulations.

(35 Stat. 72, 25 U.S.C. 295)

[33 FR 6472, Apr. 27, 1968]



Sec. 31.1  Enrollment in Federal schools.

    (a) Enrollment in Bureau-operated schools is available to children 
of one-fourth or more degree of Indian blood reside within the exterior 
boundaries of Indian reservations under the jurisdiction of the Bureau 
of Indian Affairs or on trust or restricted lands under the jurisdiction 
of the Bureau of Indian Affairs except when there are other appropriate 
school facilities available to them as hereinafter provided in paragraph 
(c) of this section.
    (b) Enrollment in Bureau-operated boarding schools may also be 
available to children of one-fourth or more degree of Indian blood who 
reside near the reservation when a denial of such enrollment would have 
a direct effect upon Bureau programs within the reservation.
    (c) Children of Federal employees, whether Indian or non-Indian, are 
deemed eligible on the same basis as other eligible students for 
enrollment at facilities provided by the school district (including 
cooperative schools) wherein they reside.

(35 Stat. 72, 25 U.S.C. 295)

[33 FR 6473, Apr. 27, 1968; 33 FR 6968, May 9, 1968]



Sec. 31.2  Use of Federal school facilities.

    Federal Indian school facilities may be used for community 
activities and for adult education activities upon approval by the 
superintendent or officer in charge.



Sec. 31.3  Non-Indian pupils in Indian schools.

    Indian and non-Indian children who are not eligible for enrollment 
in Bureau-operated schools under Sec. 31.1 may be enrolled in such 
schools under the following conditions:
    (a) In boarding schools upon payment of tuition fees, which shall 
not exceed the per capita cost of maintenance in the school attended, 
when their presence will not exclude Indian pupils eligible under 
Sec. 31.1.
    (b) In day schools in areas where there are no other adequate free 
school facilities available, tuition fees may be charged for such 
enrollment at the discretion of the superintendent or other officer in 
charge provided such fees shall not exceed the tuition fees allowed or 
charged by the State or county in which such school is located for the 
children admitted in the public schools of such State or county.

(34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 U.S.C. 288, 289, 297)

[29 FR 5828, May 2, 1964]



Sec. 31.4  Compulsory attendance.

    Compulsory school attendance of Indian children is provided for by 
law.

(60 Stat. 962; 25 U.S.C. 231)

    Cross Reference: For penalties for the failure of Indians to send 
children to school and for contributing to the delinquency of minors, 
see Secs. 11.65 and 11.66 of this chapter.

[[Page 109]]



Sec. 31.5  Consent for transfer.

    Consent of the parents or next of kin, given before the 
superintendent or other duly authorized person, must be obtained before 
an Indian child is sent to a school beyond the limits of the State or 
Territory in which the reservation is located.

(Sec. 1, 28 Stat. 906; 25 U.S.C. 286)



Sec. 31.6  Coercion prohibited.

    There shall be no coercion of children in the matter of transfers 
from one school to another, but voluntary enrollment should be effected 
through maintenance of Federal Indian schools or programs which suit the 
needs and interests of the areas in which they are located.

(Sec. 1, 29 Stat. 348; 25 U.S.C. 287)



Sec. 31.7  Handling of student funds in Federal school facilities.

    The Secretary or his authorized representative may authorize 
officials and employees of the Bureau of Indian Affairs to accept and to 
disburse deposits of funds of students and student activity associations 
in schools operated by the Bureau in accordance with the purposes of 
such deposits. The following steps shall be taken to safeguard these 
funds:
    (a) A written plan of operation shall be developed by the membership 
of each student activity group. The plan of operation subject to the 
approval of authorized officials shall outline procedures and provide 
for a system of accounting for the student funds commensurate with the 
age and grade level of the students yet adequate for financial control 
purposes and shall stipulate the maximum operating capital of activity.
    (b) Appropriate safekeeping facilities shall be provided for all 
student personal and group funds and for the accounting or bookkeeping 
records.
    (c) Employees handling student funds in cumulative amounts in excess 
of $100 shall be covered by a comprehensive fidelity bond the penal sum 
of which shall be appropriately related to fund amounts handled.
    (d) Student funds accumulated in excess of the amount authorized for 
operating purposes by the plan of operation shall be deposited in 
federally insured depositories.
    (e) Periodic administrative inspections and financial audit of 
student fund operations shall be conducted by authorized Bureau 
personnel.

[26 FR 10637, Nov. 14, 1961]



PART 32--INDIAN EDUCATION POLICIES--Table of Contents




Sec.
32.1  Purpose and scope.
32.2  Definitions.
32.3  Mission statement.
32.4  Policies.
32.5  Evaluation of implementation of Pub. L. 95-561.

    Authority: Secs. 1130 and 1133 of Title XI of the Education 
Amendments of 1978 (92 Stat. 2143, 2321 and 2325, Pub. L. 95-561; 25 
U.S.C. 2010 and 2013).

    Source: 44 FR 58098, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 32.1  Purpose and scope.

    The purpose of this part is to state the policies to be followed by 
all schools and education programs under the jurisdiction of the Bureau 
of Indian Affairs. Contract schools operated by Indian Tribes or Alaska 
Native entities may develop their independent policies, consistent with 
contractual obligations, or adhere to these. The adherence to the 
appropriate policies shall reflect the best interests of the student, 
the Federal government, the Tribes and Alaska Native entities, and shall 
be based on educationally sound judgment.



Sec. 32.2  Definitions.

    As used in this part, the term:
    (a) Agency School Board means a body, the members of which are 
appointed by the school boards of the schools located within such 
agency, and the number of such members shall be determined by the 
Director in consultation with the affected Tribes or Alaska Native 
entities except that, in agencies serving a single school, the school 
board of such school shall fulfill these duties.
    (b) Alaska Native means an Indian, Eskimo, or Aleut who is a member 
of an Alaska Native entity.

[[Page 110]]

    (c) Alaska Native Entity means any Alaska Native village or regional 
or village corporation as defined in or established pursuant to the 
Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et 
seq.).
    (d) Alaska Native Village means any Native village as defined in 
section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 689; 
43 U.S.C. 1602 (c)).
    (e) Boarding school, hereinafter referred to as residential school, 
means a Bureau school offering residential care and support services as 
well as an academic program.
    (f) Bureau means the Bureau of Indian Affairs of the Department of 
the Interior.
    (g) Consultation means a conferring process with Tribes, Alaska 
Native entities, and Tribal organizations on a periodic and systematic 
basis in which the Bureau and Department officials listen to and give 
effect, to the extent they can, to the views of these entities.
    (h) Contract school means a school (other than a public school) 
which is Tribally operated and aided by a financial assistance contract 
with the Bureau.
    (i) Day school means a Bureau school offering an academic program 
and certain support services such as counseling, food, transportation, 
etc., but excluding residential care.
    (j) Director means the Director, Office of Indian Education 
Programs, Bureau of Indian Affairs.
    (k) Early childhood education means comprehensive education 
activities with continuity of educational approach for children ages 0-8 
years and their familes, appropriate for their age, development, 
language and culture which supplement and support usual family 
responsibilities for child growth and development. They are coordinated 
with, but do not supplant, existing educational, health, nutritional, 
social and other necessary services.
    (l) Exceptional Education Programs mean the provision of services to 
those children who are identified as handicapped and have been found to 
meet the criteria of handicapped as defined in Pub. L. 94-142, and 
programs for gifted and talented students.
    (m) Indian means a member of an Indian Tribe.
    (n) Indian Organization means any group, association, partnership, 
corporation, or other legal entity owned or controlled by a federally 
recognized Indian Tribe or Tribes, or a majority of whose members are 
members of federally recognized Indian Tribes.
    (o) Indian Tribe or Tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony, or community which is recognized as eligible 
for the special programs and services provided by the United States to 
Indians because of their status as Indians.
    (p) Local school board, when used with respect to a Bureau school, 
means a body chosen in accordance with the laws of the Tribe or Alaska 
Native entity to be served or, in the absence of such laws, elected by 
the parents of the Indian children attending the school, except that in 
schools serving a substantial number of students from different Tribes 
or Alaska Native entities the members shall be appointed by the 
governing bodies of the Tribes and entities affected; and, the number of 
such members shall be determined by the Director in consultation with 
the affected Tribes and entities.
    (q) Post-secondary education means any education program beyond the 
age of compulsory education, including higher education, career, 
vocational, and technical.
    (r) Tribal Organization means an organization composed of or duly 
representing Tribal governments which may be national or regional in 
scope and function.



Sec. 32.3  Mission statement.

    Recognizing the special rights of Indian Tribes and Alaska Native 
entities and the unique government-to-government relationship of Indian 
Tribes and Alaska Native villages with the Federal Government as 
affirmed by the United States Constitution, U.S. Supreme Court 
decisions, treaties, Federal statutes, and Executive Orders, and as set 
out in the Congressional declaration in sections 2 and 3 of the Indian 
Self-Determination and Education Assistance Act (Pub. L. 93-638; 88 
Stat. 2203; 25 U.S.C. 450 and 450a), it is the responsibility and goal 
of the Federal

[[Page 111]]

government to provide comprehensive education programs and services for 
Indians and Alaska Natives. As acknowledged in section 5 of the Indian 
Child Welfare Act of 1978 (Pub. L. 95-608; 92 Stat. 3069; 25 U.S.C. 
1901), in the Federal Government's protection and preservation of Indian 
Tribes and Alaska Native villages and their resources, there is no 
resource more vital to such Tribes and villages than their young people 
and the Federal Government has a direct interest, as trustee, in 
protecting Indian and Alaska Native children, including their education. 
The mission of the Bureau of Indian Affairs, Office of Indian Education 
Programs, is to provide quality education opportunities from early 
childhood through life in accordance with the Tribes' needs for cultural 
and economic well-being in keeping with the wide diversity of Indian 
Tribes and Alaska Native villages as distinct cultural and governmental 
entities. The Bureau shall manifest consideration of the whole person, 
taking into account the spiritual, mental, physical and cultural aspects 
of the person within family and Tribal or Alaska Native village 
contexts.



Sec. 32.4  Policies.

    In carrying out its Education mission, the Assistant Secretary for 
Indian Affairs through the Director shall:
    (a) Policy making. (1) Assure that no new policy shall be 
established nor any existing policy changed or modified without 
consultation with affected Tribes and Alaska Native Government entities.
    (2) Be guided in policy formulation and funding priorities, 
including the proposing and awarding of contracts and grants, by 
periodic and systematic consultation with governing bodies of Tribes and 
Alaska Native entities.
    (3) Ensure that Indian Tribes and Alaska Native entities fully 
exercise self-determination and control in planning, priority-setting, 
development, management, operation, staffing and evaluation in all 
aspects of the education process.
    (4) Ensure that each agency or local school board shall be 
authorized and empowered to function as the policy making body for the 
school, consistent with the authority granted by the tribes or Alaska 
Native entity(ies) served by the school(s).
    (b) Student rights. Ensure the constitutional, statutory, civil and 
human rights of all Indian and Alaska Native students, and respect the 
role of Tribal judicial systems where appropriate including, for 
example, ensuring that students have the right to be free from cruel and 
unusual punishment and that all disciplinary procedures shall be 
consistent with appropriate customs and practices of the appropriate 
Indian Tribe or Alaska Native village.
    (c) Equity funding. Assure that resources for all education programs 
are equitably distributed for the benefit of all Indian and Alaska 
Native students, taking into account special educational needs where 
they exist, as further described in part 39 of this subchapter.
    (d) Direction of programs. Ensure that the education function be 
structured in such a manner that all matters relating to the operation 
of education programs be administered by or be under the direction of 
education personnel.
    (e) Respect for family. Promote, respect and defend the cohesiveness 
and integrity of the family, and Tribal and Alaska Native community, as 
they relate to the educational and social prerogatives of the Tribes and 
Alaska Native entities.
    (f) Religious freedom. Promote and respect the right to cultural 
practices and religious freedom for all students, consistent with Tribal 
and Alaska Native entities' wishes and with the provisions of the 
American Indian Religious Freedom Act (92 Stat. 469; Pub. L. 95-341; 42 
U.S.C. 1996).
    (g) Tribal rights regarding governing bodies and planning. (1) 
Develop in consultation with Tribes and Alaska Native entities a plan to 
include their direct involvement in short and long-range planning of 
Bureau operated post-secondary schools through the formation of policy 
making governing boards.
    (2) Encourage and defend the right of the Tribes and Alaska Native 
entities to govern their own internal affairs in all matters relating to 
education, and their right to determine the equitable

[[Page 112]]

and appropriate composition of governing boards at Bureau off-
reservation and post-secondary schools.
    (h) Multilingual education. Provide for a comprehensive 
multicultural and multilingual educational program including the 
production and use of instructional materials, culturally appropriate 
methodologies and teaching and learning strategies that will reinforce, 
preserve and maintain Indian and Alaska Native languages, cultures, and 
histories which school boards, Tribes and Alaska Native entities may 
utilize at their discretion.
    (i) Choice of school. Afford Indian and Alaska Native students the 
opportunity to attend local day schools and other schools of choice and 
the option to attend boarding schools when the student and parent or 
guardian determine it is in the student's best interest and consistent 
with the provisions of the Indian Child Welfare Act of 1978 (Pub. L. 95-
608) except that, residential schools shall not be used as substitutes 
for providing adequate local family social services. Each school shall 
establish its attendance area in cooperation with neighboring schools.
    (j) Tribal education plans. Assist Tribes and Alaska Native entities 
at their request in the development of Departments of Education, 
education codes, and comprehensive education plans.
    (k) Advocacy and coordination. (1) Serve as an advocate for Indian 
Tribes and Alaska Native entities in education matters before the 
Federal, State and local governments.
    (2) Assume an assertive role in coordinating comprehensive support 
for Indian and Alaska Native students internally and from other agencies 
in education, mental and physical health, juvenile justice, job 
training, including apprenticeship programs and other related Federal, 
State and local programs and services.
    (3) Serve as an advocate and carry out responsibilities for Indian 
and Alaska Native students in public and other non-Bureau operated 
schools consistent with the wishes of the appropriate Indian Tribes and 
Alaska Native entities, particularly in regard to Impact Aid (Pub. L. 
81-874), Johnson-O'Malley, and all Elementary and Secondary Education 
Act programs.
    (l) Student assessment. Establish and maintain a program of research 
and development to provide accurate and culturally specific assessment 
instruments to measure student performance in cooperation with Tribes 
and Alaska Native entities.
    (m) Recruitment of Indians. Adopt procedures to insure that 
qualified Indian and Alaska Native educators are recruited for positions 
appropriate to their cultural background and qualifications.
    (n) Priorities in contracts and grants. Provide financial support 
through contracts, grants or other funding mechanisms with first 
priority given to the Tribes and Alaska Native entities, Tribal 
organizations, Tribally controlled community colleges, and Indian or 
Alaska Native professional or technical assistance organizations which 
have the sanction of the benefitting Tribes and Alaska Native entities.
    (o) Community school concept. Promote the community school concept 
by encouraging year around multi-use of educational facilities, 
equipment and services for Tribal, Alaska Native village, and community 
development.
    (p) Education close to home. Provide day and residential educational 
services as close to an Indian or Alaska Native student's home as 
possible, except when a student elects to attend a school elsewhere for 
specialized curricular offerings or services.
    (q) Tribal notification and involvement and program flexibility. (1) 
Notify Indian Tribes and Alaska Native entities of proposed, pending or 
final Federal legislation, appropriations, Solicitor's and Attorney 
General's opinions and court decisions affecting Indian and Alaska 
Native education for the purposes of information and consultation, 
providing them ready access at the local level to all evaluations, data 
records, reports and other relevant information, consistent with the 
provisions of the Privacy and Freedom of Information Acts.
    (2) Implement rules, regulations, procedures, practices, and 
standards to insure flexibility in the exercise of local Tribal or 
Alaska Native village options, and provide for input in periodic 
reviews, evaluations, and revisions to

[[Page 113]]

meet changing needs and circumstances.
    (r) Career and higher education. (1) Ensure to the extent possible 
that all students who choose to pursue career and post-secondary 
education, including but not limited to, undergraduate and graduate 
programs, or preparation for skilled trades, receive adequate academic 
or other preparation, at the schools of their choice, assuring that 
students are provided adequate support services to enable them to meet 
their educational goals.
    (2) Extend to Tribes and Alaska Native entities the prerogative of 
determining those critical professions and fields of study in post-
secondary education which are of the highest priority to meet their 
economic and cultural goals.
    (s) Planning, maintenance and use of facilities. (1) Ensure that the 
needs of the students and Tribal or Alaska Native community will receive 
first priority in the planning, design, construction, operation and 
maintenance of Bureau schools and residential facilities, rather than 
other considerations, such as ease of maintenance, and that these 
facilities assure a supportive environment for learning, living and 
recreation.
    (2) Maintain all school and residential facilities to meet 
appropriate Tribal, State or Federal safety, health and child care 
standards. If a conflict exists in these standards, the Federal standard 
shall be followed; in the absence of a Federal standard, the Tribal 
standard shall be followed. In case of conflict, any such Tribal health 
or safety standards shall be no greater than any otherwise applicable 
State standard.
    (t) Alternative, innovative and exemplary programs. Vigorously 
encourage and support alternative, innovative and exemplary programs 
reflecting Tribal or Alaska Native village specific learning styles, 
including but not limited to, parent-based early childhood education 
programs, adult and vocational technical education, library and media 
services, special education including programs for handicapped, gifted 
and talented students, summer programs, and career development.
    (u) Training. Provide support and technical assistance at all levels 
for the training of duly sanctioned Tribal and Alaska Native education 
representatives involved in educational decisionmaking, including pre-
service and in-service training for educators.
    (v) Tribally controlled community colleges. Assist Tribes and Alaska 
Natives in their planning, designing, construction, operation and 
maintenance of Tribally controlled community colleges, consistent with 
all appropriate legislation. (See part 41 of this subchapter.)
    (w) Equal opportunity. Establish and enforce policies and practices 
to guarantee equal opportunity and open access to all Indian and Alaska 
Native students in all matters relating to their education programs 
consistent with the provisions of the Privacy and Freedom of Information 
Acts.
    (x) Accountability, evaluation of MIS. (1) Enforce a strict standard 
of fiscal, programmatic and contract accountability to the Tribes and 
Alaska Native entities and assist them in the development of their own 
standards of accountability and carry out annual evaluations of all 
Bureau-operated or funded education programs.
    (2) Provide and make available a computerized management information 
system which will provide statistical information such as, but not 
limited to, student enrollment, curriculum, staff, facilities, student 
assessments and related educational information.
    (y) Accreditation. (1) Encourage and assist all Bureau and contract 
schools to attain appropriate State, regional, Tribal or national 
accreditation.
    (2) Assist and promote the establishment of Indian regional and/or 
national accrediting associations for all levels of Indian Education.
    (z) Eligibility for services. Serve Indian and Alaska Native 
students who are recognized by the Secretary of the Interior as eligible 
for Federal services, because of their status as Indians or Alaska 
Natives, whose Indian blood quantum is \1/4\ degree or more. In the 
absence of other available facilities, children of non-Indian Bureau 
personnel or other non-eligibles may be served subject to the provisions 
of 25 U.S.C. 288 and 289.
    (aa) Appropriations. Aggressively seek sufficient appropriations to 
carry out

[[Page 114]]

all policies herein established subject to the president's budget and 
the Department's budgetary process.



Sec. 32.5  Evaluation of implementation of Pub. L. 95-561.

    The Director, Office Indian Education Programs will develop 
guidelines for evaluating all functional and programmatic 
responsibilities associated with Title XI of the Education Amendments of 
1978 (Pub. L. 95-561), and in the January 1, 1981 annual report, as 
provided in section 1136, of Pub. L. 95-561 include a statement of the 
specific program toward implementing these policies.



PART 33--TRANSFER OF INDIAN EDUCATION FUNCTIONS--Table of Contents




Sec.
33.1  Definitions.
33.2  Policy.
33.3  Delegation of authority.
33.4  Redelegation of authority.
33.5  Area education functions.
33.6  Agency education functions.
33.7  Implementing procedures.
33.8  Realignment of area and agency offices.
33.9  Development of procedures.
33.10  Issuance of procedures.

    Authority: Sec. 1126, Pub. L. 95-561, Education Amendments of 1978 
(92 Stat. 2143, 2391; 25 U.S.C. 2006).

    Source: 44 FR 58103, Oct. 9, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 33.1  Definitions.

    (a) Agency means that organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    (b) Early childhood means education activities serving the 0 to 8 
year old child, including pre-natal, child care, kindergarten, homebase, 
homebound, and special education programs.
    (c) Elementary and secondary education means those programs serving 
the child from grade one through grade twelve.
    (d) Operating level means the organizational level at which direct 
educational services are performed.
    (e) Personnel directly and substantially involved means those 
persons who provide services which affect the operation of Indian 
education programs, including (but not limited to) school or institution 
custodial or maintenance personnel, and whose services for Indian 
education programs require the expenditure of at least 51 percent of the 
employee's working time.
    (f) Post-secondary means education programs that are provided for 
persons past the age for compulsory education to include continuing 
education, higher education, undergraduate and graduate, career and 
adult education. As used in this Act, the term Post-Secondary shall 
include those Bureau of Indian Affairs programs operated at Southwestern 
Indian Polytechnic Institute, the Institute of American Indian Arts, and 
Haskell Indian Junior College, and those operated at Tribally controlled 
community colleges under Pub. L. 95-471.



Sec. 33.2  Policy.

    It is the policy of the Department of the Interior that:
    (a) Indian control of Indian affairs in all matters relating to 
education shall be facilitated.
    (b) Authority to perform education functions shall be delegated 
directly from the Assistant Secretary-Indian Affairs to the Director, 
Office of Indian Education Programs.
    (c) Administrative authority shall be compatible with program 
authorities; and, both shall be delegated to the operating level to 
assure efficient and effective delivery of education services to Indian 
children, youth, and adults.
    (d) The Director, Office of Indian Education Programs shall 
supervise the operation of Indian education program personnel at the 
Arena, Agency, and the three Bureau of Indian Affairs post-secondary 
institutions.
    (e) Indian Education program functions to be performed at the Area 
office level shall include those dealing with higher education, Johnson-
O'Malley aid to non-Bureau schools, off-reservation boarding schools, 
those education program operations serving tribes from more than one 
Agency except those at the three post-secondary institutions,

[[Page 115]]

on-reservation education functions located at an Agency where no 
educational personnel are assigned, education contract operations, and 
adult education.



Sec. 33.3  Delegation of authority.

    The administrative and programmatic authorities of the Assistant 
Secretary--Indian Affairs pertaining to Indian education functions shall 
not be delegated to other than the Director, Office of Indian Education 
Programs. The Assistant Secretary shall publish delegations of 
authorites to the Director in the Bureau of Indian Affairs Manual after 
the effective date of these regulations.



Sec. 33.4  Redelegation of authority.

    The authorities of the Assistant Secretary--Indian Affairs as 
delegated to the Director, Office of Indian Education Programs may be 
redelegated by the Director to a Bureau of Indian Affairs Agency 
Superintendent for Education, to a Bureau Area Education Programs 
Director, or to a President of a Bureau of Indian Affairs post-secondary 
education institution.



Sec. 33.5  Area education functions.

    A Bureau Area Education Programs Director shall perform those Bureau 
of Indian Affairs education functions related to Johnson-O'Malley aid to 
non-Bureau schools, higher education, Bureau peripheral dormitories, 
adult education, off-reservation residential schools, on-reservation 
functions located at an Agency where no education personnel are 
assigned, education contract operations, and those education program 
operations serving Tribes from more than one Agency, except those of the 
Bureau's post-secondary institutions.



Sec. 33.6  Agency education functions.

    A Bureau Agency Superintendent for Education shall perform those 
education functions related to elementary and secondary education, early 
childhood education, peripheral dormitories which have been supervised 
prior to Pub. L. 95-561, and exceptional education programs as defined 
in 25 CFR part 32. This section shall not be construed to remove higher 
education, adult education and/or Johnson-O'Malley programs currently 
administered at the Agency level. Further, the Director under the 
authority of Sec. 33.4 will periodically review Area programs such as 
higher education, adult education, and Johnson-O'Malley for 
consideration to assign to Agency level administration.



Sec. 33.7  Implementing procedures.

    (a) The Assistant Secretary--Indian Affairs shall:
    (1) Implement the transfer for Indian education functions from the 
jurisdiction of Agency Superintendents and Area Office Directors to the 
Director, Office of Indian Education Programs.
    (2) Modify existing descriptions of positions for Area Office 
Directors, Agency Superintendents, and all other personnel directly and 
substantially involved with the provisions of education services by the 
Bureau of Indian Affairs.
    (b) The Director, Office of Indian Education Programs shall:
    (1) For Area, Agency, and Bureau of Indian Affairs postsecondary 
institutional personnel:
    (i) Properly list the duties of each employee required to perform 
functions redelegated by the Director;
    (ii) Define the responsibilities for monitoring and evaluating 
education programs; and
    (iii) Exercise supervision of these employees.
    (2) Define responsibilities for employees providing technical and 
coordinating assistance for support services to the Director, Office of 
Indian Education Programs and his/her subordinates, including 
procurement, contracting, personnel, and other administrative support 
areas.

[44 FR 58103, Oct. 9, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 12702, Mar. 30, 1984]



Sec. 33.8  Realignment of area and agency offices.

    The Assistant Secretary--Indian Affairs shall implement Bureau of 
Indian Affairs Area Office and Agency Office reorganizations required to 
structure these offices consistent with education program activities to 
be undertaken at those levels.

[[Page 116]]



Sec. 33.9  Development of procedures.

    The Director, Office of Indian Education Programs shall prepare and 
promulgate procedures to govern the provision of support services by the 
Bureau of Indian Affairs for the education function. These procedures 
shall be consistent with existing laws, regulations, Executive Orders, 
and Departmental policies governing administrative support services. 
These provisions shall be prepared in consultation with those personnel 
within the Bureau of Indian Affairs who are responsible to the 
Commissioner of Indian Affairs for providing support services.



Sec. 33.10  Issuance of procedures.

    The Assistant Secretary--Indian Affairs, directly or through the 
Commissioner of Indian Affairs, shall issue procedures in the Bureau of 
Indian Affairs Manual governing the provision of support services to the 
Bureau's Education Office function.



PART 36--MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS--Table of Contents




                      Subpart A--General Provisions

Sec.
36.1  Purpose, scope, and information collection requirements.
36.2  Applicability.
36.3  Definitions.

                    Subpart B--Educational Management

36.10  Standard I--Philosophy and goals.
36.11  Standard II--Administrative requirements.
36.12  Standard III--Program needs assessment.
36.13  Standard IV--Curriculum development.

                Subpart C--Minimum Program of Instruction

36.20  Standard V--Minimum academic programs/school calendar.
36.21  Standard VI--Kindergarten instructional program.
36.22  Standard VII--Elementary instructional program.
36.23  Standard VIII--Junior high/middle school instructional program.
36.24  Standard IX--Secondary instructional program.

               Subpart D--Student Instructional Evaluation

36.30  Standard X--Grading requirements.
36.31  Standard XI--Student promotion requirements.
36.32  Standard XII--Graduation requirements for a high school diploma.

                    Subpart E--Instructional Support

36.40  Standard XIII--Library/media program.
36.41  Standard XIV--Textbooks.
36.42  Standard XV--Counseling services.
36.43  Standard XVI--Student activities.

             Subpart F--Evaluation of Educational Standards

36.50  Standard XVII--School program evaluation and needs assessment.
36.51  Standard XVIII--Office of Indian Education Programs and Agency 
          monitoring and evaluation responsibilities.

                    Subpart G--Compliance and Waivers

36.60  Compliance for minimum academic standards.
36.61  Waivers and revisions.

                 Subpart H--National Dormitory Criteria

36.70  Scope of subpart.
36.71  General provisions.
36.72  Elementary level dormitories.
36.73  Secondary level dormitories.
36.74  Homeliving (dormitory operations).
36.75  Space and privacy.
36.76  Compliance for the National Criteria for Dormitory Situations.
36.77  Waivers and revisions.

    Authority: Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 
2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 
U.S.C. 2901, Title I of P.L. 101-477.

    Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 36.1  Purpose, scope, and information collection requirements.

    (a) The purpose of this rule is to establish minimum academic 
standards for the basic education of Indian children for Bureau-operated 
schools and for those Indian-controlled contract schools which adopt 
these standards and to establish national criteria for dormitory 
situations for schools operated by the Bureau of Indian Affairs

[[Page 117]]

and for Indian-controlled contract schools operating dormitories.
    (b) These academic standards and dormitory criteria will take effect 
thirty (30) days after the date of their publication in the Federal 
Register. The Bureau of Indian Affairs intends to review and evaluate 
the applicability of the academic standards and dormitory criteria under 
this part after two years and make appropriate revisions.
    (c) The information collection requirement contained in 
Sec. 36.61(a) has been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance number 1076-0092. The 
information is being collected to evaluate waiver request(s) from tribal 
government(s) and school board(s). The information will be used to 
ascertain the approval of academic waiver request. The obligation to 
respond is mandatory under 25 U.S.C. 2001. The information collection 
requirements contained in Secs. 36.71(g), 36.74(f), and 36.76(b) of this 
rule are not required to be approved by the Office of Management and 
Budget since less than ten persons or tribes are affected by the 
information collection requirement of this rule. However, when ten or 
more persons or tribes become affected by this requirement, the Bureau 
will submit an approval request.



Sec. 36.2  Applicability.

    (a) The minimum academic standards for the basic education of Indian 
children established under this part, subparts B through G, are 
mandatory for all Bureau of Indian Affairs operated schools unless a 
tribal governing body or the local school board, if so designated by the 
tribal governing body, waives, in part or in whole, the standards 
established under this part. When a tribe(s) formally takes action to 
waive, in total or in part, standards contained in this part, proof of 
such action shall be forwarded to the Agency Superintendent for 
Education (ASE) or area Education Programs Administrator (EPA). Within 
15 days of receipt of such documentation the ASE or EPA shall notify, in 
writing, the parents or legal guardians whose children are attending the 
school(s) affected.
    (b) The minimum academic standards for the education of Indian 
children established under subparts B through G are not applicable to 
Indian-controlled contract schools unless the Indian-controlled contract 
school board formally adopts them in whole or in part. The Bureau will 
not refuse to enter into a contract on the basis of failure to meet 
these standards but will, through contracting procedures, assist the 
school in reaching compliance, if so requested by the Indian-controlled 
contract school board.
    (c) The national criteria for dormitory situations established under 
subpart H will serve as a minimum requirement and shall be mandatory for 
all Bureau-operated and Indian-controlled contract schools.
    (d) Standards and criteria contained under this part will serve as 
minimum requirements for the regular school educational program.
    (e) In states where additional minimum academic standards exist or 
are established, those state standards shall also apply.



Sec. 36.3  Definitions.

    For purposes of this part, the following definitions apply:
    Accreditation means a school has received an official decision by 
the State(s) department(s) of education, or another recognized agency 
having official authority, that, in its judgment, the school has met the 
established standards of quality.
    Agency means the current organizational unit of the Bureau which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian tribes.
    Agency school board as defined in sec. 1139(1), Pub. L. 95-561, 
means a body, the members of which are appointed by the school boards of 
the schools located within such Agency. The number of such members shall 
be determined by the Director in consultation with the affected tribes. 
In Agencies serving a single school, the school board of that school 
shall function as the Agency school board.
    Agency Superintendent for Education means the Bureau official in 
charge of education functions at an Agency and to whom the school 
supervisor(s) and other educators under the Agency's jurisdiction 
report.

[[Page 118]]

    Area Education Programs Administrator means the Bureau official in 
charge of Bureau education programs and functions in a Bureau Area 
Office and is responsible for off-reservation residential schools, and, 
in some cases, peripheral dormitories and on-reservation day schools not 
receiving services from the Agency Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Authentic assessment means the testing of higher order thinking 
skills by monitoring performance of tasks requiring analysis, 
creativity, and application skills in real life situations.
    Average daily membership (ADM) means the aggregate days membership 
of a given school during a given reporting period divided by the number 
of days school is in session during this period. Only days on which the 
students are under the guidance and direction of teachers shall be 
considered as days in session. The reporting period is generally a given 
regular school term.
    Basic academic skills means the abilities acquired by observation, 
study, or experience in mental and/or physical performance (e.g., 
proficiency in planning and investigating, operational techniques, 
comprehension, organization, execution, remembrance and application of 
knowledge to acquire a desired result) basic to the mastery of school 
work or other activity.
    Basic education means those components of education emphasizing 
literacy in language arts, mathematics, natural and physical sciences, 
history, and related social sciences.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Certification means the general process by which the State or Agency 
authorized by the State adjudges and stipulates that an individual meets 
the established standards which are prerequisite to employment for a 
teacher or administrator in education.
    Competency means having the requisite abilities, skills, or a 
specified level of mastery.
    Computer literacy used here means the general range of skills and 
understanding needed to function effectively in a society increasingly 
dependent on computer and information technology.
    Content area means the usual school subjects of instruction, such 
as: Language arts, mathematics, science, social studies, fine arts, 
practical arts, health, and physical education.
    Counselor means a staff member, including those in both academic and 
dormitory situations, who helps the students to understand educational, 
personal, and occupational strengths and limitations; to relate 
abilities, emotions, and aptitudes to educational and career 
opportunities; to utilize abilities in formulating realistic plans; and 
to achieve satisfying personal and social development.
    Course of study means a written guide prepared by administrators, 
supervisors, consultants, and teachers of a school system or school, as 
an aid to teaching a given course or an aspect of subject-matter content 
to a given category of pupil.
    Criterion-referenced test means an achievement test designed to 
measure specific skills within a subject area. Test results indicate 
which skills a student has or has not learned.
    Days means calendar days.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau.
    Dormitory means a facility which provides students boarding and 
lodging on a temporary residential basis for the purpose of attending a 
Bureau-operated or Indian-controlled contract or public school.
    Dormitory manager means a staff member who manages the day-to-day, 
24-hour operation of one or more dormitories.
    Elementary school is defined as any combination of grades K-8 except 
when any of these grades are included in the junior high or middle 
school level.
    Exceptional child program means a program for students who are 
eligible to receive education and related services as defined by 25 CFR 
39.11(i).
    Feeder school means a school whose exiting students are absorbed by 
a school offering instruction on the next higher grade level.
    Formative evaluation is an evaluation of progress during the 
implementation of a program. Its purpose is to provide

[[Page 119]]

immediate feedback on results to enable modifying the processes used in 
order to enhance success and prevent failure.
    Goals means a statement of what the school system is attempting to 
do to meet the comprehensive educational needs and interests of its 
pupils, in accordance with its statement of philosophy.
    Grade means the portion of a school program which represents the 
work of one regular school year; identified by a designation such as 
kindergarten, grade 1 or grade 10.
    Grade level is a designation applied to that portion of the 
curriculum which represents the work of one regular school year.
    High school is defined as grades nine through twelve, except when 
grade nine is included in the junior high or middle school 
organizational unit.
    Higher order thinking skills (or advanced skills) means skills such 
as reading comprehension, written composition, and mathematical 
reasoning. They differ from basic or discrete skills such as phonetic 
decoding and arithmetic operations.
    Indian-controlled contract school means a school that is operated by 
a tribal organization and funded under a contract with the Bureau.
    Indian student means a student who is a member of an Indian tribe 
and is one-quarter (\1/4\) or more degree of Indian blood quantum.
    Indian tribe or tribe means any Indian tribe, band, nation, 
rancheria, pueblo, colony or community, including any Alaska Native 
village or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    Intense residential guidance means the program for residential 
students who need special residential services due to one or more of the 
problems as stated in 25 CFR 39.11(h).
    Junior high or middle school is defined as grades seven and eight, 
but may include grade six when it is not included in the elementary 
school level and/or grade nine when it is not included in the high 
school level.
    Kindergarten means a group of students or a class that is organized 
to provide educational experiences for children for the year immediately 
preceding the first grade.
    Librarian means a certificated school employee whose principal 
responsibilities include selection, acquisition, preparation, 
cataloging, and circulation of books and other printed materials; 
planning the use of the library by teachers and students; and 
instructing students in the use of library books and materials, whether 
the library is maintained separately or as a part of an instructional 
materials center.
    Local school board when used with respect to a Bureau-operated 
school means a body chosen in accordance with the laws of the tribe to 
be served or, in the absence of such laws, the body elected by the 
parents of the Indian children attending a Bureau-operated school. In 
schools serving a substantial number of students from different tribes, 
the members shall be appointed by the governing bodies of the tribes 
affected and the number of such members shall be determined by the 
Director in consultation with the affected tribes.
    Objectives means a statement of the general, long-range aims and the 
specific, short-range aims which indicate what the school is attempting 
to do to meet the needs of the students in accordance with the 
philosophy, goals, and policies of the school system.
    Paraprofessional means a staff member who works with and is under 
the supervision of a professional staff member but who does not have 
full professional status, e.g., teacher aide. The term denotes a level 
of knowledge and skills possessed by an individual or required of an 
individual to perform an assignment. The level of skills is usually at a 
predetermined minimum level.
    Parent means a natural parent or guardian or a person legally acting 
as parent.
    Peripheral dormitory is a facility which provides students boarding 
and lodging during the school year for the purpose of attending a public 
school.

[[Page 120]]

    Regular program student means all students including those 
determined to be eligible for services as defined under the Exceptional 
Child Program, 25 CFR 39.11(i).
    Residential school means an educational institution in which 
students are boarded and lodged as well as taught.
    Residential Services under Exceptional Child Program means a program 
providing specialized residential care as determined by 25 CFR 39.11(i).
    School means an educational institution, including elementary, 
junior high or middle, high school, peripheral, cooperative, and 
contract schools serving students in grades Kindergarten through 12 and 
as further defined under 25 CFR 39.2(q).
    School board means an Agency or local school board.
    School day, instructional day, or teaching day is a day on which the 
school is open and students are under the guidance and direction of 
teachers in instructional activities where the minimum number of 
instructional hours are met.
    School Supervisor means the official in charge of a school and/or 
peripheral dormitory who reports to an Agency School Superintendent or 
an Area Education Programs Administrator, as appropriate.
    Secretary means the Secretary of the Interior.
    Self-contained class means a class having the same teacher or team 
of teachers for all or most of the daily session.
    Standard means the established criterion and/or specified 
requirement which must be met and maintained.
    Summative evaluation means a systematic analysis of the results or 
products of a program after it is completed. Its purpose is to determine 
the extent to which the objectives of the program have or have not been 
achieved. One form of summative evaluation compares results with those 
of another ``control'' program using different procedures. Other forms 
compare results with past results or predetermined target outcomes.
    Teacher means a certified staff member performing assigned 
professional activities in guiding and directing the learning 
experiences of pupils in an instructional situation.
    Unit/Unit of instruction means a major subdivision of instruction 
generally composed of several topics including content and learning 
experiences developed around a central focus such as a limited scope of 
subject matter, a central program, one or more related concepts, one or 
more related skills, or a combination of these. One unit equals one full 
year of instruction in a subdividion thereof. Unit and credit shall be 
used interchangeably.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



                    Subpart B--Educational Management



Sec. 36.10  Standard I--Philosophy and goals.

    (a) Each school shall develop a written mission statement and 
philosophy of education that addresses the accumulation of knowledge and 
development of skills, interests, appreciations, ideals, and attitudes 
within the school's total educational program. A statement of expected 
outcomes shall outline what the school is attempting to do to meet the 
needs and interests of its students and community in accordance with the 
school's mission statement and philosophy.
    (b) The statement of philosophy and goals shall be developed with 
the involvement of students, parents, lay citizens, school staff, and 
tribe(s) and shall be formally adopted by the local school board.
    (c) The philosophy and goals shall be reviewed annually and revised 
as necessary by each school.
    (d) A copy of the philosophy and goals shall be submitted to the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.
    (e) Informational provisions shall be developed in the form of a 
manual, handbook, brochure, or other written document(s) of the minimum 
academic standards of the school's programs and the basic rules and 
procedures of the school. The staff, students, and parents shall receive 
the written document or documents and have same explained to all who 
request explanation. The topics

[[Page 121]]

covered in the document(s) shall include but not be limited to the 
following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered;
    (3) A brief explanation of curricular offerings;
    (4) A copy of student rights handbook;
    (5) Basic practices related to:
    (i) Grading system;
    (ii) Graduation requirements, if applicable;
    (iii) Attendance policies;
    (iv) Special programs at the school; and
    (v) Student activities available for students.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.11  Standard II--Administrative requirements.

    (a) Staffing. Each school shall, at a minimum, meet the following 
requirements:
    (1) The overall school ratio of regular program students to regular 
program teachers in self-contained classrooms shall not exceed the 
following except under the conditions set forth in paragraphs (a)(4) (i) 
and (ii) of this section. Average daily membership (ADM) shall be used 
in meeting the following ratios.

------------------------------------------------------------------------
                           Level                                Ratio   
------------------------------------------------------------------------
Kindergarten...............................................         20:1
1st grade--3rd grade.......................................         22:1
4th grade--high school.....................................         25:1
------------------------------------------------------------------------

    (2) Multi-grade classrooms that cross grade-level boundaries (e.g., 
K-1, 3-4, etc.) shall use the maximum of the lower grade. In grades K-8, 
grades shall be consolidated to meet the teacher ratios listed above.
    (3) The daily teaching load per teacher in departmentalized classes 
shall not exceed 150 students (ADM) except in activity type classes such 
as music and physical education.
    (4) Schools exceeding these specific staffing ratios for over 30 
consecutive days during one school year shall submit a justification for 
a request for a waiver to the Director, through the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate, which may be approved for a period not to exceed one 
school year and for the following reasons:
    (i) Additional classroom space is not available for establishing 
another class; or
    (ii) The school, Agency, Area and Office of Indian Education 
Programs Applicant Supply File has been exhausted and the required 
teacher position cannot be filled. However, efforts to fill the vacancy 
shall be continued.
    (5) Each school shall provide, in the absence of a regular teacher, 
a certified substitute teacher who meets the State substitute teacher 
qualifications. In the event that such a substitute is not available, 
coverage will be provided by a school employee designated by the school 
supervisor. A class cannot have as a teacher an employee without 
teaching credentials for more than 20 school days during any one school 
year.
    (b) Written school enrollment and attendance policies. Each school 
shall have written school enrollment and attendance policies in 
compliance with and/or consistent with 25 CFR 31, Federal Schools for 
Indians, the statutes of the State, and tribal education ordinances.
    (c) Geographic attendance boundaries. Each Agency Superintendent for 
Education shall establish and implement non-overlapping geographic 
attendance boundaries within that Agency for each school within the 
administrative jurisdiction of that Agency. The establishment of such 
geographic boundaries shall require coordination with contiguous 
Agencies within the Area and consultation with the Agency or other 
relevant school boards and/or tribes and shall be reviewed each year to 
appropriately adjust for geographic changes in enrollment, changes in 
school capacities, and improvement of day school opportunities for 
students. The Director shall establish and implement geographic 
attendance boundaries for each off-reservation boarding school under 
his/her administrative jurisdiction. The establishment of geographics 
boundaries shall require coordination with other Area Education Programs 
Administrators similarly affected by the

[[Page 122]]

requirement of this part, the affected tribes, and the Director.
    (d) Immunization. School children shall be immunized in accordance 
with the regulations and requirements of the state in which they attend 
school or standards of the Indian Health Service.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.12  Standard III--Program needs assessment.

    The policy and procedures of each school and its curricula shall be 
developed and revised based on an assessment of educational needs. This 
needs assessment shall be conducted at least every seven (7) years at 
the same frequency as required in Sec. 36.50, School Program Evaluation. 
This assessment shall include at least the following:
    (a) A clear statement of student educational goals and objectives. A 
student educational goal is defined as a statement of the knowledge, 
skills, attitudes, or concepts students are expected to exhibit upon 
completion of a grade level. Student educational objectives are defined 
as statements of more specific knowledge, skills, attitudes, or concepts 
students must exhibit in order to achieve the goal.
    (b) The collection of appropriate data from which valid 
determinations, judgments, and decisions can be made with respect to the 
status of the educational program, e.g.,
    (1) Perceptions of the parents, tribes, educators, and the students 
with regard to the relevance and importance of the goals.
    (2) The extent to which educational goals and objectives have been 
achieved.
    (3) The data developed as a result of the evaluation outlined in 
Sec. 36.50 School Program Evaluation.
    (c) A statement of educational needs which identifies the difference 
between the current status of students and the desired goals for the 
students.
    (d) A plan of action to remediate assessed needs.



Sec. 36.13  Standard IV--Curriculum development.

    (a) Each school shall implement an organized program of curriculum 
development involving certified and non-certified staff and shall 
provide the opportunity for involvement by members of the local 
community.
    (b) Curriculum development program activities shall be based on an 
analysis of school programs and shall be related to needs assessment and 
evaluation.
    (c) Each school shall involve staff and provide the opportunity for 
involvement by the tribal community in planning programs, objectives, 
and activities which meet student/teacher needs.



                Subpart C--Minimum Program of Instruction



Sec. 36.20  Standard V--Minimum academic programs/school calendar.

    (a) Each school shall meet the applicable minimum program of 
instruction provided in this subpart and, where applicable, the 
graduation requirements under Sec. 36.32. A school that has difficulty 
in meeting these minimum academic program requirements may seek 
alternative ways of meeting some portions of the minimum program. For 
example, courses may be taught in alternate years. Should a school wish 
to adopt alternative measures, the school shall submit a request for 
approval to the Agency Superintendent for Education or Area Education 
Programs Administrator, as appropriate, for the adoption of alternative 
measures with a written justification as to how this action will meet 
the applicable minimum program of instruction.
    (b) Length of school term and day. All schools shall provide an 
educational program of studies which is conducted for not less that 180 
instructional days per school term. Regular program students shall be in 
instructional activities, exclusive of lunch (which must be at least 30 
minutes a day), in accordance with the following minimums: 
Kindergarten--2.5 instructional hours/day; grades 1-3--4.5 instructional 
hours/day; grades 4-6--5.0 instructional hours/day; grades 7-12--5.5 
instructional hours/day.
    (c) If an emergency arises from an uncontrollable circumstance 
during the school day which results in the dismissal of students by the 
school administration, the day may be counted as a

[[Page 123]]

school day provided that three-fourths of the instructional hours are 
met.
    (d) The educational program shall include multi-culture and multi-
ethnic dimensions designed to enable students to function effectively in 
a pluralistic society.
    (1) The school's language arts program shall assess the English and 
native language abilities of its students and provide instruction that 
teaches and/or maintains both the English and the primary native 
language of the school population. Programs shall meet local tribal 
approval.
    (2) The school program shall include aspects of the native culture 
in all curriculum areas. Content shall meet local tribal approval.
    (3) The school program shall assess the learning styles of its 
students and provide instruction based upon that assessment. The method 
for assessing learning styles shall be determined at the local level.
    (4) The school program shall provide for at least one field trip per 
child per year to broaden social and academic experiences.
    (e) All intraschool programs (e.g., library, instructional labs, 
physical education, music, etc.) which are directly related to or affect 
student instruction shall provide services from the beginning of the 
school term through the final class period at the close of the school 
term.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



Sec. 36.21   Standard VI--Kindergarten instructional program.

    (a) The curriculum for kindergarten shall provide children with 
experiences which emphasize language development, native language where 
necessary as determined by 25 CFR 39.11(g), and performance of the 
requirements in paragraph (b) of this section. Such programs shall 
assist children in developing positive feelings toward themselves and 
others.
    (b) A kindergarten instructional program shall include but not be 
limited to:
    (1) Language (observing, listening, speaking).
    (2) Exploration of the environment (number, space and time 
relationships, natural science).
    (3) Psychomotor and socialization development.
    (4) Development of imaginative and creative tendencies.
    (5) Health education inclusive of the requirements contained in the 
Act of May 20, 1886, 24 Stat. 69.



Sec. 36.22  Standard VII--Elementary instructional program.

    (a) The elementary instruction programs, grades one through six, 
shall include but need not be limited to:
    (1) Language arts.
    (2) Mathematics.
    (3) Social studies.
    (4) Sciences.
    (5) Fine arts.
    (6) Physical education.
    (b) Each school shall integrate the following content areas into its 
curriculum:
    (1) Career awareness,
    (2) Environmental and safety education,
    (3) Health education (includes requirements contained in 24 Stat. 
69),
    (4) Metric education, and
    (5) Computer literacy.



Sec. 36.23  Standard VIII--Junior high/middle school instructional program.

    (a) The instructional program shall reflect the school's philosophy 
and the needs of the students and the community. It shall be part of a 
progressive development that begins in the elementary program which 
precedes it and continues to the secondary program which follows.
    (b) The curriculum shall include the following required 
instructional content areas at each grade level but need not be limited 
to:
    (1) Language arts. One unit shall be required of each student every 
year.
    (2) Social studies. One unit shall be required of each student every 
year.
    (3) Mathematics. One unit shall be required of each student every 
year.
    (4) Science. One unit shall be required of each student every year.
    (5) Fine arts and practical arts. One unit each shall be required of 
each student in the junior high/middle school instructional program.

[[Page 124]]

    (6) Computer literacy. One unit shall be required of each student in 
the junior high/middle school instructional program.
    (7) Physical education. One unit shall be required of each student 
in the junior high/middle school instructional program.
    (c) The following content areas shall be integrated into the 
curriculum.
    (1) Career exploration and orientation.
    (2) Environmental and safety education.
    (3) Metric education.
    (4) Consumer economics (including personal finances).
    (5) Health education (includes meeting the requirements contained in 
24 Stat. 69).
    (d) Languages other than English are encouraged to be offered as a 
content area beginning at junior high/middle school level.
    (e) Student enrollment in any laboratory or vocational exploration 
class shall be consistent with applicable health and safety standards.



Sec. 36.24  Standard IX--Secondary instructional program.

    (a) The secondary instructional program shall reflect the philosophy 
of the student, tribe, community, and school, and an awareness of the 
changing world.
    (b) The secondary instructional curriculum shall include the 
following content areas:
    (1) Language arts (communication skills).
    (2) Sciences.
    (3) Mathematics.
    (4) Social studies.
    (5) Fine arts and practical arts.
    (6) Physical education.
    (7) Languages other than English.
    (8) Driver education. (See guidelines available from the applicable 
State Department of Education.)
    (9) Vocational education. Curriculum shall be designed and directly 
related to actual occupational trends (national, regional, and local) 
and to introduce and familiarize students with various occupations in 
technology, industry and business, as well as required special skills 
and the training requisites. Programs shall be directed toward assisting 
students in making career choices and developing consumer skills and may 
include the following:
    (i) Vocational exploration,
    (ii) Vocational skill development, and
    (iii) School/on-the-job cooperative education programs.
    (c) The following shall be integrated into the curriculum:
    (1) Consumer economics (including personal finances),
    (2) Metric education,
    (3) Safety education, and
    (4) Health education. (In addition, the program shall meet the 
requirements contained in 24 Stat. 69.)
    (d) The high school program shall provide program coordination with 
feeder schools, career direction, and preparation for the student 
entering independent living through employment, post-secondary 
education, and/or marriage.
    (e) Yearly class schedules shall take into account the graduation 
requirements of each student.
    (f) Student enrollment in any laboratory or vocational class shall 
be consistent with applicable health and safety standards.
    (g) Schools are encouraged to provide alternative programs that lead 
to high school completion for secondary students who do not function 
successfully in the regular academic setting.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]



               Subpart D--Student Instructional Evaluation



Sec. 36.30  Standard X--Grading requirements.

    (a) Each school shall implement a uniform grading system which 
assesses a student's mastery of the prescribed objectives of the courses 
of study undertaken. The mastery of prescribed course objectives shall 
be the primary measure of academic attainment for reporting student 
grades on report cards.
    (b) The information derived from student instructional evaluations 
shall be shared with the student and with the parents and shall be used 
to give teachers and students direction for subsequent learning 
activities.

[[Page 125]]

    (c) Parent/teacher and parent/teacher/student conferences focused on 
the student's instructional progress and development shall be held, 
where feasible and practical, to provide an additional means of 
communication between home and school. Residential schools may meet this 
standard by documenting the communication of student grades on report 
cards to parents.
    (d) Each school shall issue a report card to parents of students who 
are under the age of eighteen (18) and to students eighteen (18) years 
of age and older on a regular basis, but not less than four (4) times 
yearly. The report card shall include, but not be limited to, the 
following sections:
    (1) Recommendations and probable promotion status;
    (2) Appropriate signatures and request for return of report cards; 
and
    (3) Student attendance record.
    (e) A summary of each year's final card shall become part of the 
student's permanent school record.



Sec. 36.31  Standard XI--Student promotion requirements.

    Each school shall establish and implement a promotion policy which 
shall be submitted to and approved by the local school board and Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate. The requirements shall include, but not be limited to, 
the following:
    (a) Each grade level or equivalent shall have a minimum criteria for 
student promotion based primarily on measurable mastery of the 
instructional objectives.
    (b) Criterion-referenced tests that evaluate student skills shall be 
utilized for measuring the mastery of instructional objectives. The 
evaluation results shall form the basis for the promotion of each 
student.
    (c) A student who has not participated, either directly or through 
approved alternative instructional methods or programs, in a minimum of 
160 instructional days per academic term or 80 instructional days per 
semester without a written excused absence shall not be promoted. A 
school board or a school committee may review a promotion decision and, 
if warranted due to compelling and/or extenuating circumstances, rescind 
in writing such action on a case-by-case basis. Alternative 
instructional methods shall be submitted in writing for approval by the 
Agency Superintendent for Education or Area Education Programs 
Administrator, as appropriate.



Sec. 36.32  Standard XII--Graduation requirements for a high school diploma.

    Graduation requirements contained under this section shall be 
applied beginning with the graduating class of the 1987-88 school year.
    (a) Satisfactory completion of a minimum number of units shall be 
the measure for the issuance of a high school diploma.
    (b) To graduate, a student shall earn 20 units in a four year high 
school program unless the state in which the school is located exceeds 
these requirements, in which case the state's requirements shall apply; 
fifteen (15) units shall be required as follows:
    (1) Language arts--four (4) units.
    (2) Mathematics--three (3) units.
    (3) Social studies--three (3) units.
    (i) One (1) unit in United States history;
    (ii) One-half (\1/2\) unit in civics/government;
    (iii) One-half (\1/2\) unit in tribal history/government;
    (iv) One-half (\1/2\) unit in Indian studies; and
    (v) One-half (\1/2\) unit in any other social studies;
    (4) Science--two (2) units.
    (i) One (1) unit in the general science area.
    (ii) One (1) unit in laboratory science areas, i.e., chemistry, 
physics, biology, zoology, laboratory anatomy.
    (5) Physical education--one (1) unit.
    (6) Practical arts--one (1) unit. Credit in any vocational course 
may also be used to satisfy this required unit.
    (7) Fine arts--one (1) unit. Music, art, dance, drama, theatre, and 
other fine arts courses may be used to satisfy this required unit. These 
are minimum requirements; local schools may establish academic or 
vocational requirements beyond those prescribed by these standards.

[[Page 126]]

    (c) A school with an average enrollment of fewer than 75 students 
may offer subjects in alternate years. If schools use this pattern, 
alternating pairs of subjects shall be listed and approved by the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (d) Credits earned through approved correspondence or extension 
study may be accepted if such credits are from schools approved or 
accredited by the state in which they are located or by a college or 
university which is regionally accredited for such purposes.
    (e) Students who successfully complete the requirements of the High 
School Proficiency Examination in the State in which the school is 
located shall receive an endorsement so stating on their diplomas.



                    Subpart E--Instructional Support



Sec. 36.40  Standard XIII--Library/media program.

    (a) Each school shall provide a library/media program which shall, 
as a minimum, meet the applicable state and/or regional standards, but 
shall not be limited to these, and shall include the following:
    (1) A written set of instructional and service objectives shall be 
established that is intergrated and consistent with the school's 
educational goals and philosophy. The librarian or educational media 
specialist, with students and staff, shall set objectives based on 
assessed academic and residential needs. The program and services will 
be evaluated yearly by the principal and the librarian or educational 
media specialist to determine the degree to which all objectives have 
been met.
    (2) A written policy for the selection of materials and equipment 
shall be developed by a library committee in collaboration with the 
librarian and be approved by the school board. The colleciton of 
materials shall include as a minimum the following:
    (i) A collection of books suitable for the range of student 
abilities and interests being served in the following ADM ratios.
    (A) Elementary K-6, 15 books per student
    (B) Middle 7-8, 12 books per student
    (C) Secondary 9-12, 10 books per student
It is required that materials pertaining to Indian Tribes and/or Alaskan 
Natives be integrated within this basic collection.
    (ii) Eight (8) to 12 percent of the basic collection must be 
composed of reference books, currently relevant and in a state of good 
physical condition, for practical use. Single copies of the principal 
textbooks used to complement instruction shall be in the collection, but 
textbooks cannot be counted toward this standard.
    (iii) A periodical collection, suitable for the range of student 
abilities and interests being served, consisting of one (1) periodical 
for every ten (10) students, shall be maintained. Schools of over 200 
will have a base collection of 20 periodicals.
    (iv) A professional collection for the school staff shall be 
developed and maintained by the librarian in cooperation with a faculty 
committee.
    (v) A variety of audio-visual materials, suitable for the range of 
instruction being provided, of at least 750 items or five (5) items for 
each student, whichever is larger, and inclusive of materials located in 
the classrooms shall be maintained. This category includes some of each 
of the following: Tactile objects, globes, models, maps, films, film-
strips, microforms, slides, audio and video tapes, recordings, 
transparencies and graphics, and the equipment to use all of these. 
Multiple items within a specific set of materials will be counted as 
separate items.
    (3) There shall be a library media center serviced by a librarian. 
Schools with fewer than 200 students are encouraged, wherever feasible, 
to cooperate in sharing librarian resources. Schools within an Agency 
and/or Area may cooperatively share the costs and services of a 
librarian who shall facilitate sharing of the combined available 
resources among the cooperating schools in accordance with the following 
ratios:

                         School Enrollment (ADM)

Up to 100--\1/5\ time librarian
101-200--\1/5\ time librarian and \1/2\ time library aide or 20 hours of 
library activity

[[Page 127]]

201-400--1 full-time librarian or \2/5\ time librarian provided the 
school has a full-time library aide
401+--1 full-time librarian and a full-time library aide

    (4) All libraries must conduct an annual inventory of available 
books, materials, and equipment in accordance with the acquisitions and 
selection policies.



Sec. 36.41  Standard XIV--Textbooks.

    (a) Each school shall establish a textbook review committee composed 
of teachers, parents, and students, and school board members. 
Appointment to the textbook review committee shall be subject to school 
board approval.
    (b) The textbook review committee shall establish a procedure and 
criteria for the annual review of textbooks and other materials used to 
complement instruction. The criteria shall include, but not be limited 
to, the following:
    (1) The textbook content shall meet the course objectives which are 
within the adopted school curriculum.
    (2) The textbooks shall, as much as possible, reflect cultures 
accurately.
    (3) The textbooks shall be current, in good physical condition, and 
varied in reading levels.
    (c) Each school shall equitably distribute instructional materials 
to all classrooms. Each school shall inventory all property and 
equipment annually prior to requisitioning additional materials. Copies 
of the inventory shall be kept on file by the school staff.



Sec. 36.42  Standard XV--Counseling services.

    Each school shall offer student counseling services concerned with 
physical, social, emotional, intellectual, and vocational growth for 
each individual. Counseling services shall be included in a school-wide 
assessment program.
    (a) Each Agency and Area, as appropriate, shall institute and 
supervise an assessment program for its schools in order to provide for 
the objective assessment of student academic performance. Required 
formal tests shall be administered annually to all regular program 
students in grades 4, 8, and 12. (The testing of special education and 
gifted/talented students shall be in accordance with respective 
regulations.) If required by state certification standards, schools may 
use the state mandated academic achievement tests and accompanying 
requirements. These formal tests and their subtest contents, as well as 
the test-related procedures, shall include, but not be limited to, the 
following:
    (1) Each Spring, schools shall conduct testing for grades 4, 8, and 
12 using a current version of a standardized academic achievement test 
based upon the national assessment standards designed to assess higher 
order thinking skills. All schools shall keep a current record, with the 
Office of Indian Education Programs, of the test the school administers 
each Spring and the testing dates.
    (2) Schools shall use some form of performance-based or authentic 
assessment in addition to standardized achievement testing.
    (3) Each school shall report the summative results of its assessment 
program to its respective Agency or Area, as appropriate, and its school 
board.
    (4) Parents/guardians shall be informed of their children's 
assessment results and provided with an explanation and interpretation 
to ensure adequate understanding of the results.
    (5) Each school's instructional program shall establish an ongoing 
student academic assessment program to ensure that defined assessment 
procedures are in place. The program shall include regular training in 
basic assessment procedures and routines for all teachers and other 
staff involved in student assessment.
    (6) Each Agency and Area, as appropriate, shall report the results 
of each school's formal Spring tests to the Office of Indian Education 
Programs by August 1 of each year. Summative information from 
performance-based and authentic assessments shall be reported at the 
same time.
    (b) Each counseling program shall provide the following:
    (1) Each school having a minimum school ADM of 200 students shall 
make provisions for the full-time professional services of a counselor, 
and each

[[Page 128]]

school enrolling fewer than 200 students shall make provisions for a 
part-time professional counselor.
    (2) The counselors shall be familiar with the unique tribal, social, 
and economic characteristics of students.
    (3) The counseling program shall contain the following:
    (i) A written referral procedure;
    (ii) Counseling techniques and documentation procedures to provide 
for the career, academic, social, and personal needs of the students 
which are based on the cultural beliefs and values of the students being 
served;
    (iii) Preventative and crisis counseling on both individual and 
group bases;
    (iv) Confidentiality and security of counseling records for each 
student; and
    (v) Design and implementation of orientation programs to facilitate 
the pupil's transition from elementary to junior high/middle school and 
from junior high/middle school to high school.
    (vi) Each junior or middle school and high school student shall 
receive academic counseling a minimum of twice yearly during which time 
the counselor shall assist the student in developing a written academic 
and career plan based on ability, aptitude, and interests. Additionally, 
counselors will assist high school students in selecting courses which 
satisfy the school's and the state's graduation requirements and the 
student's academic and career plan. Further, seniors will be given aid 
in completing registration and/or financial assistance applications for 
either vocational or academic post-secondary institutions.
    (vii) Each high school counseling program shall be required to have 
on file for each student a planned academic program of studies which is 
available from the regular course offerings of the school to meet the 
student's career objectives and which will show that the student has 
received counseling.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]



Sec. 36.43  Standard XVI--Student activities.

    All schools shall provide and maintain a well-balanced student 
activities program based on assessment of both student and program 
needs. Each activity program shall help develop leadership abilities and 
provide opportunities for student participation but not be limited to 
activities that include special interest clubs, physical activities, 
student government, and cultural affairs. The activity program shall be 
an integral part of the overall educational program.
    (a) All student activities shall be required to have qualified 
sponsors and be approved by the school supervisor, and the school board 
shall approve the overall activity plan. A qualified sponsor is a 
professional staff member of the school that is given responsibility to 
provide guidance or supervision for student activities.
    (b) A plan of student activity operations shall be submitted, by 
each activity at the beginning of each school year, to the school 
supervisor. The plan will include the purpose, structure, coordination, 
and planned types of fund-raising activities.
    (c) School may participate in interscholastic sports and activities 
on an informal or formal basis. On an informal basis, the Bureau-
operated schools will coordinate with other schools in setting up a 
schedule of sports and games. Schools that participate in state-
recognized leagues will abide by those state rules regulating inter-
school competition.
    (d) Until comparable competitive opportunities are provided to all 
students, regardless of sex, no student shall be barred from 
participation in interscholastic competition in noncontact sports except 
on the basis of individual merit.
    (e) Residential schools shall plan and provide an intramural program 
for all students. The program shall include a variety of scholastic and 
sport activities.
    (f) Students shall be involved only in activities which are 
sanctioned by the school.
    (g) All student activities involved only in fund raising are 
required to establish a school/student activity bank account following 
school/student banking procedures outlined under 25 CFR 31.7. All 
student activity accounts shall be audited annually.

[[Page 129]]

    (h) The school shall provide for the safety and welfare of students 
participating in school-sponsored activities.
    (i) Each sponsor of a student activity will be given orientation and 
training covering the responsibilities of a sponsor by the school 
supervisor.



             Subpart F--Evaluation of Educational Standards



Sec. 36.50  Standard XVII--School program evaluation and needs assessment.

    Each school shall complete a formal, formative evaluation at least 
once every seven (7) years beginning no later than the second complete 
school year following the effective date of this part. Schools shall 
follow state and/or regional accreditation, or accreditation 
requirements equal to the state in which a school is located. Each 
school shall follow the prescribed evaluation cycle. The primary purpose 
of this evaluation will be to determine the effects and quality of 
school programs and to improve the operations and services of the school 
programs.
    (a) Each school's evaluation design or model will provide objective 
and quantitative analysis of each area to be evaluated. The analysis 
shall include product and process evaluation methods. The areas to be 
reviewed will include, but not be limited to, the following:
    (1) School philosophy and objectives.
    (2) Administrative and organizational requirements.
    (3) Program planning and implementation.
    (4) Curriculum development and instruction.
    (5) Primary education.
    (6) Program of studies for elementary, junior high/middle, and high 
schools.
    (7) Grading requirements.
    (8) Promotion requirements.
    (9) High school graduation requirements.
    (10) Library/media.
    (11) Textbooks and other instructional materials.
    (12) Counseling services.
    (13) Medical and health services.
    (14) Student activities.
    (15) Transportation services.
    (16) Staff certification and performance.
    (17) Facilities (school plant).
    (18) Parent and community concerns.
    (19) School procedures and policies.
    (20) School board operations.
    (b) The Director, within six (6) months from the effective date of 
this part, shall distribute to each school, Agency or Area, as 
appropriate, a standardized needs assessment and evaluation instrument 
with guidelines for developing and applying a locally appropriate 
evaluation model for carrying out the requirements of this standard.



Sec. 36.51  Standard XVIII--Office of Indian Education Programs and Agency monitoring and evaluation responsibilities.

    (a) The Office of Indian Education Programs shall monitor and 
evaluate the conformance of each Agency or Area, as appropriate, and its 
schools with the requirements of this part. In addition, it shall 
annually conduct onsite monitoring at one-third of the Agencies and 
Areas, thereby monitoring onsite each Agency and/or Area at least once 
every three (3) years. Within 45 days of the onsite visit, the Director 
shall issue to each Agency Superintendent for Educaton or Area Education 
Programs Administrator, as appropriate, a written report summarizing the 
monitoring findings and ordering, as necessary, required actions to 
correct noted deficiencies.
    (b) Each Agency or Area, as appropriate, in conjunction with its 
school board shall monitor and evaluate the conformance of its school 
with the requirements of this part through an annual onsite evaluation 
involving one-third of the schools annually, thereby monitoring onsite 
each school at least once every three (3) years. Within 30 days of the 
onsite visit, the Agency Superintendent for Education or Area Education 
Programs Administrator, as appropriate, shall issue to the local school 
supervisor and local school board a written report summarizing the 
findings and ordering, as necessary, required actions to correct noted 
deficiencies.

[[Page 130]]

    (c) Schools, Agencies, and Areas shall keep such records and submit 
to the responsible official or designee accurate reports at such times, 
in such form, and containing such information as determined by that 
official to be necessary to ascertain conformance with the requirements 
of this part.
    (d) Schools, Agencies, and Areas shall permit access for examination 
purposes by the responsible official, or any duly authorized designee, 
to any school records and other sources of information which are related 
or pertinent to the requirements of this part.
    (e) The Office of Indian Education Programs, Agency Superintendent 
for Education, or Area Education Programs Administrator, as appropriate, 
shall annually conduct a summative evaluation to assess the degree to 
which each Bureau educational policy and administrative procedure 
assists or hinders schools in complying with the requirements of this 
part. This will include, but not be limited to, the following actions:
    (1) Evaluate current policies and practices not related to this part 
and the effects thereof on the amount of time and resources required 
which otherwise would be available for these standards;
    (2) Modify any policies and practices which interfere with or 
compromise a school's capability to achieve and maintain these 
standards;
    (3) Invite non-Federal agencies to evaluate the effects current 
policies and procedures have had on complying with the requirements of 
this part; and
    (4) Submit annually to the Director a copy of the summative 
evaluation.



                    Subpart G--Compliance and Waivers



Sec. 36.60  Compliance for minimum academic standards.

    Implementation of these standards shall begin immediately on the 
effective date of this part.
    (a) A school is in compliance when it has met and satisfied all the 
requirements of these standards.
    (b) Each school supervisor shall, within 45 days after the start of 
each school term, submit a compliance report to the local school board; 
within 15 days thereafter, the compliance report shall be submitted to 
the Agency Superintendent for Education or the Area Education Programs 
Administrator, as appropriate, which attests to whether a school is in 
compliance or noncompliance.
    (c) In those instances where a school does not meet the requirements 
of these standards, the school supervisor shall inform the parents or 
legal guardians by letter no later than 60 days after the start of each 
school term.
    (d) The compliance report shall contain the following:
    (1) A written statement attesting to the fact that the school has or 
has not met all of the requirements.
    (2) A specific listing of the requirements which have not been met.
    (3) A summary of an action plan designed to correct deficiencies.
    (4) A statement signed by the local school board attesting to the 
fact that it has been apprised of the school's compliance status and 
concurs or does not concur with the action plan to reach compliance.
    (e) The Agency Superintendent for Education or the Area Education 
Programs Administrator, as appropriate, shall review each school's 
compliance report and shall provide the Director with a summative report 
by November 15 of each year which includes:
    (1) A listing of those schools not in compliance.
    (2) A detailed statement as to why each school is not in compliance 
and how it proposes to reach compliance.
    (3) A plan of action outlining what actions the Agency 
Superintendent for Education or Area Education Programs Administrator 
will take to assist the school(s) to reach compliance.
    (f) In the event a school is not in compliance for two consecutive 
years due to conditions which can be corrected locally, appropriate 
personnel actions shall be initiated at all applicable levels of school 
administration. Noncompliance may be acceptable grounds for dismissal.
    (g) The Secretary shall submit to the appropriate committees of 
Congress at the time of the annual budget request a detailed plan to 
bring all Bureau and

[[Page 131]]

contract schools up to the level required by the applicable standards 
established under section 1121 of Pub. L. 95-561, 25 U.S.C. 2001.



Sec. 36.61  Waivers and revisions.

    (a) The tribal governing body, or the local school board if so 
designated by the tribal governing body, shall have the local authority 
to waive, in part or in whole, the standard(s) established in this part, 
where the standard(s) is deemed by such body to be inappropriate and 
shall also have the authority to revise such standard(s) to take into 
account the specific needs of the tribe's children. This includes 
Bureau-operated schools. When the tribal governing body, or local school 
board if so designated by the tribal governing body, waives the 
standard(s) or part thereof, it shall within 60 days submit revised 
standard(s) to the Assistant Secretary for approval. In the interim 
between the waiver of the standard(s) and the approval of the revised 
standard(s), the standards of this part or minimum state standards shall 
apply to the affected school(s). In the notice of the waiver, the tribal 
governing body or its designee shall state whether the standards in this 
part or the minimum state standards apply to the affected school(s) for 
such interim period. The Assistant Secretary shall respond to the 
revised standard(s) within 45 days of receipt. Revised standard(s) shall 
be established by the Assistant Secretary unless specifically rejected 
by the Assistant Secretary for good cause and in writing. The written 
notice of rejection shall be sent to the affected tribe(s) and local 
school board. Such rejection shall be final. All revised standards shall 
be submitted to the Assistant Secretary in writing and will adhere to 
the following procedure:
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the school's annual standards compliance report 
as required by Sec. 36.60(b).
    (2) The section or part of the standard to be waived must be 
specified, and the extent to which it is to be deviated from shall be 
described.
    (3) A justification shall be included with a revised standard, which 
explains why the alternative standard is considered necessary.
    (4) Measurable objectives of the alternative standard(s), the method 
of achieving the alternative standard(s), and the estimated cost of 
implementation must be stated.
    (b) The Assistant Secretary shall assist the school board of an 
Indian-controlled contract school in the implementation of the standards 
established under this part if the school board requests that these 
standards, in part or in whole, be implemented. At the request of an 
Indian-controlled contract school board, the Assistant Secretary shall 
provide alternative or modified standards to those established in this 
part to take into account the needs of the Indian children and the 
Indian-controlled contract school.

[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]



                 Subpart H--National Dormitory Criteria



Sec. 36.70  Scope of subpart.

    This subpart contains the criteria and mandatory requirements for 
all dormitories. The individual employee responsibilities, based on the 
terminology used to designate specific employee positions and their 
assigned responsibilities, may vary depending upon whether the dormitory 
is a direct Bureau operation or contract operation.



Sec. 36.71  General provisions.

    (a) The Homeliving Specialist is the administrative head of the 
dormitory who shall have sufficient autonomy and authority to ensure the 
successful functioning of all phases of the dormitory program, and, in 
dormitories attached to a school, shall report to the school supervisor.
    (b) In situations where a Bureau-funded dormitory is maintained, 
operated, and administered separately from the academic program, this 
dormitory will ensure access to or provide a guidance program equal to 
the standards as those under Sec. 36.42 of this part.
    (c) Students who qualify for residential services under the 
Exceptional

[[Page 132]]

Child Program must have, in their individualized education plan, 
objectives that are to be met in the homeliving program. Documentation 
to support completion of these objectives is required.
    (d) Dormitories with intense residential guidance programs shall 
have updated written descriptions of the programs with stated purposes, 
objectives, activities, staffing, and evaluation system. Each student 
diagnosed as being in need of intense guidance services shall have a 
file which contains the following:
    (1) Documentation of eligibility according to the definition 
contained under 25 CFR 39.11(h);
    (2) Documentation of a diagnosis of the student's needs;
    (3) A placement decision signed by a minimum of three (3) staff 
members;
    (4) An individualized treatment plan which includes:
    (i) Referral date and referral sources;
    (ii) Diagnosis identifying specific needs;
    (iii) Specific goals and objectives to be met;
    (iv) Record of specific services including beginning and ending 
dates;
    (v) Designation of responsible staff person(s); and
    (vi) A means by which the student's progress and the effectiveness 
of the individualized treatment plan can be periodically reviewed and 
reevaluated.
    (e) Each dormitory program that does not have an academic program 
under subpart C shall make available career counseling information on 
educational and occupational opportunities and help students assess 
their aptitudes and interests. This shall be done on a continuing basis, 
beginning at the elementary level.
    (f) Counseling services shall be made available for students during 
non-academic hours.
    (g) Provisions shall be made to interpret to staff, students, and 
parents the administrative policies and practices of the dormitory. This 
provision shall be made in the form of a manual, handbook, brochure, or 
other written document that will be made available and explained to all 
who are interested. The topics shall include, but not be limited to, the 
following:
    (1) Statement of philosophy and goals;
    (2) Description of how policies are developed and administered; and
    (3) A copy of the student rights handbook.
    (h) Program will be designed and orientation programs implemented to 
facilitate the pupils' transition from elementary to middle school and 
from middle to high school, where appropriate.
    (i) All dormitories shall provide and maintain a well-balanced 
student activities program based on assessment of both student and 
program needs. Programs shall provide opportunities for student 
participation in, but not limited to, activities that include special 
interest clubs, physical activities, student government, and cultural 
affairs. In addition, the following provisions shall be adhered to:
    (1) Dormitories shall plan and provide for an intramural program 
that includes a variety of scholastic and sport activities.
    (2) A plan of operation shall be submitted by each activity at the 
beginning of each school year to the school supervisor and approved by 
the school board. The plan shall include the purpose, structure, and 
coordination of all activities.
    (3) All dormitories conducting fund-raising activities are required 
to established a school/student activity bank account following school/
student banking procedures outlined under 25 CFR Sec. 31.7. All accounts 
shall be audited annually.



Sec. 36.72  Elementary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience in dealing with elementary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of counselor while holding the position of school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselors:

Less than 75 students: \1/2\ time counselor

[[Page 133]]

75-150 students: 1 full-time counselor
151-225 students: 1 full-time and \1/2\ time counselor
226-300 students: 2 full-time counselors

For dormitories that exceed 300 students (ADM), additional counselor 
time shall be provided according to the above ratio. Dormitories within 
an Agency are encouraged to try a variety of approaches to guidance 
service. In this arrangement, the counselor's time may be shared between 
dormitories. As long as one half-time, professionally-trained counselor 
is provided, the dormitory program may use supportive personnel and 
teachers to meet the ratio.
    (d) Dormitory counselors' work hours shall be arranged to provide 
maximum availability of services to students when they are not in 
academic session.



Sec. 36.73  Secondary level dormitories.

    (a) Each dormitory program shall provide or have access to the 
services of a qualified counselor who holds a valid counselor 
certificate and has training and experience dealing with secondary 
students.
    (b) Counselors may be assigned minimal or temporary school 
supervisory duties. A school supervisor shall not serve in the capacity 
of a counselor while holding a position as a school supervisor.
    (c) The dormitory program shall have the following ratios (ADM) for 
counselor:

Less than 100 students: \1/2\ time counselor
100-199 students: 1 full-time counselor
200-300 students: 1 full-time and \1/2\ time counselor

For dormitories that exceed 300 students (ADM), counselor time will be 
provided according to the above radio. As long as one half-time, 
professionally trained counselor is provided, the dormitory program may 
use supportive personnel and teachers to meet the ratio.
    (d) Counselors' work hours shall be arranged to provide maximum 
availability of service to students when they are not in academic 
session.



Sec. 36.74  Homeliving (dormitory operations).

    Staff shall be provided so that at least one adult is on duty at all 
times when students are in the dormitory. Each dormitory program shall 
include, but not be limited to, the following:
    (a) Every dormitory facility shall be under the direct supervision 
of a dormitory manager. A building composed of separate wings or several 
floors shall be counted as one facility.
    (b) Each dormitory operation shall provide the following minimum on-
duty paraprofessional staff to student ratio (ADM):

                                                                        
                                                                Ratio   
                                                                        
                              Grades 1 to 6                             
                                                                        
Weekdays:                                                               
  Mornings.................................................         1:30
  During school hours......................................         1:40
  Evenings.................................................         1:30
  Nights...................................................         1:40
Weekends:                                                               
  Mornings.................................................         1:30
  Evenings.................................................         1:30
  Nights...................................................         1:40
                                                                        
                             Grades 7 to 12                             
                                                                        
Weekdays:                                                               
  Mornings.................................................         1:50
  During school hours......................................         1:80
  Evenings.................................................         1:50
  Nights...................................................         1:80
Weekends:                                                               
  Mornings.................................................         1:50
  Evenings.................................................         1:50
  Nights...................................................         1:80
                                                                        

Dormitory operations for grades one through eight are encouraged to 
provide additional staff aides during the time children in the primary 
grades are dressing and preparing for breakfast and school. Staff ratios 
on weekends shall be reduced at boarding schools to adjust for those 
students who go home, according to the above ratio.
    (c) Group instruction and discussion session shall be held on 
various topics at least on a monthly basis, but preferably on a weekly 
basis. Topics to be presented may be determined by a committee comprised 
of students, staff, administrators, and parents. These topics shall 
include discussions of problems or needs that exist at the location and/
or community.
    (d) Each dormitory facility shall be cleaned daily when in operation 
to provide a safe and sanitary environment. Student assistance may be 
utilized; however, the responsibility for the cleanliness, safety, and 
sanitation of

[[Page 134]]

the facility shall rest with the dormitory administrator. Bed and bath 
linen shall be changed a minimum of once per week. Necessary toiletry 
items shall be made available to those students who are economically 
unable to provide them.
    (e) Dormitory operations shall have access to clothes washers and 
dryers. Equipment shall be utilized only for students' clothing. In 
grades one through six, residential paraprofessionals shall be 
responsible for the upkeep of clothing. Students in grades seven through 
12 shall be responsible for the upkeeping of their own clothing. In 
grades seven through 12, students shall be allowed to wash and dry their 
clothing after training is given in using the machines. Contracting for 
student clothing care may also be utilized under this part.
    (f) A system of student accountability shall be established at each 
residential facility. Minimum requirements of the system shall include 
an attendance procedure at least four (4) times per normal waking day 
for grades one through eight and two (2) times for grades nine through 
12. However, students in grades seven through 12 may be allowed to have 
a self check-in system provided that an employee reviews the roster 
within an hour of each designated check-in time. During sleeping hours, 
students in grades one through eight shall be checked on an hourly 
basis; students in grades nine through 12 shall be checked every two (2) 
hours. At the start of each school day, residential facilities 
supervisors shall report to the school office which students will not be 
in attendance. An intra-school pass system shall be developed and 
implemented.
    (g) Students shall be permitted to be released from the dormitory 
overnight, on weekends, or during vacation periods only when prior 
written approval is granted by the parent or guardian and only if the 
local school board adopts a policy governing the conditions of release. 
Such policy must adhere to the concept that the dormitory/school is 
acting in ``loco parentis.''
    (h) Dormitory facilities shall have a designated room or rooms which 
shall be utilized as an isolation room(s) for student health care needs. 
Students isolated in such room(s) shall be checked on a minimum of an 
hourly basis.
    (i) Each dormitory operation shall develop a written procedure for 
handling emergency situations. Such a procedure shall include names and 
telephone numbers of the responsible parties to contact in case of 
emergencies. Situations that shall be considered emergencies include 
life-threatening medical/health problems, power failures, walkaways, 
etc.
    (j) A tutoring program shall be developed and implemented to assist 
those students having academic difficulties. Each dormitory operation 
shall provide a time and place where tutoring, homework, reading, and/or 
studying can be done for at least one hour daily.
    (k) The responsible dormitory supervisor shall be accountable for 
reporting any hazardous or defective items in the dormitory to the 
appropriate supervisor and plant manager.
    (l) Leisure-time activities shall be provided to dormitory students. 
These activities may include recreational activities, clubs, arts/
crafts, and reading of newspapers and periodicals. Television viewing 
shall not be considered as structured leisure time unless a scheduled 
program provides educational benefit.
    (m) Lines of communication shall be established with other local 
social service agencies to assist in the resolution of problems that may 
extend beyond the confines of the dormitory. These agencies may be 
State, tribal, or Federal.
    (n) Dormitory personnel will receive training in emergency first aid 
procedures.



Sec. 36.75  Space and privacy.

    The configuration of sleeping space and other living areas will vary 
according to the grade levels of the occupants; however, sleeping rooms 
shall provide sufficient space and privacy for the resident students. 
The following space and privacy requirements shall be required for 
dormitories. A dormitory shall be considered at capacity when the 
addition of one more student would put the school out of compliance with 
the space standard; and additional

[[Page 135]]

students shall not be admitted for residential purposes.
    (a) Dormitory facilities for grades one through eight shall have 
space footage averaging from 40 to 60 square feet per student for 
sleeping rooms, exclusive of furniture (wardrobe, desks, beds, etc.).
    (b) Dormitories housing students who are in grades nine through 12 
shall provide sleeping rooms with a per student square footage averaging 
from 50 to 70 square feet, exclusive of furniture (wardrobe, desks, 
beds, etc.).
    (c) When new dormitories are constructed or existing dormitories are 
remodeled, sleeping rooms shall be constructed not to exceed a maximum 
of four students per room for grades one through 12.
    (d) Each peripheral dormitory shall have a set of encyclopedias, one 
dictionary for every ten students (ADM), and ten other general reference 
materials such as an atlas or periodical subscription.



Sec. 36.76  Compliance for the National Criteria for Dormitory Situations.

    Implementation of the National Criteria for Dormitory Situations 
shall begin immediately on the effective date of this part. A dormitory 
is in compliance when it has met and satisfied all the requirements 
under subpart H.
    (a) The education supervisor(s) or peripheral dormitory supervisor 
shall report to their supervisor(s) within 45 days after the start of 
each school term with a compliance report to the local school board that 
attests to whether a dormitory is in compliance or noncompliance; within 
15 days, the compliance report shall be submitted to the Agency 
Superintendent for Education or Area Education Programs Administrator, 
as appropriate.
    (b) The school supervisor or the peripheral dormitory supervisor 
shall notify in writing each parent or legal guardian of the dormitory 
noncompliance status within 60 days after the beginning of the school 
term.
    (c) The compliance report shall contain the following:
    (1) A written statement attesting to the fact that the dormitory has 
or has not met all of the requirements.
    (2) A specific listing of the requirements that have not been met.
    (3) A detailed action plan designed to correct deficiencies.
    (4) A statement signed by the local school board attesting to the 
fact that it has been apprised of the school's compliance status and 
concurs or does not concur with the action plan to reach compliance.
    (d) The Agency Superintendent for Education or the Area Education 
Programs Administrator, as appropriate, shall review each dormitory 
compliance report and shall provide the Director with a detailed report 
by November 15 each year which shall include:
    (1) A list of dormitories indicating those not in compliance.
    (2) A detailed statement as to why each school indicated is not in 
compliance and how it is proposed to reach compliance.
    (3) A plan of action outlining what actions the Agency or Area 
education line officers, as appropriate, will take to assist the 
dormitories to reach compliance.
    (e) In the event a dormitory is not in compliance for two 
consecutive years due to conditions which can be corrected locally, 
appropriate personnel actions shall be initiated at all appropriate 
levels of school/dormitory administration. Noncompliance may be grounds 
for dismissal.
    (f) The Secretary shall submit to the appropriate committees of 
Congress at the time of the annual budget request a detailed plan to 
bring all Bureau and contract boarding schools up to the criteria 
established under section 1122 of Pub. L. 95-561, and 25 U.S.C. 2002. 
Such plan shall include, but not be limited to, predictions for the 
relative need for each boarding school in relation to the criteria 
established under this section and specific cost estimates for meeting 
such criteria at each school up to the level required by such criteria.



Sec. 36.77  Waivers and revisions.

    (a) The tribal governing body (tribe), or the local school board 
(LSB), if so designated by the tribe, shall have the local authority to 
waive or revise in part or in whole, the standard(s) established in this 
part if the standard(s) are

[[Page 136]]

determined to be inappropriate or if they fail to take into account 
specific needs of the tribe's children. This provision includes both 
tribal and Bureau-operated schools. When the tribe or LSB, if designated 
by the tribe, waives or revises a standard, it shall submit the waiver 
or revision to the Assistant Secretary for approval within 60 days. 
Until this approval is obtained, the standard of this part or minimum 
state standards shall apply to the affected school(s).
    (b) All revised standards shall be submitted to the Assistant 
Secretary in writing in accordance with the following procedure:
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the dormitory's annual standards compliance 
report.
    (2) The section or part to be waived shall be specified, and the 
extent to which it is to be deviated from shall be described.
    (3) A justification explaining why the alternative standard is 
determined necessary shall be included with the revised standard.
    (4) Measurable objectives and the method of achieving the 
alternative standard along with the estimated cost of implementation 
shall be stated.
    (c) The Assistant Secretary shall respond in writing within 45 days 
of receipt of the waiver or revision. The waiver shall be granted or the 
revision shall be accepted by the Assistant Secretary unless 
specifically rejected for good cause and in writing. The written 
rejection shall be sent to the affected tribe(s) and LSB. This rejection 
shall be final. The waiver is granted or revision is established 
automatically on the 46th day of receipt if no written response is 
provided by the Assistant Secretary.
    (d) The Assistant Secretary shall assist the school board of an 
Indian-controlled contract school in the implementation of the standards 
established in this part if the school board requests that these 
standards, in part or in whole, be implemented. At the request of an 
Indian-controlled contract school board, the Assistant Secretary shall 
provide alternative or modified standards to those established in this 
part to take into account the needs of the Indian children and Indian-
controlled contract school.

[59 FR 61766, Dec. 1, 1994]



PART 38--EDUCATION PERSONNEL--Table of Contents




Sec.
38.1  Scope.
38.2  Information collection.
38.3  Definitions.
38.4  Education positions.
38.5  Qualifications for educators.
38.6  Basic compensation for educators and education positions.
38.7  Appointment of educators.
38.8  Nonrenewal of contract.
38.9  Discharge of educators.
38.10  Conditions of employment of educators.
38.11  Length of the regular school term.
38.12  Leave system for education personnel.
38.13  Status quo employees in education positions.
38.14  Voluntary services.

    Authority: Secs. 1131 and 1135 of the Act of November 1, 1978 (92 
Stat. 2322 and 2327, 25 U.S.C. 2011 and 2015); Secs. 511 and 512 of Pub. 
L. 98-511; and secs. 8 and 9 of Pub. L. 99-89 (Indian Education 
Technical Amendments Act of 1985) and Title V of Pub. L. 100-297 (Indian 
Education Amendments of 1988).

    Source: 53 FR 37678, Sept. 27, 1988, unless otherwise noted.



Sec. 38.1  Scope.

    (a) Primary scope. This part applies to all individuals appointed or 
converted to contract education positions as defined in Sec. 38.3 in the 
Bureau of Indian Affairs after November 1, 1979. This part applies to 
elementary and secondary school positions and agency education 
positions.
    (b) Secondary scope. Section 38.13 applies to employees with 
continuing tenure in both the competitive and excepted service who 
encumber education positions.
    (c) Other. Where 25 CFR part 38 and a negotiated labor relations 
agreement conflict, the negotiated agreement will govern.



Sec. 38.2  Information collection.

    (a) The information collection requirements contained in Sec. 38.5 
use Standard Form 171 for collection, and have been approved by OMB 
under 25 U.S.C. 2011 and 2015 and assigned approval number 3206-0012. 
The sponsoring agency for the Standard Form 171,

[[Page 137]]

is the Office of Personnel Management. The information is being 
collected to determine eligibility for employment. The information will 
be used to rate the qualifications of applicants for employment. 
Response is mandatory for employment.
    (b) The information collection requirement for Sec. 38.14, Voluntary 
Services has been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned clearance number 1076-0116. The 
information is being collected to determine an applicants eligibility 
and selection for appropriate volunteer assignments. Response is 
voluntary.



Sec. 38.3  Definitions.

    As used in this part, the term:
    Agency means the current organizational unit of the Bureau, which 
provides direct services to the governing body or bodies and members of 
one or more specified Indian Tribes.
    Agency school board as defined in section 1139(1), of Pub. L. 95-
561, means a body, the members of which are appointed by the school 
boards of the schools located within such Agency. The number of such 
members shall be determined by the Director in consultation with the 
affected tribes. In Agencies serving a single school, the school board 
of that school shall function as the Agency School Board.
    Agency Superintendent for Education (ASE) means the Bureau official 
in charge of education functions at an Agency Office and to whom the 
school supervisor(s) and other educators under the Agency's 
jurisdiction, report.
    Area Education Programs Administrator (AEPA) means the Bureau 
official in charge of an Area Education Office that provides services to 
off-reservation residential schools, peripheral dormitories or on-
reservation BIA funded schools that are not served by an Agency 
Superintendent for Education. The AEPA may also provide education 
program services to tribes not having an Agency Superintendent for 
Education at their agency. The AEPA has no line authority over agency 
education programs that are under the jurisdiction of an Agency 
Superintendent for Education.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
of the Department of the Interior.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Consult, as used in this part and provided in section 1131(d)(1) (B) 
and (C) of Pub. L. 95-561, means providing pertinent information to and 
being available for discussion with the school board, giving the school 
board the opportunity to reply and giving due consideration to the 
school board's response, subject to appeal rights provided in Sec. 38.7 
(a), (b) and (c), and Sec. 38.9(e)(3).
    Director means the Deputy to the Assistant Secretary/Director--
Indian Affairs (Indian Education Programs) in the Bureau.
    Discharge means the separation of an employee during the term of the 
contract.
    Education function means the administration and implementation of 
the Bureau's education programs and activities (including school 
operations).
    Education position, means a position in the Bureau the duties and 
responsibilities of which:
    (a) Are performed on a school term basis principally in a Bureau 
elementary and secondary school which involve:
    (1) Classroom or other instruction or the supervision or direction 
of classroom or other instruction;
    (2) Any activity (other than teaching) that requires academic 
credits in educational theory and practice equal to the academic credits 
in educational theory and practice required for a bachelor's degree in 
education from an accredited institution of higher education; or
    (3) Any activity in or related to the field of education 
notwithstanding that academic credits in educational theory and practice 
are not a formal requirement for the conduct of such activity; or
    (4) Support services at or associated with the site of the school; 
or
    (b) Are performed at the Agency level of the Bureau and involve the 
implementation of education-related Bureau programs. The position of 
Agency Superintendent for Education is excluded.

[[Page 138]]

    Educator, as defined in section 1131(n)(2) of Pub. L. 95-561 means 
an individual whose services are required, or who is employed, in an 
education position as defined in Sec. 38.3.
    Employment contract means a signed agreement executed by and between 
the Bureau and the individual employee hired or converted under this 
part, that specifies the position title, period of employment, and 
compensation attached thereto.
    Involuntary change in position means the release of an employee from 
his/her position instigated by a change in program or other occurrence 
beyond the control of the employee.
    Local school board, as used in this part and defined in section 
1139(7) of Pub. L. 95-561, means a body chosen in accordance with the 
laws of the tribe to be served or, in the absence of such laws, the body 
elected by the parents of the Indian children attending a Bureau-
operated school. In schools serving a substantial number of students 
from different tribes, the members shall be appointed by the governing 
bodies of the tribes affected and the number of such members shall be 
determined by the Director in consultation with the affected tribes.
    Probationary period means the extension of the appointed process 
during which a person's character and ability to satisfactorily meet the 
requirements of the position are reviewed.
    School board means an Agency school board or a local school board.
    School supervisor means the Bureau official in charge of a Bureau 
school who reports to an Agency Superintendent for Education. In the 
case of an off-reservation residential school(s), and, in some cases, 
peripheral dormitories and on-reservation day schools, the school 
supervisor shall report to the Area Education Programs Administrator.
    School term is that term which begins usually in the last summer or 
fall and ends in the Spring. It may be interrupted by one or more 
vacations.



Sec. 38.4  Education positions.

    (a) The Director shall establish the kinds of positions required to 
carry out the Bureau's education function. No position will be 
established or continued for which:
    (1) Funds are not available; or
    (2) There is not a clearly demonstrable need and intent for it to 
carry out an education function.
    (b) Positions established for regular school operations will be 
restricted to school term or program duration. Particular care shall be 
taken to insure that year-long positions are not established unless they 
are clearly required and involve essential 12-month assignments.



Sec. 38.5  Qualifications for educators.

    (a) Qualifications related to positions. Job qualification 
requirements shall be at least equivalent to those established by the 
appropriate licensing and certification authorities of the State in 
which the position is located.
    (b) Qualifications related to individuals. An applicant for an 
education position must establish that he/she meets the requirements of 
the position by submitting an application and a college transcript, as 
appropriate, to the local school supervisor, Agency Superintendent for 
Education (ASE), Area Education Programs Administrator (AEPA), or 
Director and appearing for an interview if requested by the official 
involved. The applicant's education and experience will be subject to 
verification by the ASE or the AEPA. Employees who falsify experience 
and employment history may be subject to disciplinary action or 
discharge from the position to which he/she is appointed.
    (1) School boards may waive formal education and State certification 
requirements for tribal members who are hired to teach tribal culture 
and language.
    (2) Tribal members appointed under this waiver may not have their 
basic pay rate set higher than the rate paid to qualified educators in 
teaching positions at that school.
    (c) Identification of qualified individuals. The Director shall 
require each ASE, AEPA, and other appropriate local official in the 
education program organization to maintain lists of qualified and 
interviewed applicants for each of the kinds of established positions. 
Applications on file shall be

[[Page 139]]

purged annually. Applicants whose qualifications are established and who 
indicate an interest in working in specified locations will be included 
on those local applicant lists. The Director shall maintain a national 
list of qualified applicants for each of the kinds of positions 
established. Applicants whose qualifications are established and who 
either do not indicate an interest in a specific location or indicate an 
interest in working in any location will be entered on the national 
list. The national list is a secondary source of applicants.
    (d) Special recruitment and training for Indian educators. The 
Director shall review annually the Bureau's ``Recruitment of Indian 
Educators Program'' and update as necessary. The Director will define 
individual training plans for trainees and subsequent promotional 
opportunities for advancement based upon satisfactory job performance in 
this program.



Sec. 38.6  Basic compensation for educators and education positions.

    (a) Schedule of basic compensation rates. The Director shall 
establish a schedule for each pay level specified in part 62 of the 
Bureau of Indian Affairs Manual (BIAM). The schedule will be revised at 
the same time as and be consistent with rates in effect under the 
General Schedule or Federal Wage System for individuals with comparable 
qualifications, and holding comparable positions.
    (b) Range of pay rates for positions within pay levels. The range of 
basic compensation rates for positions assigned to each pay level will 
be consistent with the General Schedule or Federal Wage System rates 
that would otherwise be applicable if the position were classified under 
chapter 51 or subchapter IV of chapter 53 of title 5 of the United 
States Code (U.S.C.). The maximum pay shall not exceed step 10 of the 
comparable General Schedule position by more than ten percent.
    (c) Schedule of compensation rates for teachers and counselors. The 
basic compensation for teachers and counselors, including dormitory 
counselors and homeliving counselors, shall be determined in accordance 
with rates set by the Defense Department Overseas Teachers Pay and 
Personnel Practices Act. The schedule used shall be the current 
published schedule for the school year beginning on or after July 1 of 
each year.
    (d) Adjusting employee basic compensation rates. (1) Except for 
employees occupying positions of teachers and counselors, including 
dormitory counselors and homeliving counselors, adjustments in an 
employee's basic compensation made in connection with each contract 
renewal will be based on the following:
    (i) Contract renewal incentive--one pay increment for each renewal, 
not to exceed four increments, unless the educator is covered by a 
negotiated labor union agreement.
    (ii) Performance--employees whose performance is rated ``above 
satisfactory''; one pay increment; employees whose performance is rated 
``outstanding''; two pay increments.
    (2) Pay increments based on education may be awarded as outlined in 
62 BIAM.
    (e) Special additions to basic compensation. The Director is 
authorized to established the following special additions to rates of 
basic compensation:
    (1) The Director may authorize payment of a staffing differential 
not exceeding 25 per centum of the rate of basic compensation based on a 
formally-documented request by an ASE or AEPA. Such a staffing 
differential shall only be authorized in writing when the Director 
determines that:
    (i) It is warranted by the geographic isolation of the work site or 
other unusually difficult environmental working or living conditions 
and/or,
    (ii) It is necessary as a recruitment or retention incentive. This 
staffing differential is to be computed on the basic schedule rate 
before any other additions are computed.
    (2) Special rates may be established for recruitment and retention 
applicable only to a specific position or to specific types of positions 
in specific locations based on a formally documented request by an ASE 
or AEPA and submitted to the Director for approval.

[[Page 140]]

    (f) Payment of compensation to educators. This section applies to 
those individuals employed under the provisions of section 1131(m) of 
Pub. L. 95-561 or title 5 U.S.C.
    (1) Pay periods. Educators shall be paid on the basis of a biweekly 
pay period during the term of the contract. Chapter 55 of title 5 U.S.C. 
applies to the administration of pay for educators, except that section 
1131(m) of Pub. L. 95-561 provides that 5 U.S.C. 5533 does not apply 
with respect to the receipt of pay by educators during summer recess 
under certain circumstances.
    (2) Pay for contract educators. When an educator is appointed, 
payment under the contract is to begin as of the effective date of the 
contract. If an educator resigns or is discharged before the expiration 
of the term of the contract, pay ceases as of the date of resignation or 
discharge.
    (3) Prorating of pay. Within 30 days prior to the beginning of the 
academic school term, each educator must elect whether to have the 
annual contractual rate or basic pay prorated over the contractual 
academic school term, or to have the basic pay prorated over a 12-month 
period.
    (i) Each educator may change such election once during the academic 
school term, provided notice is given two weeks prior to the end of the 
fifth month after the beginning of the academic school term.
    (ii) An educator who elects a 12-month basis of prorated pay may 
further elect to be paid in one lump sum at the end of the academic 
school term for the then remaining amount of rate of basic pay otherwise 
due, provided notice is given four weeks prior to the end of the 
academic school term.
    (iii) No educator shall suffer a loss of pay or benefits because of 
elections made under this section.
    (4) Stipends for extracurricular activities. An employee, if 
assigned to sponsor an approved extracurricular activity, may elect 
annually at the beginning of the contract to be paid a stipend in lieu 
of overtime premium pay or compensatory time when the employee performs 
additional activities to provide services to students or otherwise 
support the school's academic and social programs.
    (i) The Director is authorized to establish a schedule of stipends 
for each Bureau Area, taking into consideration types of activities to 
be compensated and payments provided by public school districts in or 
near the Area.
    (ii) The stipend shall be a supplement to the employee's base pay 
and is not a part of salary for retirement computation purposes.
    (iii) The employee shall be paid the stipend in equal payments over 
the period of the extracurricular activity.

[53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3, 1989]



Sec. 38.7  Appointment of educators.

    (a) Local school employees. Local Bureau school employees shall be 
appointed only by the school supervisor. Before the local school 
employee is employed, the school board shall be consulted. An 
individual's appointment may be finalized only upon receipt of a formal 
written determination certified by the local school board under such 
uniform procedures as it may adopt. Written determination by the school 
board should be received within a reasonable period, but not to exceed 
30 days. Failure of the school board to act within this period shall 
have the effect of approving the proposed appointment. The local school 
board shall use the same written procedure to disapprove an appointment. 
The school supervisor may appeal to the ASE, or, where appropriate, to 
the AEPA, any determination by the local school board concerning an 
individual's appointment. A written statement of appeal describing the 
action and the reasons the supervisor believes such action should be 
overturned must be filed within 10 days of receipt of the action from 
the local school board. A copy of such statement shall be submitted to 
the school board and the board shall be afforded an opportunity to 
respond, not to exceed 10 calendar days, in writing, to the appeal. 
After reviewing such written appeal and response, the ASE or AEPA may, 
for cause, overturn the action of the local school board. The ASE or 
AEPA must transmit the determination of the appeal (in the form of a 
written opinion) to the board and to

[[Page 141]]

the supervisor identifying the reasons for overturning the action within 
10 calender days. Failure to act within the 10 calendar day period shall 
have the effect of approving the local school board's determination.
    (b) School supervisors. School supervisors may be appointed only by 
the ASE, except the AEPA shall appoint school supervisors for off-
reservation boarding schools and those few other schools supervised by 
the AEPA. The school board shall be consulted before the school 
supervisor is employed. The appointment may be finalized upon receipt of 
a formal written determination certified by the school board under any 
uniform procedures as it may adopt. Written determination by the school 
board shall be received within a reasonable period, but not to exceed 30 
days. Failure of the school board to act within this period shall have 
the effect of approving the proposed appointment. The school board shall 
use the same procedure to disapprove an appontment. Within 20 calendar 
days of receipt of any determination by the school board concerning an 
individual's appointment, the ASE or AEPA, as appropriate, may appeal to 
the Director by filing a written statement describing the determination 
and the reasons the supervisor believes the determination should be 
overturned. A copy of the statement shall be submitted to the local 
school board and the board shall be afforded an opportunity to respond, 
within 10 calendar days, in writing, to such an appeal. The Director may 
reverse the determination for cause set out in writing to the school 
board. Within 20 calendar days of the school board's response, the 
Director shall transmit the determination of the appeal (in the form of 
a written opinion) to the board and to the ASE or AEPA identifying the 
reasons for overturning the determination. Failure by the Director to 
act within the 20 calendar day period shall have the effect of approving 
the school board's determination.
    (c) Agency office education program employees. Appointments to 
Agency office education positions may be made only by the ASE. The 
Agency school board shall be consulted before the agency education 
employee is employed, and the appointment may be finalized upon receipt 
of a formal, written determination certified by the Agency school board 
under any uniform procedures as it may adopt. Written determination by 
the school board shall be received within a reasonable period, but not 
to exceed 30 days. Failure of the school board to act within this period 
shall have the effect of approving the proposed appointment. The Agency 
school board shall use the same written procedure to disapprove an 
appointment. Within 20 calendar days of receipt of any determination by 
the school board concerning an individual's appointment, the ASE may 
appeal to the Director by filing a written statement describing the 
determination and the reasons the supervisor believes the determination 
should be overturned. A copy of the statement shall be submitted to the 
Agency school board and the board shall be afforded an opportunity to 
respond, within 10 calendar days, in writing, to such appeal. After 
reviewing the written appeal and response, the Director may, for cause, 
overturn the determination of the Agency school board. Within 20 days of 
the board's response, the Director shall transmit the determination of 
the appeal (in the form of a written opinion) to the board and to the 
ASE identifying the reasons for overturning the determination. Failure 
of the Director to act within the 20 calendar day period shall have the 
effect of approving the school's board's determination.
    (d) Employment contracts. The Bureau shall issue employment 
contracts each year for individuals employed in contract education 
positions at the Agency or school levels.
    (e) Absence of local school boards. Where a local school board has 
not been established in accordance with section 1139(7) Pub. L. 95-561 
with respect to a Bureau school, or where a school board is not 
operational, and the local school board is required to be given a notice 
or required to be consulted by statute or these regulations, the 
official involved shall notify or consult with the Agency school board 
serving the tribe(s) to which the parents of the Indian children 
atending that school belong, or, in that absence,

[[Page 142]]

the tribal organization(s) of the tribe(s) involved.
    (f) Provisional contracts. Provisional certification or other 
limited certificates from the State are not considered full 
certification and only a provisional contract may be issued. There may 
be circumstances when no individual who has met the full certification 
or experience requirements is available for a professional position or 
when a status quo employee who does not meet full certification or 
experience requirements desires to convert to contract. When this 
situation exists, a provisional contract may be issued in accordance 
with the following:
    (1) The contract will be made only:
    (i) After it is determined that an individual already meeting 
certification or experience requirements is not available; or
    (ii) For conversion of a status quo employee who does not yet meet 
all established position requirements.
    (2) Consultation with the appropriate school board is required prior 
to the contract.
    (3) The contract may be of 12-month or school-term duration.
    (4) The employee will be required to make satisfactory progress 
toward meeting full qualification requirements.
    (5) If the employee fails to meet the requirements established under 
Sec. 38.7(f)(4), the contract will be terminated. Such termination 
cannot be grieved or appealed.
    (g) Conditional appointment. As provided in section 1131(d)(4), Pub. 
L. 95-561, if an individual who has applied at both the national and 
local levels is appointed from a local list of applicants, the 
appointment shall be conditional for 90 days. During that period, the 
individual's application and background shall be examined to determine 
if there is a more qualified individual for the position. Removal during 
this period is not subject to discharge, hearing or grievance 
procedures.
    (h) Short-term contracts. (1) There may be circumstances where 
immediate action is necessary and it is impossible to consult with the 
local school board. When this situation exists short-term contracts may 
be made by the school supervisor in accordance with the following:
    (i) The length of the contract will not exceed 60 days, or the next 
regularly scheduled school board meeting, whichever comes first.
    (ii) If the board meets and does not take action on the individual 
in question, the short-term contract may be extended for the duration of 
the school year.
    (iii) It shall be the responsibility of the school supervisor to 
fully inform the local school board of all such short-term contracts. 
Failure to do so may be cited as reason to discharge the school 
supervisor if so requested by the board.
    (2) The local school board may authorize the school supervisor to 
make an emergency short-term contract to classroom, dormitory and other 
positions directly related to the health and safety of students. When 
this situation exists, short-term contracts may be made in accordance 
with the following:
    (i) If local and agency lists of qualified applicants are exhausted, 
short-term contracts may be made without regard to qualifications for 
the position;
    (ii) The pay level will be based on the qualifications of the 
individual employed rather than the requirements of the position, if the 
qualifications of the individual are lower than required;
    (iii) The short-term contract may not exceed the school term and may 
not be renewed or extended;
    (iv) Every 60 days the school supervisor will determine if qualified 
individuals have been placed on the local or agency lists. If a 
qualified individual on the list accepts employment, the school 
supervisor must terminate the emergency appointment at the time the 
qualified individual is appointed.
    (i) Temporary contracts. There may be circumstances where a specific 
position is needed for a period of one year or less. Under these 
conditions a position may be advertised as a temporary position and be 
filled under a temporary contract. Such contract requires the same 
school board approval as a school year contract. If required for the 
completion of the activities specified in the original announcement, the 
position,

[[Page 143]]

may with school board approval be extended for up to one additional 
year. Temporary contracts may be terminated at any time and this action 
is not subject to approval or grievance procedures.
    (j) Waiver of Indian preference. Notwithstanding any provision of 
the Indian preference laws, such laws shall not apply in the case of any 
personnel action within the purview of this section respecting an 
application or employee not entitled to Indian preference if each tribal 
organization concerned grants, in writing, a waiver of the application 
of such laws with respect to such personnel action, where such a waiver 
is in writing deemed to be a necessity by the tribal organization, 
except that this shall in no way relieve the Bureau of its 
responsibility to issue timely and adequate announcements and 
advertisements concerning any such personnel action if it is intended to 
fill a vacancy (no matter how such vacancy is created). When a waiver is 
granted, it shall apply only to that particular position and as long as 
the employee remains in that position.
    (k) Prohibited reappointment. An educator who voluntarily terminates 
employment before the end of the school term may not be appointed to 
another Bureau education position before the beginning of the following 
school term. An educator will not be deemed to have voluntarily 
terminated employment if transferred elsewhere with the consent of the 
local school or Agency boards.
    (l) Contract renewals. The appropriate school board shall be 
notified in writing by the school supervisor and/or ASE or AEPA not less 
than 90 days before the end of the school term whether or not an 
individual's contract is recommended for renewal.
    (1) If the school board disagrees with the school supervisor's or 
ASE's or AEPA's recommendations, the board will submit a formal, written 
certification of its determinations to the school supervisor or ASE or 
AEPA within 25 days. If the board's determinations are not received 
within the 25 days, the school supervisor or ASE or AEPA shall issue the 
60 day notification of renewal or nonrenawal to the individual as 
required under Sec. 38.8.
    (2) When the school board submits its determination within the 25 
days and determines that a contract will be renewed, or nonrenewed, the 
appropriate official shall issue the required renewal notice, or 
nonrenawal, or appeal the determination of the school board to the 
appropriate official who will make a determination in accordance with 
the appeal procedure is Sec. 38.7(a) of this part. After the 
probationary period, if the determination is that the contract will not 
be renewed, the procedures specified in Sec. 38.8 shall apply.



Sec. 38.8  Nonrenewal of contract.

    Where the determination is made that an employee's contract shall 
not be renewed for the following year, the following procedure will 
apply to those employees who have completed three full continuous school 
terms of service under consecutive contract appointments and 
satisfactory performance in the same or comparable education positions.
    (a) The employee will be given a written notice of the action and 
the reasons thereof not less than 60 days before the end of the school 
term.
    (b) The employee will be given 10 calendar days to request an 
informal hearing before the appropriate official or body. Upon request, 
the employee may be given official time, not to exceed eight hours, to 
prepare a written response to the reason(s).
    (c) If so requested, an informal hearing shall be held within 30 
calendar days of receipt of the request.
    (d) The appropriate official or body will render a written 
determination within seven calendar days after the informal hearing.
    (e) The employee has a right to request an administrative review by 
the ASE or AEPA of the determination within 10 calendar days of that 
determination. The ASE or AEPA then has 20 calendar days to render a 
final decision. Where the employee is the supervisor of the school or an 
agency education employee, any appeal of the ASE or AEPA would be 
addressed to the Director for a decision. If the Director or ASE's or 
AEPA's decision overturns the appropriate official or bodies 
determination, the appropriate official or body will be notified of the

[[Page 144]]

reasons in writing. Failure by the Director or ASE or AEPA to act within 
the 20 days will sustain the determination. This completes the 
administrative appeal process.
    (f) Failure of any of the parties to meet the requirements of the 
above procedures will serve to negate the particular action sought by 
the negligent party.
    (g) Those employees with less than three full continuous school 
terms of consecutive contract appointments are serving a probationary 
period. Nonrenewal of his/her contract will be considered a continuation 
of the examining process. This action cannot be appealed or grieved.
    (h) Independent of the procedures outlined in this section, the 
school supervisor or ASE or AEPA, for applicable positions, shall be 
required to submit to the ASE or AEPA or appropriate higher authority 
all nonrenewal actions. Within 60 days, the ASE or AEPA shall review the 
nonrenewal actions and may overturn the determination of nonrenewal. In 
the event that the ASE or AEPA makes a decision to overturn the school 
board determination, the ASE or AEPA shall notify the school board in 
writing of his/her reasons for doing so.
    (i) No more than the substantial standard of evidence shall be 
required to sustain the nonrenewal.
    (j) A procedural error shall not be grounds for overturning a 
determination of nonrenewal unless the employee shows harmful error in 
the application of the Agency's procedures in arriving at such a 
decision. For purposes of this section, ``harmful error'' means error by 
the Agency in the application of its procedures which, in the absence or 
cure of the error, might have caused the Agency to reach a conclusion 
different than the one reached. The burden is upon the appellant to show 
that based upon the record as a whole, the error was harmful. i.e., 
caused substantial harm or prejudice to his/her rights.
    (k) Nonrenewal of a contract is not discharge and will not follow 
the discharge procedures.



Sec. 38.9  Discharge of educators.

    (a) Discharge for cause. Educators covered under the provision of 
this section are excluded from coverage under 5 U.S.C. 7511 and 4303. In 
order to provide due process for educators, the Director shall publish 
in 62 BIAM representative conditions that could result in the discharge 
of educators for cause and procedures to be followed in discharge cases.
    (b) Discharge for inadequate performance. Action to remove educators 
for inadequate performance will be taken for failure to meet performance 
standards established under 5 U.S.C. 4302. Performance standards for all 
educators will include, among others, lack of student achievement. 
Willful failure to exercise properly assigned supervisory 
responsibilities by supervisors shall also be cause for discharge.
    (c) Other discharge. The Director shall publish in 62 BIAM a 
description of the budgetary and programmatic conditions that may result 
in the discharge of educators for other than cause during the school 
term. The individual's personnel record will clearly reflect that the 
action taken is based upon budgetary or programmatic restraints and is 
not a reflection on the employee's performance.
    (d) Procedures for discharge for cause. The Director shall publish 
in 62 BIAM the procedural steps to be followed by school supervisors, 
ASE's, and AEPA's in discharge for cause cases. These procedures shall 
provide (among other things) for the following:
    (1) The educator to be discharged shall receive a written notice of 
the proposal, specifying the causes or complaints upon which the 
proposal is based, not less than 30 calendar days before the discharge. 
However, this shall not prohibit the exclusion of the individual from 
the education facility in cases where exclusion is required for the 
safety of the students or the orderly operation of the facility.
    (2) A reasonable time, but not less than 10 calendar days, will be 
allotted for the individual to make written and/or oral responses to the 
charge.
    (3) An opportunity will be afforded the individual to review the 
material relied upon to support the charge.
    (4) Official time, not to exceed eight hours, will be provided to 
the individual to prepare a response to the charge.

[[Page 145]]

    (5) The educator may elect to have a representative and shall 
furnish the identity of any representative to the ASE or AEPA. The ASE 
or AEPA may disallow, as an employee representative, any individual 
whose activities as a representative would cause a conflict of interest 
or position, or an employee whose release from his or her official 
position would give rise to unreasonable costs to the Government, or 
when priority work assignment precludes his or her release from official 
duties. The terms of any applicable collective bargaining agreement and 
5 U.S.C. 7114(a)(5) shall govern representation of employees in an 
exclusive bargaining unit.
    (6) The individual has a right to a final decision made by the 
appropriate level of supervision.
    (7) The individual has a right to appeal the final decision and have 
the merits of the case reviewed by a Departmental official not 
previously involved in the case. This right includes entitlement to a 
hearing upon request under procedures in accordance with the 
requirements of due process under section 1131(e)(1)(B) of Pub. L. 95-
561.
    (e) School board action. (1) The appropriate school board shall be 
notified as soon as possible, but in no case later than 10 calendar days 
from the date of issue of the notice of intent to discharge.
    (2) The appropriate school board, under any uniform procedure as it 
may adopt, may issue a formal written certification to the school 
supervisor, ASE, or AEPA either approving or disapproving the discharge 
before the expiration of the notice period and before actual discharge. 
Failure to respond before the expiration of the notice period will have 
the effect of approving the discharge.
    (3) The school supervisor initiating a discharge action may appeal 
the board's determination to the ASE or AEPA within 10 calendar days of 
receipt of the board's notice. The ASE or AEPA initiating a discharge 
may appeal the board's determination to the Director within 10 calendar 
days of receipt of the board's notice. Within 20 calendar days following 
the receipt of an appeal, the reviewing official may, for good cause, 
reverse the school board's determination by a notice in writing to the 
board. Failure to act within 20 calendar days shall have the effect of 
approving the board's determination.
    (f) School board recommendations for discharge. School boards may 
recommend in writing to school supervisors, ASE's, or AEPA's, and the 
Director that individuals in the education program be discharged. These 
written recommendations may follow any procedures formally established 
internally by the school board or tribal government. However, the 
written recommendations must contain specific causes or complaints that 
may be verified or established by investigation of factual situations. 
The official receiving a board recommendation for discharge of an 
individual shall acknowledge the recommendation in writing within 10 
calendar days of receipt and proceed with a fact finding investigation. 
The official who finally disposes of the recommendation shall notify the 
school board of the disposition in writing within 60 calendar days of 
initiation of the fact finding investigation.



Sec. 38.10  Conditions of employment of educators.

    (a) Supervision not delegated to school boards. School boards may 
not direct, control, or interrupt the day-to-day activities of BIA 
employees carrying out Bureau-operated education programs.
    (b) Employee handbook. Employee handbook and recruiting guides shall 
be developed by each local school or agency to provide specific 
information regarding:
    (1) The working and hiring conditions for various tribal 
jurisdictions and Bureau locations;
    (2) The need for all education personnel to adapt to local 
situations; and
    (3) The requirement of all education personnel to comply with and 
support duly adopted school board policies, including those relating to 
tribal culture or language.
    (c) Contract renewal notification. Employees will be notified 60 
calendar days before the end of the school term of the intent to renew 
or not renew their contract. If an individual's contract is to be 
renewed, the individual must agree in writing to serve for the

[[Page 146]]

next school term. This agreement must be received within 14 calendar 
days of the date of the notice in order to complete the contract 
renewal. If this agreement is not received by the fourteenth day, the 
employee has voluntarily forfeited his or her right to continuing 
employment. If an individual agrees to serve for the next school term 
and fails to report for duty at the beginning of the next school term, 
the contract will be terminated and the individual's future appointment 
will be subject to the restriction in Sec. 38.7(k) of this part.
    (d) Dual compensation. An employee accepting a renewal of a school 
term contract may be appointed to another Federal position during the 
school recess period without regard to the dual compensation regulations 
in 5 U.S.C. 5533.
    (e) Discrimination complaints. Equal Employment Opportunity (EEO) 
procedures established under 29 CFR part 1613 are applicable to contract 
employees under this part. It is the policy of the BIA that all 
employees and applicants for employment shall be treated equally when 
considered for employment or benefits of employment, regardless of race, 
color, sex, religion, national origin, age, or mental or physical health 
(handicap), within the parameters of Indian preference.
    (f) Grievance procedures. The Director shall publish in 62 BIAM 
procedures for the rapid and equitable resolution of grievances. In 
locations and for positions covered by an exclusive bargaining 
agreement, the negotiated grievance procedure is the exclusive avenue of 
redress for all matters within the scope of the negotiated grievance 
procedure.
    (g) Performance evaluation. The minimum number of times a supervisor 
shall meet with an employee to discuss performance and suggest 
improvements shall be once every three months for the educator's first 
year at a school or Agency, and twice annually thereafter during the 
school term.



Sec. 38.11  Length of the regular school term.

    The length of the regular school term shall be at least 180 student 
instructional days, unless a waiver has been granted under the 
provisions of 25 CFR 36.61.



Sec. 38.12  Leave system for education personnel.

    (a) Full-time school-term employees. Employees on a full-time 
school-term contract are authorized the following types of leave:
    (1) Personal leave. A school-term employee will receive 28 hours of 
personal leave to be used for personal reasons and 12 hours of emergency 
leave. This leave only accrues provided the length of the contract 
exceeds 24 weeks.
    (i) The school-term employee will request the use of this leave in 
advance when it is for personal use or personal business (e.g., going to 
the bank, etc.). When this leave is requested for emergency purposes 
(e.g., death in immediate family), it will be requested immediately 
after the emergency is known, if possible, by the employee and before 
leave is taken or as soon as the supervisor reports to work on the 
official work day.
    (ii) Final approval rests with the supervisor. This leave shall be 
taken only during the school term. No compensation for or carryover of 
unused leave is authorized.
    (2) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments may be 
included under this part. However, whenever possible, medical and dental 
appointments should be scheduled after instructional time.
    (i) Sick leave shall accrue at the rate of four hours each biweekly 
pay period in pay status during the term of the contract; and no 
precredit or advance of sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (3) School vacation. School term employees may receive up to 136 
hours of school vacation time for use when school is not in session. 
School vacations are scheduled on the annual school calendar during the 
instructional year and may not be scheduled

[[Page 147]]

before the first day of student instruction or after the last day of 
student instruction. School vacations are not a right of the employee 
and cannot be paid for or carried over if the employee is required to 
work during the school vacation time or if the program will not permit 
school term employees to take such vacation time.
    (b) Leave for full-time, year-long employees. Employees who are on a 
full-time, year-long contract are authorized the following types of 
leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--120 hours; years 3-5 of employment--160 hours; 6 or more 
years--200 hours. The supervisor will determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment, provided 
the length of the contract exceeds 24 weeks. An employee may carry into 
succeeding years up to 200 hours of vacation leave. Leave unused at the 
time of separation is forfeited.
    (2) Sick leave. Sick leave accumulation and use is authorized on the 
same basis as for school term employees under Sec. 38.12(a)(2) of this 
part.
    (c) Leave for part-time year-long employees. Employees who are on 
part-time year-long contracts exceeding 20 hours per week are authorized 
the following types of leave:
    (1) Vacation leave. Absence approved in advance by the supervisor 
for rest and relaxation or other personal reasons is authorized on a per 
year basis of Federal Government service as follows: years 1 and 2 of 
employment--64 hours; years 3-5 of employment--80 hours; 6 or more 
years--104 hours. The supervisor shall determine when vacation leave may 
be used. Vacation leave is to be scheduled and used to the greatest 
extent possible during periods when school is not in session and the 
students are not in the dormitories. Vacation leave is credited to an 
employee on the day following his or her date of employment provided the 
length of the contract exceeds 24 weeks and may not be accumulated in 
excess of 104 hours from year to year. An employee may carry over up to 
104 hours from one contract year to the next. Leave unused at the time 
of separation is forfeited.
    (2) Sick leave. Sick leave is accumulated on the basis of three 
hours each biweekly pay period in pay status; no precredit or advance of 
sick leave is authorized. Accumulated sick leave at the time of 
separation will be recredited to an educator who is reemployed within 
three years of separation.
    (d) Leave for school term employees on a part-time work schedule in 
excess of 20 hours per week. (1) Employees on a part-time work schedule 
in excess of 20 hours per week may receive a maximum of 102 hours of 
school vacation time; 20 hours of personal/emergency leave; and 63 hours 
of sick leave accrued at three hours per pay period for the first 21 pay 
periods of their contracts. Personal/emergency leave only accrues 
provided the length of the contract exceeds 24 weeks.
    (2) The part-time employee will request the use of this leave in 
writing in advance when it is for personal use or personal business 
(e.g., going to the bank, etc.). When this leave is requested for 
emergency purposes (e.g., death in immediate family), it will be 
requested immediately after the emergency is known, if possible, by the 
employee and before leave is taken or as soon as the supervisor reports 
to work on the official work day.
    (3) Final approval rests with the supervisor. This leave shall be 
taken only during the school year. No compensation for or carryover of 
unused leave is authorized.
    (4) Sick leave. Sick leave is an absence approved by the supervisor 
for incapacity from duty due to injury or illness, not related to or 
incurred on-the-job and not covered by the Federal Employee's 
Compensation Act Regulations. Medical and dental appointments may be 
included under this part. However, whenever possible, medical and dental 
appointments should be scheduled after instructional time.

[[Page 148]]

    (i) Sick leave shall accrue at the rate of three hours each biweekly 
pay period in pay status for the first 21 pay periods of their contract; 
no precredit or advance for sick leave is authorized.
    (ii) Accumulated sick leave at the time of separation will be 
recredited to an educator who is reemployed within three years of 
separation.
    (5) School vacation time. Part-time employees may receive up to 102 
hours of school vacation time for use when school is not in session. 
Approval for the use of this time will be administratively determined by 
the school supervisor, ASE or AEPA, and this time may not be scheduled 
before the start of school or after the end of school.
    (i) All school vacation time for part-time employees will be 
approved at the convenience of the program and not as a right of the 
employee.
    (ii) Vacation time cannot be paid for or carried over for a part-
time employee if the employee is required to work during the school 
vacation time or if the program will not permit part-time employees to 
take such vacation time.
    (e) Accountable absences for all contract employees. The following 
are considered accountable absences:
    (1) Approved absence. If prescheduled and approved by the school 
supervisor, ASE or AEPA, as appropriate, an employee may be on leave 
without pay.
    (2) Absence without leave. Any absence is not prescheduled or 
approved in advance or excused by the supervisor is considered absence 
without leave.
    (3) Court and military leave. Employees are entitled to paid absence 
for jury or witness service and military duty as a member of the 
National Guard or Reserve under the same terms or conditions as outlined 
in sections 6322 and 6323 of title 5 U.S.C., and corresponding 
provisions of the Federal Personnel Manual, when the absence occurs 
during the regular contract period. Employees may be requested to 
schedule their military leave at times other than when school is in 
session.
    (4) Administrative leave. Administrative leave is an excused absence 
from duty administratively authorized without loss of pay or without 
charge to leave. This leave is not a substitute for other paid or unpaid 
leave categories. Administrative leave usually is authorized on an 
individual basis except when a school is closed or a group of employees 
are excused from work for a particular purpose. The school supervisor, 
ASE or AEPA will grant administrative leave. A school closing must be 
approved by the ASE or AEPA.
    (f) Educators serving with contracts with work weeks of 20 hours a 
week or less are not eligible for any type of paid leave.
    (g) For school term educators, no paid leave is earned nor may 
accumulated leave be used during any period of employment with the 
Bureau between school terms.
    (h) Employees issued contracts for intermittent work are not 
eligible for any type of paid leave.
    (i) Leave transferred in. Annual leave credited to an employee's 
accrued leave balance immediately before conversion to a contract 
education position or appointment under this part will be carried over 
and made available to the employee. Sick leave credited to an employee's 
accrued sick leave balance immediately before conversion to a contract 
education position or appointment under this part shall be credited to 
the employee's sick leave account under the system in Sec. 38.12(a)(2) 
and (b)(2).



Sec. 38.13  Status quo employees in education positions.

    (a) Status quo employees. Individuals who were Bureau employees on 
October 31, 1979, with an appointment in either the competitive or 
excepted service without time limitation, and who are serving in an 
education position, shall be continued in their positions under the 
terms and conditions of that appointment with no change in their status 
or positions. Such employees are entitled to receive any changes in 
compensation attached to the position. Although such employees occupy 
``education positions'' as defined in this part, the terms and 
conditions of their appointment, status, and entitlements are determined 
by competitive service regulations and procedures. Under applicable 
procedures, these employees

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are eligible for consideration for movement to other positions that are 
defined as ``contract education'' positions. Such movement shall change 
the terms and conditions of their appointment to the terms and 
conditions of employment established under this part.
    (b) If the tribe or school board waives the Indian preference law, 
the employee loses the early-out retirement eligibility under Pub. L. 
96-135, ``early-out for non-Indians,'' if they are entitled to the 
early-out retirement. A memorandum for the record on BIA letterhead 
shall be signed by the employee and placed on the permanent side of his/
her Official Personnel Folder, along with the tribal resolution, if the 
tribe/school board has waived the Indian preference law to employ the 
non-Indian.''
    (c) Conversion of status quo employees to contract positions. Status 
quo employees may request in writing to the school supervisor, ASE or 
AEPA, as applicable, that their position be converted to contract. The 
appropriate school board will be consulted and a determination made by 
such school board whether such individual should be converted to a 
contract employee.
    (1) Written determination by the school board should be received 
within a reasonable period, but not to exceed 30 days from receipt of 
the request. Failure of the school board to act within this period shall 
have the effect of disapproving the proposed conversion.
    (2) With school board approval, an involuntary change in position 
shall not affect the current status of status quo education employees.



Sec. 38.14  Voluntary services.

    (a) Scope. An ASE or AEPA may, subject to the approval of the local 
school board concerned, accept voluntary services on behalf of Bureau 
schools from the private sector, including individuals, groups, or 
students. Voluntary service shall be for all non-hazardous activities 
where public services, special projects, or school operations are 
improved and enhanced. Volunteer service is limited to personal services 
received without compensation (salary or wages) by the Bureau from 
individuals, groups, and students. Nothing in this section shall be 
construed to require Federal employees to work without compensation or 
to allow the use of volunteer services to displace or replace Federal 
employees.
    (b) Volunteer service agreement. An agreement is a written document, 
jointly completed by the volunteer, the Bureau school supervisor, and 
the school board, that outlines the responsibilities of each. In the 
case of students receiving credit for their work (i.e., student 
teaching) from an education institution, the agreement will be jointly 
completed by the student, a representative of the institution, and the 
Bureau school supervisor. In the case of volunteer groups, the agreement 
shall be signed by an official of the volunteering organization, the 
Bureau school supervisor, and the school board and a list of signatures 
and emergency telephone numbers of all participants shall be attached.
    (c) Eligibility. Although no minimum age requirement exists for 
volunteers, schools shall comply with appropriate Federal and State laws 
and standards on using the services of minors. All volunteers under the 
age of 18 must obtain written permission from their parents or guardians 
to perform volunteer activities.
    (d) Status. Volunteers participating under this part are not 
considered Federal employees for any purpose other than:
    (1) Title 5 U.S.C. chapter 81, dealing with compensation for 
injuries sustained during the performance of work assignments.
    (2) Federal tort claims provisions published in 28 U.S.C. chapter 
171.
    (3) Department of the Interior Regulations Governing 
Responsibilities and Conduct.
    (e) Travel and other expenses. The decision to reimburse travel and 
other incidental expenses, as well as the amount of reimbursement, shall 
be made by the school supervisor, ASE, AEPA, and the respective school 
board. Payment is made in the same manner as for regular employees. 
Payment of travel and per diem expenses to a volunteer on a particular 
assignment must be supported by a specific travel authorization and 
cannot exceed the

[[Page 150]]

cost of employing a temporary employee of comparable qualification at 
the school for which a travel authorization is considered.
    (f) Annual report. School supervisors shall submit reports on 
volunteers to the ASE or AEPA by October 31 of each year for the 
preceding year.



PART 39--THE INDIAN SCHOOL EQUALIZATION PROGRAM--Table of Contents




                           Subpart A--General

Sec.
39.1  Purpose and scope.
39.2  Definitions.
39.3  General provisions.

            Subpart B--The Indian School Equalization Formula

39.10  Establishment of the formula.
39.11  Definitions.
39.12  Entitlement for instructional purposes.
39.13  Entitlement for residential purposes.
39.14  Entitlement for small schools.
39.15  Alaskan school cost supplements.
39.16  Computation of school entitlements.
39.17  Comparability with public schools.
39.18  Recomputations of current year entitlements.
39.19  Phase-in provisions.
39.20  Development of uniform, objective and auditable student weighted 
          area placement criteria and guidelines.
39.21  Future considerations for weighted programs.
39.22  Authorization of new program development, and termination of 
          programs.
39.23  Review of contract schools supplemental funds.

          Subpart C--Formula Funding Administrative Procedures

39.30  Definitions.
39.31  Conditions of eligibility for funding.
39.32  Annual computation of average daily membership.
39.33  Special education unduplicated count provision.
39.34  Substitution of a count week.
39.35  Computation of average daily membership (ADM) for tentative 
          allotments.
39.36  Declining enrollment provision.
39.37  Auditing of student counts.
39.38  Failure to provide timely and accurate student counts.
39.39  Delays in submission of ADM counts.

           Subpart D--Direct Allotment of Formula Entitlements

39.50  Definitions.
39.51  Notice of allotments.
39.52  Initial allotments.
39.53  Obligation of funds.
39.54  Apportionment of entitlements to schools.
39.55  Responsible local fiscal agent.
39.56  Financial records.
39.57  Access to and retention of local educational financial records.
39.58  Expenditure limitations for Bureau operated schools.

               Subpart E--Local Educational Financial Plan

39.60  Definitions.
39.61  Development of local educational financial plans.
39.62  Minimum requirements.
39.63  Procedures for development of the plan.
39.64  Procedures for financial plan appeals.

                      Subpart F--Contingency Funds

39.70  Definitions.
39.71  Establishment of the School Disaster Contingency Fund.
39.72  Continuing and cumulative provisions.
39.73  Purposes.
39.74  Application procedures.
39.75  Disbursement procedures.
39.76  Prohibitions of expenditures.
39.77  Transfer of funds from Facilities Engineering for other 
          contingencies.
39.78  Establishment of a formula implementation set-aside fund.
39.79  Prohibition.

                    Subpart G--School Board Training

39.90  Establishment of a school board training fund.
39.91  Other technical assistance and training.
39.92  Training activities.
39.93  Allowable expenditures.
39.94  Limitations on expenditures.
39.95  Reporting of expenditures.
39.96  Provision for annual adjustment.
39.97  Training for agency school board.

                    Subpart H--Student Transportation

39.100  Definitions.
39.101  Purpose and scope.
39.102  Allocation of transportation funds.
39.103  Annual transportation formula adjustment.

[[Page 151]]

          Subpart I--Interim Maintenance and Minor Repair Fund

39.110  Establishment and funding of an Interim Maintenance and Minor 
          Repair Fund.
39.111  Conditions for distribution.
39.112  Allocation.
39.113  Use of funds.
39.114  Limitations.

                 Subpart J--Administrative Cost Formula

39.120  Purpose and scope.
39.121  Definitions.
39.122  Allotment of education administrative funds.
39.123  Allotment exception for FY 1991.

                  Subpart K--Pre-kindergarten Programs

39.130  Interim fiscal year 1980 and fiscal year 1981 funding for pre-
          kindergarten programs previously funded by the Bureau.
39.131  Addition of pre-kindergarten as a weight factor to the Indian 
          School Equalization Formula in fiscal year 1982.

        Subpart L--Contract School Operation and Maintenance Fund

39.140  Definitions.
39.141  Establishment of an interim fiscal year 1980 operation and 
          maintenance fund for contract schools.
39.142  Distribution of funds.
39.143  Future consideration of contract school operation and 
          maintenance funding.

    Authority: 25 U.S.C. 13; 25 U.S.C. 2008.

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



                           Subpart A--General



Sec. 39.1  Purpose and scope.

    The purpose of this rule is to provide for the uniform direct 
funding of BIA operated and tribally operated day schools, boarding 
schools, and dormitories. These rules apply to all schools and 
dormitories and administrative units which are funded through the Indian 
School Equalization Program of the Bureau of Indian Affairs.



Sec. 39.2  Definitions.

    Assistance under this rule is subject to the following definitions 
and requirements relating to fiscal and administrative matters. 
Definitions of terms that are used throughout the part are included in 
this subpart. As used in this part, the term:
    (a) Agency means an organizational unit of the Bureau which provides 
direct services to the governing body or bodies and members of one or 
more specified Indian Tribes. The term includes Bureau Area Offices only 
with respect to off-reservation boarding schools administered directly 
by such Offices.
    (b) Agency school board means a body, the members of which are 
appointed by the school boards of the schools located within such 
agency, and the number of such members shall be determined by the 
Director in consultation with the affected tribes, except that, in 
Agencies serving a single school, the school board of such school shall 
fulfill these duties.
    (c) Agency Superintendent of Education or Superintendent means the 
Bureau official in charge of Bureau education programs and functions in 
an Agency who reports to the Director.
    (d) Area Director for Education means the Bureau official in charge 
of Bureau Education programs and functions in a Bureau Area Office and 
who reports to the Director.
    (e) Assistant Secretary means the Assistant Secretary of Indian 
Affairs, Department of the Interior, or his or her designee.
    (f) Average daily membership or ADM means the average of the actual 
membership in the school, for each student classification given separate 
weightings in the formula. Only those eligible students shall be counted 
as members who are:
    (1) Listed on the current roll of the school counting them during 
the count week;
    (2) Not listed as enrolled in any other school during the same 
period; and
    (3) In actual attendance at the school counting them at least one 
full day during the count week in which they are counted.
    (g) Bureau means the Bureau of Indian Affairs of the Department of 
the Interior.
    (h) Decision of record means a formal written confirmation of a 
voted action by a school board during a formally constituted school 
board meeting.

[[Page 152]]

    (i) Director means the Director of the Office of Indian Education 
Programs for the Bureau of Indian Affairs, or his or her designee.
    (j) Eligible student means an Indian student properly enrolled in a 
Bureau school or dormitory, or a tribally operated school or dormitory 
funded by the Bureau, who meets the applicable entry criteria for the 
program(s) in which he or she is enrolled.
    (k) Entitlement means that amount of funds generated by the Indian 
School Equalization Formula for the operational support of each school.
    (l) Advice of allotment means the formula written document advising 
a school or an administrative office of its entitlement under the 
formula. The advice of allotment conveys legal authority to obligate and 
expend funds in a given fiscal year.
    (m) Allotment means the amount of the obligational authority 
conveyed to a given school or Bureau administrative office by its advice 
of allotment in a given fiscal year.
    (n) Indian means a person who is a member of an Indian tribe.
    (o) Indian Tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688) which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (p) Program means each or any subset of the Indian School 
Equalization Program (ISEP), but not the ISEP itself, for which a 
separately computable dollar amount may be generated by a school. Each 
program classification is a cost account in an accounting system. The 
following accounting programs are those established by this part:
    (1) Instructional costs;
    (2) Boarding costs;
    (3) Dormitory costs;
    (4) Bilingual instruction costs;
    (5) Exceptional child education costs;
    (6) Intense residential guidance costs;
    (7) Student transportation fund costs;
    (8) School maintenance and repair fund costs;
    (9) School board training fund costs;
    (10) Pre-kindergarten costs; and
    (11) Previously private contract school operation and maintenance 
costs.
    (q) School means an educational or residential center operated by or 
under contract with the Bureau of Indian Affairs offering services to 
Indian students under the authority of a local school board and the 
direction of a local school supervisor. A school may be located on more 
than one physical site. The term school, unless otherwise specified, is 
meant to encompass day schools, boarding schools, previously private 
schools, cooperative schools, contract schools and dormitories as those 
terms are commonly used.
    (r) Local School Board, (usually referred to as school board) 
including off-reservation boarding school boards and dormitory school 
boards, when used with respect to a Bureau school, means a body chosen 
to exercise the functions of a school board with respect to a particular 
Bureau operated or funded school, in accordance with the laws of the 
tribe to be served or, in the absence of such laws, elected for similar 
purpose by the parents of the Indian children attending the school, 
except that in schools serving a substantial number of students from 
different tribes, the members shall be appointed by the governing bodies 
of the tribes affected; and the number of such members shall be 
determined by the Director in consultation with the affected tribes.
    (s) Supervisor or local school supervisor means the individual in 
the position of ultimate authority at any Bureau administered or 
tribally operated contract school.
    (t) Tribally operated contract school or contract school means a 
school (other than a public school) which is financially assisted under 
a contract with the Bureau.
    (u) Weighted student unit (WSU) means the measure of student 
membership adjusted by the weights or ratios used as factors in the 
Indian School Equalization Formula established in Sec. 39.10 below. The 
term weighted student unit also describes the measure by which 
supplements to the weighted

[[Page 153]]

student count at any school are augmented as the result of the 
application of small school supplements or Alaskan school supplements.



Sec. 39.3  General provisions.

    (a) All funds appropriated by the Congress for the support and 
administration of Bureau operated or contracted elementary and secondary 
educational purposes and programs shall be allocated in accordance with, 
and be distributed through, the Indian School Equalization Program, 
unless a specific amount of funds are added or reduced for a particular 
class of schools through the budget and appropriations process.
    (b) Each expenditure of funds authorized in part 39 is without 
exception subject to the availability of funds.



            Subpart B--The Indian School Equalization Formula



Sec. 39.10  Establishment of the formula.

    There is hereby established the Indian School Equalization Formula 
(ISEF). Funds for the instruction and residential care of Indian 
children shall be earned as an entitlement by each local school 
according to a weighted student unit formula. The funds allocated 
through the formula shall be computed as follows:
    (a) The basic instructional average daily membership (ADM) shall be 
counted at each school location as provided for in subpart C of this 
part. From the application of ratios or weights as provided in these 
rules a weighted student unit (WSU) value for each school location is 
derived by multiplying the student count for each program area by the 
weights.
    (b) If the school is a boarding school or a dormitory, the 
residential students will produce program units which will, by the 
application of weights, produce additional WSU's.
    (c) The ADM count of eligible small schools or dormitories may 
generate additional unit supplements.
    (d) All Alaskan schools are eligible under the formula to generate 
supplemental units.
    (e) The total weighted student unit count for each school location 
is then multiplied by a base unit value to derive the estimated dollar 
entitlement to each school(s).

The total amount is made available to each school(s), under the rules 
related to administrative provisions provided in subparts C and D of 
this part.



Sec. 39.11  Definitions.

    Assistance to approved school(s) under this subpart is subject to 
the definitions established in Sec. 39.2 and to the following 
definitions for determining student counts in the various weighted 
areas. As used in the subpart, the term:
    (a) Base or base unit means both the weight or ratio of 1.0 and the 
dollar value annually established for that weight or ratio which 
represents students in grades 4 through 8 in a typical instructional 
program.
    (b) Basic program means the instructional program provided all 
students at any age level exclusive of any supplemental programs which 
are not provided to all students in day or boarding schools.
    (c) Grade or Grade Level, followed in most cases by K or a number, 
means a classroom grouping ordinarily determined by student age and 
successful completion of a criterion number of years of previous 
schoolwork. The use of this term does not preclude ISEP funding of 
programs in which instruction is non-graded or individualized, or which 
otherwise depart from grade-level school structure. For purposes of 
funding under the ISEP, students in such programs shall be counted as in 
the grade level to which they would ordinarily be assigned based on 
their chronological age and number of years of schooling completed.
    (d) Grades 1-3 means a weighted program for a student who is present 
during the count week (see Sec. 39.30(b)) in grades 1 through 3 who is 
at least 6 years old by December 31 of the fall of the school year 
during which the count occurs and is a member of an educational program 
approved by the board which is conducted at least six gross hours daily 
during at least 180 days per school year. Gross hours means from the 
start of the school day to the end of the school day including all 
activities.

[[Page 154]]

    (e) Grades 4-8 and grades 9-12 means a weighted program for a 
student who is present during the count week (see Sec. 39.30(b)) in 
either of the programs encompassing grades 4 through 12 who is a member 
of an educational program approved by the school(s) at least six gross 
hours daily during at least 180 days per school year and shall not have 
achieved the age of 21 nor have received a high school diploma or its 
equivalent.
    (f) Kindergarten means a weighted program for a student who is 
present during the count week (see Sec. 39.30(b)) who is at least 5 
years old by December 31 of the fall of the school year during which the 
count occurs and a member of an educational program approved by the 
school(s) conducted at least four gross hours daily during at least 180 
days per school year. Otherwise eligible students who are in a program 
conducted less than four hours daily, but at least two gross hours daily 
are eligible as half-time kindergarten students.
    (g) Intense Bilingual means a weighted program for a student who is 
present during the count week, whose primary language is not English, 
and who is receiving academic instruction daily through oral and/or 
written forms of an Indian or Alaskan Native language, as well as 
specialized instruction in English for non native speakers of English, 
under resources of the ISEP.
    (h) Intensive residential guidance means the weighted program for a 
resident student that needs special residential services due to one or 
more of the problems identified below, and that appropriate 
documentation is in that student's file as follows:
    (1) Presenting problem:
    (i) Court of juvenile authority request for placement resulting from 
a pattern of infractions of the law.
    (ii) Explusion from previous school under due process.
    (iii) Referral by a licensed psychologist, psychiatrist or certified 
psychiatric social worker as an emotionally disturbed student.
    (iv) History of truancy more than 50 days in the last school year or 
a pattern of extreme disruptive behavior.
    (2) Documentation required:
    (i) Written request signed by officer of court or juvenile 
authority;
    (ii) Certification by expelling school;
    (iii) Psychologist, certified psychiatric social worker, or 
psychiatrist report; or
    (iv) Attendance and behavior data from records of prior school, 
court records, or from social agency records and a written documentation 
summarizing such data. For all students placed in intensive residential 
guidance programs, there shall be further documentation of a diagnostic 
workup, a placement decision by a minimum of three staff members, and a 
record of an individualized treatment plan for each student that 
specifies service objectives.
    (v) No student shall be classified under Intense residential 
guidance who is eligible for services at a full-time or part-time 
service level because of a handicapping condition as defined under 
Exceptional Child programs in paragraph (i) of this section.
    (i) Exceptional Child Program means weighted programs for students 
who are receiving special education and related services, consistent 
with the identification, evaluation and provisions of a free appropriate 
public education required by part B of the Education of the Handicapped 
Act (20 U.S.C. 1401 et seq.; 45 CFR part 121a\1\) and section 504 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794; 45 CFR part 84) and who have 
the following diagnosed impairments:
---------------------------------------------------------------------------

    \1\ 45 CFR 121a was redesignated as 34 CFR 300 at 45 FR 77368, Nov. 
21, 1980.
---------------------------------------------------------------------------

    (1) Deaf means a hearing impairment which is so severe that the 
child is impaired in processing linguistic information through hearing, 
with or without amplification, which adversely affects educational 
performance.
    (2) Hard of hearing means a hearing impairment, whether permanent or 
fluctuating, which adversely affects a child's educational performance 
but which is not included under the definition of deaf in this section.
    (3) Mentally retarded means significantly subaverage general 
intellectual functioning existing concurrently with

[[Page 155]]

deficits in adaptive behavior and manifested during the developmental 
period, which adversely affects a child's educational performance.
    (4) Severely multi-handicapped means concomitant impairments (such 
as mentally retarded-blind; mentally retarded-deaf) the combination of 
which causes such severe educational problems that they cannot be 
accommodated in regular educational programs or in special education 
programs solely for one of the impairments. The term includes deaf-blind 
children.
    (5) Orthopedically impaired means a severe orthopedic impairment 
which adversely affects a child's educational performance. The term 
includes impairments caused by congenital anomaly (e.g., clubfoot, 
absence of some member, etc.), impairments caused by disease (e.g., 
poliomyelitis, bone tuberculosis, etc.), and impairments from other 
causes (e.g., cerebral palsy, amputations, and fractures or burns which 
cause contractures).
    (6) Other health impaired means limited strength, vitality or 
alertness, due to chronic or acute health problems such as a heart 
condition, tuberculosis, rheumatic fever, nephritis, asthma, hemophelia, 
epilepsy, lead poisoning, leukemia, or diabetes or the existence of a 
physical or mental impairment which substantially limits one or more 
major life activities, but which is not covered in paragraphs (i) (1) 
through (12) of this section.
    (7) Emotionally disturbed means a condition exhibiting one or more 
of the following characteristics over a long period of time and to a 
significant degree, which adversely affects educational performance and 
requires small group instruction, supervision, and group counseling:
    (i) An inability to learn which cannot be explained by intellectual, 
sensory, or health factors;
    (ii) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers:
    (iii) Inappropriate types of behavior or feelings under normal 
circumstances;
    (iv) A general pervasive mood of unhappiness or depression; or
    (v) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (8) Specific learning disability means a disorder in one or more of 
the basic psychological processes involved in understanding or in using 
language, spoken or written, which may manifest itself in an inability 
to listen, think, speak, read, write, spell, or to do mathematical 
calculations. The term includes such conditions as perceptual handicaps, 
brain injury, minimal brain dysfunction, dyslexia, and developmental 
aphasia. The term does not include children who have learning problems 
which are primarily the result of vision, hearing, or motor handicaps, 
or mental retardation, or of environmental, cultural, or economic 
disadvantage.
    (9) Speech impaired means a communication disorder, such as 
stuttering, impaired articulation, or a voice impairment, which 
adversely affects a child's educational performance.
    (10) Visually handicapped means a visual impairment which, even with 
correction, adversely affects a child's educational performance. The 
term includes partially seeing, but not fully blind, children.
    (11) Severely emotionally disturbed means a condition such as 
schizophrenia, autism or the presence of the following characteristics 
over a prolonged period of time and to a marked degree, which seriously 
affects educational performance and requires intensive individual 
therapy (which may be conducted either in or out of the school setting), 
individual instruction, and supervision:
    (i) An inability to learn which cannot be explained by intellectual, 
sensory, or health factors;
    (ii) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers:
    (iii) Inappropriate types of behavior or feelings under normal 
circumstances;
    (iv) A general pervasive mood of unhappiness or depression; or
    (v) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (12) Severely and profoundly retarded means a degree of mental 
retardation

[[Page 156]]

(as defined in paragraph (i)(3) of this section) which severely 
restricts and delays major aspects of intellectual functioning so as to 
require intensive small group instruction and supervision.
    (13) Students requiring home/hospital based instruction means 
students provided a program of instruction in a home or hospital setting 
because in the judgement of a physician a student cannot receive 
instruction in a regular public school facility without endangering the 
health or safety of the student or of other students.
    (14) Multihandicapped means concomitant impairments (such as 
mentally retarded with a minor additional handicap such as speech 
impaired) the combination of which causes educational problems that can 
not be accommodated in regular education programs or in part-time 
special education programs.
    (15) Blind means the possession of a central vision acuity of 20/200 
or less in the better eye with correcting glasses or a peripheral field 
of vision so contracted that its widest diameter is less than 20%.
    (16) Full-time--High Service Level means a program of special 
education and related services provided to an exceptional student which 
consists of fifteen or more hours per week (or 60% or more of the total 
instructional time) of instruction and/or required related services (as 
described in the students individualized education program), provided 
outside of the regular classroom. In geographically isolated, smaller 
schools where facilities are limited, a full time program may consist of 
fifteen or more hours per week (or 60% or more of the total 
instructional time) of specialized individual or small group instruction 
or required related services regardless of where the services are 
actually provided (including the regular classroom).
    (17) Part-time--Moderate Service Level means any program of regular 
education modified to provide specialized instruction and/or required 
related services (as described in the student's individualized education 
program) which does not provide at least the number of hours in the 
definition of Full-time--High Service Level Exceptional Child Program 
set forth in paragraph (i)(14) of this section.
    (18) Classification of a student in full or part-time service levels 
in residential care programs shall be based upon prior classification of 
the student in an instructional program serving his/her handicapping 
condition.
    (j) Resident means a student officially enrolled in the residential 
care program of a Bureau operated or funded school and actually 
receiving supplemental services provided to all students who are 
provided room and board in a boarding school or a dormitory during those 
weeks when student membership counts are conducted. Such students must 
be members of the instructional program in the same boarding school in 
which they are counted as residents. To be counted as dormitory 
residents, students must be enrolled in and be current members of a 
public school in the community in which they reside.



Sec. 39.12  Entitlement for instructional purposes.

    BIA educational funds for the instruction of elementary and 
secondary Indian children shall be computed according to the following 
weighted student unit factors:

------------------------------------------------------------------------
                   Basic programs                        Base weights   
------------------------------------------------------------------------
Kindergarten........................................           1.00     
Grades 1 to 3.......................................           1.20     
Grades 4 to 8.......................................           1.00     
Grades 9 to 12......................................           1.30     
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                                 Add-on 
                     Supplemental program                        weight 
------------------------------------------------------------------------
Intense bilingual.............................................       .20
                                                                        
                  Exceptional Child Programs                            
                                                                        
Full time--high service level:                                          
  Deaf........................................................      3.00
  Blind.......................................................      3.00
  Severely multihandicapped...................................      3.00
  Severely and profoundly retarded............................      3.00
  Students requiring hospital/homebound instruction...........      3.00
  Severely emotionally disturbed..............................      3.00
  Severely emotionally disturbed (nonsevere)..................      1.00
  Specific learning disabled..................................      1.00
  Mentally retarded...........................................      1.00
Part time--moderate service level:                                      
  Emotionally disturbed.......................................       .50
  Specific learning disabled..................................       .50
  Mentally retarded...........................................       .50

[[Page 157]]

                                                                        
  Multihandicapped............................................       .50
  Hard of hearing.............................................       .25
  Visually handicapped........................................       .25
  Orthopedically impaired.....................................       .25
  Other health impaired.......................................       .25
  Speech impaired.............................................       .25
------------------------------------------------------------------------



Sec. 39.13  Entitlement for residential purposes.

    Basic funds for student residential purposes shall be computed 
according to the following weighted student unit factors:

------------------------------------------------------------------------
                                                                 Add-on 
                         Base programs                           weight 
------------------------------------------------------------------------
Kindergarten (For FY 80 only, 0 factor thereafter)............      1.40
Grades 1 to 3.................................................      1.40
Grades 4 to 8.................................................      1.25
Grades 9 to 12................................................      1.25
                                                                        
                  Exceptional Child Programs                            
                                                                        
All full-time handicapped students............................       .50
Part time:                                                              
  Orthopedically impaired.....................................       .25
  Other health impaired.......................................       .25
  Emotionally disturbed.......................................       .25
  Mentally retarded...........................................       .25
  Multihandicapped............................................       .25
Intense Residential Guidance..................................       .50
------------------------------------------------------------------------



Sec. 39.14  Entitlement for small schools.

    To compensate for the additional costs of operating small schools, 
qualified schools shall receive the following adjustments:
    (a) Instructional programs in day and boarding schools. For each 
separate small school having an instructional average daily membership 
count (called x) of less than 100 students, the formula [(100-x) divided 
by 200] times x shall be used to generate add-on weighted pupil units 
for each such school.
    (b) Boarding school residential programs. For each separate small 
boarding school having a resident average daily membership count (called 
y) of less than 100 students, the formula [(100-y) divided by 200] times 
y shall be used to generate add-on weighted pupil units for each such 
boarding school.
    (c) Dormitory residential programs serving public schools. For each 
small dormitory program having an average daily membership count (called 
z) of less than 100 students, the formula [(100-z) divided by 200] times 
z shall be used to generate add-on weighted pupil units for each 
dormitory.



Sec. 39.15  Alaskan school cost supplements.

    To meet the statutory requirements for a salary supplement for 
Alaskan educational staff, and add-on weight of .25 will be used as a 
factor by which all pupil program-generated weighted students shall be 
supplemented. Such generated Alaskan cost supplements will be added to 
the weighted pupil units generated by each school in the same manner as 
small school units.



Sec. 39.16  Computation of school entitlements.

    The sum of all weighted student units, including any small school 
and any Alaskan school cost supplements shall be computed for each 
school under the management of the Director. The total number of units 
generated by each approved school shall be multiplied by a base dollar 
value which is equivalent to a base weight of 1.0 in the formula. This 
base value shall be computed annually by the Director by dividing the 
total of all weighted students (WSU) generated by all approved schools 
into the total amount appropriated for distribution through the Indian 
School Equalization Formula.



Sec. 39.17  Comparability with public schools.

    (a) In no case shall a Bureau or contract school attended by an 
Indian student receive less under these regulations than the average 
payment from the Federal funds received per Indian student, under other 
provisions of law, by the public school district in which the student 
resides. Any school which is funded at a lower level per student under 
the ISEP than either the average daily expenditure per student for 
instructional costs in the public schools in the State in which it is 
located, or the amount per Indian student which the local public school 
district in which it is located receives from all Federal funding 
sources, shall present

[[Page 158]]

documentation of this fact to the Director of the Office of Indian 
Education Programs.
    (b) Upon verification that comparisons in the documentation received 
cover comparative expenditures, and that the inequity indeed exists, the 
Director shall adjust the school's allocation to equal the payment per-
Indian student of the public school district or State involved.
    (c) Funds for such adjustment shall be taken from the Formula 
Implementation Set Aside established under Sec. 39.78 of these 
regulations.



Sec. 39.18  Recomputations of current year entitlements.

    The Director shall continuously monitor the processes by which the 
final allocation of each school's entitlement is made. When changes 
occur either in the total amount of funds available for the operations 
of schools or in the total number of weighted student units for all 
schools due to a change in the number of weighted student units reported 
or altered by auditing, the Director shall consider whether adjustments 
are necessary in order that the full available appropriations are fairly 
allocated to the schools, and that all funds are fully allotted to 
schools.



Sec. 39.19  Phase-in provisions.

    (a) Limits on excess gains. No school shall receive a percentage 
increase in its total fund entitlement, over the comparable budget 
amount per school in the FY 79 Bureau Education budget, which is greater 
than the following percentage ratios:
    (1) In FY 80--20%
    (2) In FY 81--70%
    (b) Limits on excess losses. No school shall receive a percentage 
decrease in its total fund entitlement, below the comparable budget 
amount in the FY 79 Bureau Education budget, which is greater than the 
following percentage ratios:
    (1) In FY 80--10%
    (2) In FY 81--30%
    (c) Effects of limits on losses and gains. Local school gains in 
excess of the above percentage limits for each of the limited years 
shall be returned to the common base for all schools and distributed 
through the formula. Funds to limit losses in excess of the above limits 
shall be withdrawn from the common base for all schools and distributed 
to the schools subject to such excess losses.
    (d) Transfer of fiscal accountability. To allow time for developing 
fiscal accountability, knowledge, skill and responsibility at the local 
school level and in order to support accountability by responsible 
Fiscal Agents under section 3679 of the Revised Statutes (the Anti-
Deficiency Act), a period of one year (FY 1980) shall be used during 
which the legal allottee for each Bureau-operated school shall be the 
Education Superintendent of the Agency within which the school is 
located. In the case of off-reservation boarding schools and other 
Bureau-operated schools not served by an Agency Education Office, the 
Area Education Director shall be the legal allottee. Further allocation 
of funds under this rule shall be fully in accordance with the Indian 
School Equalization Program and Formula, and expenditures shall be made 
in accordance with the financial planning provisions of section E of 
this rule.
    (e) Beginning in FY 1981, the allottee shall be as otherwise 
determined in this rule.



Sec. 39.20  Development of uniform, objective and auditable student weighted area placement criteria and guidelines.

    The Director shall develop:
    (a) Uniform, objective and auditable placement criteria and 
guidelines for placement of students in dormitories and residential care 
programs of boarding schools and in special weighted program areas which 
expand upon the definitions in this part; and
    (b) A uniform and auditable system of enrollment criteria and 
attendance boundaries for each school in the Bureau educational program.
The Director shall publish these criteria and guidelines in the Bureau 
Manual (BIAM) and widely disseminate them to each school prior to 
September 1, 1980, so that appropriate student placements can occur 
before the FY 1981 October student count.

[[Page 159]]



Sec. 39.21  Future considerations for weighted programs.

    (a) Within twelve months of the final publication of this rule, the 
Director shall review the following factors in depth, and determine 
whether to incorporate each into the weighted pupil formula:
    (1) A rural isolation adjustment.
    (2) A staff cost adjustment.
    (3) A gifted and talented student program.
    (4) A vocational education program.
    (5) A facilities operation and maintenance program.
    (6) Additional institutional size factors.
    (b) The Director may also recommend incorporation of other factors, 
based upon the Bureau's experience in the first year's operation of the 
ISEP, and upon the Standards to be developed under section 1121 of the 
Act.
    (c) The Director shall also review the adequacy of the weighted 
factors, procedures, criteria and definitions now in this rule, 
throughout part 39. On the basis of this review, the Director shall 
present a comprehensive report of findings, with recommendations for 
amendment of this rule, to the Secretary, who shall incorporate them in 
a Notice of Proposed Rulemaking to include a minimum of sixty (60) days 
for public comment.



Sec. 39.22  Authorization of new program development, and termination of programs.

    (a) Within one year of the final publication of this rule, the 
Secretary shall develop uniform procedures and criteria for the 
authorization of new schools where no Bureau funded or operated school 
program has previously existed, and for authorization of expansions of 
existing Bureau funded or operated school programs to serve additional 
age groups not previously served. These procedures and criteria shall be 
published as amendments to this rule under a new Notice of Proposed 
Rulemaking, which shall contain provisions for a minimum of sixty (60) 
days of public review and comment prior to final publication.
    (b) Procedures and criteria developed under this section shall be 
integrated with existing procedures under 25 CFR part 271 for 
determining contractable functions of the Bureau, in order to produce a 
coherent system for authorization of Tribally initiated program 
development under contracting procedures of Pub. L. 93-638, which is 
compatible with Bureau initiated program development.
    (c) Procedures and criteria developed under this rule shall also 
contain provisions for making decisions regarding closing schools and 
terminating Bureau programs of education. These shall provide for full 
consultation with the Indian persons and Tribes served by the programs 
and schools involved in any such decisions.



Sec. 39.23  Review of contract schools supplemental funds.

    Before the end of formula phase-in, the Director shall consider the 
impact on equalization of supplemental funds appropriated for aid to 
schools under the Johnson O'Malley Act and under title IV of the Indian 
Education Act, which are available to contract schools but not to Bureau 
schools, and determine appropriate adjustments, if any. Any adjustments 
in the ISEP which results from this review shall be effected by formal 
revision of this rule, under a Notice of Intended Rulemaking published 
in the Federal Register, and shall be subject to public comment for a 
minimum of sixty (60) days prior to final rulemaking.



          Subpart C--Formula Funding Administrative Procedures



Sec. 39.30  Definitions.

As used in this subpart, the term:
    (a) Certifying the validity of student counts means that counts of 
student ADM have been accurately recorded in compliance with 
specifications of these rules, and that the Agency Superintendent of 
Schools, the local school supervisor, and local school board 
chairperson, where a school board exists, testify to and confirm the 
correctness of this count.
    (b) Count week means the last full week in September for the 
purposes of calculating allotments.
    (c) Student classification means any special student need area that 
receives

[[Page 160]]

a separate weighting through the Indian School Equalization Formula.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 36368, Sept. 17, 1984]



Sec. 39.31  Conditions of eligibility for funding.

    (a) To be eligible for direct formula funding as established in 
subpart B of this part, a day school, boarding school, or dormitory must 
meet minimum standards, or, failing to do so, must include in its 
financial plan steps acceptable to the Director for taking corrective 
action to meet the standards to be prescribed pursuant to section 1121 
of the Education Amendments of 1978 (Pub. L. 95-561; 25 U.S.C. 2001). 
Until such standards are prescribed, the Director shall determine 
eligibility for funding in accordance with established procedures for 
authorizing Bureau operated schools.
    (b) To be eligible for direct formula funding, a tribally operated 
day or boarding school or dormitory must meet the requirements of part 
271 of this chapter (25 CFR part 271) for receipt of Bureau Education 
funds under contracts for school operation.



Sec. 39.32  Annual computation of average daily membership.

    (a) Average daily membership (ADM) as defined in Sec. 39.2(f) shall 
be determined during the last full school week in September during which 
all students eligible under the definition shall be counted by student 
program classification.
    (b) The Director shall direct the receipt and management of 
information necessary to obtain timely ADM reports from schools. Agency 
education offices and, in the case of off-reservation boarding schools, 
Area education offices together with each school's supervisor and school 
board chairperson where a board exists shall be responsible for 
certifying the validity of each school's student counts. The September 
ADM will be used to determine final allotments for the school year.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.33  Special education unduplicated count provision.

    In counting special education ADM with the exception of speech 
therapy, no child shall be counted or funded twice for participation in 
more than one special education program.



Sec. 39.34  Substitution of a count week.

    A school may petition the Director to substitute another week in the 
same month for the specified count week if it can be established that to 
use the specified count week would result in grossly inaccurate student 
counts. Where tribal ceremonial days are known in advance, such a 
petition shall be submitted in advance of the determined count week.



Sec. 39.35  Computation of average daily membership (ADM) for tentative allotments.

    Tentative allotments for each future year's funding shall be based 
on the ADM for the September count week of the current year.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.36  Declining enrollment provision.

    If the decline of a school's average daily membership exceeds ten 
percent in any given school year, the school may elect to request 
funding based on the average of the current and previous years' 
September ADM count.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.37  Auditing of student counts.

    The Secretary shall provide for auditors as required to assure 
timeliness and validity in reporting student counts for formula funding.



Sec. 39.38  Failure to provide timely and accurate student counts.

    (a) Responsible Bureau school, Agency, Area, and Central Office 
administrators may be dismissed for cause, or otherwise penalized, for 
submission of invalid or fraudulent annual student ADM counts or 
willfully inaccurate counts of student participation in weighed program 
areas. A person who knowingly submits or causes to be submitted to a 
Federal official or employee false information upon which the 
expenditure of Federal funds is

[[Page 161]]

based, may be subject to criminal prosecution under provisions such as 
sections 286, 287, 371, or 1001 of title 18, U.S. Code.
    (b) Failure of responsible Federal officials to perform 
administrative operations which are essential to the ISEP, on a timely 
basis, shall result in swift disciplinary action by Bureau supervisory 
personnel, under existing procedures. Failure or refusal of Bureau 
supervisory personnel to take disciplinary action shall result in 
disciplinary action against them by higher level supervisors.



Sec. 39.39  Delays in submission of ADM counts.

    (a) If a Bureau operated or funded school delays submission of an 
ADM count, by more than (2) weeks beyond the final count week in 
November, for that school, the Director shall set aside an amount equal 
to the tentative allotment for that school out of the funds available 
for allotment, and shall proceed to compute the initial allotments for 
all other schools in the Bureau school system, based upon remaining 
funds available for allotment. The allotment for the school which has 
failed to submit a timely ADM count shall be computed when the ADM count 
is received, but shall not exceed the amount set aside therefore. Any 
amount remaining in the set-aside fund, after computation of the 
allotment, shall be transferred into the Formula Implementation Set-
Aside Fund, and distributed in accordance with provisions of Sec. 39.78 
in subpart F.
    (b) In no case shall the Director delay the computation of initial 
allotments for schools which have submitted timely ADM counts while 
waiting for those schools which have failed to submit.



           Subpart D--Direct Allotment of Formula Entitlements



Sec. 39.50  Definitions.

    As used in this subpart, the term:
    (a) Apportionment means that part of a school's allotment received 
each quarter as an authorization to obligate funds.
    (b) Approved apportionment schedules means that approval given for 
the quarterly obligation of funds for a given appropriation of funds for 
the Bureau.
    (c) Authorization to obligate means that approval given to a school 
to incur obligations of funds against a given appropriation.
    (d) Final allotment means that notice of funds available to schools, 
based on the September student count as computed through the Indian 
School Equalization Formula (ISEF) based on full distribution of Indian 
School Equalization Program (ISEP) funds available for the fiscal year.
    (e) Initial allotment means that notice of funds available to 
schools based on the September student count as computed through the 
Indian School Equalization Formula prior to any adjustments due to 
fluctuating student counts.
    (f) Responsible fiscal agent means the local school supervisor of a 
Bureau operated school except where such authority is designated to the 
Agency Superintendent of Education by a school board decision of record 
or by a written agreement signed by both parties. For contract schools, 
the responsible fiscal agent shall be designated in an action of record 
by the contractor.
    (g) Tentative allotment means that notice of funds available to 
schools based on the September student count as computed through the 
Indian School Equalization Formula based on a proposed appropriation in 
the President's budget for the next fiscal year.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 49 FR 36368, Sept. 17, 1984]



Sec. 39.51  Notice of allotments.

    The Director shall notify school administrators and boards of 
allotments of funds based on the September ADM count established under 
subpart B of this part according to the following schedule:
    (a) Tentative allotments shall be made by March 15 of the prior 
fiscal year;
    (b) Initial allotments shall be made not later than November 15 of 
the fiscal year; and

[[Page 162]]

    (c) Final allotments shall be made not later than January 15 of the 
fiscal year.

[49 FR 36368, Sept. 17, 1984]



Sec. 39.52  Initial allotments.

    The Assistant Secretary--Indian Affairs, as requested by the 
Director, shall make initial allotments to Bureau operated schools, 
Agency Education Offices, and Central and Area Offices. The Assistant 
Secretary--Indian Affairs shall make initial allotments for tribally 
operated schools to appropriate Agency Superintendents of Education, or 
as otherwise provided by the Director.



Sec. 39.53  Obligation of funds.

    (a) Authority to obligate funds in the Bureau operated schools shall 
be governed by provisions of the Bureau Manual (42 BIAM).
    (b) Authority to obligate funds in tribally operated contract 
schools shall be governed by contracting procedures of 25 CFR part 271.
    (c) Authority to obligate funds in all Bureau funded and operated 
schools shall be based upon the tentative allotment (Sec. 39.51) for the 
period beginning October 1 of any fiscal year. The tentative allotment 
as restricted by a continuing resolution, if applicable, would govern 
until computation and notification of initial allotments as described in 
this sub-part, as adjusted by the Director in accordance with 
Secs. 39.75, 39.78, 39.90, 39.102 and 39.111.



Sec. 39.54  Apportionment of entitlements to schools.

    (a) Bureau operated schools. The Director shall make quarterly 
apportionments directly to the local school supervisor or to the 
school's responsible fiscal agent as specifically delegated in 
accordance with Sec. 39.55 of this part. Such quarterly apportionments 
will be made as determined in Sec. 39.53 of this part.
    (b) Contract schools. The Agency Superintendent of Education, or 
another agent as designated by the Director, shall be responsible 
through the contracting officer in accordance with 25 CFR part 271 for 
effecting and adjusting contracts with tribally operated schools.



Sec. 39.55  Responsible local fiscal agent.

    The responsible fiscal agent shall:
    (a) Expend funds solely in accordance with the local educational 
financial plan, as ratified or amended by the local school board, unless 
in the case of Bureau operated schools, this plan has been overturned 
under the appeal process prescribed in these rules, in which case 
expenditures shall be made in accordance with the local educational 
financial plan as determined by the Agency Superintendent of Education.
    (b) Sign all documents required for the obligation and or payment of 
funds and documentation of receipt of goods and services.
    (c) Report at least quarterly to the local school board on the 
amounts expended, amounts obligated and amounts currently remaining in 
funds budgeted for each program of services in the local financial plan.
    (d) Recommend changes in budget amounts, as required for effective 
management of resources to carry out the local financial plan, and 
incorporate such changes in the budget as are ratified by the local 
school board, subject to provisions for appeal and overturn.



Sec. 39.56  Financial records.

    Each responsible fiscal agent receiving funds under the ISEP shall 
maintain expenditure records in accordance with financial planning 
system procedures as required herein.



Sec. 39.57  Access to and retention of local educational financial records.

    The Comptroller General, the Assistant Secretary, the Director, or 
any of their duly authorized representatives shall have access for audit 
and examination purposes to any of the local schools' accounts, 
documents, papers and records which are related or pertinent to the 
school's operation. The provisions of 25 CFR 271.47 will be applicable 
in the case of tribally contracted schools.



Sec. 39.58  Expenditure limitations for Bureau operated schools.

    (a) Expenditure of allotments shall be made in accordance with 
applicable federal regulations and local education financial plans, as 
defined in Sec. 39.60(b) of subpart E.

[[Page 163]]

    (b) Where there is disagreement between the Area or Agency support 
service staff and the responsible fiscal agent regarding the propriety 
of the obligation or disbursement of funds, appeal shall be made to the 
Director.



               Subpart E--Local Educational Financial Plan



Sec. 39.60  Definitions.

    As used in this subpart, the term:
    (a) Consultation means soliciting and recording the opinions of 
school boards regarding each element in the local financial plan, as set 
forth below, and incorporating those opinions to the greatest degree 
feasible in the development of the local educational financial plan at 
each stage thereof.
    (b) Local educational financial plan means that plan which programs 
dollars for educational services for a particular Bureau operated or 
funded school which has been ratified in an action of record by the 
local school board, or determined by the superintendent under the appeal 
process set forth in this subpart.
    (c) Budget means that element in the local educational financial 
plan which shows all costs of the plan by discrete programs and sub-cost 
categories thereunder.



Sec. 39.61  Development of local educational financial plans.

    A local educational financial plan shall be developed by the local 
school supervisor, in active consultation with the local school board, 
based on the tentative allotment received as provided in Sec. 39.51.



Sec. 39.62  Minimum requirements.

    The local financial plan shall include, at a minimum, each of the 
following elements:
    (a) Separate programing of funds for each group of Indian students 
for whom a discrete program of services is to be provided. This must 
include at a minimum each program for which funds are allotted to the 
school through the Indian School Equalization Program;
    (b) A brief description, or outline, of the program of student 
services to be provided for each group identified;
    (c) A budget showing the costs projected for each program, as 
determined by the Director through the development of a uniform cost 
accounting system related to the Indian School Equalization Program;
    (d) A statement of the percentage relationship between the total of 
the anticipated costs for each program and the amount the students 
served by that program will generate under the Indian School 
Equalization Formula. Beginning in FY 1981, there shall also be included 
a statement of the cost incurred for each program in the preceding 
fiscal year and the amount received for each such program as the result 
of the Indian School Equalization Formula. For exceptional child 
programs the plan must provide that at least 80% of the funds generated 
by students served by the program be spent on those students;
    (e) A provision for certification by the chairman of the school 
board that the plan as shown, or as amended, has been ratified in an 
action of record by the school board; or
    (f) Except in the case of contract schools, a provision for 
certification by the Agency Superintendent of Education that he or she 
has approved the plan as shown, or as amended, in an action overturning 
the rejection or amendment of the plan by the school board.



Sec. 39.63  Procedures for development of the plan.

    (a)(1) Within thirty (30) days after receipt of the tentative 
allotment for the coming school year, the school supervisor shall meet 
and consult with the local school board on the local financial plan.
    (2) The school supervisor shall discuss at this meeting the present 
program of the school and any proposed changes he or she wishes to 
recommend. The school board members shall be given every opportunity to 
express their own ideas as well as their views on the supervisor's 
recommendations. Subsequently the school supervisor shall present a 
draft plan to the school board with recommendations concerning each of 
the elements outlined in this subpart.

[[Page 164]]

    (b) Within sixty (60) days of receipt of the tentative allotment, 
the school board shall review the local financial plan as prepared by 
the school supervisor and, by a quorum vote, shall have the authority to 
ratify, reject or amend such financial plan.
    (c) The school board shall have the authority, at any time following 
the ratification of the financial plan on its own determination or in 
response to the supervisor, to revise such plan to meet needs not 
foreseen at the time of preparation of the plan.
    (d) If the supervisor does not wish to file an appeal, he or she 
shall transmit a copy of the approved local financial plan within two 
weeks of the school board action, along with the official documentation 
of the school board action, to the office of the Agency Superintendent 
of Education. Later revisions to the financial plan must be transmitted 
in the same manner.
    (e) In the event that the school board does not act within the 
prescribed deadline, the financial plan shall be referred to the Agency 
Superintendent of Education for ratification, subject to subsequent 
amendment by the school board in accordance with paragraph (c) of this 
section.
    (f) The Agency Superintendent of Education will review the local 
financial plan for compliance with prescribed laws and regulations or 
may refer the plan to the Solicitor's Office for legal review. If the 
Superintendent notes any problem with the plan, he or she shall notify 
the local board and local supervisor of the problem within two weeks of 
receipt of the local financial plan and shall make arrangements to 
assist the local school supervisor and board to correct the problem. If 
the Superintendent is not able to correct the problem, it shall be 
referred to the Director of the Office of Indian Education.



Sec. 39.64  Procedures for financial plan appeals.

    (a) If the supervisor of a school finds an action of the local 
school board, in rejecting or amending the local financial plan, to be 
unacceptable in his or her judgment as a professional educator, the 
supervisor may appeal to the Agency Superintendent of Education under 
the following procedures and conditions:
    (1) The appeal must be presented in writing, within ten (10) 
consecutive days of the supervisor's receipt of the school board 
decision which is appealed.
    (2) The written appeal shall contain, at a minimum, the following 
information and documentation:
    (i) All descriptive information concerning the element(s) in the 
local financial plan being appealed, substantially as presented to the 
school board prior to its decision.
    (ii) Official documentation of the school board's decision amending 
or rejecting the element(s) being appealed.
    (iii) A statement of the school supervisor's reasons for appealing 
the board's actions.
    (iv) Signed certification by the supervisor that his/her reason for 
appeal has been presented to the chairperson of the school board, and 
that the school board has been offered full opportunity to submit a 
counter statement to the Superintendent.
    (3) If the supervisor of the school is also the Superintendent, the 
appeal shall be made following the above procedures to the Director, who 
shall follow procedures set forth below, as acting Superintendent for 
the appeal.
    (b) Within ten (10) consecutive days of receiving the appeal, the 
Agency Superintendent of Education shall review the appeal documents to 
determine if they are complete according to the criteria established in 
this subpart, and if so shall notify both the school supervisor and the 
school board of a date for an informal conference.
    (c) Within twenty-five (25) consecutive days of receiving the 
referral for approval, the Superintendent shall:
    (1) Hear any arguments on either or both sides of the appeal 
issue(s) at the option of either the supervisor of the school board 
involved.
    (2) Following the informal conference, either sustain or reject the 
appeal for good cause, which the Superintendent shall set out in writing 
to both the supervisor and school board.
    (d) Nothing in this subsection shall be construed as enabling the 
supervisor of a tribally operated school to appeal decisions of a 
contract school board to

[[Page 165]]

the Agency Superintendent for Education, nor as empowering the Agency 
Superintendent for Education to overturn any action of a contract school 
board under this appeal process as established in Pub. L. 93-638.
    (e) Within 180 days after the effective date of this subpart, the 
Assistant Secretary shall develop and publish in the Federal Register 
procedures for a formal hearing process which shall be available to 
school boards who believe their decisions regarding the financial plan 
have been overturned for other than good cause.



                      Subpart F--Contingency Funds



Sec. 39.70  Definitions.

As used in this subpart, the term:
    (a) Cumulative total means the sum of all funds carried over from 
the previous fiscal year(s) as unobligated and the amount for the 
current year.
    (b) Temporary replacement means the substitution of a structure on a 
temporary basis in lieu of the original permanent structure that has 
been lost to use. The temporary use will expire at the time that 
arrangements are completed for the availability of a structure similar 
to the original.



Sec. 39.71  Establishment of the School Disaster Contingency Fund.

    The Bureau's annual budget justifications shall identify an amount 
for a separate budget account entitled the School Disaster Contingency 
Fund (SDCF). All schools and dormitories receiving support under the 
provisions of subparts B and C of this part are eligible for disaster 
aid from this contingency fund.



Sec. 39.72  Continuing and cumulative provisions.

    Unobligated funds from the School Disaster Contingency Fund shall be 
continued over at the end of a fiscal year in the same account for the 
next year, except when otherwise provided in appropriations acts. New 
funds shall be added when appropriated but the Fund should not exceed a 
$1.5 million cumulative total unless otherwise determined by the 
Assistant Secretary.



Sec. 39.73  Purposes.

    Disbursements from the School Disaster Contingency Fund shall be for 
the following purposes:
    (a) Costs of replacement of items in the following categories 
including shipment and installation, in the event of their destruction 
by earthquake, fire, flood, storm, or other ``acts of God,'' and acts of 
massive and catastrophic vandalism where such costs are not already 
covered in an insurance policy in force at the time of destruction and 
where such destruction could not have been prevented by prudent action 
by the officials responsible for the care of such items:
    (1) Educational materials and supplies.
    (2) Equipment and furnishings.
    (3) Dormitory materials and supplies, for student use, and dormitory 
equipment and furnishings, including those necessary for staff living 
space, if integral to the dormitory operation.
    (4) Food services supplies, furnishings and equipment not a fixed 
part of structures.
    (5) Office supplies and equipment for minimum essential 
administrative operations.
    (6) Janitorial supplies and cleaning equipment.
    (7) Student clothing and personal supplies if destroyed along with a 
school facility.
    (8) Fuel supplies, tanks, lines, connections, meters, etc.
    (9) Transportation equipment not otherwise provided for through the 
General Services Administration.
    (10) Costs of repair of utility systems or components thereof, as 
necessary to restore utility services.
    (b) Costs of temporary replacement of school facilities in the event 
of their destruction by earthquake, fire, flood, storm or other ``acts 
of God,'' until they can be reconstructed. These costs may include 
purchase of or movement of portable structures, including costs of 
delivery, installation, and connection to utility systems. They may also 
include costs of any fixed equipment which is integral to such 
structures. Structure types for which such temporary replacement costs 
may be paid or reimbursed are as follows:

[[Page 166]]

    (1) Employee quarters, if required for employee housing due to the 
isolation of the duty station, and on other housing is available within 
a reasonable commuting distance. Reasonable commuting distance will be 
determined under existing policies or by the Director.
    (2) Dormitories, including employee apartment space if integral to 
the operation of the dormitory.
    (3) Offices required for minimum essential administrative operations 
at the local school level.
    (4) Academic facilities, including classrooms, kindergartens, 
libraries and special instructional spaces such as vocational shops and 
home economics rooms.
    (5) Kitchens and dining facilities, including laundry and 
multipurpose spaces.
    (6) Infirmaries, clinics and health service spaces, in school 
locations in which such services are not otherwise available.
    (7) Separate restroom facilities, if none are otherwise available 
for operation of instructional and dormitory programs.



Sec. 39.74  Application procedures.

    Application for disbursement from the School Disaster Contingency 
Fund shall be made to the Director of the Office of Indian Education 
Programs, through the Agency Superintendent of Education for the school 
affected. Applications shall be subject to review and comment by the 
Superintendent, and the Area Director for Education of the Area in which 
the school is located, but shall not require the approval of these 
officers. Such review and comment activities shall be carried out 
concurrently with the Director's processing of the application so that 
there are no delays in the transmission of the application to the 
Director. The Director shall develop such application forms and requests 
for information and documentation as are necessary to prove both loss 
and the fact that replacement costs are outside the normal budgetary 
capacity of the school operation at either the local school, Agency or 
Area levels.



Sec. 39.75  Disbursement procedures.

    Disbursements from the SDCF shall be made only on the direct 
authorization of the Director, on the merits of each such application 
received, on a first come, first served basis and in amounts determined 
at the Director's discretion in accordance with the purposes and 
expenditure prohibitions set forth in this section.



Sec. 39.76  Prohibitions of expenditures.

    (a) The following costs shall not be reimbursed or paid under the 
SDCF:
    (1) Capital expenditures for construction of permanent facilities.
    (2) Capital expenditures for reconstruction or refurbishment of 
facilities no longer in use except where such expenditure is the most 
cost effective way of temporarily replacing other destroyed facilities.
    (3) Temporary replacement of facilities or replacement of equipment 
which has simply become outmoded and obsolete, or which has been 
``condemned'' or declared unserviceable by administrative procedures, 
which is either still in existence or has been razed or destroyed as the 
result of an administrative decision.
    (4) Costs of continued normal program operations which are not 
increased by a disaster.
    (5) Personnel costs, except for temporary personnel hired to meet an 
emergency situation.
    (6) Start-up costs for new or expanding school programs.
    (7) Costs of repairs necessitated by neglect, or failure to provide 
routine scheduled maintenance and minor repair.
    (8) Replacement costs of personal property of school employees, 
regardless of value or circumstances of destruction.
    (9) General budgetary shortfalls due to improper fiscal management.
    (10) Budgetary shortfalls from a past fiscal period, after funds 
have been carried forward in the SDCF to a new fiscal period.
    (11) Costs of replacement of items stolen or destroyed by deliberate 
vandalism, neglect, or abandonment.
    (12) Costs of items, services or activities for which budgetary 
provisions are made in other budget categories of the

[[Page 167]]

Bureau not subject to distribution under the Indian School Equalization 
Program.
    (b) Temporary replacement costs for the following structure types 
shall not be paid or reimbursed from the SDCF:
    (1) Recreational structures, such as auditoriums, field houses, 
clubs, canteens, chapels, student centers, grandstands, gymnasiums, etc.
    (2) Auxiliary buildings not used in student instructional or 
dormitory programs, such as warehouses, storage sheds, garages, 
firehouses, maintenance shops, law enforcement centers, instructional 
materials and audio-visual centers, and employees' clubs.
    (3) Temporary replacement costs shall be paid or reimbursed only to 
the extent necessary to permit expeditious continued operation of the 
school dormitory care programs affected by the destruction of 
facilities.



Sec. 39.77  Transfer of funds from Facilities Engineering for other contingencies.

    In order to reimburse schools for the costs of unforeseen and 
extraordinary procurement costs and for major repairs of reconstruction 
resulting from the disaster, the Director may request a transfer of 
funds from funds appropriated for Bureau Facilities Engineering to the 
School Disaster Contingency Fund for such purposes. When a separate 
formula is established by regulation for school maintenance and 
operations, an appropriate separate contingency fund shall be 
established to cover such costs.



Sec. 39.78  Establishment of a formula implementation set-aside fund.

    There shall be set aside an amount not to exceed $2 million dollars 
to be used during fiscal year 1980 by the Director to facilitate the 
implementation of formula funding under this part. The fund is to 
provide the means of adjusting particular local school entitlements 
which are allocated in error due to underprojections, data error, 
misclassification of students, and similar reporting errors, or to 
provide for the initial funding of new schools under the formula, which 
have been started after the spring ADM counts, without reducing 
allotments made for other schools. Balances in this set-aside fund shall 
be apportioned through the formula during the first week in April by the 
Director or at such earlier time as he or she deems that significant ADM 
reporting fluctuations have ceased.



Sec. 39.79  Prohibition.

    The formula implementation set-aside fund shall not be used as a 
discretionary fund by the Director for any purpose, and it shall be 
allocated solely through the Indian School Equalization Formula.



                    Subpart G--School Board Training



Sec. 39.90  Establishment of a school board training fund.

    An amount shall be set aside annually for the purpose of providing 
training for school board members as authorized by Pub. L. 95-561, 
section 1129(d). Each school board shall receive a flat sum, initially 
for FY 1980 to be set at $5,000, with Alaska and off-reservation 
boarding schools to receive an additional 25 percent of this flat sum 
amount per annum.



Sec. 39.91  Other technical assistance and training.

    The provision of funds under Sec. 39.90 of this subpart does not 
relieve the Director of the responsibility for assuring that adequate 
technical assistance and training services are provided to school boards 
to the greatest extent possible. The provision of assistance under this 
subpart does not preclude a school board or its trial governing body 
from receiving financial or other assistance from the Bureau under the 
Indian Self-Determination and Education Assistance Act (88 Stat. 2203; 
Pub. L. 93-638; 25 U.S.C. 450 et seq.).



Sec. 39.92  Training activities.

    Training funds provided under this part may be used for training in 
the following subject areas:
    (a) Educational philosophy;
    (b) Community school programs;
    (c) Legal aspects of being a school board member;
    (d) School board operations and procedures;
    (e) Fiscal management;

[[Page 168]]

    (f) Formula funding;
    (g) Personnel matters;
    (h) Union negotiations;
    (i) Contracting procedures and obligations;
    (j) Special curriculum areas;
    (k) Students' rights and responsibilities;
    (l) Education agency relations;
    (m) Alternative sources of Federal grants;
    (n) Juvenile justice;
    (o) Teachers training and inservice options;
    (p) Needs assessment, program development, proposal writing; and
    (q) Other training activities school boards deem appropriate and 
applicable to their situation and which are approved by the Director.



Sec. 39.93  Allowable expenditures.

    Allowable expenditures under this subpart are limited to:
    (a) Contracting with individuals and organizations for training 
services,
    (b) Membership fees in school boards' associations and purchase of 
their materials and publications,
    (c) Membership reimbursement for subsistence and travel expenses 
incurred while participating in training activities; and
    (d) Cooperative contracts with other school boards for joint 
training or technical assistance activities.



Sec. 39.94  Limitations on expenditures.

    (a) No expenditure may be authorized except in accordance with a 
decision of record by the school board and each payment shall be made 
under written authorization of the board chairperson.
    (b) Expenditures under this subpart may not be made for school board 
members' stipends or honorariums associated with participation in 
training activities. Payments for such may, however, come from the 
school's operational budget, if so designated and approved in the 
school's operational budget, if so designated and approved in the 
school's local educational finance plan. The maximum amounts of such 
payments shall be determined in accordance with the laws or regulations 
of the tribe involved and shall be subject to approval by the Director. 
In the absence of such tribal laws or regulations, such maximums shall 
be determined by the Director in consultation with the school board. 
Payments under this subpart may not be made to any employee of a school 
served by the school board being trained or assisted.



Sec. 39.95  Reporting of expenditures.

    An accounting of all expenditures of school board training funds 
shall be maintained as a supplement to each school's public accounting 
records.



Sec. 39.96  Provision for annual adjustment.

    The allocation of $5,000 per school may be annually adjusted by the 
Director.



Sec. 39.97  Training for agency school board.

    Provisions for training agency school board members, except as they 
may also be members of local school boards, are not included in these 
local school board training funds. If required, such provision shall be 
incorporated in agency or area office educational administration 
training plans and budgets.



                    Subpart H--Student Transportation



Sec. 39.100  Definitions.

    As used in this subpart, the term:
    (a) Basic transportation miles means the daily average of all bus 
miles logged for round trip home-to-school transportation of day 
students.
    (b) Transported student means the average number of students 
transported to school on a daily basis.
    (c) School bus means a passenger vehicle, operated by an operator in 
the employ of, or under contract to, a Bureau operated or funded school, 
who is qualified to operate such a vehicle under State or Federal 
regulations governing the transportation of students; which vehicle is 
used to transport day students to and/or from home and the school.



Sec. 39.101  Purpose and scope.

    The purpose of this section is to provide funds to each school for 
the round trip transportation of students between home and the school 
site.

[[Page 169]]



Sec. 39.102  Allocation of transportation funds.

    Transportation funds for FY 1980 shall be allocated to each school 
as follows:
    (a) Day students. Funds shall be allocated to each school which 
provides daily transportation of students between the student's 
residence and the school site by the following formula:
    (1) 180  x  ($.85 per basic transportation mile + $.61 per 
transported student).
    (2) The allocation shall be based on the daily average of 
transported students and basic transportation miles computed during the 
October and November count periods.
    (3) This formula shall not apply to any dormitory which provides 
daily transportation between dormitory and the public school which the 
dormitory student attends.
    (b) Boarding school and dormitory students. Funds shall be allocated 
to each boarding school and dormitory for the transportation of resident 
students according to the following criteria:
    (1) For each student whose home is more than 1 mile and no more than 
100 miles from the boarding school or dormitory, the school shall 
receive $3.20 per mile per student per year. The miles per student shall 
be the shortest driving distance one way from the student's home to the 
school site. This provision applies only to those students for whom 
ground transportation is provided and for whom it is not necessary to 
provide air transportation.
    (2) For each student whose home is more than 100 and no more than 
350 miles from the boarding school or dormitory, the school shall 
receive $1.60 per mile per student per year. The miles per student shall 
be the shortest driving distance one way from the student's home to the 
school site. This provision applies only to those students for whom 
ground transportation is provided and for whom it is not necessary to 
provide air transportation.
    (3) For each student whose home is more than 350 miles from the 
boarding school or dormitory, the school shall receive $.48 per mile per 
student per year. The miles per student shall be the shortest driving 
distance one way from the student's home agency to the school site. This 
provision applies only to those students for whom ground transportation 
is provided and for whom it is not necessary to provide air 
transportation.
    (4) For each student whose home is more than 350 miles from the 
boarding school or dormitory and for whom it is necessary to provide 
airplane transportation, the school shall receive $.60 per mile per 
student flown per year. The miles per student shall be the actual one 
way air miles between the airport closest to the school site and the 
closest to the student's home. Airplane transportation shall be provided 
only when ground transportation is unavailable or not cost-effective.
    (5) For each student attending Mt. Edgecumbe Boarding School, Sitka, 
Alaska, who requires airplane transportation, the school shall receive 
$1.05 per mile per student flown per year. The miles per student shall 
be the one way air miles between the Sitka, Alaska airport and the 
airport nearest the student's home.
    (6) At least 80% of the funds received by the school under (3), (4), 
and (5) above must be used for student travel between home and school.



Sec. 39.103  Annual transportation formula adjustment.

    The Director will review transportation allotment factors each year 
and make changes in factors based on changes in transportation costs.



          Subpart I--Interim Maintenance and Minor Repair Fund



Sec. 39.110  Establishment and funding of an Interim Maintenance and Minor Repair Fund.

    There is established in the Division of Facilities Management a 
separate temporary fund entitled the Interim Maintenance and Minor 
Repair Fund. The Assistant Secretary shall cause the distribution of an 
amount of $1 million, under the FY 1980 Appropriation for the Bureau, 
from budget activity 3500, ``General Management and Facilities 
Operation'', to the direct use of schools, and shall create an 
appropriate account or subaccount for the Interim Maintenance and Minor 
Repair Fund and credit these funds thereto.

[[Page 170]]



Sec. 39.111  Conditions for distribution.

    Funds from the Interim Maintenance and Minor Repair Fund shall be 
distributed to Bureau operated and funded schools and shall be 
separately earmarked in local school financial plans solely for 
expenditure at the discretion of the school supervisor for cost of 
school facility maintenance and minor repair. These funds shall be used 
to meet immediate minor repair and maintenance needs.



Sec. 39.112  Allocation.

    (a) Interim Maintenance and Minor Repair funds shall be allocated to 
all Bureau operated and contract schools based on the number of square 
feet of floor space used for that school's educational program, for 
student residence and for support facilities. Staff quarters shall be 
specifically excluded from the computation.
    (b) Square footage figures used in determining school allocations 
shall be taken from the facilities inventory maintained by the Division 
of Facilities Engineering.
    (c) In those cases, such as contract schools, where square footage 
figures are not now available, it shall be the responsibility of the 
Bureau's Division of Facilities Engineering to correct the information.
    (d) Schools in Alaska shall receive a 25% cost adjustment increase 
in the computation of their allocation.



Sec. 39.113  Use of funds.

    Funds allocated under this provision for maintenance and minor 
repair shall be used for no other purpose.



Sec. 39.114  Limitations.

    Nothing in this provision shall be interpreted as relieving the 
Bureau branch of Facilities Management or its field offices of any 
responsibility for continuing to provide maintenance and repair service 
to schools through existing procedures.



                 Subpart J--Administrative Cost Formula

    Source: 56 FR 35795, July 26, 1991, unless otherwise noted.



Sec. 39.120  Purpose and scope.

    The purpose of this subpart is to provide funds at the agency and 
area education offices for FY 1991 and future years for administration 
of all Bureau of Indian Affairs education functions, including but not 
limited to school operations, continuing education, early childhood 
education, post-secondary education and Johnson-O'Malley Programs.



Sec. 39.121  Definitions.

    (a) Agency Education Office means a field office of the Office of 
Indian Education Programs providing administrative direction and 
supervision to one or more Bureau-operated schools as well as being 
responsible for all other education functions serving tribes within that 
agency's jurisdiction.
    (b) Area Education Office means a field office of the Office of 
Indian Education Programs responsible for all education functions 
serving tribes not serviced by an agency education office an in some 
cases providing administrative direction to one or more off-reservation 
boarding schools not under an agency education office.



Sec. 39.122  Allotment of education administrative funds.

    The total annual budget for agencies/areas shall be allotted to the 
Director and through him/her to agency and area education offices. This 
total budget shall be distributed to the various agency and area 
education offices as follows:
    (a) Each agency or area education office as defined above shall 
receive a base amount of $50,000 for basic administrative costs; and
    (b) Each agency or area education office as defined above shall 
receive an amount under these funds equal to two percent of the total 
higher education, Johnson-O'Malley and adult education funds 
administered by each office, except that the Navajo Agencies are 
restricted to a maximum of $50,000 for administering the Johnson-
O'Malley and higher education programs; and
    (c) Eighty percent of the remaining funds shall be distributed 
proportionately based on the number of schools operated under the 
jurisdiction of each agency or area education office, with

[[Page 171]]

Bureau-operated schools counting as 1 and contract/grant schools 
counting as 0.6; and
    (d) The remaining twenty percent shall be distributed 
proportionately based on the total weighted student units generated by 
all schools under the jurisdiction of each agency or area education 
office.



Sec. 39.123  Allotment exception for FY 1991.

    For FY 1991 only, the Director may reserve an amount equal to no 
more than one half of the funds received in FY 1990 by those offices to 
be closed in FY 1991 to cover severance pay costs, lump sum leave 
payments and relocation costs for those individuals affected by the 
closures. Any balance uncommitted by March 31, 1991, shall be 
distributed in accordance with the formula in Sec. 39.122.



                  Subpart K--Pre-kindergarten Programs



Sec. 39.130  Interim fiscal year 1980 and fiscal year 1981 funding for pre-kindergarten programs previously funded by the Bureau.

    Those schools having pre-kindergarten programs funded fully or in 
part from Bureau education funds in fiscal year 1979 shall be funded 
from Bureau education funds by the Director in fiscal year 1980 and 
fiscal year 1981 at their fiscal year 1979 Bureau education funding 
levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for 
each Bureau funded school shall be deducted from the school's fiscal 
year 1979 Bureau Education Budget amount prior to application of the 
phase-in provision detailed in Sec. 39.19.



Sec. 39.131  Addition of pre-kindergarten as a weight factor to the Indian School Equalization Formula in fiscal year 1982.

    The Director, in consultation with the tribes and school boards, 
shall determine appropriate weight factors needed to include pre-
kindergarten programs in the Indian School Equalization Formula in 
fiscal year 1982. Based on a needs assessment, to be completed by 
January 1, 1980, pre-kindergarten programs shall be included in the 
Bureau's education request for fiscal year 1982.



        Subpart L--Contract School Operation and Maintenance Fund



Sec. 39.140  Definitions.

    Contract school operation and maintenance costs for fiscal year 1979 
means the sum of costs for custodial salaries and fringe benefits, 
related supplies and equipment and equipment repair, insurance, and 
school operation utilities costs, where such costs are not paid by the 
Division of Facilities Management or other noneducation Bureau sources.



Sec. 39.141  Establishment of an interim fiscal year 1980 operation and maintenance fund for contract schools.

    There is established in the Division of Facilities Management a 
separate fund entitled the Contract School Operation and Maintenance 
Fund. The Secretary shall cause the distribution of an amount of $2.5 
million, under the fiscal year 1980 appropriation for the Bureau, from 
budget activity 3500. ``General Management and Facilities Operations'', 
to the schools through this fund and shall create an appropriate account 
or subaccount for the Contract School Operation and Maintenance Fund.



Sec. 39.142  Distribution of funds.

    (a) Each contract school shall receive in fiscal year 1980 a portion 
of the Contract School Operation and Maintenance Fund determined by the 
percentage share which that school's fiscal year 1979 operation and 
maintenance cost represents in the total fiscal year 1979 operation and 
maintenance cost for all such schools.
    (b) To be eligible for these funds, a contract school shall submit a 
detailed report of actual operation and maintenance costs for fiscal 
year 1979 to the Director by November 23, 1979. These cost figures will 
be subject to verification by the Director to assure their accuracy 
prior to the allotment of any funds under this subpart.
    (c) Any funds generated under this subpart shall be included in the 
computation of the phase-in amount as set

[[Page 172]]

forth in Sec. 39.19 if supplemental operation and maintenance funds were 
included in a school's fiscal year 1979 3100 contract funds.



Sec. 39.143  Future consideration of contract school operation and maintenance funding.

    The Assistant Secretary shall arrange for full funding for operation 
and maintenance of contract schools by fiscal year 1981.



PART 40--ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS AND OTHER ASSISTANCE FOR HIGHER EDUCATION--Table of Contents




Sec.
40.1  Appropriations for loans or grants.
40.2  Working scholarships.
40.3  Applications.
40.4  Security.
40.5  Repayments.

    Authority: Sec. 11, 48 Stat. 986; 25 U.S.C. 471.

    Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 40.1  Appropriations for loans or grants.

    Funds appropriated by Congress for the education of Indians may be 
used for making educational loans and grants to aid students of one-
fourth or more degree of Indian blood attending accredited institutions 
of higher education or other accredited schools offering vocational and 
technical training who reside within the exterior boundaries of Indian 
reservations under the jurisdiction of the Bureau of Indian Affairs or 
on trust or restricted lands under the jurisdiction of the Bureau of 
Indian Affairs. Such educational loans and grants may be made also to 
students of one-fourth or more degree of Indian blood who reside near 
the reservation when a denial of such loans or grants would have a 
direct effect upon Bureau programs within the reservation. After 
students meeting these eligibility requirements are taken care of, 
Indian students who do not meet the residency requirements but are 
otherwise eligible may be considered.

[33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 40.2  Working scholarships.

    Working scholarships may be granted to Indians who wish to earn 
their board and room by part-time work at Federal boarding schools that 
are located near a college, trade, or vocational school.



Sec. 40.3  Applications.

    Applications for educational loans, grants, and working scholarships 
shall be submitted through the superintendent or officer in charge of 
the agency at which the applicant is enrolled in the manner prescribed 
by the Commissioner.



Sec. 40.4  Security.

    If a borrower or cosigner has security to offer for an educational 
loan it must be given in an amount adequate to protect the loan.



Sec. 40.5  Repayments.

    Repayment schedules for educational loans may provide not to exceed 
two years for repayment for each year in school.



PART 41--GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND NAVAJO COMMUNITY COLLEGE--Table of Contents




            Subpart A--Tribally Controlled Community Colleges

Sec.
41.1  Purpose.
41.2  Scope.
41.3  Definitions.
41.4  Eligible recipients.
41.5  Eligible activities.
41.6  HHS participation.
41.7  Feasibility studies.
41.8  Grants.
41.9  Reports.
41.10  Technical assistance.
41.11  General provisions.
41.12  Annual budget.
41.13  Criminal penalities.

                   Subpart B--Navajo Community College

41.20  Policy.
41.21  Scope.
41.22  Definitions.

[[Page 173]]

41.23  Eligible activities.
41.24  Grants.
41.25  Reports.
41.26  Technical assistance.
41.27  General provisions.
41.28  Criminal penalties.

    Authority: Secs. 114 and 203(a), Pub. L. 95-471, 25 U.S.C. 1815, 25 
U.S.C. 640c-1(c).

    Source: 44 FR 67042, Nov. 21, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



            Subpart A--Tribally Controlled Community Colleges



Sec. 41.1  Purpose.

    The policy of the Department of the Interior is to support and 
encourage the establishment, operation, and improvement of tribally 
controlled community colleges to ensure continued and expanded 
educational opportunities for Indian students. The regulations in this 
subpart prescribe procedures for providing financial and technical 
assistance to this end under the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).



Sec. 41.2  Scope.

    The regulations in this subpart are applicable to the provision of 
financial and technical assistance to Community Colleges under title I 
of the Act. They do not apply to the provision of assistance to Navajo 
Community College. Subpart B of this part applies to assistance to 
Navajo Community College under title II of the Act.



Sec. 41.3  Definitions.

    As used in this subpart A:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which a community college 
normally subdivides its academic year, but does not include a summer 
term.
    (b) Academic year means a twelve month period established by a 
community college and approved by the Director of Education as the 
annual period for the operation of the college's education programs.
    (c) The Act means the Tribally Controlled Community College 
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et 
seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior, or his/her duly authorized 
representative.
    (e) Community College means an institution of higher education which 
(1) is formally controlled or operated and managed by the governing body 
of an Indian Tribe or by the governing bodies of two or more Indian 
Tribes, or (2) is established or is otherwise sanctioned or chartered by 
resolution, ordinance, or other official action (which is still in full 
force and effect) of such governing body or bodies. However, for 
purposes of this definition, only one such institution shall be 
recognized with respect to any one Tribe. A Community College that meets 
the requirements of this definition with respect to more than one Tribe 
must meet such requirements with respect to at least one Tribe that has 
no other currently formally controlled, operated and managed, 
established, sanctioned, or chartered Community College.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE, means the number of Indian students 
(1) enrolled full-time for an entire academic term at a community 
college, calculated on the basis of registrations as in effect at the 
conclusion of the sixth week of an academic term, plus (2) the full-time 
equivalent of the number of other Indian students who are enrolled part-
time for an entire academic term at a community college (determined on 
the basis of the quotient of the sum of credit hours for which all such 
part-time students are registered during such academic term, divided by 
twelve (12)), calculated on the basis of registrations as in effect at 
the conclusion of the sixth week of an academic term. The formula for 
calculating the Indian FTE for an academic term is expressed 
mathematically as FTE=FT+PTCR/12 where FT is the number of full time 
Indian students (those carrying 12 or more credit hours at the end of 
the sixth week of the academic term) and PTCR is the number of credit 
hours for which part-time Indian students are

[[Page 174]]

registered at the end of the sixth week of an academic term.
    (h) Indian means a person who is a member of an Indian Tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or regional or village corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Institution of higher education as defined in Pub. L. 95-471 
(incorporating in part 1201 of the Higher Education Act of 1965), means 
an educational institution in any State which
    (1) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate,
    (2) Provides an educational program for which it awards a bachelor's 
degree or provides not less than a two-year program which is acceptable 
for full credit toward such a degree,
    (3) Is a public or other nonprofit institution, and
    (4) Is accredited by a nationally recognized accrediting agency or 
association or, if not so accredited,
    (A) Is an institution with respect to which the Commissioner of 
Education has determined that there is satisfactory assurance, 
considering the resources available to the institution, the period of 
time, if any, during which it has operated, the effort it is making to 
meet accreditation standards and the purpose for which this 
determination is being made, that the institution will meet the 
accreditation standards of such an agency or association within a 
reasonable time, or
    (B) Is an institution whose credits are accepted, on transfer, by 
not less than three institutions which are so accredited, for credit on 
the same basis as if transferred from an institution so accredited.

Such term also includes any school which provides not less than a one-
year program of training to prepare students for gainful employment in a 
recognized occupation and which meets the provisions of clauses (1), 
(2), (3), and (4). Such term also includes a public or nonprofit private 
educational institution in any State which, in lieu of the requirement 
in clause (1), admits as regular students persons who are beyond the age 
of compulsory school attendance in the State in which the institution is 
located and who have the ability to benefit from the training offered by 
the institution.
    (k) National Indian Organization means any organization of Indians, 
found by the Director of Education to be nationally based, representing 
a substantial Indian constituency, and expert in the field of Indian 
education. Notice of such findings shall be published in the Federal 
Register with an opportunity for comment from the public and no such 
finding shall be effective earlier than 30 days after publication.
    (l) Operating expenses of education programs means the obligations 
and expenditures of a community college for post-secondary activities, 
including administration, instruction, attendance, health and other 
student services, operation, maintenance and repair of plant, fixed 
charges, and other related expenses, but not including expenditures for 
the acquisition or construction of academic facilities. (The term 
academic facilities means structures suitable for use as classrooms, 
laboratories, libraries, and related facilities necessary or appropriate 
for instruction of students, or for research, or for administration of 
the educational or research programs of an institution of higher 
education or as dormitories or student services buildings, and 
maintenance, storage, support, or utility facilities essential to 
operation of the foregoing facilities.)
    (m) Part-time means registered for less than twelve (12) credit 
hours for an academic term; full-time means registered for twelve (12) 
or more credit hours for an academic term.
    (n) Unused portion of received funds means the amount of financial 
assistance provided under this subpart to a Community College for an 
academic year which has not been obligated or

[[Page 175]]

expended by the Community College by July 1 of that academic year.



Sec. 41.4  Eligible recipients.

    Financial assistance under this subpart shall be available only to a 
Community College which:
    (a) Is governed by a board of directors, regents, or trustees, a 
majority of whom are Indians;
    (b) Demonstrates its adherence to stated goals, a philosophy, or a 
plan of operation which is directed to meet the needs of Indians, and 
has formally adopted, in writing, such goals, philosophy, or plan of 
operation, which may be in the form of a constitution, by-laws, or 
policy statement of the Community College;
    (c) If in operation for more than one year, has students a majority 
of whom are Indian; and
    (d) Upon completion of a feasibility study, receives a positive 
determination, and;
    (e) Is not in violation of Sec. 41.11 of this subpart.



Sec. 41.5  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating expenses of education programs of Community Colleges. 
Financial assistance under this subpart shall not be used for religious 
worship or sectarian instruction, but nothing in this subpart shall be 
construed as barring instruction in comparative religions or cultures or 
in languages of Indian tribes.



Sec. 41.6  HHS participation.

    The Assistant Secretary for Indian Affairs is authorized to enter 
into an agreement with the Assistant Secretary for Education, Department 
of Health and Human Services, and to revise such agreement as necessary, 
to assist the Director of Education in the development of plans, 
procedures, and criteria for feasibility studies under this subpart, and 
to provide the Director with technical assistance in conducting such 
feasibility studies, including determinations as to the reasonable 
number of students required to support a Community College.

[44 FR 67042, Nov. 21, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 41.7  Feasibility studies.

    (a) Grants under Sec. 41.8 of this subpart may be made to a 
Community College only after a positive determination of feasibility as 
provided in this section.
    (b) Within thirty (30) days of receiving a resolution or other duly 
authorized request from the governing body of one or more Indian Tribes, 
the Director of Education shall initiate a feasibility study to 
determine whether there is justification to encourage and maintain a 
Community College for such tribe or tribes. The feasibility study shall 
give consideration to the following factors:
    (1) Financial feasibility based upon potential enrollment;
    (2) Evidence of low tribal levels of tribal matriculation in and 
graduation from postsecondary educational institutions;
    (3) Tribal, linguistics, or cultural differences;
    (4) Isolation;
    (5) Presence of alternate education sources;
    (6) Proposed curriculum;
    (7) The benefits of continued and expanded educational opportunities 
for Indian students.
    (c) The Director of Education will issue detailed guidelines for 
conducting and analyzing the feasibility studies.
    (d) Feasibility studies under this section shall be conducted in 
consultation with the tribal governing body or bodies involved or their 
designated representatives. Each feasibility study shall be completed 
and filed by the Director of Education within sixty (60) days after the 
feasibility study has been initiated. The study shall be filed with (1) 
the Assistant Secretary, (2) the tribal governing body or bodies 
requesting the studies, and (3) with the board of directors, regents, or 
trustees of the Community College, if already established.
    (e) In the case of any feasibility study which results in a negative 
determination by the Director of Education, a Tribe requesting the study

[[Page 176]]

may within thirty (30) days of receipt of the study or of notice of such 
determination file a notice of appeal with the Assistant Secretary. 
Following the timely filing of a Tribe's notice of appeal, the Tribe and 
Community College shall have a right to a formal review of the 
feasibility study, including a hearing upon reasonable notice within 
sixty (60) days before the Assistant Secretary (or his/her designee, 
other than the Director of Education or any federal employee under the 
Director's supervision). At the hearing, the appealing Tribe or the 
Community College (or both) may present additional evidence or arguments 
to justify feasibility. Within thirty (30) days of the hearing, the 
Assistant Secretary shall issue a written ruling either confirming, 
modifying, or reversing the original determination. The ruling, which 
shall be final for the Department, shall be mailed or otherwise 
delivered to the appealing Tribe and the Community College within one 
week of its issuance. In any case where the original negative 
determination is not reversed, the Assistant Secretary's ruling shall 
specify the grounds for the decision and state the manner in which the 
determination related to each of the factors specified.
    (f) A negative determination shall not prevent a Tribe from 
requesting another feasibility study, but no more than one feasibility 
study shall be requested for any given Community College per year.



Sec. 41.8  Grants.

    (a) Each Community College which has received a positive feasibility 
study determination under Sec. 41.7 of this subpart shall be entitled to 
apply for financial assistance under this subpart.
    (b) Except with respect to applications for grants for the 1979-1980 
academic year, each Community College shall make an application to the 
Director of Education before January 31, of the year preceding the 
academic year for which financial assistance is requested. Each 
application must contain the following information:
    (1) The name and address of the Community College and the names of 
the members of the governing board and the number of its members who are 
Indian;
    (2) A statement that the Community College has received a positive 
feasibility determination and the date thereof;
    (3) A written statement of the goals, philosophy, or proposed plan 
of operation sufficient to demonstrate that its education program or 
proposed program is designed to meet the needs of Indians;
    (4) In the case of a Community College which has been in operation 
for more than one year, a statement of the total number of FTE Indian 
students and the total number of all FTE students;
    (5) If the Community College has not yet begun operations, a 
statement of expected enrollment, including the total number of FTE 
students and the number of FTE Indian students;
    (6) The name and address of the Indian Tribe or Tribes which control 
or operate and manage, or have established, sanctioned, or chartered the 
Community College, and a statement as to which of those Tribes have not 
done so with respect to any other Community College;
    (7) A curriculum, which may be in the form of a college catalog or 
like publication;
    (8) A proposed budget, showing total expected operating expenses of 
education programs and expected revenues from all sources for the 
academic year to which the information applies;
    (9) An assurance that the Community College will not deny admission 
to any Indian student because that student is not a member of a specific 
tribe or because such student is a member of a specific tribe, and will 
comply with the requirements set forth in Sec. 41.11 of this subpart 
together with any request and justification for a specific waiver of any 
requirement of 25 CFR part 276 which the Community College believes to 
be inappropriate;
    (10) Certification by the chief executive officer of the Community 
College that the information on the application is complete and correct 
and that the application has been filed with the governing body or 
bodies of the Tribe or Tribes which control or have sanctioned or 
chartered it.

[[Page 177]]

    (c)(1) Within thirty (30) days of receiving an application required 
under paragraph (b) of this section, the Director of Education shall 
review the application submitted by the Community College and any 
comments with respect thereto filed by the Tribe(s) or by any national 
Indian organization(s) whose assistance has been requested by the 
Community College, and make a grant award in an amount determined under 
paragraph (d) of this section to the Community College if the 
application qualifies the Community College to receive a grant.
    (2) In the case of any Community College whose application is not 
approved, the Director shall promptly send a notice of such action to 
the Community College. Such notice shall include a statement of the 
specific reasons for not approving the application and a statement 
advising the College of its right within thirty (30) days to amend or 
supplement the application on file to rectify the defect.
    (3) Final disapproval of a grant application by the Director after 
the thirty day period referred to in paragraph (c)(2) of this section, 
or a failure of the Director of Education to approve an application 
within thirty (30) days of its receipt may be appealed by a Community 
College in the same manner as provided in paragraphs (d) and (f) of 
Sec. 41.7.
    (4) A Grant award under an approved application shall be evidenced 
by a grant agreement, signed by the Director of Education, incorporating 
the application and the provisions required by Sec. 41.11.
    (d)(1) In fiscal year 1980, each Community College which qualifies 
for a grant will receive a grant for academic year 1979-80; thereafter 
each Community College which qualifies for a grant shall receive a grant 
for the academic year commencing after the date of approval of its 
application. Except as provided in paragraph (d)(3) of this section 
grants shall be in an amount equal to $4,000 multiplied by the number of 
FTE Indian students in attendance at such college during each academic 
term divided by the number of academic terms in the academic year, 
except that no such grant shall exceed the annual operating expenses of 
the education programs provided by the Community College. The 
mathematical formula for calculating the base grant is BG (Base Grant)=

                                                                        
                                                                        
                                                                        
                               FTETERM!1+FTETERM!2+. . .+FTETERM!N      
       $4,000 x                                                         
                       -------------------------------------------------
                                                N                       
                                                                        

where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.3(g) of this subpart 
and N is the number of academic terms in the academic year.
    (2) For the first Federal fiscal year for which funds are 
appropriated for grants under this subpart, not less than eight (8) nor 
more than fifteen (15) grants shall be approved; priority in awarding 
such grants shall be given to Community Colleges which are operating on 
October 17, 1978, and which have a history of service to the Indian 
people. (If more than fifteen (15) Community Colleges meeting these two 
(2) conditions submit applications for the first fiscal year, a further 
priority for awarding grants among them shall be given to those who 
appear to be in the best position to fulfill the purpose of the Act and 
to those whose continued existence would be threatened if they did not 
receive such a grant).
    (3) All grants under this section shall be subject to the 
availability of appropriations and the amount thereof shall be ratably 
reduced for all Community Colleges if the sums appropriated for any 
fiscal year for financial assistance under this subpart are not 
sufficient to pay the full amounts to which the eligible Community 
Colleges are otherwise entitled under paragraph (d)(1) of this section.
    (e) The Director of Education shall authorize payments to each such 
Community College in advance installments by letter of credit or 
Treasury check in an amount equal to fifty percent (50%) of the grant 
amount available for allotment to such Community College for such 
academic year under paragraph (d) of this section on or before October 
1st of such College's academic year (except for 1979-80) or the first 
day on which appropriations for the fiscal year beginning on such date

[[Page 178]]

are available for obligation by BIA whichever occurs later, based on the 
number of FTE Indian students calculated on the basis of registrations 
as in effect at the conclusion of the sixth week of the final academic 
term of the preceding academic year. On or before January 1st (or such 
other date that is the first day of the fifth month) of such College's 
academic year, payments shall be made in the form of advance 
installments to each Community College in an amount equal to seventy-
five percent (75%) of the grant amount available for allotment to such 
Community College for such academic year under paragraph (d) of this 
section, calculated on the basis of registrations at the conclusion of 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of each such academic year the 
balance of the grant amount to which each College is entitled under 
paragraph (d) of this section shall be paid to such College. In the 
event that additional sums are appropriated to which such Community 
Colleges are entitled under section 110(a) of the Act and paragraph (d) 
of this section, these amounts shall be included in such final payments.
    (f) If with respect to any academic year the amounts of financial 
assistance hereunder have been ratably reduced as provided in paragraph 
(d)(3) of this section and additional funds have not been appropriated 
to pay the full amount of such reductions on or before June 1st of such 
year, the Director of Education shall notify each Community College of 
such fact in writing, and each Community College shall report in writing 
to the Director of Education on or before July 1st of such year the 
amount of unused portion of received funds. The total of such reported 
unused portions of received funds shall be reallocated by the Director 
of Education in proportion to the amount of financial assistance to 
which each Community College is entitled under paragraph (d) but which 
has not been provided due to the ratable reductions provided for 
therein, (except that no Community College shall receive more than the 
total annual cost of the education programs provided by such College) 
and payments shall be made reflecting such reallocations on or before 
August 1st of such academic year.
    (g) If the Director of Education determines that a Community College 
has received, through mistake or fraud, payments of financial assistance 
under this subpart to which it was not entitled, the Director shall 
promptly notify the college, which may appeal the Director's 
determination under the procedures set forth in Sec. 41.7, and adjust 
the amount of payments to the college under this subpart for the same or 
subsequent academic years to compensate for such overpayments or 
otherwise attempt to recover such overpayments.
    (h) Eligibility for grants under this subpart shall not, by itself, 
bar a Community College from qualifying for or receiving financial 
assistance under any other Federal program for which it may qualify.



Sec. 41.9  Reports.

    Each Community College receiving financial assistance under this 
subpart shall provide to the Director of Education on or before December 
1st of each year a report which shall include an accounting of the 
amounts and purposes for which such financial assistance was expended 
during the preceding academic year; the annual cost of education 
programs of the Community College from all sources for such academic 
year; and a final report of the performance based upon the criteria set 
forth in the Community College's stated goals, philosophy or plan of 
operation. Upon reasonable cause, the Director of Education may extend 
the period for submitting the annual report. Each Community College 
shall in addition report to the Director of Education its FTE Indian 
student enrollment for each academic term of the academic year within 
three weeks of the date such FTE calculation is made.



Sec. 41.10  Technical assistance.

    The Director of Education shall furnish technical assistance either 
directly or through contract to any Community College requesting it. 
Such assistance shall be initiated within thirty (30) days of a 
Community College's request in writing. In any case, where

[[Page 179]]

the type and source of technical assistance is specified in the request, 
the Director, to the extent possible or feasible, shall provide the type 
of technical assistance through the source so specified. Technical 
assistance may include, but is not limited to, consulting services for 
the development of programs, plans, and feasibility studies and 
accounting, and other technical advice. In awarding of contracts for 
technical assistance, preference shall be given to an organization 
designated by the Community College to be assisted. Denials of requests 
for technical assistance under this section shall be made in writing and 
sent to the applicant within thirty (30) days of the request, together 
with a statement of the reason for denial. An appeal under this section 
may be undertaken in the same manner as in the case of negative 
determinations of feasibility under Sec. 41.7 of his subpart.



Sec. 41.11  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to Community 
Colleges:
    (a) Services or assistance provided to Indians by Community Colleges 
aided under this subpart shall be provided in a fair and uniform manner, 
and admission to any such Community College shall not be denied to any 
Indian student because such individual is not a member of a specific 
Indian tribe or because such individual is a member of a specific Indian 
tribe.
    (b) Except as may be otherwise provided in this subpart, any 
Community College receiving financial assistance under this subpart 
shall comply with part 276 of this title, subject to any express waiver 
of specific inappropriate provisions of part 276 that may be granted by 
the Assistant Secretary after request and justification by the Community 
College.
    (c) A Community College shall have the right to appeal any adverse 
decision of the Director of Education under a grant agreement to the 
Assistant Secretary by filing written notice of appeal with the 
Assistant Secretary within thirty (30) days after the adverse decision. 
Within thirty (30) days after receiving notice of appeal, the Assistant 
Secretary shall conduct a formal hearing at which time the College may 
present evidence and argument to support its appeal. Within thirty (30) 
days of the hearing, the Assistant Secretary shall issue a written 
ruling on the appeal confirming, modifying, or reversing the Director of 
Education's decision, the Assistant Secretary shall state in detail the 
basis for his/her ruling. The ruling of the Assistant Secretary on an 
appeal shall be final for the Department of the Interior.



Sec. 41.12  Annual budget.

    Appropriations under title I of the Tribally Controlled Community 
College Assistance Act of 1978 shall be separately identified in the 
Bureau of Indian Affairs Budget Justification. Funds appropriated for 
grants under this subpart shall not be commingled with other funds 
expended by the Bureau of Indian Affairs.



Sec. 41.13  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of Federal financial assistance or 
any other payment of Federal funds is based, may be subject to criminal 
prosecution under provisions such as sections 287, 371, or 1001 of title 
18, U.S. Code.



                   Subpart B--Navajo Community College



Sec. 41.20  Policy.

     It is the policy of this Department to support and encourage the 
establishment, operation, and improvement of tribally controlled 
community colleges in order to ensure continued and expanded educational 
opportunities for Indian students. The regulations in this subpart 
prescribe procedures for providing financial and technical assistance to 
this end for the Navajo Community College under the Navajo Community 
College Act, as amended (25 U.S.C. 640a-c).



Sec. 41.21  Scope.

    The regulations in this subpart are applicable to the provision of 
financial

[[Page 180]]

and technical assistance to Navajo Community College pursuant to the 
Navajo Community College Act of December 15, 1971 (Pub. L. 92-189, 85 
Stat. 646, 25 U.S.C. 640a-c) as amended by the Navajo Community College 
Assistance Act of 1978, Title II of the Tribally Controlled Community 
College Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 1329, 25 
U.S.C. 640c). Regulations applicable to Tribally Controlled Community 
Colleges other than Navajo Community College are found in subpart A of 
this part 41.



Sec. 41.22  Definitions.

    As used in this subpart:
    (a) Academic term means a semester, trimester, or other such period 
(not less than six (6) weeks in duration) into which the college 
normally subdivides its academic year, but does not include a summer 
term.
    (b) Academic year means a twelve month period established by the 
college and approved by the Director of Education as the annual period 
for the operation of the college's education programs.
    (c) The Act means the Navajo Community College Act of December 15, 
1971 (Pub. L. 92-189, 85 Stat. 646) as amended by the Navajo Community 
College Assistance Act of 1978, (Pub. L. 95-471, title II, 92 Stat. 
1329, 25 U.S.C. 640a et seq.).
    (d) Assistant Secretary means the Assistant Secretary for Indian 
Affairs of the Department of the Interior or his/her duly authorized 
representative.
    (e) College means the institution known as Navajo Community College 
established by the Navajo Tribe.
    (f) Director of Education means the Director of the Office of Indian 
Education Programs of the Bureau of Indian Affairs, or his/her duly 
authorized representative.
    (g) Full time equivalent or FTE means the number of Indian students 
(1) enrolled full-time for an entire academic term at the College, 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term, plus (2) the full-time equivalent 
of the number of other Indian students who are enrolled part-time for an 
entire academic term at the College (determined on the basis of the 
quotient of the sum of credit hours for which all such part-time 
students are registered during such academic term divided by (12)), 
calculated on the basis of registrations as in effect at the conclusion 
of the sixth week of an academic term. The formula for calculating the 
Indian FTE for an academic term is expressed mathematically as 
FTE=FT+PTCR/12 where FT is the number of full time Indian students 
(those carrying 12 or more credit hours at the end of the sixth week of 
the academic term) and PTCR is the number of credit hours for which 
part-time Indian students are registered at the end of the sixth week of 
an academic term.
    (h) Indian means a person who is a member of an Indian tribe and is 
eligible to receive services from the Secretary of the Interior because 
of his/her status as an Indian.
    (i) Indian Tribe means an Indian tribe, band, nation, pueblo, 
rancheria, or other organized group or community, including any Alaskan 
Native Village or Regional or Village Corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians.
    (j) Operating and Maintenance Expenses of Education Programs means 
the obligation and expenditures by the College for post-secondary 
education activities including administration, instruction, attendance, 
health and other student services, operation, maintenance and repair of 
plant, and fixed charges, and other related expenses, but not including 
obligations or expenditures for the acquisition or construction of 
academic facilities (as defined in Sec. 41.3(l) of subpart A).



Sec. 41.23  Eligible activities.

    Financial assistance under this subpart shall be available to defray 
only the operating and maintenance expenses of education programs of the 
College. Financial assistance under this subpart shall not be used for 
religious worship or sectarian instruction, but nothing in this subpart 
shall be construed as barring instruction in comparative religions or 
cultures or in languages of Indian tribes.

[[Page 181]]



Sec. 41.24  Grants.

    (a) Navajo Community College is entitled to annual grants for 
operation and maintenance of the College in amounts based upon the 
number of Full-Time Equivalent Indian students in attendance.
    (b) Annually, in the manner and within the deadline established by 
the Director of Education, the Navajo Community College shall submit an 
application in the form of a statement of its FTE enrollment (total and 
Indian) for the next academic year. The statement shall include a 
description of the College's curriculum, which may be in the form of a 
College catalog or like publication, and a proposed budget showing total 
expected operating expenses of educational programs and expected revenue 
from all sources for the academic year for which the information 
applies. The statement shall be certified by the chief executive officer 
of the College and shall certify that a copy of that statement has been 
submitted to the Navajo Tribe.
    (c) Annual budget request for the College shall be sparately 
identified in the Bureau of Indian Affairs Budget Justifications. Funds 
appropriated for grants under this subpart shall not be commingled with 
other funds appropriations historically expended by the Bureau of Indian 
Affairs for programs and projects normally provided on the Navajo 
Reservation for Navajo beneficiaries.
    (d) Within thirty (30) days of submission of the statement required 
under paragraph (b) of this section, the Director of Education shall 
make a grant award to the College in an amount determined under 
paragraph (e) of this section. The grant award shall be evidenced by a 
grant agreement signed by the Director of Education, incorporating the 
grant application and including the provisions required by Sec. 41.27 of 
this subpart.
    (e) The College shall be eligible to receive a grant for the fiscal 
year beginning October 1, 1979, and for each succeeding year, in an 
amount equal to $4,000 multiplied by the number of FTE Indian students 
in attendance at the College during each academic term divided by the 
number of academic terms in the academic year, except that no such grant 
shall exceed the annual operating expenses of the education programs 
provided by the College. The mathematical formula for calculating the 
base grant is BG (Base Grant)=

                                                                        
                                                                        
                                                                        
                               FTETERM!1+FTETERM!2+. . .+FTETERM!N      
       $4,000 x                                                         
                       -------------------------------------------------
                                                N                       
                                                                        

where FTE is the Indian FTE for each of the academic terms during the 
academic year calculated in conformity with Sec. 41.22(g) of this 
subpart and N is the number of academic terms in the academic year. The 
amount and payment of such grants shall be subject to the availability 
of annual appropriations.
    (f) The Director of Education shall authorize payments to the 
College in advance installments by letter of credit or Treasury check in 
an amount equal to fifty percent (50%) of the grant amount available for 
allotment to the College for such academic year under paragraph (e) of 
this section on or before October 1st of such academic year (except 
1979-80) or the first day on which appropriations for the fiscal year 
beginning on such date are available for obligation by BIA, whichever 
occurs later, based on the number of FTE Indian students calculated on 
the basis of registrations as in effect at the conclusion of the sixth 
week of the final academic term of the preceding year. On or before 
January 1st (or such other date that is the first day of the fifth 
month) of such academic year, payment shall be made in the form of such 
advance installments to the College in an amount equal to seventy-five 
percent (75%) of the grant amount available for allotment to the College 
for such academic year under paragraph (e) of this section, calculated 
on the basis of registrations as in effect at the conclusion of the 
sixth week of the academic year, less the amount previously advanced for 
such academic year. On or before July 1st (or such other date that is 
the first day of the eleventh month) of such academic year, the balance 
of the grant amount to which the College is entitled under paragraph (e) 
of this section shall be paid to the College. In

[[Page 182]]

the event that additional sums are appropriated for the benefit of the 
College, these sums shall be included in the final payment.
    (g) Overpayments of grants under this subpart may be recovered in 
the manner provided by Sec. 41.8(g) of subpart A.
    (h) Payments to the Navajo Community College under this subpart 
shall not disqualify the College from applying for or receiving grants 
or contracts under any other Federal programs for which it may qualify.



Sec. 41.25  Reports.

    The Navajo Community College shall provide the Director of Education 
on or before September 1st of each year a report which shall include an 
accounting of the amounts and purposes for which financial assistance 
under this subpart was expended during the preceding academic year, the 
annual cost of the education programs of the College from all sources 
for such academic year, and a final report of the performance based upon 
the criteria set forth in the College's stated goals, philosophy or plan 
of operation. Upon reasonable cause, the Director of Education may 
extend the period for submitting the annual report. The college shall in 
addition report to the Director of Education its FTE Indian Student 
enrollment for each academic term of the academic year within three 
weeks of the date such FTE calculation is made.



Sec. 41.26  Technical assistance.

    The Director of Education shall furnish technical assistance, either 
directly or through contract, to the College when requested in writing. 
Such assistance shall be initiated within thirty (30) days of the 
College's request. In any case in which the form and source of technical 
assistance is specified in the request, the Director of Education shall 
to the extent possible or feasible provide technical assistance in the 
form requested and through the source so specified. Technical assistance 
may include, but is not limited to, consulting services in the 
development of annual statements and reports required under this subpart 
and accounting, and other technical advice and assistance.



Sec. 41.27  General provisions.

    The general requirements for grant administration in this section 
are applicable to all grants provided under this subpart to the Navajo 
Community College.
    (a) Services or assistance provided to Indians by the College with 
the financial assistance provided under this subpart shall be provided 
in a fair and uniform manner, and admission to the College shall not be 
denied any Indian student because such individual is not a member of a 
specific Indian tribe or because such individual is a member of a 
specific Indian tribe.
    (b) Except as may be otherwise provided in this subpart, the College 
shall comply with part 276 of this title, subject to express waiver of 
specific inappropriate provisions of part 276 that may be granted, after 
request and justification by the College by the Assistant Secretary.
    (c) In addition to any other right the college may have under this 
subpart, the College shall have the right to appeal any adverse decision 
of the Director of Education under a grant agreement to the Assistant 
Secretary by filing written notice of appeal with the Assistant 
Secretary within thirty (30) days of the adverse decision. Within thirty 
(30) days after receiving notice of appeal, the Assistant Secretary 
shall conduct a formal hearing at which time the College may present 
evidence and argument to support its appeal. Within thirty (30) days of 
the hearing, the Assistant Secretary shall issue a written ruling on the 
appeal confirming, modifying or reversing the decision of the Director 
of Education. In the case of a ruling not reversing the Director of 
Education's decision, the Assistant Secretary shall state in detail the 
basis for his/her ruling. The ruling of the Assistant Secretary on an 
appeal shall be final for the Department of the Interior.



Sec. 41.28  Criminal penalties.

    Persons submitting or causing to be submitted to the Bureau any 
false information in connection with any application, report, or other 
document, upon which the provision of the Federal financial assistance, 
or any other payment of Federal funds, is based,

[[Page 183]]

may be subject to criminal prosecution under provisions such as sections 
287, 371, or 1001 of title 18, U.S. Code.



PART 42--STUDENT RIGHTS AND DUE PROCESS PROCEDURES--Table of Contents




Sec.
42.1  Purpose.
42.2  Application to Bureau schools.
42.3  Rights of the individual student.
42.4  Due process.
42.5  Application to schools under Bureau contract.

    Authority: 5 U.S.C. 301.

    Source: 39 FR 32741, Sept. 11, 1974, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 42.1  Purpose.

    The regulations in this part govern establishing programs of student 
rights and due process procedures in Bureau of Indian Affairs schools 
and in schools that are operating under contract with the Bureau of 
Indian Affairs.



Sec. 42.2  Application to Bureau schools.

    All Bureau of Indian Affairs schools shall be governed by the 
regulations set forth in this part and said regulations shall be 
expressly included as a part of the local school regulations of each 
Bureau of Indian Affairs school. Upon admission, all students of Bureau 
of Indian Affairs schools shall be given a copy of the school 
regulations governing the conduct of students and shall be notified of 
any amendments thereto.



Sec. 42.3  Rights of the individual student.

    Individual students at Bureau of Indian Affairs schools have, and 
shall be accorded, the following rights:
    (a) The right to an education.
    (b) The right to be free from unreasonable search and seizure of 
their person and property, to a reasonable degree of privacy, and to a 
safe and secure environment.
    (c) The right to make his or her own decisions where applicable.
    (d) The right to freedom of religion and culture.
    (e) The right to freedom of speech and expression, including 
symbolic expression, such as display of buttons, posters, choice of 
dress, and length of hair, so long as the symbolic expression does not 
unreasonably and in fact disrupt the educational process or endanger the 
health and safety of the student or others.
    (f) The right to freedom of the press, except where material in 
student publications is libelous, slanderous, or obscene.
    (g) The right to peaceably assemble and to petition the redress of 
grievances.
    (h) The right to freedom from discrimination.
    (i) The right to due process. Every student is entitled to due 
process in every instance of disciplinary action for alleged violation 
of school regulations for which the student may be subjected to 
penalties of suspension, expulsion, or transfer.



Sec. 42.4  Due process.

    Due process shall include:
    (a) Written notice of charges within a reasonable time prior to a 
hearing. Notice of the charges shall include reference to the regulation 
allegedly violated, the facts alleged to constitute the violation, and 
notice of access to all statements of persons relating to the charge and 
to those parts of the student's school record which will be considered 
in rendering a disciplinary decision.
    (b) A fair and impartial hearing prior to the imposition of 
disciplinary action absent the actual existence of an emergency 
situation seriously and immediately endangering the health or safety of 
the student or others. In an emergency situation the official may impose 
disciplinary action not to exceed a temporary suspension, but shall 
immediately thereafter report in writing the facts (not conclusions) 
giving rise to the emergency and shall afford the student a hearing 
which fully comports with due process, as set forth herein, as soon as 
practicable thereafter.
    (c) The right to have present at the hearing the student's parent(s) 
or guardian(s) (or their designee) and to be represented by lay or legal 
counsel of the student's choice. Private attorney's fees are to be borne 
by the student.
    (d) The right to produce, and have produced, witnesses on the 
student's

[[Page 184]]

behalf and to confront and examine all witnesses.
    (e) The right to a record of hearings of disciplinary actions, 
including written findings of fact and conclusions in all cases of 
disciplinary action.
    (f) The right to administrative review and appeal.
    (g) The student shall not be compelled to testify against himself.
    (h) The right to have allegations of misconduct and information 
pertaining thereto expunged from the student's school record in the 
event the student is found not guilty of the charges.



Sec. 42.5  Application to schools under Bureau contract.

    Non-Bureau of Indian Affairs schools which are funded under contract 
with the Bureau of Indian Affairs must also recognize these student 
rights.



PART 43--MAINTENANCE AND CONTROL OF STUDENT RECORDS IN BUREAU SCHOOLS--Table of Contents




Sec.
43.1  Purpose and scope.
43.2  Definitions.
43.3  Student rights.
43.4  Annual notification of rights.
43.5  Access to records.
43.6  Limitations on access.
43.7  Access rights.
43.8  Destruction of records.
43.9  Procedures for granting access.
43.10  Right to challenge.
43.11  Informal proceedings.
43.12  Right to a hearing.
43.13  Right of appeal.
43.14  Consent.
43.15  Content of consent.
43.16  Copy to be provided to parents or eligible students.
43.17  Release of information for health or safety emergencies.
43.18  Record of access.
43.19  Transfer of information by third parties.
43.20  Directory information.
43.21  Standards for collection and maintenance of student records.
43.22  Assuring integrity of records.
43.23  Conduct of employees.

    Authority: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat. 
1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.

    Source: 43 FR 52024, Nov. 8, 1978, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 43.1  Purpose and scope.

    This part contains the regulations of the Bureau of Indian Affairs, 
U.S. Department of the Interior, governing the maintenance, control, and 
accessibility of student records. This part will apply to all 
educational institutions under the jurisdiction of the Bureau of Indian 
Affairs, whether operated under contract or otherwise.



Sec. 43.2  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary--Indian 
Affairs, Department of the Interior.
    (b) Educational institution means any institution operated under the 
jurisdiction of the Bureau of Indian Affairs either directly or by 
contract, including, but not limited to, schools or dormitories from 
which Indian students attend public schools.
    (c) Eligible student means a student who has become 18 years of age 
or is attending an institution of post-secondary education. When a 
student becomes an eligible student, the permission required of and the 
rights given to the parents of the student shall thereafter only be 
required of and given to the student.
    (d) Parent means a natural parent, an adoptive parent, the legal 
guardian, or a legal custodian of a student. (Where the natural parents 
are unavailable, a required written parental consent may be obtained 
from the person who has assumed custody of the student.) For purposes of 
the Education of All Handicapped Children Act, the term parent also 
includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
    (e) Student records means those records, files, documents, and other 
materials which contain information directly related to a student and 
which are maintained by an educational institution, or by a person 
acting for that institution. The term does not include:
    (1) Records of any educational personnel which are in the sole 
possession of the maker and which are not accessible or revealed to any 
other person except a substitute.

[[Page 185]]

    (2) Records made and maintained in the normal course of business 
which relate exclusively to persons who are employed in an educational 
institution but do not attend that institution.
    (3) Directory information as given in Sec. 43.20.
    (4) Records on a student who is 18 years of age or older, or is 
attending an institution of post-secondary education, which are made or 
maintained by a physician, psychiatrist, psychologist, or other 
recognized professional or paraprofessional acting in his professional 
or paraprofessional capacity, or assisting in that capacity, and which 
are made, maintained, or used only in connection with the provision of 
treatment to the student, and are not available to anyone other than 
persons providing such treatment, except that such records can be 
personally reviewed by a physician or other appropriate professional of 
the student's choice.



Sec. 43.3  Student rights.

    The regulations in this part do not prevent educational institutions 
from giving noneligible students rights similar to those given to 
parents and eligible students. Educational institutions may do so at 
their discretion.



Sec. 43.4  Annual notification of rights.

    (a) Each educational institution to which this part applies and 
which maintains records on students shall inform parents or eligible 
students of the rights given them by this part.
    (b) In meeting the requirement in paragraph (a) of this section the 
educational institution shall give notice to parents and eligible 
students at least annually of the following:
    (1) The types of education records and information contained in them 
which are directly related to students and maintained by the 
institution.
    (2) The name and position of the official responsible for 
maintaining each type of record, the persons who have access to those 
records, and the purpose for which they have access.
    (3) The policies of the institution for reviewing and expunging 
those records.
    (4) The procedures established by the institution under Sec. 43.5.
    (5) The procedures for challenging the content of education records 
including those in Sec. 43.10.
    (6) The cost, if any, which will be charged to the parent or 
eligible student for reproducing copies of records under Sec. 43.5.
    (7) The categories of information which the institution has 
designated as ``directory information'' under Sec. 43.20.
    (c) The notice given to a parent or eligible student under this 
section shall be in a language considered by the institution to be 
understandable by the parent or eligible student.



Sec. 43.5  Access to records.

    Educational institutions shall give parents of students or eligible 
students, who are or have been in attendance at the institutions, access 
to student records, except as stated in Sec. 43.6.



Sec. 43.6  Limitations on access.

    Educational institutions are not required to make available to 
students the following materials:
    (a) Financial records of the parents of the student or any 
information contained in those records.
    (b) Confidential letters and statements of recommendations, which 
were placed in any student's record prior to January 1, 1975, and which 
are not used for purposes other than those for which they were 
specifically intended.
    (c) Those records listed in Sec. 43.2(e) which are exempt from the 
definition of student records.



Sec. 43.7  Access rights.

    The right of access specified in Sec. 43.5 shall include:
    (a) The right to obtain a list of the types of student records which 
are maintained by the institution.
    (b) The right to inspect and review the content of those records.
    (c) The right to obtain copies of those records, the cost, if any, 
not to exceed the actual cost to the educational institution of 
reproducing the copies.
    (d) The right to a response from the institution to reasonable 
requests for explanations and interpretations of those records.
    (e) The right to an opportunity for a hearing to challenge the 
content of records.

[[Page 186]]

    (f) If any material or document in the record of a student includes 
information on more than one student, the right to inspect and review 
only that portion of such material or document as relates to that 
particular student or to be informed of the specific information 
contained in such part of such materials.



Sec. 43.8  Destruction of records.

    This part does not prevent educational institutions from destroying 
any records, if not otherwise prevented by law. However, access shall be 
granted under Sec. 43.5 before destroying student records where the 
parent or eligible student has requested access. Only records which are 
no longer relevant or necessary may be destroyed, subject to 
Sec. 43.23(c).



Sec. 43.9  Procedures for granting access.

    Each educational institution shall establish appropriate procedures 
for granting a request by parents for access to the records of their 
children, or by eligible students for access to their own records within 
a reasonable period of time. In no case shall access be withheld more 
than forty-five (45) days after the request has been made.



Sec. 43.10  Right to challenge.

    Each educational institution shall give parents of students and 
eligible students, who are or have been in attendance at the 
institution, an opportunity to challenge the content of the student's 
records to:
    (a) Insure that the records are not inaccurate, misleading, or 
otherwise violating the privacy or other rights of students.
    (b) Provide an opportunity for correcting or deleting any 
inaccurate, misleading, or otherwise inappropriate data in the record.
    (c) Insert into such records a written comment by the parents or 
eligible students pertaining to the content of such records.



Sec. 43.11  Informal proceedings.

    Educational institutions may attempt to resolve differences with the 
parent of a student or the eligible student regarding the content of the 
student's records through informal meetings and discussions with the 
parent or eligible student.



Sec. 43.12  Right to a hearing.

    Upon the request of the educational institution, the parent, or 
eligible student, a hearing shall be conducted under the procedures 
adopted and published by the institution. Such procedures shall include 
at least the following elements:
    (a) The hearing shall be conducted and decided within a reasonable 
period of time following the request for the hearing.
    (b) The hearing shall be informal and a verbatim record of 
proceedings will not be required. Interpreters will be utilized when 
necessary.
    (c) The hearing shall be conducted by an institutional official or 
other party who does not have a direct interest in the outcome of the 
hearing.
    (d) The parents or eligible student shall be given a full and fair 
opportunity to present evidence relevant to the issues raised under 
Sec. 43.10.
    (e) Within a reasonable period of time after the hearing ends, the 
hearing official shall make his recommendation in writing to the head of 
the educational institution. Within 20 days after receipt of the 
recommendation, the head of the institution shall issue his decision in 
writing to the parent or eligible student.



Sec. 43.13  Right of appeal.

    If any parent or eligible student is adversely affected by the 
decision of the head of the institution, that party shall have appeal 
rights as given in 25 CFR part 2. However, each official decision shall 
be issued within 30 days from receipt of the appeal.



Sec. 43.14  Consent.

    Educational institutions shall not permit access to or the release 
of student records or personally identifiable information contained in 
them, other than directory information of students, without the written 
consent of the parents or of an eligible student, to any party other 
than the following:
    (a) Local school officials, including teachers within the 
educational institution, who have been determined by

[[Page 187]]

the institution to have legitimate educational interests in the records.
    (b) Officials of other schools or school systems at which a student 
is interested in enrolling. The student or parent must be notified of 
such release except in cases involving Bureau of Indian Affairs schools. 
All Bureau of Indian Affairs schools are considered to be components of 
one school system whether operated under contract or otherwise.
    (c) Persons having official involvement with a student's application 
for or grant of financial aid.
    (d) Parents of a dependent student as defined in section 152 of the 
Internal Revenue Code of 1954, as amended.
    (e) Accreditation agencies in order to carry out their accrediting 
functions.
    (f) U.S. Office of Education officials and other governmental 
education officials when deemed necessary by the institution to carry 
out their official functions.
    (g) An education testing center or similar institution as a part of 
its validation research which has been authorized by the school.
    (h) In an emergency, any person to whom the information is necessary 
in the discretion of the school's administration in order to protect the 
student's health and safety, subject to Sec. 43.17.
    (i) Indian groups, contractors, grantees, professional social 
service organizations and personnel performing professional services, 
when necessary to carry out an official function authorized by the 
Bureau of Indian Affairs.
    (j) Pursuant to the order of a court of competent jurisdiction; 
however, the parent or eligible student must be notified of such order 
in advance of compliance therewith by the educational institution.



Sec. 43.15  Content of consent.

    The consent of a parent or eligible student requested under this 
part for the release of student records shall be in writing, signed and 
dated by the person giving the consent. The consent shall include:
    (a) A specification of the records to be released.
    (b) The reasons for release.
    (c) The names of the parties to whom the records will be released.



Sec. 43.16  Copy to be provided to parents or eligible students.

    Where the consent of a parent or eligible student is required under 
this part for the release of student records, a copy of the records to 
be released shall be provided on request to:
    (a) The student's parents or the eligible student.
    (b) The student who is not an eligible student, if desired by the 
parents.



Sec. 43.17  Release of information for health or safety emergencies.

    (a) Educational institutions may release information from student 
records to appropriate persons in an emergency if the information is 
necessary to protect the health or safety of a student or other person. 
The factors to be used in determining whether records may be released 
under this section include the following:
    (1) The seriousness of the threat to the health or safety of the 
student or other persons.
    (2) The need for those records to meet the emergency.
    (3) Whether the persons to whom the records are released are in a 
position to deal with the emergency.
    (4) The extent to which time is of the essence in dealing with the 
emergency.



Sec. 43.18  Record of access.

    (a) Each educational institution shall maintain a record kept with 
the student records of each student, which will indicate all parties 
other than those specified in Sec. 43.14 which have requested or 
obtained access to those records and which will indicate specifically 
the legitimate interest that each party had in obtaining this 
information.
    (b) A record of access shall be available only to:
    (1) Parents or eligible students.
    (2) The school official and his or her assistants who are 
responsible for the custody of such records.
    (3) Persons or organizations authorized in and under the conditions 
of Sec. 43.14.

[[Page 188]]



Sec. 43.19  Transfer of information by third parties.

    (a) Educational institutions shall not release personal information 
on a student except on the condition that the party to which the 
information is being transferred will not permit any other party to have 
access to the information without the written consent of the parents or 
of the eligible students.
    (b) With any information released to a party under paragraph (a) of 
this section, educational institutions shall include a written statement 
which informs the party of the requirement in paragraph (a) of this 
section.



Sec. 43.20  Directory information.

    (a) Any educational institution making public directory information 
shall make a reasonable effort to individually notify the parent or 
eligible student of the categories of information which it has 
designated as directory information. The institution shall allow a 
reasonable period of time after notice has been given for a parent or 
eligible student to inform the institution that any or all of the 
information designated should not be released without the prior consent 
of the parent or eligible student.
    (b) Directory information may include the following: A student's 
name, address, telephone listing, date and place of birth, major field 
of study, participation in officially recognized activities and sports, 
weight and height of members of athletic teams, dates of attendance, 
degrees and awards received, and the most recent previous educational 
agency or institution attended by the student, tribe, agency, area, name 
of parent, sex, and classification (grade). No other information may be 
included. Educational institutions have the right to limit the content 
of directory information.



Sec. 43.21  Standards for collection and maintenance of student records.

    (a) Records shall contain only information about an individual which 
is relevant and necessary to accomplish a purpose of the Bureau required 
to be accomplished by statute or Executive order of the President.
    (b) Student records which are used in making any determination about 
any student shall be maintained with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to assure 
fairness to the student in making the determination.
    (c) Information which may be used in determining a student's rights, 
benefits, and privileges under Federal programs shall be collected 
directly from the student or his parents, to the greatest extent 
practicable. In deciding whether collection of information from a parent 
or eligible student, as opposed to a third-party source is practicable, 
the following factors among others may be considered:
    (1) Whether the nature of the information sought is such that it can 
only be obtained from a third party.
    (2) Whether the cost of collecting the information from the parent 
or student is unreasonable, when compared with the cost of collecting it 
from a third party.
    (3) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse determination to the 
student concerned.
    (4) Whether the information, if supplied by the parent or student, 
would have to be verified by a third party.
    (5) Whether provisions can be made for verification by the parent of 
student of information collected from third parties.
    (d) Each individual parent or eligible student who is asked to 
supply information about himself which will be added to a system of 
student records shall be notified of the basis for requesting the 
information, how it may be used, and what the consequences, if any, are 
of not supplying the information. At a minimum, the notice to the parent 
or eligible student must state:
    (1) The authority (whether granted by statute or Executive Order of 
the President) which authorizes requesting the information and whether 
disclosure of such information is mandatory or voluntary.
    (2) The principle purpose or purposes for which the information is 
intended to be used.
    (3) The routine uses which may be made of the information.

[[Page 189]]

    (4) The effects, if any, of not providing all or any part of the 
requested information.
    (e) When information is collected on a standard form, the notice to 
the parent or eligible student shall be on the form or on a tear-off 
sheet attached to the form or on a separate sheet, whichever, is most 
practical.
    (f) When information is collected by an interviewer, the interviewer 
shall provide the parent or eligible student with a written notice which 
the individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
that a copy be mailed to him.
    (g) A parent or eligible student may be asked to acknowledge, in 
writing, that he has been given the notice required by this section.
    (h) No student records may be maintained describing how any 
individual exercises rights guaranteed by the first amendment to the 
Constitution unless:
    (1) Expressly authorized by statute or by the individual about whom 
the student record is maintained; or
    (2) Pertinent to and within the scope of an authorized law 
enforcement activity.



Sec. 43.22  Assuring integrity of records.

    (a) Student records shall be maintained with appropriate 
administrative, technical and physical safeguards to insure the security 
and confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity which could result in 
substantial harm, embarrassment, inconvenience, or unfairness to any 
individual on whom information is maintained.
    (b) When maintained in manual form, student records shall be 
maintained, at a minimum, subject to the following safeguards, or 
safeguards giving comparable protection:
    (1) Areas in which the student records are maintained or regularly 
used shall be posted with an appropriate warning, stating that access to 
the records is limited to authorized persons. The warning shall also 
summarize the requirements of Sec. 43.23 and state that employees may be 
subject to a criminal penalty for the unauthorized disclosure of student 
records.
    (2) During working hours, the area in which the student records are 
maintained or regularly used shall be occupied by authorized personnel, 
or access to the student records shall be restricted by their storage in 
locked metal file cabinets or a locked room.
    (3) During nonworking hours, access to the student records shall be 
restricted by their storage in locked metal file cabinets or a locked 
room.
    (4) Where a locked room is the method of security provided for a 
system, the educational institution responsible for the system shall, no 
later than December 31, 1978, supplement that security by:
    (i) Providing lockable file cabinets or containers for the student 
records, or
    (ii) Changing the lock or locks for the room so that they may not be 
opened with a master key. For the purpose of this paragraph, a master is 
a key which may be used to open rooms other than the room containing 
student records, unless those rooms are used by officials or employees 
authorized to have access to the student records.
    (c) When maintained in computerized form, student records shall be 
maintained, at a minimum, subject to safeguards based on those 
recommended in the National Bureau of Standards' booklet, ``Computer 
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30, 
1975), and any supplements to it, which are adequate and appropriate to 
assure the integrity of records in the system.
    (d) The education institution responsible for a system of student 
records shall be responsible for assuring that specific procedures are 
developed to assure that the student records in the system for which it 
is responsible are maintained with security meeting the regulations in 
this section. These procedures shall be in writing and shall be posted 
or otherwise periodically brought to the attention of employees working 
with the student records contained in the system.

[[Page 190]]



Sec. 43.23  Conduct of employees.

    (a) Employees whose duties require handling of student records 
shall, at all times, take care to protect the integrity, security, and 
confidentiality of these records.
    (b) No employee of the educational institution may disclose student 
records unless disclosure is permitted under Sec. 43.14 or made to the 
parent of the student or eligible student to whom the record pertains.
    (c) No employee of the educational institution may alter or destroy 
a student record, unless:
    (1) Alteration or destruction is properly undertaken in the course 
of the employee's regular duties, or
    (2) Alteration or destruction is required by an authorized 
administrative decision or the decision of a court of competent 
jurisdiction.
    (d) The educational institution responsible for a system of student 
records shall be responsible for assuring that employees with access to 
the system are made aware of the requirements of this section.



PART 45--SPECIAL EDUCATION--Table of Contents




                           Subpart A--General

Sec.
45.1  General responsibility.
45.2  Provisions of early childhood special education programs and 
          services.
45.3  Children of ages eighteen through twenty-one.
45.4  Full educational opportunity.
45.5  Definitions.

    Subpart B--Identification and Evaluation of Handicapped Children

45.11  Child find.
45.12  Child find--elements.
45.13  Register of children.
45.14  General entry screening.
45.15  Periodic school screening.
45.16  Screening personnel.
45.17  Screening results and referrals.
45.18  Individual evaluations.
45.19  Evaluation procedures.
45.20  Individual evaluation objectives.
45.21  Formation of multi-disciplinary evaluation teams.
45.22  Composition of multi-disciplinary evaluation teams.
45.23  Content of individual evaluations.
45.24  Test administration.
45.25  Location of evaluation.
45.26  Multi-disciplinary evaluation team procedures.
45.27  Emergency evaluation and placement.
45.28  Independent educational evaluation.
45.29  Additional procedures for evaluating specific learning 
          disabilities.

     Subpart C--Provision of Special Education and Related Services

45.30  Free appropriate public education.
45.31  Individualized education program (IEP).
45.32  Content of individualized education program (IEP).
45.33  Individualized education program (IEP) development.
45.34  Placement recommendation in the IEP.
45.35  Approval of IEP and placement recommendation.
45.36  Parent participation.
45.37  IEP implementation and placement.
45.38  IEP revision, review of placement.
45.39  Re-evaluation.
45.40  Extended school year services.
45.41  Outcome goals.
45.42  Related services.
45.43  Non-academic and extracurricular services.
45.44  Physical education and athletics.
45.45  Expulsion/suspension.
45.46  Geographic accessibility.
45.47  Architectural barriers and program accessibility.
45.48  Handicapped children in private schools placed or referred by 
          agencies.
45.49  Handicapped children in private schools placed by parents.

                    Subpart D--Procedural Safeguards

45.51  Notice to parents.
45.52  Parental consent.
45.53  Rights of handicapped children.
45.54  Access rights.
45.55  Confidentiality of information.
45.56  Surrogate parents.
45.57  Conciliation/mediation.
45.58  Initiation of hearings.
45.59  Hearing officers.
45.60  Impartial hearing officer.
45.61  Hearing reports.
45.62  Timelines and convenience of hearings and reviews.
45.63  Administrative appeal: impartial review.

                          Subpart E--Personnel

45.65  In-service training.
45.66  Qualifications of staff.

                    Subpart F--School Administration

45.70  Assurance of compliance.
45.71  Annual evaluation.
45.72  Comparability of facilities.

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45.73  Non-discrimination.

               Subpart G--Responsibilities of the Division

45.74  The Division.
45.75  Monitoring.
45.76  Complaint procedures.
45.77  Use of available funds.
45.78  Children for whom the Division of Social Services has accepted 
          financial responsibility.
45.79  Cooperative agreements.
45.80  Bureau of Indian Affairs Advisory Committee for Exceptional 
          Children.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 20 U.S.C. 1411-1420.

    Source: 50 FR 34102, Aug. 23, 1985, unless otherwise noted.

    Effective Date Note: At 62 FR 11324, Mar. 12, 1997, part 45 was 
removed, effective Apr. 11, 1997.



                           Subpart A--General



Sec. 45.1  General responsibility.

    (a) Schools are responsible for providing a free appropriate 
education to all handicapped Indian children enrolled in a school 
operated or funded by the Bureau of Indian Affairs (BIA) who are between 
the ages of five (5) and twenty-one (21). Children whose fifth birthday 
occurs on or before December 31 or whose twenty-second birthday occurs 
during the course of the regular school year shall be regarded as 
eligible children for the entire school year.
    (b) The BIA has the responsibility to ensure the provision of a free 
appropriate education until a handicapped child successfully completes a 
secondary school program, voluntarily withdraws or attains the age of 
twenty-two (22) years, regardless of whether the handicapped child is 
provided special education and related services:
    (1) By a school directly;
    (2) Through a contract entered into by the school with a public or 
private agency;
    (3) By an educational cooperative of which the school is a member; 
or
    (4) By an approved public or non-public school program (following 
placement or referral).



Sec. 45.2  Provision of early childhood special education programs and services.

    (a) Children from birth to four (4) years of age, who are not 
enrolled in BIA funded or operated schools, may receive special 
education services through coordination with Head Start and other 
existing Early Childhood Special Education programs (ECSE).
    (b) Early Childhood Special Education (ECSE) means specially 
designed special education and related services, to meet the unique 
needs of a child under the age of five (5) years whose handicap or 
impairment adversely affects the child's educational performance or 
learning abilities.



Sec. 45.3  Children of ages eighteen through twenty-one.

    A child of ages eighteen (18) through twenty-one (21) shall be 
entitled to all of the rights given to children and parents by this 
part.



Sec. 45.4  Full educational opportunity.

    A full educational opportunity must be provided to all handicapped 
children, ages five (5) through twenty-one (21) who are enrolled in 
schools operated or funded by the BIA.



Sec. 45.5  Definitions.

    (a) Agency means an organizational unit of the Bureau which provides 
direct services to the governing body or bodies of one or more specified 
Indian tribes. The term includes Bureau Area Education offices only with 
respect to off-reservation boarding schools, cooperative schools, and 
tribally operated contract schools located in the Area for which the 
Director has not designated an Agency.
    (b) Agency Superintendent for Education means the Bureau official in 
charge of Bureau education programs and functions in an Agency, and who 
reports to the Director, Office of Indian Education Programs (OIEP).
    (c) Approved public or non-public school means:
    (1) Either a public school operated by an intermediate educational 
unit, a local education agency or other public agency (as those terms 
are defined in 34 CFR 300.7, 300.8, 300.11) of a State which receives 
funds under part B of the Education of the Handicapped Act, as amended 
(20 U.S.C. 1411-1420) pursuant to a current annual program plan approved 
by the Secretary of Education; or

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    (2) A non-public school located in a State determined by the State 
educational agency to be in full compliance with all applicable State 
and Federal special education requirements.
    (d) Area Education Program Administrator means the Bureau official 
in charge of Bureau Education programs and functions in a Bureau Area 
office and who reports to the Director.
    (e) Assistant Secretary means the Assistant Secretary--Indian 
Affairs, Department of the Interior, or his/her designee.
    (f) Boarding school means a Bureau school offering a residential 
center and support services as well as an academic program.
    (g) Bureau means the Bureau of Indian Affairs of the Department of 
the Interior.
    (h) Child identification means the identification, location, and 
individual evaluation of handicapped children.
    (i) Cooperative agreements means an agreement between schools 
operated or funded by the BIA and state and local education agencies for 
the provision of special education and related services to handicapped 
children enrolled or eligible to be enrolled in the BIA school.
    (j) Counseling services means services provided by qualified social 
workers (with training as counselors), psychologists, guidance 
counselors, or other qualified personnel.
    (k) Days mean consecutive calendar days.
    (l) Director means the Director, Office of Indian Education 
Programs.
    (m) The Division means the Branch of Exceptional Education, Office 
of Indian Education Programs, Bureau of Indian Affairs, Department of 
the Interior.
    (n) EHA means part B of the Education of the Handicapped Act as 
amended by the Education for All Handicapped Children Act of 1975 (Pub. 
L. 94-142), 20 U.S.C. 1411-1420, and the regulations issued by the U.S. 
Department of Education, 34 CFR 300.1.
    (o) Handicapped child means a child evaluated in accordance with the 
requirements of this part who is determined to be mentally retarded, 
hard of hearing, deaf, deaf-blind, speech impaired, visually 
handicapped, seriously emotionally disturbed, multi-handicapped, 
orthopedically impaired, other health impaired or as having specific 
learning disabilities and who because of these impairments needs special 
education and related services. The terms used in this definition are 
defined as follows:
    (1) Deaf means a hearing impairment which is so severe that the 
child is impaired in processing linguistic information through hearing, 
with or without amplification, which adversely affects educational 
performance.
    (2) Deaf-blind means concomitant hearing and visual impairments, the 
combination of which causes such severe communication and other 
developmental and educational problems that they cannot be accommodated 
in special education programs solely for deaf or blind children.
    (3) Hard of hearing means a hearing impairment, whether permanent or 
fluctuating, which adversely affects a child's educational performance 
but which is not included under the definition of deaf in this section.
    (4) Mentally retarded means significantly subaverage general 
intellectual functioning existing concurrently with deficits in adaptive 
behavior and manifested during the developmental period, which adversely 
affects a child's educational performance.
    (5) Multi-handicapped means concomitant impairments (such as 
mentally retarded-blind, mentally retarded-orthopedically impaired, 
etc., but not including speech impaired), the combination of which 
causes such severe educational problems that they cannot be accommodated 
in special education programs solely for one of the impairments. The 
term does not include deaf-blind children.
    (6) Orthopedically impaired means a severe orthopedic impairment 
which adversely affects a child's educational performance. The term 
includes impairments caused by congenital anomaly (e.g., clubfoot, 
absence of member, etc.), impairments caused by disease (e.g., 
poliomyelitis, bone tuberculosis, etc.), and impairments from other 
causes (e.g., cerebral palsy, amputations, and fractures or burns which 
cause contractures).
    (7) Other health impaired means (i) having an autistic condition 
which is manifested by severe communication

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and other developmental and educational problems; or (ii) having limited 
strength, vitality or alertness, due to chronic or acute health problems 
such as a heart condition, tuberculosis, rheumatic fever, nephritis, 
asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, 
leukemia, or diabetes, which adversely affects a child's educational 
performance.
    (8) Seriously emotionally disturbed is defined as follows:
    (i) The term means a condition exhibiting one or more of the 
following characteristics over a long period of time and to a marked 
degree, which adversely affects educational performance including:
    (A) An inability to learn which cannot be explained by intellectual, 
sensory, or health factors;
    (B) An inability to build or maintain satisfactory interpersonal 
relationships with peers and teachers;
    (C) Inappropriate types of behavior or feelings under normal 
circumstances;
    (D) A general pervasive mood of unhappiness or depression; or
    (E) A tendency to develop physical symptoms or fears associated with 
personal or school problems.
    (ii) The term includes children who are schizophrenic. The term does 
not include children who are socially maladjusted, unless it is 
determined that they are seriously emotionally disturbed.
    (9) Specific learning disability means a disorder in one or more of 
the basic psychological processes involved in understanding or in using 
language, spoken or written, which may manifest itself in an imperfect 
ability to listen, think, speak, read, write, spell, or to do 
mathematical calculations. The term includes such conditions as 
perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, 
and developmental aphasia. The term does not include children who have 
learning problems which are primarily the result of visual, hearing, or 
motor handicaps, or mental retardation, or emotional disturbance, or of 
environmental, cultural, or economic disadvantage.
    (10) Speech impaired means a communication disorder, such as 
stuttering, impaired articulation, a language impairment, or a voice 
impairment, which adversely affects a child's educational performance.
    (11) Visually handicapped means a visual impairment which even with 
correction, adversely affects a child's educational performance. The 
term includes both partially seeing and blind children.
    (p) Independent education evaluation means an evaluation conducted 
by a qualified examiner who is not employed by the Agency responsible 
for the education of the child in question.
    (q) Individualized Education Program (IEP) means the written 
individualized education for a handicapped child which is consistent 
with all the requirements of Secs. 45.31--45.38 of this part.
    (r) Indian means a person who is a member of an Indian tribe.
    (s) Indian Tribe means any Indian tribe, band, nation, rancheria, 
pueblo, colony or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688) which is 
recognized by the Secretary as eligible for the special programs and 
services provided through the Bureau to Indians because of their status 
as Indians.
    (t) Individual Intelligent Quotient (IQ) test means any individual 
test, device, or measure which purports to assess a child's current 
mental abilities, capacity, intellectual functioning, intellectual 
development or aptitude, but does not include achievement test or 
adaptive behavior scales.
    (u) In-service training means training other than that received by 
an individual in a full-time program which leads to a degree.
    (v) Least restrictive environment (LRE) means that to the maximum 
extent appropriate, handicapped children in public or private 
institutions or other care facilities, are educated with children who 
are not handicapped; and that special classes, separate schooling or 
other removal of handicapped children from the regular environment 
occurs only when the nature or severity of the handicap is such that 
education in regular classes with the use of supplementary aids and 
services cannot be achieved satisfactorily.

[[Page 194]]

    (w) Native language when used with reference to a person of limited 
English-speaking ability, means the language normally used by that 
person, or in the case of a child, the language normally used by the 
parents of the child. In all direct contact with a child (including 
evaluation of the child), communication would be in the language 
normally used by the child and not that of the parents, if there is a 
difference between the two.
    (x) Parent means a parent, a guardian, or person acting as a parent 
of a child, or a surrogate parent who has been appointed in accordance 
with Sec. 45.56. The term parent is defined to include persons acting in 
the place of a parent, such as a grandmother or step-parent with whom a 
child lives, as well as persons who are legally responsible for a 
child's welfare.
    (y) Parental consent means: (1) that the parent has been fully 
informed of all information relevant to the activity for which consent 
is sought, in his or her native language, or other mode of 
communication; (2) the parent understands and agrees in writing to the 
carrying out of the activity for which his or her consent is sought, and 
the consent describes that activity and lists the records (if any) which 
will be released and to whom; and (3) the parent understands that the 
granting of consent is voluntary on the part of the parent and may be 
revoked at any time.
    (z) Parent counseling and training means assisting parents in 
understanding the special needs of their child and providing parents 
with information about child development.
    (aa) Physical education means the development of physical and motor 
fitness; fundamental motor skills and patterns; skills in aquatics, 
dance, individual, and group games and sports. The term includes special 
physical education, adaptive physical education, movement education and 
motor development.
    (bb) Related services means transportation and such developmental, 
corrective, and other supportive services as are required to assist a 
handicapped child to benefit from special education and includes speech 
pathology and audiology, psychological services, physical and 
occupational therapy, recreation, early identification and assessment of 
disabilities in children, counseling services, and medical services for 
diagnostic or evaluation purposes. The term also includes school health 
services, social work services in schools, and parent counseling and 
training.
    (cc) School means educational or residential centers operated by or 
under contract with the Bureau of Indian Affairs offering services to 
Indian students under the authority of a local school board and the 
direction of the school supervisor. A school may be located on more than 
one physical site. The term school, unless otherwise specified, is meant 
to encompass day schools, boarding schools, cooperative schools, and 
contract schools as those terms are commonly used. The term school shall 
also encompass private schools, facilities, and institutions, with which 
the Bureau of Indian Affairs may contract for services to handicapped 
Indian children.
    (dd) Section 504 means section 504 of the Rehabilitation Act of 
1973, 29 U.S.C. 794.
    (ee) Special education means specially designed instruction, at no 
cost to the parent, to meet the unique needs of a handicapped child, 
including classroom instruction, instruction in physical education, home 
instruction, and instruction in hospitals and institutions.
    (ff) Special education coordinator means the qualified employee of 
an Area/Agency responsible for ensuring that all requirements of this 
part are complied with by the schools within the jurisdiction of the 
Area/Agency.
    (gg) Supervisor or school supervisor means the individual in the 
position of authority at any school.
    (hh) Tribally operated contract school means a school (other than a 
public school) which is financially assisted under a contract with the 
Bureau.
    (ii) Vocational education means organized educational programs which 
are directly related to the preparations of individuals for paid or 
unpaid employment, or for additional preparation for a career requiring 
other than a baccalaureate or advanced degree.

[[Page 195]]



    Subpart B--Identification and Evaluation of Handicapped Children



Sec. 45.11  Child find.

    Each Agency must insure that every child within its jurisdiction 
between the ages of birth and twenty-two years who is suspected of being 
handicapped and in need of special education and related services is 
identified and located. A formal child find effort must be conducted at 
least once each school year and must include procedures to identify 
children:
    (a) Enrolled in a regular education program operated by the schools 
of the Agency;
    (b) Enrolled in a pre-school or day-care program on or near the 
reservation; or
    (c) Currently out-of-school, including dropouts but excluding 
children who have graduated or otherwise successfully completed 
programs. Schools shall conduct child find activities for in-school 
identification as described in Sec. 45.12.



Sec. 45.12  Child find--elements.

    Each Agency shall:
    (a) Conduct a formal community survey through any effective method 
to identify children of all ages who may be in need of special education 
and related services.
    (b) Regularly present or distribute child find information at tribal 
government or agency meetings, tribal fairs, chapter/district meetings, 
etc.
    (c) Establish a system of in-school identification by which each 
local school supervisor or designee refers children whose academic 
performance, attendance, or other behavior indicates the possibility of 
a handicapping condition for an individual evaluation.
    (d) Establish a procedure by which child identification data is 
regularly collected from the Indian Health Service, local Headstart 
programs, day care facilities, group homes, local public and non-public 
schools, the state education agency (of the state in which the Agency is 
located), tribal agencies and/or organizations and any other appropriate 
education, health, welfare or social service organization in the 
community served by the Agency. A formal procedure for the exchange of 
information between the State Organizational Unit conducting the ``Early 
Periodic Screening, Diagnosis and Treatment Program'' (mandated by title 
XIX of the Social Security Act) for the state in which the school is 
located and the Agency in which the school is located shall be 
established within 180 days from the effective date of this part.
    (e) Publish public information articles and programs in local media, 
including announcements of times, dates, and places of free orientation 
workshops and free screening.
    (f) Initiate annual community-wide communication to all parents of 
school age children which describes the special education program. Such 
communication shall emphasize the availability of programs and services 
for school age children.



Sec. 45.13  Register of children.

    Each school shall maintain information on each handicapped child 
enrolled in the program. All information collected and maintained must 
be kept in accordance with the confidentiality requirements of Pub. L. 
94-142 and the Privacy Act.



Sec. 45.14  General entry screening.

    Each school shall participate in a screening program for all newly 
enrolled children and children who have not previously been screened in 
the school. Such screening shall be conducted by the school in order to 
identify those children who should be referred for a full individual 
evaluation. The general entry screening shall consist of the following 
elements, appropriately adapted for use with children of his/her 
particular age. This screening must be completed within thirty (30) days 
of the child's enrollment and include at a minimum:
    (a) An appropriate vision screening;
    (b) An appropriate hearing screening;
    (c) A screening of the child's primary language skills;
    (d) The administration by a classroom teacher of a general screening 
instrument (i.e., rating scale) to provide information regarding:
    (1) Current academic performances,
    (2) Social and emotional behavior,
    (3) Gross motor skills,

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    (4) Fine motor skills,
    (5) Any observable health problems, and
    (6) The teachers impression of the need for additional assessment.



Sec. 45.15  Periodic school screening.

    (a) At a minimum, schools must annually screen all students enrolled 
in odd numbered grades (i.e., first, third, fifth, seventh, ninth and 
eleventh grades) within the first thirty (30) days of enrollment.
    (b) For schools using a non-graded system, the screening must occur 
every other year, beginning with the first level of enrollment at the 
school. The periodic school screening must meet the requirements set 
forth in Sec. 45.14. Nothing in this part exempts newly enrolled 
students in even numbered grades, kindergarten, or pre-school from being 
screened as required in Sec. 45.14.



Sec. 45.16  Screening personnel.

    The school shall utilize personnel who are trained to do the 
specific screening which is being performed.



Sec. 45.17  Screening results and referrals.

    The school supervisor or designee shall review all results obtained 
through the screening procedures indicated in Secs. 45.14--45.15 with 
the classroom teacher as a team within ten (10) days of completion of 
this screening and determine if an individual evaluation is warranted.
    (a) Upon the determination that an individual evaluation is needed, 
the school supervisor or designee shall within twenty (20) days complete 
the following:
    (1) Inform the parents of the screening results and the 
recommendations of the team.
    (2) Explain parental rights as required in Sec. 45.51 to the 
parents.
    (3) Obtain parental consent to perform an individual evaluation.
    (4) When parental consent for an individual evaluation is obtained a 
formal referral must be prepared according to procedures established by 
the Agency Special Education Coordinator in consultation with the school 
supervisor. The referral shall be fowarded to the appropriate personnel 
for action.
    (b) Should parental consent be denied, possible alternatives to 
formal evaluation such as modifications to the regular classroom program 
must be considered and discussed with the parent and classroom teacher 
prior to implementing due process procedures as provided in Sec. 45.58. 
The discussion required in this part must be held within five (5) days 
of formal denial of consent and any modifications agreed upon must be 
implemented within thirty (30) days. If no agreement can be reached 
through these ``conciliation'' measures the due process procedures in 
Sec. 45.58 should be considered.
    (c) Nothing in this part is to be interpreted as prohibiting the 
child's parent, teacher or school administrator from referring a child 
for an individual evaluation should they feel that an evaluation is 
needed regardless of the screening cycle.
    (d) Screening scales completed on children must be kept in the 
child's cumulative file until the succeeding scale is completed. If a 
child is placed in a Special Education Program, the screening results 
will then become a part of the child's handling file. The child, once 
placed, will become exempt from the screening procedures conducted 
thereafter.



Sec. 45.18  Individual evaluations.

    (a) An individual evaluation must be conducted after receiving 
parental consent when:
    (1) The child is referred based on the screening results, or
    (2) Requested by the parent, teacher or administrator in writing.
    (b) A student must be re-evaluated when:
    (1) A disagreement occurs between the school and parent regarding a 
change of placement from one program to another (i.e., full-time special 
education to regular classroom, part-time special education to regular 
classroom, etc.),
    (2) A change is proposed for the identification of a student's 
handicapping condition to a different condition (i.e., seriously 
emotionally disturbed to specific learning disabled, mentally retarded 
to specific learning disability, etc.),

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    (3) A child is currently enrolled in a special education program and 
the last evaluation was administered three years ago, or
    (4) Requested by the parent.



Sec. 45.19  Evaluation procedures.

    Procedures for selecting testing and evaluation materials and 
procedures developed for the purpose of evaluation and placement of 
handicapped children will not be racially or culturally discriminatory. 
Materials or procedures shall be provided and administered in the 
child's native (primary) language or mode of communication unless it is 
clearly not feasible to do so. No single procedure shall be the sole 
criterion for determining an appropriate educational program for a 
child. Assessment instruments should be selected on a child-by-child 
basis. Assessments must be reported in such a manner as to indicate 
present levels of the child's performance, to determine the need for 
special education and related services. Based on the individual needs of 
the child, additional specialized assessments may be required. 
Assessment reports should contain a summary of the diagnosis and 
specific educational recommendations for remediation. Assessment of a 
handicapped child will be multi-disciplinary, in order to provide a 
comprehensive view of the child from the perspective of the school, 
home, and community.
    (a) For the purposes of non-discriminatory testing and evaluation 
practices, the following shall apply:
    (1) Assessment instruments shall be appropriately adapted when used 
with children of impaired sensory, physical, or speaking skills and such 
adaptation shall consider each child's age and socio-economic and 
cultural background.
    (2) Specialists implementing evaluation procedures must be familiar 
with local, cultural, language, and social patterns and practices.
    (3) Interpretors, in the native language and/or sign language may be 
used throughout all phases of the evaluation.
    (4) Communication with parents and the child shall be in the native 
language of the home (through the use of an interpretor) unless the 
English language is well understood by the parents, guardians, or child.
    (5) Local community norms shall be considered when norm referenced 
tests are used.
    (6) Criterion referenced instruments should be used.
    (7) Developmental checklist(s) should be used where appropriate.
    (8) Instruments shall be administered only by trained personnel and 
according to the producer's instructions.
    (9) Instruments shall assess specific abilities, not merely produce 
a single IQ score.
    (10) No one result shall determine placement.
    (b) Assessment instruments should be adapted in accordance with the 
producers instructions to meet the individual needs of the child being 
evaluated. This requires that:
    (1) Instruments be adapted according to age, socioeconomic, and 
cultural background of each child before or during a child's evaluation.
    (2) Instruments be adapted for children with perceptual problems 
either before or during an evaluation.
    (c) Evaluation shall be conducted in educationally related areas to 
verify a child's suspected need for special education. Evaluations shall 
be accomplished through coordination with the school supervisor and the 
Agency Special Education Coordinator when appropriate.
    (d) An assessment by a psychologist shall be provided when 
appropriate to the child's needs. Such assessment may include:
    (1) An individually appropriate psychological examination 
culminating in specific recommendations, based upon the child's 
developmental and social history.
    (2) Observation of the child in familiar surroundings, such as a 
classroom or home.
    (3) Inventory of sensory, motor, language, perceptual, attentional, 
cognitive, affective, attitudinal, self-image, interpersonal, 
behavioral, interest and vocational factors, in regard to the child's 
maturity, integrity and interaction with the educational and/or home 
context.

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    (e) An assessment by a nurse, social worker, or a counselor shall be 
provided when appropriate for the child. Such assessment of pertinent 
family history and home situation factors shall include:
    (1) A description of pertinent family history and individual 
developmental history and estimates of adaptive behavior at home in the 
neighborhood and in local peer groups.
    (2) Estimates of adaptive behavior shall be based to the greatest 
possible degree on information obtained by direct observation or 
interview of the child and/or parent in the neighborhood setting.
    (f) Each qualified specialist providing an assessment component 
shall give the child a professionally sound, complete and suitable 
individualized examination or assessment in the context of the child's 
physical, developmental, social and educational history and current 
circumstances.
    (g) Individual evaluations shall be conducted on a child unless 
there are written and documented reasons determined on an individual 
basis, for waiving evaluations. Acceptable reasons may include but are 
not limited to circumstances where:
    (1) The parents refuse to permit an evaluation.
    (2) The parents arrange for an equivalent evaluation of their child 
by a qualified professional.
    (3) An equivalent evaluation has been completed within the past 
three (3) years.



Sec. 45.20  Individual evaluation objectives.

    The objectives of an individual evaluation are to:
    (a) Determine where a child is handicapped;
    (b) Diagnose and evaluate the nature and extent of the effect of 
such impairment or condition on the educational performance of the 
child; and
    (c) Assess the need for special education and related services and 
to recommend intervention strategies.



Sec. 45.21  Formation of multi-disciplinary evaluation teams.

    (a) The school supervisor will be responsible for the overall 
conduct of the individual evaluation and shall collect and review all 
pertinent information regarding the child to be evaluated.
    (b) The Special Education Coordinator shall coordinate through the 
school supervisor, the selection of a multi-disciplinary evaluation team 
for the conduct of the evaluation.



Sec. 45.22  Composition of multi-disciplinary evaluation teams.

    The multi-disciplinary evaluation team shall be composed of 
qualified persons appropriate to complete an assessment of the suspected 
disability. In all cases the classroom teacher (or other instructional 
staff member) familiar with the child and a person knowledgeable with 
respect to the suspected disability must be included on the team.



Sec. 45.23  Content of individual evaluations.

    Each individual evaluation must include:
    (a) An assessment of the child's educational status which includes:
    (1) A history of the child's prior evaluations.
    (2) A statement of the child's attendance pattern to include schools 
attended and average daily attendance in prior years.
    (3) An educational history including:
    (i) The child's academic grades.
    (ii) The child's achievement and aptitude test scores and a 
statement of the child's current academic standing or school readiness.
    (iii) Previous educational strategies used to remediate the child's 
educational need.
    (iv) A statement of the child's social relations with groups, peers, 
and adults based on classroom and teacher observations.
    (v) A description of the child's academic strengths that promote 
learning.
    (vi) A description of the child's physical limitations and behavior 
that inhibit learning.
    (vii) A statement of the child's attentional capacity and 
communication skills.
    (b) A health assessment which includes:
    (1) Present and past medical review.
    (2) Physical examination.

[[Page 199]]

    (3) Current existing medical conditions and prescribed treatment(s).
    (c) An assessment by a psychologist, including an individual 
psychological examination culminating in specific recommendations, as 
contained in Sec. 45.19.
    (d) Children who have a speech impairment as their primary handicap 
may not need a complete battery of assessments (e.g., psychological, 
physical, or adaptive behavior). However, a qualified speech-language 
pathologist will:
    (1) Evaluate each speech impaired child using procedures that are 
appropriate for the diagnosis and appraisal of speech and language 
disorders, and
    (2) Where necessary, make referrals for additional assessments 
needed to make an appropriate placement decision. For example, if a 
child is suspected of being seriously emotionally disturbed, the child 
should be evaluated by either a clinical psychologist or a psychiatrist.



Sec. 45.24  Test administration.

    Agencies shall insure, at a minimum, that:
    (a) Tests and other evaluation materials:
    (1) Are provided and administered in the child's native language or 
other mode of communication, unless it is clearly not feasible to do so;
    (2) Have been validated for the specific purpose for which they are 
used; and
    (3) Are administered by trained personnel in conformance with the 
instructions provided by their producer;
    (b) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those which are 
designed to provide a single general intelligence quotient;
    (c) Tests are selected and administered so as best to ensure that 
when a test is administered to a child with impaired sensory, manual, or 
speaking skills, the test results accurately reflect the child's 
aptitude or achievement level or whatever other factors the test 
purports to measure rather than reflecting the child's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
which the test purports to measure);
    (d) No single procedure is used as the sole criterion for 
determining an appropriate educational program for a child;
    (e) The child is assessed in all areas related to the suspected 
disability, including, where appropriate, health, vision, hearing, 
social and emotional status, general intelligence, academic performance, 
communicative status, and motor abilities;
    (f) Tests, to the greatest extent possible, are free from racial, 
cultural and sexual bias; and
    (g) Determinations of mental retardation are based on an assessment 
of a variety of factors including adaptive behavior and past and current 
development activities (e.g., indices or manifestations of social, 
intellectual, adaptive, verbal, motor, language, emotional and self-care 
development for age).



Sec. 45.25  Location of evaluation.

    (a) The evaluation shall take place in the school or at another 
facility which is jointly approved by the child's parents and school 
officials.
    (b) When a child has been referred for an evaluation and, at the 
time of such referral, such child is in a hospital or is otherwise 
living away from home, the Agency shall make appropriate arrangements 
for the provision of the evaluation.



Sec. 45.26  Multi-disciplinary evaluation team procedures.

    (a) Each individual evaluation must be completed, with full 
attention to its comprehensiveness and thoroughness, within thirty days 
from the date of written parental consent. An extension of time of 
thirty additional days may be approved in writing by the Agency 
Superintendent for Education after written documentation by the school 
that unusual circumstances exist preventing completion of the individual 
evaluation in the specified time. No more than one extension may be 
approved in connection with a single individual evaluation unless 
approved in writing by the Director, or designee.
    (b) The comprehensive assessment must reflect a compilation of 
information drawn from different assessment

[[Page 200]]

sources. The depth of the assessment in each area will vary based on the 
initial review of screening information conducted by the school 
supervisor.
    (c) The Special Education Coordinator is responsible for ensuring 
that full and complete records of information collected or generated in 
connection with an individual evaluation are maintained. A report 
setting forth a full written explanation of the findings and the 
recommendations made by the multi-disciplinary evaluation team must be 
prepared. The report must include:
    (1) A description of the child's present level of functioning;
    (2) A description of the needs of the child in rank order of 
importance;
    (3) A recommendation of the types of services which should be 
provided for each listed need;
    (4) A written summary of the procedures employed, the results, and 
the diagnostic impression;
    (5) A proposed date for the review of the child's progress prior to 
the review required in Sec. 45.38, if such assessment so indicates; and
    (6) Criteria by which at that time, the effectiveness of the child's 
program may be determined.
    (d) Each member of the multi-disciplinary evaluation team shall 
certify in writing whether the report prepared by the team reflects his 
or her conclusions, and if not, shall submit a separate statement 
presenting his or her conclusions. The report must be prepared no later 
than fifteen (15) days after completion of the evaluation.
    (e) Members of the multi-disciplinary evaluation teams must be 
responsible for all aspects of the individual evaluation including: the 
selection; administration and interpretation of evaluation materials; 
the collection of all appropriate social and cultural background and 
adaptive behavior information related to each evaluation; and the 
confidentiality of information collected during the individual 
evaluation.



Sec. 45.27  Emergency evaluation and placement.

    (a) Where a child demonstrates documented instances of dangerously 
assaultive or self-abusive behavior, the school supervisor may approve a 
temporary change in placement (i.e., to a special education setting 
other than the regular classroom) on an emergency basis. The school 
supervisor shall immediately notify the Special Education Coordinator of 
the placement. The Agency shall no later than the following day 
determine the appropriateness of the placement and initiate the 
evaluation process.
    (b) The parent shall be informed immediately of the child's behavior 
and shall participate (if possible within the constraints of time) in 
the emergency placement decision and consent for evaluation will be 
obtained.
    (c) An individual evaluation must be completed within fifteen days 
of the emergency placement. Procedures as outlined in Sec. 45.23 must be 
followed. A final placement determination, made by the IEP committee, 
must be made within five (5) days following completion of the individual 
evaluation.



Sec. 45.28  Independent educational evaluation.

    (a) The parents of a handicapped child have the right under this 
part to obtain an independent educational evaluation of the child, 
subject to paragraphs (b) through (e) of this section. Each school/
Agency shall provide to parents, on request, information about where an 
independent educational evaluation may be obtained.
    (b) A parent has the right to an independent education evaluation at 
public expense if the parent disagrees with an evaluation obtained by 
the school or Agency. However, the school or Agency may initiate a 
hearing in accordance with the procedures of this part to show that its 
evaluation is appropriate. If the final decision is that the evaluation 
is appropriate, the parent still has the right to an independent 
educational evaluation, but not at school expense.
    (c) If the parent obtains an independent educational evaluation at 
private expense, the results of the evaluation:
    (1) Must be considered by the school in any decision made with 
respect to the provision of a free appropriate public education to the 
child; and
    (2) May be presented as evidence at a hearing regarding that child.

[[Page 201]]

    (d) If a hearing officer requests an independent educational 
evaluation as part of a hearing, the cost of the evaluation must be at 
school or Agency expense.
    (e) Whenever an independent evaluation is at school or Agency 
expense, the criteria under which the evaluation is obtained, including 
the location of the evaluation and the qualifications of the examiner, 
must be the same as the criteria which the school or Agency uses when it 
initiates an evaluation.



Sec. 45.29  Additional procedures for evaluating specific learning disabilities.

    (a) In evaluating a child suspected of having a specific learning 
disability, in addition to the requirements of Sec. 45.22, each Agency 
shall include on the multi-disciplinary evaluation team:
    (1) The child's regular teacher; or
    (2) If the child does not have a regular teacher, a regular 
classroom teacher qualified to teach a child of his or her age; or
    (3) For a child of less than school age, an individual qualified to 
teach a child of his or her age; and
    (4) At least one person qualified to conduct individual diagnostic 
examinations of children, such as a school psychologist, speech-language 
pathologist, or remedial reading teacher.
    (b) At least one team member other than the child's regular teacher 
shall observe the child's academic performance in the regular classroom 
setting. (In the case of a child of less than school age or out of 
school, a team member shall observe the child in an environment 
appropriate for a child of that age.)
    (c) The team may determine that a child has a specific learning 
disability if:
    (1) The child does not achieve commensurate with his or her age and 
ability levels in one or more of the areas listed in paragraph (c)(2) of 
this section, when provided with learning experiences appropriate for 
the child's age and ability levels; and
    (2) The team finds that a child has a severe discrepancy between 
achievement and intellectual ability in one or more of the following 
areas:
    (i) Oral expression;
    (ii) Listening comprehension;
    (iii) Written expression;
    (iv) Basic reading skill;
    (v) Reading comprehension;
    (vi) Mathematics calculation; or
    (vii) Mathematics reasoning.
    (d) The multi-disciplinary team may not identify a child as having a 
specific learning disability if the severe discrepancy between ability 
and achievement is primarily the result of:
    (1) A visual, hearing, or motor handicap;
    (2) Mental retardation;
    (3) Emotional disturbance; or
    (4) Environmental, cultural or economic disadvantage.
    (e) The multi-disciplinary team shall prepare a written report of 
the results of the evaluation. The report must include a statement of:
    (1) Whether the child has a specific learning disability;
    (2) The basis for making the determination;
    (3) The relevant behavior noted during the observation of the child;
    (4) The relationship of that behavior to the child's academic 
functioning;
    (5) The educationally relevant medical findings, if any;
    (6) Whether there is a severe discrepancy between achievement and 
ability which is not correctable without special education and related 
services; and
    (7) The determination of the team concerning the effects of 
environmental, cultural, or economic disadvantage.
    (f) Each team member shall certify in writing whether the report 
reflects his or her conclusion. If it does not reflect his or her 
conclusion, the team member must submit a separate statement presenting 
his or her conclusions. The report must be prepared no later than 
fifteen (15) days after completion of the evaluation.



     Subpart C--Provision of Special Education and Related Services



Sec. 45.30  Free appropriate public education.

    (a) Each BIA funded or operated school must ensure that a free 
appropriate public education is provided to every handicapped Indian 
child enrolled in the school between the ages of five (5) and twenty-one 
(21) years.

[[Page 202]]

    (b) An appropriate education is one which meets the needs of a 
handicapped child as set forth in the individual education program in 
the least restrictive educational setting. An appropriate education 
involves the provision of regular education, special education and 
related aids or services and may include pre-school, elementary school, 
or secondary school education.
    (c) The provision of a free education is the provision of 
educational and related services without cost to the child (or parents), 
except for those fees that are imposed on a non-handicapped child, and 
may consist of the provision of free services or the payment of the 
costs of the program. Transportation must be provided in order to assure 
access of persons to services.



Sec. 45.31  Individualized education program (IEP).

    If, as a result of the determination of a multi-disciplinary team, a 
child is diagnosed as being handicapped and in need of special education 
and related services, schools are required to develop an IEP within 
thirty (30) days from the date of receipt of the written individual 
evaluation report. The IEP shall set forth the approach which will be 
taken to ensure that the child will be provided a free, appropriate 
education.



Sec. 45.32  Content of individualized education program (IEP).

    At a minimum, the IEP must contain:
    (a) A statement of the child's present levels of educational 
performance;
    (b) A statement of annual goals, including short term instructional 
objectives;
    (c) A statement of the specific special education and related 
services to be provided to the child, and the extent to which the child 
will be able to participate in regular education programs;
    (d) The projected dates for initiation of services and the 
anticipated duration of the services;
    (e) Appropriate objective criteria and evaluation procedures and 
schedules for determining, on at least an annual basis, whether the 
short term instructional objectives are being achieved;
    (f) A description of the nature and duration of physical education 
services to be provided to the child; and
    (g) A statement that all services recommended by the multi-
disciplinary team are being provided, or if all recommended services are 
not provided, a justification for the exclusion of the services.



Sec. 45.33  Individualized education program (IEP) development.

    (a) Overall responsibility for the development of each IEP rests 
with the school supervisor.
    (b) The IEP shall be developed by a committee which shall hold at 
least one meeting and includes among its members the following:
    (1) The School Supervisor, or designee (who shall chair the 
committee) other than the child's teacher, who is qualified to provide 
or supervise the provision of special education;
    (2) The child's teacher and/or other relevant instructional staff;
    (3) One or both of the child's parents;
    (4) The child, where appropriate; and
    (5) Other individuals at the discretion of the parent, Agency, or 
school.
    (c) For a handicapped child who has been evaluated for the first 
time, the Agency shall insure:
    (1) That a member of the evaluation team participates in the 
meeting; or
    (2) That the representative of the school, the child's teacher, or 
some other person is present at the meeting, who is knowledgeable about 
the evaluation procedures used with the child and is familiar with the 
results of the evaluation.
    (d) Upon receiving written application from the school, the Agency 
Superintendent for Education may allow the school to postpone the 
development of an initial IEP to the beginning of a new school year, if 
the written evaluation report is completed within fifteen (15) days of 
the end of the current school year and, if the Agency Superintendent for 
Education determines that an IEP need not be implemented during the 
summer.
    (e) Schools must prepare a progress report related to the 
instructional objectives specified in the IEP for each handicapped child 
and must include it with, or in lieu of the grading report

[[Page 203]]

prepared by the school for all elementary and secondary students.



Sec. 45.34  Placement recommendation in the IEP.

    (a) Placement recommendations shall be made by the School Supervisor 
or designee in concert with the IEP committee and shall be incorporated 
in the IEP.
    (b) The appropriate placement must be selected from the following:
    (1) The regular classroom;
    (2) The regular classroom with consultation;
    (3) The regular classroom with resource teacher;
    (4) The regular classroom with itinerant resource teacher;
    (5) The regular classroom in conjunction with a resource room;
    (6) A self-contained special classroom with part-time instruction in 
regular class;
    (7) A self-contained special class (regular campus);
    (8) A self-contained special class in a special day facility;
    (9) Homebound instruction; and
    (10) Instruction in hospitals and residential facilities.
    (c) Schools may not decline to propose placement for a child or 
recommend to parents that a child be enrolled ``voluntarily'' in a non-
BIA operated/funded school program. In selecting from the continuum of 
alternative settings, no handicapped child may be proposed for placement 
in any alternative settings unless it can be demonstrated that the 
nature or severity of the child's disability is such that education in 
regular class (in the school the child attends if not handicapped) with 
the use of supplementary aids and services cannot be achieved 
satisfactorily. Each school must insure that a continuum of alternative 
placements which meets the particular needs of each enrolled handicapped 
child is available.
    (d) Placement of a handicapped child in a boarding school operated 
by the Bureau which concurrently enrolls non-handicapped children of the 
same age and grade shall be considered a placement in a regular school 
campus.
    (e) Alternative placements may be provided directly by the school, 
or through cooperative arrangements with local and state education 
agencies or, except as provided in paragraph (h) of this section, 
through contractual arrangements with approved non-public schools, 
agencies or institutions.
    (f) Alternative (9), homebound instruction may be selected only when 
the handicapped child:
    (1) Currently possesses a physical impairment or illness which 
directly (or because of treatment required) precludes the movement of 
the child from a hospital or home environment to the general education 
environment; or
    (2) Has been determined (after an individual evaluation) to require 
a program of continuous mental health care and treatment which would be 
seriously disrupted by movement to the general educational environment. 
The proposed homebound instruction should permit the return of the child 
to the general education environment at a specified date. The Agency 
Superintendent for Education must be immediately notified in writing of 
each homebound placement made by the school.
    (g) Alternative placement (10) may be selected only when the health 
or safety of the child precludes the child's attendance at a nearby 
school for special education services.
    (h) Alternative placements (1) through (8) may not be provided 
through contractual arrangements with approved non-BIA operated/funded 
schools, Agencies or institutions if there are a sufficient number of 
handicapped children with similar educational needs who live within the 
attendance area served by the school to justify the allocation of one 
teacher.
    (i) Handicapped individuals who do not meet the age requirements of 
the Bureau may be served by the local school, provided they are not 
counted for ISEP formula funding, with the approval of the local school 
board and the Agency Superintendent for Education, and so long as such 
placement does not dilute the quality and/or quantity of services 
provided to eligible handicapped students.
    (j) If the multi-disciplinary team determines that a residential 
placement for a child is appropriate they should notify the Agency 
Special Education

[[Page 204]]

Coordinator in writing. Upon receipt of such notice, the Special 
Education Coordinator, with the approval of the Agency Superintendent 
for Education, will consult with the Education Specialist for 
institutional placement to determine that the placement is in compliance 
with Federal laws regarding the education of handicapped children.



Sec. 45.35  Approval of IEP and placement recommendation.

    (a) The school must attempt to schedule a meeting which includes the 
school supervisor or designee, the child's parent(s), and the receiving 
teacher and others as identified in Sec. 45.33.
    (b) The parent(s) of the child must be provided full and effective 
written notice of the meeting and all reasonable efforts must be made by 
the school supervisor to ensure parental participation. The written 
notice to parents shall also contain the following information:
    (1) A statement that the evaluation has been completed and that the 
parents have the right to meet with the School Supervisor, the Special 
Education Coordinator or any member of the IEP committee to discuss and 
plan the IEP.
    (2) A statement that all papers relevant to the evaluation, 
including the actual written assessments, are available for inspection 
by the parents or a designated representative of the parents;
    (3) A statement that the parent has a right to an independent 
evaluation as provided in Sec. 45.28;
    (4) A statement of the parent's options under paragraph (c) of this 
section and a form for indicating the option selected by the parent; and
    (5) A statement explaining the consequences of the parent's 
rejection of the proposed IEP under the due process procedures 
established by Sec. 45.58.
    (c) The parent of a child, upon receipt of full and effective 
notice, may exercise any of the following options (by giving written 
notice to the school):
    (1) To accept or reject a written evaluation finding that the child 
does not need special education;
    (2) To accept or reject the IEP. A parent may accept an IEP in whole 
or in part and the school shall immediately implement the mutually 
accepted elements of the IEP;
    (3) To accept a modified IEP that has been mutually agreed upon with 
the School Supervisor or designee following the meeting described in 
paragraph (a) of this section; or
    (4) To postpone a decision on the IEP until the completion of an 
independent evaluation; and
    (5) To obtain an independent evaluation of their child.
    (d) This meeting may be the first and only full meeting of the IEP 
committee. The meeting must include a thorough discussion of the results 
of the child's individual evaluation, the child's proposed IEP and the 
child's proposed educational placement. The school supervisor or 
designee should take whatever action is necessary to insure that the 
parents understand the proposed IEP and the proposed educational 
placement before requesting consent for placement. At the close of the 
final meeting, each member of the committee shall sign the completed IEP 
to signify their participation and agreement with the educational plan.



Sec. 45.36  Parent participation.

    (a) Each school shall take steps to encourage that one or both of 
the parents of the handicapped child are present at each meeting 
including:
    (1) Try to schedule the meeting at a mutually agreed upon time and 
place.
    (2) Notifying parents of the meeting early enough to insure that 
they will have an opportunity to attend.
    (b) The notice under paragraph (a)(2) of this section must indicate 
the purpose, time, and location of the meeting, and who will be in 
attendance.
    (c) If neither parent can attend, the school shall use other methods 
to insure parent participation, including individual or conference 
telephone calls.
    (d) A meeting may be conducted without a parent in attendance if the 
school is unable to convince the parents that they should attend. In 
this case the school must have a record of its attempts to arrange a 
mutually agreed on time and place such as:

[[Page 205]]

    (1) Detailed records of telephone calls made or attempted and the 
results of those calls;
    (2) Copies of correspondence sent to the parents and any responses 
received; and
    (3) Detailed records of visits made to the parent's home or place of 
employment and the results of those visits.
    (e) The school shall take whatever action is necessary to insure 
that the parent understands the proceedings at a meeting, including 
arranging for an interpreter for parents who are deaf or whose native 
language is other than English.
    (f) The school shall give the parent a copy of the IEP.



Sec. 45.37  IEP implementation and placement.

    (a) For newly identified children, the IEP must be implemented and 
educational placement must be made:
    (1) Within thirty (30) days after the written parental approval of 
the placement has been received; or
    (2) In cases involving due process, placement will be made within 
thirty (30) days of the final written decision of the hearing officer, 
unless an appeal is filed by the aggrieved party.
    (b) If the school cannot, within thirty (30) days, provide any or 
all of the services called for in the IEP the School Supervisor must 
consult the Agency Superintendent for Education on alternate means of 
providing the services to fully implement the IEP. The Agency 
Superintendent for Education must make provision for the service within 
fourteen (14) days of the consultation.



Sec. 45.38  IEP revision, review of placement.

    Consistent with the requirements of Sec. 45.37, the IEP must be 
reviewed and updated annually. The review and revision of the IEP must 
be completed no later than the first day of school of the next full 
term. Whenever possible, the review shall be scheduled near the time 
that there may be a change in the personnel providing the major services 
to the child under the IEP, as when the child is to move from one grade 
or school to another. The review shall be conducted as follows:
    (a) The school supervisor, the parents, and the person(s) providing 
the major services to the child under the IEP shall meet and make a 
careful review of the child's progress based upon the progress reports 
submitted by the school during the grading period, and the observations 
of those working with the child.
    (b) The School Supervisor shall invite (in writing) the child's 
parents and, where appropriate, the child, to attend and participate in 
the review meeting. The School Supervisor or the parents may, at their 
discretion, invite other person(s) who have worked with, are working 
with, or will be working with the child to attend the review meeting.
    (c) The participants in the review meeting shall determine:
    (1) Whether the child has achieved the goals set forth in the IEP;
    (2) Whether the child has met the criteria which indicate readiness 
to enter a less restrictive program;
    (3) Whether the program the child is in should be specifically 
modified to make it more suitable to the child's needs; and
    (4) Whether it is desirable to refer the child for an individual re-
evaluation.
    (d) The participants in the review meeting shall review the current 
IEP and revise it as appropriate in accordance with Sec. 45.34. If a re-
evaluation of the child is scheduled in accordance with Sec. 45.39, the 
revision of the new IEP shall be deferred until completion of the re-
evaluation. If the parent is unable to attend the review meeting, the 
school shall provide the parent with copies of all relevant documents 
within five (5) days after the review meeting has been completed.
    (e) During the annual review, the description of current educational 
performance in the IEP must be updated and the overall educational 
needs, long-term educational goals, short-term objectives, and related 
services modifications made. Schools are required to rewrite sections of 
the IEP only to the extent necessary to update or modify the plan.



Sec. 45.39  Re-evaluation.

    Parental approval is not required for the conduct of a re-evaluation 
if the

[[Page 206]]

child has been initially placed and his/her individualized education 
program has been reviewed following the requirements of this part. 
Notice of the conduct of the re-evaluation must be provided to the 
parent prior to re-evaluation. A written summary of the re-evaluation 
must be provided to the parents within five (5) days of the scheduled 
review meeting. A child must be re-evaluated at least every three (3) 
years.



Sec. 45.40  Extended school year services.

    (a) The IEP may provide for continuous instruction (uninterrupted by 
the regular summer recess) whenever:
    (1) Continuous instruction is likely to be necessary in order to 
sustain, with only minor regression, current important educational 
skills and information retention; or
    (2) The child lives in a residential facility or institution.
    (b) The extension of an IEP for a ten (10) to twelve (12) month 
instructional program shall not result in a more restrictive change in 
placement on the continuum of alternative placements nor shall it 
constitute a basis for any deviation from any other educational 
placement requirement of Sec. 45.34 of this part. However, the increased 
isolation of handicapped children which could result from the operation 
of an instructional program for handicapped children during a period of 
time when non-handicapped children are not attending school would not 
violate any requirements of this part.



Sec. 45.41  Outcome goals.

    IEP's for children over the age of fifteen (15) years may contain, 
as appropriate, either a description of regular and/or special education 
instructional services leading to the attainment of a regular high 
school diploma before the age of twenty-two or a program of regular or 
special vocational education leading to participation in a work-
experience (or sheltered employment) program and the attainment of an 
appropriate level of vocational proficiency to permit, whenever 
possible, the child's entry into competitive employment upon or before 
reaching the age of twenty-two.



Sec. 45.42  Related services.

    The school must ensure that each handicapped child has 
developmental, corrective and other supportive services (to the maximum 
extent feasible) to benefit from special education.



Sec. 45.43  Non-academic and extracurricular services.

    (a) Non-academic and extracurricular services and activities must be 
offered in a way which allows equal opportunity for handicapped children 
to participate in services and activities.
    (b) Non-academic and extracurricular services, meals and recess 
periods must be provided in the most integrated setting appropriate to 
the needs of the child.



Sec. 45.44  Physical education and athletics.

    (a) Handicapped children must be provided an equal opportunity for 
participation in physical education courses and inter-scholastic, club 
or intramural athletics sponsored by the school.
    (b) Physical education services must be provided to handicapped 
children in the regular physical education program and may not be 
different from those provided other children, unless:
    (1) The child is enrolled full time in a separate facility or needs 
specially designed physical education; and
    (2) A separate physical education setting is the least restrictive 
environment.



Sec. 45.45  Expulsion/suspension.

    A handicapped child may not be expelled or suspended from school if 
the behavior for which action is being taken is related to the child's 
disability. If the child's behavior is so disruptive that the education 
of others is impaired, a review of the child's IEP and placement as 
described in Sec. 45.38 of this part must be undertaken in order to meet 
the needs of the child.



Sec. 45.46  Geographic accessibility.

    Consistent with the requirements of the IEP, the educational 
placement of a child must be as close to the child's home as possible. 
The placement of a handicapped child in an off-reservation

[[Page 207]]

boarding school operated by the Bureau shall not be regarded as 
inconsistent with this requirement to the extent that similarly situated 
non-handicapped students are also placed in such a school.



Sec. 45.47  Architectural barriers and program accessibility.

    (a) Facilities used by schools, directly, or through contractual 
arrangement, must be accessible to and usable by handicapped children. 
The accessibility standards of the American National Standards Institute 
(ANSI A117.1-1961 (R 1971)) shall be followed. Schools located in 
isolated locations may make application to the Director for an annual 
waiver of any standard. Such a request must be based on documented 
inability to meet the standards. In no event may architectural barriers 
prevent a handicapped child from being educated in the least restrictive 
educational environment as defined in Sec. 45.34.
    (b) Program accessibility (i.e., where each program or activity, 
when viewed in its entirety, is readily accessible to handicapped 
children) must be ensured in all existing facilities.
    (c) Program accessibility may be accomplished through the following 
methods:
    (1) Redesign of equipment;
    (2) Reassignment of classes or other services to accessible 
building;
    (3) Assignment of aides to children;
    (4) Home visits;
    (5) Alteration of existing facilities; or
    (6) Other methods.
    (d) The method for accomplishing program accessibility which offers 
programs and activities to children in the least restrictive 
environment.



Sec. 45.48  Handicapped children in private schools placed or referred by agencies.

    Requirements of this section apply to handicapped children who are 
or have been placed in or referred to a private school or facility by an 
Agency as a means of providing special education and related services.
    (a) Each Agency shall insure that a handicapped child who is placed 
in or referred to a private school or facility is:
    (1) Provided special education and related services in conformance 
with an IEP which meets the requirements under Secs. 45.30--45.38 at no 
cost to the parents; and
    (2) At a school or facility which meets the standards that apply to 
the Agencies (including the requirements in this part).
    (b) In implementing the requirements of this part the Agency shall:
    (1) Monitor compliance through procedures such as written reports, 
on-site visits, and parent questionnaires;
    (2) Disseminate copies of applicable standards to each private 
school and facility to which an Agency has referred or placed a 
handicapped child;
    (3) Provide an opportunity for those private schools and facilities 
to participate in the development and revision of BIA standards which 
apply to them; and
    (c) Assure that handicapped children have all of the rights of a 
non-handicapped child.



Sec. 45.49  Handicapped children in private schools placed by parents.

    (a) If a handicapped child has available a free appropriate public 
education and the parents choose to place the child in a private school 
or facility, the Agency is not required by this part to pay for the 
child's education at the private school or facility.
    (b) Disagreements between a parent and a public agency regarding the 
availability of a program appropriate for the child, and the question of 
financial responsibility, are subject to the due process procedures 
under Secs. 45.57 through 45.63.



                    Subpart D--Procedural Safeguards



Sec. 45.51  Notice to parents.

    (a) Written notice must be given to the parents of a handicapped 
child a reasonable time before the school:
    (1) Proposes to initiate or change the identification, evaluation, 
or educational placement of the child or the provision of a free 
appropriate public education to the child, or
    (2) Refuses to initiate or change the identification, evaluation, or 
educational placement of the child or the

[[Page 208]]

provision of a free appropriate public education to the child.
    (b) The notice described under paragraph (a) of this section must 
include:
    (1) A full explanation of all the procedural safeguards available to 
the parents including confidentiality requirements;
    (2) A description of the proposed (or refused) action, explaining 
the reasons for such action and describing any options which were 
considered and rejected;
    (3) A description of each evaluation procedure, test, record or 
report used as a basis for the action and any other relevant factors;
    (4) The name(s) of the employee(s) of the school who may be 
contacted for further information;
    (5) Language understandable to the general public, provided in the 
language of the parent or other mode of communication used by the 
parent(s) unless clearly not feasible.
    (c) The notice must be communicated orally (where necessary) in the 
primary language or other mode of communication to insure that the 
parent understands the content.
    (d) If an interpreter is used as part of the procedure for providing 
full and effective notice, the school must maintain a written statement, 
signed by the interpreter, to the effect that the parent understood the 
content of the matter presented.



Sec. 45.52  Parental consent.

    (a) Parental consent must be obtained before:
    (1) Conducting a preplacement evaluation; and
    (2) Initial placement of a handicapped child in a program providing 
special education and related services.
    (b) Parental consent must also be obtained before personally 
identifiable information is:
    (1) Disclosed to anyone other than officials of participating 
agencies collecting or using the information consistant with the 
dislosure provisions of the Privacy Act of 1974, as amended;
    (2) Used for any purpose other than meeting a requirement under this 
part; or
    (3) Used for purposes other than those previously specified to the 
parent.



Sec. 45.53  Rights of handicapped children.

    Handicapped children shall have the right to:
    (a) Non-discrimination on the basis of being handicapped;
    (b) A free appropriate education;
    (c) An independent educational evaluation as provided in this part, 
and careful consideration of the results of an independent evaluation 
with respect to the provision of a free appropriate education;
    (d) Be accompanied and represented by persons of his/her choice at 
any meeting or conference required or permitted by this part;
    (e) Inspect and review all relevant records with respect to the 
identification, evaluation and placement of the child and the provisions 
of a free appropriate education;
    (f) A hearing on any action for which notice is required with 
opportunity for direct participation, representation by counsel, and 
other procedural rights;
    (g) Appeal to the Agency Superintendent for Education, or the Area 
Education Program Administrator, as appropriate, and to the Director 
relating to identification, evaluation or placement or to the provision 
of a free, appropriate education;
    (h) A surrogate parent, when appropriate;
    (i) A copy of the full written explanation and findings of the 
individual evaluation as soon as it is completed together with a full 
oral explanation (effectively communicated) of both the findings and the 
recommendations;
    (j) A personal consultation with the members of the multi-
disciplinary team;
    (k) Full and effective notice of proposed actions as provided in 
this part;
    (l) Parental approval or disapproval as provided in this part; and
    (m) Information concerning any free or low-cost legal and other 
relevant services available upon request or if a hearing is initiated.

[[Page 209]]



Sec. 45.54  Access rights.

    (a) Each school and Agency must permit parents to inspect and review 
any records directly relating to their children which are collected and 
maintained by them or by a party acting for the school.
    (b) A parental request to inspect and review records must be honored 
without unnecessary delay and before any meeting regarding an IEP or 
hearing relating to the identification, evaluation, or placement of the 
child, and in no case more than fourteen (14) days after the request has 
been made. The right to inspect and review educational records under 
this section includes:
    (1) The right to a response to reasonable requests for explanations 
and interpretations of the records;
    (2) The right to request that copies of the records containing the 
information be provided at no cost to the parents;
    (3) The right to have a representative of the parent (authorized in 
writing) inspect and review the records.
    (4) The right to place a statement in the records a school maintains 
on a child. Such statement may comment on any information or set forth 
any reason for disagreeing with the decisions of the Agency. Any 
explanation placed in the records must be maintained by the Agency. If 
the contested portion of the record is disclosed to any party, the 
parent's explanation must also be disclosed.
    (c) The parent shall be presumed to have authority to inspect and 
review records relating to his or her child unless the school has been 
advised, in writing, that the parent does not have the authority under 
applicable tribal or state law governing such matters as guardianship, 
separation, and divorce.
    (d) A record of parties obtaining access to education records 
(except access by parents and authorized employees of the school) must 
be kept and must include the name of the party, and the date access took 
place.
    (e) Parents, upon request, shall be provided with a list of the 
types and the purpose of the authorized use of education records of 
their child.
    (f) If any education record includes information on more than one 
child, the parents of those children shall have the right to inspect and 
review only the information relating to their child or to be informed of 
that specific information.
    (g) A parent who believes that information in the education records 
is inaccurate or misleading or violates the privacy or other rights of 
the child, may request that the information be amended. The school or 
Agency must decide whether to amend the information as requested within 
fourteen (14) days of receipt of request. If the school or Agency 
decides to refuse to amend the information, it must inform the parent of 
the refusal and advise the parent of the right to a hearing.



Sec. 45.55  Confidentiality of information.

    (a) The confidentiality of personally identifiable information must 
be protected at collection, storage, disclosure, and destruction stages.
    (b) One person designated by the school must assume responsibility 
for insuring the confidentiality of any personally identifiable 
information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the policies 
and procedures set forth in this subpart.
    (d) Schools must maintain, for public inspection, a current listing 
of the names and positions of the employees who may have access to 
personally identifiable information.
    (e) Schools must inform parents when personally identifiable 
information collected, maintained, or used under this part is no longer 
needed to provide educational services to the child. The information 
must be destroyed at the request of the parents. However, a permanent 
record of a student's name, address, phone number, grades, attendance 
record, classes attended, grade level completed, and year completed may 
be maintained without time limitation.



Sec. 45.56  Surrogate parents.

    (a) After documented, repeated and reasonable efforts to identify 
and locate a parent of a handicapped child, or of a child suspected of 
being a handicapped child, or whenever a child is a ward of a court, the 
School Supervisor must institute a proceeding before an appropriate 
tribunal to determine the

[[Page 210]]

need for a surrogate parent and, if need is found, for the appointment 
of a surrogate parent.
    (b) The person appointed as a surrogate parent shall:
    (1) Have no interest that conflicts with the interests of the child 
and shall not be a present employee of the school involved in the 
education or care of the child or a present employee of Office of Indian 
Education Programs;
    (2) Have knowledge and skills that insure adequate representation of 
the child; and
    (3) Wherever possible, be a member of the child's extended family, 
or if that is not possible, a member of the same tribe as the child.
    (c) The surrogate parent shall represent the child in all matters 
relating to the identification, individual evaluation and educational 
placement of the child and the provision of a free appropriate public 
education.
    (d) Surrogate parents may not be appointed for the sale purpose of 
representing parents at the IEP conference.
    (e) Payment of fees for service as a surrogate parent does not, in 
and of itself, render a person an employee of the BIA.



Sec. 45.57  Conciliation/mediation.

    (a) The school must make all reasonable efforts consistent with its 
obligations under this part, to resolve informally any ongoing disputes 
between the parent and the school.
    (b) Prior to the initiation of a due process hearing, the Bureau 
shall attempt to intervene with the mediation process. The following is 
a statement which describes this technique.
    (1) Mediation is a dispute resolution process which is non-
adversarial in nature. It seeks not to declare winners or losers, but to 
find reconciliation between disputing parties. This process is conducted 
through the skills of a trained mediator. Its focus is the mutually 
satisfactory resolution of disputes. No third party acts as judge or 
jury. The parties themselves arrive at an assessment through the 
process. Mediation can be initiated by either a parent or the Bureau in 
order to resolve informally a disagreement with respect to the 
identification, evaluation, or educational placement of, or the free 
appropriate education provided to an Indian child. Mediation shall 
consist of, but not be limited to, an informal discussion of the 
differences between the parties in an effort to resolve those 
differences. The parents and the appropriate school officials may attend 
mediation sessions between the parties in an effort to resolve those 
differences.
    (2) Mediation must be conducted, attempted, or refused in writing by 
concerned parties of the handicapped child whose education is at issue 
before a request for, or initiation of, a hearing authorized by this 
part. Any request by the Bureau for a hearing shall state in writing how 
this requirement has been satisfied. No stigma may be attached to the 
refusal of the concerned parties to mediate or to an unsuccessful 
attempt to mediate. Mediation may not be used to deny or delay a 
parent's right to impartial due process hearing.



Sec. 45.58  Initiation of hearings.

    (a) If the parent disagrees with any action taken by a school for 
which full and effective notice to parents is required by this part, a 
hearing may be initiated by the parent of a handicapped child or a child 
suspected of being a handicapped child, by sending a written request for 
hearing to the Agency Superintendent for Education. The Agency 
Superintendent for Education must acknowledge receipt of the written 
request within five (5) days of actual receipt.
    (b) Hearings may be initiated by a school by providing full and 
effective notice to parents in any instance where, after reasonable 
efforts at conciliation, a parent either fails to provide written 
approval of a proposed action, or provides a formal disapproval.
    (c) Whenever a hearing is initiated, full and effective notice of 
the initiation of the hearing must be provided by the hearing officer to 
all persons concerned.
    (d) The written notice of hearing shall include:
    (1) A statement of the date, time, place and nature of the hearing;
    (2) A statement of the legal authority and jurisdiction under which 
the hearing is to be held;

[[Page 211]]

    (3) A reference to the particular sections of the statutes or 
regulations involved; and
    (4) A short and plain statement of matters asserted.



Sec. 45.59  Hearing officers.

    (a) A proposed hearing officer must be selected by the Agency 
Superintendent for Education within one (1) day of receipt of a request 
for a hearing, from a list established and maintained by the Agency.
    (b) After selecting a proposed hearing officer, the Agency 
Superintendent for Education must, within three (3) days, give the 
parent(s) and the school full and effective notice of the name of the 
proposed hearing officer.
    (c) The parent and school, each upon notice of the selection of 
proposed hearing officer, may request that the Agency/Area determine 
that the person so proposed is not impartial and may exercise one 
automatic disqualification during the appointment process. The Director 
shall resolve all challenges for cause (i.e., partiality).
    (d) If the proposed hearing officer is automatically disqualified or 
found to be not impartial by the Director, the Agency Superintendent for 
Education must within three (3) days designate another person.
    (e) Final appointment of a hearing officer occurs whenever a 
proposed hearing officer is selected by the Agency Superintendent for 
Education and the parent or the school fails to notify the Agency 
Superintendent for Education of a decision to challenge the impartiality 
of the proposed hearing officer or of a decision to automatically 
disqualify the proposed hearing officer (available only once for each 
party), or when the Director determines that no doubt exists as to the 
impartiality of a proposed hearing officer.



Sec. 45.60  Impartial hearing officer.

    (a) A hearing may not be conducted:
    (1) By a person who is an employee of a school, or of the BIA, who 
is involved in the education or care of the child, or
    (2) By any person having a personal or professional interest which 
would conflict with his or her objectivity in the hearing.
    (b) A person who otherwise qualifies to conduct a hearing under 
paragraph (a) of this section is not an employee of the Agency solely 
because he or she is paid by the Agency to serve as a hearing officer.



Sec. 45.61  Hearing reports.

    (a) Any party to a hearing has the right to:
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to the problems of 
handicapped children. The cost for such counsel or expert 
representatives shall be borne by the party employing them;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least five (5) days before the 
hearing;
    (4) Obtain a written or electronic verbatim record of the hearing; 
and
    (5) Obtain written findings of fact and decisions.
    (b) Parents involved in hearings must be given the right to:
    (1) Have the child who is the subject of the hearing present; and
    (2) Open the hearing to the public.



Sec. 45.62  Timelines and convenience of hearings and reviews.

    (a) The Agency shall ensure that a final decision is reached by the 
hearing officer and a copy of the decision is mailed to each of the 
parties within 45 days after receipt of a request for a hearing.
    (b) A copy of the decision made in a review conducted by the 
Assistant Secretary--Indian Affairs must be mailed to each of the 
parties within 30 days of the request for a review.
    (c) The hearing or reviewing officer may grant specific extensions 
of time at the request of either party.
    (d) Each hearing and each review involving oral arguments must be 
conducted at a time and place which is reasonably convenient to the 
parents and child involved.

[[Page 212]]



Sec. 45.63  Administrative appeal: impartial review.

    (a) A decision made in a hearing conducted under this subpart is 
final, unless a party to the hearing appeals the hearing decision.
    (b) A party aggrieved by the findings and decision in the hearing 
may, within ten (10) days of the decision, appeal to the Assistant 
Secretary--Indian Affairs who may designate an official to conduct the 
review.
    (c) The Official conducting the review shall:
    (1) Examine the entire hearing record;
    (2) Insure that the procedures at the hearing more consistent with 
the requirements of due process;
    (3) Seek additional evidence if necessary. If a hearing is held to 
receive additional evidence, the rights in Sec. 45.62 apply;
    (4) Afford the parties an opportunity for oral or written argument, 
or both, at the discretion of the reviewing official;
    (5) Make an independent decision on completion of the review; and
    (6) Provide written findings and the decision to the parties.
    (d) The Department of the Interior considers the decision made by 
the reviewing official as final.



                          Subpart E--Personnel



Sec. 45.65  In-service training.

    (a) Each Agency must provide a written plan which insures that 
ongoing in-service training programs are made available to all personnel 
who are engaged in the education of handicapped children. To avoid 
duplication, Agencies and schools must jointly determine training needs.
    (b) Each plan must:
    (1) Describe the process used in determining the in-service training 
needs of personnel engaged in the education of handicapped children;
    (2) Identify the areas in which training is needed (i.e. 
individualized education programs, non-discriminatory assessment, least 
restrictive environment, procedural safeguards, and surrogate parents);
    (3) Specify the groups requiring training (i.e. special education 
teachers, regular teachers, administrators, psychologists, speech-
language pathologists, audiologists, physical education teachers, 
physical therapists, occupational therapists, medical personnel, 
parents, volunteers, hearing officers, and surrogate parents);
    (4) Describe the content and nature of training for each area under 
paragraph (b)(2) of this section;
    (5) Describe how the training will be provided in terms of:
    (i) Location and scope; and
    (ii) Staff training source (i.e. college and university staff, 
state, school, Agency personnel, and non-Agency personnel);
    (6) Specify:
    (i) The funding sources to be used;
    (ii) The timeframe for providing staff training; and
    (iii) Procedures for effective evaluation of the extent to which 
program objectives are met.



Sec. 45.66  Qualifications of staff.

    Job qualifications requirements shall be in conformance with 25 CFR 
38.4 of the BIA Education Personnel Regulations.



                    Subpart F--School Administration



Sec. 45.70  Assurance of compliance.

    In connection with each annual application for assistance under this 
part, each School Supervisor must sign a written assurance that the 
special education elementary and secondary program operated by the 
school is currently in compliance with and will, in the future, be 
operated in compliance with this part and any other applicable Federal 
law.



Sec. 45.71  Annual evaluation.

    Each Agency must insure that an annual evaluation of the 
effectiveness of programs in meeting the educational needs of 
handicapped children is completed. The annual evaluation will be 
performed in accordance with the following:
    (a) The evaluation will be based on the projections made in each 
agency/school funding application and must include an evaluation of the 
individual education programs.

[[Page 213]]

    (b) Local School Boards and parents must be given the opportunity to 
be involved in the evaluation.
    (c) The Agency Special Education Coordinator will, through a review 
and comparison of the report with monitoring findings, certify the 
validity for the annual report.
    (d) The Agency Special Education Coordinator will compile the 
reports and submit the compilation to the Division of Exceptional 
Education.
    (e) The Division will consolidate the evaluation data into a single 
report on the BIA special education programs.



Sec. 45.72  Comparability of facilities.

    Facilities which are identifiable as being for handicapped children 
and the services and activities provided therein, must meet the same 
standards and level of quality as do facilities, services and activities 
provided to non-handicapped children.



Sec. 45.73  Non-discrimination.

    (a) No Bureau of Indian Affairs operated and/or funded school shall 
deny admission to any qualified Indian handicapped child on the basis of 
handicap.
    (b) Each school must provide each handicapped Indian child enrolled 
therein whatever educational support services (including tutoring, 
access to instructional equipment, auxiliary aids) are necessary to 
permit the child to fully benefit from the program of special education 
and related services.



               Subpart G--Responsibilities of the Division



Sec. 45.74  The Division.

    (a) The Division of Exceptional Education shall provide staff 
assistance to the Director, Office of Indian Education Programs to 
insure conformance with the requirements of this part. The Division 
shall prepare and submit the annual program plan required by the 
Education of the Handicapped Act. The Division shall be under the 
supervision of a Division Chief who reports to the Director.
    (b) The Director is responsible for educational programs for 
handicapped children and has overall responsibility for insuring that 
every handicapped Indian child enrolled in a Bureau operated or funded 
school is provided a free appropriate education, and that all 
requirements of this part are fully complied with by schools, Agencies, 
and Areas.



Sec. 45.75  Monitoring.

    (a) The Division of Exceptional Education shall monitor and evaluate 
the compliance of schools, Agencies, Areas and other affected public and 
non-public agencies with the requirements of this part consistent with 
written procedures. This monitoring will include:
    (1) Data collection;
    (2) On-site visits;
    (3) Review of special education Federal fund utilization;
    (4) Review of IEP implementation; and
    (5) Review of the continued need for residential placements.
    (b) Schools, Agencies, Areas, non-public school programs and other 
affected Agencies shall keep timely, complete and accurate compliance 
reports. These reports shall contain information to enable the Division 
to ascertain compliance with the requirements of this part.
    (c) Schools, Agencies, Areas, non-public school programs and other 
affected Agencies must permit the staff of the Division of Exceptional 
Education access to books, records, accounts, and other pertinent 
information necessary to ascertain compliance.
    (d) The Division of Exceptional Education may conduct inquiries on 
behalf of an individual child or group of children, regarding failure to 
comply with any provision of this part.
    (e) The Division of Exceptional Education shall monitor 
implementation of the procedural safeguard requirements of this part.
    (f) The Division will provide a written report on the findings and 
will recommend actions for compliance to the responsible Agency. The 
Agency has the responsibility of providing this information to the 
individual school boards and appropriate school officials.



Sec. 45.76  Complaint procedures.

    (a) The Director shall receive, review, and resolve complaints and 
act

[[Page 214]]

on any allegations of substance on actions taken by a school or Agency 
that are contrary to the requirements of this part.
    (b) In carrying out the requirements of paragraph (a) of this 
section the Division will assist Agencies to achieve compliance through:
    (1) Technical assistance;
    (2) Negotiation; and/or
    (3) Third party mediation.
    (c) Failure to comply with the requirements of this part (after 
appropriate action as described in paragraph (b) of this section) shall 
result in sanctions under existing BIA procedures including the 
withholding of Pub. L. 94-142 subpart B funds until the Agency or school 
achieves compliance with the requirements of this part.



Sec. 45.77  Use of available funds.

    The Director shall insure that all funds to which schools become 
entitled because of the enrollment of handicapped children, be used for 
the identification, evaluation, and the provision of a free, appropriate 
education to handicapped Indian children.



Sec. 45.78  Children for whom the Division of Social Services has accepted financial responsibility.

    (a) After the effective date of this part, no handicapped Indian 
child in the care of the Division of Social Services may be placed in, 
or referred to any public or private residential facility until the 
Director is consulted and the education component has been approved.
    (b) The Director shall insure that no later than one (1) year from 
the effective date of this part, every handicapped child currently the 
responsibility of the Division of Social Services in a public or private 
residential facility has been evaluated and provided an IEP in full 
conformance with the requirements of this part. The need of the children 
for continued residentially-based education services will be carefully 
accessed during this process.
    (c) Nothing in this part relieves an insurer or similar third party 
from an otherwise valid obligation to provide or pay for services 
provided to a handicapped child.



Sec. 45.79  Cooperative agreements.

    (a) The Director, or designee, is authorized to enter into 
cooperative agreements with state and local education agencies for the 
provision of special education and related services to handicapped 
children enrolled in schools, operated and/or funded by the Bureau.
    (b) The Director may not enter into any cooperative agreement for 
the provision of special education and related services with state or 
local education agencies which, with respect to any aspect of the 
cooperative special education program, discriminates or has the effect 
of discriminating, against any child on the basis of race, creed, 
national origin, tribal affiliation, religion, sex, handicap or 
eligibility for services provided by the Bureau.
    (c) The Director is responsible for ensuring that every eligible 
Indian handicapped child participating in a cooperative special 
education program is provided a free, appropriate education in the least 
restrictive environment consistent with the procedural safeguards 
required by Sec. 45.34.



Sec. 45.80  Bureau of Indian Affairs Advisory Committee for Exceptional Children.

    (a) The BIA Advisory Committee for Exceptional Children has been 
chartered under and is subject to the provisions of the Federal Advisory 
Committee Act, Pub. L. 92-463. The membership of the BIA Advisory 
Committee for Exceptional Children must be composed of persons involved 
in or concerned with the education of handicapped Indian children. The 
membership shall include, but not be limited to:
    (1) Handicapped individuals.
    (2) Teachers of handicapped children.
    (3) Parents of handicapped children.
    (4) Agency and school officials.
    (5) Special education program administrators.
    (b) The advisory committee shall:
    (1) Advise the Secretary of Interior, through the Assistant 
Secretary--Indian Affairs, of unmet special education needs of Indian 
children;
    (2) Comment publicly on the annual program plan and rules or 
regulations proposed for issuance by the Assistant

[[Page 215]]

Secretary--Indian Affairs regarding the education of handicapped Indian 
children attending BIA operated or funded schools and the procedures for 
distribution of funds under this part; and
    (3) Assist the Assistant Secretary--Indian Affairs in developing and 
reporting such information and evaluation.
    (c) The advisory committee shall meet as often as necessary to 
conduct its business.
    (d) By July 1 of each year, the advisory committee shall submit an 
annual report of panel activities and suggestions to the Director and 
the Assistant Secretary--Indian Affairs. This report must be made 
available to the public.
    (e) Official minutes must be kept on all panel meetings and shall be 
made available to the public upon request.
    (f) All advisory committee meetings and agenda items must be 
publicly announced prior to the meeting, and meetings must be open to 
the public.
    (g) Interpreters and other necessary services must be provided at 
committee meetings for committee members or participants.
    (h) The advisory panel shall serve without compensation but will be 
reimbursed for travel and expenses, in compliance with current Federal 
travel regulations, as published by GSA, for attending meetings and 
performing duties.

[[Page 216]]



                     SUBCHAPTER F--TRIBAL GOVERNMENT





PART 61--PREPARATION OF ROLLS OF INDIANS--Table of Contents




Sec.
61.1  Definitions.
61.2  Purpose.
61.3  Information collection.
61.4  Qualifications for enrollment and the deadline for filing 
          application forms.
61.5  Notices.
61.6  Application forms.
61.7  Filing of application forms.
61.8  Verification forms.
61.9  Burden of proof.
61.10  Review of applications by tribal authorities.
61.11  Action by the Director or Superintendent.
61.12  Appeals.
61.13  Decision of the Assistant Secretary on appeals.
61.14  Preparation, certification and approval of the roll.
61.15  Special instructions.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 U.S.C. 1401 et seq., 
as amended; Pub. L. 100-139; Pub. L. 100-580; Pub. L. 101-42.

    Source: 50 FR 46430, Nov. 8, 1985, unless otherwise noted.



Sec. 61.1  Definitions.

    As used in these regulations:
    Act means any act of Congress authorizing or directing the Secretary 
to prepare a roll of a specific tribe, band, or group of Indians.
    Adopted person means a person whose natural parents' parental rights 
have been given to others to exercise by court order.
    Approved roll means a roll of Indians approved by the Secretary.
    Assistant Secretary means the Assistant Secretary of the Interior 
for Indian Affairs or an authorized representative acting under 
delegated authority.
    Basic roll means the specified allotment, annuity, census or other 
roll designated in the Act or Plan as the basis upon which a new roll is 
to be compiled.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative acting under delegated authority.
    Descendant(s) means those persons who are the issue of the ancestor 
through whom enrollment rights are claimed; namely, the children, 
grandchildren, etc. It does not include collateral relatives such as 
brothers, sisters, nieces, nephews, cousins, etc. or adopted children, 
grandchildren, etc.
    Director means the Area Director of the Bureau of Indian Affairs 
area office which has administrative jurisdiction over the local field 
office responsible for administering the affairs of the tribe, band, or 
group for which a roll is being prepared or an authorized representative 
acting under delegated authority.
    Enrollee(s) means persons who have met specific requirements for 
enrollment and whose names appear on a particular roll of Indians.
    Lineal ancestor means an ancestor, living or deceased, who is 
related to a person by direct ascent; namely, the parent, grandparent, 
etc. It does not include collateral relatives such as brothers, sisters, 
aunts, uncles, etc., or adopted parents, grandparents, etc.
    Living means born on or before and alive on the date specified.
    Plan means any effective plan prepared under the provisions of the 
Act of October 19, 1973, Pub. L. 93-134, 87 Stat. 466, as amended, which 
authorizes and directs the Secretary to prepare a roll of a specific 
tribe, band, or group of Indians.
    Secretary means the Secretary of Interior or an authorized 
representative acting under delegated authority.
    Sponsor means any person who files an application for enrollment or 
appeal on behalf of another person.
    Staff Officer means the Enrollment Officer or other person 
authorized to prepare the roll.
    Superintendent means the official or other designated representative 
of the Bureau of Indian Affairs in charge of the field office which has 
immediate administrative responsibility for the affairs of the tribe, 
band, or group for which a roll is being prepared.
    Tribal Committee means the body of a federally recognized tribal 
entity vested with final authority to act on enrollment matters.

[[Page 217]]

    Tribal Governing Document means the written organizational statement 
governing the tribe, band, or group of Indians and/or any valid 
document, enrollment ordinance, or resolution enacted thereunder.



Sec. 61.2  Purpose.

    The regulations in this part 61 are to govern the compilation of 
rolls of Indians by the Secretary of the Interior pursuant to statutory 
authority. The regulations are not to apply in the compilation of tribal 
membership rolls where the responsibility for the preparation and 
maintenance of such rolls rests with the tribes.



Sec. 61.3  Information collection.

    The Office of Management and Budget has informed the Department of 
the Interior that the information collection requirements contained in 
Sec. 61.4 need not be reviewed by them under the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.).



Sec. 61.4  Qualifications for enrollment and the deadline for filing application forms.

    (a) The qualifications which must be met to establish eligibility 
for enrollment and the deadline for filing application forms will be 
included in this part 61 by appropriate amendments to this section; 
except that, when an Act or Plan states the qualifications for 
enrollment and the deadline for filing application forms and specifies 
that the regulations contained in this part 61 will apply, amendment to 
this section will not be required for the procedures contained in this 
part 61 to govern the preparation of the roll; provided further, the 
provisions contained in this part 61 that were in effect when the 
regulations were amended to include paragraphs (r), (s), (w), (x), (y), 
and (z) shall control the preparation of the rolls under paragraphs (r), 
(s), (w), (x), (y), and (z) of this section.
    (b) Pembina Band of Chippewa Indians. (1) Pursuant to section 7(a) 
of the Act of December 31, 1982, Pub. L. 97-403, 96 Stat. 2022, a roll 
is to be prepared and used as the basis for the distribution of an 
apportioned share of judgment funds awarded the Pembina Chippewa Indians 
in dockets numbered 113, 191, 221 and 246 of the Court of Claims of all 
persons who:
    (i) Are of at least \1/4\ degree Pembina Chippewa blood;
    (ii) Are citizens of the United States;
    (iii) Were living on December 31, 1982;
    (iv) Are not members of the Red Lake Band of Chippewa Indians, the 
Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of the 
Rocky Boy's Reservation, or Minnesota Chippewa Tribe, or the Little 
Shell Band of Chippewa Indians of Montana; and
    (v) Are enrolled or are lineal descendants of persons enrolled:
    (A) As Pembina descendants under the provisions of the Act of July 
29, 1971 (85 Stat. 158), for the disposition of the 1863 Pembina Award, 
or
    (B) On the McCumber roll of the Turtle Mountain Indians of 1892, or
    (C) On the Davis roll of the Turtle Mountain Indians of 1904; or
    (D) As Chippewa on the tentative roll of the Rocky Boy Indians of 
May 30, 1917, or the McLaughlin census report of the Rocky Boy Indians 
of July 7, 1917, or the Roe Cloud Roll of Landless Indians of Montana; 
or
    (vi) Are able to establish Pembina ancestry on the basis of any 
other rolls or records acceptable to the Secretary.
    (2) Application forms for eligibility must be filed with the 
Superintendent, Turtle Mountain Agency, Bureau of Indian Affairs, 
Belcourt, North Dakota 58316, by March 10, 1986. Application forms filed 
after that date will be rejected for failure to file on time regardless 
of whether the applicant otherwise meets the qualifications for 
eligibility.
    (3) Each application for enrollment as a member of any of the tribes 
specified in paragraph (b)(1)(iv) of this section, except the Red Lake 
Band of Chippewa Indians, which may be rejected by the tribes shall be 
reviewed by the Superintendent to determine whether the applicant meets 
the qualifications for eligibility as a descendant of the Pembina Band 
of Chippewas under paragraph (b)(1) of this section. Each rejection 
notice shall contain a statement to the effect that the application is 
being given such review.
    (c) Cherokee Band of Shawnee Indians. (1) Pursuant to section 5 of 
the Act of December 20, 1982, Pub. L. 97-372, 96 Stat. 1815, a roll is 
to be prepared and

[[Page 218]]

used as the basis for the distribution of an apportioned share of 
judgment funds awarded the Shawnee Tribe in dockets 64, 335, and 338 by 
the Indian Claims Commission and in docket 64-A by the U.S. Court of 
Claims of all persons of Cherokee Shawnee ancestry:
    (i) Who were living on December 20, 1982;
    (ii) Who are lineal descendants of the Shawnee Nation as it existed 
in 1854, based on the roll of the Cherokee Shawnee compiled pursuant to 
the Act of March 2, 1889 (25 Stat. 994), or any other records acceptable 
to the Secretary including eligibility to share in the distribution of 
judgment funds awarded the Absentee Shawnee Tribe of Oklahoma on behalf 
of the Shawnee Nation in Indian Claims Commission docket 334-B as a 
Cherokee Shawnee descendant; and
    (iii) Who are not members of the Absentee Shawnee Tribe of Oklahoma 
or the Eastern Shawnee Tribe of Oklahoma.
    (2) Application forms for enrollment must be filed with the 
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal 
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms 
filed after that date will be rejected for inclusion on the roll being 
prepared for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for enrollment.
    (d) Miami Indians of Indiana. (1) Pursuant to section 3 of the Act 
of December 21, 1982, Pub. L. 97-376, 96 Stat. 1828, a roll is to be 
prepared and used as the basis for the distribution of an apportioned 
share of judgment funds awarded the Miami Tribe of Oklahoma and the 
Miami Indians of Indiana in dockets 124-B and 254 by the U.S. Court of 
Claims of all persons of Miami Indian ancestry:
    (i) Who were living on December 21, 1982;
    (ii) Whose name or the name of a lineal ancestor appears on:
    (A) The roll of Miami Indians of Oklahoma and Indiana prepared 
pursuant to the Act of June 2, 1972 (86 Stat. 199), or
    (B) The roll of Miami Indians of Indiana of June 12, 1895, or
    (C) The roll of ``Miami Indians of Indiana, now living in Kansas, 
Quapaw Agency, I.T., and Oklahoma Territory,'' prepared and completed 
pursuant to the Act of March 2, 1895 (28 Stat. 903), or
    (D) The roll of the Eel River Miami Tribe of Indians of May 27, 
1889, prepared and completed pursuant to the Act of June 29, 1888 (25 
Stat. 223), or
    (E) The roll of the Western Miami Tribe of Indians of June 12, 1891 
(26 Stat. 1001); and
    (iii) Who are not members of the Miami Tribe of Oklahoma.
    (2) Application forms for enrollment must be filed with the 
Director, Muskogee Area Office, Bureau of Indian Affairs, Federal 
Building, Muskogee, Oklahoma 74401, by May 9, 1986. Application forms 
filed after that date will be rejected for inclusion on the roll being 
prepared for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for enrollment.
    (e) Cow Creek Band of Umpqua Tribe of Indians. (1) Pursuant to 
section 5 of the Cow Creek Band of Umpqua Tribe of Indians Distribution 
of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a tribal 
membership roll is to be prepared comprised of all persons who are able 
to establish that they are of Cow Creek or other Indian ancestry 
indigenous to the United States based on any rolls or records acceptable 
to the Secretary and were not members of any other Federally recognized 
Indian tribe on July 30, 1987; and:
    (i) Who are named on the tribal roll dated September 13, 1980, the 
so-called Interrogatory No. 14 roll;
    (ii) Who are descendants of individuals named on the tribal roll 
dated September 13, 1980, the so-called Interrogatory No. 14 roll, and 
were born on or prior to October 26, 1987; or
    (iii) Who are descendants of individuals who were considered to be 
members of the Cow Creek Band of Umpqua Tribe of Indians for the 
purposes of the treaty entered between such Band and the United States 
on September 19, 1853.
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, 
Siletz, Oregon 97380

[[Page 219]]

by June 1, 1990. Application forms filed after that date will be 
rejected for inclusion on the tribal membership roll for failure to file 
on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.
    (f) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) 
Pursuant to section 6(a)(1) of the Cow Creek Band of Umpqua Tribe of 
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 
100-139, a roll of nontribal members eligible to participate in the 
Higher Education and Vocational Training Program and the Housing 
Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is 
to be prepared of individuals:
    (i) Who are descended from persons considered members of the Cow 
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered 
into between such band and the United States on September 19, 1853 (10 
Stat. 1027), as ratified by the Senate on April 12, 1854; and
    (ii) Who did not share or are not descendants of persons who shared 
in the distribution of funds under the Act entitled ``An Act to provide 
for the termination of Federal supervision over the property of the 
Klamath Tribe of Indians located in the State of Oregon and the 
individuals members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to 
provide for the termination of Federal supervision over the property of 
certain tribes and bands of Indians located in western Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 691 et seq.).
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, 
Siletz, Oregon 97380. Upon receipt of an application form, the 
Superintendent shall furnish a copy to the Cow Creek Band of Umpqua 
Tribe of Indians.
    (g) Cow Creek Band of Umpqua Tribe of Indians descendants. (1) 
Pursuant to section 6(a)(2) of the Cow Creek Band of Umpqua Tribe of 
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L. 
100-139, a roll of nontribal members eligible to participate in the 
Elderly Assistance Program of the Cow Creek Band of Umpqua Tribe of 
Indians is to be prepared of individuals:
    (i) Who are descended from persons considered members of the Cow 
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered 
into between such Band and the United States on September 19, 1853 (10 
Stat. 1027), as ratified by the Senate on April 12, 1854;
    (ii) Who did not share or are not descendants of persons who shared 
in the distribution of funds under the Act entitled ``An act to provide 
for the termination of Federal supervision over the property of the 
Klamath Tribe of Indians located in the State of Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ``An Act to 
provide for the termination of Federal supervision over the property of 
certain tribes and bands of Indians located in western Oregon and the 
individual members thereof, and for other purposes,'' approved August 
13, 1954 (25 U.S.C. 691 et seq.); and
    (iii) Who were 50 years or older as of December 31, 1985.
    (2) Application forms for enrollment must be filed with the 
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539, 
Siletz, Oregon 97380 by April 25, 1988, and with the Cow Creek Band of 
Umpqua Tribe of Indians. Application forms filed after that date will be 
rejected for failure to file on time regardless of whether the applicant 
otherwise meets the qualifications for eligibility for inclusion on the 
roll of persons eligible to participate in the Elderly Assistance 
Program, but will be considered for inclusion on the roll of persons 
eligible to participate in the Higher Education and Vocation Training 
Program and the Housing Assistance Program. Upon receipt of an 
application form, the Superintendent shall furnish a copy to the Cow 
Creek Band of Umpqua Tribe of Indians.
    (h) Indians of the Hoopa Valley Indian Reservation. Pursuant to 
section 5 of the Hoopa-Yurok Settlement Act of October 31, 1988, Pub. L. 
100-580, a roll of Indians of the Reservation eligible to participate in 
certain settlement provisions is to be prepared of all persons:

[[Page 220]]

    (1) Who were born on or prior to and living on October 31, 1988; and
    (2) Who are citizens of the United States; and
    (3) Who were not, on August 8, 1988, enrolled members of the Hoopa 
Valley Tribe; and
    (4) Who meet the criteria to qualify as an ``Indian of the 
Reservation'' under one of the following standards established by the 
U.S. Court of Claims in its March 31, 1982, decision, and the United 
States Claims Court in its May 14, 1987, and March 1, 1988, decisions in 
the cases of Short v. United States, (Cl. Ct. No. 102-63):
    (i) Standards A-E which are:
    (A) Allottees of land on any part of the Reservation, living on 
October 1, 1949, and lineal descendants of allottees living on October 
1, 1949;
    (B) Persons living on October 1, 1949, and resident on the 
reservation at that time, who have received Reservation benefits or 
services, and hold an assignment, or can make other proof that though 
eligible to receive an allotment, they have not been allotted, and the 
lineal descendants of such persons, living on October 1, 1949;
    (C) Persons living on June 2, 1953, who have at least \1/4\ degree 
Reservation blood, as defined in paragraph (h)(6)(i) of this section, 
have forebears born on the Reservation and were resident on the 
Reservation for 15 years prior to June 2, 1953;
    (D) Persons of at least \1/4\ degree Indian blood, born after 
October 1, 1949, and before August 9, 1963, to a parent who is or would 
have been, when alive a qualified Indian of the Reservation under the 
standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or 
has previously been held entitled to recover in the Short cases;
    (E) Persons born on or after August 9, 1963, who are of at least \1/
4\ degree Indian blood, derived exclusively from the qualified parent or 
parents who is or would have been, when alive, a qualified Indian of the 
Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C) 
of this section, or has previously been held entitled to recover in the 
Short cases; or
    (ii) Manifest Injustice Standard which is: Persons who do not 
qualify under the standards in paragraph (h)(4)(i) of this section, but 
who it would be manifestly unjust to exclude from enrollment. To qualify 
under the manifest injustice standard, persons must adequately 
demonstrate all of the following:
    (A) A significant degree of Indian blood (at least \1/4\ degree 
Indian blood, and
    (B) Personal connections to the Reservation shown through a 
substantial period of residence on the Reservation (nearly ten years of 
residence), and
    (C) Personal ties to the land of the Reservation and/or ties to the 
land through a lineal ancestor; and
    (5) Who file or have filed on their behalf application forms for 
enrollment with the Superintendent, Northern California Agency, Bureau 
of Indian Affairs, P.O. Box 494879, Redding, California 96049, by April 
10, 1989. Applications filed after that date will not be considered for 
inclusion on the roll regardless of whether the applicant otherwise 
meets the qualifications for enrollment, except for plaintiffs 
determined to be an ``Indian of the Reservation'' in the Short cases, 
who will, if they otherwise meet the requirements of the Act, be 
included on the roll.
    (6) As used in paragraph (h) of this section:
    (i) Reservation blood means the blood of the following tribes or 
bands: Yurok; Hoopa/Hupa; Grouse Creek; Hunstand/Hoonsotton/Hoonsolton; 
Miskut/Miscotts/Miscolts; Redwood/Chilula; Saiaz/Nongatl/Siahs; 
Sermaltion; South Fork; Tish-tang-atan; Karok; Tolowa; Sinkyone/
Sinkiene; Wailake/Wylacki; Wiyot/Humboldt; and Wintun.
    (ii) Short cases means the cases entitled Jessie Short et al. v. 
United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States, 
(Cl. Ct. No. 460-78); Bret Aastadt v. United States, (Cl. Ct. No. 146-
85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L).

    (i) [Reserved]
    (j) Coquille Tribe of Indians. (1) Pursuant to section 7 of the 
Coquille Restoration Act of June 28, 1989, Pub. L. 101-42, a tribal 
membership roll is to be prepared comprised of persons of Coquille 
Indian ancestry:
    (i) Who were born on or before and living on June 28, 1989;

[[Page 221]]

    (ii) Who possess at least one-eighth (\1/8\) degree or more Indian 
blood;
    (iii) Who are not enrolled members of another federally recognized 
tribe; and
    (iv) Whose names were listed on the Coquille roll prepared pursuant 
to the Act of August 30, 1954 (68 Stat. 979; 25 U.S.C. 771), and 
approved by the Bureau of Indian Affairs on August 29, 1960;
    (v) Whose names were not listed on but who met the requirements to 
be listed on the Coquille roll prepared pursuant to the Act of August 
30, 1954, and approved by the Bureau of Indian Affairs on August 29, 
1960; or
    (vi) Who are lineal descendants of persons, living or dead, 
identified in paragraphs (j)(1)(iv) and (j)(1)(v) of this section.
    (2) To establish eligibility for inclusion on the tribal membership 
roll, all persons must file an application form with the Superintendent, 
Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon 
97380 by January 10, 1991. Application forms filed after that date will 
be rejected for inclusion on the roll being prepared for failure to file 
on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.
    (3) For the purposes of establishing eligibility under paragraph (j) 
of this section, any available evidence establishing Coquille ancestry 
and the required degree of Indian blood shall be accepted. However, 
information shown on the Coquille roll prepared pursuant to the Act of 
August 30, 1954, shall be accepted as conclusive evidence of Coquille 
ancestry and blood degree information shown on the January 1, 1940, 
census roll of nonreservation Indians of the Grand Ronde-Siletz Agency 
shall be accepted as conclusive evidence in determining degree of Indian 
blood for applicants.
    (4) For the purposes of establishing eligibility under paragraph (j) 
of this section, persons who may be enrolled members of another 
federally recognized tribe or tribes may submit a conditional 
relinquishment of membership document in the other tribe or tribes with 
their application forms. A conditional relinquishment of membership 
document in the other tribe or tribes with their application forms. A 
conditional relinquishment will be accepted by the Superintendent only 
if it is executed by the person himself or herself unless the person is 
legally incompetent, in which case the legal guardian and only the legal 
guardian may execute the conditional relinquishment document. In the 
case of minors, only the parent or legal guardian may execute a 
conditional relinquishment document.
    (k)-(q) [Reserved]
    (r) Mdewakanton and Wahpakoota Tribe of Sioux Indians. (1) All 
lineal descendants of the Mdewakanton and Wahpakoota Tribe of Sioux 
Indians who were born on or prior to and were living on October 25, 
1972, whose names or the name of a lineal ancestor appears on any 
available records and rolls acceptable to the Secretary of the Interior 
and who are not members of the Flandreau Santee Sioux Tribe of South 
Dakota, the Santee Sioux Tribe of Nebraska, the Lower Sioux Indian 
Community at Morton, Minn., the Prairie Island Indian Community at 
Welch, Minn., or the Shakopee Mdewakanton Sioux Community of Minnesota 
shall be entitled to be enrolled under title I, section 101(b) of the 
act of October 25, 1972 (86 Stat. 1168), to share in the distribution of 
funds derived from a judgment awarded the Mississippi Sioux Indians.
    (2) Applications for enrollment must have been filed with the 
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main 
Street, Aberdeen, S. Dak. 57401, and must have been received no later 
than November 1, 1973. Applications received after that date will be 
denied for failure to file in time regardless of whether the applicant 
otherwise meets the requirements for enrollment.
    (3) Each application for enrollment with any of the tribes named in 
paragraph (r)(1) of this section which may be rejected by the tribes 
shall be reviewed by the Director to determine whether the applicant 
meets the requirements for enrollment as a descendant of the Mdewakanton 
and Wahpakoota Tribe of Sioux Indians under paragraph (r)(1) of this 
section. Each rejection notice issued by the tribes shall contain a 
statement to the effect that the application is being given such review.

[[Page 222]]

    (s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) All lineal 
descendants of the Sisseton and Wahpeton Mississippi Sioux Tribe who 
were born on or prior to and were living on October 25, 1972, whose 
names or the name of a lineal ancestor appears on any available records 
and rolls acceptable to the Secretary of the Interior and who are not 
members of the Devils Lake Sioux Tribe of North Dakota, the Sisseton and 
the Wahpeton Sioux Tribe of South Dakota, or the Assiniboine and Sioux 
Tribes of the Fort Peck Reservation shall be entitled to be enrolled 
under title II, section 201(b) of the act of October 25, 1972 (86 Stat. 
1168), to share in the distribution of certain funds derived from a 
judgment awarded the Mississippi Sioux Indians.
    (2) Applications for enrollment must have been filed with the 
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main 
Street, Aberdeen, S. Dak. 57401, and must have been received no later 
than November 1, 1973. Applications received after that date will be 
denied for failure to file in time regardless of whether the applicant 
otherwise meets the requirements for enrollment.
    (3) Each application for enrollment with any of the tribes named in 
paragraph (s)(1) of this section which may be rejected by the tribes 
shall be reviewed by the Director to determine whether the applicant 
meets the requirements for enrollment as a descendant of the Sisseton 
and Wahpeton Mississippi Sioux Tribe under paragraph (s)(1) of this 
section. Each rejection notice issued by the tribe shall contain a 
statement to the effect that the application is being given such review.
    (t)-(v) [Reserved]
    (w) Lower Skagit Tribe of Indians. (1) All persons of Lower Skagit 
ancestry born on or prior to and living on February 18, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Lower Skagit Tribe in Indian Claims Commission docket 294. 
Proof of Upper Skagit ancestry will not be acceptable as proof of Lower 
Skagit ancestry.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 88201, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (x) Kikiallus Tribe of Indians. (1) All persons of Kikiallus 
ancestry born on or prior to and living on February 18, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Kikiallus Tribe in Indian Claims Commission docket 263.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98021, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (y) Swinomish Tribe of Indians. (1) All persons of Swinomish 
ancestry born on or prior to and living on December 10, 1975, who are 
lineal descendants of a member of the tribe as it existed in 1859 based 
on the 1919 Roblin Roll and other records acceptable to the Assistant 
Secretary, shall be entitled to have their names placed on the roll, to 
be prepared and used as the basis to distribute the judgment funds 
awarded the Swinomish Tribe in Indian Claims Commission docket 233.

[[Page 223]]

    (2) Application for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98201, and must have been received by close 
of business on May 31, 1977. Applications received after that date will 
be denied for failure to file in time regardless of whether the 
applicant otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.
    (z) Samish Tribe of Indians. (1) All persons of Samish ancestry born 
on or prior to and living on December 10, 1975, who are lineal 
descendants of a member of the tribe as it existed in 1859 based on any 
records acceptable to the Secretary, shall be entitled to have their 
names placed on the roll to be prepared and used as the basis to 
distribute the judgment funds awarded the Samish Tribe in Indian Claims 
Commission docket 261.
    (2) Applications for enrollment must have been filed with the 
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby 
Avenue, Everett, Washington 98201, and must have been received by close 
of business on May 31, 1977. Applicants received after that date will be 
denied for failure to file in time regardless of whether the applicant 
otherwise meets the requirements for enrollment.
    (3) Payment of shares will be made in accordance with parts 87 and 
115 of this chapter.

[50 FR 46430, Nov. 8, 1985, as amended at 53 FR 11272, Apr. 6, 1988; 54 
FR 14193, Apr. 7, 1989; 55 FR 7494, Mar. 2, 1990; 55 FR 41519, Oct. 12, 
1990; 56 FR 10806, Mar. 14, 1991]



Sec. 61.5  Notices.

    (a) The Director or Superintendent shall give notice to all 
Directors of the Bureau of Indian Affairs and all Superintendents within 
the jurisdiction of the Director, of the preparation of the roll for 
public display in Bureau field offices. Reasonable efforts shall be made 
to place notices for public display in community buildings, tribal 
buildings, and Indian centers.
    (b) The Director or Superintendent shall, on the basis of available 
residence data, publish, and republish when advisable, notices of the 
preparation of the roll in appropriate locales utilizing media suitable 
to the circumstances.
    (c) The Director or Superintendent shall, when applicable, mail 
notices of the preparation of the roll to previous enrollees or tribal 
members at the last address of record or in the case of tribal members, 
the last address available.
    (d) Notices shall advise of the preparation of the roll and the 
relevant procedures to be followed including the qualifications for 
enrollment and the deadline for filing application forms to be eligible 
for enrollment. The notices shall also state how and where application 
forms may be obtained as well as the name, address, and telephone number 
of a person who may be contacted for further information.



Sec. 61.6  Application forms.

    (a) Application forms to be filed by or for applicants for 
enrollment will be furnished by the Director, Superintendent, or other 
designated persons, upon written or oral request. Each person furnishing 
application forms shall keep a record of the names of individuals to 
whom forms are given, as well as the control numbers of the forms and 
the date furnished. Instructions for completing and filing applications 
shall be furnished with each form. The form shall indicate prominently 
the deadline for filing application forms.
    (b) Among other information, each application form shall contain:
    (1) Certification as to whether application form is for a natural 
child or an adopted child of the parent through whom eligibility is 
claimed.
    (2) If the application form is filed by a sponsor, the name and 
address of sponsor and relationship to applicant.
    (3) A control number for the purpose of keeping a record of forms 
furnished interested individuals.
    (4) Certification that the information given on the application form 
is true to the best of the knowledge and belief of the person filing the 
application. Criminal penalties are provided by statute for knowingly 
filing false information in such applications (18 U.S.C. 1001).
    (c) Application forms may be filed by sponsors on behalf of other 
persons.

[[Page 224]]

    (d) Every applicant or sponsor shall furnish the applicant's mailing 
address on the application form. Thereafter, the applicant or sponsor 
shall promptly notify the Director or Superintendent of any change in 
address, giving appropriate identification of the application, otherwise 
the mailing address as stated on the form shall be acceptable as the 
address of record for all purposes under the regulations in this part 
61.



Sec. 61.7  Filing of application forms.

    (a) Application forms filed by mail must be postmarked no later than 
midnight on the deadline specified. Where there is no postmark date 
showing on the envelope or the postmark date is illegible, application 
forms mailed from within the United States, including Alaska and Hawaii, 
received more than 15 days and application forms mailed from outside of 
the United States received more than 30 days after the deadline 
specified in the office of the designated Director or Superintendent, 
will be denied for failure to file in time.
    (b) Application forms filed by personal delivery must be received in 
the office of the designated Director or Superintendent no later than 
close of business on the deadline specified.
    (c) If the deadline for filing application forms falls on a 
Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline 
will be the next working day thereafter.
    (d) The provisions of this section shall not apply in the 
preparation of the rolls under paragraphs (r), (s), (w), (x), (y) and 
(z) of Sec. 61.4.



Sec. 61.8  Verification forms.

    If the Director or Superintendent is preparing a roll of Indians by 
adding names of eligible persons to and deleting names of ineligible 
persons from a previously approved roll, and individuals whose names 
appear on the previously approved roll are not required to file 
applications for enrollment, a verification form, to be completed and 
returned, shall be mailed to each previous enrollee using the last 
address of record. The verification form will be used to ascertain the 
previous enrollee's current name and address and that the enrollee is 
living, or if deceased, the enrollee's date of death. Name and/or 
address changes will only be made if the verification form is signed by 
an adult enrollee, if living, or the parent or guardian having legal 
custody of a minor enrollee, or an authorized sponsor. The verification 
form may also be used by any sponsor to notify the Director or 
Superintendent of the date of death of a previous enrollee.



Sec. 61.9  Burden of proof.

    The burden of proof rests upon the applicant or tribal member to 
establish eligibility for enrollment. Documentary evidence such as birth 
certificates, death certificates, baptismal records, copies of probate 
findings, or affidavits, may be used to support claim of eligibility for 
enrollment. Records of the Bureau of Indian Affairs may be used to 
establish eligibility.



Sec. 61.10  Review of applications by tribal authorities.

    (a) If tribal review is applicable, the Director or Superintendent 
shall submit all applications to the Tribal Committee for review and 
recommendations or determinations; except that, in the cases of adopted 
persons where the Bureau of Indian Affairs has assured confidentiality 
to obtain the information necessary to determine the eligibility for 
enrollment of the individual or has the statutory obligation to maintain 
the confidentiality of the information, the confidential information may 
not be released to the Tribal Committee, but the Director or 
Superintendent shall certify as to the eligibility for enrollment of the 
individual to the Tribal Committee.
    (b) The Tribal Committee shall review all applications and make its 
recommendations or determinations in writing stating the reasons for 
acceptance or rejection for enrollment.
    (c) The Tribal Committee shall return the applications to the 
Director or Superintendent with its recommendations or determinations 
and any additional evidence used in determining eligibility for 
enrollment within 30 days of receipt of the applications by the Tribal 
Committee. The Director or Superintendent may grant the Tribal Committee 
additional time, upon request, for its review.

[[Page 225]]

    (d) Acceptance of an individual for enrollment by the Tribal 
Committee does not insure the individual's eligibility to share in the 
distribution of the judgment funds.



Sec. 61.11  Action by the Director or Superintendent.

    (a) The Director or Superintendent shall consider each application, 
all documentation, and when applicable, tribal recommendations or 
determinations.
    (b) The Director or Superintendent, when tribal recommendations or 
determinations are applicable, shall accept the recommendations or 
determinations of the Tribal Committee unless clearly erroneous.
    (1) If the Director or Superintendent does not accept the tribal 
recommendation or determination, the Tribal Committee shall be notified 
in writing, by certified mail, return receipt requested, or by personal 
delivery, of the action and the reasons therefor.
    (2) The Tribal Committee may appeal the decision of the Director or 
Superintendent not to accept the tribal recommendation or determination. 
Such appeal must be in writing and must be filed pursuant to part 62 of 
this chapter.
    (3) Unless otherwise specified by law or in a tribal governing 
document, the determination of the Director or Superintendent shall only 
affect the individual's eligibility to share in the distribution of 
judgment funds.
    (c) The Director or Superintendent, upon determining an individual's 
eligibility, shall notify the individual, parent or guardian having 
legal custody of a minor, or sponsor, as applicable, in writing of the 
decision. If an individual files applications on behalf of more than one 
person, one notice of eligibility or adverse action may be addressed to 
the person who filed the applications. However, the notice must list the 
name of each person involved. Where an individual is represented by a 
sponsor, notification of the sponsor of eligibility or adverse action 
shall be considered to be notification of the individual.
    (1) If the Director or Superintendent determines that the individual 
is eligible, the name of the individual shall be placed on the roll.
    (2) If the Director or Superintendent determines that the individual 
is not eligible, he/she shall notify the individual's parent or guardian 
having legal custody of a minor, or sponsor, as applicable, in writing 
by certified mail, to be received by the addressee only, return receipt 
requested, and shall explain fully the reasons for the adverse action 
and the right to appeal to the Secretary. If correspondence is sent out 
of the United States, registered mail will be used. If a certified or 
registered notice is returned as ``Unclaimed'' the Director or 
Superintendent shall remail the notice by regular mail together with an 
acknowledgment of receipt form to be completed by the addressee and 
returned to the Director or Superintendent. If the acknowledgment of 
receipt is not returned, computation of the appeal period shall begin on 
the date the notice was remailed. Certified or registered notices 
returned for any reason other than ``Unclaimed'' need not be remailed.
    (d) Except as provided in paragraph (c)(2) of this section, a notice 
of adverse action is considered to have been made and computation of the 
appeal period shall begin on the earliest of the following dates:
    (1) Of delivery indicated on the return receipt;
    (2) Of acknowledgment of receipt;
    (3) Of personal delivery; or
    (4) Of the return by the post office of an undelivered certified or 
registered letter.
    (e) In all cases where an applicant is represented by an attorney, 
the attorney shall be recognized as fully controlling the application on 
behalf of the applicant and service on the attorney of any document 
relating to the application shall be considered to be service on the 
applicant. Where an applicant is represented by more than one attorney, 
service upon one of the attorneys shall be sufficient.
    (f) To avoid hardship or gross injustice, the Director or 
Superintendent may waive technical deficiencies in applications or other 
submissions. Failure to file by the deadline does not constitute a 
technical deficiency.

[[Page 226]]



Sec. 61.12  Appeals.

    Appeals from or on behalf of tribal members or applicants who have 
been denied enrollment must be in writing and must be filed pursuant to 
part 62 of this chapter. When the appeal is on behalf of more than one 
person, the name of each person must be listed in the appeal. A copy of 
part 62 of this chapter shall be furnished with each notice of adverse 
action.



Sec. 61.13  Decision of the Assistant Secretary on appeals.

    The decision of the Assistant Secretary on an appeal shall be final 
and conclusive and written notice of the decision shall be given the 
individual, parent or guardian having legal custody of a minor, or 
sponsor, as applicable. The name of any person whose appeal has been 
sustained will be added to the roll. Unless otherwise specified by law 
or in a tribal governing document, the determination of the Assistant 
Secretary shall only affect the individual's eligibility to share in the 
distribution of the judgment funds.



Sec. 61.14  Preparation, certification and approval of the roll.

    (a) The staff officer shall prepare a minimum of five copies of the 
roll of those persons determined to be eligible for enrollment. The roll 
shall contain for each person a roll number, name, address, sex, date of 
birth, date of death, when applicable, and when required by law, degree 
of Indian blood, and, in the remarks column, when applicable, the basic 
roll number, date of the basic roll, name and relationship of ancestor 
on the basic roll through whom eligibility was established.
    (b) A certificate shall be attached to the roll by the staff officer 
or Superintendent certifying that to the best of his/her knowledge and 
belief the roll contains only the names of those persons who were 
determined to meet the qualifications for enrollment.
    (c) The Director shall approve the roll.



Sec. 61.15  Special instructions.

    To facilitate the work of the Director or Superintendent, the 
Assistant Secretary may issue special instructions not inconsistent with 
the regulations in this part 61.



PART 62--ENROLLMENT APPEALS--Table of Contents




Sec.
62.1  Definitions.
62.2  Purpose.
62.3  Information collection.
62.4  Who may appeal.
62.5  An appeal.
62.6  Filing of an appeal.
62.7  Burden of proof.
62.8  Advising the tribal committee.
62.9  Action by the Superintendent.
62.10  Action by the Director.
62.11  Action by the Assistant Secretary.
62.12  Special instructions.

    Authority: 5 U.S.C. 301, 25 U.S.C. 2 and 9.

    Source: 52 FR 30160, Aug. 13, 1987, unless otherwise noted.



Sec. 62.1  Definitions.

    As used in these regulations:
    Assistant Secretary means the Assistant Secretary of the Interior 
for Indian Affairs or an authorized representative acting under 
delegated authority.
    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative acting under delegated authority.
    Department means the Department of the Interior.
    Director means the Area Director of the Bureau of Indian Affairs 
area office which has administrative jurisdiction over the local field 
office responsible for administering the affairs of a tribe, band, or 
group of Indians or an authorized representative acting under delegated 
authority.
    Secretary means the Secretary of the Interior or an authorized 
representative acting under delegate authority.
    Sponsor means any authorized person, including an attorney, who 
files an appeal on behalf of another person.
    Superintendent means the official or other designated representative 
of the Bureau of Indian Affairs in charge of the field office which has 
immediate administrative responsibility with respect to the affairs of a 
tribe, band, or group of Indians or an authorized representative acting 
under delegated authority.

[[Page 227]]

    Tribal committee means the body of a federally recognized tribal 
entity vested with final authority to act on enrollment matters.
    Tribal governing document means the written organizational statement 
governing a tribe, band or group of Indians and/or any valid document, 
enrollment ordinance or resolution enacted thereunder.
    Tribal member means a person who meets the requirements for 
enrollment in a tribal entity and has been duly enrolled.



Sec. 62.2  Purpose.

    (a) The regulations in this part are to provide procedures for the 
filing and processing of appeals from adverse enrollment actions by 
Bureau officials.
    (b) The regulations in this part are not applicable and do not 
provide procedures for the filing of appeals from adverse enrollment 
actions by tribal committees, unless:
    (1) The adverse enrollment action is incident to the preparation of 
a tribal roll subject to Secretarial approval; or
    (2) An appeal to the Secretary is provided for in the tribal 
governing document.



Sec. 62.3  Information collection.

    In accordance with the Office of Management and Budget regulations 
contained in 5 CFR 1320.3, approval of the information collection 
requirements contained in this part is not required.



Sec. 62.4  Who may appeal.

    (a) A person who is the subject of an adverse enrollment action may 
file or have filed on his/her behalf an appeal. An adverse enrollment 
action is:
    (1) The rejection of an application for enrollment by a Bureau 
official incident to the preparation of a roll for Secretarial approval;
    (2) The removal of a name from a tribal roll by a Bureau official 
incident to review of the roll for Secretarial approval;
    (3) The rejection of an application for enrollment or the 
disenrollment of a tribal member by a tribal committee when the tribal 
governing document provides for an appeal of the action to the 
Secretary;
    (4) The change in degree of Indian blood by a tribal committee which 
affects a tribal member when the tribal governing document provides for 
an appeal of the action to the Secretary;
    (5) The change in degree of Indian blood by a Bureau official which 
affects an individual; and
    (6) The certification of degree of Indian blood by a Bureau official 
which affects an individual.
    (b) A tribal committee may file an appeal as provided for in 
Sec. 61.11 of this chapter.
    (c) A sponsor may file an appeal on behalf of another person who is 
subject to an adverse enrollment action.



Sec. 62.5  An appeal.

    (a) An appeal must be in writing and must be filed with the Bureau 
official designated in the notification of an adverse enrollment action, 
or in the absence of a designated official, with the Bureau official who 
issued the notification of an adverse enrollment action; or when the 
notification of an adverse action is made by a tribal committee with the 
Superintendent.
    (b) An appeal may be on behalf of more than one person. However, the 
name of each appellant must be listed in the appeal.
    (c) An appeal filed by mail or filed by personal delivery must be 
received in the office of the designated Bureau official or of the 
Bureau official who issued the notification of an adverse enrollment 
action by close of business within 30 days of the notification of an 
adverse enrollment action, except when the appeal is mailed from outside 
the United States, in which case the appeal must be received by the 
close of business within 60 days of the notification of an adverse 
enrollment action.
    (d) The appellant or sponsor shall furnish the appellant's mailing 
address in the appeal. Thereafter, the appellant or sponsor shall 
promptly notify the Bureau official with whom the appeal was filed of 
any change of address, otherwise the address furnished in the appeal 
shall be the address of record.
    (e) An appellant or sponsor may request additional time to submit 
supporting evidence. A period considered reasonable for such submissions 
may be granted by the Bureau official with

[[Page 228]]

whom the appeal is filed. However, no additional time will be granted 
for the filing of the appeal.
    (f) In all cases where an appellant is represented by a sponsor, the 
sponsor shall be recognized as fully controlling the appeal on behalf of 
the appellant. Service of any document relating to the appeal shall be 
on the sponsor and shall be considered to be service on the appellant. 
Where an appellant is represented by more than one sponsor, service upon 
one of the sponsors shall be sufficient.



Sec. 62.6  Filing of an appeal.

    (a) Except as provided in paragraph (b) of this section, a 
notification of an adverse enrollment action will be mailed to the 
address of record or the last available address and will be considered 
to have been made and computation of the appeal period shall begin on:
    (1) The date of delivery indicated on the return receipt when notice 
of the adverse enrollment action has been sent by certified mail, return 
receipt requested; or
    (2) Ten (10) days after the date of the decision letter to the 
individual when notice of the adverse enrollment action has not been 
sent by certified mail return receipt requested and the letter has not 
been returned by the post office; or
    (3) The date the letter is returned by the post office as 
undelivered whether the notice of the adverse enrollment action has been 
sent by certified mail return receipt requested or by regular mail.
    (b) When notification of an adverse enrollment action is under the 
regulations contained in part 61 of this chapter, computation of the 
appeal period shall be in accordance with Sec. 61.11.
    (c) In computing the 30 or 60 day appeal period, the count begins 
with the day following the notification of an adverse enrollment action 
and continues for 30 or 60 calendar days. If the 30th or 60th day falls 
on a Saturday, Sunday, legal holiday, or other nonbusiness day, the 
appeal period will end on the first working day thereafter.



Sec. 62.7  Burden of proof.

    (a) The burden of proof is on the appellant or sponsor. The appeal 
should include any supporting evidence not previously furnished and may 
include a copy or reference to any Bureau or tribal records having a 
direct bearing on the action.
    (b) Criminal penalties are provided by statute for knowingly filing 
false or fraudulent information to an agency of the U.S. government (18 
U.S.C. 1001).



Sec. 62.8  Advising the tribal committee.

    Whenever applicable, the Superintendent or Director shall notify the 
tribal committee of the receipt of the appeal and shall give the tribal 
committee the opportunity to examine the appeal and to present such 
evidence as it may consider pertinent to the action being appealed. The 
tribal committee shall have not to exceed 30 days from receipt of 
notification of the appeal in which to present in writing such 
statements as if may deem pertinent, supported by any tribal records 
which have a bearing on the case. The Director or Superintendent may 
grant the tribal committee additional time, upon request, for its 
review.



Sec. 62.9  Action by the Superintendent.

    When an appeal is from an adverse enrollment action taken by a 
Superintendent or tribal committee, the Superintendent shall acknowledge 
in writing receipt of the appeal and shall forward the appeal to the 
Director together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations on the appeal.



Sec. 62.10  Action by the Director.

    (a) Except as provided in paragraph (c) of this section, when an 
appeal is from an adverse enrollment action taken by a Superintendent or 
tribal committee, the Director will consider the record as presented 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision. The Director shall make a decision on the

[[Page 229]]

appeal which shall be final for the Department and which shall so state 
in the decision. The appellant or sponsor will be notified in writing of 
the decision. Provided that, the Director may waive his/her authority to 
make a final decision and forward the appeal to the Assistant Secretary 
for final action.
    (b) When an appeal is from an adverse enrollment action taken by a 
Director, the Director shall acknowledge in writing receipt of the 
appeal and shall forward the appeal to the Assistant Secretary for final 
action together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations.
    (c) The Director shall forward the appeal to the Assistant Secretary 
for final action together with any relevant information or records; the 
recommendations of the tribal committee, when applicable; and his/her 
recommendations when the adverse enrollment action which is being 
appealed is either:
    (1) The change in degree of Indian blood by a tribal committee which 
affects a tribal member and the tribal governing document provides for 
an appeal of the action to the Secretary; or
    (2) The change in degree of Indian blood by a Bureau official which 
affects an individual.



Sec. 62.11  Action by the Assistant Secretary.

    The Assistant Secretary will consider the record as presented, 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision. The Assistant Secretary shall make a 
decision on the appeal which shall be final for the Department and which 
shall so state in the decision. The appellant or sponsor will be 
notified in writing of the decision.



Sec. 62.12  Special instructions.

    To facilitate the work of the Director, the Assistant Secretary may 
issue special instructions not inconsistent with the regulations in this 
part 62.



PART 63--INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION--Table of Contents




               Subpart A--Purpose, Policy, and Definitions

Sec.
63.1  Purpose.
63.2  Policy.
63.3  Definitions.
63.4  Information collection.
63.5-63.9  [Reserved]

Subpart B--Minimum Standards of Character and Suitability for Employment

63.10  Purpose.
63.11  What is a determination of suitability for employment and 
          efficiency of service?
63.12  What are minimum standards of character?
63.13  What does the Indian Child Protection and Family Violence 
          Prevention Act require of the Bureau of Indian Affairs and 
          Indian tribes or tribal organizations receiving funds under 
          the Indian Self-Determination and Education Assistance Act or 
          the Tribally Controlled Schools Act?
63.14  What positions require a background investigation and 
          determination of suitability for employment or retention?
63.15  What questions should an employer ask?
63.16  Who conducts the background investigation and prepares the 
          determination of suitability for employment?
63.17  How does an employer determine suitability for employment and 
          efficiency of service?
63.18  Are the requirements for Bureau of Indian Affairs adjudication 
          different from the requirements for Indian tribes and tribal 
          organizations?
63.19  When should an employer deny employment or dismiss an employee?
63.20  What should an employer do if an individual has been charged with 
          an offense but the charge is pending or no disposition has 
          been made by a court?
63.21  Are there other factors that may disqualify an applicant, 
          volunteer or employee from placement in a position which 
          involves regular contact with or control over Indian children?
63.22  Can an employer certify an individual with a prior conviction or 
          substantiated misconduct as suitable for employment?
63.23  What rights does an applicant, volunteer or employee have during 
          this process?
63.24  What protections must employers provide to applicants, volunteers 
          and employees?
63.25-63.29  [Reserved]

[[Page 230]]

   Subpart C--Indian Child Protection and Family Violence Prevention 
                                 Program

63.30  What is the purpose of the Indian child protection and family 
          violence prevention program?
63.31  Can both the Bureau of Indian Affairs and tribes operate Indian 
          child protection and family violence prevention programs?
63.32  Under what authority are Indian child protection and family 
          violence prevention program funds awarded?
63.33  What must an application for Indian child protection and family 
          violence prevention program funds include?
63.34  How are Indian child protection and family violence prevention 
          program funds distributed?
63.35  How may Indian child protection and family violence prevention 
          program funds be used?
63.36  What are the special requirements for Indian child protection and 
          family violence prevention programs?
63.37-63.50  [Reserved]

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.; 42 
U.S.C. 13041.

    Source: 61 FR 32274, June 21, 1996, unless otherwise noted.



               Subpart A--Purpose, Policy, and Definitions



Sec. 63.1  Purpose.

    The purpose of these regulations is to prescribe minimum standards 
of character and suitability for employment for individuals whose duties 
and responsibilities allow them regular contact with or control over 
Indian children, and to establish the method for distribution of funds 
to support tribally operated programs to protect Indian children and 
reduce the incidents of family violence in Indian country as authorized 
by the Indian Child Protection and Family Violence Prevention Act of 
1990, Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201 3211.



Sec. 63.2  Policy.

    In enacting the Indian Child Protection and Family Violence 
Prevention Act, the Congress recognized there is no resource more vital 
to the continued existence and integrity of Indian tribes than their 
children and that the United States has a direct interest, as trustee, 
in protecting Indian children who are members of, or are eligible for 
membership in, an Indian tribe. The minimum standards of character and 
suitability of employment for individuals ensure that Indian children 
are protected, and the Indian child protection and family violence 
prevention programs will emphasize the unique values of Indian culture 
and community involvement in the prevention and treatment of child 
abuse, child neglect and family violence.



Sec. 63.3  Definitions.

    Bureau means the Bureau of Indian Affairs of the Department of the 
Interior;
    Child means an individual who is not married, and has not attained 
18 years of age.
    Child abuse includes but is not limited to any case in which a child 
is dead, or exhibits evidence of skin bruising, bleeding, malnutrition, 
failure to thrive, burns, fracture of any bone, subdural hematoma, or 
soft tissue swelling, and this condition is not justifiably explained or 
may not be the product of an accidental occurrence; and any case in 
which a child is subjected to sexual assault, sexual molestation, sexual 
exploitation, sexual contact, or prostitution.
    Child neglect includes but is not limited to, negligent treatment or 
maltreatment of a child by a person, including a person responsible for 
the child's welfare, under circumstances which indicate that the child's 
health or welfare is harmed or threatened.
    Crimes against persons are defined by local law. Adjudicating 
officers must contact local law enforcement agencies to determine if the 
crime for which an applicant or employee was found guilty (or entered a 
plea of nolo contendere or guilty) is defined as a crime against 
persons.
    Family violence means any act, or threatened act, of violence, 
including any forceful detention of an individual, which results, or 
threatens to result, in physical or mental injury, and is committed by 
an individual against another individual to whom such person is, or was, 
related by blood or marriage or otherwise legally related, or with whom 
such person is, or was, residing, or with whom such person has, or had,

[[Page 231]]

intimate or continuous social contact and household access.
    Indian means any individual who is a member of an Indian tribe.
    Indian child means any unmarried person who is under age eighteen 
and is either a member of an Indian tribe or eligible for membership in 
an Indian tribe and is the biological child of a member of an Indian 
tribe.
    Indian country means:
    (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through the 
reservation;
    (2) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof; and,
    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same. Unless 
otherwise indicated, the term ``Indian country'' is used instead of 
``Indian reservation'' for consistency.
    Indian reservation means any Indian reservation, public domain 
Indian allotment, former Indian reservation in Oklahoma, or lands held 
by incorporated Native groups, regional corporations, or village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act (43 U.S.C. 1601 et seq.).
    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    Inter-tribal consortium means a partnership between an Indian tribe 
or tribal organization of an Indian tribe, and one or more Indian tribes 
or tribal organizations of one or more Indian tribes.
    Local child protective services agency is an agency of the Federal 
Government, state, or Indian tribe that has the primary responsibility 
for child protection on any Indian reservation, or within any community 
in Indian country.
    Local law enforcement agency is that Federal, tribal, or state law 
enforcement agency that has primary responsibility for the investigation 
of an instance of alleged child abuse within the involved Indian 
jurisdiction.
    Must is used in place of shall and indicates a mandatory or 
imperative act or requirement.
    Person responsible for a child's welfare is any person who has legal 
or other recognized duty for the care and safety of a child, and may 
include any employee or volunteer of a children's residential facility, 
and any person providing out-of-home care, education, or services to 
children.
    Related assistance means the counseling and self-help services for 
abusers, victims, and dependents in family violence situations; 
referrals for appropriate health-care services (including alcohol and 
drug abuse treatment); and may include food, clothing, child care, 
transportation, and emergency services for victims of family violence 
and their dependents.
    Secretary means the Secretary of the Interior.
    Service means the Indian Health Service of the Department of Health 
and Human Services.
    Shelter means the temporary refuge and related assistance in 
compliance with applicable Federal and tribal laws and regulations 
governing the provision, on a regular basis, of shelter, safe homes, 
meals, and related assistance to victims of family violence or their 
dependents.
    Tribal organization means the recognized governing body of any 
Indian tribe; any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities: Provided, That 
in any case where a contract is let, a grant is awarded, or funding 
agreement is made to an organization to perform services benefitting 
more than one Indian tribe, the approval of

[[Page 232]]

each such Indian tribe must be a prerequisite to the letting or making 
of such contract, grant, or funding agreement.



Sec. 63.4  Information collection.

    The information collection requirement contained in Sec. 63.15, 
Sec. 63.33 and Sec. 63.34 will be approved by the Office of Management 
and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), 
and assigned clearance number __________.
Secs. 63.5-63.9  [Reserved]



Subpart B--Minimum Standards of Character and Suitability for Employment



Sec. 63.10  Purpose.

    The purpose of this part is to establish:
    (a) Procedures for determining suitability for employment and 
efficiency of service as mandated by the Indian Child Protection and 
Family Violence Prevention Act; and
    (b) Minimum standards of character to ensure that individuals having 
regular contact with or control over Indian children have not been 
convicted of certain types of crimes or acted in a manner that placed 
others at risk or raised questions about their trustworthiness.



Sec. 63.11  What is a determination of suitability for employment and efficiency of service?

    (a) Determinations of suitability measure the fitness or eligibility 
of an applicant, volunteer, or employee for a particular position. 
Suitability for employment does not evaluate an applicant's education, 
skills, knowledge, experience, etc. Rather, it requires that the 
employer investigate the background of each applicant, volunteer, and 
employee to:
    (1) Determine the degree of risk the applicant, volunteer, or 
employee brings to the position; and
    (2) Certify that the applicant's, volunteer's, or employee's past 
conduct would not interfere with his/her performance of duties, nor 
would it create an immediate or long-term risk for any Indian child.
    (b) Efficiency of service is the employer's verification that the 
applicant or employee is able to perform the duties and responsibilities 
of the position, and his/her presence on the job will not inhibit other 
employees or the agency from performing their functions.



Sec. 63.12   What are minimum standards of character?

    Minimum standards of character are established by an employer and 
refer to identifiable character traits and past conduct. An employer may 
use character traits and past conduct to determine whether an applicant, 
volunteer, or employee can effectively perform the duties of a 
particular position without risk of harm to others. Minimum standards of 
character ensure that no applicant, volunteer, or employee will be 
placed in a position with regular contact with or control over Indian 
children if he/she has been found guilty of or entered a plea of nolo 
contendere or guilty to any offense under Federal, state, or tribal law 
involving crimes of violence, sexual assault, sexual molestation, sexual 
exploitation, sexual contact or prostitution, or crimes against persons.




Sec. 63.13   What does the Indian Child Protection and Family Violence Prevention Act require of the Bureau of Indian Affairs and Indian tribes or tribal 
          organizations receiving funds under the Indian Self-
          Determination and Education Assistance Act or the Tribally 
          Controlled Schools Act?

    (a) The Bureau of Indian Affairs must compile a list of all 
authorized positions which involve regular contact with or control over 
Indian children; investigate the character of each individual who is 
employed, or is being considered for employment; and, prescribe minimum 
standards of character which each individual must meet to be appointed 
to such positions.
    (b) All Indian tribes or tribal organizations receiving funds under 
the authority of the Indian Self-Determination and Education Assistance 
Act or the Tribally Controlled Schools Act of 1988 must conduct a 
background investigation for individuals whose duties and 
responsibilities would allow them regular contact with or control over 
Indian

[[Page 233]]

children, and employ only individuals who meet standards of character 
that are no less stringent than those prescribed for the Bureau of 
Indian Affairs.



Sec. 63.14   What positions require a background investigation and determination of suitability for employment or retention?

    All positions that allow an applicant, employee, or volunteer 
regular contact with or control over Indian children are subject to a 
background investigation and determination of suitability for 
employment.



Sec. 63.15   What questions should an employer ask?

    Employment applications must:
    (a) Ask whether the applicant, volunteer, or employee has been 
arrested or convicted of a crime involving a child, violence, sexual 
assault, sexual molestation, sexual exploitation, sexual contact or 
prostitution, or crimes against persons;
    (b) Ask the disposition of the arrest or charge;
    (c) Require that an applicant, volunteer or employee sign, under 
penalty of perjury, a statement verifying the truth of all information 
provided in the employment application; and
    (d) Inform the applicant, volunteer or employee that a criminal 
history record check is a condition of employment and require the 
applicant, volunteer or employee to consent, in writing, to a record 
check.



Sec. 63.16   Who conducts the background investigation and prepares the determination of suitability for employment?

    (a) The Bureau of Indian Affairs must use the United States Office 
of Personnel Management (OPM) to conduct background investigations for 
Federal employees. The BIA must designate qualified security personnel 
to adjudicate the results of background investigations.
    (b) Indian tribes and tribal organizations may conduct their own 
background investigations, contract with private firms, or request the 
OPM to conduct an investigation. The investigation should cover the past 
five years of the individual's employment, education, etc.



Sec. 63.17  How does an employer determine suitability for employment and efficiency of service?

    (a) Adjudication is the process employers use to determine 
suitability for employment and efficiency of service. The adjudication 
process protects the interests of the employer and the rights of 
applicants and employees. Adjudication requires uniform evaluation to 
ensure fair and consistent judgment.
    (b) Each case is judged on its own merits. All available 
information, both favorable and unfavorable, must be considered and 
assessed in terms of accuracy, completeness, relevance, seriousness, 
overall significance, and how similar cases have been handled in the 
past.
    (c) An adjudicating official conducts the adjudication. Each Federal 
agency, Indian tribe, or tribal organization must appoint an 
adjudicating official, who must first have been the subject of a 
favorable background investigation.
    (1) Indian tribes and tribal organizations must ensure that persons 
charged with the responsibility for adjudicating employee background 
investigations are well-qualified and trained.
    (2) Indian tribes and tribal organizations should also ensure that 
individuals who are not trained to adjudicate these types of 
investigations are supervised by someone who is experienced and receive 
the training necessary to perform the task.
    (d) Each adjudicating official must be thoroughly familiar with all 
laws, regulations, and criteria involved in making a determination for 
suitability.
    (e) The adjudicating official must review the background 
investigation to determine the character, reputation, and 
trustworthiness of the individual. At a minimum, the adjudicating 
official must:
    (1) Review each security investigation form and employment 
application and compare the information provided;
    (2) Review the results of written record searches requested from 
local law enforcement agencies, former employers, former supervisors, 
employment references, and schools; and

[[Page 234]]

    (3) Review the results of the fingerprint charts maintained by the 
Federal Bureau of Investigation or other law enforcement information 
maintained by other agencies.
    (f) Relevancy is a key objective in evaluating investigative data. 
The adjudicating official must consider prior conduct in light of:
    (1) The nature and seriousness of the conduct in question;
    (2) The recency and circumstances surrounding the conduct in 
question;
    (3) The age of the individual at the time of the incident;
    (4) Societal conditions that may have contributed to the nature of 
the conduct;
    (5) The probability that the individual will continue the type of 
behavior in question; and,
    (6) The individual's commitment to rehabilitation and a change in 
the behavior in question.



Sec. 63.18   Are the requirements for Bureau of Indian Affairs adjudication different from the requirements for Indian tribes and tribal organizations?

    Yes.
    (a) In addition to the minimum requirements for background 
investigations found in Sec. 63.12, Bureau of Indian Affairs' 
adjudicating officials must review the OPM National Agency Check and 
Inquiries which includes a search of the OPM Security/Suitability 
Investigations Index (SII) and the Defense Clearance and Investigations 
Index (DCII), and any additional standards which may be established by 
the BIA.
    (b) All Bureau of Indian Affairs employees who have regular contact 
with or control over Indian children must be reinvestigated every five 
years during their employment in that or any other position which allows 
regular contact with or control over Indian children.
    (c) Indian tribes and tribal organizations may adopt these 
additional requirements but are not mandated to do so by law.



Sec. 63.19   When should an employer deny employment or dismiss an employee?

    (a) An employer may deny employment or dismiss an employee when an 
individual has been found guilty of or entered a plea of guilty or nolo 
contendere to any Federal, state or tribal offense involving a crime of 
violence, sexual assault, sexual molestation, child exploitation, sexual 
contact, prostitution, or crimes against persons.
    (b) An employer may deny employment or dismiss an employee when an 
individual has been convicted of an offense involving a child victim, a 
sex crime, or a drug felony.



Sec. 63.20   What should an employer do if an individual has been charged with an offense but the charge is pending or no disposition has been made by a court?

    (a) The employer may deny the applicant employment until the charge 
has been resolved.
    (b) The employer may deny the employee any on-the-job contact with 
children until the charge is resolved.
    (c) The employer may detail or reassign the employee to other duties 
that do not involve contact with children.
    (d) The employer may place the employee on administrative leave 
until the court has disposed of the charge.



Sec. 63.21   Are there other factors that may disqualify an applicant, volunteer or employee from placement in a position which involves regular contact with or 
          control over Indian children?

    Yes.
    (a) An applicant, volunteer, or employee may be disqualified from 
consideration or continuing employment if it is found that:
    (1) The individual's misconduct or negligence interfered with or 
affected a current or prior employer's performance of duties and 
responsibilities.
    (2) The individual's criminal or dishonest conduct affected the 
individual's performance or the performance of others.
    (3) The individual made an intentional false statement, deception or 
fraud on an examination or in obtaining employment.
    (4) The individual has refused to furnish testimony or cooperate 
with an investigation.
    (5) The individual's alcohol or substance abuse is of a nature and 
duration that suggests the individual could not perform the duties of 
the position

[[Page 235]]

or would directly threaten the property or safety of others.
    (6) The individual has illegally used narcotics, drugs, or other 
controlled substances without evidence of substantial rehabilitation.
    (7) The individual knowingly and willfully engaged in an act or 
activities designed to disrupt government programs.
    (b) An individual must be disqualified for Federal employment if any 
statutory or regulatory provision would prevent his/her lawful 
employment.



Sec. 63.22   Can an employer certify an individual with a prior conviction or substantiated misconduct as suitable for employment?

    (a) The Bureau of Indian Affairs must use Federal adjudicative 
standards which allow the BIA to certify that an individual is suitable 
for employment in a position that does not involve regular contact with 
or control over Indian children. The adjudicating officer must determine 
that the individual's prior conduct will not interfere with the 
performance of duties and will not create a potential for risk to the 
safety and well-being of Indian children.
    (b) Indian tribes and tribal organizations must identify those 
positions which permit contact with or control over Indian children and 
establish standards to determine suitability for employment. Those 
standards should then be used to determine whether an individual is 
suitable for employment in a position that permits contact with or 
control over Indian children. If not, the individual may only be placed 
in a position that does not permit contact with or control over Indian 
children.



Sec. 63.23   What rights does an applicant, volunteer or employee have during this process?

    (a) The applicant, volunteer, or employee must be provided an 
opportunity to explain, deny, or refute unfavorable and incorrect 
information gathered in an investigation, before the adjudication is 
final. The applicant, volunteer, or employee should receive a written 
summary of all derogatory information and be informed of the process for 
explaining, denying, or refuting unfavorable information.
    (b) Employers and adjudicating officials must not release the actual 
background investigative report to an applicant, volunteer, or employee. 
However, they may issue a written summary of the derogatory information.
    (c) The applicant, volunteer, or employee who is the subject of a 
background investigation may obtain a copy of the reports from the 
originating (Federal, state, or other tribal) agency and challenge the 
accuracy and completeness of any information maintained by that agency.
    (d) The results of an investigation cannot be used for any purpose 
other than to determine suitability for employment in a position that 
involves regular contact with or control over Indian children.
    (e) Investigative reports contain information of a highly personal 
nature and should be maintained confidentially and secured in locked 
files. Investigative reports should be seen only by those officials who 
in performing their official duties need to know the information 
contained in the report.



Sec. 63.24   What protections must employers provide to applicants, volunteers and employees?

    (a) Indian tribes and tribal organizations must comply with the 
privacy requirements of any Federal, state, or other tribal agency 
providing background investigations. Indian tribes and tribal 
organizations must establish and comply with personnel policies that 
safeguard information derived from background investigations.
    (b) The Bureau of Indian Affairs must comply with all policies, 
procedures, criteria, and guidance contained in the Bureau of Indian 
Affairs Manual or other appropriate guidelines.
    (c) Federal agencies exercising authority under this part by 
delegation from OPM must comply with OPM policies, procedures, criteria, 
and guidance.

[[Page 236]]

Secs. 63.25-63.29  [Reserved]



   Subpart C--Indian Child Protection and Family Violence Prevention 
                                 Program



Sec. 63.30   What is the purpose of the Indian child protection and family violence prevention program?

    The purpose of this program is to develop tribally-operated programs 
to protect Indian children and reduce the incidence of family violence 
on Indian reservations.



Sec. 63.31   Can both the Bureau of Indian Affairs and tribes operate Indian child protection and family violence prevention programs?

    Yes. However, tribes are encouraged to develop and operate programs 
to protect Indian children and reduce the incidence of family violence 
in Indian country.



Sec. 63.32   Under what authority are Indian child protection and family violence prevention program funds awarded?

    The Secretary is authorized to enter into contracts with Indian 
tribes, tribal organizations, or tribal consortia pursuant to the Indian 
Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 
450 et seq., for the development and establishment of Indian child 
protection and family violence prevention programs. This includes 
compacting with tribes under the Self-Governance program procedures.



Sec. 63.33   What must an application for Indian child protection and family violence prevention program funds include?

    In addition to the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450 et seq., contracting 
requirements, each application must provide the following information:
    (a) The name and address of the agency or official to be responsible 
for the investigation of reported cases of child abuse and child 
neglect, the treatment and prevention of incidents of family violence, 
and the provision of immediate shelter and related assistance for 
victims of family violence and their dependents;
    (b) Projected service population of the program;
    (c) Projected service area of the program; and
    (d) Projected number of cases per month.



Sec. 63.34   How are Indian child protection and family violence prevention program funds distributed?

    (a) Funds will be distributed, subject to the availability of 
appropriations, and:
    (1) In any fiscal year that the appropriation exceeds 50 percent of 
the level of funding authorized for this purpose by the Act, 49 percent 
must be distributed equally to all tribes and tribal organizations and 
49 percent must be distributed on a per capita basis according to the 
population of children residing in the service area. Two percent of the 
annual appropriation will be set aside for distribution to tribes 
demonstrating special circumstances.
    (2) In any fiscal year that the appropriation does not exceed 50 
percent of the level of funding authorized for this purpose by the Act, 
funding must be distributed in equal amounts to all tribes. Two percent 
of the annual appropriation will be set aside for distribution to tribes 
demonstrating special circumstances.
    (3) Special circumstances include but are not limited to a high 
incidence of child sexual abuse, a high incidence of violent crimes, a 
high incidence of violent crimes against women, or the existence of a 
significant victim population within the community.
    (i) This 2 percent will be subject to discretionary distribution by 
the Assistant Secretary--Indian Affairs, or his or her designee. Tribes 
may request these funds through their respective area offices. All 
requests must demonstrate a high incidence of child sexual abuse, a high 
incidence of violent crimes, a high incidence of violent crimes against 
women, or the existence of a significant victim population within the 
community.
    (ii) Special circumstances funds will remain available through the 
third quarter of each fiscal year. In the

[[Page 237]]

fourth quarter, unallocated special circumstances funds will be 
redistributed as set forth in paragraphs (a)(1) and (a)(2) of this 
section, except that there will be no additional set aside for special 
circumstances.
    (b) Any tribe not wishing to receive Indian child protection and 
family violence prevention funds must inform its respective area office 
in writing within 90 days after receiving notice of the allocation from 
the area office. Each area office may reallocate unused Indian child 
protection and family violence prevention program funds as provided in 
this section.
    (c) Funds may be used as matching shares for other federally funded 
programs which contribute to and promote prevention of child abuse, 
child neglect, and family violence on Indian reservations, but may not 
be used to supplant funds available for the same general purposes.
    (d) Any income resulting from the operation of Indian child 
protection and family violence prevention programs may be retained and 
used to promote prevention of child abuse, child neglect, and family 
violence on Indian reservations.



Sec. 63.35   How may Indian child protection and family violence prevention program funds be used?

    Indian child protection and family violence prevention program funds 
may be used to:
    (a) Establish child protective services programs.
    (b) Establish family violence prevention and treatment programs.
    (c) Develop and implement multidisciplinary child abuse 
investigation and prosecution programs.
    (d) Provide immediate shelter and related assistance to victims of 
family violence and their dependents, including construction or 
renovation of facilities to establish family violence shelters.
    (e) Purchase equipment to assist in the investigation of cases of 
child abuse and child neglect.
    (f) Develop protocols and intergovernmental or interagency 
agreements among tribal, Federal, state law enforcement, courts of 
competent jurisdiction, and related agencies to ensure investigations of 
child abuse cases to minimize the trauma to the child victim, to define 
and specify each party's responsibilities, and to provide for the 
coordination of services to victims and their families.
    (g) Develop child protection codes and regulations that provide for 
the care and protection of children and families on Indian reservations.
    (h) Establish community education programs for tribal members and 
school children on issues of family violence, child abuse, and child 
neglect.
    (i) Establish training programs for child protective services, law 
enforcement, judicial, medical, education, and related services 
personnel in the investigation, prevention, protection, and treatment of 
child abuse, child neglect, and family violence.
    (j) Establish other innovative and culturally relevant programs and 
projects that show promise of successfully preventing and treating 
family violence, child abuse, and child neglect.



Sec. 63.36   What are the special requirements for Indian child protection and family violence prevention programs?

    (a) Each tribe must develop appropriate standards of service, 
including caseload standards and staffing requirements. The following 
caseload standards and staffing requirements are comparable to those 
recommended by the Child Welfare League of America, and are included to 
assist tribes in developing standards for Indian child protection and 
family violence prevention programs:
    (1) Caseworkers providing services to abused and neglected children 
and their families have a caseload of 20 active ongoing cases and five 
active investigations per caseworker.
    (2) Caseworkers providing services to strengthen and preserve 
families with children have a caseload of 20 families. If intensive 
family-centered crisis services are provided, a caseload of 10 families 
per caseworker is recommended.
    (3) It is recommended that there be one supervisor for every six 
caseworkers.
    (b) The negotiation and award of contracts, grants, or funding 
agreements

[[Page 238]]

under these regulations must include the following requirements:
    (1) Performance of background investigations to ensure that only 
those individuals who meet the standards of character contained in 
Sec. 63.12 are employed in positions which involve regular contact with 
or control over Indian children.
    (2) Submission of an annual report to the contracting officer's 
representative which details program activities, number of children and 
families served, and the number of child abuse, child neglect, and 
family violence reports received.
    (3) Assurance that the identity of any person making a report of 
child abuse or child neglect will not be disclosed without the consent 
of the individual and that all reports and records collected under these 
regulations are confidential and to be disclosed only as provided by 
Federal or tribal law.
    (4) Assurance that persons who, in good faith, report child abuse or 
child neglect will not suffer retaliation from their employers.
Secs. 63.37--63.50  [Reserved]



PART 67--PREPARATION OF A ROLL OF INDEPENDENT SEMINOLE INDIANS OF FLORIDA--Table of Contents




Sec.
67.1  Definitions.
67.2  Purpose.
67.3  Information collection.
67.4  Qualifications for enrollment and the deadline for filing 
          application forms.
67.5  Notices.
67.6  Application forms.
67.7  Filing of application forms.
67.8  Burden of proof.
67.9  Action by Superintendent.
67.10  Appeals.
67.11  Decision of the Area Director on appeals.
67.12  Exhaustion of administrative remedies.
67.13  Preparation, certification and approval of the roll.
67.14  Preparation of a per capita payment roll.
67.15  Special instructions.

Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; and Pub.L. 101-277, 104 
          Stat. 143.

    Source: 59 FR 3291, Jan. 20, 1994, unless otherwise noted.



Sec. 67.1  Definitions.

    As used in this part:
    Act means the Act of Congress approved April 30, 1990, Public Law 
101-277, 104 Stat. 143, which authorizes the use and distribution of 
funds awarded the Seminole Indians in Dockets 73, 151, and 73-A of the 
Indian Claims Commission.
    Adopted person means a person whose natural parents' parental rights 
have been terminated by court order and persons other than the natural 
parents have exercised or do exercise parental rights with regard to the 
adopted person.
    Applicant means a person who is making application for inclusion on 
the roll prepared by the Secretary pursuant to the Act of April 30, 
1990, by either personally filing an application or by having a sponsor 
complete and file an application on his or her behalf.
    Assistant Secretary means the Assistant Secretary for Indian Affairs 
or authorized representative.
    BIA means the Bureau of Indian Affairs, Department of the Interior.
    Commissioner means the Commissioner of Indian Affairs or authorized 
representative.
    Director means the Area Director, Eastern Area Office, Bureau of 
Indian Affairs or authorized representative.
    Lineal descendant(s) means those persons who are the issue of the 
ancestor through whom enrollment rights are claimed; namely, the 
children, grandchildren, etc. It does not include collateral relatives 
such as brothers, sisters, nieces, nephews, cousins, etc., or adopted 
children, adopted grandchildren, etc.
    Living means born on or before and alive on the date specified.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Sponsor means any person who files an application for enrollment or 
an appeal on behalf of another person.
    Superintendent means the Superintendent, Seminole Agency, Bureau of 
Indian Affairs or authorized representative.



Sec. 67.2  Purpose.

    The regulations in this part govern the compilation of a roll of 
persons who meet the requirements specified in

[[Page 239]]

section 7 of the Act who will be eligible to share in the distribution 
of a portion of the judgment funds awarded the Seminole Indians in 
Dockets 73, 151, and 73-A of the Indian Claims Commission.



Sec. 67.3  Information collection.

    The information collection requirement contained in this part does 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq.



Sec. 67.4  Qualifications for enrollment and the deadline for filing application forms.

    (a) The roll shall contain the names of persons of Seminole Indian 
descent who:
    (1) Were born on or before, and living on April 30, 1990;
    (2) Are listed on or who are lineal descendants of persons listed on 
the annotated Seminole Agency Census of 1957 as Independent Seminoles; 
and
    (3) Are not members of an Indian tribe recognized by the Secretary 
on the most recent list of such Indian tribes published in the Federal 
Register.
    (b) To qualify for enrollment, all persons must file application 
forms with the Superintendent, Seminole Agency, Bureau of Indian 
Affairs, 6075 Stirling Road, Hollywood, Florida 33024 by June 19, 1994. 
An application filed after June 19, 1994 will be rejected for failure to 
file on time regardless of whether the applicant otherwise meets the 
qualifications for enrollment.



Sec. 67.5  Notices.

    (a) The Director shall give notice to all Area Directors of the BIA 
and all Superintendents within the jurisdiction of the Director of the 
preparation of the roll for public display in BIA field offices. Notices 
shall be placed for public display in community buildings, tribal 
buildings and Indian centers.
    (b) The Superintendent shall, on the basis of available residence 
data, publish, and republish when advisable, notices of the preparation 
of the roll in appropriate localities utilizing media suitable to the 
circumstances.
    (c) Notices shall advise of the preparation of the roll and the 
relevant procedures to be followed, including the qualifications for 
enrollment and the deadline for filing application forms to be eligible 
for enrollment. The notices shall also state how and where application 
forms may be obtained, as well as the name, address, and telephone 
number of a person who may be contacted for further information.



Sec. 67.6  Application forms.

    (a) Application forms to be filed by or for applicants for 
enrollment shall be furnished by the Area Director, Superintendent, or 
other designated persons upon written or oral request. Each person 
furnishing application forms shall keep a record of the names of 
individuals to whom forms are given, as well as the control numbers of 
the forms and the date furnished. Instructions for completing and filing 
application forms shall be furnished with each form. The form shall 
indicate prominently the deadline date for filing application forms.
    (b) Among other information, each application form shall contain:
    (1) Certification as to whether the application form is for a 
natural child or an adopted child of the parent through whom eligibility 
is claimed.
    (2) If the application form is filed by a sponsor, the name and 
address of the sponsor and the sponsor's relationship to the applicant.
    (3) A control number for the purpose of keeping a record of forms 
furnished to interested individuals.
    (4) Certification that the information given on the application form 
is true to the best of the knowledge and belief of the person filing the 
application. Criminal penalties are provided by statute for knowingly 
filing false information in such applications (18 U.S.C. 1001).
    (5) An election by the applicant as to whether the applicant, if 
determined to meet the qualifications for enrollment, wishes to share in 
the per capita payment.
    (c) Sponsors may file application forms on behalf of other persons, 
but may not file elections to share in the per capita payment.
    (1) The election to share in the per capita payment shall be made as 
follows:

[[Page 240]]

    (i) If the applicant is a competent adult, the election shall be 
made by the applicant.
    (ii) If the applicant is not a competent adult, the election shall 
be made by the applicant's legal guardian.
    (iii) If the applicant is a minor, the election shall be made by the 
applicant's parent or legal guardian.
    (2) When an application is filed by a sponsor, the Superintendent 
shall:
    (i) Furnish the sponsor a copy of the application for forwarding to 
the applicant or his/her guardian for completion of the election to 
share in the per capita payment; and
    (ii) Make a reasonable effort to furnish a copy of the application 
directly to the applicant or his/her guardian for completion of the 
election to share in the per capita payment.
    (d) Every applicant or sponsor shall furnish the applicant's mailing 
address on the application form. Thereafter, the applicant or sponsor 
shall promptly notify the Superintendent of any change in address, 
giving appropriate identification of the applicant. Otherwise, the 
mailing address as stated on the application form shall be accepted as 
the address of record for all purposes under the regulations in this 
part.



Sec. 67.7  Filing of application forms.

    (a) Application forms filed by mail must be postmarked no later than 
midnight on the deadline date specified in Sec. 67.4(b). Where there is 
no postmark date showing on the envelope or the postmark date is 
illegible, application forms mailed from within the United States, 
including Alaska and Hawaii, received more than 15 days after the 
specified deadline, and application forms mailed from outside of the 
United States received more than 30 days after the specified deadline in 
the office of the Superintendent, will be rejected for failure to file 
in time.
    (b) Application forms filed by personal delivery must be received in 
the office of the Superintendent no later than close of business on the 
deadline date specified in Sec. 67.4(b).
    (c) If the deadline date for filing application forms falls on a 
Saturday, Sunday, legal holiday, or other nonbusiness day, the deadline 
will be the next working day thereafter.



Sec. 67.8  Burden of proof.

    The burden of proof rests upon the applicant to establish 
eligibility for enrollment. Documentary evidence such as birth 
certificates, death certificates, baptismal records, copies of probate 
findings, or affidavits may be used to support claims of eligibility for 
enrollment. Records of the BIA may be used to establish eligibility.



Sec. 67.9  Action by Superintendent.

    (a) The Superintendent shall notify each individual applicant or 
sponsor, as applicable, upon receipt of an application. The 
Superintendent shall consider each application and all documentation. 
Upon determining an individual's eligibility, the Superintendent shall 
notify the individual; the parent or guardian having legal custody of a 
minor or incompetent adult; or the sponsor, as applicable.
    (1) Written notification of the Superintendent's decision shall be 
sent to the applicant by certified mail, for receipt by the addressee 
only, return receipt requested.
    (2) If a decision by the Superintendent is sent out of the United 
States, registered mail will be used. If a certified or registered 
notice is returned as ``Unclaimed,'' the Superintendent shall remail the 
notice by regular mail together with an acknowledgment of receipt form 
to be completed by the addressee and returned to the Superintendent. If 
the acknowledgment of receipt is not returned, computation of the period 
specified for changes in election and for appeals shall begin on the 
date the notice was remailed. A certified or registered notice returned 
for any reason other than ``Unclaimed'' need not be remailed.
    (3) If an individual files an application on behalf of more than one 
person, one notice of eligibility or adverse action may be addressed to 
the person who filed the applications. However, the notice must list the 
name of each person to whom the notice is applicable. Where an 
individual is represented by a sponsor, notification to the sponsor of 
eligibility or adverse action shall be considered notification to the 
individual.
    (b) On the basis of an applicant's election with regard to whether 
he or

[[Page 241]]

she wishes to share in the per capita payment, the Superintendent's 
decision shall also state whether the applicant's name will be included 
on the per capita payment roll. If no election has been made by the 
applicant, parent, or legal guardian on the application form, the 
individual applicant's name will not be included on the per capita 
payment roll.
    (1) The eligible individual will have 30 days from notification of 
his or her eligibility in which to request a change in the election of 
whether to share in the per capita payment. Computation of the 30-day 
period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d). Upon 
written request received within the 30-day period, to avoid hardship or 
gross injustice, the Superintendent may grant an applicant additional 
time, not to exceed 30 days, in which to submit a request for a change 
in election.
    (2) A change in the election of whether to share in the per capita 
payment can only be made by competent adult applicants; by the legal 
guardian of an incompetent adult; or, in the case of a minor, by the 
minor's parent or legal guardian.
    (c) If the Superintendent determines that an applicant is not 
eligible for enrollment as an Independent Seminole Indian of Florida, 
the Superintendent shall notify the applicant of the decision and shall 
fully explain the reasons for the adverse action and explain the 
rejected applicant's right to appeal to the Area Director. The decision 
of the Area Director shall be final and conclusive.
    (d) Except as provided in paragraph (a)(2) of this section, a notice 
of adverse action concerning an individual's enrollment eligibility or 
the inclusion or exclusion of an individual's name on the per capita 
payment roll is considered to have been made, and computation of the 
period for appeal shall begin on the earliest of the following dates:
    (1) Delivery date indicated on the return receipt;
    (2) Date of acknowledgment of receipt;
    (3) Date of personal delivery; or
    (4) Date of return by the post office of an undelivered certified or 
registered letter.
    (e) To avoid hardship or gross injustice, the Area Director or the 
Superintendent may waive technical deficiencies in application forms or 
other submittals. Failure to file by the deadline date does not 
constitute a technical deficiency.



Sec. 67.10  Appeals.

    (a) Appeals from or on behalf of applicants who have been rejected 
for enrollment must be in writing and must be filed pursuant to part 62 
of this chapter. When the appeal is on behalf of more than one person, 
the name of each person must be listed in the appeal.
    (b) A copy of part 62 of this chapter shall be furnished with each 
notice of adverse action. All sections of part 62 shall be applicable to 
appeals filed under this part except Secs. 62.10, 62.11 and 62.12.



Sec. 67.11  Decision of the Area Director on appeals.

    (a) The Area Director will consider the record as presented, 
together with such additional information as may be considered 
pertinent. Any additional information relied upon shall be specifically 
identified in the decision.
    (b) The decision of the Area Director on an appeal shall be final 
and conclusive, and written notice, which shall state that the decision 
is final and conclusive, shall be given to the individual applicant, 
parent, legal guardian, or sponsor, as applicable.
    (c) If an individual files an appeal on behalf of more than one 
applicant, one notice of the Area Director's decision may be addressed 
to the person who filed the appeal. The Area Director's decision must 
list the name of each person to whom the decision is applicable. Where 
an individual applicant is represented by a sponsor, notification to the 
sponsor of the Area Director's decision is sufficient.
    (d) Written notice of the Area Director's decision on the appeal 
shall be sent to the applicant by certified mail, to be received by the 
addressee only, return receipt requested.
    (1) On the basis of the individual's election with regard to whether 
he or she wishes to share in the per capita payment, the Area Director's 
decision

[[Page 242]]

shall also state whether the individual's name will be included on the 
per capita payment roll. If no election is made by the individual 
applicant, parent, or legal guardian, the individual's name will not be 
included on the per capita payment roll.
    (2) The eligible individual will have 30 days from notification of 
his or her eligibility in which to request a change in the election of 
whether to share in the per capita payment. Computation of the 30-day 
period will be in accordance with Sec. 67.9(a)(2) and Sec. 67.9(d). Upon 
written request received within the 30-day period, to avoid hardship or 
gross injustice, the Area Director may grant additional time, not to 
exceed 30 days, in which to submit a request for a change in election.
    (3) The change in the election of whether to share in the per capita 
payment can only be made by adult applicants, or by the legal guardian 
of an incompetent adult, or in the case of minors, by the parents or 
legal guardian of such minors.



Sec. 67.12  Exhaustion of administrative remedies.

    The decision of the Area Director on appeal, which shall be final 
for the Department, is subject to judicial review under 5 U.S.C. 704.



Sec. 67.13  Preparation, certification and approval of the roll.

    (a) The Superintendent shall prepare a minimum of three (3) copies 
of the roll of those persons determined to be qualified for enrollment 
as an Independent Seminole Indian of Florida. The roll shall contain for 
each person a roll number or identification number, name, address, sex, 
date of birth, date of death (when applicable), and the name and 
relationship of the ancestor on the annotated Seminole Agency Census of 
1957 through whom eligibility for enrollment was established.
    (b) A certificate shall be attached to the roll by the 
Superintendent certifying that to the best of his or her knowledge and 
belief, the roll contains only the names of those persons who were 
determined to meet the qualifications for enrollment.
    (c) The Area Director shall approve the roll.



Sec. 67.14  Preparation of a per capita payment roll.

    (a) The Superintendent shall, based on the roll approved under 
Sec. 67.12(c), prepare a per capita payment roll. The payment roll shall 
be comprised of those persons whose names appear on the approved roll 
and who have elected to share in the per capita payment.
    (b) The per capita payment roll shall contain for each person a roll 
number or identification number, name, and address.
    (c) The Area Director shall authorize the distribution of the 
judgment funds to those persons named on the per capita payment roll.



Sec. 67.15  Special instructions.

    To facilitate the work of the Superintendent and Area Director, the 
Assistant Secretary may issue special instructions not inconsistent with 
the regulations in this part.



PART 75--REVISION OF THE MEMBERSHIP ROLL OF THE EASTERN BAND OF CHEROKEE INDIANS, NORTH CAROLINA--Table of Contents




Sec.
75.1  Definitions.
75.2  Purpose.
75.3  Announcement of revision of roll.
75.4  Basic membership roll.
75.5  Removal of deceased persons from the roll.
75.6  Additions to the roll.
75.7  Applications for enrollment.
75.8  Applications for minors and incompetents.
75.9  Application form.
75.10  Where application forms may be obtained.
75.11  Proof of relationship.
75.12  Enrollment Committee.
75.13  Tenure of Enrollment Committee.
75.14  Appeals.
75.15  Current membership roll.
75.16  Eligibility for enrollment of persons born after August 21, 1957.
75.17  Relinquishment of membership.
75.18  Adoption.
75.19  Distribution of judgment funds.

    Authority: Sec. 2, 71 Stat. 374.

    Source: 24 FR 201, Jan. 8, 1959, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 75.1  Definitions.

    As used in this part:

[[Page 243]]

    (a) Band means the Eastern Band of Cherokee Indians in North 
Carolina.
    (b) Reservation means the lands of the Eastern Band of Cherokee 
Indians in the counties of Jackson, Swain, Graham, Cherokee and Haywood 
in North Carolina.
    (c) Tribal Council means the Tribal Council of the Eastern Band of 
Cherokee Indians in North Carolina.
    (d) Announcement means the announcement of the revision of the 
membership roll issued as required in Sec. 75.3.
    (e) Tribal Enrollment Office means the Tribal Enrollment Clerk 
working in concert with the Enrollment Committee.
    (f) Tribal Enrollment Clerk means the individual working in the 
Tribal Enrollment Office.
    (g) Enrollment Committee means the three individuals appointed by 
the Tribal Council in accordance with Sec. 75.12.

[24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 38 FR 
9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.2  Purpose.

    The regulations in this part are to govern the revision, as 
authorized by the Act approved August 21, 1957 (71 Stat. 374), of the 
membership roll of the Eastern Band of Cherokee Indians, North Carolina, 
prepared and approved in accordance with the Act of June 4, 1924 (43 
Stat. 376), and the Act of March 4, 1931 (46 Stat. 1518).



Sec. 75.3  Announcement of revision of roll.

    When the Tribal Council has authorized the expenditure of tribal 
funds to supply sufficient staff to perform the work necessary to revise 
the membership roll of the Band and such staff has been employed and 
when the application forms and other necessary documents have been 
devised and printed, the Principal Chief, or in his absence the Vice 
Chief or the Chairman of the Tribal Council shall announce that a 
revision of the membership roll of the Band shall commence on a 
specified date. The date specified shall be not less than 15 days nor 
more than 30 days from the date of issuance of the announcement. A press 
release should be prepared announcing the date the revision of the roll 
shall begin, together with other pertinent information such as the 
membership requirements and where application forms may be obtained. The 
press release should be distributed to all newspapers and radio stations 
within the region of the Reservation with a request that it be given 
wide publicity. Copies of the press release should also be posted in the 
Agency Office and at various other public places throughout the 
Reservation as well as in Post Offices of the towns adjacent to the 
Reservation.



Sec. 75.4  Basic membership roll.

    All persons whose names appear on the roll of the Eastern Band of 
Cherokee Indians of North Carolina, prepared and approved pursuant to 
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 
Stat. 1518), shall be members of the Band.



Sec. 75.5  Removal of deceased persons from the roll.

    The name of any person who was not alive as of midnight August 21, 
1957, shall be stricken from the basic membership roll by the Tribal 
Enrollment Office upon receipt of a death certificate or other evidence 
of death acceptable to the Tribal Enrollment Office.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.6  Additions to the roll.

    There shall be added to the roll of the Band the names of persons 
living on August 21, 1957, who meet the following qualifications:
    (a) Persons born during the period, beginning on or after June 4, 
1924, and ending midnight August 21, 1957, who are direct descendants of 
persons whose names appear on the roll prepared and approved pursuant to 
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46 
Stat. 1518); provided, such persons:
    (1) Who applied for membership before August 14, 1963 possess at 
least \1/32\ degree of Eastern Cherokee Indian blood, and those persons 
who apply for membership on or after August 14, 1963, possess at least 
\1/16\ degree Eastern Cherokee Indian blood, except that persons who 
also possess Indian blood of

[[Page 244]]

another tribe shall not be enrolled if they are enrolled as members of 
the other tribe.
    (2) Have themselves or have parents who have maintained and dwelt in 
a home at sometime during the period from June 4, 1924, through August 
21, 1957, on the lands of the Eastern Band of Cherokee Indians in the 
counties of Swain, Jackson, Graham, Cherokee and Haywood in North 
Carolina, except that this specific part of this section shall not apply 
to those persons and members of their families who were temporarily away 
from the Reservation due to one or both parents being in the U.S. Armed 
Services or who were employed by the U.S. Government and neither shall 
it apply to those individuals who were in mental or penal institutions 
during this period of time.
    (3) Have filed an application for enrollment with the Band in 
accordance with the procedures set forth in this part.
    (b) A child born out of wedlock to a mother who is either an 
enrolled member of the Band, or who meets the qualifications for 
enrollment as a member, may be enrolled if such child otherwise meets 
the requirements for enrollment as set forth in this section.
    (c) A child born out of wedlock to a mother who is not a member of 
the Band may be enrolled if the mother files with the Enrollment 
Committee proof established in accordance with the laws of North 
Carolina as to the paternity of the child and the person adjudged to be 
the father is either an enrolled member of the Band, or meets the 
requirements for enrollment as a member, and if the child otherwise meet 
the requirements for enrollment as set forth in this section.

[24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960; 28 FR 
8314, Aug. 14, 1963. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.7  Applications for enrollment.

    Each adult person who believes he meets the requirements for 
enrollment established herein may submit to the Tribal Enrollment Office 
an application for enrollment as a member of the Eastern Band of 
Cherokee Indians.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.8  Applications for minors and incompetents.

    Applications for enrollment of minors may be filed by the parent, 
next of kin, recognized guardian, or other person responsible for their 
care. Applications for enrollment of persons known to be in mental or 
penal institutions may be filed by the Principal Chief of the Eastern 
Band of Cherokee.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.9  Application form.

    The form of application for enrollment will be prepared by the 
Tribal Enrollment Office and, in addition to whatever information the 
Enrollment Committee may deem necessary, shall contain the following:
    (a) The name and address of the applicant. If the application is 
filed on behalf of a minor, the name and address of the person filing 
the application and his relationship to the minor.
    (b) The name, relationship, tribe and roll number of the ancestor or 
ancestors through whom enrollment rights are claimed, and whether 
applicant is enrolled with another tribe.
    (c) The date of death of such ancestor, if deceased.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.10  Where application forms may be obtained.

    Application forms will be supplied by the Tribal Enrollment Office 
of the Eastern Band of Cherokee Indians, Council House, Cherokee, N.C. 
28719, upon request, either in person or by mail.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.11  Proof of relationship.

    If the applicant's parents or other Eastern Cherokee ancestors 
through whom the applicant claims enrollment rights are unknown to the 
Tribal Enrollment Office, the Tribal Enrollment Office may request the 
applicant to furnish such additional information and evidence as it may 
deem necessary to determine the applicant's eligibility

[[Page 245]]

for enrollment. Failure of the applicant to furnish the information 
requested may be deemed sufficient cause for rejection.

[38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.12  Enrollment Committee.

    The Tribal Council shall appoint either from within or without the 
membership of the Council, but not from without the membership of the 
Band, a committee of three (3) persons to serve as the Enrollment 
Committee. The Enrollment Committee shall review all applications for 
enrollment filed in accordance with the existing regulations, and shall 
determine the qualifications of the applicant for enrollment with the 
Band. The Enrollment Committee may perform such other functions relating 
to the enrollment and membership in the Band as the Tribal Council may 
from time to time direct.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.13  Tenure of Enrollment Committee.

    The members of the Enrollment Committee shall be appointed to serve 
a term of office of 2 years by each newly elected Tribal Council.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.14  Appeals.

    Any person whose application for enrollment has been rejected by the 
Enrollment Committee shall have the right to appeal to the Tribal 
Council from the determination made by the Enrollment Committee: 
Provided, That such appeal shall be made in writing and shall be filed 
in the office of the Principal Chief for presentation to the Tribal 
Council within sixty (60) days from the date on which the Enrollment 
Committee issues notice to the applicant of his rejection. The applicant 
may submit with his appeal any additional data to support his claim to 
enrollment not previously furnished. The decision of the Tribal Council 
as to whether the applicant meets the requirements for enrollment set 
forth in this part shall be final. The Tribal Council shall review no 
applications for enrollment except in those cases where the rejected 
applicant appeals to the Council in writing from the determination made 
by the Enrollment Committee.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.15  Current membership roll.

    The membership roll of the Eastern Band of Cherokee Indians shall be 
kept current by striking therefrom the names of persons who have 
relinquished their membership in the Band as provided in Sec. 75.17 and 
of deceased persons upon receipt of a death certificate or other 
evidence of death acceptable to the Tribal Enrollment Office, and by 
adding thereto the names of individuals who meet the qualifications and 
are accepted for membership in the Band as set forth in this part.

[38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.16  Eligibility for enrollment of persons born after August 21, 1957.

    (a) Persons possessing one-sixteenth or more degree Eastern Cherokee 
Indian blood and born after August 21, 1957, may be enrolled in either 
of the following manners:
    (1) An application to have the person enrolled must be filed by or 
on behalf of the person by the parent or recognized guardian or person 
responsible for his care, which application shall be accompanied by the 
applicant's birth certificate or by other evidence of eligibility of the 
applicant for enrollment that the Tribal Enrollment Office may require.
    (2) In the absence of such application within 6 months after a 
person's birth, the Tribal Enrollment Office shall be authorized and 
encouraged to obtain evidence relating to the eligibility of the person 
for enrollment in the Eastern Band, and present an application in his 
behalf to the Enrollment Committee which may proceed to enroll the 
person if the evidence submitted meets the criteria.
    (b) A person adopted in accordance with applicable laws by either 
tribal

[[Page 246]]

members or nonmembers, shall be considered for enrollment as a tribal 
member if the person otherwise meets the requirements for enrollment.
    (c) A person born to an enrolled member of the Band and an enrolled 
member of another Tribe, and said person is enrolled in the other Tribe, 
may be transferred from the rolls of the other and added to the rolls of 
the Eastern Band if he meets the general requirements for enrollment 
and, in addition:
    (1) A death certificate or other acceptable evidence of the death of 
the parent enrolled in the other Tribe is received and the surviving 
parent who is a member of the Eastern Band makes application for 
enrollment by way of transfer.
    (2) Upon receipt of divorce documents in the Tribal Enrollment 
Office, there is evidence of custody of the minors being awarded to the 
parent who is a member of the Band and the parent awarded custody makes 
application for enrollment of the minors with the Eastern Band by way of 
transfer.
    (d) In order for a child to be enrolled under paragraph (b) or (c) 
of this section, either:
    (1) An application to have the child enrolled must be filed on 
behalf of the child by the parent or recognized guardian or person 
responsible for his care, which application shall be accompanied by the 
child's birth certificate or by other evidence as to the eligibility of 
the child for enrollment as the Enrollment Committee may require, which 
application must be filed within one year from the date of birth of such 
child, or
    (2) In the absence of such application, the Tribal Enrollment 
Committee may on its own motion, proceed to enroll any eligible child 
upon receipt by it of such evidence as shall satisfy the Committee as to 
the eligibility of the child to be enrolled, within one year from date 
of birth of such child.

[28 FR 8315, Aug. 14, 1963, as amended at 29 FR 9326, July 8, 1964; 38 
FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.17  Relinquishment of membership.

    Any member of the Eastern Band of Cherokee Indians may relinquish 
his membership in the Band by filing notice in writing that he no longer 
desires to be enrolled as a member of the Band. On receipt of such 
notice the name of the members shall be stricken from the roll and he 
shall no longer be considered as a member of the Band and shall not be 
entitled to share in any use or in any distribution of tribal assets 
which may be made in the future to the enrolled members of the Band.



Sec. 75.18  Adoption.

    The Tribal Council of the Eastern Band of Cherokee Indians shall be 
empowered to enact ordinances governing the adoption of new members.

[39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 75.19  Distribution of judgment funds.

    The membership roll of the Eastern Band of Cherokee Indians of North 
Carolina will be brought up to date as of October 10, 1974, to serve as 
the basis for distributing certain judgment funds awarded to the Band in 
Indian Claims Commission dockets 282-A through L.
    (a) Filing of and action on applications shall be in accordance with 
regulations in this part 75, except as otherwise provided in paragraphs 
(b) through (g) of this section.
    (b) In lieu of notice provisions contained in Sec. 75.3, the 
Commissioner of Indian Affairs or his authorized representative shall 
provide notice of the bringing up to date of the membership roll through 
publication of these amended regulations in the Federal Register and 
through appropriate press releases and other public notices.
    (c) Application forms may be obtained from the Tribal Enrollment 
Office of the Eastern Band of Cherokee Indians, Council House, Cherokee, 
North Carolina 28719. Completed applications must be received by the 
Tribal Enrollment Office no later than midnight January 8, 1975.
    (d) Requests for applications for enrollment in the Band received 
after midnight of the deadline date will not be furnished until after 
the funds have been distributed.
    (e) In lieu of the procedures given in Sec. 75.14, appeals from 
rejected applicants must be in writing and filed pursuant to part 62 of 
this subchapter, a copy of

[[Page 247]]

which shall be furnished with each notice of rejection.
    (f) The Tribal Council and the Superintendent shall attach separate 
statements to the roll certifying that to the best of their knowledge 
and belief, the roll contains only the names of those persons who were 
determined to meet the requirements for enrollment. The roll shall then 
be submitted through the Area Director to the Commissioner for approval.
    (g) To facilitate the work of the Tribal Enrollment Committee the 
Commissioner may issue special instructions not inconsistent with the 
regulations in this part 75.

[39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 81--TRIBAL REORGANIZATION UNDER A FEDERAL STATUTE--Table of Contents




Sec.
81.1  Definitions.
81.2  Purpose and scope.
81.3  Group eligibility.
81.4  Assistance from the Department of the Interior.
81.5  Request to call election.
81.6  Entitlement to vote.
81.7  Adoption, ratification, or revocation by majority vote.
81.8  Election board.
81.9  Voting districts.
81.10  District Election Boards.
81.11  Registration.
81.12  Voting list.
81.13  Eligibility disputes.
81.14  Election notices.
81.15  Opening and closing of polls.
81.16  Interpreters.
81.17  Electioneering.
81.18  Manner of voting.
81.19  Absentee voting.
81.20  Ballots.
81.21  Counting of ballots.
81.22  Contesting of election results.
81.23  Posting and certifying election results.
81.24  Approval, disapproval, or rejection action.

    Authority: 25 U.S.C. 473a, 476, 477, and 503.

    Source: 46 FR 1670, Jan. 7, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 81.1  Definitions.

    As used in this part:
    (a) Adult Indian means any Indian as defined in paragraph (i) of 
this section who has attained the age of 18 years.
    (b) Amendment means any modification, change, or total revision of a 
constitution or charter.
    (c) Authorizing Officer means the Bureau of Indian Affairs official 
having authority to authorize the calling of a Secretarial election.
    (d) Cast ballot means an official ballot that is cast in the proper 
manner at the proper time by a duly registered voter. A ballot is cast 
by duly placing it in the ballot box or, in the case of absentee voting, 
when the ballot is duly received through the mail by the election board.
    (e) Charter means the charter of incorporation the Secretary may 
issue to a reorganized tribe pursuant to Federal Statute.
    (f) Commissioner means the Commissioner of Indian Affairs or his/her 
authorized representative.
    (g) Constitution or Constitution and Bylaws means the written 
organizational framework of any tribe reorganized pursuant to a Federal 
Statute for the exercise of governmental powers.
    (h) Federal Statute means one of the following: (1) The Act of June 
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act); (2) the 
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act); or 
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization 
Act).
    (i) Indian means: (1) All persons who are members of those tribes 
listed or eligible to be listed in the Federal Register pursuant to 25 
CFR 83.6(b) as recognized by and receiving services from the Bureau of 
Indian Affairs; provided, that the tribes have not voted to exclude 
themselves from the Act of June 18, 1934, 43 Stat. 984, as amended; and 
(2) any person not a member of one of the listed or eligible to be 
listed tribes who possesses at least one-half degree of Indian blood.
    (j) Invalid ballot means an official cast ballot discovered at the 
time the votes are counted which does not comply with the requirements 
for voting or is not an official ballot. An invalid ballot is not to be 
counted for determining the number of cast ballots.
    (k) Member means any Indian who is duly enrolled in a tribe who 
meets a tribe's written criteria for membership or who is recognized as 
belonging to a

[[Page 248]]

tribe by the local Indians comprising the tribe.
    (l) Mutilated ballot means an official ballot that has been damaged 
to the extent that it is not possible to determine the choice the voter 
intended to make. There are two kinds of mutilated official ballots:
    (1) A ballot that is mutilated and not cast. In this case, the 
mutilated ballot may be exchanged for a new one. If the need arises to 
exchange a mutilated absentee ballot, no additional time will be 
provided for the new ballot to be received by the election board.
    (2) A ballot that is mutilated and cast. A mutilated cast ballot is 
to be counted in the same manner as a spoiled cast ballot.
    (m) Officer in Charge means the Superintendent, Administrative 
Officer, or other official of the local unit of the Bureau of Indian 
Affairs (or a Bureau employee that such person might designate) having 
administrative jurisdiction over a tribe.
    (n) Official ballot means a ballot prepared by the Bureau of Indian 
Affairs for use in an election pursuant to this part. It is possible 
that an official ballot may be found to be either spoiled or mutilated 
at the time the votes are counted.
    (o) Registration means the act whereby persons, who are eligible to 
vote, become entitled or qualified to cast ballots by having their names 
placed on the list of persons who will be permitted to vote.
    (p) Reorganized tribe means a tribe whose members have adopted a 
constitution pursuant to a Federal Statute.
    (q) Reservation means any area established by treaty, Congressional 
Act, Executive Order, or otherwise for the use or occupancy of Indians.
    (r) Revocation means that act whereby the adult members of a tribe 
vote to abandon their constitutional form of government as opposed to 
their voting to amend or totally revise it.
    (s) Secretarial election means an election held within a tribe 
pursuant to regulations prescribed by the Secretary as authorized by 
Federal Statute (as distinguished from tribal elections which are 
conducted under tribal authority. (See Cheyenne River Sioux Tribe v. 
Andrus, 566 F. 2d 1085 (8th Cir., 1977), cert. denied 439 U.S. 820 
(1978)).
    (t) Secretary means the Secretary of the Interior or his/her 
authorized representative.
    (u) Spoiled ballot means an official ballot that has been marked in 
such a way that it is not possible to determine the intent of the voter, 
a ballot that has not been marked at all, or one that has been marked so 
as to violate the secrecy of the ballot. There are two kinds of spoiled 
official ballots:
    (1) A ballot that is spoiled and not cast. In this case, the spoiled 
ballot may be exchanged for a new one. If the need arises to exchange a 
spoiled absentee ballot, no additional time will be provided for the new 
ballot to be received by the election board.
    (2) A ballot that is spoiled and cast. A spoiled cast ballot is to 
be counted in tabulating the total votes cast in conjunction with 
determining whether the required percentage of the qualified voters has 
participated in the election.
    (v) Tribal government means that entity established pursuant to a 
tribal constitution as empowered to speak for the tribe or in the 
absence thereof any group or individual that is recognized by the tribal 
members as empowered to speak for the tribe.
    (w) Tribe means: (1) Any Indian entity that has not voted to exclude 
itself from the Indian Reorganization Act and is included, or is 
eligible to be included, among those tribes, bands, pueblos, groups, 
communities, or Alaska Native entities listed in the Federal Register 
pursuant to Sec. 83.6(b) of this chapter as recognized and receiving 
services from the Bureau of Indian Affairs; and (2) any group of Indians 
whose members each have at least one-half degree of Indian blood for 
whom a reservation is established and who each reside on that 
reservation. Such tribes may consist of any consolidation of one or more 
tribes or parts of tribes.
    (x) Voting district means a geographical area established to 
facilitate a tribal election process.



Sec. 81.2  Purpose and scope.

    (a) The purpose of this part is to provide uniformity and order in:

[[Page 249]]

    (1) Holding Secretarial elections for voting on proposed 
constitutions when tribes wish to reorganize,
    (2) Adopting constitutional amendments,
    (3) Ratifying and amending charters,
    (4) Revoking constitutions, and
    (5) Facilitating the calling of such elections by the Secretary 
under provisions of a Federal Statute.
    (b) This part may also be used as a guideline by tribes wishing to 
hold constitutional elections that are not held pursuant to a Federal 
Statute.
    (c) Where a discrepancy might appear to exist between these 
regulations and a specific requirement of the statute governing the 
reorganization of a tribe or ratification and amendment of charters, the 
regulations shall be interpreted to conform with the statute.
    (d) As much as possible, Secretarial elections shall be scheduled so 
as to avoid their being held at the same time as tribal elections in 
order to avoid the confusion that results from different requirements 
for each kind of election.



Sec. 81.3  Group eligibility.

    (a) No tribe which has voted to exclude itself from the provisions 
of the Indian Reorganization Act, or is otherwise precluded by law, may 
be reorganized under a Federal Statute. Tribes wishing to reorganize or 
a reorganized tribe seeking to amend its constitution and bylaws or 
wishing to vote to revoke such document shall do so under the 
regulations in this part.
    (b) Charters issued to reorganized tribes shall be ratified or 
amended under the regulations in this part.



Sec. 81.4  Assistance from the Department of the Interior.

    Representatives of the Department of the Interior will cooperate 
with and offer advice and assistance (including the proposing of 
amendments), to any tribe in drafting a constitution and bylaws, an 
amendment, a charter or charter amendment, or in revocation of 
constitutions. Any payments that might be necessary to non-Bureau staff 
assisting in the conduct of the election shall be made from tribal 
funds.



Sec. 81.5  Request to call election.

    (a) The Secretary shall authorize the calling of an election to 
adopt a constitution and bylaws or to revoke a constitution and bylaws, 
upon a request from the tribal government.
    (b) The Secretary shall authorize the calling of an election to 
adopt a constitution and bylaws pursuant to a Federal Statute upon 
receipt of a petition bearing the signatures of at least 60 percent of 
the tribe's adult members.
    (c) The Secretary shall authorize the calling of an election to 
ratify a charter at the time the charter is issued, but he/she may issue 
a charter to a reservation-based tribe only upon petition by at least 
one-third of the adult members of the tribe. No ratification, however, 
shall be valid unless the tribe has a constitution adopted and approved 
pursuant to the relevant Federal Statute.
    (d) The Secretary shall authorize the calling of an election on the 
adoption of amendments to a constitution and bylaws or a charter when 
requested pursuant to the amendment article of those documents. The 
election shall be conducted as prescribed in this part unless the 
amendment article of the constitution and bylaws or the charter provides 
otherwise, in which case the provisions of those documents shall rule 
where applicable.
    (e) If the amendment provisions of a tribal constitution or charter 
have become outdated and amendment can not be effected pursuant to them, 
the Secretary may authorize an election under this part to amend the 
documents when the recognized tribal government so requests.
    (f) Any authorization not acted upon within 90 days (tribes in 
Alaska shall be granted 120 days) from the date of issuance will be 
considered void. Notification of the election date as provided for in 
Sec. 81.14 shall constitute the action envisioned in this section. 
Extension of an authorization may be granted upon a valid and reasonable 
request from the election board. Copies of authorizations shall be 
furnished the requesting tribe or petitioners.
    (g) In those instances where conflicting proposals to amend a single 
constitutional or charter provision are submitted, that proposal first 
received

[[Page 250]]

by the officer in charge, if found valid, shall be placed before the 
voters before any consideration is given other proposals. Other 
proposals shall be considered in order of their receipt; provided, they 
are resubmitted following final action on the initial submission. This 
procedure shall also apply in those instances where new or revised 
constitutions are at issue.



Sec. 81.6  Entitlement to vote.

    (a) If the group is a tribe, or tribes, of a reservation and is 
acting to effect reorganization under a Federal Statute for the first 
time:
    (1) Any duly registered adult member regardless of residence shall 
be entitled to vote on the adoption of a constitution and bylaws.
    (2) Duly registered adult nonresident members and ill or physically 
disabled registered adult resident members may vote by absentee ballot 
(see Sec. 81.19).
    (b) If the group is composed of the adult Indian residents of a 
reservation:
    (1) Any adult duly registered member physically residing on the 
reservation shall be entitled to vote.
    (2) Absentee voting shall be permitted only for duly registered 
residents temporarily absent from the reservation, ill, or physically 
disabled.
    (c) If the group is a tribe, or tribes, without a reservation as 
defined in this part, any duly registered member shall be entitled to 
vote on the adoption of a constitution and bylaws by either arriving at 
a polling place or by requesting, properly completing, and timely 
casting an absentee ballot as determined by the election board pursuant 
to the relevant Federal Statute; provided, that outside of Alaska and 
Oklahoma, a reservation shall be established for the tribe before it 
becomes entitled to vote on the adoption of a constitution.
    (d) For a reorganized tribe to amend its constitution and bylaws, 
only members who have duly registered shall be entitled to vote; 
provided, that registration is open to the same class of voters that was 
entitled to vote in the Secretarial election that effected its 
reorganization, unless the amendment article of the existing 
constitution provides otherwise.
    (e) For a reorganized tribe to revoke its constitution and bylaws, 
only members who have duly registered shall be entitled to vote; 
provided, that registration is open to the same class of voters as was 
entitled to vote in the Secretarial election that effected its 
reorganization, unless the amendment article of the existing 
constitution provides otherwise.
    (f) For a reorganized tribe to ratify a charter or to adopt a 
charter amendment, any adult member who has duly registered shall be 
entitled to vote, provided that if the tribe is of a reservation, only 
duly registered members physically residing on the reservation shall be 
entitled to vote.



Sec. 81.7  Adoption, ratification, or revocation by majority vote.

    Except as it may be further limited by this part, a contitution and 
bylaws, amendments thereto, or charter and charter amendments shall be 
considered adopted, ratified, or revoked if a majority of those actually 
voting are in favor of adoption, ratification, or revocation. The total 
vote cast, however, must be at least 30 percent of those entitled to 
vote, unless, with regard to amendments, the constitution provides 
otherwise. The names of persons appearing on the registration list who 
have not reached eighteen years of age by the date of the election, 
shall be removed from the list of registered voters when determining 
whether the required percentage of participation has been achieved. 
Unless the existing constitution or charter provides otherwise, none of 
the actions cited in this section shall become effective until they are 
approved by the Secretary. The validity of any charter ratification 
shall be dependent upon the tribe first having reorganized. Duly 
ratified charters shall be revoked or surrendered only by Act of 
Congress.



Sec. 81.8  Election board.

    (a) There shall be an election board consisting of the officer in 
charge acting as chairman and at least two representatives of the tribal 
governing body or an authorized representative committee. Where such 
persons may be unwilling or unable to serve, the chairman shall select 
at least two adult

[[Page 251]]

members of the tribe to serve. In addition, the officer in charge may 
appoint an interpreter and as many clerks and poll watchers as he/she 
deems necessary, but they shall not be members of the board.
    (b) It shall be the duty of the board to conduct elections in 
compliance with the procedures described in this part and in particular:
    (1) To see that the name of each person offering to vote is on the 
official list of registered voters;
    (2) To keep the ballot boxes locked at all times except when ballots 
are being counted;
    (3) To see that ballots are cast only by registered voters and that 
the voting list is checked to indicate this;
    (4) To begin to count the regularly cast ballots immediately after 
the close of the polls and then the absentee ballots, pursuant to 
Sec. 81.21;
    (5) To post and certify the election returns;
    (6) To return the following to the officer in charge:
    (i) The ballots (in marked and locked boxes);
    (ii) All unused ballots; and
    (iii) The completed Certificate of Results of Election. The officer 
in charge shall retain the ballots and other material among official 
records for at least one year. At the end of one year, the officer in 
charge shall forward the contents of the boxes and other related 
material to the appropriate Federal Records Center.



Sec. 81.9  Voting districts.

    If: (a) Voting districts have not already been designated for tribal 
elections in the tribal constitution or by tribal election ordinance or 
resolution; and (b) in the election board's judgment voting districts 
are needed, the board shall establish them and designate a polling place 
for each district. Where a reservation exists, no voting district may be 
established beyond its boundaries.



Sec. 81.10  District Election Boards.

    (a) Where voting districts have been established by the tribal 
constitution, ordinance, resolution, or by the election board, the 
election board shall appoint district election boards for each district, 
which shall have the duties prescribed above for the election board 
except that they shall return to the election board:
    (1) The ballots (in marked and locked boxes),
    (2) All unused ballots, and
    (3) Their certifications of the district election results on the 
certification forms prescribed by the election board.
    (b) The board will compile the election results for the entire 
reservation and transmit them together with the aforementioned ballots 
and ballot boxes to the officer in charge.



Sec. 81.11  Registration.

    (a) Only registered voters will be entitled to vote, and all 
determinations of the sufficiency of the number of ballots cast will be 
based upon the number of registered voters. The election board, upon 
receipt of authorization to conduct an election, shall notify by regular 
mail all adult members of the tribe, who to its knowledge are eligible 
to vote pursuant to Sec. 81.6 of the need to register if they intend to 
vote. Any tribal member who, to the election board's knowledge, will 
become 18 years of age within 150 days (180 days for Alaska tribes) from 
the date of authorization and who is otherwise eligible to vote shall 
also be notified and shall be eligible to register, provided that such a 
person shall not be entitled to vote if election day falls before the 
individual's 18th birthday. This notice shall be sent to an individual's 
last known address as it appears on the records of the local unit of the 
Bureau of Indian Affairs having jurisdiction. Each notice addressed to a 
tribal member not residing on the reservation shall be accompanied by a 
preaddressed registration form (BIA Form 8302) which shall set forth the 
following information in the upper right corner:
    (1) OMB Clearance Number 1076-003, Expires June 30, 1983;
    (2) The name and address of the person desiring to register;
    (3) A statement with a signature line attesting that the individual 
is a tribal member and is at least 18 years of age, or will be within 
150 days, (180 days for Alaska tribes) from the date of authorization; 
and

[[Page 252]]

    (4) The three following statements: ``Completion of and return of 
this registration form is necessary if you desire to become qualified to 
vote in the forthcoming constitutional or charter election.'' ``This 
form, upon completion and return to the election board, shall be the 
basis for determining whether you qualify to have your name placed upon 
the list of registered voters and receive a ballot'' and ``completion 
and return of this form is voluntary.'' Members who qualify as absentee 
voters and wish to cast an absentee ballot must complete and return the 
above registration form before, or in conjunction with, requesting an 
absentee ballot in sufficient time to permit compliance with Sec. 81.12.
    (b) The following records shall be kept for all notices:
    (1) Names and addresses of persons to whom notices are mailed;
    (2) Date of mailing; and
    (3) A copy of each return registration request (including from whom 
received and date and time of receipt).
Tribal members living on the reservation who desire to vote must 
register with the election board in the manner it determines in time to 
permit compliance with Sec. 81.12. Registration procedures for such 
Indians shall be included in the notice of the need to register to 
resident members.

[46 FR 1670, Jan. 7, 1981, as amended at 46 FR 38352, July 27, 1981. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 81.12  Voting list.

    The election board shall compile in alphabetical order an official 
list of registered voters arranged by voting districts, if any. This 
list shall designate, where applicable, those who have requested an 
absentee ballot and the members of the tribe who are or will have 
attained the age of 18 years within 150 days (180 days for Alaska 
tribes) from the date an election is authorized and who have duly 
registered to vote. A copy of this list shall be supplied to any 
district election board and shall be posted at the headquarters of the 
local administrative unit of the Bureau of Indian Affairs, the tribal 
headquarters, and at various other public places designated by the 
election board at least 20 days prior to the election.



Sec. 81.13  Eligibility disputes.

    The election board shall determine the eligibility of any written 
claim to vote presented to it by one whose name does not appear on the 
official list of registered voters as well as any written challenge of 
the right to vote of anyone whose name is on the list. Its decision 
shall be final. It shall rule on all claims no later than ten days 
before the election. Any claim not presented at least ten days before 
the election shall be disallowed. Nonresident claimants successfully 
appealing omission from the list shall immediately be furnished an 
absentee ballot. Omission of names from the voters list due to late 
registration, if notification (pursuant to Sec. 81.14) has been timely 
mailed, shall not be considered grounds for challenge.



Sec. 81.14  Election notices.

    Not less than 30 nor more than 60 days notice shall be given of the 
date of the election. Such notice shall include the location of where 
the results will be posted. The notice shall also advise that persons 
must register if they intend to vote. The election board shall determine 
whether the notice will be given by television, radio, newspaper, 
poster, or mail, or by more than one of these methods and whether in an 
Indian language in addition to English. A copy of any written election 
notice may be mailed to each registered voter and shall be posted at the 
local administrative unit of the Bureau of Indian Affairs and elsewhere 
as directed by the election board. At any time after receiving 
Secretarial authorization to hold the election, the board shall make 
available to the adult members of the tribe the text of any amendment or 
proposed constitution and bylaws, amendment thereto, charter, or charter 
amendment. The election board may determine the manner and timing of the 
distribution. However, the text shall be posted at least within the 
local administrative unit of the Bureau and the tribal headquarters 
within two days following the giving of notice of the election date by 
the election board.



Sec. 81.15  Opening and closing of polls.

    If polling places are established, the polls shall remain open from 
8 a.m. to

[[Page 253]]

7 p.m., local time, unless different hours are set by the election board 
and the voters are informed of this in the election notice.



Sec. 81.16  Interpreters.

    Interpreters, where needed, may be provided to explain the manner of 
voting to any voter who asks for instructions; provided, that all 
reasonable precautions are taken to ensure that the interpreter does not 
influence the voter in casting the ballot. The interpreter may accompany 
the voter into the booth upon the latter's request.



Sec. 81.17  Electioneering.

    There shall be no electioneering during voting hours within 50 feet 
of any voting place. Sample ballots will be permitted in the voting 
booth.



Sec. 81.18  Manner of voting.

    (a) Registered voters may vote by arriving at the appropriate 
polling place within the prescribed voting hours telling officials their 
names and addresses, signing their signature or mark on the voting list, 
and by marking and placing in the ballot box the ballots which will be 
handed to them. Voting shall be by secret ballot.
    (b) Voting may take place at the same time regarding the adoption of 
a constitution, the ratification of a charter, or the amendment of such 
documents; provided, that entitlement to vote for the proposal is 
consistent with Sec. 81.6 of this part and, provided further, that no 
charter shall be considered ratified if the proposed constitution is not 
adopted and approved.
    (c) The election board may choose not to use polling places and 
provide for the issuance and receipt of ballots entirely through the the 
United States Postal Service. In that event, the election board shall 
use the appropriate procedures set forth in this part relating to 
absentee balloting.



Sec. 81.19  Absentee voting.

    (a) Nonresident members who have registered may vote by absentee 
ballot except as prohibited by Sec. 81.6. Also, whenever, due to 
temporary absence from the reservation, illness, or physical disability, 
a registered and otherwise eligible voter is not able to vote at the 
polls and notifies the election board, the voter shall be entitled to 
vote by absentee ballot. Upon his or her request, the election board 
shall give or mail absentee ballots to registered voters who may be 
entitled to receive them pursuant to Sec. 81.6. At the same time, such 
voters will also be provided a copy of the proposal to be voted upon 
when the full text does not appear on the ballot. Appropriate records 
shall be kept of those from whom requests are received and the date they 
were received. The election board shall allow an absentee voter no less 
than ten days from the mailing out of an absentee ballot to receive and 
return the ballot. This period shall not be afforded absentee voters 
desiring to exchange a mutilated or spoiled ballot less than ten days 
before the election date. While requests for absentee ballots received 
less than ten days before an election will be promptly honored, no 
absentee ballot will be counted if received later than either the close 
of the polls or after some other deadline established by the election 
board. The election board shall furnish election officials the names of 
individuals who have been given or had mailed to them an absentee 
ballot.
    (b) Accompanying the absentee ballot shall be:
    (1) An inner envelope bearing on the outside, the words ``Absentee 
Ballot,''
    (2) Instructions for completion of the absentee ballot,
    (3) A copy of the proposed amendment, and
    (4) A preaddressed outer envelope, imprinted on the back with a 
certificate as follows:

    I, (name of voter), hereby certify that I am a qualified voter of 
the (name) Tribe of Indians; that I will be 18 years of age or over at 
the election date and am entitled to vote in the election to be held on 
(date of election); and that I cannot appear at the polling place on the 
reservation on the date of the election because (indicate one of the 
following reasons): I am a non resident voter {time} ; or I expect to be 
temporarily absent from the reservation {time} ; or because of illness 
{time} ; or physical disability {time} ; or because no polling place has 
been established {time} . I further certify that I marked the enclosed 
ballot in secret.

        Signed:______________(voter's signature).


[[Page 254]]


    (c) The absentee voter shall mark the ballot and the ballot shall 
then be folded so as to conceal the marking and be placed in the 
envelope marked ``Absentee Ballot'' and the envelope sealed. The voter 
shall then place the sealed envelope marked ``Absentee Ballot'' in the 
outer envelope, seal it and complete the certificate and mail it. The 
preaddressed outer envelope shall be directed to the election board at 
the reservation. Absentee ballots must be received by the election board 
not later than the close of the polls or as otherwise directed by the 
election board.
    (d) The election board shall make and keep a record of ballots 
mailed, to whom mailed, the date of mailing, the address on the 
envelope, the date of the return of the ballot, and from whom received. 
After duly recording the receipt date of absentee ballots received on 
time, representatives of the election board shall open the outer 
envelopes, secure them and place the unmarked inner envelopes containing 
the ballots in a separate box reserved for that purpose. After all other 
ballots have been counted, the absentee ballots shall be counted 
immediately and included in the results of the election.



Sec. 81.20  Ballots.

    (a) Ballots are to be prepared clearly and simply so that it is easy 
for the voters to indicate a choice between no more than two 
alternatives. For example, if a tribal council or the petitioners 
propose to reduce the one-half degree blood quantum required to qualify 
for membership but want the voters to decide whether it should be one-
fourth or one-eight, it would not be appropriate to put those two 
alternatives on the ballot. Doing so, would deny the voters an 
opportunity to vote for keeping the one-half degree blood quantum. 
Neither would it be appropriate to include all three blood quantum 
alternatives. Rather, those proposing the change should decide which 
blood quantum is to be submitted to the voters. The ballot in the 
Secretarial election would then give the electors the choice of marking 
either ``yes'' or ``no.'' A vote against the proposed change would be in 
favor of keeping the one-half degree blood quantum in the example.
    (b) In preparing ballots for proposed amendments, care should be 
taken to ensure that:
    (1) Each proposed amendment addresses only a single question.
    (2) If a proposed amendment conflicts with other provisions of the 
document being amended, the ballot shall be prepared so that the 
question includes all changes in those other directly related provisions 
in order to avoid contradictions within the document.
    (3) When more than one amendment is being submitted to the voters at 
a given election, the proposals shall be identified with alphabetical 
designations rather than numerical. The first of the several proposals 
would be labeled ``Proposed Amendment A,'' the next would be ``Proposed 
Amendment B,'' etc. Those amendments that are adopted and approved would 
then be assigned consecutive numbers to follow those assigned any 
earlier amendments that may have been make to that governing document. A 
statement similar to the following shall appear on each of the proposed 
amendments and shall be completed following the election:

    Having been duly adopted and approved, Proposed Amendment (A,B,C, 
etc.) is hereby designated as Amendment No. -- to the (Constitution, 
Charter, etc.) of the (name of tribe) Tribe.

    (c) The election board will supply all ballots. Each ballot shall be 
stamped in red ink on its face in the same place:

OFFICIAL BALLOT
(Facsimile Signature)
CHAIRMAN, ELECTION BOARD

    (d) Should any voter spoil or mutilate a ballot in the course of 
voting at a poll, the voter shall destroy it in the presence of the 
election officials and the election officials shall then make note of 
the destroyed ballot and furnish the voter with another ballot.
    (e) Any spoiled or mutilated absentee ballot may be exchanged for a 
new one by returning it to the election board with a request for 
another. The board shall honor the request promptly and note the dates 
of related actions. No extension of time will be granted for receipt of 
exchanged ballots that might not be cast on time.

[[Page 255]]



Sec. 81.21  Counting of ballots.

    All duly cast ballots are to be counted. Even though it will not be 
possible to determine the intent of the voter regarding spoiled and 
mutilated ballots, they are to be counted for purposes of determining 
whether the required percentage of voters have cast their ballots in the 
election. Invalid ballots shall not be counted for purposes of 
determining the required percentage of votes cast.



Sec. 81.22  Contesting of election results.

    Any qualified voter, within three days following the posting of the 
results of an election, may challenge the election results by filing 
with the Secretary through the officer in charge the grounds for the 
challenge, together with substantiating evidence. If in the opinion of 
the Secretary, the objections are valid and warrant a recount or new 
election, the Secretary shall order a recount or a new election. The 
results of the recount or new election shall be final.



Sec. 81.23  Posting and certifying election results.

    (a) The results of the election shall be posted in the local Bureau 
of Indian Affairs office, tribal headquarters, and at other appropriate 
public places determined by the election board.
    (b) The election board shall certify the results of the election on 
the following form and transmit them to the local unit of the Bureau of 
Indian Affairs:

                   Certificate of Results of Election

    Pursuant to a Secretarial election authorized by the (title of 
authorizing officer) on (date), the attached Constitution and Bylaws 
(Amendment, Charter or Charter Amendment) of the (name of tribe) was 
submitted to the qualified voters of the tribe and on (date), was duly 
(adopted) (ratified) (rejected) or (revoked) by a vote of (number) for 
and (number) against and (number) cast ballots found spoiled or 
mutilated in an election in which at least 30 percent (or such 
``percentages'' as may be required to amend according to the 
constitution) of the (number) members entitled to vote, cast their 
ballot in accordance with (appropriate Federal statute). Signed: (By the 
chairman of the election board and board members.)

Date: --------------------------------------



Sec. 81.24  Approval, disapproval, or rejection action.

    (a) Action to approve or disapprove constitutional actions will be 
taken promptly by the authorizing officer following receipt of the 
original text of the material voted upon and the original of the 
Certificate of Results of Election from the officer in charge.
    (1) When required and granted, the authorizing officer shall furnish 
a tribe with written approval of constitutional actions. In the absence 
of an election challenge, the approval shall be issued promptly 
following the expiration of the contest period. Copies of his/her 
written approval, the Certificate of Results of Election, and the text 
of the material voted upon shall be transmitted to the Commissioner of 
Indian Affairs, 18th and C Streets, NW., Washington, DC 20245.
    (2) When a proposed constitution or charter action is rejected by 
the voters, the authorizing officer shall indicate in writing to the 
tribe his/her awareness of the election results and send to the 
Commissioner of Indian Affairs in Washington, DC, copies of the 
communication, the Certificate of Results of Election and the text of 
the material voted upon.
    (3) When the authorizing officer disapproves a constitutional 
action, he/she shall in writing promptly notify the tribe of the 
determination and furnish the Commissioner of Indian Affairs in 
Washington, DC, a copy of the communication along with the Certificate 
of Results of Election and the text of the material voted upon.
    (b) Where Secretarial approval of proposed constitutional and 
charter actions is required in conjunction with authorization of an 
election, copies of the formal approval shall immediately be furnished 
the Commissioner of Indian Affairs in Washington, DC, by the authorizing 
officer and be followed in accordance with paragraph (a)(1) of this 
section by copies of the Certificate of the Results of Election and the 
text of the material voted upon as soon as it is available.

[[Page 256]]



PART 82--PETITIONING PROCEDURES FOR TRIBES REORGANIZED UNDER FEDERAL STATUTE AND OTHER ORGANIZED TRIBES--Table of Contents




Sec.
82.1  Definitions.
82.2  Purpose and scope.
82.3  Applicability to tribal groups.
82.4  Entitlement to petition.
82.5  Sufficiency of a petition.
82.6  Petition format.
82.7  Notarization of petition signatures.
82.8  Filing of petitions.
82.9  Challenges.
82.10  Action on the petition.
82.11  Duration of petition.

    Authority:  5 U.S.C. 301, and 25 U.S.C. 2, 9, 473a, 476, 477 and 
503.

    Source: 46 FR 1675, Jan. 7, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 82.1  Definitions.

    As used in this part:
    (a) Area Director means the Director of the Bureau Area Office 
having administrative jurisdiction over the petitioners' tribe.
    (b) Bureau means the Bureau of Indian Affairs.
    (c) Charter means a charter of incorporation the Secretary may issue 
to a recognized tribe pursuant to a Federal Statute.
    (d) Commissioner means the Commissioner of Indian Affairs or his/her 
authorized representative.
    (e) Constitution or Constitution and Bylaws means the written 
organizational framework of any tribe for the exercise of governmental 
powers.
    (f) Eligible, entitled, or qualified voter means the status achieved 
by a tribal member who meets the requirement of a tribal constitution or 
election ordinance to vote in a tribal election; provided, that where a 
tribe has reorganized pursuant to a Federal Statute, to be an entitled 
or a qualified voter for purposes of this part, the tribal member must 
be at least 18 years of age and be eligible to register for voting in a 
Secretarial election (see part 81 of this chapter).
    (g) Federal Statute means one of the following: (1) The Act of June 
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act), (2) the 
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act), or 
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization 
Act).
    (h) Local Bureau Official means the Superintendent, Field 
Representative, or other line officer of the Bureau of Indian Affairs 
who has local administrative jurisdiction over the tribe concerned.
    (i) Local Bureau unit means the Bureau office having local 
administrative jurisdiction over the tribe concerned.
    (j) Member means any person who is duly enrolled in a tribe, who 
meets a tribe's written criteria for membership, or is recognized as 
belonging to a tribe by the local Indians comprising that tribe.
    (k) Organized tribe means any tribe that has adopted a constitution 
outside of a Federal Statute.
    (l) Reorganized tribe means any tribe that has adopted a 
constitution pursuant to a Federal Statute.
    (m) Secretarial election means an election held within a tribe 
pursuant to regulations prescribed by the Secretary (as distinguished 
from tribal elections which are conducted under tribal authority (See 
Cheyenne River Sioux Tribe v. Andrus, 566 F.2d 1085 (8th Cir., 1977), 
cert. denied 439 U.S. 820 (1978)).
    (n) Secretary means the Secretary of the Interior or his/her 
authorized representative.
    (o) Spokesman for the petitioners means the authorized voter of a 
tribe initiating a petition or designated by the initiators of a 
petition to speak on their behalf.
    (p) Tribe means any Indian entity that is listed or is eligible to 
be listed in the Federal Register pursuant to Sec. 83.6(b) of this 
chapter as recognized and receiving services from the Bureau that has 
adopted a constitution approved by the Secretary or the Commissioner.



Sec. 82.2  Purpose and scope.

    The purpose of this part is to provide uniformity and order in the 
formulation and submission of petitions requesting the Secretary or the 
Commissioner to call elections to amend tribal constitutions, to issue 
charters pursuant to a Federal Statute, and for such other purposes 
where constitutions and

[[Page 257]]

charters provide for petitioning to effect action by the Secretary or 
Commissioner.



Sec. 82.3  Applicability to tribal groups.

    The regulations in this part apply:
    (a) To any tribe which provides in its constitution for petitioning 
the Secretary or the Commissioner to call elections to amend the tribal 
constitution;
    (b) To any tribe whose constitution or charter provides for 
petitioning to effect any other action by the Secretary or Commissioner; 
and
    (c) To those tribal members at least 18 years of age who, pursuant 
to a Federal Statute, may wish to petition the Secretary to issue a 
charter to their tribe.



Sec. 82.4  Entitlement to petition.

    All members eligible to vote in elections conducted by a tribe shall 
be entitled to sign petitions to effect actions by the Secretary or 
Commissioner within the scope of Sec. 82.2; provided, that where a tribe 
is reorganized pursuant to a Federal Statute, only persons eligible to 
register for Secretarial elections may petition.



Sec. 82.5  Sufficiency of a petition.

    (a) The numerical sufficiency of any petition submitted pursuant to 
this part shall be based upon a number determined by the local Bureau 
official:
    (1) By consultation with the tribal governing body regarding the 
current number of tribal voters; or
    (2) For reorganized tribes, the number of members considered 
eligible to register for a Secretarial election and who are at least 18 
years of age.
    (b) The number shall be made available to the spokesman for the 
petitioners upon request along with a cut-off date when, for purposes of 
the petition, no further names will be added.



Sec. 82.6  Petition format.

    Petitions may consist of as many pages as are necessary to 
accommodate the signatures of the petitioners. However, each sheet of a 
petition must set forth at least a summary of the objectives of the 
petitioners and must show the date upon which the petition was signed by 
each individual as well as the current mailing address of each signer.



Sec. 82.7  Notarization of petition signatures.

    (a) Signatures to a petition must be authenticated in one of the 
following ways:
    (1) Through having each signer subscribe or acknowledge his/her 
signature before a notary public;
    (2) Through having the collector of signatures appeal before a 
notary and sign, in his/her presence, on each sheet of the petition, a 
statement attesting that the signatures were affixed on the dates shown 
and by the individuals whose names appear thereon, and that to the best 
of his/her knowledge the signatories are eligible, entitled, or 
qualified voters.
    (b) Only an eligible, entitled, or qualified tribal voter shall be 
recognized as a valid collector of petition signatures.



Sec. 82.8  Filing of petitions.

    All petitions submitted pursuant to this part must be filed with the 
local Bureau official having administrative jurisdiction over the tribe. 
No petitions will be accepted until a spokesman for the petitioners 
declares that he/she wishes to make an official filing. Once a 
declaration of the official filing is made and the petition is given to 
the local Bureau official, that official shall immediately enter on the 
petition the date of receipt (this date becomes the date of official 
filing) and shall inform the spokesman for the petitioners that no 
additional signatures may be added and that no withdrawal of signatures 
will be permitted. The local Bureau official shall also acknowledge, in 
writing, receipt of the petition, indicating the exact number of 
signatures which are attached and the official filing date. Upon this 
written acknowledgment of the petition, the local Bureau official shall 
publicly post at the local Bureau unit serving the tribe a statement of 
the matter proposed in the petition. This statement shall remain posted 
for a period of 30 days from the official filing date.

[[Page 258]]



Sec. 82.9  Challenges.

    (a) Once an official filing has been made, the local Bureau official 
shall immediately have copies made of the petition and its signatures. 
The local Bureau official shall keep these copies at the Agency or field 
office for 15 days following the date of official filing, during which 
time they shall be available for examination by authorized voters of the 
tribe upon request. During this 15-day period, challenges of signatures 
may be filed with the local Bureau official.
    (b) Challenges will be considered on the following grounds:
    (1) Forgery of signatures; and
    (2) Lack of proper qualifications of a signer.
No challenge will be considered which is not accompanied by supporting 
evidence in writing. In the event that an individual's name appears on a 
petition more than once, all but one of the names shall be stricken.



Sec. 82.10  Action on the petition.

    (a) Within 30 days after the official filing date, the local Bureau 
official shall forward to the Area Director, or when the Area Director 
is the local Bureau official, directly to the Commissioner, the original 
of the petition and its accompanying signatures, together with 
recommendations concerning challenges and conclusions concerning:
    (1) The validity of the signatures;
    (2) The adequacy of the number of signatures; and
    (3) The propriety of the petitioning procedure.
    (b) The Area Director or the Commissioner, as the case may be, shall 
within 45 days after the official filing date decide upon each challenge 
and the sufficiency of the petition and announce whether the petition 
shall be acted upon. If a decision is reached that the petitioning 
action is for any reason insufficient, the spokesman for the petitioners 
and the governing body of the tribe will be so informed and given the 
reasons for the decision. If a petitioning action warrants action by the 
Secretary or Commissioner, the spokesman for the petitioners and the 
governing body of the tribe concerned will be so informed. The decision 
in such matters shall be final. The procedures for implementing any 
action initiated by the acceptance of a petition will be determined in 
accordance with pertinent directives and regulations.



Sec. 82.11  Duration of petition.

    Any petition submitted under this part, shall be considered only for 
the purpose stated therein. Once a petition has been acted upon, it 
shall not be used again.



PART 83--PROCEDURES FOR ESTABLISHING THAT AN AMERICAN INDIAN GROUP EXISTS AS AN INDIAN TRIBE--Table of Contents




Sec.
83.1  Definitions.
83.2  Purpose.
83.3  Scope.
83.4  Filing a letter of intent.
83.5  Duties of the Department.
83.6  General provisions for the documented petition.
83.7  Mandatory criteria for Federal acknowledgment.
83.8  Previous Federal acknowledgment
83.9  Notice of receipt of a petition.
83.10  Processing of the documented petition.
83.11  Independent review, reconsideration and final action.
83.12  Implementation of decisions.
83.13  Information collection.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and 209 
Departmental Manual 8.

    Source: 59 FR 9293, Feb. 25, 1994, unless otherwise noted.



Sec. 83.1  Definitions.

    As used in this part:
    Area Office means a Bureau of Indian Affairs Area Office.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
or that officer's authorized representative.
    Autonomous means the exercise of political influence or authority 
independent of the control of any other Indian governing entity. 
Autonomous must be understood in the context of the history, geography, 
culture and social organization of the petitioning group.
    Board means the Interior Board of Indian Appeals.
    Bureau means the Bureau of Indian Affairs.

[[Page 259]]

    Community means any group of people which can demonstrate that 
consistent interactions and significant social relationships exist 
within its membership and that its members are differentiated from and 
identified as distinct from nonmembers. Community must be understood in 
the context of the history, geography, culture and social organization 
of the group.
    Continental United States means the contiguous 48 states and Alaska.
    Continuously or continuous means extending from first sustained 
contact with non-Indians throughout the group's history to the present 
substantially without interruption.
    Department means the Department of the Interior.
    Documented petition means the detailed arguments made by a 
petitioner to substantiate its claim to continuous existence as an 
Indian tribe, together with the factual exposition and all documentary 
evidence necessary to demonstrate that these arguments address the 
mandatory criteria in Sec. 83.7(a) through (g).
    Historically, historical or history means dating from first 
sustained contact with non-Indians.
    Indian group or group means any Indian or Alaska Native aggregation 
within the continental United States that the Secretary of the Interior 
does not acknowledge to be an Indian tribe.
    Indian tribe, also referred to herein as tribe, means any Indian or 
Alaska Native tribe, band, pueblo, village, or community within the 
continental United States that the Secretary of the Interior presently 
acknowledges to exist as an Indian tribe.
    Indigenous means native to the continental United States in that at 
least part of the petitioner's territory at the time of sustained 
contact extended into what is now the continental United States.
    Informed party means any person or organization, other than an 
interested party, who requests an opportunity to submit comments or 
evidence or to be kept informed of general actions regarding a specific 
petitioner.
    Interested party means any person, organization or other entity who 
can establish a legal, factual or property interest in an acknowledgment 
determination and who requests an opportunity to submit comments or 
evidence or to be kept informed of general actions regarding a specific 
petitioner. ``Interested party'' includes the governor and attorney 
general of the state in which a petitioner is located, and may include, 
but is not limited to, local governmental units, and any recognized 
Indian tribes and unrecognized Indian groups that might be affected by 
an acknowledgment determination.
    Letter of intent means an undocumented letter or resolution by which 
an Indian group requests Federal acknowledgment as an Indian tribe and 
expresses its intent to submit a documented petition.
    Member of an Indian group means an individual who is recognized by 
an Indian group as meeting its membership criteria and who consents to 
being listed as a member of that group.
    Member of an Indian tribe means an individual who meets the 
membership requirements of the tribe as set forth in its governing 
document or, absent such a document, has been recognized as a member 
collectively by those persons comprising the tribal governing body, and 
has consistently maintained tribal relations with the tribe or is listed 
on the tribal rolls of that tribe as a member, if such rolls are kept.
    Petitioner means any entity that has submitted a letter of intent to 
the Secretary requesting acknowledgment that it is an Indian tribe.
    Political influence or authority means a tribal council, leadership, 
internal process or other mechanism which the group has used as a means 
of influencing or controlling the behavior of its members in significant 
respects, and/or making decisions for the group which substantially 
affect its members, and/or representing the group in dealing with 
outsiders in matters of consequence. This process is to be understood in 
the context of the history, culture and social organization of the 
group.
    Previous Federal acknowledgment means action by the Federal 
government clearly premised on identification of a tribal political 
entity and indicating clearly the recognition of a relationship between 
that entity and the United States.

[[Page 260]]

    Secretary means the Secretary of the Interior or that officer's 
authorized representative.
    Sustained contact means the period of earliest sustained non-Indian 
settlement and/or governmental presence in the local area in which the 
historical tribe or tribes from which the petitioner descends was 
located historically.
    Tribal relations means participation by an individual in a political 
and social relationship with an Indian tribe.
    Tribal roll, for purposes of these regulations, means a list 
exclusively of those individuals who have been determined by the tribe 
to meet the tribe's membership requirements as set forth in its 
governing document. In the absence of such a document, a tribal roll 
means a list of those recognized as members by the tribe's governing 
body. In either case, those individuals on a tribal roll must have 
affirmatively demonstrated consent to being listed as members.



Sec. 83.2  Purpose.

    The purpose of this part is to establish a departmental procedure 
and policy for acknowledging that certain American Indian groups exist 
as tribes. Acknowledgment of tribal existence by the Department is a 
prerequisite to the protection, services, and benefits of the Federal 
government available to Indian tribes by virtue of their status as 
tribes. Acknowledgment shall also mean that the tribe is entitled to the 
immunities and privileges available to other federally acknowledged 
Indian tribes by virtue of their government-to-government relationship 
with the United States as well as the responsibilities, powers, 
limitations and obligations of such tribes. Acknowledgment shall subject 
the Indian tribe to the same authority of Congress and the United States 
to which other federally acknowledged tribes are subjected.



Sec. 83.3  Scope.

    (a) This part applies only to those American Indian groups 
indigenous to the continental United States which are not currently 
acknowledged as Indian tribes by the Department. It is intended to apply 
to groups that can establish a substantially continuous tribal existence 
and which have functioned as autonomous entities throughout history 
until the present.
    (b) Indian tribes, organized bands, pueblos, Alaska Native villages, 
or communities which are already acknowledged as such and are receiving 
services from the Bureau of Indian Affairs may not be reviewed under the 
procedures established by these regulations.
    (c) Associations, organizations, corporations or groups of any 
character that have been formed in recent times may not be acknowledged 
under these regulations. The fact that a group that meets the criteria 
in Sec. 83.7 (a) through (g) has recently incorporated or otherwise 
formalized its existing autonomous political process will be viewed as a 
change in form and have no bearing on the Assistant Secretary's final 
decision.
    (d) Splinter groups, political factions, communities or groups of 
any character that separate from the main body of a currently 
acknowledged tribe may not be acknowledged under these regulations. 
However, groups that can establish clearly that they have functioned 
throughout history until the present as an autonomous tribal entity may 
be acknowledged under this part, even though they have been regarded by 
some as part of or have been associated in some manner with an 
acknowledged North American Indian tribe.
    (e) Further, groups which are, or the members of which are, subject 
to congressional legislation terminating or forbidding the Federal 
relationship may not be acknowledged under this part.
    (f) Finally, groups that previously petitioned and were denied 
Federal acknowledgment under these regulations or under previous 
regulations in part 83 of this title, may not be acknowledged under 
these regulations. This includes reorganized or reconstituted 
petitioners previously denied, or splinter groups, spin-offs, or 
component groups of any type that were once part of petitioners 
previously denied.
    (g) Indian groups whose documented petitions are under active 
consideration at the effective date of these revised regulations may 
choose to complete their petitioning process either

[[Page 261]]

under these regulations or under the previous acknowledgment regulations 
in part 83 of this title. This choice must be made by April 26, 1994. 
This option shall apply to any petition for which a determination is not 
final and effective. Such petitioners may request a suspension of 
consideration under Sec. 83.10(g) of not more than 180 days in order to 
provide additional information or argument.



Sec. 83.4  Filing a letter of intent.

    (a) Any Indian group in the continental United States that believes 
it should be acknowledged as an Indian tribe and that it can satisfy the 
criteria in Sec. 83.7 may submit a letter of intent.
    (b) Letters of intent requesting acknowledgment that an Indian group 
exists as an Indian tribe shall be filed with the Assistant Secretary--
Indian Affairs, Department of the Interior, 1849 C Street, NW., 
Washington, DC 20240. Attention: Branch of Acknowledgment and Research, 
Mail Stop 2611-MIB. A letter of intent may be filed in advance of, or at 
the same time as, a group's documented petition.
    (c) A letter of intent must be produced, dated and signed by the 
governing body of an Indian group and submitted to the Assistant 
Secretary.



Sec. 83.5  Duties of the Department.

    (a) The Department shall publish in the Federal Register, no less 
frequently than every three years, a list of all Indian tribes entitled 
to receive services from the Bureau by virtue of their status as Indian 
tribes. The list may be published more frequently, if the Assistant 
Secretary deems it necessary.

    (b) The Assistant Secretary shall make available revised and 
expanded guidelines for the preparation of documented petitions by 
September 23, 1994. These guidelines will include an explanation of the 
criteria and other provisions of the regulations, a discussion of the 
types of evidence which may be used to demonstrate particular criteria 
or other provisions of the regulations, and general suggestions and 
guidelines on how and where to conduct research. The guidelines may be 
supplemented or updated as necessary. The Department's example of a 
documented petition format, while preferable, shall not preclude the use 
of any other format.

    (c) The Department shall, upon request, provide petitioners with 
suggestions and advice regarding preparation of the documented petition. 
The Department shall not be responsible for the actual research on 
behalf of the petitioner.
    (d) Any notice which by the terms of these regulations must be 
published in the Federal Register, shall also be mailed to the 
petitioner, the governor of the state where the group is located, and to 
other interested parties.

    (e) After an Indian group has filed a letter of intent requesting 
Federal acknowledgment as an Indian tribe and until that group has 
actually submitted a documented petition, the Assistant Secretary may 
contact the group periodically and request clarification, in writing, of 
its intent to continue with the petitioning process.

    (f) All petitioners under active consideration shall be notified, by 
April 16, 1994, of the opportunity under Sec. 83.3(g) to choose whether 
to complete their petitioning process under the provisions of these 
revised regulations or the previous regulations as published, on 
September 5, 1978, at 43 FR 39361.

    (g) All other groups that have submitted documented petitions or 
letters of intent shall be notified of and provided with a copy of these 
regulations by July 25, 1994.



Sec. 83.6  General provisions for the documented petition.

    (a) The documented petition may be in any readable form that 
contains detailed, specific evidence in support of a request to the 
Secretary to acknowledge tribal existence.
     (b) The documented petition must include a certification, signed 
and dated by members of the group's governing body, stating that it is 
the group's official documented petition.
    (c) A petitioner must satisfy all of the criteria in paragraphs (a) 
through (g) of Sec. 83.7 in order for tribal existence to be 
acknowledged. Therefore, the documented petition must include thorough 
explanations and supporting

[[Page 262]]

documentation in response to all of the criteria. The definitions in 
Sec. 83.1 are an integral part of the regulations, and the criteria 
should be read carefully together with these definitions.
    (d) A petitioner may be denied acknowledgment if the evidence 
available demonstrates that it does not meet one or more criteria. A 
petitioner may also be denied if there is insufficient evidence that it 
meets one or more of the criteria. A criterion shall be considered met 
if the available evidence establishes a reasonable likelihood of the 
validity of the facts relating to that criterion. Conclusive proof of 
the facts relating to a criterion shall not be required in order for the 
criterion to be considered met.
    (e) Evaluation of petitions shall take into account historical 
situations and time periods for which evidence is demonstrably limited 
or not available. The limitations inherent in demonstrating the 
historical existence of community and political influence or authority 
shall also be taken into account. Existence of community and political 
influence or authority shall be demonstrated on a substantially 
continuous basis, but this demonstration does not require meeting these 
criteria at every point in time. Fluctuations in tribal activity during 
various years shall not in themselves be a cause for denial of 
acknowledgment under these criteria.
    (f) The criteria in Sec. 83.7 (a) through (g) shall be interpreted 
as applying to tribes or groups that have historically combined and 
functioned as a single autonomous political entity.
    (g) The specific forms of evidence stated in the criteria in 
Sec. 83.7 (a) through (c) and Sec. 83.7(e) are not mandatory 
requirements. The criteria may be met alternatively by any suitable 
evidence that demonstrates that the petitioner meets the requirements of 
the criterion statement and related definitions.



Sec. 83.7  Mandatory criteria for Federal acknowledgment.

    The mandatory criteria are:
    (a) The petitioner has been identified as an American Indian entity 
on a substantially continuous basis since 1900. Evidence that the 
group's character as an Indian entity has from time to time been denied 
shall not be considered to be conclusive evidence that this criterion 
has not been met. Evidence to be relied upon in determining a group's 
Indian identity may include one or a combination of the following, as 
well as other evidence of identification by other than the petitioner 
itself or its members.
    (1) Identification as an Indian entity by Federal authorities.
    (2) Relationships with State governments based on identification of 
the group as Indian.
    (3) Dealings with a county, parish, or other local government in a 
relationship based on the group's Indian identity.
    (4) Identification as an Indian entity by anthropologists, 
historians, and/or other scholars.
    (5) Identification as an Indian entity in newspapers and books.
    (6) Identification as an Indian entity in relationships with Indian 
tribes or with national, regional, or state Indian organizations.
    (b) A predominant portion of the petitioning group comprises a 
distinct community and has existed as a community from historical times 
until the present.
    (1) This criterion may be demonstrated by some combination of the 
following evidence and/or other evidence that the petitioner meets the 
definition of community set forth in Sec. 83.1:
    (i) Significant rates of marriage within the group, and/or, as may 
be culturally required, patterned out-marriages with other Indian 
populations.
    (ii) Significant social relationships connecting individual members.
    (iii) Significant rates of informal social interaction which exist 
broadly among the members of a group.
    (iv) A significant degree of shared or cooperative labor or other 
economic activity among the membership.
    (v) Evidence of strong patterns of discrimination or other social 
distinctions by non-members.
    (vi) Shared sacred or secular ritual activity encompassing most of 
the group.
    (vii) Cultural patterns shared among a significant portion of the 
group that

[[Page 263]]

are different from those of the non-Indian populations with whom it 
interacts. These patterns must function as more than a symbolic 
identification of the group as Indian. They may include, but are not 
limited to, language, kinship organization, or religious beliefs and 
practices.
    (viii) The persistence of a named, collective Indian identity 
continuously over a period of more than 50 years, notwithstanding 
changes in name.
    (ix) A demonstration of historical political influence under the 
criterion in Sec. 83.7(c) shall be evidence for demonstrating historical 
community.
    (2) A petitioner shall be considered to have provided sufficient 
evidence of community at a given point in time if evidence is provided 
to demonstrate any one of the following:
    (i) More than 50 percent of the members reside in a geographical 
area exclusively or almost exclusively composed of members of the group, 
and the balance of the group maintains consistent interaction with some 
members of the community;
    (ii) At least 50 percent of the marriages in the group are between 
members of the group;
    (iii) At least 50 percent of the group members maintain distinct 
cultural patterns such as, but not limited to, language, kinship 
organization, or religious beliefs and practices;
    (iv) There are distinct community social institutions encompassing 
most of the members, such as kinship organizations, formal or informal 
economic cooperation, or religious organizations; or
    (v) The group has met the criterion in Sec. 83.7(c) using evidence 
described in Sec. 83.7(c)(2).
    (c) The petitioner has maintained political influence or authority 
over its members as an autonomous entity from historical times until the 
present.
    (1) This criterion may be demonstrated by some combination of the 
evidence listed below and/or by other evidence that the petitioner meets 
the definition of political influence or authority in Sec. 83.1.
    (i) The group is able to mobilize significant numbers of members and 
significant resources from its members for group purposes.
    (ii) Most of the membership considers issues acted upon or actions 
taken by group leaders or governing bodies to be of importance.
    (iii) There is widespread knowledge, communication and involvement 
in political processes by most of the group's members.
    (iv) The group meets the criterion in Sec. 83.7(b) at more than a 
minimal level.
    (v) There are internal conflicts which show controversy over valued 
group goals, properties, policies, processes and/or decisions.
    (2) A petitioning group shall be considered to have provided 
sufficient evidence to demonstrate the exercise of political influence 
or authority at a given point in time by demonstrating that group 
leaders and/or other mechanisms exist or existed which:
    (i) Allocate group resources such as land, residence rights and the 
like on a consistent basis.
    (ii) Settle disputes between members or subgroups by mediation or 
other means on a regular basis;
    (iii) Exert strong influence on the behavior of individual members, 
such as the establishment or maintenance of norms and the enforcement of 
sanctions to direct or control behavior;
    (iv) Organize or influence economic subsistence activities among the 
members, including shared or cooperative labor.
    (3) A group that has met the requirements in paragraph 83.7(b)(2) at 
a given point in time shall be considered to have provided sufficient 
evidence to meet this criterion at that point in time.
    (d) A copy of the group's present governing document including its 
membership criteria. In the absence of a written document, the 
petitioner must provide a statement describing in full its membership 
criteria and current governing procedures.
    (e) The petitioner's membership consists of individuals who descend 
from a historical Indian tribe or from historical Indian tribes which 
combined and functioned as a single autonomous political entity.
    (1) Evidence acceptable to the Secretary which can be used for this 
purpose includes but is not limited to:

[[Page 264]]

    (i) Rolls prepared by the Secretary on a descendancy basis for 
purposes of distributing claims money, providing allotments, or other 
purposes;
    (ii) State, Federal, or other official records or evidence 
identifying present members or ancestors of present members as being 
descendants of a historical tribe or tribes that combined and functioned 
as a single autonomous political entity.
    (iii) Church, school, and other similar enrollment records 
identifying present members or ancestors of present members as being 
descendants of a historical tribe or tribes that combined and functioned 
as a single autonomous political entity.
    (iv) Affidavits of recognition by tribal elders, leaders, or the 
tribal governing body identifying present members or ancestors of 
present members as being descendants of a historical tribe or tribes 
that combined and functioned as a single autonomous political entity.
    (v) Other records or evidence identifying present members or 
ancestors of present members as being descendants of a historical tribe 
or tribes that combined and functioned as a single autonomous political 
entity.
    (2) The petitioner must provide an official membership list, 
separately certified by the group's governing body, of all known current 
members of the group. This list must include each member's full name 
(including maiden name), date of birth, and current residential address. 
The petitioner must also provide a copy of each available former list of 
members based on the group's own defined criteria, as well as a 
statement describing the circumstances surrounding the preparation of 
the current list and, insofar as possible, the circumstances surrounding 
the preparation of former lists.
    (f) The membership of the petitioning group is composed principally 
of persons who are not members of any acknowledged North American Indian 
tribe. However, under certain conditions a petitioning group may be 
acknowledged even if its membership is composed principally of persons 
whose names have appeared on rolls of, or who have been otherwise 
associated with, an acknowledged Indian tribe. The conditions are that 
the group must establish that it has functioned throughout history until 
the present as a separate and autonomous Indian tribal entity, that its 
members do not maintain a bilateral political relationship with the 
acknowledged tribe, and that its members have provided written 
confirmation of their membership in the petitioning group.
    (g) Neither the petitioner nor its members are the subject of 
congressional legislation that has expressly terminated or forbidden the 
Federal relationship.



Sec. 83.8  Previous Federal acknowledgment.

    (a) Unambiguous previous Federal acknowledgment is acceptable 
evidence of the tribal character of a petitioner to the date of the last 
such previous acknowledgment. If a petitioner provides substantial 
evidence of unambiguous Federal acknowledgment, the petitioner will then 
only be required to demonstrate that it meets the requirements of 
Sec. 83.7 to the extent required by this section.
    (b) A determination of the adequacy of the evidence of previous 
Federal action acknowledging tribal status shall be made during the 
technical assistance review of the documented petition conducted 
pursuant to Sec. 83.10(b). If a petition is awaiting active 
consideration at the time of adoption of these regulations, this review 
will be conducted while the petition is under active consideration 
unless the petitioner requests in writing that this review be made in 
advance.
    (c) Evidence to demonstrate previous Federal acknowledgment 
includes, but is not limited to:
    (1) Evidence that the group has had treaty relations with the United 
States.
    (2) Evidence that the group has been denominated a tribe by act of 
Congress or Executive Order.
    (3) Evidence that the group has been treated by the Federal 
Government as having collective rights in tribal lands or funds.
    (d) To be acknowledged, a petitioner that can demonstrate previous 
Federal acknowledgment must show that:

[[Page 265]]

    (1) The group meets the requirements of the criterion in 
Sec. 83.7(a), except that such identification shall be demonstrated 
since the point of last Federal acknowledgment. The group must further 
have been identified by such sources as the same tribal entity that was 
previously acknowledged or as a portion that has evolved from that 
entity.
    (2) The group meets the requirements of the criterion in 
Sec. 83.7(b) to demonstrate that it comprises a distinct community at 
present. However, it need not provide evidence to demonstrate existence 
as a community historically.
    (3) The group meets the requirements of the criterion in 
Sec. 83.7(c) to demonstrate that political influence or authority is 
exercised within the group at present. Sufficient evidence to meet the 
criterion in Sec. 83.7(c) from the point of last Federal acknowledgment 
to the present may be provided by demonstration of substantially 
continuous historical identification, by authoritative, knowledgeable 
external sources, of leaders and/or a governing body who exercise 
political influence or authority, together with demonstration of one 
form of evidence listed in Sec. 83.7(c).
    (4) The group meets the requirements of the criteria in paragraphs 
83.7 (d) through (g).
    (5) If a petitioner which has demonstrated previous Federal 
acknowledgment cannot meet the requirements in paragraphs (d) (1) and 
(3), the petitioner may demonstrate alternatively that it meets the 
requirements of the criteria in Sec. 83.7 (a) through (c) from last 
Federal acknowledgment until the present.



Sec. 83.9  Notice of receipt of a petition.

    (a) Within 30 days after receiving a letter of intent, or a 
documented petition if a letter of intent has not previously been 
received and noticed, the Assistant Secretary shall acknowledge such 
receipt in writing and shall have published within 60 days in the 
Federal Register a notice of such receipt. This notice must include the 
name, location, and mailing address of the petitioner and such other 
information as will identify the entity submitting the letter of intent 
or documented petition and the date it was received. This notice shall 
also serve to announce the opportunity for interested parties and 
informed parties to submit factual or legal arguments in support of or 
in opposition to the petitioner's request for acknowledgment and/or to 
request to be kept informed of all general actions affecting the 
petition. The notice shall also indicate where a copy of the letter of 
intent and the documented petition may be examined.
    (b) The Assistant Secretary shall notify, in writing, the governor 
and attorney general of the state in which a petitioner is located. The 
Assistant Secretary shall also notify any recognized tribe and any other 
petitioner which appears to have a historical or present relationship 
with the petitioner or which may otherwise be considered to have a 
potential interest in the acknowledgment determination.
    (c) The Assistant Secretary shall also publish the notice of receipt 
of the letter of intent, or documented petition if a letter of intent 
has not been previously received, in a major newspaper or newspapers of 
general circulation in the town or city nearest to the petitioner. The 
notice will include all of the information in paragraph (a) of this 
section.



Sec. 83.10  Processing of the documented petition.

    (a) Upon receipt of a documented petition, the Assistant Secretary 
shall cause a review to be conducted to determine whether the petitioner 
is entitled to be acknowledged as an Indian tribe. The review shall 
include consideration of the documented petition and the factual 
statements contained therein. The Assistant Secretary may also initiate 
other research for any purpose relative to analyzing the documented 
petition and obtaining additional information about the petitioner's 
status. The Assistant Secretary may likewise consider any evidence which 
may be submitted by interested parties or informed parties.
    (b) Prior to active consideration of the documented petition, the 
Assistant Secretary shall conduct a preliminary review of the petition 
for purposes of technical assistance.

[[Page 266]]

    (1) This technical assistance review does not constitute the 
Assistant Secretary's review to determine if the petitioner is entitled 
to be acknowledged as an Indian tribe. It is a preliminary review for 
the purpose of providing the petitioner an opportunity to supplement or 
revise the documented petition prior to active consideration. Insofar as 
possible, technical assistance reviews under this paragraph will be 
conducted in the order of receipt of documented petitions. However, 
technical assistance reviews will not have priority over active 
consideration of documented petitions.
    (2) After the technical assistance review, the Assistant Secretary 
shall notify the petitioner by letter of any obvious deficiencies or 
significant omissions apparent in the documented petition and provide 
the petitioner with an opportunity to withdraw the documented petition 
for further work or to submit additional information and/or 
clarification.
    (3) If a petitioner's documented petition claims previous Federal 
acknowledgment and/or includes evidence of previous Federal 
acknowledgment, the technical assistance review will also include a 
review to determine whether that evidence is sufficient to meet the 
requirements of previous Federal acknowledgment as defined in Sec. 83.1.
    (c) Petitioners have the option of responding in part or in full to 
the technical assistance review letter or of requesting, in writing, 
that the Assistant Secretary proceed with the active consideration of 
the documented petition using the materials already submitted.
    (1) If the petitioner requests that the materials submitted in 
response to the technical assistance review letter be again reviewed for 
adequacy, the Assistant Secretary will provide the additional review. 
However, this additional review will not be automatic and will be 
conducted only at the request of the petitioner.
    (2) If the assertion of previous Federal acknowledgment under 
Sec. 83.8 cannot be substantiated during the technical assistance 
review, the petitioner must respond by providing additional evidence. A 
petitioner claiming previous Federal acknowledgment who fails to respond 
to a technical assistance review letter under this paragraph, or whose 
response fails to establish the claim, shall have its documented 
petition considered on the same basis as documented petitions submitted 
by groups not claiming previous Federal acknowledgment. Petitioners that 
fail to demonstrate previous Federal acknowledgment after a review of 
materials submitted in response to the technical assistance review shall 
be so notified. Such petitioners may submit additional materials 
concerning previous acknowledgment during the course of active 
consideration.
    (d) The order of consideration of documented petitions shall be 
determined by the date of the Bureau's notification to the petitioner 
that it considers that the documented petition is ready to be placed on 
active consideration. The Assistant Secretary shall establish and 
maintain a numbered register of documented petitions which have been 
determined ready for active consideration. The Assistant Secretary shall 
also maintain a numbered register of letters of intent or incomplete 
petitions based on the original date of filing with the Bureau. In the 
event that two or more documented petitions are determined ready for 
active consideration on the same date, the register of letters of intent 
or incomplete petitions shall determine the order of consideration by 
the Assistant Secretary.
    (e) Prior to active consideration, the Assistant Secretary shall 
investigate any petitioner whose documented petition and response to the 
technical assistance review letter indicates that there is little or no 
evidence that establishes that the group can meet the mandatory criteria 
in paragraph (e), (f) or (g) of Sec. 83.7.
    (1) If this review finds that the evidence clearly establishes that 
the group does not meet the mandatory criteria in paragraph (e), (f) or 
(g) of Sec. 83.7, a full consideration of the documented petition under 
all seven of the mandatory criteria will not be undertaken pursuant to 
paragraph (a) of this

[[Page 267]]

section. Rather, the Assistant Secretary shall instead decline to 
acknowledge that the petitioner is an Indian tribe and publish a 
proposed finding to that effect in the Federal Register. The periods for 
receipt of comments on the proposed finding from petitioners, interested 
parties and informed parties, for consideration of comments received, 
and for publication of a final determination regarding the petitioner's 
status shall follow the timetables established in paragraphs (h) through 
(l) of this section.
    (2) If the review cannot clearly demonstrate that the group does not 
meet one or more of the mandatory criteria in paragraph (e), (f) or (g) 
of Sec. 83.7, a full evaluation of the documented petition under all 
seven of the mandatory criteria shall be undertaken during active 
consideration of the documented petition pursuant to paragraph (g) of 
this section.
    (f) The petitioner and interested parties shall be notified when the 
documented petition comes under active consideration.
    (1) They shall also be provided with the name, office address, and 
telephone number of the staff member with primary administrative 
responsibility for the petition; the names of the researchers conducting 
the evaluation of the petition; and the name of their supervisor.
    (2) The petitioner shall be notified of any substantive comment on 
its petition received prior to the beginning of active consideration or 
during the preparation of the proposed finding, and shall be provided an 
opportunity to respond to such comments.
    (g) Once active consideration of the documented petition has begun, 
the Assistant Secretary shall continue the review and publish proposed 
findings and a final determination in the Federal Register pursuant to 
these regulations, notwithstanding any requests by the petitioner or 
interested parties to cease consideration. The Assistant Secretary has 
the discretion, however, to suspend active consideration of a documented 
petition, either conditionally or for a stated period of time, upon a 
showing to the petitioner that there are technical problems with the 
documented petition or administrative problems that temporarily preclude 
continuing active consideration. The Assistant Secretary shall also 
consider requests by petitioners for suspension of consideration and has 
the discretion to grant such requests for good cause. Upon resolution of 
the technical or administrative problems that are the basis for the 
suspension, the documented petition will have priority on the numbered 
register of documented petitions insofar as possible. The Assistant 
Secretary shall notify the petitioner and interested parties when active 
consideration of the documented petition is resumed. The timetables in 
succeeding paragraphs shall begin anew upon the resumption of active 
consideration.
    (h) Within one year after notifying the petitioner that active 
consideration of the documented petition has begun, the Assistant 
Secretary shall publish proposed findings in the Federal Register. The 
Assistant Secretary has the discretion to extend that period up to an 
additional 180 days. The petitioner and interested parties shall be 
notified of the time extension. In addition to the proposed findings, 
the Assistant Secretary shall prepare a report summarizing the evidence, 
reasoning, and analyses that are the basis for the proposed decision. 
Copies of the report shall be provided to the petitioner, interested 
parties, and informed parties and made available to others upon written 
request.
    (i) Upon publication of the proposed findings, the petitioner or any 
individual or organization wishing to challenge or support the proposed 
findings shall have 180 days to submit arguments and evidence to the 
Assistant Secretary to rebut or support the proposed finding. The period 
for comment on a proposed finding may be extended for up to an 
additional 180 days at the Assistant Secretary's discretion upon a 
finding of good cause. The petitioner and interested parties shall be 
notified of the time extension. Interested and informed parties who 
submit arguments and evidence to the Assistant Secretary must provide 
copies of their submissions to the petitioner.
    (j)(1) During the response period, the Assistant Secretary shall 
provide technical advice concerning the factual

[[Page 268]]

basis for the proposed finding, the reasoning used in preparing it, and 
suggestions regarding the preparation of materials in response to the 
proposed finding. The Assistant Secretary shall make available to the 
petitioner in a timely fashion any records used for the proposed finding 
not already held by the petitioner, to the extent allowable by Federal 
law.
    (2) In addition, the Assistant Secretary shall, if requested by the 
petitioner or any interested party, hold a formal meeting for the 
purpose of inquiring into the reasoning, analyses, and factual bases for 
the proposed finding. The proceedings of this meeting shall be on the 
record. The meeting record shall be available to any participating party 
and become part of the record considered by the Assistant Secretary in 
reaching a final determination.
    (k) The petitioner shall have a minimum of 60 days to respond to any 
submissions by interested and informed parties during the response 
period. This may be extended at the Assistant Secretary's discretion if 
warranted by the extent and nature of the comments. The petitioner and 
interested parties shall be notified by letter of any extension. No 
further comments from interested or informed parties will be accepted 
after the end of the regular response period.
    (l) At the end of the period for comment on a proposed finding, the 
Assistant Secretary shall consult with the petitioner and interested 
parties to determine an equitable timeframe for consideration of written 
arguments and evidence submitted during the response period. The 
petitioner and interested parties shall be notified of the date such 
consideration begins.
    (1) Unsolicited comments submitted after the close of the response 
period established in Sec. 83.10(i) and Sec. 83.10(k), will not be 
considered in preparation of a final determination. The Assistant 
Secretary has the discretion during the preparation of the proposed 
finding, however, to request additional explanations and information 
from the petitioner or from commenting parties to support or supplement 
their comments on a proposed finding. The Assistant Secretary may also 
conduct such additional research as is necessary to evaluate and 
supplement the record. In either case, the additional materials will 
become part of the petition record.
    (2) After consideration of the written arguments and evidence 
rebutting or supporting the proposed finding and the petitioner's 
response to the comments of interested parties and informed parties, the 
Assistant Secretary shall make a final determination regarding the 
petitioner's status. A summary of this determination shall be published 
in the Federal Register within 60 days from the date on which the 
consideration of the written arguments and evidence rebutting or 
supporting the proposed finding begins.
    (3) The Assistant Secretary has the discretion to extend the period 
for the preparation of a final determination if warranted by the extent 
and nature of evidence and arguments received during the response 
period. The petitioner and interested parties shall be notified of the 
time extension.
    (4) The determination will become effective 90 days from publication 
unless a request for reconsideration is filed pursuant to Sec. 83.11.
    (m) The Assistant Secretary shall acknowledge the existence of the 
petitioner as an Indian tribe when it is determined that the group 
satisfies all of the criteria in Sec. 83.7. The Assistant Secretary 
shall decline to acknowledge that a petitioner is an Indian tribe if it 
fails to satisfy any one of the criteria in Sec. 83.7.
    (n) If the Assistant Secretary declines to acknowledge that a 
petitioner is an Indian tribe, the petitioner shall be informed of 
alternatives, if any, to acknowledgment under these procedures. These 
alternatives may include other means through which the petitioning group 
may achieve the status of an acknowledged Indian tribe or through which 
any of its members may become eligible for services and benefits from 
the Department as Indians, or become members of an acknowledged Indian 
tribe.
    (o) The determination to decline to acknowledge that the petitioner 
is an Indian tribe shall be final for the Department.

[[Page 269]]

    (p) A petitioner that has petitioned under this part or under the 
acknowledgment regulations previously effective and that has been denied 
Federal acknowledgment may not re-petition under this part. The term 
``petitioner'' here includes previously denied petitioners that have 
reorganized or been renamed or that are wholly or primarily portions of 
groups that have previously been denied under these or previous 
acknowledgment regulations.



Sec. 83.11  Independent review, reconsideration and final action

    (a)(1) Upon publication of the Assistant Secretary's determination 
in the Federal Register, the petitioner or any interested party may file 
a request for reconsideration with the Interior Board of Indian Appeals. 
Petitioners which choose under Sec. 83.3(g) to be considered under 
previously effective acknowledgment regulations may nonetheless request 
reconsideration under this section.
    (2) A petitioner's or interested party's request for reconsideration 
must be received by the Board no later than 90 days after the date of 
publication of the Assistant Secretary's determination in the Federal 
Register. If no request for reconsideration has been received, the 
Assistant Secretary's decision shall be final for the Department 90 days 
after publication of the final determination in the Federal Register.
    (b) The petitioner's or interested party's request for 
reconsideration shall contain a detailed statement of the grounds for 
the request, and shall include any new evidence to be considered.
    (1) The detailed statement of grounds for reconsideration filed by a 
petitioner or interested parties shall be considered the appellant's 
opening brief provided for in 43 CFR 4.311(a).
    (2) The party or parties requesting the reconsideration shall mail 
copies of the request to the petitioner and all other interested 
parties.
    (c)(1) The Board shall dismiss a request for reconsideration that is 
not filed by the deadline specified in paragraph (a) of this section.
    (2) If a petitioner's or interested party's request for 
reconsideration is filed on time, the Board shall determine, within 120 
days after publication of the Assistant Secretary's final determination 
in the Federal Register, whether the request alleges any of the grounds 
in paragraph (d) of this section and shall notify the petitioner and 
interested parties of this determination.
    (d) The Board shall have the authority to review all requests for 
reconsideration that are timely and that allege any of the following:
    (1) That there is new evidence that could affect the determination; 
or
    (2) That a substantial portion of the evidence relied upon in the 
Assistant Secretary's determination was unreliable or was of little 
probative value; or
    (3) That petitioner's or the Bureau's research appears inadequate or 
incomplete in some material respect; or
    (4) That there are reasonable alternative interpretations, not 
previously considered, of the evidence used for the final determination, 
that would substantially affect the determination that the petitioner 
meets or does not meet one or more of the criteria in Sec. 83.7 (a) 
through (g).
    (e) The Board shall have administrative authority to review 
determinations of the Assistant Secretary made pursuant to Sec. 83.10(m) 
to the extent authorized by this section.
    (1) The regulations at 43 CFR 4.310--4.318 and 4.331--4.340 shall 
apply to proceedings before the Board except when they are inconsistent 
with these regulations.
    (2) The Board may establish such procedures as it deems appropriate 
to provide a full and fair evaluation of a request for reconsideration 
under this section to the extent they are not inconsistent with these 
regulations.
    (3) The Board, at its discretion, may request experts not associated 
with the Bureau, the petitioner, or interested parties to provide 
comments, recommendations, or technical advice concerning the 
determination, the administrative record, or materials filed by the 
petitioner or interested parties. The Board may also request, at its 
discretion, comments or technical assistance from the Assistant 
Secretary concerning the final determination or,

[[Page 270]]

pursuant to paragraph (e)(8) of this section, the record used for the 
determination.
    (4) Pursuant to 43 CFR 4.337(a), the Board may require, at its 
discretion, a hearing conducted by an administrative law judge of the 
Office of Hearings and Appeals if the Board determines that further 
inquiry is necessary to resolve a genuine issue of material fact or to 
otherwise augment the record before it concerning the grounds for 
reconsideration.
    (5) The detailed statement of grounds for reconsideration filed by a 
petitioner or interested parties pursuant to paragraph (b)(1) of this 
section shall be considered the appellant's opening brief provided for 
in 43 CFR 4.311(a).
    (6) An appellant's reply to an opposing party's answer brief, 
provided for in 43 CFR 4.311(b), shall not apply to proceedings under 
this section, except that a petitioner shall have the opportunity to 
reply to an answer brief filed by any party that opposes a petitioner's 
request for reconsideration.
    (7) The opportunity for reconsideration of a Board decision provided 
for in 43 CFR 4.315 shall not apply to proceedings under this section.
    (8) For purposes of review by the Board, the administrative record 
shall consist of all appropriate documents in the Branch of 
Acknowledgment and Research relevant to the determination involved in 
the request for reconsideration. The Assistant Secretary shall designate 
and transmit to the Board copies of critical documents central to the 
portions of the determination under a request for reconsideration. The 
Branch of Acknowledgment and Research shall retain custody of the 
remainder of the administrative record, to which the Board shall have 
unrestricted access.
    (9) The Board shall affirm the Assistant Secretary's determination 
if the Board finds that the petitioner or interested party has failed to 
establish, by a preponderance of the evidence, at least one of the 
grounds under paragraphs (d)(1)--(d)(4) of this section.
    (10) The Board shall vacate the Assistant Secretary's determination 
and remand it to the Assistant Secretary for further work and 
reconsideration if the Board finds that the petitioner or an interested 
party has established, by a preponderance of the evidence, one or more 
of the grounds under paragraphs (d)(1)--(d)(4) of this section.
    (f)(1) The Board, in addition to making its determination to affirm 
or remand, shall describe in its decision any grounds for 
reconsideration other than those in paragraphs (d)(1)--(d)(4) of this 
section alleged by a petitioner's or interested party's request for 
reconsideration.
    (2) If the Board affirms the Assistant Secretary's decision under 
Sec. 83.11(e)(9) but finds that the petitioner or interested parties 
have alleged other grounds for reconsideration, the Board shall send the 
requests for reconsideration to the Secretary. The Secretary shall have 
the discretion to request that the Assistant Secretary reconsider the 
final determination on those grounds.
    (3) The Secretary, in reviewing the Assistant Secretary's decision, 
may review any information available, whether formally part of the 
record or not. Where the Secretary's review relies upon information that 
is not formally part of the record, the Secretary shall insert the 
information relied upon into the record, together with an identification 
of its source and nature.
    (4) Where the Board has sent the Secretary a request for 
reconsideration under paragraph (f)(2), the petitioner and interested 
parties shall have 30 days from receiving notice of the Board's decision 
to submit comments to the Secretary. Where materials are submitted to 
the Secretary opposing a petitioner's request for reconsideration, the 
interested party shall provide copies to the petitioner and the 
petitioner shall have 15 days from their receipt of the information to 
file a response with the Secretary.
    (5) The Secretary shall make a determination whether to request a 
reconsideration of the Assistant Secretary's determination within 60 
days of receipt of all comments and shall notify all parties of the 
decision.
    (g)(1) The Assistant Secretary shall issue a reconsidered 
determination within 120 days of receipt of the Board's decision to 
remand a determination or the Secretary's request for reconsideration.

[[Page 271]]

    (2) The Assistant Secretary's reconsideration shall address all 
grounds determined to be valid grounds for reconsideration in a remand 
by the Board, other grounds described by the Board pursuant to paragraph 
(f)(1), and all grounds specified in any Secretarial request. The 
Assistant Secretary's reconsideration may address any issues and 
evidence consistent with the Board's decision or the Secretary's 
request.
    (h)(1) If the Board finds that no petitioner's or interested party's 
request for reconsideration is timely, the Assistant Secretary's 
determination shall become effective and final for the Department 120 
days from the publication of the final determination in the Federal 
Register.
    (2) If the Secretary declines to request reconsideration under 
paragraph (f)(2) of this section, the Assistant Secretary's decision 
shall become effective and final for the Department as of the date of 
notification to all parties of the Secretary's decision.
    (3) If a determination is reconsidered by the Assistant Secretary 
because of action by the Board remanding a decision or because the 
Secretary has requested reconsideration, the reconsidered determination 
shall be final and effective upon publication of the notice of this 
reconsidered determination in the Federal Register.



Sec. 83.12  Implementation of decisions.

    (a) Upon final determination that the petitioner exists as an Indian 
tribe, it shall be considered eligible for the services and benefits 
from the Federal government that are available to other federally 
recognized tribes. The newly acknowledged tribe shall be considered a 
historic tribe and shall be entitled to the privileges and immunities 
available to other federally recognized historic tribes by virtue of 
their government-to-government relationship with the United States. It 
shall also have the responsibilities and obligations of such tribes. 
Newly acknowledged Indian tribes shall likewise be subject to the same 
authority of Congress and the United States as are other federally 
acknowledged tribes.
    (b) Upon acknowledgment as an Indian tribe, the list of members 
submitted as part of the petitioners documented petition shall be the 
tribe's complete base roll for purposes of Federal funding and other 
administrative purposes. For Bureau purposes, any additions made to the 
roll, other than individuals who are descendants of those on the roll 
and who meet the tribe's membership criteria, shall be limited to those 
meeting the requirements of Sec. 83.7(e) and maintaining significant 
social and political ties with the tribe (i.e., maintaining the same 
relationship with the tribe as those on the list submitted with the 
group's documented petition).
    (c) While the newly acknowledged tribe shall be considered eligible 
for benefits and services available to federally recognized tribes 
because of their status as Indian tribes, acknowledgment of tribal 
existence shall not create immediate access to existing programs. The 
tribe may participate in existing programs after it meets the specific 
program requirements, if any, and upon appropriation of funds by 
Congress. Requests for appropriations shall follow a determination of 
the needs of the newly acknowledged tribe.
    (d) Within six months after acknowledgment, the appropriate Area 
Office shall consult with the newly acknowledged tribe and develop, in 
cooperation with the tribe, a determination of needs and a recommended 
budget. These shall be forwarded to the Assistant Secretary. The 
recommended budget will then be considered along with other 
recommendations by the Assistant Secretary in the usual budget request 
process.



Sec. 83.13  Information collection.

    (a) The collections of information contained in Sec. 83.7 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1076-0104. The information will be 
used to establish historical existence as a tribe, verify family 
relationships and the group's claim that its members are Indian and 
descend from a historical tribe or tribes which combined, that members 
are not substantially enrolled in other Indian tribes, and that they 
have not individually or as a group been terminated or otherwise 
forbidden the Federal relationship. Response is required

[[Page 272]]

to obtain a benefit in accordance with 25 U.S.C. 2.
    (b) Public reporting burden for this information is estimated to 
average 1,968 hours per petition, including the time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding this collection of information, 
including suggestions for reducing the burden, to both the Information 
Collection Clearance Officer, Bureau of Indian Affairs, Mail Stop 336-
SIB, 1849 C Street, NW., Washington, DC 20240; and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503.



PART 87--USE OR DISTRIBUTION OF INDIAN JUDGMENT FUNDS--Table of Contents




Sec.
87.1  Definitions.
87.2  Purpose.
87.3  Time limits.
87.4  Conduct of hearings of record.
87.5  Submittal of proposed plan by Secretary.
87.6  Extension of period for submitting plans.
87.7  Submittal of proposed legislation by Secretary.
87.8  Enrollment aspects of plans.
87.9  Programming aspects of plans.
87.10  Per capita payment aspects of plans and protection of funds 
          accruing to minors, legal incompetents and deceased 
          beneficiaries.
87.11  Investment of judgment funds.
87.12  Insuring the proper performance of approved plans.

    Authority: 5 U.S.C. 301; 87 Stat. 466, 467, 468.

    Source: 39 FR 1835, Jan. 15, 1974, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 87.1  Definitions.

    As used in this part 87, terms shall have the meanings set forth in 
this section.
    (a) Act means the Act of October 19, 1973 (Pub. L. 93-134; 87 Stat. 
466, 467, 468).
    (b) Secretary means the Secretary of the Interior or his authorized 
representative.
    (c) Commissioner means the Commissioner of Indian Affairs or his 
authorized representative.
    (d) Area Director means the Area Director or his equivalent of any 
one of the Area Offices of the Bureau of Indian Affairs or his 
authorized representative.
    (e) Superintendent means the Superintendent or Officer in Charge of 
any one of the Agency Offices or other local offices of the Bureau of 
Indian Affairs or his authorized representative.
    (f) Congressional Committees means the Committees on Interior and 
Insular Affairs of the Senate and House of Representatives of the United 
States.
    (g) Indian tribe or group means any Indian tribe, nation, band, 
pueblo, community or identifiable group of Indians, or Alaska Native 
entity.
    (h) Tribal governing body means, as recognized by the Secretary, the 
governing body of a formally organized or recognized tribe or group; the 
governing body of any informally organized tribe or group, the governing 
body of a formally organized Alaska Native entity or recognized tribe in 
Oklahoma, and for the purposes of the Act the recognized spokesmen or 
representatives of any descendant group.
    (i) Plan means the document submitted by the Secretary, together 
with all pertinent records, for the use or distribution of judgment 
funds, to the Congressional Committees.
    (j) Enrollment means that aspect of a plan which pertains to making 
or bringing current a roll of members of an organized, reservation-based 
tribe with membership criteria approved or accepted by the Secretary, a 
roll of members of an organized or recognized entity in Oklahoma, or 
Alaska or elsewhere, or a roll prepared for the purpose of making per 
capita payments for judgments awarded by the Indian Claims Commission or 
United States Court of Claims; or which pertains to using an historical 
roll or records of names, including tribal rolls closed and made final, 
for research or other purposes.
    (k) Program means that aspect of a plan which pertains to using part 
or all of the judgment funds for tribal social and economic development 
projects.

[[Page 273]]

    (l) Per capita payment means that aspect of a plan which pertains to 
the individualization of the judgment funds in the form of shares to 
tribal members or to individual descendants.
    (m) Use or distribution means any utilization or disposition of the 
judgment funds, including programing, per capita payments, or a 
combination thereof.
    (n) Individual beneficiary means a tribal member or any individual 
descendant, found by the Secretary to be eligible to participate in a 
plan, who was born on or prior to, and is living on, the approval date 
of the plan.
    (o) Approval date means the date that a plan is approved by the 
Congress. Except for a plan disapproved by either House, the approval 
date of a plan shall be the sixtieth (60) day after formal submittal of 
a plan by the Secretary to the Congressional Committees, excluding days 
on which either the House of Representatives or the Senate is not in 
session because of an adjournment of more than three (3) calendar days 
to a day certain. In the event a proposed plan is disapproved by either 
House, or in the event the Secretary is unable to submit a plan and 
therefore proposes legislation, the approval date shall be the date of 
the enabling legislation for the disposition of the judgment funds.
    (p) Minor is an individual beneficiary who is eligible to 
participate in a per capita payment and who has not reached the age of 
eighteen (18) years.
    (q) Legal incompetent is an individual beneficiary eligible to 
participate in a per capita payment and who has been declared to be 
under a legal disability, other than being a minor, by a court of 
competent jurisdiction, including tribal courts.
    (r) Attorney fees and litigation expenses means all fees and 
expenses incurred in litigating and processing tribal claims before the 
Indian Claims Commission or the United States Court of Claims.



Sec. 87.2  Purpose.

    The regulations in this part govern the preparation of proposed 
plans for the use or distribution, pursuant to the Act, of all judgment 
funds awarded from the date of the Act to Indian tribes and groups by 
the Indian Claims Commission or the United States Court of Claims, 
excepting any tribe or group whose trust relationship with the Federal 
Government has been terminated and for which there exists legislation 
authorizing the disposition of its judgment funds; and of all funds 
deriving from judgments entered prior to the date of the Act for which 
there has been no enabling legislation.



Sec. 87.3  Time limits.

    (a) The Secretary shall cause to begin as early as possible the 
necessary research to determine the identity of the ultimate or present 
day beneficiaries of judgments. Such research shall be done under the 
direction of the Commissioner of Indian Affairs. The affected tribes or 
groups shall be encouraged to submit pertinent data. All pertinent data, 
including cultural, political and historical material, and records, 
including membership, census and other rolls shall be considered. If 
more than one entity is determined to be eligible to participate in the 
use or distribution of the funds, the results of the research shall 
include a proposed formula for the division or apportionment of the 
judgment funds among or between the involved entities.
    (b) The results of all research shall be provided to the governing 
bodies of all affected tribes and groups. The Area Director shall assist 
the affected tribe or group in arranging for preliminary sessions or 
meetings of the tribal governing body, or public meetings. The Area 
Director shall make a presentation of the results of the research and 
shall arrange for expertise of the Bureau of Indian Affairs to be 
available at these meetings to assist the tribe or group in developing a 
use or distribution proposal, bearing in mind that under the Act not 
less than twenty (20) per centum of the judgment funds, including 
investment income thereon, is to be used for tribal programs unless the 
Secretary determines that the particular circumstances of the affected 
Indian tribe clearly warrant otherwise.



Sec. 87.4  Conduct of hearings of record.

    (a) As soon as appropriate after the tribal meetings have been held 
and the Commissioner has reviewed the tribal proposal(s), the Area 
Director, or such other official of the Department of the Interior as he 
shall designate to act for

[[Page 274]]

him, shall hold a hearing of record to receive testimony on the tribal 
proposal(s).
    (b) The hearing shall be held after appropriate public notice 
beginning at least twenty (20) days prior to the date of such hearing, 
and after consultation with the governing body of the tribe or group 
regarding the date and location of the hearing, to obtain the testimony 
of members of the governing body and other representatives, spokesmen or 
members of the tribe or group on the proposal(s).
    (c) All testimony at the hearing shall be transcribed and a 
transcript thereof shall be furnished to the Commissioner and the tribal 
governing body immediately subsequent to the hearing. Particular care 
shall be taken to insure that minority views are given full opportunity 
for expression either during the hearing or in the form of written 
communications by the date of the hearing.
    (d) Whenever two or more tribes or groups are involved in the use or 
distribution of the judgment funds, including situations in which two or 
more Area Offices are concerned, every effort shall be made by the Area 
Director or Directors to arrange for a single hearing to be conducted at 
a time and location as convenient to the involved tribes and groups as 
possible. Should the tribes and groups not reach agreement on such time 
or place, or on the number of entities to be represented at the hearing, 
the Commissioner, after considering the views of the affected tribes and 
groups, shall within twenty (20) days of receipt of such advice by the 
Area Director, designate a location and date for such hearing and invite 
the participation of all entities he considers to be involved and the 
Commissioner's decision shall be final.



Sec. 87.5  Submittal of proposed plan by Secretary.

    Subsequent to the hearing of record, the Commissioner shall prepare 
all pertinent materials for the review of the Secretary. Pertinent 
materials shall include:
    (a) The tribal use or distribution proposal or any alternate 
proposals;
    (b) A copy of the transcript of the hearing of record;
    (c) A statement on the hearing of record and other evidence 
reflecting the extent to which such proposal(s) meets the desires of the 
affected tribe or group, including minorities views;
    (d) Copies of all pertinent resolutions and other communications or 
documents received from the affected tribe or group, including 
minorities;
    (e) A copy of the tribal constitution and bylaws, or other 
organizational document, if any; a copy of the tribal enrollment 
ordinance, if any; and a statement as to the availability or status of 
the membership roll of the affected tribe or group;
    (f) A statement reflecting the nature and results of the investment 
of the judgment funds as of thirty (30) days of the submittal of the 
proposed plan, including a statement concerning attorney fees and 
litigation expenses;
    (g) A statement justifying any compromise proposal developed by the 
Commissioner in the event of the absence of agreement among any and all 
entities on the division or apportionment of the funds, should two or 
more entities be involved;
    (h) And a statement regarding the feasibility of the proposed plan, 
including a timetable prepared in cooperation with the tribal governing 
body, for the implementation of programing and roll preparation.

Within one hundred and eighty (180) days of the appropriation of the 
judgment funds the Secretary shall submit a proposed plan, together with 
the pertinent materials described above, simultaneously to each of the 
Chairmen of the Congressional Committees, at the same time sending 
copies of the proposed plan and materials to the governing body of the 
affected tribe or group. The one hundred and eighty (180) day period 
shall begin on the date of the Act with respect to all judgments for 
which funds have been appropriated and for which enabling legislation 
has not been enacted.



Sec. 87.6  Extension of period for submitting plans.

    An extension of the one hundred and eighty (180) day period, not to 
exceed ninety (90) days, may be requested by the Secretary or by the 
governing body

[[Page 275]]

of any affected tribe or group submitting such request to both 
Congressional Committees through the Secretary, and any such request 
shall be subject to the approval of both Congressional Committees.



Sec. 87.7  Submittal of proposed legislation by Secretary.

    (a) Within thirty (30) calendar days after the date of a resolution 
by either House disapproving a plan, the Secretary shall simultaneously 
submit proposed legislation authorizing the use or distribution of the 
funds, together with a report thereon, to the Chairmen of both 
Congressional Committees, at the same time sending copies of the 
proposed legislation to the governing body of the affected tribe or 
group. Such proposed legislation shall be developed on the basis of 
further consultation with the affected tribe or group.
    (b) In any instance in which the Secretary determines that 
circumstances are not conducive to the preparation and submission of a 
plan, he shall, after appropriate consultation with the affected tribe 
or group, submit proposed legislation within the 180-day period to both 
Congressional Committee simultaneously.



Sec. 87.8  Enrollment aspects of plans.

    An approved plan that includes provisions for enrollment requiring 
formal adoption of enrollment rules and regulations shall be implemented 
through the publication of such rules and regulations in the Federal 
Register. Persons not members of organized or recognized tribes and who 
are not citizens of the United States shall not, unless otherwise 
provided by Congress, be eligible to participate in the use or 
distribution of judgment funds, excepting heirs or legatees of deceased 
individual beneficiaries.



Sec. 87.9  Programing aspects of plans.

    In assessing any tribal programing proposal the Secretary shall 
consider all pertinent factors, including the following: the percentage 
of tribal members residing on or near the subject reservation, including 
former reservation areas in Oklahoma, or Alaska Native villages; the 
formal educational level and the general level of social and economic 
adjustment of such reservation residents; the nature of recent 
programing affecting the subject tribe or group and particularly the 
reservation residents; the needs and aspirations of any local Indian 
communities or districts within the reservation and the nature of 
organization of such local entities; the feasibility of the 
participation of tribal members not in residence on the reservation; the 
availability of funds for programing purposes derived from sources other 
than the subject judgment; and all other pertinent social and economic 
data developed to support any proposed program.



Sec. 87.10  Per capita payment aspects of plans and protection of funds accruing to minors, legal incompetents and deceased beneficiaries.

    (a) The per capita shares of living competent adults shall be paid 
directly to them. The shares of minors, legal incompetents and deceased 
individual beneficiaries, enhanced by investment earnings, shall be held 
in individual Indian money (IIM) accounts unless otherwise provided as 
set out in this section. While held in IIM accounts, said shares shall 
be invested pursuant to 25 U.S.C. 162a and shall be the property of the 
minors or legal incompetents or the estates of the deceased individual 
beneficiaries to whom the per capita payments were made.
    (b)(1) Unless otherwise provided in paragraph (b)(2) of this 
section, minors' per capita shares, until the minors attain the age of 
18 years, shall be retained in individually segregated IIM accounts and 
handled as provided in Sec. 115.4 of this chapter. Should it be 
determined that the funds are to be invested pursuant to a trust, minors 
who will have reached the age of 18 years within six months after the 
establishment of the trust shall have their funds retained at interest 
in IIM accounts and paid to them upon attaining their majority.
    (2) A private trust for the minors' per capita shares may be 
established subject to the approval of the tribal governing body and the 
Secretary on the following conditions:
    (i) The tribal governing body specifically requests the 
establishment of

[[Page 276]]

such trust, and the trust provides for segregated amounts to each 
individual minor, based on his per capita share, and
    (ii) The trust agreement specifically provides that the investment 
policy to be followed is that of preserving the trust corpus and of 
obtaining the highest interest rates current money markets can safely 
provide. The trust agreement must further provide that maturity dates of 
investments cannot exceed the period of the trust and that only the 
following types of investment shall be made: United States Treasury 
obligations; Federal agency obligations; repurchase/resell agreements; 
United States Treasury bills; Bankers' acceptance, provided the assets 
of the issuing bank exceed $1 billion or the issuing bank pledges full 
collateral; Certificates of deposit, provided the assets of the issuing 
bank exceed $1 billion or the issuing bank pledges full collateral; 
Commercial paper, provided it is rated prime-2 by Moody or A-2 by 
Standard and Poor or is obligation of a company with outstanding 
unsecured debt rated Aa by Standard and Poor.
    (c) The per capita shares of legal incompetents shall be held in IIM 
accounts and administered pursuant to the provisions of Sec. 115.5 of 
this chapter.
    (d) The shares of deceased individual beneficiaries, plus all 
interest and investment income accruing thereto, shall be paid to their 
heirs and legatees upon their determination as provided in 43 CFR part 
4, subpart D.
    (e) All per capita shares, including all interest and investment 
income accruing thereto, while they are held in trust under the 
provisions of this section, shall be exempt from Federal and State 
income taxes and shall not be considered as income or resources when 
determining the extent of eligibility for assistance under the Social 
Security Act, as amended.
    (f) All per capita shares or portions thereof, including all 
interest and investment income accruing thereto, which are not paid out 
but which remain unclaimed with the Federal Government shall be 
maintained separately and be enhanced by investment, and shall, unless 
otherwise provided in an effective plan or in enabling legislation, be 
subject to the provisions of the Act of September 22, 1961, 75 Stat. 
584. No per capita share or portion thereof shall be transferred to the 
U.S. Treasury as ``Monies Belonging to Individuals Whose Whereabouts are 
Unknown.''

[41 FR 48735, Nov. 5, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 87.11  Investment of judgment funds.

    As soon as possible after the appropriation of judgment funds and 
pending approval of a plan or the enactment of legislation authorizing 
the use or distribution of the funds, the Commissioner shall invest such 
funds pursuant to 25 U.S.C. 162a. Investments of judgment funds and of 
investment income therefrom will continue to be made by the Commissioner 
after the approval of a plan or enactment of use or distribution 
legislation to the extent funds remain available for investment under 
such plan or legislation, and provided that thereafter investments of 
judgment funds made available for tribal use are not undertaken by the 
tribe pursuant to authorizing law. Invested judgment funds, including 
investment income therefrom, shall be withdrawn from investment only as 
currently needed under approved plans or legislation authorizing the use 
or distribution of such funds.



Sec. 87.12  Insuring the proper performance of approved plans.

    A timetable prepared in cooperation with the tribal governing body 
shall be included in the plan submitted by the Secretary for the 
implementation of all programing and enrollment aspects of a plan. At 
any time within one calendar year after the approval date of a plan, the 
Area Director shall report to the Commissioner on the status of the 
implementation of the plan, including all enrollment and programing 
aspects, and thenceforth shall report to the Commissioner on an annual 
basis regarding any remaining or unfulfilled aspects of a plan. The Area 
Director shall include in his first and all subsequent annual reports a 
statement regarding the maintenance of the timetable, a full accounting 
of any per capita distribution, and the expenditure of

[[Page 277]]

all programing funds. The Commissioner shall report the deficient 
performance of any aspect of a plan to the Secretary, together with the 
corrective measures he has taken or intends to take.



PART 88--RECOGNITION OF ATTORNEYS AND AGENTS TO REPRESENT CLAIMANTS--Table of Contents




Sec.
88.1  Employment of attorneys.
88.2  Employment by tribes or individual claimants.

    Authority: 5 U.S.C. 301.

    Cross References: For law and order regulations on Indian 
reservations, see part 11 of this chapter. For probate procedure, see 
part 15 of this chapter. For regulations governing the admission of 
attorneys to practice before the Department of the Interior and the 
offices and bureaus thereof, see 43 CFR part 1. For regulations 
governing the execution of attorney contracts with Indians, see part 89 
of this subchapter.



Sec. 88.1  Employment of attorneys.

    (a) Indian tribes organized pursuant to the Indian Reorganization 
Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, may 
employ legal counsel. The choice of counsel and the fixing of fees are 
subject under 25 U.S.C. 476 to the approval of the Secretary of the 
Interior or his authorized representative.
    (b) Attorneys may be employed by Indian tribes not organized under 
the Act of June 18, 1934, under contracts subject to approval under 25 
U.S.C. 81 and the Reorganization Plan No. 3 of 1950, 5 U.S.C. 481, note, 
by the Secretary of the Interior or his authorized representative.
    (c) Any action of the authorized representative of the Secretary of 
the Interior which approves, disapproves or conditionally approves a 
contract pursuant to paragraph (a) or (b) of this section shall be 
final.
    (d) Practice of such attorneys before the Bureau of Indian Affairs 
and the Department of the Interior is subject to the requirements of 43 
CFR 1.1 through 1.7.

[27 FR 11548, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 88.2  Employment by tribes or individual claimants.

    All such attorneys or agents seeking approval of their employment by 
Indian tribes or desiring to represent individual claimants before the 
Indian Bureau shall be required to comply fully with the regulations of 
the Department promulgated September 27, 1917, governing admission to 
practice, and to take the oath of allegiance and to support the 
Constitution of the United States, as required by section 3478 of the 
United States Revised Statutes (31 U.S.C. 204).

[22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 89--ATTORNEY CONTRACTS WITH INDIAN TRIBES--Table of Contents




          Tribes Organized Under The Indian Reorganization Act

Sec.
89.1  Contracts with organized tribes.
89.2  Admission to practice.
89.3  Tentative form of contract.
89.4  Report of Superintendent.
89.5  Fees and expenses.
89.6  Funds in Federal Treasury.

        Tribes Not Organized Under The Indian Reorganization Act

89.7  Statutes governing.
89.8  Selection of counsel.
89.9  Record of council proceedings.
89.10  Resolution required.
89.11  Authentication of resolution.
89.12  Negotiation by tribal business committee.
89.13  Limitation of authority.
89.14  Employment by tribal business committees.
89.15  Vote by secret ballot.
89.16  Notice from the tribe.
89.17  Notice from attorneys.
89.18  Tentative form of contract.
89.19  Execution in quintuplicate.
89.20  Report of superintendent.
89.21  Copies of approved contracts.
89.22  Qualifications of attorneys.
89.24  Fees and expenses.
89.25  Invalid contracts.
89.26  Governing bodies without express authority to contract.

                          Five Civilized Tribes

89.30  Contents and approval of contracts.
89.31  Negotiation of contract.
89.32  Notice from the principal officer.
89.33  Notice from attorney.

[[Page 278]]

89.34  Tentative form of contract.
89.35  Execution in quintuplet.

         Payment of Tribal Attorney Fees With Appropriated Funds

89.40  General policy.
89.41  Exceptions to policy.
89.42  Factors to be considered.
89.43  Procedures.

    Authority: 5 U.S.C. 301; secs. 89.1 to 89.6 also issued under 25 
U.S.C. 476; secs. 89.7 to 89.29 also issued under 25 U.S.C. 81; secs. 
89.30 to 89.35 also issued under 25 U.S.C. 2, 9 and 82(a); secs. 89.40 
to 89.43 also issued under 25 U.S.C. 13, 450 et. seq.

    Cross Reference: For recognition of attorneys and agents to 
represent claimants, see part 88 of this subchapter.

          Tribes Organized Under The Indian Reorganization Act



Sec. 89.1  Contracts with organized tribes.

    (a) Negotiation and execution of tribal attorney contracts with 
Indian tribes organized pursuant to the Indian Reorganization Act of 
June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, shall be in 
accordance with the provisions of the approved constitution or charter 
of the respective tribes.
    (b) The Secretary of the Interior or his authorized representative 
is authorized to approve pursuant to 25 U.S.C. 476 the selection of 
counsel and the amount of fees and expenses to be paid under any such 
contract.

[27 FR 11548, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.2  Admission to practice.

    Attorneys employed by tribes organized under the Indian 
Reorganization Act, shall be required to be admitted to practice before 
the Interior Department and the bureaus thereof, under the provisions of 
the act of July 4, 1884 (23 Stat. 101; 5 U.S.C. 493).

[22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]

    Cross Reference: For rules and regulations governing admission to 
practice before the Interior Department and the bureaus thereof, see 43 
CFR part 1.



Sec. 89.3  Tentative form of contract.

    A tribal council or representative body having authority to employ 
legal counsel in behalf of an organized tribe, may, if it desires, 
obtain a tentative form of contract by written request directed to the 
office of any area director or agency superintendent, or to the 
Commissioner of Indian Affairs. Requests for forms should include a 
statement of the scope of the intended employment; that is, whether an 
attorney is desired for investigation and prosecution of tribal claims 
against the United States, or as a general legal counsel in connection 
with the ordinary business of the tribe, or specific problems on which 
legal advice is desired, or specific matters requiring representation in 
court or before committees of Congress and the departments of the 
Government. The period for which an attorney is desired should be 
stated.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.4  Report of Superintendent.

    Contracts executed by organized tribes should be transmitted to the 
Area Director by the Superintendent, with a report based upon references 
and independent inquiry concerning the qualifications of the attorney 
and his ability to perform the services required by the contract, and 
including the superintendent's recommendation with reference to approval 
of the contract.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.5  Fees and expenses.

    Funds held in the treasury of an organized tribe may be used by the 
tribe for payment of fees and expenses of an attorney. A contract 
providing for payment of fees and/or expenses should be accompanied by 
an appropriation act passed by the governing body of the tribe in 
accordance with the requirements of the tribal constitution or charter, 
appropriating sufficient tribal funds for payment of fees and/or 
expenses as provided by the contract. The amount of tribal funds held in 
the tribal treasury, not otherwise appropriated and available for 
payment of fees and expenses, should be stated.

[22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 279]]



Sec. 89.6  Funds in Federal Treasury.

    Under rulings of the Comptroller General and section 27 of the act 
of May 18, 1916 (39 Stat. 158; 25 U.S.C. 123), tribal funds held in the 
United States Treasury may not be used for payment of attorney fees and 
expenses in the absence of express authorization by Congress.

[22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]

        Tribes Not Organized Under The Indian Reorganization Act



Sec. 89.7  Statutes governing.

    The negotiation and execution of tribal attorney contracts with 
tribes not organized under the Indian Reorganization Act must be in 
strict accordance with the requirements of section 2103 of the Revised 
Statutes of the United States (25 U.S.C. 81).

[22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.8  Selection of counsel.

    Except as stated in Secs. 89.12 through 89.15 and 89.26, a tribal 
attorney or technical specialist and tribal delegates to execute a 
contract shall be selected by a general council or meeting of the tribe, 
to be called by the superintendent of the particular reservation.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.9  Record of council proceedings.

    A report should be made of the proceedings of the council, certified 
to by the Superintendent or his representative as correct, and a copy 
thereof should be sent to the Area Director with the contract.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.10  Resolution required.

    The selection of counsel and of tribal delegates to execute a 
contract in behalf of the tribe shall be set forth in a resolution or 
resolutions which shall be attached to and made a part of the contract.

[22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.11  Authentication of resolution.

    The resolution shall be signed by the presiding officer of the 
general council, attested by the secretary of the general council, and 
certified by the superintendent.

[22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.12  Negotiation by tribal business committee.

    A tribal business committee, advisory board, or other similar 
representative body having standing authority to act for and in behalf 
of the tribe in matters of importance, may, when it finds that there is 
a substantial need and demand for retention of tribal counsel, negotiate 
with an attorney or attorneys.

[22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.13  Limitation of authority.

    The tribal business committee or other representative body, when 
proceeding under Sec. 89.12 should carefully investigate, with the 
assistance of the superintendent if desired, the qualifications of 
available attorneys, bearing in mind the purpose for which counsel is 
desired and except as provided in Sec. 89.14 shall carry on its 
negotiations with attorneys subject to the distinct understanding that 
final action on the selection and employment of counsel shall be had in 
a general council or meeting of the tribe or as otherwise provided under 
Sec. 89.15, subject to approval by the Secretary of the Interior or his 
authorized representative as required by law.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.14  Employment by tribal business committees.

    In case the tribal business committee or board has specific 
authority from the tribe to employ tribal attorneys and to execute a 
contract for that purpose, the tribal business committee or board may 
negotiate with attorneys and enter into a contract subject to approval 
of the Secretary of the Interior

[[Page 280]]

or his authorized representative as provided by law.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.15  Vote by secret ballot.

    Those tribes accustomed to act on important tribal matters by secret 
ballot or by vote in district meetings, or in some other manner, may 
apply through their proper officers to the Area Director for permission 
to consider and act upon employment of tribal counsel in the manner 
preferred by the tribe rather than by a general council or meeting.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.16  Notice from the tribe.

    Notice of intention to negotiate with attorneys should be sent to 
the superintendent by the proper tribal officers, accompanied by a full 
statement concerning the need for retaining counsel, showing in detail 
the purposes for which an attorney is needed, the scope of his intended 
employment, and a reference to the tribal funds, if any, which the tribe 
believes should be made available for payment of counsel fees and 
expenses. The notice and statement should be transmitted to the Area 
Director by the Superintendent with the latter's report and 
recommendations.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.17  Notice from attorneys.

    Attorneys desiring to execute contracts with Indian tribes shall be 
required to give written notice directed through the superintendent to 
the Area Director in advance of all negotiations.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.18  Tentative form of contract.

    A tentative form of contract may be obtained from any agency office, 
area office, or the Commissioner of Indian Affairs. When the attorney or 
tribe proposing to execute a contract desires to make substantial 
changes in the tentative form, the proposed changes should be submitted 
through the superintendent to the Area Director for approval as to form 
prior to execution of a contract.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.19  Execution in quintuplicate.

    The contract should be executed in quintuplicate, and all copies 
should be transmitted by the superintendent to the Area Director.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.20  Report of superintendent.

    The superintendent should submit a report when transmitting the 
contract, setting forth the qualifications and general reputation of the 
attorney selected, based upon references and independent inquiry by the 
superintendent, and the superintendent's recommendation concerning 
approval of the contract.

[22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.21  Copies of approved contracts.

    The original of all approved contracts will be retained by the Area 
Director with a copy to the tribal governing body, attorney, 
Superintendent and Commissioner. The Commissioner's copy should be 
completely supported by copies of the recommendation of the 
Superintendent or Officer in Charge, Regional Solicitor's or Field 
Solicitor's opinions, and any other pertinent data which will permit the 
records of the Commissioner's office to reflect the full current status 
of approved attorney contracts in each instance.

[27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.22  Qualifications of attorneys.

    The person selected as attorney should be a reputable member of the 
bar, and fully competent to carry the case through the Court of Claims, 
and to the Supreme Court of the United States, if necessary.

[22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.24  Fees and expenses.

    Under rulings of the Comptroller General and section 27 of the act 
of

[[Page 281]]

May 18, 1916 (39 Stat. 158; 25 U.S.C. 123), tribal funds held in the 
United States Treasury may not be used for payment of attorney fees and 
expenses, in the absence of express authorization by Congress. Unless 
congressional authority has been obtained for the use of tribal funds, 
the payment of attorney fees and expenses shall be contingent upon a 
recovery by the Indians in the matters or claims covered in the 
contract. In case congressional authority has been obtained for the use 
of tribal funds for attorney fees and expenses, the provisions of the 
contract concerning the payment of such fees and expenses should 
strictly conform to the provisions of the act authorizing the use of the 
funds.

[22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.25  Invalid contracts.

    The following is especially pointed out. 25 U.S.C. 81 provides 
further that all contracts made in violation of that section shall be 
null and void. Under 25 U.S.C. 84 and Reorganization plan No. 3 of 1950, 
5 U.S.C. 481 note, no assignment of any such contract shall be valid 
without the consent of the Secretary of the Interior or his authorized 
representative. 25 U.S.C. 85 declares that no contract with any 
individual Indian relating to tribal property shall have any validity 
unless the consent of the United States has previously been given 
thereto.

[25 FR 1689, Feb. 26, 1960. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.26  Governing bodies without express authority to contract.

    In the following cases, the entity or spokesman officially 
recognized as having authority to act for a tribe may both negotiate and 
conclude contracts for the services of legal counsel pursuant to 
applicable provisions of this part:
    (a) In the absence of tribal governing documents, or
    (b) When such documents do not expressly authorize the governing 
body of a tribe to conclude such contracts and do not provide for 
calling a tribal meeting to authorize concluding such contracts pursuant 
to Sec. 89.8, and convening a tribal general council is not deemed 
feasible.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

                          Five Civilized Tribes



Sec. 89.30  Contents and approval of contracts.

    All contracts for the services of legal counsel or technical 
specialists negotiated and executed with the Choctaw, Chickasaw, 
Cherokee, Creek, or Seminole Tribes or Nations, also known as the Five 
Civilized Tribes, shall be in strict compliance with the requirements of 
section 2103 of the Revised Statutes of the United States (25 U.S.C. 
81).

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.31  Negotiation of contract.

    That person or governing entity recognized as having authority to 
act for and in behalf of any one of the Five Civilized Tribes in matters 
of importance may, when it is found there is a substantial need and 
demand therefor, negotiate and contract for services of a tribal counsel 
or counsels and technical specialist or specialists, subject to the 
approval of the Secretary of the Interior or his authorized 
representative.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.32  Notice from the principal officer.

    Notice of intention to negotiate with attorneys or with technical 
specialists shall be sent by the principal tribal officer to the 
Superintendent. Such notice shall be accompanied by a full statement 
concerning the need for retaining counsel or specialists, as the case 
may be, the purpose for which such assistance is needed and the scope of 
the intended employment. The notice and statement shall be transmitted 
to the Area Director by the Superintendent together with the latter's 
report and recommendations with respect to the approval of such 
contract.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 282]]



Sec. 89.33  Notice from attorney.

    Attorneys desiring to execute contracts with any one of the Five 
Civilized Tribes shall be required to give written notice to the Area 
Director through the Superintendent having jurisdiction over said tribe.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.34  Tentative form of contract.

    The principal officer of any one of the Choctaw, Cherokee, Creek, 
Seminole, and Chickasaw Tribes may, if he desires, obtain a tentative 
form of contract by written application to the office of the appropriate 
Agency Superintendent. Requests for forms for an attorney contract 
should include a statement reciting whether the attorney is desired as a 
general legal counsel in connection with the business of the tribe or as 
counsel in respect to specific problems on which legal counsel is 
desired, or specific matters requiring representation in court or before 
committees of Congress and the Departments of Government. Requests for 
forms for technical service contracts should include a statement of the 
particular type of service required and the purpose for which it is 
needed. The anticipated term of each proposed contract should be stated.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 89.35  Execution in quintuplet.

    The contract should be executed in quintuplet, and all copies of it 
shall be transmitted by the Superintendent to the Area Director.

[37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]

         Payment of Tribal Attorney Fees With Appropriated Funds

    Source: 48 FR 3969, Jan. 28, 1983, unless otherwise noted.



Sec. 89.40  General policy.

    In ordinary circumstances, legal services with respect to trust 
resources are provided for Indian tribe(s):
    (a) By private counsel employed by tribes when such tribe is 
financially able and elects to do so, or
    (b) By the United States as trustee through the Office of the 
Solicitor and/or the Department of Justice.
It is the policy of the Department of the Interior not to use federally 
appropriated funds to pay for private counsel to represent Indian 
tribes. Exceptions to that policy are listed in Sec. 89.41 of this part.



Sec. 89.41  Exceptions to policy.

    The Assistant Secretary--Indian Affairs upon concurrence of the 
Solicitor and receipt of a recommendation as provided by Sec. 89.43 may, 
in his/her discretion, authorize the direct or indirect expenditure of 
appropriated funds to pay reasonable attorney's fees in order to permit 
an Indian tribe to secure private legal representation in the following 
circumstances:
    (a) When a tribe determines it necessary to bring a court action or 
to defend itself to protect its trust resources, rights claimed under a 
treaty, agreement, executive order, or statute, or its governmental 
powers and the Attorney General refuses assistance or advises that 
assistance is not otherwise available (Comptroller General's Opinion B-
114868, December 6, 1976).
    (b) When a tribe determines it necessary to institute or to defend 
itself in an administrative proceeding to protect its trust resources, 
rights claimed under a treaty, agreement, executive order, or statute, 
or to protect its governmental powers and the Solicitor is unable to 
provide representation due to a conflict of interest or other reasons.
    (c) When a tribe determines legal assistance necessary, other than 
for litigation, pursuant to a contract executed under Pub. L. 93-638 and 
the Solicitor has determined that the services of his office are not 
available.
    (d) When a tribe determines it critical, and the Assistant 
Secretary--Indian Affairs finds the concerns of the tribe to have merit 
after consultation with and the advice of the Solicitor, to intervene, 
in a lawsuit being handled by the Justice Department or in an 
administrative proceeding being handled by the Solicitor because the 
responsible Government Attorney refuses either to exclude or to include 
some facet of the suit or proceedings which

[[Page 283]]

the tribe claims renders such legal representation completely inadequate 
to protect or in contravention of the rights and interests of the tribe. 
Prior to consulting with and advising the Assistant Secretary--Indian 
Affairs, in a lawsuit being handled by the Justice Department, the 
Solicitor shall seek the comments and advice of the Attorney General.
    (e) When a tribe determines, and the Assistant Secretary--Indian 
Affairs, after consultation with the Solicitor concurs, that a 
substantial possibility of a negotiated settlement or agreement exists.
    (f) Payment of fees will not be allowed if such payment was not 
authorized before services were performed.
    (g) This rule applies to expenditure of appropriated Federal funds 
and not a tribe's own funds on deposit in the U.S. Treasury.



Sec. 89.42  Factors to be considered.

    The following factors are to be considered in determining whether 
funds should be paid to provide private legal representation for a 
tribe.
    (a) The merits of the legal position which the tribe asserts. 
Greater weight will be given to those cases where the tribe's legal 
argument is deemed particularly meritorious than to those cases where 
the tribe's position, although not entirely without merit, may be 
relatively weak;
    (b) The ability of the tribe to pay all or a part of its legal 
expenses out of its own funds. A review of the tribe's financial 
resources under this subsection will include an examination of the 
tribe's total expenditures to determine whether its expenditures for 
other purposes comport with the asserted importance of the case for 
which it seeks funds;
    (c) Whether the question the tribe seeks to litigate is being 
litigated in another case by another tribe;
    (d) Whether, as a matter of strategy, the issues the tribe seeks to 
litigate could be more satisfactorily resolved in another forum, in a 
different factual context, or a different time; and
    (e) Whether the issue should be litigated at all in preference to a 
legislative or other solution.



Sec. 89.43  Procedures.

    The information collection requirements contained in this section do 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3051 et seq., because it is anticipated there will be fewer than 
10 respondents annually.
    (a) A tribe or other organization seeking funds under Sec. 89.41 
shall submit a written request through the Agency Superintendent and the 
Area Director, including
    (1) A detailed statement describing the nature and scope of the 
problems for which legal services are sought;
    (2) A statement of the terms, including total anticipated costs, of 
the requested legal services contract;
    (3) A current financial statement and a statement that the tribe 
does not possess sufficient tribal funds or assets to pay for all or a 
part of the legal services sought; and
    (4) A statement of why the matter must be handled by a private 
attorney as opposed to Department of Justice or Department of Interior 
attorneys.

All requests shall be considered by a committee consisting of the Deputy 
Assistant Secretary--Indian Affairs (Policy), or his delegate, the 
Director of the Office of Trust Responsibilities in BIA or his delegate, 
and the Associate Solicitor--Indian Affairs or his delegate.
    (b) If two of the three committee members recommend approval of a 
tribe's request, the request, along with the committee's recommendation, 
shall be submitted to the Assistant Secretary for final determination 
after consultation with and the advice of the Solicitor. The committee's 
recommendation shall indicate the amount of funds recommended to assist 
the tribe, the hourly rate allowed, the maximum amount permitted to be 
expended in the recommended action and the tribal contributions, if any. 
The Assistant Secretary shall approve the request only with the 
concurrence of the Solicitor.
    (c) The requirements imposed by this policy are supplementary to 
those contained in all existing regulations dealing with attorney 
contracts with Indian tribes and, in particular, those

[[Page 284]]

contained in parts 88 and 89 of this title.



PART 90--ELECTION OF OFFICERS OF THE OSAGE TRIBE--Table of Contents




                                 General

Sec.
90.1  Definitions.
90.2  Statutory provisions.

                               Eligibility

90.21  General.

                                Elections

90.30  Nominating conventions and petitions.
90.31  Applicability.
90.32  Election Board.
90.33  Watchers and challengers.
90.35  List of voters.
90.36  Disputes on eligibility of voters.
90.37  Election notices.
90.38  Opening and closing of poll.
90.39  Voters to announce name and residence.
90.40  Ballots.
90.41  Absentee voting.
90.42  Absentee ballots.
90.43  Canvass of election returns.
90.44  Statement of supervisor.
90.45  Electioneering.
90.46  Notification of election of tribal officers.
90.47  Contesting elections.
90.48  Notice of contest.
90.49  Expenses of elections.

    Authority: Sec. 9, 34 Stat. 539; sec. 7, 45 Stat. 1478; 71 Stat. 
471, unless otherwise noted.

    Source: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, unless 
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                                 General



Sec. 90.1  Definitions.

    As used in this part:
    (a) The term supervisor means the tribal election official chosen 
and appointed by the Principal Chief or Assistant Principal Chief to act 
as chairman of the election board and shall in the absence of the 
supervisor denote the Assistant Supervisor.



Sec. 90.2  Statutory provisions.

    Section 7 of the Act of March 2, 1929 (45 Stat. 1481) provides in 
part as follows:

    That there shall be a quadrennial election of officers of the Osage 
Tribe as follows: A principal chief, an assistant principal chief, and 
eight members of the Osage tribal council, to succeed the officers 
elected in the year 1928, said officers to be elected at a general 
election to be held in the town of Pawhuska, Oklahoma, on the first 
Monday in June 1930 and on the first Monday in June each four years 
thereafter, in the manner to be prescribed by the Commissioner of Indian 
Affairs, and said officers shall be elected for a period of four years 
commencing on the 1st day of July following said elections. * * *

                               Eligibility



Sec. 90.21  General.

    Only members of the Osage Tribe who will be eighteen years of age or 
over on election day and whose names appear on the quarterly annuity 
roll at the Osage Agency as of the last quarterly payment immediately 
preceding the date of election will be entitled to hold office or vote 
for any tribal officers. Each such voter shall be entitled to cast one 
ballot and each ballot shall have exactly the same value as the voter's 
headright interest shown on the last quarterly annuity roll. Any 
fraction of a headright, however, shall be valued as to the first two 
decimals only unless such interest is less than one-hundredth of a 
share, then it shall have its full value.

(45 Stat. 1481)

[43 FR 8798, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

                                Elections



Sec. 90.30  Nominating conventions and petitions.

    Conventions shall be held on or before the first Monday in April of 
the year in which a quadrennial election is held, and there shall be 
written reports of such conventions, duly certified by the secretary or 
presiding officer showing total number of qualified voters in 
attendance, together with the names of candidates nominated for the 
various offices: Provided, That at least 25 qualified voters shall have 
been in attendance at any such convention; also, names of any 
independent candidates nominated by petition of not less than 25 
qualified voters, each signature to be witnessed by two persons, shall 
be filed with the supervisor not later than 5 p.m. on the first Monday 
in April of the

[[Page 285]]

year in which a quadrennial election is held in order that such names 
may be placed on the official ballot. No person shall be considered a 
candidate for tribal office unless and until the requirements of this 
section have been met.

[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.31  Applicability.

    The manner of carrying out elections to be held under the act of 
June 28, 1906 (34 Stat. 539), as amended by the act of March 2, 1929 (45 
Stat. 1478), as amended by the act of August 28, 1957 (71 Stat. 471), is 
covered in the regulations set forth in this part. The next election 
will be held on the first Monday in June 1958 and subsequent elections 
will be held on the first Monday in June each four years thereafter.



Sec. 90.32  Election Board.

    The Principal Chief, or in his absence, the Assistant Principal 
Chief shall, not more than seventy-five days nor less than sixty-five 
days preceding the day appointed by law for the holding of an election 
of officers of the Osage Tribe, issue in the form and manner prescribed 
in Sec. 90.37, an election notice and appoint an election board 
consisting of a Supervisor who shall be chairman, Assistant Supervisor, 
five judges, one of whom in addition to his regular duties shall act as 
interpreter, and five clerks, whose duties shall be to conduct the 
election as provided in the regulations in this part:
    Provided further, That the Superintendent on the recommendation of 
the election board may designate extra clerical assistants. Prior to the 
date of the election, the election board shall assemble and make 
necessary arrangements for the election in a building to be designated 
by the Superintendent of the Osage Agency as the polling site and make 
the necessary preparation for receiving prospective voters, for 
receiving absentee ballots, and see to it that voting booths are 
arranged to afford privacy. Members of the election board and any extra 
clerical assistants designated by the Superintendent under authority 
contained in this section, other than employees of the Osage Agency when 
duly appointed or designated as provided for in this part may be 
compensated for conducting each quadrennial election at rates to be 
fixed by the Osage Tribal Council. If a member of the election board 
desires to be relieved from duty for any cause, he shall notify the 
Principal Chief or in his absence the Assistant Principal Chief, in 
writing to that effect and the Principal Chief, or in his absence the 
Assistant Principal Chief shall designate someone else to serve as a 
member of the election board. The Supervisor, or in his absence the 
Assistant Supervisor, shall see that the rules prescribed for conducting 
the election are faithfully carried out. The ballots shall be handed out 
by a judge to the voters as they present themselves to vote, after being 
identified by a clerk who shall be supplied with a copy of the list of 
voters prepared pursuant to Sec. 90.35. The judge before handing out a 
ballot shall remove the detachable portion. A judge shall receive the 
ballot after the voter has indicated his choice thereon by placing an 
``X'' mark opposite the name of each candidate for whom he desires his 
vote counted and shall deposit same in the ballot box. The duties of the 
remaining judges in conjunction with the Supervisor will be to read the 
names on the ballot when requested so as to identify the candidates or 
furnish such other information as may be desired in that connection and 
also to assist prospective voters unable because of language 
difficulties or physical incapacity to cast votes for candidates of 
their choice, and to undertake such other duties as may be assigned by 
the Supervisor.

[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.33  Watchers and challengers.

    Any candidate or political party may name a person to act as watcher 
and challenger at any election provided for by the regulations in this 
part. Each watcher and challenger shall be appointed in writing by the 
candidate or political party he or she represents. The watchers and 
challengers shall have the right to be present in the polling place but 
outside the voting booths and to watch the election officials, the 
balloting, the call, the tally, and the recording of the result of the 
vote. It

[[Page 286]]

shall be the duty of the watcher to watch, listen, and observe the count 
for all candidates voted for to insist upon an honest and fair count but 
shall have no further authority than to have the election judges and 
clerks note or record any objections to the count and to challenge the 
result thereof. The challenger shall have the right to question any 
voter and his right to vote. Watchers shall not divulge or give out any 
intimation or information as to the count prior to announcement by the 
election board and shall be subject to the same rules governing the 
election board with regard to leaving and returning to the polling 
place. A watcher or challenger shall receive no compensation for his 
services.

[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.35  List of voters.

    The Superintendent of the Osage Agency shall compile a list of the 
voters of the Tribe who are qualified under Sec. 90.21. Such list shall 
set forth only the name and last known address of each voter. The 
Superintendent shall furnish copies of the list to the Supervisor of the 
election board and shall post copies at the headquarters of the Osage 
Agency at Pawhuska, Okla., and such other places as the election board 
may determine to be appropriate. The compilation, posting and 
distribution of copies to the Supervisor of the election board shall be 
done as soon as possible after preparation of the last quarterly annuity 
roll preceding the election. Copies of the list shall also be made 
available to all qualified candidates for office and for the purpose of 
checking off the name of each voter as his ballot is cast and for 
determining, in the event of question, the right of any individual to 
vote.

[27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.36  Disputes on eligibility of voters.

    (a) The election board shall fix a date not less than five days 
before the election at which time all complaints will be heard. The 
election board shall, at least three days before the date of election, 
determine any claim or challenge as to the right of any person to be 
listed on the roll of eligible voters.
    (b) Any voter of the tribe shall have the right to challenge any 
person presenting himself to vote and it shall be the duty of the 
supervisor and a judge of the board to make such investigation then and 
there as they deem essential, and decide the question of whether or not 
a person is a listed voter.



Sec. 90.37  Election notices.

    The election notice shall set forth the place, date and time for 
holding the election, qualification of voters, method of nominating 
candidates, and closing date for same, method of locating each name on 
the ballot and the names of each member of the election board. As soon 
as possible a copy of the notice of the election, after approval by the 
Superintendent of the Osage Agency, shall be mailed to each qualified 
voter at his last known address.



Sec. 90.38  Opening and closing of poll.

    The poll shall remain open without intermission from 8 a.m. to 8 
p.m. on the date of the election. When all else is in readiness for the 
opening of the poll the supervisor shall open the ballot box in view of 
the other election officers, shall turn same top down to show that no 
ballots are contained therein, and shall then lock the box and retain 
the key in his possession.

[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.39  Voters to announce name and residence.

    Each voter shall upon presenting himself to vote announce to the 
clerk his name, and address.



Sec. 90.40  Ballots.

    The Superintendent of the Osage Agency shall have ballots printed 
showing the name and the office for which each candidate has been 
nominated and also space for showing the value of the respective 
ballots. The Superintendent shall have recorded on a detachable portion 
of each ballot the name of the voter. The value of each voter's ballot 
shall be recorded on the principal portion of the respective ballots. 
Any faction or group has the right

[[Page 287]]

to nominate any candidate it chooses, in accordance with the regulations 
prescribed in this part. The names of such candidates shall be printed 
on the ballot in the manner set forth as follows:
    (a) Under the heading, Principal Chief, with notation to vote for 
one, shall appear names of all candidates for that office. Under the 
heading, Assistant Chief, with notation to vote for one, shall appear 
the names of all candidates for that office. Under the heading, Members 
of Council, with notation to vote for eight, shall appear names of all 
candidates for council. Names of candidates for office shall appear only 
once on ballot, regardless of the fact that they may have been nominated 
on more than one ticket. The order in which names of qualified 
candidates for office will be placed on the ballot shall be by lot 
method of drawing in a manner to be determined by the tribal council, 
and to be free from or regardless of party or factional affiliations. A 
candidate may use one nickname. Titles and professional designations 
will not be shown on the ballot. A record shall be kept of any ballots 
that may be mutilated, canceled, or used as samples.
    (b) A space will be provided on each ballot in which the clerk prior 
to issuing the ballot shall note the value of the ballot which shall be 
exactly the same value as the voter's headright interest as shown on the 
last quarterly annuity roll, except any fraction of a headright shall be 
valued as to the first two decimals only unless such interest is less 
than one one-hundredth then it shall have its full value. As 
verification the clerk shall initial the ballot so numbered in the 
margin. In addition each ballot shall be stamped ``Official Ballot'' 
(facsimile signature Supervisor Osage Election Board). Should any voter 
spoil or mutilate his ballot in his effort to vote he may surrender the 
ballot to the supervisor who shall give the voter in lieu thereof 
another ballot which shall show its appropriate value. The spoiled or 
mutilated ballot or any portion of a spoiled or mutilated ballot shall 
be retained with other records pertaining to the election.

[32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.41  Absentee voting.

    (a) An eligible voter who will be unable to appear at the poll in 
Pawhuska on election day shall be entitled to vote by absentee ballot. 
Absentee ballots shall be identical to the ballots described in 
Sec. 90.40 with the exception that each such ballot shall be stamped 
``Absentee Ballot,'' and reflect the date of issuance. All applications 
for absentee ballots shall be made in writing by the voter. Each ballot 
shall indicate the value of the vote to which the voter is entitled. The 
supervisor shall maintain a file of all applications, together with a 
record of the names and addresses of all persons to whom absentee 
ballots are mailed or delivered, including the date of mailing or 
delivery. All absentee ballots must be postmarked and be in the Pawhuska 
Post Office prior to 8 a.m. on election day.
    (b) It shall be the duty of the supervisor, upon receipt of an 
application, to mail or deliver to the applicant an envelope containing 
a ballot (after removing the detachable portion), and an inner and outer 
envelope as described herein. This shall be done not more than 30 days 
before the election, except that the envelopes and ballots may be mailed 
to absentee voters residing outside the continental limits of the United 
States at any time after mailing of the election notice.
    (c) If the absentee ballot and accompanying envelopes are to be 
mailed to the prospective voter, the written request must be submitted 
to the supervisor on or before 5 p.m. of the Wednesday preceding the 
election. The absentee ballot and accompanying envelopes may be 
delivered personally to the prospective voter any time prior to the 
opening of the poll.
    (d) The absentee voter shall mark the ballot and seal it only in the 
inner envelope. The following shall be printed on the inner envelope:

[[Page 288]]

                             Absentee Ballot

                 election of officers of the osage tribe

                              june __, 19__

    (e) The absentee voter shall enclose the inner envelope in the outer 
envelope and after sealing same shall execute the certificate imprinted 
thereon which certificate shall be in the following form:

    I will be unable to appear at the poll in Pawhuska, Oklahoma, on the 
____ day of June 19__ and have enclosed my ballot for the election of 
officers of the Osage Tribe.\1\
---------------------------------------------------------------------------

    \1\ Criminal penalties are provided by statute for knowingly filing 
false information in such statements (18 U.S.C. 1001).
---------------------------------------------------------------------------

(Voter's signature)____________________.

The outer envelope shall be preaddressed as follows: Supervisor, Osage 
Election Board, Post Office Box ____, Pawhuska, Okla. 74056.

(45 Stat. 1481)

[23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, as amended at 43 
FR 8799, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.42  Absentee ballots.

    The absentee ballots shall remain in the locked box in the post 
office, Pawhuska, Okla., until 8 a.m. on the day of election at which 
time the supervisor or assistant supervisor of the election board, 
accompanied by the Superintendent of the Osage Agency or his designated 
representatives, shall receive the locked box from the post office and 
shall personally transport the locked box to the polling site where it 
shall be delivered immediately to the supervisor or assistant supervisor 
of the election board. The supervisor or the assistant supervisor in the 
presence of at least two judges shall unlock the locked box containing 
the absentee ballots and shall then determine whether the person whose 
name is signed to the statement is a qualified voter of the Osage Tribe 
and check said voter off the poll list before opening the outer 
envelope. After it has been determined which of the absentee ballots 
have been cast by duly qualified electors, the supervisor in the 
presence of the election board shall cause the valid ballots in the 
sealed inner envelopes to be placed in the ballot box.

[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.43  Canvass of election returns.

    (a) Immediately after the polls are closed at 8 p.m., the counting 
of the ballots shall commence. The supervisor and not less than two 
judges shall remain continuously in the room until the ballots are 
finally counted. One or more judges shall act as official counters and 
two or more clerks shall record the value of each vote and shall 
comprise a vote tallying team. The vote shall be recorded on two tally 
sheets by each team of judges and clerks under the name of each 
candidate for whom the voter designated his choice. The count shall 
continue until all votes have been recorded. The duties of the remaining 
officials of the election board will be to assist in conducting the 
election. After the vote of each ballot is recorded, the ballot shall be 
pierced by needle and string and after the ballots have been so counted, 
the ends of the string shall be tied together. After all other ballots 
have been counted, the sealed inner envelopes containing the absentee 
ballots shall be opened and all ballots found to be valid shall be 
counted and treated in the same manner as other valid ballots. All 
ballots and mutilated ballots; registration lists of voters, both 
absentee and those appearing at the poll; all tally sheets; and all 
other election materials shall be placed in the ballot box which shall 
be locked. The supervisor shall then deliver the locked ballot box and 
keys to same to the Superintendent, Osage Agency, and the box shall be 
retained in a safe place until opened by order of the supervisor or 
election board in the event a contest is filed. If no contest is filed, 
the ballots shall be destroyed 180 days after the election. No 
information concerning voting shall be posted or made public information 
until after 8 p.m.
    (b) Should any ballot be marked for more than one principal chief or 
assistant chief or for more than eight councilmen, only that section of 
the ballot wherein the error was made shall be declared void and the 
remaining section or sections shall be counted in the

[[Page 289]]

same manner as other ballots. Absentee ballots shall be declared void 
when items other than the ballot are enclosed in the inner envelope, the 
voter fails to sign the statement appearing on the outer envelope, and 
for failure to seal the inner envelope or enclose the inner envelope in 
the outer envelope. Votes cast for individuals whose names are not 
printed on the official ballot shall not be counted.

[32 FR 10254, July 12, 1967, as amended at 43 FR 8799, Mar. 3, 1978. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.44  Statement of supervisor.

    Following the election a statement is to be prepared by the 
supervisor pertaining to the conduct of the election and certifying to 
the correct tabulation of the votes for each candidate. The statement 
shall also set forth the names of the elected candidates and the office 
to which each was elected. The statement shall be duly acknowledged 
before an officer qualified to administer oaths and delivered to the 
Superintendent of the Osage Agency.

[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.45  Electioneering.

    No person shall be allowed to electioneer within the building where 
and when the election is in progress and it will be the duty of the 
supervisor to request the detail of a police officer to assist him in 
maintaining order about the building during the progress of the 
election.



Sec. 90.46  Notification of election of tribal officers.

    The Superintendent of the Osage Indian Agency shall in due time give 
written notice to candidates of their election to the various tribal 
offices and as soon thereafter as practicable such tribal officers shall 
appear and subscribe to oath of office before an officer qualified to 
administer oaths and such oaths shall be delivered to the Superintendent 
and by him transmitted to the Commissioner of Indian Affairs.



Sec. 90.47  Contesting elections.

    Any unsuccessful candidate may before noon on Monday next following 
the tribal election file with the supervisor a challenge to the 
correctness of the vote cast for the office for which he was a 
candidate, which challenge must be accompanied by a deposit of $500. The 
election board or the supervisor shall order a recount and proceed with 
same as provided in this part. If the recount results in the contestant 
being elected, the deposit shall be refunded; otherwise, the deposit 
shall be used to defray all expenses of said recount and any balance not 
so used shall be returned to the contestant.

[32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 90.48  Notice of contest.

    It shall be the duty of the supervisor, to serve upon the contestee, 
or contestees, directly affected by such challenge or contest, a true 
copy of said written application, the original of which is required to 
be filed with the supervisor. Said service shall be made in person, 
where possible, within twenty-four hours after the filing of said 
original challenge or contest, and where personal service is impossible 
within such time, on account of the absence of contestee, or contestees, 
from Osage County, or for any other reason, it is hereby made the duty 
of the supervisor to serve a true copy upon the Superintendent of the 
Osage Indian Agency:
    Provided, That for the purpose of such constructive service, the 
Superintendent is hereby made and constituted the service agent of each 
and every candidate in all tribal elections, and by filing petition as a 
candidate, such candidate shall thereby be presumed conclusively to have 
accepted the terms and provisions hereof and specifically the 
constructive service as aforesaid.



Sec. 90.49  Expenses of elections.

    All expenses of elections including compensation to the members of 
the election board and any clerical assistants designated by the 
Superintendent under Sec. 90.32, stationery supplies, meals, printing 
and postage shall be borne by the Osage Tribe as set forth in an 
appropriate Osage Tribal Council

[[Page 290]]

resolution establishing current pay scale.

[27 FR 2459, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 91--GOVERNMENT OF INDIAN VILLAGES, OSAGE RESERVATION, OKLAHOMA--Table of Contents




Sec.
91.1  Purpose.
91.2  Definitions.
91.3  Description of village reserves.
91.4  Plats of village reserves.
91.5  Tracts reserved from selection by individuals.
91.6  Custody of public buildings and tracts reserved from selection by 
          individuals; village committees.
91.7  Permits to occupy land for dwelling purposes.
91.8  Sale or mortgage of improvements.
91.9  Inheritance of improvements.
91.10  Renting of improvements.
91.11  Domestic animals in village reserves.
91.12  Business enterprises and public buildings.
91.13  Health, sanitation, and sewerage disposal.
91.14  Confirmation of permits.
91.15  Suspension or amendment of regulations.

    Authority: Subdivision 9 of sec. 2, sec. 12, Act of June 28, 1906 
(34 Stat. 539), sec. 3, Act of June 24, 1938 (52 Stat. 1034). Interpret 
or apply Act of April 18, 1912 (37 Stat. 86).

    Source: 28 FR 10203, Sept. 18, 1963, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 91.1  Purpose.

    The purpose of the regulations in this part is to establish policies 
and procedures for the government of Indian villages, Osage Reservation, 
Oklahoma.



Sec. 91.2  Definitions.

    As used in this part:
    (a) Secretary means the Secretary of the Interior or his authorized 
representative.
    (b) Superintendent means the Superintendent or other officer in 
charge of Osage Agency.
    (c) Council means the Osage Tribal Council, that elected governing 
body of the Osage Tribe of Indians.
    (d) Tribal Member means any person of Osage Indian blood of whatever 
degree, allotted or unallotted.
    (e) Minor means any person under 21 years of age.
    (f) Resident means an adult tribal member who has resided in the 
village for thirty (30) days, in the 12-month period preceding the 
election.



Sec. 91.3  Description of village reserves.

    The act of June 28, 1906 (34 Stat. 539), as amended by the act of 
June 24, 1938 (52 Stat. 1034), set aside certain tribal lands 
exclusively as dwelling sites for the use and benefit of the Osage 
Indians until January 1, 1984, unless otherwise provided by Act of 
Congress. These lands are described as follows:
    (a) Grayhorse Indian Village. The southeast quarter (SE \1/2\) of 
the southeast quarter (SE \1/4\), and the west half (W \1/2\) of the 
southwest quarter (SW \1/4\) of the southeast quarter (SE \1/4\), and 
the south half (S \1/2\) of the northeast quarter (NE \1/4\) of the 
southeast quarter (SE \1/4\) of the southwest quarter (SW \1/4\), and 
the south half (S \1/2\) of the north half (N \1/2\) of the northeast 
quarter (NE \1/4\) of the southeast quarter (SE \1/4\) of the southwest 
quarter (SW \1/4\), and the southeast quarter (SE \1/2\) of the 
southeast quarter (SE \1/4\) of the southwest quarter (SW \1/4\) of sec. 
fifteen (15); and the north half (N \1/2\) of the northeast quarter (NE 
\1/4\), and the northeast quarter (NE \1/4\) of the northwest quarter 
(NW \1/4\) of sec. twenty-two (22), all in township twenty-four (24) 
north, range six (6) east of the Indian meridian, and containing 197.5 
acres, more or less.
    (b) Hominy Indian Village. Lots Six (6) and Seven (7), and the East 
Half (E \1/2\) of the Southwest Quarter (SW \1/4\) of Section Six (6) in 
Township Twenty-two (22) North, Range Nine (9) East of the Indian 
Meridian, and containing 160 acres, more or less.
    (c) Pawhuska Indian Village. Lots One (1) and Two (2), and the South 
Half (S \1/2\) of the Northeast Quarter (NE \1/4\) of Section Three (3) 
in Township Twenty-five (25) North, Range Nine (9) East of the Indian 
Meridian, and containing 160 acres, more or less.

[28 FR 10203, Sept. 18, 1963, as amended at 33 FR 8270, June 4, 1968. 
Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 291]]



Sec. 91.4  Plats of village reserves.

    Plats of the Grayhorse Indian Village, the Pawhuska Indian Village, 
and the Hominy Indian Village, certified by Ralph M. Tolson, Registered 
Engineer, on July 5, 1966, are the official plats of dedication of said 
villages and shall be filed of record with the county clerk of Osage 
County, State of Oklahoma.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.5  Tracts reserved from selection by individuals.

    The following described tracts, as shown on the plats of the three 
villages, are reserved from selection by individuals and are set aside 
for sepultural use or for public use by tribal members:
    (a) Grayhorse Indian Village:
    (1) Public Squares.
    (2) Parks, and
    (3) Cemetery.
    (b) Hominy Indian Village:
    (1) Public squares.
    (2) Cemetery, and
    (3) Lot 1 in block 1 set aside for religious and educational 
purposes to the Society of Friends, its Associate Executive Committee of 
Friends on Indian Affairs and its or their representative at Hominy, 
Okla., by Resolution of the Osage Tribal Council dated June 6, 1956, and 
approved by the Assistant Secretary of the Interior, September 7, 1956.
    (c) Pawhuska Indian Village:
    (1) Wakon Iron Square.
    (d) Those individuals who have summer homes or dance arbors located 
on the Public Square of the Hominy Indian Village shall be permitted to 
retain said summer homes or dance arbors during their lifetimes if they 
are maintained in a condition satisfactory to the Hominy Indian Village 
Committee. Following the owner's death, the improvements shall be 
removed within ninety (90) days or become the property of the Hominy 
Indian Village.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.6  Custody of public buildings and tracts reserved from selection by individuals; village committees.

    Each of the three (3) villages described herein shall organize a 
village committee to provide for the health, safety and welfare of its 
inhabitants, for the maintenance of tribal property, and to serve as 
custodian and manager of tribal property and improvements located within 
said village except that tract described in Sec. 91.5(b)(3). Each 
village committee shall be composed of five (5) members, domiciled in 
the village, one of whom shall be designated by the committee as 
chairman. The committees shall be elected biennially by the residents of 
the villages, except in the Grayhorse Indian Village where the committee 
shall be appointed by the Council from among those tribal members 
residing in or historically associated with the village. The procedure 
for initial committee elections shall be established by the Council. 
Each village committee shall prepare a constitution and by-laws to be 
approved by the Council and the Superintendent before said committee 
will have any authority to govern, and any changes or amendments thereto 
must likewise be approved by the Council and the Superintendent. All 
actions of the committee are subject to appeal to the Council whose 
decision shall be final: Provided, That such committee shall have no 
control or authority to grant permission for the use of tribal property 
described in Sec. 91.5 for the holding of dances. Such authority shall 
remain in the Council and any group or individual using the property for 
dance purposes without the written permission of the Council shall be in 
violation of these regulations: Provided, further, That the village 
committee shall not permit the use of any of the tracts described in 
Sec. 91.5 in any manner that would conflict with Council authorization 
for dance purposes.



Sec. 91.7  Permits to occupy land for dwelling purposes.

    The issuance of permits for the use of land for dwelling purposes 
within any village reserve described in Sec. 91.3 except tracts reserved 
for specific purposes by

[[Page 292]]

Sec. 91.5 will be under the jurisdiction of the Superintendent. Permits 
may be issued only to tribal members upon application to the 
Superintendent: Provided, That only one permit shall be issued to any 
one individual and that erection of a dwelling house shall be started on 
such land within six (6) months from date of approval of the permit or 
such permit shall be automatically terminated except that upon written 
application the Superintendent may extend such permit for an addition 
six (6) months: Provided, further, That only one dwelling shall be 
constructed under any one permit. Permits shall be issued for the use of 
one to three contiguous lots, depending upon the quality and permanency 
of the improvements to be placed thereon. Permits issued under this 
section shall be made in duplicate in a manner to be prescribed by the 
Superintendent. The original copy shall be filed in the Branch of 
Realty, Osage Agency, and the duplicate copy shall be mailed to the 
permittee.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.8  Sale or mortgage of improvements.

    No improvements located within the village reserves described in 
Sec. 91.3 shall be sold, mortgaged, transferred or assigned without the 
approval of the Superintendent.
    (a) Improvements may be mortgaged for home improvements or the 
erection of new improvements. Such mortgages shall be made with 
acceptable lending agencies and shall be approved by the Superintendent. 
The lending agency shall have the right:
    (1) To foreclose the mortgage and to sell the improvements within 
six (6) months of the date of foreclosure judgment to any eligible 
tribal member with the understanding that the use of the land on which 
the improvements are situated shall be transferable to the new owner; or
    (2) To foreclose the mortgage and to sell the improvements to a non-
tribal member, who shall remove the improvements from the village 
reserve within six (6) months of the date of sale. In the event of 
removal of the mortgaged property, it shall be the responsibility of the 
lending agency to level the land on which such improvements were located 
and to remove all debris, sidewalks, etc., leaving the premises in an 
orderly condition. Failure to make such disposition within the time 
stated in this paragraph shall result in forfeiture of the improvements 
to the village committee.
    (b) Improvements may be sold by the owner thereof with the approval 
of the Superintendent. Sale of such improvements shall be accomplished 
by bill of sale executed by the owner in triplicate who shall file all 
copies with the Superintendent. If the purchaser of such improvements is 
a member of the Osage Tribe, the bill of sale shall be accompanied by a 
relinquishment of the permit in favor of the vendee for the occupancy of 
the land on which such improvements are located. If the purchaser is not 
a member of the Osage Tribe, such purchaser shall be required to endorse 
an agreement on the reverse of all copies of the bill of sale that he 
will:
    (1) Remove the improvements from the village reserve within six (6) 
months of date of approval of the bill of sale;
    (2) Transfer the title thereof as provided in this section to a 
tribal member who is eligible; or
    (3) Failing to make such disposition within the time stated forfeit 
title to the village committee.
    (c) Upon approval of the bill of sale by the Superintendent, the 
original or certified copy shall be filed in the Branch of Realty, Osage 
Agency, the duplicate copy mailed to the purchaser, and the triplicate 
copy mailed to the seller.



Sec. 91.9  Inheritance of improvements.

    (a) Upon the death of the owner of improvements in a village 
reserve, such improvements shall, in probate matters, be subject to the 
jurisdiction of the county courts, State of Oklahoma, and shall be 
subject to inheritance or bequest in accordance with applicable State 
and Federal laws. The land within a village reserve is held in trust for 
the benefit of tribal members and is not subject to inheritance or 
purchase.

[[Page 293]]

    (b) When such improvements or interests therein are inherited by or 
bequeathed to a non-tribal member, he or she shall dispose of such 
improvements in the manner provided for disposition of improvements by 
purchaser under Sec. 91.8: Provided, That when such non-tribal member is 
a legally adopted minor child such child may continue to occupy the land 
during its minority: Provided, further, That when such non-tribal member 
is the surviving spouse such individual, so long as he or she remains 
single may continue to occupy the land during his or her lifetime or may 
sell the improvements as provided herein and may receive a proceeds 
therefrom. In the event such surviving spouse remarries, the right to 
continuous occupancy of the land pursuant to this Sec. 91.9 shall 
terminate and such surviving spouse shall make disposition of such 
improvements as provided for purchasers in Sec. 91.8. If upon the death 
of the surviving spouse title to the improvements vests in a non-tribal 
member, they shall be sold as provided in Sec. 91.8 and the proceeds 
distributed to the persons entitled thereto.
    (c) Improvements inherited by tribal members may be occupied or 
rented in accordance with Sec. 91.10: Provided, No tribal member shall 
be issued more than two permits or own more than two sets of 
improvements, one of which must be inherited property and one occupied 
by the tribal member: Provided, further, No tribal member shall be 
permitted to retain more than one set of improvements for rental. If 
this provision is violated, the tribal member will have three years, 
from the date of written notice from the Superintendent that such 
provision has been violated, within which to dispose of the surplus 
property in accordance with Sec. 91.8.



Sec. 91.10  Renting of improvements.

    The Superintendent may issue a certificate of permission to rent for 
a period of one (1) year improvements located on land held under valid 
permit, subject to renewal in the discretion of the Superintendent, upon 
written application by the owner of such improvements and the 
prospective tenant: Provided, That such prospective tenant is a tribal 
member and the property to be rented is that heretofore occupied or 
inherited by the owner. Certificates of permission issued under this 
section may be withdrawn upon 30-day notice to the tenant by the 
Superintendent and such tenant expelled from the village reserve. The 
application and certificate of permission on a form to be prescribed by 
the Superintendent shall be made in triplicate and all copies forwarded 
to the Superintendent for action. Upon approval by the Superintendent, 
the original copy of the application and certificate shall be filed in 
the Branch of Realty, Osage Agency, the duplicate copy of each forwarded 
to the owner, and the triplicate copy of each forwarded to the tenant.



Sec. 91.11  Domestic animals in village reserves.

    (a) No livestock shall be permitted to trespass in any village 
reserve except that unassigned lots or unplatted areas enclosed by 
adequate fences may be leased by the village committee with the approval 
of the Superintendent and the proceeds therefrom credited to the account 
of the village committee. Trespassing livestock may be impounded by the 
village committee. The village committee shall give notice of 
impoundment to the owner of the animal, if known, by certified mail or 
by posting in the village square. The notice shall advise the owner that 
a $10 charge shall be assessed per day for each animal impounded and a 
reasonable charge for forage consumed and that the animal or animals 
shall be sold at the expiration of twenty (20) days from the date of 
mailing or posting the notice. In the event an animal is sold, the 
balance after deducting $10 per day for impoundment and a reasonable 
forage charge, shall be deposited at the Osage Agency and the owner may 
claim said funds if satisfactory proof of ownership is presented to the 
Superintendent of the Osage Agency within six (6) months of the date of 
sale. After six (6) months, any funds remaining on deposit will become 
the property of the village in which the animal was trespassing.
    (b) No horses, mules, bovine, hogs, sheep, or goats shall be penned 
on assigned lots.

[33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 294]]



Sec. 91.12  Business enterprises and public buildings.

    No permanent business enterprises shall be carried on within the 
boundaries of a village reserve and no public buildings shall be erected 
on lands within the boundaries of a village reserve except on tracts 
described in Sec. 91.5 maintained for the use and benefit of tribal 
members. The construction or acquisition of dwellings for rental 
purposes is prohibited. The village committee may grant permission and 
charge fees for temporary concessions within the village reserve during 
Indian celebrations, dances, community gatherings, etc., such temporary 
permits to last only for the term of activities for which granted.



Sec. 91.13  Health, sanitation, and sewerage disposal.

    Health, sanitation, and sewerage disposal problems within the 
village reserves shall be subject to and controlled by applicable County 
and State laws.



Sec. 91.14  Confirmation of permits.

    The Superintendent shall prepare a certified list of all current 
permittees with a description of lots held, which descriptions shall 
conform to the plats certified July 5, 1966. Said list shall be served 
by certified mail on the individual permittees and the village committee 
chairman and shall be posted at the Osage Agency and each of the three 
village squares. Unless a protest is filed with the Superintendent 
within ninety (90) days of the mailing and posting, said certified list 
of assigned lots and the individual permittees shall be final and 
conclusive. Protests may be filed by tribal members claiming an interest 
in an assigned lot and such protest shall be determined by the 
Superintendent after notice and hearing.

[33 FR 8271, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 91.15  Suspension or amendment of regulations.

    The regulations in this part may be suspended or amended at any time 
by the Secretary of the Interior: Provided, That such amendments or 
suspension shall not serve to change the terms or conditions of any 
mortgage approved in accordance with Sec. 91.8(a).

[[Page 295]]



                   SUBCHAPTER G--FINANCIAL ACTIVITIES





PART 101--LOANS TO INDIANS FROM THE REVOLVING LOAN FUND--Table of Contents




Sec.
101.1  Definitions.
101.2  Kinds of loans.
101.3  Eligible borrowers under United States direct loan program.
101.4  Applications.
101.5  Approval of loans.
101.6  Modification of loans.
101.7  Management and technical assistance.
101.8  Environmental and Flood Disaster Acts.
101.9  Preservation of historical and archeological data.
101.10  Federal Reserve Regulation Z and Fair Credit Reporting Act.
101.11  Interest.
101.12  Records and reports.
101.13  Security.
101.14  Maturity.
101.15  Penalties on default.
101.16  Default on loans made by relending organizations.
101.17  Uncollectible loans made by the United States.
101.18  Uncollectible loans made by relending organizations.
101.19  Assignment of loans.
101.20  Relending by borrower.
101.21  Repayments on United States direct loans.
101.22  Repayments on loans made by relending organizations.
101.23  Approval of articles of association and bylaws.
101.24  Loans for expert assistance for preparation and trial of Indian 
          claims.
101.25  Information collection.

    Authority: 25 U.S.C. 1469.


    Source: 40 FR 3587, Jan. 23, 1975, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 101.1  Definitions.

    As used in this part 101:
    Applicant means an applicant for a United States Direct Loan from 
the revolving loan fund or a loan from a relending organization.
    Commissioner means the Commissioner of Indian Affairs or an 
authorized representative.
    Cooperative association means an association of individuals 
organized pursuant to state, Federal, or tribal law, for the purpose of 
owning and operating an economic enterprise for profit with profits 
distributed or allocated to patrons who are members of the organization.
    Corporation means an entity organized as a corporation pursuant to 
state, Federal, or tribal law, with or without stock, for the purpose of 
owning and operating an economic enterprise.
    Default means failure of a borrower to:
    (1) Make scheduled payments on a loan when due,
    (2) Obtain the lender's approval for disposal of assets mortgaged as 
security for a loan, or
    (3) Comply with the covenants, obligations, or other provisions of a 
loan agreement.
    Economic enterprise means any Indian-owned commercial, industrial, 
agricultural, or business activity established or organized for the 
purpose of profit, provided that eligible Indian ownership constitutes 
not less than 51 percent of the enterprise.
    Equity means the borrower's residual ownership, after deducting all 
business debt, of tangible business assets used in the business being 
financed, on which a lender can perfect a first lien position.
    Financing statement means the document filed or recorded in county 
or state offices pursuant to the provisions of the Uniform Commercial 
Code notifying third parties that a lender has a lien on the chattels 
and/or crops of a borrower.
    Indian means a person who is a member of an Indian tribe as defined 
in this part.
    Organization means the governing body of any Indian tribe, or entity 
established or recognized by such governing body for the purpose of the 
Indian Financing Act.
    Other organization means any non-Indian individual, firm, 
corporation, partnership, or association.
    Partnership means a form of business organization in which two or 
more legal persons are associated as co-owners for the purposes of 
business or professional activities for private pecuniary gain, 
organized pursuant to tribal, state, or Federal law.

[[Page 296]]

    Reservation means Indian reservation, California rancheria, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held by Alaska Native groups incorporated under the provisions of the 
Alaska Native Claims Settlement Act (85 Stat. 688), as amended.
    Revolving loan fund means all funds that are now or hereafter a part 
of the revolving fund authorized by the Act of June 18, 1934 (48 Stat. 
986), the Act of June 26, 1936 (49 Stat. 1968) and the Act of April 14, 
1950 (64 Stat. 44), as amended and supplemented including sums received 
in settlement of debts for livestock pursuant to the Act of May 24, 
1950, (64 Stat. 190) and sums collected in repayment of loans made, 
including interest or other charges on loans, and any funds appropriated 
pursuant to Section 108 of the Indian Financing Act of 1974 (88 Stat. 
77).
    Secretary means the Secretary of the Interior.
    Tribe means any Indian tribe, bank, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or any 
regional, village, urban or group corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688), as amended, which is recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs.

[57 FR 46471, Oct. 8, 1992]



Sec. 101.2  Kinds of loans.

    Loans from the Indian Revolving Loan Fund shall be made for purposes 
which will improve and promote the economic development on Indian 
reservations.
    (a) Loans may be made by the United States to eligible relending 
organizations for relending to members for economic enterprises and to 
eligible tribes for relending to members, eligible corporations, 
cooperative associations, partnerships and subordinate bands and for 
financing tribal economic enterprises, which will promote the economic 
development of a reservation and/or the group or members thereon. Loans 
made by tribes or relending organizations may be for the following 
purposes:
    (1) To individual Indians or Natives, cooperative associations, 
corporations and partnerships, to finance economic enterprises operated 
for profit, the operation of which will contribute to the improvement of 
the economy of a reservation and/or the members thereon.
    (2) To individual Indians or Natives for purposes of purchasing, 
constructing or improving housing on a reservation and to be occupied by 
the borrower.
    (3) To individual Indians and Natives for purposes of obtaining a 
college or graduate education and degree in a field which will provide 
employment opportunities, provided that adequate funds are not available 
from sources such as grants, scholarships or other loan sources.
    (4) To individual Indians and Natives for purposes of attending 
vocational schools which provide training in desired skills in a field 
in which there are employment opportunities, provided that adequate 
funds and/or training are not available from grant or scholarship 
sources, or federal or state training programs.

Loans may also be made by the United States to tribes for loaning to or 
investing in other organizations subject to the provisions in paragraph 
(d) of this section.
    (b) Direct loans may be made by the United States to eligible 
tribes, tribal organizations or corporations and tribal cooperative 
associations without fund restrictions. Direct loans to individual 
Indians, partnerships, and other non-tribal organizations shall not 
exceed $350,000. Direct loans from the United States shall be made for 
the following purposes:
    (1) To eligible tribes, individual Indians, Natives, or associations 
thereof, corporations and partnerships, to finance economic enterprises 
operated for profit, the operation of which will contribute to the 
improvement of the economy of a reservation and/or the members thereon.
    (2) To individual Indians and Natives for purposes of purchasing, 
constructing or improving housing on a reservation and to be occupied by 
the borrower.
    (3) To individual Indians and Natives for purposes of obtaining a 
college or

[[Page 297]]

graduate education and degree in a field which will provide employment 
opportunities, provided that adequate funds are not available from 
sources such as grants, scholarships or other loan sources.
    (4) To individual Indians and Natives for purposes of attending 
vocational schools which provide training in desired skills in a field 
in which there are employment opportunities, provided that adequate 
funds and/or training are not available from grants or scholarship 
sources or federal or state training programs.
    (c) Before a United States direct loan is approved, the Commissioner 
may require the applicants to prepare a market and capacity report on 
existing or proposed economic enterprises for which financing is 
requested if the operation involves manufacturing, selling or providing 
services.
    (d) Loans may be made to eligible tribes and Indian organizations 
for use in attracting industries and economic enterprises, the operation 
of which will contribute to the economy of a reservation. Tribes and 
Indian organizations may receive loans from the revolving loan fund for 
investment in or lending to other organizations regardless of whether 
they are organizations of Indians. However, not more than 50 percent of 
the loan made to an Indian organization may be used for the purpose of 
making a loan to or investing in other organizations. Applications for 
loans to provide funds for lending to or investing in other 
organizations already in operation will be accompanied by:
    (1) Audited balance sheets and operating statements of the other 
organization for the immediate three preceding years;
    (2) Pro forma operating statement and balance sheets for the 
succeeding three years reflecting the results of operations after 
injection of the additional funds;
    (3) Names of owners or if a corporation and stock has been issued, 
names of major stockholders and shares of stock owned by each;
    (4) A copy of the articles of incorporation and bylaws, if 
incorporated, or other organization papers if not incorporated;
    (5) Names of members of the board of directors and officers with a 
resume of education and experience, and the number of shares of stock 
owned by each in the corporation;
    (6) Purposes for which loan or investment will be used; and
    (7) If for manufacturing, selling or providing services, a market 
and capacity report will be prepared. If a proposed operation is to be 
established, the information in paragraphs (d)(2) through (7) of this 
section will be furnished. The Commissioner may require additional 
information on the other organization, if needed, to adequately evaluate 
the benefits which the Indian organization will receive and the economic 
benefits which will accrue to a reservation. If the loan is for 
relending to another organization, the application must show what 
security is being offered. If the loan is for investment in another 
organization, the equity to be obtained must be shown. Copies of all 
agreements, contracts or other documents to be executed by the Indian 
organization and the other organization in connection with a loan or 
investment shall be submitted with the application for a loan and will 
require Commissioner approval prior to disbursement of loan funds to the 
Indian organization.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34974, Aug. 23, 1989]



Sec. 101.3  Eligible borrowers under United States direct loan program.

    (a) Loans may be made from the revolving loan fund to Indians, 
eligible tribes and relending organizations, and corporations, 
cooperative associations and partnerships having a form of organization 
satisfactory to the Commissioner. Loans may be made to applicants only 
when, in the judgment of the Commissioner, there is a reasonable 
prospect of repayment. Loans may be made only to an applicant who, in 
the opinion of the Commissioner, is unable to obtain financing on 
reasonable terms and conditions from other sources such as tribal 
relending programs, banks, Farmers Home Administration, Small Business 
Administration, Production Credit Associations,

[[Page 298]]

or Federal Land Banks, and is also unable to obtain a guaranteed or 
insured loan pursuant to title II of the Indian Financing Act of 1974 
(88 Stat. 77). In addition, the applicant will be required to have 
equity equal to 20 percent of the total cost of a new enterprise, or 20 
percent of the total cost of expansion of an existing enterprise.
    (b) The establishment of a United States direct revolving loan 
program on a reservation(s) for making direct loans will require the 
approval of the Commissioner. All requests for establishing a United 
States direct revolving loan program on a reservation will be 
accompanied by reasons for need, estimate of financing needs, and other 
sources of financing available to meet the needs. The Commissioner, in 
approving a United States direct loan program, may require the 
preparation and approval of a plan of operation for conducting the 
program.
    (c) If local lending conditions and/or the information in an 
application for a loan indicate a probability that an applicant may be 
able to obtain the loan from other sources, the Commissioner, before 
approving a United States direct loan, will require the applicant to 
furnish letters from two customary lenders in the area who are making 
loans for similar purposes, stating whether or not they are willing to 
make a loan to the applicant for the same purposes and amount. If a 
customary lender will make the loan on reasonable terms and conditions, 
the Commissioner will not approve a United States direct loan.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34974, Aug. 23, 1989; 57 FR 46471, Oct. 8, 1992]



Sec. 101.4  Applications.

    An applicant for a United States direct loan or a loan from a 
relending organization conducting a relending program under this part 
will submit an application on a form approved by the Commissioner. 
Applications shall include the name, current address and telephone 
number of the applicant(s); current and prior Taxpayer Identification 
Number--Employer Identification Number if a business entity, Social 
Security Number if an individual; and current employer's name, address, 
and telephone number; amount of the loan requested; purpose for which 
loan funds will be used; and security to be offered; period of the loan, 
assets, liabilities and repayment capacity of the applicant; budgets 
reflecting income and expenditures of the applicant; and any other 
information necessary to adequately evaluate the application. The 
borrower must sign a statement declaring no delinquency on Federal taxes 
or other Federal debt and borrower's good standing on dealings in 
procurement or non-procurement with the Federal Government. The Bureau 
will obtain a current credit bureau report and prescribe procedures to 
be used in handling loan proceeds. In addition, applications for loans 
to finance economic enterprises already in operation will be accompanied 
by:
    (a) A copy of operating statements, balance sheets and budgets for 
the prior two operating years or applicable period thereof preceding 
submittal of the application;
    (b) Current budget, balance sheet and operating statements; and
    (c) Pro forma budgets operating statements and balance sheets 
showing the estimated results for operating the enterprise for two years 
after injection of the loan funds into the operation.
A resume of the applicant's management experience will be submitted with 
the application. Applications for loans and requests for advance of 
tribal trust funds for relending under the provisions of this part shall 
be accompanied by a declaration of policy and plan of operation or other 
acceptable plan for conducting the program. Applications for loans or 
modifications thereof, to establish, acquire, operate, or expand an 
economic enterprise shall be accompanied by a plan of operation. 
Declarations of policy or other plans for conducting a relending program 
and plans of operation for economic enterprises require the approval of 
the Commissioner before becoming effective. An application from a 
corporation, partnership or cooperative association, for a United States 
direct loan or a loan under a relending program for financing an 
economic enterprise must, in addition to financial statements and 
budgets, include a copy of documents establishing the entity, or the 
proposed

[[Page 299]]

documents to be used in establishing it.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46471, Oct. 8, 1992]



Sec. 101.5  Approval of loans.

    (a) Loan agreements, including those used by relending organizations 
in operating a relending program, must be executed on a form approved by 
the Commissioner. On direct United States loans, the Commissioner will 
approve the loan by issuing a commitment order covering the terms and 
conditions for making the loan.
    (b) Applications for loans from relending organizations must be 
approved, if a tribe, by the governing body or designated committee, or 
other approving committee or body authorized to act on credit matters 
for a relending organization, before the Commissioner takes action on 
the application. This designated governing body of the tribe or 
committee must be authorized to act on behalf of the relending 
organization as evidenced in the organization's declaration of policy 
and plan of operation.
    (c) Corporations, partnerships and cooperative associations 
organized for the purpose of establishing, acquiring, expanding, and 
operating an economic enterprise shall be organized pursuant to federal, 
state or tribal law. The form of organization shall be acceptable to the 
Commissioner. Economic enterprises which are or will be operated on a 
reservation(s) must comply with the requirements of applicable rules, 
resolutions and ordinances enacted by the governing body of the tribe.



Sec. 101.6  Modification of loans.

    (a) United States direct loans. Any modification of the terms and 
provisions of a United States direct loan agreement must be requested in 
writing by the borrower and approved by the Commissioner. The borrower 
will submit the request for modification and will indicate the 
section(s) of the loan agreement to be modified together with a 
justification for the modification. Requests for modifications of loan 
agreements will include an agreement to abide by the provisions of the 
regulations in this part and future amendments and modifications 
thereof. In addition, a current credit bureau report, obtained by the 
Bureau of Indian Affairs, will be made a part of the modification 
request.
    (b) Relending program. Any modification of the terms and provisions 
of a loan agreement of a borrower from an organization conducting a 
relending program must be in writing, agreed to by the borrower, and 
must be approved by the body authorized to act on loans and 
modifications thereof as provided in an approved declaration of policy 
and plan of operation or other plan. If a request for modification of a 
loan has been disapproved by the body authorized to act on the request, 
the rejected borrower may request the Commissioner to make a direct loan 
from the revolving loan fund if the Commissioner determines that the 
rejection is unwarranted.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.7  Management and technical assistance.

    Prior to and concurrent with the approval of a United States direct 
loan to finance an economic enterprise, the Commissioner will assure 
under title V of the Indian Financing Act of 1974 that competent 
management and technical assistance is available to the loan applicant 
for preparation of the application and/or administration of funds loaned 
consistent with the nature of the enterprise proposed to be or in fact 
funded by the loan. Assistance may be provided by available Bureau of 
Indian Affairs staff, the tribe or other sources which the Commissioner 
considers competent to provide needed assistance. Contracting for 
management and technical assistance may be used only when adequate 
assistance is not available without additional cost. Contracts for 
providing borrowers with competent management and technical assistance 
shall be in accordance with applicable Federal Procurement Regulations 
and the Buy Indian Act of April 30, 1908, chapter 153 (35 Stat. 71), as

[[Page 300]]

amended June 25, 1910, chapter 431, section 25 (36 Stat. 861).

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34975, Aug. 23, 1989]



Sec. 101.8  Environmental and Flood Disaster Acts.

    Loans will not be approved until there is assurance of compliance 
with any applicable provisions of the Flood Disaster Protection Act of 
1973 (Pub. L. 93-234, 87 Stat. 975), the National Environmental Policy 
Act of 1969 (Pub. L. 91-190), (42 U.S.C. 4321) and Executive Order 
11514.



Sec. 101.9  Preservation of historical and archeological data.

    (a) On United States direct loans from the revolving loan fund and 
modifications thereof to provide additional loan funds which will 
involve excavations, road or street construction, land development or 
disturbance of land on known or reported historical or archeological 
sites, the Commissioner will take or require appropriate action to 
assure compliance with the applicable provisions of the Act of June 27, 
1960 (74 Stat. 220; (16 U.S.C. 469)), as amended by the Act of May 24, 
1974 (Pub. L. 93-291, 88 Stat. 174).
    (b) On loans made by relending organizations conducting a relending 
program using revolving loan funds, the body authorized to act on loan 
applications and modifications thereof will, at the time of taking 
action on a loan or request for modification, inform the applicant of 
the applicability of this Act to the loan and advise the Commissioner of 
compliance or the need to obtain compliance.



Sec. 101.10  Federal Reserve Regulation Z and Fair Credit Reporting Act.

    (a) United States direct loans and loans made by a relending 
organization are subject to the provisions of Federal Reserve Regulation 
Z (Truth In Lending, 12 CFR Part 226; Pub. L. 91-508, 84 Stat. 1127). 
Economic enterprises which extend credit and require payment of finance 
charges on unpaid balances will determine the applicability of 
Regulation Z and comply with the requirements thereof. The Commissioner 
will issue any necessary instructions to assure compliance with 
Regulation Z on United States direct loans.
    (b) Relending organizations, through their committee or other body 
authorized to act on loan matters on its behalf, will assure compliance 
with the applicable provisions of this Act.
    (c) The Commissioner will require adherence to the provisions and 
requirements of title VI of the Fair Credit Reporting Act in making 
United States direct loans. Relending organizations, through the body 
authorized to act on credit matters, will require compliance with the 
requirements of the Fair Credit Reporting Act.



Sec. 101.11  Interest.

    (a) The interest to be charged on loans by the United States shall 
be at a rate determined by the Secretary of the Treasury in accordance 
with section 104, title I, of the Indian Financing Act of 1974 (Pub. L. 
93-262, 88 Stat. 77). The interest rate shall be determined monthly and 
shall be effective on advances made on loans during the current calendar 
month. The interest rate shall be stated in the promissory note(s) 
executed by the borrower(s) evidencing the advance(s).
    (b) Additional charges to cover loan administration costs, including 
credit reports, may be charged to borrowers.
    (c) Education loans may provide for deferral of interest while the 
borrower is in school full time or in the military service.
    (d) The interest rate on loans made by relending organizations which 
are conducting relending programs shall not be less than the rate the 
organization pays on its loan(s) from the United States. Relending 
organizations which adopt and follow the same procedure in calculating 
interest on educational loans as is followed on educational loans made 
by the United States, will not be charged interest on loans from the 
United States on the amount outstanding on educational loans during the 
period the organization is not charging its borrowers interest.
    (e) Interest rates on loan advances made by the United States as 
shown on promissory notes dated before April 12, 1974, will remain in 
effect until the loan is paid in full, refinanced, or modified to extend 
the repayment

[[Page 301]]

terms. Unless otherwise specifically provided in a loan contract, the 
interest rate on advances made after April 12, 1974, will be at a rate 
determined pursuant to section 104 of Title I of the Indian Financing 
Act of 1974. The interest rate on loans for expert assistance will be at 
a rate established in Sec. 101.25 herein.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.12  Records and reports.

    Loan agreements between the United States and tribes, corporations, 
partnerships, cooperative associations and individual Indians for 
financing economic enterprises, and to relending organizations, will 
require that borrowers establish and maintain accounting and operating 
records that are satisfactory to the Commissioner and submit written 
reports as required by the Commissioner. The records, accounts, and loan 
files shall be available for examination and audit by the Commissioner 
at any reasonable time. Unless an exception is approved by the 
Commissioner, borrowers will be required to have an annual audit made of 
the records of relending programs and economic enterprises financed with 
revolving loan funds, by a certified public accountant or a firm of 
certified public accountants or other qualified public accountants 
satisfactory to the Commissioner.



Sec. 101.13  Security.

    (a) United States direct loans shall be secured by such security as 
the Commissioner may require. A lack of security will not preclude the 
making of a loan if the proposed use of the funds is sound and the 
information in the application and supporting papers correctly show that 
expected income will be adequate to pay all expenses and the loan 
principal and interest payments, indicating reasonable assurance that 
the loan will be repaid. Loans made by relending organizations 
conducting a relending program using revolving loan funds will require 
borrowers to give security for loans, if available, but the absence of 
security will not preclude the making of a loan if the proposed use of 
the funds is sound and the information in the application and supporting 
papers correctly show that expected income will be adequate to pay all 
expenses and the loan principal and interest payments, indicating 
reasonable assurance that the loan will be repaid. The declaration of 
policy and plan of operation of relending organizations conducting 
relending programs will include provisions covering the type and amount 
of security to be taken to secure loans made.
    (b) Land purchased by an individual Indian with the proceeds of a 
loan and land already held in trust or restricted status by the 
individual Indian may be mortgaged as security for a loan in accordance 
with 25 CFR 152.34 and the Act of March 29, 1956 (70 Stat. 62; (25 
U.S.C. 483a)). Mortgages of individually held trust or restricted land 
will include only an acreage of the borrower's land which the 
Commissioner determines is necessary to protect the loan in case of 
default. On proposed foreclosures which involve the sale of individually 
held trust or restricted land given as security for a loan, the tribe of 
the reservation on which the land is located will be notified in writing 
at least thirty calendar days in advance of the anticipated date of 
sale. Land purchased by a tribe with the proceeds of a loan from the 
revolving loan fund with title taken in a trust or restricted status, 
and land already held in a trust or restricted status by a tribe may not 
be mortgaged as security for a loan.
    (1) Title to any land purchased by a tribe or by an individual 
Indian with revolving loan funds may be taken in trust or restricted 
status unless the land is located outside the boundaries of a 
reservation or a tribal consolidation area approved by the Secretary. 
Title to any land purchased by a tribe or an individual Indian which is 
outside the boundaries of a reservation or approved consolidation area 
may be taken in trust if the purchaser was the owner of trust or 
restricted interests in the land before the purchase. Otherwise, title 
shall be taken in the name of the purchaser without any restrictions on 
alienation, control, or use.
    (c) Mortgages of leasehold interests in land held in trust or 
restricted status by an individual Indian, may be

[[Page 302]]

taken for the purpose of borrowing capital for the development and 
improvement of the leased premises when permitted in the lease or lease 
modification agreement. Such mortgages must be approved by the lessor 
and Commissioner. (70 Stat. 62, (25 U.S.C. 483a)).
    (d) Individuals may give assignments of income from trust property 
as security for loans. Tribes may give assignments of trust income as 
security for loans provided that the assignment shall be specific as to 
the source(s) of income being assigned. All assignments of trust income 
require approval by the Commissioner before becoming effective.
    (e) Chattels may be given as security for a loan. A mortgage on 
chattels, the title to which is known to be in trust, requires 
Commissioner approval. Non-trust chattels may be mortgaged without 
approval of any federal official.
    (f) Crops grown on lands held in trust or restricted status for the 
benefit of an individual Indian may be given as security for a loan when 
approved by the Commissioner. Crops grown on leased, trust or restricted 
land may be given as security for a loan when permitted by the 
provisions of a lease or when the owner gives written consent. Approval 
of the lien document by the Commissioner is required. Crops grown on 
trust or restricted land held by a tribe which has been assigned to an 
individual for use may be given as security for a loan, provided the 
terms of the assignment permit the assignee to give the crops as 
secuirty for a loan or the tribe's governing body specifically gives 
consent. The lien document requires Commissioner approval. Crops grown 
on non-trust or non-restricted land may be mortgaged without the 
approval of any federal official.
    (g) Title to any personal property purchased with a loan shall be 
taken in the name of the purchaser and mortgaged to secure the loan 
unless the loan is otherwise adequately secured. Tribes must adhere to 
the provisions of their constitutions and bylaws, corporate charters, or 
other organizational documents when mortgaging tribal property and 
assigning trust income as security for loans.
    (h) Relending organizations receiving a loan from the United States 
for relending shall be required to assign to the United States as 
security for the loan all securities acquired in connection with loans 
made to its members, sub-organizations, or associations from such funds, 
unless the Commissioner determines that repayment of the loan to the 
United States is otherwise reasonably assured. Funds advanced to finance 
a tribal economic enterprise shall be secured by an assignment of net 
income and net assets of the economic enterprise, unless the 
Commissioner determines that it is not feasible to require an assignment 
or that repayment of the loan to the United States is otherwise 
reasonably assured.
    (i) Securing documents or financing statements shall be filed or 
recorded in accordance with applicable state or federal laws except for 
those customarily filed in Bureau of Indian Affairs offices. Mortgages 
on documented vessels will be filed at the customs house designated as 
the home port of the vessel as shown on the marine document.



Sec. 101.14  Maturity.

    The maturity of any United States direct loan shall not exceed thiry 
years. Loans made will be scheduled for repayment at the earliest 
possible date consistent with the purpose of the loan and the repayment 
capacity of the borrower.



Sec. 101.15  Penalties on default.

    Unless otherwise provided in the loan agreement between the United 
States and a borrower, failure on the part of a borrower to conform to 
the terms of the loan agreement will be deemed grounds for the taking of 
any one or all of the following steps by the Commissioner:
    (a) Discontinue any further advance of funds contemplated by the 
loan agreement.
    (b) Take possession of any or all collateral given as security and 
in the case of individuals, corporation, partnerships or cooperative 
associations, the property purchased with the borrowed funds.
    (c) Prosecute legal action against the borrower or against officers 
of corporations, tribes, bands, credit associations, cooperative 
associations, and other organizations.

[[Page 303]]

    (d) Declare the entire amount advanced immediately due and payable.
    (e) Prevent further disbursement of credit funds under the control 
of the borrower.
    (f) Withdraw any unobligated funds from the borrower.
    (g) Require relending organizations conducting a relending program 
to apply all collections on loans to liquidate the debt to the United 
States.
    (h) Take possession of the assets of a relending organization 
conducting a relending program and exercise or arrange to exercise its 
powers until the Commissioner has received acceptable assurance of its 
repayment of the revolving loan and compliance with the provisions of 
the terms of the loan agreement.
    (i) Liquidate, operate or arrange for the operation of economic 
enterprises financed with revolving loans made to individuals, tribes, 
corporations, partnerships and cooperative associations until the 
indebtedness is paid or until the Commissioner has received acceptable 
assurance of its repayment and compliance with the terms of the loan 
agreement.
    (j) Report the name and account information of a delinquent borrower 
to a credit bureau.
    (k) Assess additional interest and penalty charges for the period of 
time that payment is not made.
    (l) Assess charges to cover additional administrative costs incurred 
by the Government to service the account.
    (m) Offset amounts owed the borrower under other Federal programs 
including other programs administered by the Bureau of Indian Affairs.
    (n) Refer the account to a private collection agency to collect the 
amount due.
    (o) Refer the account to the U.S. Department of Justice for 
collection by litigation.
    (p) If the borrower is a current or retired Federal employee, take 
action to offset the borrower's salary or civil service retirement 
benefits.
    (q) Refer the debt to the Internal Revenue Service for offset 
against any amount owed the borrower as an income tax refund.
    (r) Report any written-off debt to the Internal Revenue Service as 
taxable income to the borrower.
    (s) Recommend suspension or debarment from conducting further 
business with the Federal Government.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.16  Default on loans made by relending organizations.

    Relending organizations conducting relending programs using 
revolving loan funds will follow prudent lending practices in making and 
servicing loans and take appropriate actions to protect their interests 
in the security given to secure repayment of loans. Declarations of 
policy and plans of operation shall include procedures which will be 
followed in acting to correct a default, such as modification of loan 
agreement or foreclosure and liquidation of security. Relending 
organizations employing a general counsel will refer legal questions on 
foreclosure procedures and sale of security to their counsel.



Sec. 101.17  Uncollectable loans made by the United States.

    If the Secretary determines that a United States direct loan is 
uncollectable in whole or in part or is collectable only at an 
unreasonable cost, or when such action would be in the best interest of 
the United States, the Secretary may cancel, adjust, compromise, or 
reduce the amount of any loan made from the revolving loan fund. The 
Commissioner may adjust, compromise, subordinate, or modify the terms of 
any mortgage, lease, assignment, contract, agreement, or other document 
taken as security for loans. The cancellation of all or part of a loan 
shall become effective when signed by the Secretary.


[54 FR 34975, Aug. 23, 1989]



Sec. 101.18  Uncollectible loans made by relending organizations.

    (a) Relending organizations conducting relending programs using 
revolving loan funds may, when approved by the Commissioner, chargeoff 
as uncollectible all or part of the balance

[[Page 304]]

of principal and interest owing on loans which are considered to be 
uncollectible. Usually a chargeoff includes both principal and interest 
and provides for cessation of interest accruals on the principal balance 
owing as of the date of the chargeoff.
    (b) Action to chargeoff a loan will be in the form of a resolution 
enacted by the committee or body authorized and responsible for actions 
on loan matters for the relending organization. Before action is taken 
to chargeoff a loan as uncollectible, the lender will make an effort, to 
the extent feasible, to liquidate the security given for a loan and 
apply the net proceeds as a repayment on the balance of principal and 
interest owed. The chargeoff of a loan by a relending organization as 
uncollectible will not reduce the principal balance owed to the United 
States. A chargeoff will not release the borrower of the obligation or 
the responsibility to make payments when his or her financial situation 
will permit. Chargeoff action will not release the lender of 
responsibility to continue its efforts to collect the loan.



Sec. 101.19  Assignment of loans.

    A borrower of a direct loan from the United States may not assign 
the loan agreement or any interest in it to a third party without the 
consent of the Commissioner. Relending organizations which are 
conducting relending programs may not assign the loan agreements of 
borrowers, or any interest therein, to third parties without the 
approval of the Commissioner and the borrower.



Sec. 101.20  Relending by borrower.

    (a) A relending organization may reloan funds loaned to it by the 
United States with the approval of the Commissioner. The Commissioner 
may authorize such lenders to approve applications for particular types 
of loans up to a specified amount.
    (b) Loans shall be secured by such securities as the lender and the 
Commissioner may require. With the Commissioner's approval, mortgages of 
individually held trust or restricted land, leasehold interests, 
chattels, crops grown on trust or restricted land, and assignments of 
trust income may all be taken as security for loans.
    (c) Title to personal property purchased with loans received from 
relending organizations using revolving loan funds in its relending 
program shall be taken in the name of the borrower.
    (d) The term of a loan made by a relending organization conducting a 
relending program shall not extend beyond the maturity date of its loan 
from the United States, unless an exception is approved by the 
Commissioner and the organization has funds available from which to make 
scheduled repayment on its loan from the United States. Loans made will 
be scheduled for repayment at the earliest possible date consistent with 
the purpose for which a loan is made and the indicated repayment 
capacity of the borrower.
    (e) Securing documents or financing statements shall be filed or 
recorded in accordance with federal or state law except those 
customarily filed in Bureau of Indian Affairs offices. Mortgages on 
documented vessels will be filed at the custom house designated as the 
home port of the vessel as shown on the marine document.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated and amended at 57 FR 46472, Oct. 8, 1992]



Sec. 101.21  Repayments on United States direct loans.

    Repayments on United States direct loans shall be made to the 
authorized collection officer of the Bureau of Indian Affairs who shall 
issue an official receipt for the repayment and deposit the collection 
into the revolving loan fund. Collections will first be applied to pay 
interest to date of payment and the balance applied on the principal 
installment due. Collections on loans made by relending organizations 
which have been declared in default in which the Commissioner has taken 
control of the assets of the program (including loans made with balances 
owing) will be made to an authorized collection officer of the Bureau of 
Indian Affairs who shall issue a receipt to the payor and deposit the 
collection in the United States revolving loan fund. The relending 
organization's loan from the United States will be credited with the 
amounts collected from its borrowers,

[[Page 305]]

with the collections applied first on interest accrued and the balance 
applied to the principal. Payments on United States direct loans may be 
made in advance of due dates without penalty.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.22  Repayments on loans made by relending organizations.

    Repayments on loans made by a relending organization conducting a 
relending program will be made to the officers of the lending 
organization or individuals designated and authorized in a declaration 
of policy and plan of operation. Collections on loans and other income 
to a relending program will be deposited in the lender's revolving loan 
account as designated in a declaration of policy and plan of operation. 
Collections on loans will be first applied to pay interest to date of 
payment with the balance applied to the principal.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.23  Approval of articles of association and bylaws.

    Articles of association and bylaws of relending organizations and 
cooperative associations require approval of the Commissioner if they 
make application for a revolving credit loan.

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.24  Loans for expert assistance for preparation and trial of Indian claims.

    (a) Loans may be made to Indian tribes, bands and other identifiable 
groups of Indians from funds authorized and appropriated under the 
provisions of section 1 of the Act of November 4, 1963 (Pub. L. 88-168, 
77 Stat. 301; 25 U.S.C. 70n-1), as amended by the Act of September 19, 
1966 (Pub. L. 89-592, 80 Stat. 814) and section 2 of the Act of May 24, 
1973 (Pub. L. 93-37, 87 Stat. 73). Loan proceeds may only be used for 
the employment of expert assistance, other than the assistance of 
counsel, for the preparation and trial of claims pending before the 
Indian Claims Commission. Applications for loans will be submitted on 
forms approved by the Commissioner and shall include a justification of 
the need for a loan. The justification shall include a statement from 
the applicant's claims attorney regarding the need for a loan. The 
application will be accompanied by a statement signed by an authorized 
officer of the applicant certifying that the applicant does not have 
adequate funds available to obtain and pay for the expert assistance 
needed. The Superintendent and the Area Director will attest to the 
accuracy of the statement or point out any inaccuracies. Loans will be 
approved by issuance of a commitment order by the Commissioner.
    (b) No loan shall be approved if the applicant has funds available 
on deposit in the United States Treasury or elsewhere in an amount 
adequate to obtain the expert assistance needed or if, in the opinion of 
the Commissioner, the fees to be paid the experts are unreasonable on 
the basis of the services to be performed by them.
    (c) Contracts for the employment of experts are subject to the 
provisions of 25 U.S.C. 81 and require approval by the Commissioner.
    (d) Vouchers or claims submitted by experts for payment for services 
rendered and reimbursement for expenses will be in accordance with the 
provisions of the expert assistance contract and shall be sufficiently 
detailed and itemized to permit an audit to determine that the amounts 
are in accordance with the contract. Vouchers or claims shall be 
reviewed by the borrower's claims attorney who will certify on the last 
page of the voucher or by attachment thereto, that the services have 
been rendered and payment is due the expert and that expenses and 
charges for work performed are in accordance with the provisions of the 
contract.
    (e) Requests for advances under the loan agreement shall be 
accompanied by a certificate signed by an authorized officer of the 
borrower certifying that the borrower does not have adequate funds 
available from its own financial resources with which to pay the expert. 
The Superintendent and Area Director will attest to the accuracy of the 
statement or point out inaccuracies. A copy of the voucher or claim from 
the expert

[[Page 306]]

will accompany the request for advance.
    (f) Loan funds will be advanced only as needed to pay obligations 
incurred under approved contracts for expert assistance. The funds will 
be deposited in a separate account, shall not be commingled with other 
funds of the borrower, and shall not be disbursed for any other purpose.
    (g) Loans shall bear interest at the rate of 5\1/2\ percent per 
annum from the date funds are advanced until the loan is repaid.
    (h) The principal amount of the loan advanced plus interest shall be 
repayable from the proceeds of any judgment received by the borrower at 
the time funds from the award become available to make the payment.

(77 Stat. 301 (25 U.S.C. 70n-1 to 70n-7))

[40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Further redesignated at 57 FR 46472, Oct. 8, 1992]



Sec. 101.25  Information collection.

    (a) The collections of information contained in Secs. 101.3, 101.4, 
101.12, and 101.25 have been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-
0020. The information will be used to rate applicants in accordance with 
the terms and conditions set forth in section 103 of the Indian 
Financing Act, as amended. Response is required to obtain a benefit in 
accordance with 25 U.S.C. 1451.
    (b) Public reporting burden for this information is estimated to 
vary from 15 minutes to 3 hours per response, with an average of one 
hour per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding this burden estimate or any other aspects of this 
collection of information, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer, Bureau of 
Indian Affairs, Mailstop 337-SIB, 18th and C Streets NW., Washington, DC 
20240; and the Paperwork Reduction Project (1076-0020), Office of 
Management and Budget, Washington, DC 20503.

[54 FR 34975, Aug. 23, 1989. Redesignated at 57 FR 46472, Oct. 8, 1992]



PART 103--LOAN GUARANTY, INSURANCE, AND INTEREST SUBSIDY--Table of Contents




Sec.
103.1  Definitions.
103.2  Purpose.
103.3  Kinds of loans.
103.4  Management and technical assistance.
103.5  Preservation of historical and archeological data.
103.6  Environmental and flood disaster protection.
103.7  Eligible organizations.
103.8  Eligible individuals.
103.9  Eligible lenders.
103.10  Ineligible loans.
103.11  Guaranteed loans.
103.12  Insured loans.
103.13  Amount of guaranty.
103.14  Amount of insurance.
103.15  Applications for loan guaranties or insurance.
103.16  Loan otherwise available.
103.17  Refinancing.
103.18  Furnishing additional information.
103.19  Approval of guaranteed loans.
103.20  Approval of insured loans.
103.21  Modification of loan agreements.
103.22  Protective advances.
103.23  Increase in principal of loans.
103.24  Maturity.
103.25  Amortization.
103.26  Prepayments.
103.27  Amount of security.
103.28  Filing and recording.
103.29  Property purchased with loan funds.
103.30  Land.
103.31  Chattels.
103.32  Crop mortgages.
103.33  Assignments of income.
103.34  Restrictions.
103.35  Release of security.
103.36  Default on guaranteed loans.
103.37  Default on insured loans.
103.38  Subrogated and assigned rights.
103.39  Cancellation.
103.40  Charges upon liquidation.
103.41  Interest.
103.42  Interest subsidy.
103.43  Premium charges.
103.44  Other charges.
103.45  Late charge.
103.46  Loan servicing.
103.47  Restrictions on lenders.
103.48  Title to property purchased with loans.
103.49  Fraud or misrepresentation.
103.50  Loan guaranty and insurance fund.

[[Page 307]]

103.51  Sale or assignment of guaranteed loans.
103.52  Records.
103.53  Suspension of lenders.
103.54  Probate.
103.55  Information collection.

    Authority: 25 U.S.C. 1498.

    Source: 40 FR 12492, Mar. 19, 1975, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 103.1  Definitions.

    As used in this part:
    Applicant means one who applies for a guaranteed or insured loan.
    Borrower means the Indian organization or individual Indian 
receiving a guaranteed or insured loan.
    Commissioner means the Commissioner of Indian Affairs or his 
authorized representative.
    Cooperative Association means an association of individuals 
organized pursuant to state, Federal, or tribal law for the purpose of 
owning and operating an economic enterprise for profit with profits 
distributed or allocated to patrons who are members of the organization.
    Corporation means an entity organized as a corporation pursuant to 
state, Federal, or tribal law, with or without stock for the purpose of 
owning and operating an economic enterprise.
    Default means failure of a borrower to:
    (1) Make scheduled payments on a loan when due,
    (2) Obtain the lender's approval for disposal of assets mortgaged as 
security for a loan, or
    (3) Comply with the covenants, obligations, or other provisions of a 
loan agreement.
    Economic enterprise means any Indian-owned commercial, industrial, 
agricultural, or business activity established or organized for the 
purpose of profit, provided that eligible Indian ownership constitutes 
not less than 51 percent of the enterprise.
    Equity means the borrower's residual ownership, after deducting all 
business debt, of tangible business assets used in the business being 
financed, on which a lender can perfect a first lien position.
    Financing statement means the document filed or recorded in county 
or state offices pursuant to the provisions of the Uniform Commercial 
Code notifying third parties that a lender has a lien on the chattels 
and/or crops of a borrower.
    Guaranty means the obligation assumed by the United States to repay 
a specific percentage of a loan upon default of the borrower pursuant to 
the regulations in this part.
    Indian means a person who is a member of an Indian tribe as defined 
in this part.
    Insured loan means a loan made pursuant to an agreement approved by 
the Commissioner with a financial institution, under which an obligation 
is assumed by the United States to indemnify the lender for a percentage 
of the loss on loans, pursuant to the regulations in this part.
    Interest subsidy means payments which may be made by the United 
States to lenders making guaranteed or insured loans to reduce the 
interest rate which borrowers pay the lenders to the rate established 
pursuant to section 104 of the Indian Financing Act of 1974 (25 U.S.C. 
1451 et seq.).
    Mortgage means a mortgage or deed of trust evidencing an encumbrance 
of land, a mortgage or security agreement executed as evidence of a lien 
against crops and chattels, and a mortgage or deed of trust evidencing a 
lien on leasehold interests.
    Organization means the governing body of any Indian tribe or entity 
established or recognized by such governing body for the purpose of the 
Indian Financing Act.
    Partnership means a form of business organization in which two or 
more persons are associated as co-owners for the purposes of business or 
professional activities for private pecuniary gain organized under 
tribal, state, or Federal law.
    Premium means the charges paid by lenders for the guaranty or 
insurance of loans under provisions for reimbursement of lenders by the 
United States for a percentage of losses incurred.
    Reservation means Indian reservation, California rancheria, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held by Alaska Native groups incorporated

[[Page 308]]

under the provisions of the Alaska Native Claims Settlement Act (85 
Stat. 688), as amended.
    Secretary means the Secretary of the Interior.
    Tribe means any Indian tribe, band, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or any 
regional, village, or urban or group corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688) as amended which is recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs.

[57 FR 46472, Oct. 8, 1992]



Sec. 103.2  Purpose.

    (a) The purpose of this part 103 is to prescribe the terms, 
conditions and provisions under which loans made to eligible tribes, 
Indian organizations and individual Indians for financing economic 
enterprises which contribute beneficially to the economy of an Indian 
reservation or for housing on a reservation may be guaranteed or insured 
by the United States. Lenders are reimbursed for a percentage of a loss 
or losses incurred on loans made under the provisions of this part 103, 
as evidenced by an approved guaranty certificate or insurance agreement.
    (b) It is also the purpose of this part 103 to prescribe procedures 
for payment of an interest subsidy to lenders making guaranteed or 
insured loans to reduce the interest to be paid by the borrowers, for 
establishing loan guaranty and insurance premiums to be charged, and for 
collection of the premium. This program will provide Indians with 
additional sources of financing needed to develop and manage their 
reservation resources to a higher degree.



Sec. 103.3  Kinds of loans.

    (a) Loans to tribes, eligible Indian organizations, and Indian 
individuals for financing economic enterprises which contribute to the 
economy of a reservation or its members or for housing on a reservation 
to be occupied by the borrower may be guaranteed or insured. Housing 
loans may be guaranteed or insured only after a determination has been 
made by the Commissioner that other sources of financing are not 
available to the applicant on reasonable terms and conditions.
    (b) Loans to tribes and organizations for the purchase of land may 
be guaranteed or insured only for purchasing land within the exterior 
boundaries of a reservation or land outside the exterior boundaries of a 
reservation which will be used by the borrower and/or its members for an 
economic enterprise which will contribute to the economy of a 
reservation. Loans to individuals may be guaranteed or insured for 
purchasing trust or restricted land in which the borrower owns an 
interest or land within the exterior or outside the exterior boundaries 
of a reservation. In all instances, the land must be used by the 
borrower in operating an economic enterprise which will contribute to 
the economy of a reservation. The Commissioner may require an applicant 
for a guaranteed or insured loan for the purchase of land to provide 
information showing that financing from other sources is not available 
on reasonable terms and conditions. Title to land purchased with a 
guaranteed or insured loan may be taken in trust or restricted status 
unless the land is located outside the boundaries of a reservation or a 
tribal consolidation area approved by the Secretary. Title to any land 
purchased by a tribe or an individual Indian which is outside the 
boundaries of a reservation or approved consolidation area may be taken 
in trust if the purchaser was the owner of a trust or restricted 
interest in the land before the purchase. Otherwise, title shall be 
taken in the name of the purchaser without any restrictions on 
alienation, control or use.
    (c) Funds included in loans for the purchase of non-recoverable 
items, as well as furniture, passenger carrying automobiles, trucks or 
pickups, televisions, radios, and household appliances are not eligible 
for guaranty or insurance unless required in the direct operation of an 
economic enterprise. Funds included in loans for payment of personal 
bills or obligations are not eligible for guaranty or insurance. Funds 
included in loans for payment of unsecured debts may be guaranteed or 
insured only if justified, due to the applicant's financial position and 
clearly to

[[Page 309]]

the advantage of the applicant in the operation of an economic 
enterprise.
    (d) No loans will be guaranteed or insured for the financing of a 
relending program.



Sec. 103.4  Management and technical assistance.

    (a) Prior to and concurrent with the issuance of a guaranty 
certificate for a loan to finance an economic enterprise, the 
Commissioner will assure under title V of the Indian Financing Act that 
competent management and technical assistance are available for 
preparation of the application and/or administration of funds granted 
consistent with the nature of the enterprise proposed to be or that is 
in fact funded. Assistance may be provided by available Bureau of Indian 
Affairs staff, other government agencies including states, a tribe, or 
other sources which the Commissioner considers competent to provide the 
needed assistance. Contracting for management and technical assistance 
may be used only when adequate assistance is not available without 
additional cost. Contracts for providing borrowers with competent 
management and technical assistance shall be in accordance with 
applicable Federal Procurement Regulations, and the Buy Indian Act of 
April 30, 1908, Chapter 431, section 25 (36 Stat. 861).
    (b) When submitting to the Commissioner a request for guaranty or 
insurance of a loan to finance an economic enterprise, a lender will 
include, as part of the request, or separately, its evaluation of the 
applicant's need for management and technical assistance, specific areas 
of need, and whether the lender will provide such assistance to the 
applicant. A lender making loans under the provisions of a general 
insurance agreement may determine each applicant's need for management 
and technical assistance when financing of an economic enterprise is 
involved. If a lender determines that an applicant will need management 
and technical assistance, it will notify the Commissioner in writing 
indicating the specific areas of need, and whether it will provide such 
assistance.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34975, Aug. 23, 1989]



Sec. 103.5  Preservation of historical and archeological data.

    Lenders making guaranteed or insured loans to finance activities 
involving excavations, road construction, and land development or 
involving the disturbance of land on known or reported historical or 
archeological sites will take appropriate action to assure compliance 
with applicable provisions of the Act of June 27, 1960 (74 Stat. 220; 16 
U.S.C. 469), as amended by the Act of May 24, 1974 (Pub. L. 93-291, 88 
Stat. 174), relating to the preservation of historical and archeological 
data. Lenders receiving applications for loans which include funds for 
purposes which may involve compliance with the provisions of the Act of 
June 27, 1960, as amended, may request assistance and guidance from the 
Commissioner in assuring compliance with the requirements of the Act.



Sec. 103.6  Environmental and flood disaster protection.

    Applications for loans to purchase or construct buildings or other 
improvements which require compliance with any provisions of the Flood 
Disaster Protection Act of 1973 (Pub. L. 93-234, 87 Stat. 975), and 
provisions of the National Environmental Policy Act of 1969 (Pub. L. 91-
190; 42 U.S.C. 4321) and Executive Order 11514 will not be approved 
until the lender has received assurance of compliance with any 
applicable provisions of these Acts. Lenders receiving applications 
which include funds for purposes which may involve compliance with the 
provisions of one or both of these Acts may request assistance and 
guidance from the Commissioner in assuring compliance.



Sec. 103.7  Eligible organizations.

    Tribes and Indian organizations having a form of organization 
satisfactory to the Commissioner recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs, and indicating 
reasonable assurance of repayment, are eligible for guaranteed or 
insured loans. If Indian ownership of an economic enterprise falls below 
51 percent, the borrower shall be in default and the guaranty shall 
cease and the interest subsidy

[[Page 310]]

shall be discontinued. Cooperative associations, corporations and 
partnerships shall be organized pursuant to state, federal or tribal 
law. Cooperative associations, corporations, and partnerships applying 
for a guaranteed or insured loan to purchase, establish or operate an 
economic enterprise on a reservation must comply with the requirements 
of applicable rules, resolutions, or ordinances enacted by the governing 
body of the tribe, if applicable.

[40 FR 12492, Mar. 19, 1975; 40 FR 20952, May 15, 1975. Redesignated at 
47 FR 13327, Mar. 30, 1982, as amended at 57 FR 46473, Oct. 8, 1992]



Sec. 103.8  Eligible individuals.

    Indians who are members of tribes recognized by the federal 
government as eligible for services from the Bureau of Indian Affairs 
are eligible for guaranteed or insured loans. Individuals applying for a 
guaranteed or insured loan to purchase, establish or operate an economic 
enterprise on a reservation must comply with the requirements of 
applicable rules, resolutions or ordinances enacted by the governing 
body of the tribe.

[54 FR 34975, Aug. 23, 1989]



Sec. 103.9  Eligible lenders.

    (a) Those financial institutions subject to examination and 
supervision by an agency of the United States, a state, or the District 
of Columbia, having the capacity to evaluate, process, disburse, and 
service loans, and Indian tribes making loans from their own funds to 
other tribes or organizations of Indians, are eligible to have loans 
insured under this part 103. Loans made by any lender regularly engaged 
in making loans, having the capacity to accept and process applications 
and service loans, and which lender is satisfactory to the Commissioner, 
may be guaranteed. Any national bank or federal savings and loan 
association, or any bank, trust company, building and loan association, 
or insurance company authorized to do business in the District of 
Columbia may make any loan of which at least 20 percent is guaranteed 
under this part 103 without regard to the limitations and restrictions 
of any other federal statute with respect to:
    (1) Ratio of amount of loan to the value of the property;
    (2) Maturity of loans,
    (3) Requirement of mortgage or other security,
    (4) Priority of lien, or
    (5) Percentage of assets which may be invested in real estate loans.
    (b) Any guaranty certificate issued pursuant to this part 103 or any 
loan insured pursuant to an agreement with a lender approved in 
accordance with this part 103 shall be conclusive evidence that the loan 
was eligible for guaranty or insurance.



Sec. 103.10  Ineligible loans.

    The following loans are not eligible for guaranty or insurance under 
this part 103:
    (a) Loans made by any agency or instrumentality of the federal 
government.
    (b) Loans made by an organization of Indians making loans from funds 
borrowed from the United States.
    (c) Loans where the interest income is not included as taxable 
income under Chapter 1 of the Internal Revenue Code of 1954 as amended.
    (d) Loans with repayment terms exceeding thirty years.
    (e) Loans which are linked to Federally tax-exempt bond obligations.
    (f) Loans to a borrower whose equity, as defined in Sec. 103.1, in 
the business being financed is less than 20 percent.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46473, Oct. 8, 1992]



Sec. 103.11  Guaranteed loans.

    Loans, except those excluded in Sec. 103.10, made by any lender 
meeting the requirements of Sec. 103.9(a), which are satisfactory to the 
Commissioner may be guaranteed. Applications for guaranty will be 
considered on a loan by loan basis. No guaranty shall be effective until 
issuance of a guaranty certificate by the Commissioner and receipt of 
the guaranty premium from the lender. A guaranty certificate shall be 
issued only when, in the judgment of the Commissioner, there is a 
reasonable prospect of repayment of the loan.

[[Page 311]]



Sec. 103.12  Insured loans.

    (a) Eligible lenders, as prescribed in Sec. 103.9, and tribes making 
loans from their own funds to other tribes or Indian organizations, may 
make insured loans, except those excluded in Sec. 103.10 pursuant to the 
provisions of an insurance agreement entered into between the 
Commissioner and the lender. Insurance agreements may be entered into by 
the Commissioner and eligible lenders which will authorize the lenders 
to make insured loans to eligible applicants without the Commissioner's 
approval of each individual loan. Separate insurance agreements will be 
issued by the Commissioner for those loans which require the issuance of 
individual insurance agreements.
    (b) Lenders will make loans only when there is a reasonable prospect 
of repayment. The insurance on any loan made under the provisions of an 
insurance agreement will not be effective until receipt of the insurance 
premium by the Commissioner.



Sec. 103.13  Amount of guaranty.

    (a) The percentage of a loan that is guaranteed shall be the minimum 
necessary to obtain financing for an applicant, but may not exceed 90 
percent of the unpaid principal and interest. The liability under the 
guaranty shall increase or decrease pro rata with an increase or 
decrease in the unpaid portion of the principal amount of the 
obligation. No loan to an individual Indian, partnership, or other non-
tribal organization may be guaranteed for an unpaid principal amount in 
excess of $500,000 or such maximum amount provided in any amendments to 
the Indian Financing Act of 1974.
    (b) Applications of minors as determined by applicable state and 
federal law, may not be approved unless the natural parents or legal 
guardians, with reputations as being responsible individuals, co-sign 
the promissory note(s) and securing document(s). Not more than one 
guaranteed loan may be in effect with the same borrower at any time 
without the prior approval of the Commissioner.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34975, Aug. 23, 1989; 57 FR 46473, Oct. 8, 1992]



Sec. 103.14  Amount of insurance.

    (a) The insurance provisions will apply to loans made by a 
particular lender under the terms of an insurance agreement entered into 
between the Commissioner and the lender. The insurance procedure will be 
used primarily for loans to finance small economic enterprises and 
secondarily for housing. A lender may be reimbursed for a loss on a 
particular loan in an amount not to exceed 90 percent of the loss on 
principal and unpaid accrued interest on the loan. However, the total 
reimbursement to a lender for losses may not exceed 15 percent of the 
aggregate of insured loans made by it.
    (b) Loans for any amount made by tribes from their own funds to 
other tribes or Indian organizations will not be insured without the 
prior approval of the Commissioner. No loan to finance an economic 
enterprise with a principal amount in excess of $50,000 shall be insured 
without the prior approval of the Commissioner. No loan to an individual 
Indian may be insured which would cause the total unpaid principal 
amount to exceed $100,000. Any loan to an individual Indian having a 
principal amount in excess of $50,000 will require prior approval of the 
Commissioner. No loan to an individual with a principal amount of less 
than $2,500 or for a term of less than one year may be insured. No loan 
to a tribe or Indian organization for a principal amount of less than 
$10,000 for a term of less than one year may be insured. An exception 
may be made to these limitations on amounts and time, if approved by the 
Commissioner.
    (c) Applications of minors may not be approved unless the natural 
parents or legal guardians, with reputations as being responsible 
individuals, co-sign the promissory note(s) and securing documents. Not 
more than one insured loan may be in effect with the same borrower at 
any time without the prior approval of the Commissioner.



Sec. 103.15  Applications for loan guaranties or insurance.

    (a) Applicants for loans will deal directly with lenders for both 
guaranteed and insured loans. The form of loan applications will be 
determined by the

[[Page 312]]

lender. The application for a loan guaranty or insurance, or attachments 
thereto, must include or show the following:
    (1) The name and address of the borrower with the tax identification 
number if the borrower is a business entity or the social security 
number if an individual;
    (2) A statement signed by the borrower that the borrower is not 
delinquent with any Federal tax or other obligations;
    (3) The plan of operation for the economic enterprise including an 
identified target market for the goods or services being offered;
    (4) Purpose(s) and the amount of the loan;
    (5) Security to be given which shall be itemized with valuations of 
such collateral and the method used to value the collateral, the date of 
such valuation, who performed the valuation, and the creditor priority 
positions;
    (6) Hazard and liability insurance to be carried;
    (7) Interest rate;
    (8) Repayment schedule;
    (9) Repayment source(s);
    (10) How title to the property to be purchased with the loan will be 
taken;
    (11) Current financial statements of the loan applicant;
    (12) Description and dollar value of the equity or personal 
investment to be made by the applicant;
    (13) Charges pursuant to Sec. 103.44;
    (14) Pro forma balance sheets, operating statements and cash flow 
statements for at least three years;
    (15) Balance sheets and operating statements for the two preceding 
years, or applicable period thereof if already in operation;
    (16) The lender's evaluation of the economic feasibility of the 
enterprise and internal credit memorandum; and
    (17) A current credit bureau report on the borrower.
Applications will also show the percentage of guaranty requested.
    (b) Reasonable assurance of repayment will be considered to exist:
    (1) In the case of individuals, where past operations and future 
prospects of the applicant's operations demonstrate ability to repay the 
loan from production, earnings, or other assets. Full consideration will 
be given to the applicant's managerial ability and experience.
    (2) In the case of tribes and Indian organizations, where past 
operations or future plans of operations indicate that the economic 
enterprise for which financing is requested is economically sound. Full 
consideration will be given to arrangements for efficient management of 
the economic enterprise for which financing is requested.
    (c) The Commissioner may review applications for guaranteed loans 
individually and independently from the lending institution.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34975, Aug. 23, 1989; 57 FR 46473, Oct. 8, 1992]



Sec. 103.16  Loan otherwise available.

    If the information in an application for a guaranteed or insured 
loan indicates that the applicant may obtain the loan without a guaranty 
or insurance, the Commissioner may deny the request for a guaranty or 
insurance.

[57 FR 46473, Oct. 8, 1992]



Sec. 103.17  Refinancing.

    (a) Applications for loans to refinance indebtedness will be 
approved only if justified and required due to the applicant's financial 
position and if clearly to the advantage of the applicant. Applications 
to refinance loans to an economic enterprise will be accompanied by 
financial and cash flow statements required in Sec. 103.15(a) (1) 
through (17). A guaranty of a loan to refinance existing indebtedness 
will be considered only if the loan will result in a significantly lower 
lender's interest rate to the borrower, or provide a substantially 
longer term for repayment of the loan, or decrease the loan-to-asset 
value ratio of the business being financed.
    (b) Applications for refinancing loans not guaranteed or insured 
under this part 103 will not be approved for guaranty or insurance if, 
in the opinion of the Commissioner, the submittal of the application is 
motivated primarily to

[[Page 313]]

obtain guaranty or insurance of a loan which otherwise would be made.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46473, Oct. 8, 1992]



Sec. 103.18  Furnishing additional information.

    The Commissioner may require either the lender or the borrower, or 
both, to furnish additional information or justification for a loan 
prior to issuance of a guaranty certificate or insurance agreement where 
Commissioner approval of an individual insured loan is required.



Sec. 103.19  Approval of guaranteed loans.

    (a) Upon a lender's approval of an application for a guaranteed 
loan, the lender will forward the application in duplicate to the 
Commissioner with a ``Request for Guaranty''. The Commissioner will 
approve the application by issuance of a ``Guaranty Certificate'' which 
will show the percentage amount of the loan guaranteed, the premium to 
be paid to the Commissioner and the interest subsidy to be paid on the 
loan by the United States.
    (b) If the application is not approved, the original will be 
returned to the lender with an explanation, and a copy furnished the 
loan applicant.



Sec. 103.20  Approval of insured loans.

    After a lender approves a loan eligible for insurance in accordance 
with an approved insurance agreement, the lender will proceed as 
authorized by the agreement. Applications for insured loans which 
require approval by the Commissioner as prescribed in Sec. 103.14 will 
be forwarded in duplicate to the Commissioner with a ``Request for 
Insurance'' signed by the lender. The Commissioner will approve the 
application by issuance of an ``Insurance Agreement''. If the 
application is not approved, the original will be returned to the lender 
with an explanation.



Sec. 103.21  Modification of loan agreements.

    (a) Guaranteed and insured loans may be modified with the approval 
of the parties to the original loan agreement. Modification of 
guaranteed loans and those insured loans which required Commissioner 
approval, requires the Commissioner's approval only if the modification 
involves:
    (1) Change of the repayment schedules,
    (2) Changes in the prime security,
    (3) Change of interest rate,
    (4) Change in the use of loan funds,
    (5) Increase in the principal amount of a loan, except as provided 
in Sec. 103.22,
    (6) Change of the plan of operation,
    (7) Amendment or changes in the organization papers of the borrower,
    (8) Changes in partnership agreements, and
    (9) Change in the location of an enterprise.
    (b) Lenders making insured loans which under the provisions of an 
approved insurance agreement do not require Commissioner approval shall 
use prudence in approving requests for modifications of loan agreements 
and follow the lender's customary procedures and practices which are 
used in connection with noninsured loans made by it. Modifications are 
to be in compliance with the provisions of Secs. 103.13, 103.14, and 
103.24. Lenders making insured loans under the provisions of such an 
insurance agreement shall notify the Commissioner not later than 20 days 
after approval of a modification of such insured loan. Modifications of 
the organization papers of corporations or cooperative associations and 
partnership agreements and plans of operation which originally required 
Commissioner approval, require approval by the Commissioner upon 
modification.



Sec. 103.22  Protective advances.

    When provided for in a loan agreement, and subject to the 
limitations on the amounts and terms of loans as provided in 
Secs. 103.13, 103.14, and 103.24, lenders may advance, for certain 
purposes, up to 10 percent of the amount for which a guaranteed or 
insured loan originally was approved. If the borrower is unable to 
provide the funds or refuses to do so, an advance may be made for 
purposes necessary and proper for the preservation, maintenance or 
repair of the property purchased with or given to secure the loan; for 
accrued taxes, special assessments, ground and water rents, and hazard 
and liability insurance premiums; and for any other

[[Page 314]]

purpose necessary for the protection of the interest of the lender or 
borrower. The additional advance will be charged against the borrower. 
Repayment of the protective advance shall be automatically guaranteed or 
insured at the same percentage rate as applied to the original amount of 
the loan upon the Commissioner's receiving notice from the lender that 
an additional amount has been advanced with a statement as to the 
necessity and purpose(s) of the advance. Such documentation shall be 
furnished along with the premium for the additional amount pursuant to 
Sec. 103.43(b). The amount of any additional advance shall be scheduled 
for repayment proportionately over the remaining installments of the 
unpaid principal balance of the loan. The interest rate charged on 
protective advances as provided for in this section will be determined 
in accordance with the provisions of Sec. 103.41.



Sec. 103.23  Increase in principal of loans.

    (a) Borrowers requiring additional funds may apply for an increase 
in a guaranteed or insured loan with the same lender. Applications to 
increase the amount of guaranteed and insured loans which originally 
were approved by the Commissioner, require his approval upon increases 
in amounts. Lenders making insured loans which under the provisions of 
an approved insurance agreement which did not require Commissioner 
approval, may approve applications for an increase in the principal of 
such loans subject to compliance with the limitations contained in 
Secs. 103.14 and 103.24. Such insured lenders shall immediately notify 
the Commissioner upon approval of an increase in the principal of a loan 
and remit the premium on the increase pursuant to Sec. 103.43(b).
    (b) The application for an increase in the amount of a loan must 
show the reasons why an increase is needed, the amount and purposes for 
which the funds will be used, and the repayment schedule. If the 
financing involves an economic enterprise, the application must be 
accompanied by the information required in Sec. 103.15(a)(1) through 
(17) of this part.
    (c) The interest rate to be charged on principal increases will be 
determined in accordance with the provisions of Sec. 103.41.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46473, Oct. 8, 1992]



Sec. 103.24  Maturity.

    The period of maturity of guaranteed and insured loans will be 
determined according to the circumstances, but may not extend beyond 30 
years from the date of the first advance. All maturities will be 
consistent with sound business practices and customs of lenders in the 
area.



Sec. 103.25  Amortization.

    All loans shall be scheduled for repayment at the earliest 
practicable date consistent with the purpose(s) of the loans and the 
repayment capacity of the borrowers. Lenders will require amortization 
in accordance with customary practices in the area for loans for the 
same purposes. Loan payments may be scheduled for repayment either 
monthly, quarterly, semi-annually or annually. Balloon installments 
shall be avoided.



Sec. 103.26  Prepayments.

    Borrowers whose loans are guaranteed or insured under this part 103 
shall have the right to prepay all or any part of the indebtedness at 
any time without penalty unless otherwise provided for in the loan 
agreement. Lenders and borrowers may agree that prepayments applied to 
the latest loan installments may be reapplied to current installment(s) 
to cure or prevent any subsequent default. The Commissioner shall be 
notified promptly by the lender when payments are made in advance of the 
due dates.



Sec. 103.27  Amount of security.

    Lenders will require borrowers to give security, if available, up to 
an amount adequate to protect the loan, without consideration of the 
guaranty or insurance. The lender shall itemize and describe the 
collateral given as security as described in Secs. 103.15(a)(5) and (10) 
of this part.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46473, Oct. 8, 1992]

[[Page 315]]



Sec. 103.28  Filing and recording.

    (a) All securing documents and financing statements, when 
applicable, except assignments of income from trust land and mortgages 
on documented vessels, shall be filed or recorded in the appropriate 
county or other public office in accordance with state law. Mortgages on 
documented vessels will be filed at the Customs House designated as the 
home port of the vessel as shown on the marine document. Security 
interests in personal property will be perfected in accordance with the 
provisions of Article 9 of the Uniform Commercial Code in states in 
which the code has been adopted.
    (b) Lenders are responsible for filing a copy of assignments of 
income from trust land with the office of the Bureau of Indian Affairs 
having jurisdiction over the trust land involved and for filing or 
recording other securing instruments pursuant to the laws of the state 
in which the property is located or in the proper Customs House. Lenders 
must also see that:
    (1) Effective liens are maintained at all times;
    (2) Taxes on the property included in the securing instruments are 
paid promptly to prevent such taxes from becoming a lien taking priority 
over a mortgage; and
    (3) Hazard and liability insurance is obtained and maintained in an 
amount sufficient to protect the security against the risks or hazards 
to which it may be subjected, to the extent customary in the locality.
Failure of a lender to discharge any of these responsibilities will 
diminish the amount of the guaranty or insurance to the extent of any 
loss caused by the lender's failure, unless there are extenuating 
circumstances which in the judgment of the Commissioner do not justify a 
reduction of the amount guaranteed or insured.



Sec. 103.29  Property purchased with loan funds.

    (a) Lenders making guaranteed or insured loans which include funds 
to finance construction of buildings, or installation of water, sewage, 
electrical or gas lines shall assure that the site is appropriate and 
adequate; cost estimates are prepared and are in line with current 
costs; plans are prepared by qualified individuals or a firm; provisions 
are made to assure compliance with applicable building codes, zoning and 
labor laws; and inspections are made by qualified inspectors during 
construction and upon completion. Upon receiving applications involving 
funds to finance construction, lenders may request assistance and 
guidance from the Commissioner on such matters. The Commissioner may 
arrange for an inspection of any property purchased with guaranteed or 
insured loans at any reasonable time. Property which may be inspected 
includes proposed building sites, during and on completion of 
construction of buildings; electrical, sewage, water or gas lines; and 
livestock and machinery purchased with loan funds.
    (b) Lenders will require that any property purchased with a 
guaranteed or insured loan, except land purchased by a tribe, title to 
which is taken in trust or restricted status, be mortgaged to the lender 
as security for the loan, unless the loan is otherwise adequately 
secured.



Sec. 103.30  Land.

    (a) Indian individuals may execute mortgages or deeds of trust on 
nontrust or unrestricted land as security without the approval of any 
Federal official.
    (b) Tribal land, title to which is held in a trust or restricted 
status, may not be mortgaged unless specifically authorized by Congress.
    (c) Individually-owned land held in trust or restricted status may 
be mortgaged as security for a loan in accordance with 25 CFR 152.34 and 
the Act of March 29, 1956 (70 Stat. 62; 25 U.S.C. 483a). Mortgages of 
individually held trust or restricted land will include only the acreage 
of the land owned by a borrower, which the Commissioner considers is 
adequate to protect the loan in case of default. Mortgages on 
individually held trust or restricted land shall be subject to 
foreclosure or sale pursuant to the terms of the mortgage. For the 
purposes of any foreclosure or sales proceedings, the owner shall be 
regarded as vested with an unrestricted fee simple title to the land.

[[Page 316]]

The United States shall not be a necessary party to the proceedings 
pursuant to the Act of March 29, 1956 (70 Stat. 62; 25 U.S.C. 483a). Any 
conveyance of the land pursuant to such proceedings shall divest the 
United States of title to the land. Trust or restricted land given as 
security for a loan shall not be sold or title otherwise transferred 
without giving the Commissioner and the tribe of the reservation on 
which the land is located, or is adjacent to, written notice, at least 
45 days in advance of the date of sale or proposed transfer of title.
    (d) Tribes, corporations, cooperative associations, partnerships, 
and Indian individuals leasing trust or restricted land may, when 
provided in the lease and approved by the lessor and the Commissioner, 
mortgage their leasehold interest in the leased premises for the purpose 
of borrowing capital for the development and improvement of the leased 
premises.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46473, Oct. 8, 1992]



Sec. 103.31  Chattels.

    Tribes, organizations and Indian individuals may execute mortgages 
on nontrust and unrestricted chattels as security without the approval 
of any federal official. If a lender requires, the Commissioner may 
approve mortgages of trust or restricted chattels given to secure 
guaranteed or insured loans. A tribe must adhere to the provisions of 
its constitution, bylaws, charter, or other organizational documents in 
mortgaging chattels. Mortgaged chattels shall be subject to foreclosure 
or sale pursuant to the terms of the mortgage or security agreement in 
accordance with applicable laws.



Sec. 103.32  Crop mortgages.

    Crops grown on leased trust or restricted land may be mortgaged as 
security for a loan with the approval of the lessor and the 
Commissioner. Individuals owning trust or restricted land may mortgage 
crops grown on such land as security for a loan with approval of the 
Commissioner. Crops grown on trust or restricted land after severance 
from the land and crops grown on nontrust and unrestricted land may be 
mortgaged as security without the approval of any Federal official.



Sec. 103.33  Assignments of income.

    (a) A tribe or organization may execute assignments of trust income 
from specific sources as security for loans, pursuant to authorization 
in its constitution, bylaws, charter, or other organization papers. 
Tribes may not execute general assignments of trust income as security 
for loans. Assignments of trust income require approval by the 
Commissioner before becoming effective.
    (b) Assignments of income from the trust or restricted land of an 
Indian individual may be executed as security for loans with the 
approval of the Commissioner. However, restricted land of heirs or 
devisees of members of the Five Civilized Tribes of Oklahoma is subject 
to the jurisdiction of Oklahoma state courts under the Act of August 4, 
1947 (61 Stat. 73).



Sec. 103.34  Restrictions.

    Unless the security for a loan requires approval of a federal 
official, no restrictions shall be placed by any official upon the 
security that may be given for a loan. Lenders will document any and all 
prior security interests of record with respect to proposed collateral. 
Lenders will use caution in making certain that the security taken is 
unencumbered. Lenders will follow the same prudent procedures as if the 
borrower were a non-Indian or a non-Indian organization.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46473, Oct. 8, 1992]



Sec. 103.35  Release of security.

    The prime security for a loan will not be released unless the 
property is sold and the net proceeds applied to the loan. When approved 
by the Commissioner, the prime security may be released when the 
property is sold and the proceeds are used to purchase property of 
similar nature and use and of at least equal value and lien priority as 
the property sold and when the lender, borrower and Commissioner agree 
that the sale and such use of the proceeds

[[Page 317]]

are necessary for the success of an economic enterprise. Lenders may 
release property which is planned to be sold in the regular course of a 
business when the proceeds are to be used for purposes which the lender 
determines are necessary and proper in connection with the type of 
economic enterprise involved. Releases of security involving trust 
income or trust or restricted land will require the prior approval of 
the Commissioner.



Sec. 103.36  Default on guaranteed loans.

    (a) Within 45 calendar days after the occurrence of a default, the 
lender shall notify the Commissioner by certified or registered mail 
showing the name of borrower, guaranty certificate number, amount of 
unpaid principal, amount of principal delinquent, amount of interest 
accrued and unpaid to date of notice, amount of interest delinquent at 
time of notice, and other failure of the borrower to comply with 
provisions of the loan agreement. Within 60 calendar days after default 
on a loan, the lender shall proceed as prescribed in either paragraph 
(b), (c), or (d) of this section, unless an extension of time is 
requested by the lender and approved by the Commissioner. The request 
for an extension shall explain the reason why a delay is necessary and 
the estimated date on which action will be initiated. Failure of the 
lender to proceed with action within 60 calendar days or the date to 
which an extension is approved by the Commissioner shall cause the 
guaranty certificate to cease being in force or effect. If the 
Commissioner is not notified of the failure of a borrower to make a 
scheduled payment or of other default within the required 45 calendar 
days, the Commissioner will proceed on the assumption that the scheduled 
payment was made and that the loan agreement is current and in good 
standing. The Commissioner will then decrease the amount of the guaranty 
pro rata by the amount of the due installment and the lender will have 
no further claim for guaranty as it applied to the installment, except 
for the interest subsidy on guaranteed loans which may be due.
    (b) The lender may make written request that payment be made 
pursuant to the provisions of the guaranty certificate or guaranty 
agreement. If the Commissioner finds that a loss has been suffered, the 
lender may be paid the pro rata portion of the amount guaranteed 
including unpaid interest.
    (c) The borrower and the lender may agree upon an extension of the 
repayment terms or other forbearance for the benefit of the borrower. 
The lender may extend all reasonable forbearance if the borrower becomes 
unable to meet the terms of a loan. However, such forbearance will not 
be extended if it will increase the likelihood of a loss on a loan. 
Agreements between a lender and a borrower shall be in writing and will 
require approval by the Commissioner.
    (d) The lender may advise the Commissioner in writing that suit or 
foreclosure is considered necessary and proceed to foreclosure and 
liquidation of all security interests. On completion of foreclosure and 
liquidation, if the Commissioner determines that a loss has been 
suffered, the lender will be reimbursed for the pro rata portion of the 
amount of unpaid principal and interest guaranteed. A lender will submit 
a claim for reimbursement for losses on a form furnished by the 
Commissioner and will furnish any additional information needed to 
establish the amount of the claim. On reimbursement of a lender for the 
pro rata amount of the loss guaranteed as provided in the guaranty 
certificate, the lender will subrogate its rights and interest in the 
loan to the United States and assign the loan obligations and security 
for the loan to the United States. The Commissioner may establish the 
date on which accrual of interest or charges shall cease. This date may 
not be later than the date of judgment and decree of foreclosure or 
sale. The Commissioner will take any action necessary to protect the 
interest of the United States.
    Subsequent to subrogation and assignment, any collections shall be 
for the account of the United States up to the amount paid on the 
guaranty plus any costs or expenses incurred by the United States. 
Collections will be deposited in the loan guaranty and insurance fund 
established pursuant to this part. Any amounts collected in excess of 
those necessary to reimburse the United States for amounts paid under

[[Page 318]]

the guaranty plus costs or expenses shall be paid to the lender up to 
the amount of the lender's losses. Any residue from collection shall go 
to the borrower.

[57 FR 46473, Oct. 8, 1992]



Sec. 103.37  Default on insured loans.

    Within 45 calendar days after the occurrence of a default of a loan 
made under the provisions of an insurance agreement, the lender shall 
notify the Commissioner by certified or registered mail giving the name 
of the borrower, insurance agreement number, amount of unpaid principal, 
amount of delinquent principal, accrued interest unpaid to date of 
notice, amount of delinquent interest and description of default. Within 
60 calendar days after default on an insured loan, the lender shall 
proceed as prescribed in paragraph (a) or (b) of this section unless it 
has requested, and the Commissioner has approved, an extension of time. 
A request for an extension of time will explain the necessity for an 
extension and the estimated date on which action will be initiated. 
Failure of the lender to proceed within 60 calendar days or the extended 
time approved by the Commissioner, will be grounds for the Commissioner 
to terminate the loan insurance on the loan involved.
    (a) The lender and borrower may agree upon an extension of the 
repayment terms of a loan or other forbearance for the benefit of the 
borrower. However, such forbearance will not be extended if it will 
increase the likelihood of a loss on a loan. Insured loans made under 
the provisions of a general insurance agreement authorizing a lender to 
make loans under the terms prescribed in the agreement will not require 
Commissioner approval of changes in agreements made by the lender and 
borrower. Provided, such changes are in compliance with the requirements 
of Sec. 103.21 and the applicable sections referred to therein. The 
lender shall immediately notify the Commissioner within 21 calendar days 
of changes made in the agreement. Insured loans made which originally 
required the issuance of a separate insurance agreement by the 
Commissioner will require Commissioner approval of changes in the 
provisions of such loans.
    (b) If an insured lender determines that proceeding under paragraph 
(a) of this section is contrary to its customary lending practices or is 
not in the interest of a borrower, it will be required to exhaust all 
reasonable efforts to collect the loan and to liquidate the security to 
the fullest extent feasible before submitting a claim for reimbursement 
of a loss.
    (c) If a lender proceeds under the provisions of paragraph (b) of 
this section and suffers a loss, it may submit a claim for reimbursement 
for unpaid principal and interest on a form furnished by the 
Commissioner and will furnish any additional information needed to 
establish the amount of the claim. Claims will be submitted to the 
Commissioner within 45 calendar days after completion of the procedures 
prescribed in this section. All claims shall be accompanied by evidence 
showing that all reasonable efforts to collect the loan have been 
exhausted and that security given for the loan has been liquidated to 
the extent feasible. If the Commissioner agrees that a loss has 
occurred, he will reimburse the lender pursuant to the terms of the 
approved insurance agreement under which the loan was insured. Upon 
reimbursement by the Commissioner to the lender in whole or in part for 
the loss insured, the note and security for the loan or judgment 
evidencing the debt shall be assigned to the United States. The lender 
shall have no further claim against the United States or the borrower. 
The Commissioner will then take such further collection action as may be 
warranted. The Commissioner may establish a date upon which accrual of 
interest or charges shall cease.



Sec. 103.38  Subrogated and assigned rights.

    The Commissioner will take such action as he deemed appropriate to 
realize the maximum recovery upon the rights to which the United States 
is subrogated and the security assigned

[[Page 319]]

to the United States. Any amount collected will be deposited in the loan 
guaranty and insurance fund.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46474, Oct. 8, 1992]



Sec. 103.39  Cancellation.

    The Secretary may cancel the uncollectable portion of any obligation 
assigned to the United States or rights to which the United States is 
subrogated and the security assigned to the United States.

[54 FR 34976, Aug. 23, 1989]



Sec. 103.40  Charges upon liquidation.

    Lenders may charge the following against the gross amounts collected 
from the sale of security in determining the amounts to be claimed under 
a guaranty certificate or insurance agreement:
    (a) Reasonable and necessary expenses for preservation of the 
security.
    (b) Court and attorney costs in a foreclosure or proper judicial 
proceeding involving the security.
    (c) Other reasonable expenses necessary for collecting the debt or 
for repossession, protection, and liquidation of the security.
    (d) Other expenses or fees approved in advance by the Commissioner.
    (e) Accrued unpaid interest to the date of judgment and decree of 
foreclosure or sale, or the date established by the Commissioner that 
accrued interest shall cease pursuant to Secs. 103.36 and 103.37.



Sec. 103.41  Interest.

    Interest rates charged by lenders on guaranteed and insured loans, 
exclusive of loan service charges, if any, shall not exceed such percent 
per annum on the principal obligation outstanding as the Commissioner 
determines to be reasonable and legal at the time a loan is guaranteed 
or insured, taking into account the range of rates prevailing in the 
private market for similar loans and the risks assumed by the United 
States. Each loan shall show the rate of interest to be charged. 
Interest shall be payable at least annually. Once a loan is closed the 
interest rate may not be increased except when a variable interest rate 
tied to a specified base rate agreed upon by the borrower and the lender 
has been approved by the Commissioner. Lenders may not charge interest 
on loan funds used for payment of loan service charges.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 54 FR 34976, Aug. 23, 1989]



Sec. 103.42  Interest subsidy.

    (a) The Commissioner may pay an interest subsidy to lenders on loans 
which are guaranteed or insured under this part 103 at rates which are 
necessary to reduce the interest rate payable by the borrowers to a rate 
determined in accordance with title I, section 104, of the Indian 
Financing Act of 1974 (Pub. L. 93-262, 83 Stat. 77). The rate of subsidy 
will be established by the Commissioner at the time of issuance of a 
guaranty certificate or insurance agreement on loans requiring approval 
by the Commissioner. Interest subsidy payments by the United States 
shall be discontinued on such loans if the lender elects to discontinue 
the guaranty or insurance or causes the termination of the guaranty or 
insurance by failure to make premium payments as required by 
Sec. 103.43, or when one of the following occurs:
    (1) The loan is paid in full prior to the expiration of the original 
term.
    (2) The loan is refinanced by a new loan.
    (3) The repayment schedule on the principal balance owing is 
extended beyond the original term, unless an exception is approved by 
the Commissioner. The interest subsidy shall only be discontinued as to 
the balance which has been extended beyond the original term of the 
loan.
    (4) The lender on a defaulted loan is reimbursed for a guaranteed or 
insured loss. The date of the check shall be the date of reimbursement.
    (5) Cash flow form the business being financed appears sufficient to 
pay for full debt service based on periodic review by the Commissioner. 
Cash flow shall be deemed sufficient to pay debt service when earnings 
before interest and taxes, after adjustments for extraordinary items, 
equal or exceed industry norms.

[[Page 320]]

    (b) The lender shall notify the Commissioner that he has made or 
modified an insured loan under the provisions of a general insurance 
agreement within 20 days of such action and provide the Commissioner 
with the following information:
    (1) The name and address of the borrower.
    (2) Tribal affiliation of the borrower.
    (3) Amount of the loan and purpose(s).
    (4) The repayment schedule.
    (5) The interest rate charged the borrower.
    (6) The date(s) funds were advanced.
    (c) After receiving notice from the lender, the Commissioner will 
establish the interest subsidy rate and notify the lender of the rate 
established. The Commissioner may establish procedures requiring lenders 
to provide reports which will expedite the prompt payment of interest 
subsidies. Interest subsidies will be paid on the unpaid principal 
balance owed by a borrower either annually, semiannually, quarterly or 
monthly, depending on the time interest is scheduled to be paid and as 
near the due date as feasible, but not before. Lenders shall notify the 
Commissioner promptly when borrowers pay interest or principal in 
advance of the due date(s) provided in the loan agreement. The interest 
subsidy rate established by the Commissioner will be in effect for three 
years. At the end of the third year the need for subsidy will be 
reviewed and extended on an annual basis for the next two years, if 
justified.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46474, Oct. 8, 1992]



Sec. 103.43  Premium charges.

    A premium of 2.0 percent of the guaranteed portion of a loan will be 
charged to lenders. The lender may increase the principal amount of the 
loan by the cost of the premium and charge it to the borrower. The 
lender shall pay the premium within 90 days of the date of approval of 
the loan guaranty. Existing lenders may elect to modify their Loan 
Guaranty and Insurance Agreements with the Bureau of Indian Affairs so 
as to pay future premium payments in a lump sum. If the guaranty premium 
is not paid within 90 days of approval of the loan guaranty or 
modification of the agreement, the Commissioner will send the lender a 
notice of non-payment. If the premium is not paid within 30 days of the 
receipt of this notice, the guaranty shall be subject to termination.

[57 FR 46474, Oct. 8, 1992]



Sec. 103.44  Other charges.

    Funds may be included in loans for payment of reasonable and 
customary costs for legal or architectural services, appraisals, 
surveys, compliance inspections, title searches, lien searches, 
recordation costs, hazard and liability insurance premiums, taxes and 
such other charges as the Commissioner may authorize at the time a loan 
is made. Loan service charges, if any, may be charged if authorized in 
the loan agreement. Funds included in a loan for payment of loan service 
charges may not bear interest pursuant to Sec. 103.41. Payment by the 
borrower of points, finders fees, loan origination fees, bonuses or 
commissions for loans guaranteed under this part is prohibited.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46474, Oct. 8, 1992]



Sec. 103.45  Late charge.

    Lenders may assess borrowers a late charge on any loan installment, 
principal only, received more than 30 days after its due date if the 
loan agreement at the time of approval contains an authorization to this 
effect. The rate shall be specified in the loan agreement. The amount of 
late charges assessed may not be guaranteed or insured. Interest may not 
be charged on late charges.



Sec. 103.46  Loan servicing.

    (a) The guaranty or insurance of a loan by the Commissioner and the 
issuance of an insurance agreement will be based on the requirement that 
adequate loan servicing will be performed by the lender. Loan servicing 
will be without cost to the borrower, unless the Commissioner authorizes 
a charge at the time the loan is made pursuant to Sec. 103.44. 
Authorizations for such

[[Page 321]]

charges shall be in writing and included in the loan agreement. Lenders 
are expected to follow accepted standards employed by prudent lenders in 
the area in servicing similar type loans. In servicing loans, lenders 
will make every effort to prevent and minimize potential losses. Lenders 
will use prudence in disbursing loan funds to borrowers to assure, to 
the extent feasible, that loan funds are used only for the purposes for 
which the loan is made. Unless approved by the Commissioner, any amounts 
disbursed for purposes other than those provided in the loan agreement 
shall be excluded in the computing the amount for which the lender may 
be reimbursed in the event of a loss on a loan.
    (b) Loan servicing must meet the following standards regarding 
billing and documentation. Payments must be routinely invoiced, in most 
cases on a monthly basis. Invoices shall include the date the payment is 
due and the date the payment will be considered late (i.e., grace 
period). Borrowers should be encouraged to use pre-authorized debits or 
credit cards when making payments. Loan files must contain current 
information on payment history, including delinquencies and defaults, 
and any subsequent loan action concerning deferrals, refinancing, or 
rescheduling. There should be a record of the time and outcome of each 
contact with the borrower, including notification of delinquent status, 
requests for repayment, and intent to report the delinquent debt to 
credit bureaus or to refer debts to collection agencies.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46474, Oct. 8, 1992]



Sec. 103.47  Restrictions on lenders.

    Loan agreements shall not provide that the lender shall have the 
right to declare the indebtedness due, or to pursue one or more legal 
remedies, if the lender ``shall feel insecure''. This restriction shall 
not prevent a lender from taking action against a borrower due to any 
act or omission on the part of the borrower which, by the terms of a 
note, mortgage, or other loan document, would allow the lender to 
declare a loan in default, nor to take action to minimize the loss on a 
loan.



Sec. 103.48  Title to property purchased with loans.

    Title to personal property purchased with a guaranteed or insured 
loan shall be taken in the name of the borrower without a restriction 
against alienation. Title to land purchased with a guaranteed or insured 
loan may be taken pursuant to Sec. 103.3. Transactions involving taking 
title to land purchases in trust or restricted status require approval 
of the Commissioner.



Sec. 103.49  Fraud or misrepresentation.

    (a) Lenders shall use prudence in checking and verifying information 
contained in loan applications as well as supporting papers and 
documents in order to assure their accuracy and the validity of 
signatures.
    (b) There shall be no liability on the part of the United States to 
reimburse an insured lender for that portion of an insured loss on a 
loan caused by:
    (1) The lender's negligence in checking and verifying signatures, 
information in the loan application, supporting papers and documents;
    (2) The lender's furnishing false information to induce the issuance 
of an insurance agreement by the Commissioner;
    (3) The lender's furnishing false information in a loan docket on a 
loan made under the provisions of a general insurance agreement issued 
by the Commissioner; or
    (4) The lender's willful or negligent action which resulted in a 
fraud, forgery or misrepresentation.
    (c) There shall be no liability on the part of the United States to 
reimburse a lender on a guaranteed loan for that amount of the 
guaranteed loss caused by:
    (1) The lender's negligence in checking and verifying signatures, 
information in the loan application, supporting papers and documents;
    (2) The lender's furnishing false information to induce the issuance 
of a guaranty certificate by the Commissioner; or
    (3) The lender's willful or negligent action which permitted a 
fraud, forgery or misrepresentation.

[[Page 322]]

A reduction will not be made in the amount of reimbursement on a 
guaranteed loss to a purchaser, assignee, or transferee who acquired the 
loan before maturity for value and did not directly or by agent 
participate in or have prior knowledge of a fraud, forgery or 
misrepresentation.



Sec. 103.50  Loan guaranty and insurance fund.

    (a) The loan guaranty and insurance fund shall be utilized for all 
loan guaranty and insurance operations pursuant to the regulations in 
this part 103. All receipts from operations including premium charges 
shall be deposited in this fund. All disbursements incident to 
administering guaranteed and insured loans shall be made from this fund. 
All cash, claims, notes, mortgages, contracts, and property acquired by 
the Secretary under this part 103 shall constitute assets of the fund. 
All liabilities and obligations of such assets shall be liabilities and 
obligations of the fund.
    (b) The Commissioner will design an accounting system that will 
reflect at all times the financial condition of the fund and the results 
from its operation.
    (c) Interest subsidies paid by the Commissioner pursuant to 
Sec. 103.42 shall be paid from the loan guaranty and insurance fund and 
charged against an ``interest subsidy account'' as an expense of the 
fund.



Sec. 103.51  Sale or assignment of guaranteed loans.

     Any guaranteed loan, including the security and guaranty 
certificate, may be sold to any person. The person acquiring the loan 
shall notify the Commissioner in writing with 30 days after acquisition. 
The notice will give the name of the borrower, the certificate number, 
the amount of principal and interest unpaid on the loan, and the 
security acquired. Failure of the acquirer to notify the Commissioner 
within 30 days of acquisition will void the guaranty unless the 
Commissioner authorizes an exception because of extenuating 
circumstances.

[40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 57 FR 46475, Oct. 8, 1992]



Sec. 103.52  Records.

    Lenders will maintain adequate records on guaranteed and insured 
loans made and will submit reports to keep the Commissioner informed 
regarding guaranteed and insured loans made. The Commissioner may 
prescribe the number of reports to be submitted annually, the dates, and 
the forms to be used for reporting. The Commissioner may have the 
records of lenders inspected at any reasonable time during regular 
business days and hours.



Sec. 103.53  Suspension of lenders.

    Whenever the Commissioner finds that any lender or holder of a 
guaranty certificate or insured loan fails to maintain adequate 
accounting records, to demonstrate proper ability to adequately service 
loans guaranteed or insured, or to exercise proper credit judgment, or 
has willfully or negligently engaged in practices detrimental to the 
interests of a borrower or of the United States, he may refuse, either 
temporarily or permanently, to guarantee or insure any additional loans 
made by such lender or certificate holder. He may also bar such lender 
or certificate holder from acquiring additional loans guaranteed under 
this part 103. However, the Commissioner shall not refuse to pay a valid 
guaranty or insurance claim on loans previously made in good faith.



Sec. 103.54  Probate.

    (a) The estates of deceased borrowers who die possessed of trust 
property or funds and who gave as secruity for a guaranteed or insured 
loan an assignment of income from trust property, a mortgage or deed of 
trust on trust or restricted land, or a lien on trust chattels or crops 
growing on trust land will be probated in accordance with the applicable 
regulations in subpart D of 43 CFR part 4 and in parts 16 and 17 of 25 
CFR. The Superintendent or other Bureau official having jurisdiction 
over the trust property and trust funds of a decedent shall promptly 
notify the lender on receipt of information confirming the demise of a 
borrower. The notice may be given by furnishing the

[[Page 323]]

lender with a copy of the Superintendent's report to the Administrative 
Law Judge or by separate letter.
    (b) A lender receiving information from a Superintendent or 
otherwise learning of the demise of a borrower shall notify the 
Administrative Law Judge of the lender's claim against the decedent's 
trust estate. The lender's notice to the Administrative Law Judge shall 
include:
    (1) The name of the borrower.
    (2) The balance owing on the loan.
    (3) The trust property or income given as security for the loan.
    (4) A copy of securing documents.
    (5) A copy of the guaranty certificate or insurance agreement.
    (c) Within 15 days after receiving information that a borrower has 
died, the lender shall notify the Commissioner of this fact by 
furnishing a copy of the information provided to the Administrative Law 
Judge or by separate letter furnishing:
    (1) The name of the borrower.
    (2) The guaranty certificate number or insurance agreement number.
    (3) The balance owing on loan.
    (4) Any anticipated action which will be taken to protect the 
interests of the lender and the United States.
    (d) The notice shall be sent by registered or certified mail.



Sec. 103.55  Information collection.

    (a) The collection of information contained in Sec. 103.15 has been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1076-0020. The information will be 
used to rate applicant in accordance with the terms and conditions set 
forth in Secs. 103.4, 103.9, 103.15, 103.36, 103.37, 103.42, 103.43, and 
103.52 have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. information will be is sued to rate applicants in 
accordance with the terms and conditions set forth in section 103 of the 
Indian Financing Act, as amended. Response is required to obtain a 
benefit in accordance with 25 U.S.C. 1451.
    (b) Public reporting burden for this information is estimated to 
average 30 minutes per response, including the time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding this burden estimate or any other 
aspects of this collection of information, including suggestions for 
reducing the burden, to the Information Collection Clearance Officer, 
Bureau of Indian Affairs, Mailstop 337-SIB, 18th and C Streets NW., 
Washington, DC 20240; and the Paperwork Reduction Project (1076-0020), 
Office of Management and Budget, Washington, DC 20503.

[54 FR 34975, Aug. 23, 1989]



PART 111--ANNUITY AND OTHER PER CAPITA PAYMENTS--Table of Contents




Sec.
111.1  Persons to share payments.
111.2  Enrolling non-full-blood children.
111.3  Payments by check.
111.4  Election of shareholders.
111.5  Future payments.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10549, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 111.1  Persons to share payments.

    In making all annuity and other per capita payments, the funds shall 
be equally divided among the Indians entitled thereto share and share 
alike. The roll for such payments should be prepared on Form 5-322,\1\ 
in strict alphabetical order by families of husband, wife, and unmarried 
dependent minor children. Unless otherwise instructed,
---------------------------------------------------------------------------

    \1\ Forms may be obtained from the Commissioner of Indian Affairs, 
Washington, D.C.
---------------------------------------------------------------------------

    (a) Indians of both sexes may be considered adults at the age of 18 
years;
    (b) Deceased enrollees may be carried on the rolls for one payment 
after death;
    (c) Where final rolls have been prepared constituting the legal 
membership of the tribe, only Indians whose names appear thereon are 
entitled to share in future payments, after-born children being excluded 
and the shares of deceased enrollees paid to the heirs if determined or 
if not determined credited to the estate pending determination; and

[[Page 324]]

    (d) The shares of competent Indians will be paid to them directly 
and the shares of incompetents and minors deposited for expenditure 
under the individual Indian money regulations.

    Cross References: For regulations pertaining to the determination of 
heirs and approval of wills, see part 15 and Secs. 11.30 through 11.32C 
of this chapter. For individual Indian money regulations, see part 115 
of this chapter.



Sec. 111.2  Enrolling non-full-blood children.

    Where an Indian woman was married to a white man prior to June 7, 
1897, and was at the time of her marriage a recognized member of the 
tribe even though she left it after marriage and lived away from the 
reservation, the children of such a marriage should be enrolled--and, 
also in the case of an Indian woman married to a white man subsequent to 
the above date but who still maintains her affiliation with the tribe 
and she and her children are recognized members thereof; however, where 
an Indian woman by marriage with a white man after June 7, 1897, has, in 
effect, withdrawn from the tribe and is no longer identified with it, 
her children should not be enrolled. In case of doubt all the facts 
should be submitted to the Bureau of Indian Affairs, Washington, D.C., 
for a decision.



Sec. 111.3  Payments by check.

    All payments should be made by check. In making payments to 
competent Indians, each check should be drawn to the order of the 
enrollee and given or sent directly to him. Powers of attorney and 
orders given by an Indian to another person for his share in a payment 
will not be recognized. Superintendents will note in the ``Remarks'' 
column on the roll the date of birth of each new enrollee and the date 
of death of deceased annuitants.



Sec. 111.4  Election of shareholders.

    An Indian holding equal rights in two or more tribes can share in 
payments to only one of them and will be required to elect with which 
tribe he wishes to be enrolled and to relinquish in writing his claims 
to payments to the other. In the case of a minor the election will be 
made by the parent or guardian.



Sec. 111.5  Future payments.

    Indians who have received or applied for their pro rata shares of an 
interest-bearing tribal fund under the act of March 2, 1907 (34 Stat. 
1221; 25 U.S.C. 119, 121), as amended by the act of May 18, 1916 (39 
Stat. 128), will not be permitted to participate in future payments made 
from the accumulated interest.



PART 112--REGULATIONS FOR PRO RATA SHARES OF TRIBAL FUNDS--Table of Contents




Sec.
112.1  Fee simple patentees.
112.2  Applicants who have received neither fee simple patents nor 
          certificates of competency.
112.3  Applicants who are mentally or physically incapable of managing 
          their affairs.
112.4  Interest in pro rata shares not vested rights unless application 
          approved.
112.5  Basis of distribution; pro rata shares.
112.6  Disposition of pro rata share in event of applicant's death.
112.7  Pro rata shares of minors.

    Authority: Sec. 2, 34 Stat. 1221, as amended; 25 U.S.C. 121.

    Source: 22 FR 10549, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

    Cross Reference: For regulations pertaining to the determination of 
heirs and approval of wills, see part 15 and Secs. 11.30 through 11.32 
of this chapter.



Sec. 112.1  Fee simple patentees.

    When the applicant has been granted a patent in fee or certificate 
of competency, that fact will be accepted as prima facie evidence of his 
competency, but in forwarding applications of this class the agent will 
give the date on which the patent was issued, report whether in his 
judgment the patentee has made proper use of his privileges and would 
make good use of his share of the tribal funds if paid to him, and make 
a specific recommendation for approval or disapproval of the 
application.

[[Page 325]]



Sec. 112.2  Applicants who have received neither fee simple patents nor certificates of competency.

    In the case of an applicant who has received neither a fee simple 
patent nor a certificate of competency, the application must be 
accompanied by evidence which will establish the fact that he is capable 
of managing his own affairs. In forwarding applications of this class 
the superintendent will report fully, as follows:
    (a) Is the applicant living on this allotment? If so, is he making 
reasonable efforts to cultivate his land and to support himself and 
family? If he is not living on his allotment, what is his occupation?
    (b) Is any part of his allotment leased? If so, to what extent does 
he depend upon the rent therefrom to support himself and family?
    (c) Has the applicant been given the privilege of leasing his own 
lands; and if so, with what result?
    (d) Has he an interest in any inherited land? If he has sold or 
leased any inherited land, how has he managed the proceeds?
    (e) Is the applicant of good moral character?
    (f) Is he addicted to the use of intoxicants? And if so, does this 
habit, in the judgment of the agent, unfit him to make proper use of his 
share of the tribal funds?
    (g) What is his physical condition?
    (h) Is the applicant in debt? If so, to what extent and for what 
purpose was the debt incurred?
    (i) Has the applicant the necessary business qualifications to 
enable him to manage his own affairs?
    (j) Give such other information concerning the applicant as will aid 
the office in determining whether or not to approve his application.
    (k) Make a specific recommendation for the approval or disapproval 
of the application.



Sec. 112.3  Applicants who are mentally or physically incapable of managing their affairs.

    Applications of this class must be accompanied by evidence that will 
establish the advisability of withdrawing the share. If the application 
is approved, the funds will be deposited to the credit of the Indian and 
handled as individual Indian money.
    In forwarding applications the agent will report fully as follows:
    (a) Sex and exact date of birth.
    (b) Identify the applicant by allotment and last annuity-roll 
numbers.
    (c) What is the actual physical condition of the applicant. If 
suffering from disease, submit certificate of physician if necessary to 
establish disability.
    (d) What is the actual mental condition of the applicant? Answer 
fully.
    (e) What are the material resources of the applicant?
    (f) What advantages will accrue to applicant by withdrawal of his or 
her share at this time?
    (g) Has it been explained to the applicant and does he understand 
that if the application is approved the funds will be deposited to his 
credit as individual Indian money to be expended under the supervision 
of the superintendent?
    (h) Make a specific recommendation for the approval or disapproval 
of the application.

[22 FR 10549, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 48 FR 13414, Mar. 31, 1983]

    Cross Reference: For individual Indian money regulations, see part 
115 of this chapter.



Sec. 112.4  Interest in pro rata shares not vested rights unless application approved.

    On November 6, 1908, the Secretary of the Interior decided, in 
effect, that the interest of an Indian in a pro rata share of a tribal 
fund does not vest in the Indian an inheritable property until after his 
application has been approved by the Secretary and an order signed by 
him segregating it from the tribal fund. Applications for shares of 
funds under this act may be made at any time, but in view of the 
Secretary's decision such applications should be forwarded to the Bureau 
by the superintendent as soon as they are completed and filed with him. 
Applications from those who are blind, decrepit, etc., must be made 
special and forwarded to the Bureau of Indian Affairs, Washington, D.C., 
as soon as possible.

[[Page 326]]



Sec. 112.5  Basis of distribution; pro rata shares.

    In estimating the pro rata share of an individual, the last annuity 
payroll prior to July 1, or January 1 of each year will be taken as a 
basis of distribution. Where no payment has been made within 1 year, the 
last census, if taken within the year, will be the basis. If no census 
has been taken or payment made within a year, the last available 
record--either census or annuity roll will be used.



Sec. 112.6  Disposition of pro rata share in event of applicant's death.

    In the event of the death of an applicant prior to the approval of 
his application by the Secretary of the Interior, the share to which he 
would have been entitled, if living, will revert to the tribe. In case 
of the death of an applicant after approval of his application and the 
signing by the Secretary of the Interior of an order for the segregation 
of his share, but before payment is made, his share will descend to his 
legal heirs and should be deposited to the credit of the estate pending 
formal determination thereof.
    Cross Reference: For regulations pertaining to the determinations of 
heirs and approval of wills, see part 15 and Secs. 11.30 through 11.32C 
of this chapter.



Sec. 112.7  Pro rata shares of minors.

    The shares of minors will not be withdrawn except when necessary for 
their own benefit. The application should be signed by the parent or 
guardian and transmitted to the Bureau by the superintendent with his 
recommendation as in other cases and a full explanation of the 
circumstances which justify the withdrawal. Such shares will be 
deposited to the credit of the minors subject to expenditure under the 
individual Indian money regulations. The term ``minor,'' as used in this 
section, shall be interpreted in conformity with the State law.
    Cross Reference: For individual Indian money regulations, see part 
115 of this chapter.



PART 114--SPECIAL DEPOSITS--Table of Contents




Sec.
114.1  Purpose and scope.
114.2  Definitions.
114.3  Investment of special deposit funds.
114.4  Payment and distribution of interest on special deposit funds.
114.5  Distribution of IMPL Escrow Account.

    Authority: 25 U.S.C. 2; 25 U.S.C. 9; Pub. L. 97-100; and Pub. L. 97-
257.

    Source:  48 FR 48808, Oct. 21, 1983, unless otherwise noted.



Sec. 114.1  Purpose and scope.

    The purpose of these regulations is to set forth the conditions 
governing the deposit, investment, and distribution of interest on funds 
held by the Bureau in special deposits; and to provide procedures 
required for determination of ownership and distribution of funds which 
are on deposit in account 14X6703 ``Indian Moneys Proceeds of Labor 
Escrow Account--Pending Determination of Ownership''.



Sec. 114.2  Definitions.

    (a) ``Agency'' means any field office of the Bureau officially 
designated as an Indian agency and which provides direct services at the 
local level to Indians and Indian tribes, who are recognized by the 
Bureau as eligible for federal services to Indians because of their 
status as Indians.
    (b) ``Agency IMPL Escrow Account'' means that portion of the funds 
in 14X6703 identifiable to that agency.
    (c) ``Beneficiary'' means a potential beneficiary who has signed an 
acceptance.
    (d) ``Bureau'' or ``BIA'' means the Bureau of Indian Affairs, 
Department of the Interior.
    (e) ``Claimant'' means an individual (or a tribe) who asserts an 
entitlement to a share of the IMPL Escrow Account but has not been 
determined as a potential beneficiary.
    (f) ``IMPL Escrow Account'' means account 14X6703, Indian Moneys, 
Proceeds of Labor Escrow Account--Pending Determination of 
Beneficiaries, U.S. Treasury.
    (g) ``Potential beneficiary'' means an individual or tribe 
determined eligible to share in the IMPL Escrow Account provided a 
proper acceptance is received on behalf of the individual or tribe 
involved.
    (h) ``Principal account'' means each separate payment or deposit of 
money

[[Page 327]]

to the Bureau which is held as a special deposit.
    (i) ``Special deposit'' means any suspense account used for the 
temporary deposit of funds which cannot be credited to specific accounts 
or readily distributed, including, but not limited to:
    (1) Advance deposits;
    (2) Advance deposits on other leases and permits for such Indian 
lands;
    (3) Advance payments and advance deposits required on sales of 
timber and other natural resources from such Indian lands;
    (4) Deposits for rights of way over such Indian lands and 
anticipated right-of-way damages held until such damages are determined; 
and
    (5) Deposits for grazing fees on such Indian lands.
    (j) ``Special deposit funds'' means those funds held in special 
deposits.
    (k) ``Superintendent'' means the Bureau official in charge of a 
Bureau agency.



Sec. 114.3  Investment of special deposit funds.

    It is the policy of the Bureau to invest all special deposit funds 
which have been paid to the Bureau on behalf of Indians or Indian tribes 
pending the eventual payment for the sale, lease, or other transfer of 
tribal or individual Indian property and funds which are deposited 
solely for the purpose of guaranteeing performance.



Sec. 114.4  Payment and distribution of interest on special deposit funds.

    (a) It is the general policy of the Bureau that interest and 
earnings from the investment of special deposit funds be credited to the 
principal accounts upon which the interest was earned.
    (b) At the time that a withdrawal is made from a special deposit 
account, the interest earned by the principal account being withdrawn 
will be computed and withdrawn from the account as a part of the same 
transaction. The interest earned by the subject principal amount will be 
computed into two parts:
    (1) The portion of interest credited during the prior interest 
period which was attributable to this principal, and
    (2) The portion of interest which has been earned by this principal 
amount but has not yet been credited to the account because the interest 
period is not complete. This will be computed by using the month-end 
balances since the last interest period times the last period's factor.
    (c) No interest will be distributed to accounts which have less than 
the minimum average month-end balances as determined by the Division of 
Accounting Management. Any such interest not distributed would remain in 
the undistributed interest account at the Bureau level to be included in 
determining the next six month interest factor.



Sec. 114.5  Distribution of IMPL Escrow Account.

    (a) Determination of potential beneficiaries. Each agency will 
determine the potential beneficiaries and their respective shares of the 
IMPL Escrow Account at that agency by the following method:
    (1) Identify the unobligated balance in the agency IMPL account as 
of September 30, 1982, and interest accrued for the period ending 
September 30, 1982, which has subsequently been transferred into account 
14X6703 IMPL Escrow Account Pending Determination of Ownership. This 
amount will be called the agency IMPL Escrow Account balance.
    (2)(i) Identify the length of time which has been required to 
accumulate actual income into the former IMPL account to equal the 
current agency IMPL Escrow Account balance.
    (ii) To determine the beginning date for ownership computations, 
subtract the length of time identified in paragraph (a)(2)(i) of this 
section from April 1, 1981. (Subsequent to April 1, 1981, interest 
earned on special deposits has been credited directly to each special 
deposit account rather than to an IMPL account.)
    (3) Examine the Individual Indian Money (IIM) accounts to determine 
the total dollars transferred to each account from the principal in 
special deposit accounts during the period identified in paragraph 
(a)(2) of this section.
    (4) Examine tribal treasury account records to determine the total 
dollars transferred to each tribal trust account from the principal in 
special deposit

[[Page 328]]

accounts during the period identified in paragraph (a)(2) of this 
section.
    (5) Determine the percentage of the principal transferred from 
special deposit accounts into each IIM and tribal trust account. This is 
done by dividing the total amount of principal transferred from special 
deposit accounts into all accounts at the agency into the total computed 
for each IIM and tribal trust account pursuant to paragraphs (a)(3) and 
(a)(4) of this section. The formula is as follows:

                                                                                                                
                                          Dollars transferred into an                                           
                                                    account                 Percent                             
                                         -----------------------------  =    share                              
                                           Total dollars transferred       for that                             
                                          by agency into all accounts       account                             
                                                                                                                

    (6) Multiply this percentage by the agency IMPL Escrow Account 
balance to determine each potential beneficiary's share of that balance. 
Should this determined share be less than ten dollars ($10.00) no 
transfer of funds will be made.
    (7) The formula identified in paragraph (a)(5) of this section will 
be used in determining potential shares unless there are clear and 
available records at the agency level to identify specific amounts. If 
the records are used by the agencies they must be made available for 
public review upon request.
    (b) Notification of determination of potential beneficiaries. Upon 
completion of the determination of all potential beneficiaries of an 
agency IMPL Escrow Account, the Superintendent shall publish a general 
notice which shall contain the following:
    (1) Brief history of agency IMPL Escrow Account;
    (2) Explanation of method of determination of potential 
beneficiaries;
    (3) Information on availability of specific data;
    (4) Instruction to potential beneficiaries on completion of 
acceptance forms, explaining that only those who complete the acceptance 
forms can receive any funds; and
    (5) Establishment of deadline date by which potential beneficiaries 
must complete the acceptance forms to receive the funds. This deadline 
will be 180 days from the date of the general notice. This general 
notice shall be published in the usual and customary manner for making 
public such documents. If such usual and customary publication does not 
include posting on the agency bulletin board and publication in at least 
one local newspaper of general distribution, the posting on the bulletin 
board and local newspaper publication shall be done in addition to the 
usual and customary manner of publication.
    (c) Acceptance by potential beneficiary. Before the funds identified 
in paragraph (a) of this section as transferable to a potential 
individual or tribal beneficiary can be deposited into that potential 
beneficiary's account the following must be completed:
    (1) The potential beneficiary must sign an acceptance of the 
determination by the Secretary which shall constitute a complete release 
and waiver of any and all claims by the potential beneficiary against 
the United States relating to the unobligated balance of IMPL accounts 
as of the close of business on September 30, 1982.
    (2) The acceptance must be signed during the 180 days between the 
date of the general notice provided for in paragraph (b) of this section 
and the deadline date established therein.
    (3) In the case of a potential tribal beneficiary, the acceptance 
must be accompanied by a resolution of the appropriate tribal entity 
approving the acceptance and authorizing the designated tribal 
representative(s) to sign the acceptance. An acceptance on behalf of an 
estate account may be signed by the Superintendent if the determination 
of heirs has not become final and may be signed on behalf of individual 
inherited shares by each heir if the probate determination has become 
final. An acceptance on behalf of a minor may be signed by a parent, 
guardian or a person acting in loco parentis. An acceptance on behalf of 
an adult who has been determined legally incompetent or in need of 
assistance in managing his/her affairs pursuant to 25 CFR 115.9 may be 
signed by his/her authorized representative.
    (d) Distribution. (1) After the expiration of the deadline 
established in paragraph (b) of this section, funds of

[[Page 329]]

individual beneficiaries who have completed the acceptance forms will be 
transferred from the IMPL Escrow Account into each beneficiary's IIM 
account. Funds derived from beneficiary estate accounts for which the 
heirs have been determined will be transferred into the heirs' accounts. 
Funds derived from beneficiary estate accounts for which the heirs have 
not been determined will be transferred into the estate account.
    (2) Interest accrued for any period after October 1, 1982 will be 
credited to the beneficiary accounts on the same percentage basis as the 
original share.
    (3) After the expiration of the deadline established in paragraph 
(b) of this section, funds of a tribal beneficiary and interest earned 
thereon since October 1, 1982, will be transferred into the appropriate 
tribal treasury account.
    (4) Not more than ten percent (10%) of the funds which may be 
transferred to a trust account for any tribe, or to an IIM account for 
an individual, may be utilized by the beneficiary to pay for legal or 
other representation relating to claims for such funds.
    (5) Not more than two percent (2%) of the funds which may be 
transferred to a trust account for any tribe, or to an IIM account for 
an individual, may be utilized by the BIA to reimburse the BIA for 
administrative expenses incurred in determining ownership of the funds.
    (e) Appeals. (1) Any potential beneficiary or claimant may appeal 
any decision made or action taken by a Superintendent under this 
section. Such appeal shall be made in writing and submitted as provided 
in 25 CFR part 2.
    (2) As provided in part 2, the appeal must be received within 30 
days after receipt of the written notice advising the potential 
beneficiary of his/her share of the IMPL Escrow Account or advising the 
claimant that no share has been determined for him/her. No appeals will 
be accepted under this section after September 30, 1985.
    (f) Distribution of residual funds. (1) After final administrative 
determination of ownership, including final determination of all 
appeals, and the completion of all appropriate fund transfers, but not 
later than October 1, 1985, any funds remaining in an agency IMPL Escrow 
Account may be expended subject to the approval of the Secretary for any 
purpose authorized under the Act of November 2, 1921 (42 Stat. 208; 25 
U.S.C. 13), and requested by the governing body(s) of the tribe(s) at 
the location(s) where such agency IMPL Escrow Account is maintained. 
This authority to expend the escrow account funds ends September 30, 
1987.
    (2) The unobligated balances of all IMPL Escrow Accounts as of the 
close of business on September 30, 1987, shall be deposited into 
miscellaneous receipts of the U.S. Treasury.



PART 115--INDIVIDUAL INDIAN MONEY ACCOUNTS--Table of Contents




Sec.
115.1  Definitions.
115.2  Osage Agency.
115.3  Individual accounts.
115.4  Minors.
115.5  Adults under legal disability.
115.6  Voluntary deposits.
115.7  Payments by other Federal agencies.
115.8  Purchase orders.
115.9  Restrictions.
115.10  Procedures relative to restrictions.
115.11  Funds of deceased Indians other than the Five Civilized Tribes.
115.12  Funds of deceased Indians of the Five Civilized Tribes.
115.13  Assets of members of the Agua Caliente Band of Mission Indians.
115.14  Appeals.
115.15  Information collection.

    Authority: R.S. 441, as amended, R.S. 463, R.S. 465; 5 U.S.C. 301; 
25 U.S.C. 2, 9; 43 U.S.C. 1457.

    Source: 23 FR 7942, Oct. 15, 1958, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 115.1  Definitions.

    As used in this part:
    (a) The term ``individual Indian money accounts'' means those 
accounts under the control of the Secretary of the Interior or his 
authorized representative belonging to individuals.
    (b) The term ``minor'' means an individual who has not reached his 
majority as defined by the laws of the State of his domicle.

[[Page 330]]



Sec. 115.2  Osage Agency.

    The provisions of this part do not apply to funds the deposit or 
expenditure of which is subject to the provisions of part 117 of this 
subchapter.



Sec. 115.3  Individual accounts.

    Except as otherwise provided in this part, adults shall have the 
right to withdraw funds from their accounts. Upon their application, or 
an application made in their behalf by the Secretary or his authorized 
representative, their funds shall be disbursed to them. All such 
disbursements will be made at such convenient times and places as the 
Secretary or his authorized representatives may designate.



Sec. 115.4  Minors.

    (a) Funds, other than a per capita share of judgment funds which 
exceeds $100 in total amount at the time actual payment is made, 
including the investment income accruing thereto, of a minor may be 
disbursed in such amounts deemed necessary in the best interest of the 
minor for the minor's support, health, education, or welfare to parents, 
legal guardians, fiduciaries, or to persons having the control and 
custody of the minor under plans approved by the Secretary, or the minor 
directly, upon such conditions as the Secretary may prescribe. The 
Secretary will require modification of an approved plan whenever deemed 
in the best interest of the minor.
    (b) A per capita share of judgment funds which exceeds $100 in total 
amount at the time actual payment is made, including the investment 
income accruing thereto, of a minor shall not be disbursed until the 
minor reaches 18 years of age. At that time, unless the minor is under 
legal disability, the minor shall be entitled to withdraw his judgment 
funds and accrued investment income as provided in Sec. 115.3. If the 
minor is under legal disability upon reaching his majority, his judgment 
funds and accrued investment income thereon shall be handled pursuant to 
Sec. 115.5.

[41 FR 48736, Nov. 5, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 115.5  Adults under legal disability.

    The funds of an adult who is non compos mentis or under other legal 
disability may be disbursed for his benefit for such purposes deemed to 
be for his best interest and welfare, or the funds may be disbursed to a 
legal guardian or curator under such conditions as the Secretary or his 
authorized representative may prescribe.



Sec. 115.6  Voluntary deposits.

    As a general rule, voluntary deposits shall not be accepted. Indians 
who require banking service shall be encouraged to utilize commercial 
facilities. If in any case it is determined that an exception to this 
prohibition should be made to avoid a substantial hardship, the facts in 
the case shall be considered by the Secretary or his authorized 
representative and an exception will be allowed or denied.



Sec. 115.7  Payments by other Federal agencies.

    Moneys received from the Veterans Administration or other Government 
agency pursuant to the act of February 25, 1933 (47 Stat. 907; 25 U.S.C. 
14), may be accepted and administered for the benefit of adult Indians 
under legal disability or minors for whom no legal guardian or fiduciary 
has been appointed.



Sec. 115.8  Purchase orders.

    Purchase orders may be issued only in emergencies upon the request 
of any account holder. The Secretary or his authorized representative 
may act in emergencies on behalf of an account holder who is unable to 
make a request because of illness or incapacity or, to meet expenses of 
last illness or funeral.



Sec. 115.9  Restrictions.

    Funds of individuals may be applied by the Secretary or his 
authorized representative against delinquent claims of indebtedness to 
the United States or any of its agencies or to the tribe of which the 
individual is a member, unless such payments are prohibited by acts of 
Congress, and against money judgments rendered by courts of Indian 
offenses or under any tribal law and order code. Funds derived from the 
sale

[[Page 331]]

of capital assets which by agreement approved prior to such sale by the 
Secretary or his authorized representative are to be expended for 
specific purposes, and funds obligated under contractual arrangements 
approved in advance by the Secretary or his authorized representative or 
subject to deductions specifically authorized or directed by acts of 
Congress, shall be disbursed only in accordance with the agreements 
(including any subsequently approved modifications thereof) or acts of 
Congress. The funds of an adult whom the Secretary or his authorized 
representative finds to be in need of assistance in managing his 
affairs, even though such adult is not non compos mentis or under other 
legal disability, may be disbursed to the adult, within his best 
interest, under approved plans. Such finding and the basis for such 
finding shall be recorded and filed with the records of the account.

    Cross Reference: For rules governing the payment of judgments from 
individual Indian money accounts, see Sec. 11.26 of this chapter.



Sec. 115.10  Procedures relative to restrictions.

    (a) If under Sec. 115.9 an individual's access to funds in the 
individual's Indian money account is limited, or it is proposed to pay 
creditors, including creditors with judgments from Courts of Indian 
Offenses, for which preliminary procedures are prescribed in 25 CFR 
11.26, the individual must be notified in writing as follows:
    (1) The notice must be given to the individual affected at the 
commencement of the restriction or at least 40 days prior to involuntary 
distribution of funds from the account.
    (2) The notice must state the reasons giving rise to the restriction 
or proposed payment.
    (3) The notice shall inform the individual of the right to a hearing 
and that a request for a hearing must be in writing, received by the 
Secretary, or an authorized representative, within 30 days of receiving 
the notice of proposed action.
    (4) The notice of proposed action shall be sent by Certified Mail-
Return Receipt Requested. The date appearing on the returned receipt 
shall constitute the beginning of the restriction period.
    (5) The notice shall state that a copy of the rights listed in 
paragraph (c) of this section are transmitted along with the notice.
    (6) The notice shall advise that if the individual wishes to have 
the delinquent claim or money judgment paid without delay and without a 
hearing the individual can so request by signing a form furnished for 
that purpose with the notice.
    (b) If the individual fails to request a hearing, the individual is 
deemed to consent to the continued limitation on and/or disbursement of 
funds from the IIM Account in accordance with the terms of the notice. 
Notwithstanding the continuance of a restriction on an account, if the 
amount of funds available in the account exceeds the amount of the 
restriction or the amount of the claim such unrestricted funds in excess 
of the amount of the restriction or claim shall be available for the 
account holder's use.
    (c) The Secretary, or an authorized representative, shall conduct a 
hearing, if no requested as specified above, to determine whether to 
continue to restrict the Individual Indian Money Account, and/or allow 
payment of delinquent claims and judgments of tribal courts and courts 
of Indian offenses from such accounts. The following are requirements 
for such a fair hearing:
    (1) The hearing shall be held within 10 working days of the 
Secretary's or an authorized representative's receipt of the request for 
a hearing.
    (2) The individual must be given the opportunity to be heard. This 
includes the right to hear the case against the individual; to present 
testimony, to present witnesses, and to question and rebut opposing 
witnesess. This includes the right to orally present arguments and 
evidence. The account holder may be heard on why a judgment of a tribal 
court or court of Indian offenses should not be paid from his or her 
Individual Indian Money account, but he or she may not relitigate the 
facts established by that court.
    (3) If the individual desires an attorney or other representative, 
one may be retained at the individual's own expense.

[[Page 332]]

    (4) The decision to uphold or overturn the proposed action, must be 
made by the Secretary, or an authorized representative, and must be 
based on information presented or referred to at the hearing. The 
decision of an authorized representative of the Secretary may be 
appealed as provided in Sec. 115.14.
    (5) The Secretary, or an authorized representative, shall make 
provisions for recording the hearing and shall preserve the record for 
the duration of the appeal period. Tape recording the hearing is 
sufficient.
    (6) The Secretary, or an authorized representative, will advise all 
parties concerned, in writing, of a decision with-in 10 working days 
after completion of the hearing.
    (d) No money except as provided in subsection (b) of this section, 
shall be paid from an Individual Indian Money Account or applied against 
a delinquent claim or judgment of a tribal court or court of Indian 
offenses until the decision on the claim has become final in accordance 
with the appeal procedures provided for in Sec. 115.14.

[51 FR 2874, Jan. 22, 1986]



Sec. 115.11  Funds of deceased Indians other than the Five Civilized Tribes.

    Funds of a deceased Indian other than those of the Five Civilized 
Tribes may be disbursed
    (a) For the payment of obligations previously authorized, including 
authorized expenses of last illness;
    (b) For authorized funeral expenses;
    (c) For support of dependent members of the family of decedent in 
such amounts deemed necessary to avoid hardship and consistent with the 
value of the estate and the interest of probable heirs;
    (d) For necessary expenses to conserve the estate pending the 
completion of probate proceedings; and
    (e) For probate fees and claims allowed pursuant to part 15 of this 
chapter.

[23 FR 7942, Oct. 15, 1958. Redesignated at 47 FR 13327, Mar. 30, 1982, 
and further redesignated at 51 FR 2874, Jan. 22, 1986]



Sec. 115.12  Funds of deceased Indians of the Five Civilized Tribes.

    Funds of a deceased Indian of the Five Civilized Tribes may be 
disbursed to pay ad valorem and personal property taxes, Federal and 
State estate and income taxes, obligations approved by the Secretary of 
his authorized representative prior to death of decedent, expenses of 
last sickness and burial and claims found to be just and reasonable 
which are not barred by the statute of limitations, costs of determining 
heirs to restricted property by the State courts, and claims allowed 
pursuant to part 16 of this chapter.

[23 FR 7942, Oct. 15, 1958. Redesignated at 47 FR 13327, Mar. 30, 1982, 
and further redesignated at 51 FR 2874, Jan. 22, 1986]



Sec. 115.13  Assets of members of the Agua Caliente Band of Mission Indians.

    (a) The provisions of this section apply to money or other property, 
except real property, held by the United States in trust for such 
Indians, which may be used, advanced, expended, exchanged, deposited, 
disposed of, invested, and reinvested by the Director, Palm Springs 
Office, in accordance with the Act of October 17, 1968 (Pub. L. 90-597). 
The management or disposition of real property is covered in other parts 
of this chapter.
    (b) Investments made by the Director, Palm Springs Office, under the 
Act of October 17, 1968, supra, shall be of such a nature as will afford 
reasonable protection of the assets of the individual Indian involved. 
The Director is authorized to enter into contracts for the management of 
the assets (except real property) of individual Indians. The consent of 
the individual Indian concerned must be obtained prior to the taking of 
actions affecting his assets, unless the Director determines, under the 
provisions of section (e) of the Act, that consent is not required.
    (c) The Director may, consistent with normal business practices, 
establish appropriate fees for reports he requires from guardians, 
conservators, or other fiduciaries appointed under State law for members 
of the Band.

[33 FR 16636, Nov. 15, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982, 
and further redesignated at 51 FR 2874, Jan. 22, 1986]

[[Page 333]]



Sec. 115.14  Appeals.

    Appeals from an action taken by an official of the Bureau of Indian 
Affairs may be taken pursuant to 25 CFR part 2, subject to the terms of 
Sec. 115.10(c)(2).

[51 FR 2874, Jan. 22, 1986]



Sec. 115.15  Information collection.

    This rule does not contain information collection requirements which 
require approval by the Office of Management and Budget under 44 U.S.C. 
3501 et. seq.

[51 FR 2875, Jan. 22, 1986]



PART 116--CREATION OF TRUSTS FOR RESTRICTED PROPERTY OF INDIANS, FIVE CIVILIZED TRIBES, OKLAHOMA--Table of Contents




Sec.
116.1  Application for trust.
116.2  Obligations of trust company.
116.3  Secretarial approval discretionary.
116.4  Contents trust agreement.
116.5  Eligibility of appraisers.
116.6  Aiding Indians in formulating trust agreements.
116.7  Trust duration.
116.8  Trustee's security.
116.9  Trustee's compensation.
116.10  Necessary forms.
116.11  Limit restricted property in trust.
116.12  Amendments.

    Authority: Sec. 7, 47 Stat. 778.

    Source: 22 FR 10552, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 116.1  Application for trust.

    Indians desiring to establish trust estates under the provisions of 
the said act must make written application therefor to the Secretary of 
the Interior through the superintendent or other official in charge of 
the Five Civilized Tribes Agency, Muskogee, Oklahoma. The application 
shall designate the trustee, the beneficiary or beneficiaries and the 
manner in which it is desired the corpus of the estate shall be 
distributed upon the termination of the trust. A form of application 
will, upon request, be furnished by the said superintendent and should 
be filled out and executed in the presence of the field clerk or, in the 
office of the superintendent and duly attested by the field clerk or 
some other Government employee. The information required by the form of 
application and such other information as may be requested concerning 
the Indian and his affairs shall be carefully considered by the 
superintendent who will affix his recommendation to the application and 
forward it to the Secretary of the Interior with his report, which 
report shall contain full advice with respect to the education and 
business qualifications of the applicant, his ability to read, write and 
understand the English language, his reputation for industry and thrift 
and what experience, if any, he has had in a business way.



Sec. 116.2  Obligations of trust company.

    The form of proposed trust agreement shall be executed by the trust 
company or banking institution selected as trustee, and shall be signed 
by and submitted with the application of the Indian, together with a 
statement in writing by said trust company or banking institution 
similar in form to that prescribed by the Comptroller of the Currency 
(or by the State banking department), showing fully the conditions of 
said trust company or banking institutions on a day not more than 1 
month prior to the date of the application for the creation of the 
trust. The agreement must also be accompanied by a written certificate 
duly executed by the trustee to the effect that it has not paid or 
promised to pay any person other than an officer or employee on its 
regular payroll any fee, charge, commission or remuneration for any 
service or influence in securing or attempting to secure for it the 
trusteeship in that or in other trusts to which the regulations in this 
part apply.



Sec. 116.3  Secretarial approval discretionary.

    No such trust agreement will be favorably considered unless in the 
judgment of the Secretary of the Interior the trustee therein named is 
deemed by him to be on a sound financial basis and otherwise 
sufficiently qualified to justify approval of such trust.

[[Page 334]]



Sec. 116.4  Contents trust agreement.

    In addition to the subject matter of the trust, its object and 
beneficiaries, duties of trustee, etc., the form of trust agreement 
shall contain provisions to the following general effect:
    (a) That such of the current income from the corpus of the estate as 
may be payable to the Indians of the Five Civilized Tribes of one-half 
or more Indian blood shall be remitted by the trustee to the Secretary 
of the Interior or such other official as he may designate for 
appropriate disposition.
    (b) That the trusts declared and each of them shall be irrevocable 
except with the approval of the Secretary of the Interior, but, subject 
to his approval, the beneficiaries named in any approved trust may be 
redesignated by the maker without in any manner otherwise impairing or 
altering any of the provisions thereof, particularly the duration of the 
trust or the compensation to be paid to the trustee.
    (c) That neither the corpus of the trust estate nor the income 
derived therefrom is, during the restriction period provided by law, 
subject to alienation or incumbrance, or to the satisfaction of any debt 
or other liability of any beneficiary of such trust during the said 
restricted period.
    (d) That if the trust be annulled, canceled or set aside by order of 
any court or otherwise, the principal of the trust with all accrued and 
unpaid interest shall be returned to the Secretary of the Interior as 
restricted individual property.
    (e) That the trustee shall render an annual accounting to the 
Secretary of the Interior and to the beneficiary or beneficiaries to 
whom the income from any such trust for the preceding year or any part 
thereof was due and payable, such annual accounting to be submitted 
within 30 days following the ending of each annual period of the trust, 
and the trustee shall render accounting to the Secretary of the Interior 
at any other time on written request by the Secretary of the Interior, 
within 30 days from such request.
    (f) That except as to U.S. Government bonds and other securities 
fully guaranteed by the Federal Government in which such funds in the 
hands of the trustee may be invested without limitations, the following 
limitations are prescribed on the right of the trustee to invest or 
reinvest any part of the corpus or income from the trust:
    (1) Not more than 30 percent of the estate may be invested in 
securities exclusive of all other limitations contained in this part, 
which appear on the current list of legal investments for savings banks 
prepared by the superintendent of banks of the State of New York, except 
that this authorization shall not include the purchase of public utility 
securities or railroad securities which do not represent obligations of 
operating companies, or the purchase of stocks: Provided, however, That 
in the purchase of such securities not more than 20 percent may be 
invested in general obligations issued by States or by any political 
subdivisions thereof, and not more than 10 percent may be invested in 
public utilities and in railroad securities, or in either of them;
    (2) Not more than 15 percent of the trust estate may be invested in 
Federal land bank bonds issued under the provisions of the act of July 
17, 1916 (39 Stat. 360) as amended;
    (3) Not more than 40 percent of the trust estate may be invested in 
total loans secured on first deeds of trust or first mortgages on 
improved city or farm real estate situated in the States designated in 
the trust agreements, but no such loans shall exceed 50 percent of the 
value of the real estate and improvements appraised not more than 30 
days prior to such investments by one or more appraisers selected with 
the approval of the Secretary of the Interior;
    (4) No part of the trust fund shall be invested in the purchase of 
real estate or stocks for the trust except to protect the trust estate 
in foreclosure or other proceedings;
    (5) No part of the trust estate shall be invested in any kind of 
foreign securities, loans, or other properties, private or public.



Sec. 116.5  Eligibility of appraisers.

    Hereafter no person who is interested directly or indirectly, 
whether through intimate personal, financial or business connections, in 
any trust company or banking institution designated as

[[Page 335]]

trustee under an approved trust agreement involving restricted Indian 
property, or who is an officer, director, or employee of such trust 
company or banking institution, shall act as an appraiser of real estate 
in connection with the making of loans from the trust estate to be 
secured by first deeds of trust or first mortgages. Nor shall any person 
having an interest in obtaining such a loan, either personally or as an 
officer, director or employee of any company, association or partnership 
seeking such a loan, act as an appraiser. An investigation into the 
qualifications of all persons selected as appraisers will be made for 
the purpose of determining that the persons selected are both competent 
and disinterested.



Sec. 116.6  Aiding Indians in formulating trust agreements.

    In the formulation of the trust agreement and the provisions thereof 
the superintendent for the Five Civilized Tribes Agency and the other 
employees under his supervision will upon request assist the Indian to 
the fullest possible extent to the end that he may understand fully the 
meaning and the intent of the agreement and make the most satisfactory 
provision for the formation and consummation of the trust agreement.



Sec. 116.7  Trust duration.

    Under the terms of the statute no trust shall be established to 
continue for a period of more than 21 years after the death of the last 
surviving beneficiary named in the trust agreement.



Sec. 116.8  Trustee's security.

    To secure the faithful performance of the duties imposed by the 
trust agreement the trustee shall, as required by section 7 of the act 
(47 Stat. 778), deposit securities of the United States or furnish an 
acceptable corporate surety bond in an amount equal to the value of the 
trust as fixed and determined by the Secretary of the Interior. 
Appraisers will be appointed by the Secretary for the purpose of fixing 
the value of the trust and of revising such value from time to time as 
the judgment of the Secretary may dictate. Additional or substitute 
security may be required at any time when deemed necessary for the 
protection of the trust estate and the interest of the Indians. Trustees 
pledging United States bonds or notes as security shall execute on forms 
\1\ prescribed by the Secretary an appropriate resolution and power of 
attorney authorizing the sale, assignment or transfer of the collateral. 
Only those corporate sureties who hold certificates of authority from 
the Secretary of the Treasury to write bonds on which the United States 
is obligee are acceptable as sureties. The cost to the trustee, if any, 
of furnishing the required bond, will be regarded as a necessary part of 
the cost of administering the trust and as such deductible from the 
gross income accruing therefrom.

    \1\ Forms may be obtained from the superintendent of the Five 
Civilized Tribes Agency, Muskogee, Oklahoma.
---------------------------------------------------------------------------



Sec. 116.9  Trustee's compensation.

    As compensation for administering the trust the trustee will be 
permitted to receive annually not to exceed 5 percent of the gross 
annual income from such trust estate, and as further compensation will 
also be permitted to receive not to exceed an amount equal to 1 percent 
of the corpus of the trust estate, to be paid out of the income first 
accruing therefrom, and not to exceed an amount equal to 2 percent of 
the corpus of the estate at the time of final distribution based upon 
the last valuation made by the Secretary of the Interior prior to such 
distribution. By final distribution is meant any distribution to a 
beneficiary of any part of the corpus of the trust estate at any time 
under the terms of the trust. All fees are to be based on the size of 
the trust and the nature of the duties to be performed thereunder. The 
foregoing percentage of fees are maximum and alternative, that is, 
within such maximum limitations any one or more of said fees may or may 
not be allowed within the discretion of the Secretary of the Interior.



Sec. 116.10  Necessary forms.

    In addition to the form of application by the Indians under the act 
of January 27, 1933 (47 Stat. 777), there are skeleton forms of trust 
agreement and

[[Page 336]]

bond which forms are subject to such changes as may be necessary to meet 
the requirements of each particular case.



Sec. 116.11  Limit restricted property in trust.

    Not more than three million dollars aggregate value of restricted 
Indian property shall be placed in trust pursuant to the regulations in 
this part with any one trustee, trust company or other banking 
institution authorized by law to act as a fiduciary.



Sec. 116.12  Amendments.

    The regulations in this part may be changed, amended, added to, and 
any part thereof eliminated at any time by the Secretary of the 
Interior.



PART 117--DEPOSIT AND EXPENDITURE OF INDIVIDUAL FUNDS OF MEMBERS OF THE OSAGE TRIBE OF INDIANS WHO DO NOT HAVE CERTIFICATES OF COMPETENCY--Table of Contents




Sec.
117.1  Definitions.
117.2  Payment of taxes of adult Indians.
117.3  Payment of taxes of Indians under 21 years of age.
117.4  Disbursement of allowance funds.
117.5  Procedure for hearings to assume supervision of expenditure of 
          allowance funds.
117.6  Allowance for minors.
117.7  Disbursement or expenditure of surplus funds.
117.8  Purchase of land.
117.9  Construction and repairs.
117.10  Purchase of automotive equipment.
117.11  Insurance.
117.12  Costs of recording and conveyancing.
117.13  Telephone and telegraph messages.
117.14  Miscellaneous expenditure of surplus funds.
117.15  Collections from insurance companies.
117.16  Reimbursement to surplus funds.
117.17  Inactive surplus funds accounts.
117.18  Withdrawal and payment of segregated trust funds.
117.19  Debts of Indians.
117.20  Purchase orders.
117.21  Fees and expenses of attorneys.
117.22  Disbursements to legal guardians.
117.23  Transactions between guardian and ward.
117.24  Compensation for guardians and their attorneys.
117.25  Charges for services to Indians.
117.26  Expenses incurred pending qualification of an executor or 
          administrator.
117.27  Custody of funds pending administration of estates.
117.28  Payment of claims against estates.
117.29  Sale of improvements.
117.30  Sale of personal property.
117.31  Removal of restrictions from personal property.
117.32  Funds of Indians of other tribes.
117.33  Signature of illiterates.
117.34  Financial status of Indians confidential.
117.35  Appeals.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10554, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 117.1  Definitions.

    When used in the regulations in this part the following words or 
terms shall have the meaning shown below:
    (a) ``Secretary'' means the Secretary of the Interior or his 
authorized representative.
    (b) ``Commissioner'' means the Commissioner of Indian Affairs or his 
authorized representative.
    (c) ``Superintendent'' means the superintendent of the Osage Agency.
    (d) ``Quarterly payment'' means the payment of not to exceed $1,000 
which is made each fiscal quarter to or on behalf of an adult Indian, 
from the following sources:
    (1) The pro rata distribution of tribal mineral income and other 
tribal revenues.
    (2) The interest on segregated trust funds.
    (3) Surplus funds in addition to the income from the foregoing 
sources in the amount necessary to aggregate $1,000 when the income from 
those sources is less than $1,000 and the Indian has a balance of 
accumulated surplus funds in excess of $10,000.
    (e) ``Surplus funds'' means all those moneys and securities readily 
convertible into cash, except allowance funds and segregated trust 
funds, which are held to the credit of an Indian at the Osage Agency and 
which may be disbursed, expended or invested only upon authorization by 
the Secretary. The term includes:
    (1) That portion of the quarterly distribution of tribal income and 
interest

[[Page 337]]

on segregated trust funds, in excess of $1,000, belonging to an adult 
Indian.
    (2) The proceeds, including appreciation, of the sale or conversion 
of restricted real or personal property (other than partition sales).
    (3) Payments made by insurance companies or others for loss or 
damage to restricted real or personal property.
    (4) All moneys and securities, other than segregated trust funds, to 
the credit of an Indian who is less than 21 years of age (except the 
income from restricted lands payable as provided by Sec. 117.3).
    (5) Funds and securities placed to the credit of an Indian upon the 
distribution of an Osage estate.
    (f) ``Allowance funds'' means that income payable to or on behalf of 
a living adult Indian, the expenditure and disbursement of which is not 
subject to supervision unless authorized pursuant to the procedure 
contained in Sec. 117.5. The term includes:
    (1) The quarterly payment in an amount not to exceed $1,000.
    (2) The rentals and income from restricted lands owned by the 
Indian.
    (3) The rentals and income from restricted lands owned by the minor 
children of the Indian, as provided in Sec. 117.3.
    (4) Income from investments.
    (5) Interest on deposits to the credit of the Indian.
    (g) ``Segregated trust funds'' means those moneys held in the United 
States Treasury at interest to the credit of an Indian which represent 
pro rata shares of the segregation of tribal trust funds and the 
proceeds of the partition of restricted lands.



Sec. 117.2  Payment of taxes of adult Indians.

    The superintendent may cause to be paid out of any money heretofore 
accrued or hereafter accruing to the credit of any adult Indian all 
taxes of every kind and character for which such Indian is or may be 
liable before paying to or for such person any funds as required by law. 
All checks in payment of taxes shall be made payable to the proper 
collector. For the purpose of establishing a fund with which to meet the 
payment of such taxes when due, the Superintendent may cause the funds 
of an adult Indian to be hypothecated in the following manner:
    (a) For the payment of ad valorem taxes, one-fourth of the estimated 
amount ad valorem taxes from each quarterly payment unless this 
procedure would cause the obligation of more than 25 percent of such 
quarterly payments, in which event the necessary additional funds shall 
be retained from other allowance funds payable to such person under the 
law. If there be no other allowance funds available, or if the funds 
from these sources are insufficient, one-fourth of the estimated amount 
of such ad valorem taxes may be obligated from each quarterly payment. 
If an Indian who is liable for ad valorem taxes has no allowance funds, 
or such funds are insufficient for the payment thereof, surplus funds 
may be used for such payment.
    (b)(1) For the payment of income taxes, one-half of the estimated 
amount of income taxes from each semi-annual payment of interest on 
deposits, but if such interest payments are insufficient to meet this 
obligation, additional funds shall be retained from interest on 
investments, rentals, or other allowance funds.
    (2) Whenever funds are withheld for the purpose of establishing a 
fund to meet the payment of taxes, the Indian shall be notified of the 
action taken.



Sec. 117.3  Payment of taxes of Indians under 21 years of age.

    All taxes assessed against the restricted lands of Indians less than 
21 years of age shall be paid by the superintendent direct to the 
collector from the rents and income derived from such lands, and the 
balance, if any, of such rents and income shall be paid to the living 
parents or parent. If the parents are separated, the balance shall be 
paid to the parent having custody of the Indian under 21 years of age. 
All other taxes for which an Indian under 21 years of age may be liable 
shall be paid from his surplus funds.



Sec. 117.4  Disbursement of allowance funds.

    Except as provided in Sec. 117.5, all allowance funds shall be 
disbursed to the Indian owner unless the Indian owner

[[Page 338]]

directs otherwise in writing. At the request of the Indian owner, such 
funds may be retained by the superintendent as voluntary deposits 
subject to withdrawal or other disposition upon demand or direction of 
the Indian owner. The superintendent may recognize a power of attorney 
executed by the Indian and may disburse the allowance funds of the 
Indian in conformity therewith so long as the power of attorney remains 
in force and effect.



Sec. 117.5  Procedure for hearings to assume supervision of expenditure of allowance funds.

    (a) Whenever the superintendent has reason to believe that an adult 
Indian is wasting or squandering his allowance funds the superintendent 
may cause an investigation and written report of the facts to be made. 
If the report indicates that the Indian is wasting or squandering his 
allowance funds the following notice shall be served upon the Indian, in 
person or by registered mail, and a copy thereof shall likewise be 
served upon his guardian if the Indian is under guardianship:

    Section 1 of the act of February 27, 1925 (43 Stat. 1008) provides 
in part as follows:
    ``All payments to adults not having certificates of competency, 
including amounts paid for each minor, shall, in case the Secretary of 
the Interior finds that such adults are wasting or squandering said 
income, be subject to the supervision of the Superintendent of the Osage 
Agency: . . .''
    Enclosed is a copy of a report which has been made to me concerning 
your handling and management of the income paid to you through the Osage 
Agency. This report indicates that you have been wasting and squandering 
your payments.
    You are hereby notified that a hearing will be held in the Osage 
Indian Agency, Pawhuska, Oklahoma, at --- m., on the ----- day of ------
------, 19---, before the Superintendent, for the purpose of taking 
testimony and evidence to be submitted to the Commissioner of Indian 
Affairs for his consideration in determining whether your payments shall 
be subject to the supervision of the Superintendent.
    You are requested to be present at the hearing at the time and place 
designated above. You may introduce at the hearing such testimony and 
evidence as you deem appropriate to show that you are not wasting or 
squandering your payments and that your payments should continue to be 
made to you without supervision for your unrestricted use.
    You are entitled to employ an attorney to assist you in this matter. 
Upon your request the employees of the Osage Agency will furnish you 
with any information you desire concerning your accounts at the Osage 
Agency or any of your transactions handled through the Osage Agency.
    Date.
    Superintendent.

    (b) A hearing shall be held pursuant to the notice, the date of 
which shall be not less than 30 days after the date of the notice. For 
good cause shown to exist the superintendent may continue the hearing to 
a later date.
    (c) A record of the proceedings, consisting of the superintendent's 
preliminary report, the notice and proof of service, all testimony and 
evidence introduced at the hearing, and all briefs and letters filed by 
the Indian or his attorney shall be submitted to the Commissioner, 
together with a recommendation from the superintendent.
    (d) Upon a finding by the Commissioner that the Indian is wasting or 
squandering his income, his allowance funds shall thereafter be subject 
to the supervision of the superintendent. Notice of the decision of the 
Commissioner shall be furnished all interested parties.



Sec. 117.6  Allowance for minors.

    The superintendent may disburse from the surplus funds of an Indian 
under 21 years of age not to exceed $300 quarterly for the support and 
maintenance of the minor. Disbursement may be made to the parent, 
guardian, or other person, school or institution having actual custody 
of the minor, or, when the minor is 18 years of age or over, 
disbursement may be made direct to the minor.



Sec. 117.7  Disbursement or expenditure of surplus funds.

    Except as provided in the regulations in this part, no disbursement 
or expenditure of surplus funds of Indians shall be made without the 
consent of the Indian owner and until authorization has been obtained 
from the Commissioner. Application by an Indian or his legal guardian, 
or if he is a minor, by his parent or legal guardian, for the 
expenditure of surplus funds shall be presented to the Commissioner, 
fully

[[Page 339]]

justified with the appropriate attachments such as court orders, decrees 
or other papers. Such application shall contain full information 
regarding the individual including his cash balance, the sum invested, 
the number of shares in the Osage mineral estate, total income from all 
sources including that paid on behalf of minors, the family status and 
the occupation or industry of the applicant. When request is made for 
payment to the individual without supervision, the record of said 
individual and his ability to handle such funds shall be shown.



Sec. 117.8  Purchase of land.

    Upon written application of an adult Indian, the superintendent may 
disburse not to exceed $10,000 from the surplus funds of such Indian for 
the purchase of land, the title to which has been examined and accepted 
by the special attorney for the Osage Indians or other legal officer 
designated by the Commissioner. In all cases title must be taken by deed 
containing a clause restricting alienation or encumbrance without the 
consent of the Secretary of the Interior or his authorized 
representative.



Sec. 117.9  Construction and repairs.

    Upon written application by an adult Indian, the superintendent may 
disburse not to exceed $1,000 during any one fiscal year from the 
surplus funds of such Indian to make repairs and improvements to 
restricted real property and in addition not to exceed $300 for new 
construction. When such expenditures are being made on property 
producing an income, reimbursement shall be required from such income 
unless otherwise directed by the Commissioner. When an Indian refuses to 
make application for funds to defray the cost of repairs necessary to 
preserve restricted property, the superintendent may, when authorized by 
the Commissioner, expend the surplus funds of the Indian for such 
repairs.



Sec. 117.10  Purchase of automotive equipment.

    The superintendent may disburse from the surplus funds of an adult 
Indian not to exceed $2,000 for the purchase of automotive equipment 
when the Indian agrees in writing to carry property and liability 
insurance on the automotive equipment and to reimburse his surplus funds 
account from allowance funds within 24 months. No disbursement of 
surplus funds for the purchase of automotive equipment shall be made if 
the fulfillment of the reimbursable agreement will endanger the payment 
of taxes, insurance or other obligations, or result in the inability of 
the Indian to meet his current living expenses from allowance funds.



Sec. 117.11  Insurance.

    The superintendent may obtain policies of insurance covering the 
restricted property, real or personal, of minor Indians and pay the 
premiums thereon from the funds of the minors. Upon application by an 
adult Indian the superintendent may procure insurance on any restricted 
property, real or personal, owned by the applicant and pay the necessary 
premiums from his surplus or allowance funds. When authorized by the 
Commissioner, the superintendent may also procure insurance on 
restricted property, real or personal, of any adult Indian who neglects 
or refuses to take out such insurance.



Sec. 117.12  Costs of recording and conveyancing.

    The superintendent may expend the surplus funds of an Indian to make 
direct payment of recording fees and costs, of conveyancing, including 
abstracting costs, which are properly payable by the Indian.



Sec. 117.13  Telephone and telegraph messages.

    The superintendent may expend the surplus funds of an Indian to make 
direct payment for telephone and telegraph messages sent by the agency 
or received at the agency at the instance of the Indian or his guardian 
or attorney.



Sec. 117.14  Miscellaneous expenditure of surplus funds.

    Upon application by an adult Indian the superintendent may disburse 
the surplus funds of such Indian for the following purposes:

[[Page 340]]

    (a) Medical, dental, and hospital expenses for the applicant or a 
member of his family, not to exceed one thousand dollars ($1,000) during 
any one fiscal year.
    (b) Funeral expenses, including the funeral feast, of a deceased 
member of his family, in an amount not to exceed one thousand dollars 
($1,000).
    (c) A tombstone or monument to mark the grave of a deceased member 
of his family in amount not to exceed five hundred dollars ($500).
    (d) Court costs in any judicial proceeding to which the applicant is 
a party.
    (e) Bond premiums, except bail and supersedeas bonds.
    (f) For miscellaneous purposes, not to exceed five hundred dollars 
($500) during any one fiscal year.



Sec. 117.15  Collections from insurance companies.

    Moneys collected from insurance companies for loss or damage to 
restricted real or personal property shall be deposited to the credit of 
the Indian owner as surplus funds. Moneys so deposited to the credit of 
an adult Indian may, upon the written application of the Indian, be 
disbursed by the superintendent for the purpose of repairing or 
replacing the property. Moneys collected from insurance companies for 
loss or damage to unrestricted real or personal property shall be paid 
to the Indian for his unrestricted use.



Sec. 117.16  Reimbursement to surplus funds.

    When expenditures have been made from surplus funds upon the 
condition, and with the written agreement of the Indian, that 
reimbursement or repayment shall be made from future allowance funds, 
the superintendent is authorized to withhold from succeeding quarterly 
payments or other allowance funds such amounts as may be necessary to 
effect reimbursement within a period not exceeding 24 months from date 
of the first expenditure under the given authority.



Sec. 117.17  Inactive surplus funds accounts.

    When the balance of surplus funds to the credit of an adult Indian 
is less than $300 and when there is no likelihood of its increase within 
90 days, the superintendent may disburse the entire balance to the 
Indian owner for his unrestricted use.



Sec. 117.18  Withdrawal and payment of segregated trust funds.

    The withdrawal and payment of segregated trust funds will be made 
only upon application and satisfactory evidence that the withdrawal and 
payment of such funds would be to the best interest of the Indian in 
view of all the circumstances shown to exist. The segregated trust funds 
of an Indian under guardianship or an Indian under 21 years of age shall 
not be released and paid except to a guardian appointed by a proper 
court and after the filing of a bond approved by the court conditioned 
upon the faithful handling of the funds. Applications for the withdrawal 
and payment of segregated trust funds must be made upon the forms 
prescribed by the Secretary for that purpose.



Sec. 117.19  Debts of Indians.

    No indebtedness of Indians will be paid from their funds under the 
control or supervision of the Secretary unless authorized in writing and 
obligated against their accounts by the superintendent or some other 
designated employee except in cases of emergency involving the 
protection or preservation of life or property, which emergency must be 
clearly shown. With this exception, no authorization or obligation 
against the account of any Indian for indebtedness incurred by him shall 
be made by the superintendent unless specifically authorized by the 
regulations in this part.



Sec. 117.20  Purchase orders.

    Purchase orders may be issued by the superintendent for expenditures 
authorized by the regulations in this part or for expenditures 
specifically authorized by the Commissioner. When necessary to prevent 
hardship or suffering, purchase orders may be issued by the 
superintendent against the future income of an Indian in an amount not 
to exceed 80 percent of the anticipated quarterly payment. The payment 
of purchase orders issued against future

[[Page 341]]

income shall be contingent upon the availability of funds.



Sec. 117.21  Fees and expenses of attorneys.

    When payment of an attorney fee for services to an Indian is to be 
made from his surplus funds, the employment of the attorney by the 
Indian must be approved in advance. All fees will be determined on a 
quantum merit basis and paid upon completion of the services. The 
superintendent may approve the employment of an attorney, determine the 
fee, and disburse the surplus funds of the Indian in payment thereof 
when the fee does not exceed $500. Upon application by the Indian and 
upon the presentation of properly authenticated vouchers, the 
superintendent may disburse the surplus funds of the Indian in an amount 
not to exceed $200 in payment of necessary expenses incurred by the 
attorney.



Sec. 117.22  Disbursements to legal guardians.

    Any disbursement authorized to be made to an Indian by the 
regulations of this part may, when the Indian is under guardianship, be 
made by the superintendent to the guardian. All expenditures by a 
guardian of the funds of his ward must be approved in writing by the 
court and the superintendent.



Sec. 117.23  Transactions between guardian and ward.

    Business dealings between the guardian and his ward involving the 
sale or purchase of any property, real or personal, by the guardian to 
or from the ward, or to or from any store, company or organization in 
which the guardian has a direct interest or concern or contrary to the 
policy of the Department and shall not be approved by the superintendent 
without specific authority from the Commissioner.



Sec. 117.24  Compensation for guardians and their attorneys.

    (a) The superintendent may approve compensation for services 
rendered by the guardian of an Indian on an annual basis, the amount of 
the compensation to be determined by application of the following 
schedule to the moneys collected by the guardian:

    First $1,000 or portion thereof, not to exceed 10 percent.
    Second $1,000 or portion thereof, not to exceed 9 percent.
    Third $1,000 or portion thereof, not to exceed 8 percent.
    Fourth $1,000 or portion thereof, not to exceed 7 percent.
    Fifth $1,000 or portion thereof, not to exceed 6 percent.
    Sixth $1,000 or portion thereof, not to exceed 5 percent.
    Seventh $1,000 or portion thereof, not to exceed 4 percent.
    Eighth $1,000 or portion thereof, not to exceed 3 percent.
    Ninth $1,000 or portion thereof, not to exceed 2 percent.
    All above $9,000 not to exceed 1 percent.

    (b) Balance carried forward from previous reports and moneys 
received by a guardian or his attorney as compensation shall be excluded 
in determining the compensation of the guardian or his attorney.
    (c) The attorney for a guardian shall be allowed compensation in an 
amount equal to one-half of the amount allowed the guardian under the 
foregoing schedule except when such attorney is himself the guardian and 
acting as his own attorney, in which event he shall be allowed a fee of 
not to exceed one-fourth of the amount allowed the guardian under the 
foregoing schedule in addition to the fee as guardian.
    (d) The superintendent may in his discretion permit the guardian to 
collect rentals from restricted city or town properties belonging to his 
ward.



Sec. 117.25  Charges for services to Indians.

    The superintendent shall make the following charges for services to 
Indians: Five per cent of all interest and non-liquidating dividends 
received from all types of securities, including stocks, bonds, and 
mortgages held in trust for individual Indians and interest on group 
investments. Such fees shall be deposited in the Treasury of the United 
States to the credit of the fund ``Proceeds of Oil and Gas Leases, 
Royalties, etc., Osage Reservation, Oklahoma''.

[[Page 342]]



Sec. 117.26  Expenses incurred pending qualification of an executor or administrator.

    Pending the qualification of the executor or administrator of the 
estate of a deceased Indian of one-half or more Indian blood who did not 
have a certificate of competency at the time of his death, the 
superintendent may authorize the extension of credit for the following 
purposes, subject to allowance of claims by the executor or 
administrator and approval thereof by the court:
    (a) Funeral expenses, including the cost of a funeral feast, in an 
amount not to exceed $1,000.
    (b) Necessary expenses in hearings before the Osage Agency involving 
the approval or disapproval of last wills and testaments.
    (c) Expenses necessary to preserve restricted property.



Sec. 117.27  Custody of funds pending administration of estates.

    (a) Estates of Indians of less than one-half Indian blood and 
estates of Indians who had certificates of competency. Upon the death of 
an Indian of less than one-half Indian blood or an Indian who had a 
certificate of competency, the superintendent shall pay to the executor 
or administrator of the estate all moneys and securities, other than 
segregated trust funds to the credit of the Indian and all funds which 
accrue pending administration of the estate.
    (b) Estates of Indians of one-half or more Indian blood who did not 
have certificates of competency. Upon the death of an Indian of one-half 
or more Indian blood who did not have a certificate of competency at the 
time of his death, the following classes of funds, less any amount 
hypothecated for the payment of taxes as provided in Sec. 117.2 shall be 
paid by the superintendent to the executor or administrator of the 
estate:
    (1) Allowance funds to the credit of the Indian.
    (2) Any quarterly payment authorized prior to the death of the 
Indian.
    (3) Interest on segregated trust funds and deposits computed to the 
date of death.
    (4) Rentals and income from restricted lands collected after the 
death of the Indian which were due and payable to the Indian prior to 
his death.

Except as provided in Sec. 117.28, the superintendent shall not pay to 
the executor or administrator any surplus funds to the credit of the 
Indian or any funds, other than those listed in paragraphs (b) (1), (2), 
(3) and (4) of this section which accrue pending administration of the 
estate.



Sec. 117.28  Payment of claims against estates.

    The superintendent may disburse to the executor or administrator of 
the estate of a deceased Indian of one-half or more Indian blood who did 
not have a certificate of competency at the time of his death sufficient 
funds out of the estate to pay the following classes of claims approved 
by the court:
    (a) Debts authorized by the superintendent during the lifetime of 
the Indian.
    (b) Expenses incurred pending the qualifications of an executor or 
administrator under authority contained in Sec. 117.26.
    (c) Expenses of administration, including court costs, premium on 
bond of executor or administrator, transcript fees and appraiser fees.
    (d) Living expenses incurred within 90 days immediately preceding 
the date of death of the Indian.
    (e) Allowance for reasonable living expenses each month for 12 
months to a surviving spouse who is entitled to participate in the 
distribution of the estate and who is in need of such support.
    (f) Allowance for reasonable living expenses each month for 12 
months for each child of the decedent under 21 years of age who is 
entitled to participate in the distribution of the estate and who is in 
need of such support.
    (g) Insurance premiums and license fees on restricted property.
    (h) Not to exceed $1,000 for the preservation and upkeep of 
restricted property including the services of a caretaker when 
necessary.
    (i) Debts incurred during the lifetime of the Indian but not 
authorized by the superintendent, if found by the Commissioner to be 
just and payable. The superintendent shall disburse no funds to an 
executor or administrator for the

[[Page 343]]

payment of the foregoing classes of claims unless the executor or 
administrator has no other funds in his hands available for the payment 
of such claims.

[22 FR 10554, Dec. 24, 1957, as amended at 35 FR 10005, June 18, 1970. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 117.29  Sale of improvements.

    The superintendent may approve the sale of improvements on 
restricted Indian lands when such improvements are appraised at not more 
than $500 and when the owner has submitted a written request that the 
sale be made and a statement that the improvements can no longer be used 
by him. The proceeds of all such sales shall be deposited to the credit 
of the Indian as surplus funds. Improvements consisting of buildings, 
etc., located on property within the Osage villages of Pawhuska, Hominy, 
and Grayhorse may, upon approval of the superintendent, be disposed of 
to other Osage Indians. The superintendent may disburse the surplus 
funds of the purchaser to consummate the transaction. Sale of such 
improvements to non-Indian or non-Osage Indians must be approved by the 
Commissioner.



Sec. 117.30  Sale of personal property.

    The superintendent may approve the sale of restricted personal 
property other than livestock. The superintendent may also approve the 
sale of livestock when authorized so to do by special or general 
instructions from the Commissioner. The proceeds from the sale of 
personal property other than livestock shall be deposited to the credit 
of the Indian as surplus funds unless the surplus funds from which said 
property was purchased have been reimbursed from allowance funds, in 
which case the proceeds from such sale shall be disbursed as allowance 
funds. If partial reimbursement only has been made, such portion of the 
proceeds of sale as may be necessary to complete the reimbursable 
agreement shall be deposited to the credit of the Indian as surplus 
funds and the balance, if any, shall be disbursed as allowance funds. 
The proceeds from the sale of livestock shall be deposited in conformity 
with general or specific instructions from the Commissioner.



Sec. 117.31  Removal of restrictions from personal property.

    The superintendent may relinquish title to personal property (other 
than livestock) held by the United States in trust for the Indian when 
to do so will enable the Indian to use the property as part payment in 
the purchase of other personal property and when the remainder of the 
purchase price is to be made from other than surplus funds of the 
Indian.



Sec. 117.32  Funds of Indians of other tribes.

    The funds of restricted non-Osage Indians, both adults and minors, 
residing within the jurisdiction of the Osage Agency, derived from 
sources within the Osage Nation and collected through the Osage Agency, 
may be disbursed by the superintendent, subject to the condition that 
all payments to third persons, including taxes and insurance premiums, 
shall be made upon the written authorization of the individual whose 
funds are involved, if an adult, and upon the written authorization of 
the parent or guardian, if a minor. The funds of restricted non-Osage 
Indians who do not reside within the jurisdiction of the Osage Agency 
shall be transferred to the superintendent of the jurisdiction within 
which the Indian resides, to be disbursed under regulations of the 
receiving agency.



Sec. 117.33  Signature of illiterates.

    An Indian who cannot write shall be required to endorse checks 
payable to his order and sign receipts or other documents by making an 
imprint of the ball of the right thumb (or the left, if he has lost his 
right) after his name. This imprint shall be clear and distinct, showing 
the central whorl and striations and witnessed by two reputable persons 
whose addresses shall be given opposite or following their names. An 
Indian may sign by marking ``X'' before two witnesses where he is unable 
to attach his thumb mark for physical reasons.

[[Page 344]]



Sec. 117.34  Financial status of Indians confidential.

    The financial status of Indians shall be regarded as confidential 
and shall not be disclosed except to the owner of the account or his 
authorized agent, unless authorized in advance by the Commissioner.



Sec. 117.35  Appeals.

    Any decision by the superintendent may be appealed to the area 
director, any decision by the area director may be appealed to the 
Commissioner, and any decision by the Commissioner may be appealed to 
the Secretary.



PART 121--DISTRIBUTION OF JUDGMENT FUNDS AWARDED TO THE OSAGE TRIBE OF INDIANS IN OKLAHOMA--Table of Contents




Sec.
121.1  Definitions.
121.2  Purpose.
121.3  Notice of time limit and place for filing claims.
121.4  Issuance of Orders of Distribution.
121.5  Segregation of per capita shares.
121.6  Distribution of share of deceased allottee.
121.7  Notice of orders to claimants and distributees.
121.8  Appeal from an Order of Distribution.
121.9  Disbursement of distributed shares.
121.10  Miscellaneous provisions.

    Authority: 5 U.S.C. 301; 86 Stat. 1295.

    Source: 38 FR 9163, Apr. 11, 1973, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 121.1  Definitions.

    (a) ``Act'' means the act of October 27, 1972 (86 Stat. 1295).
    (b) ``Allottee'' means a person whose name appears on the roll of 
the Osage Tribe of Indians approved by the Secretary of the Interior on 
April 11, 1908, pursuant to the act of June 28, 1906 (34 Stat. 539).
    (c) ``Regional Solicitor, Tulsa'' means the Regional Solicitor for 
the Tulsa Region of the Office of the Solicitor, U.S. Department of the 
Interior, P.O. Box 3156, Tulsa, Oklahoma 74101.
    (d) ``Distributee'' means one to whom a distribution is ordered 
pursuant to the regulations in this part.
    (e) ``Secretary'' means the Secretary of the Interior or his 
authorized representative.
    (f) ``Superintendent'' means the Superintendent, Osage Agency, 
Bureau of Indian Affairs, Pawhuska, Oklahoma 74056.

[38 FR 9163, Apr. 11, 1973, as amended at 39 FR 41707, Dec. 2, 1974. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 121.2  Purpose.

    The regulations in this part govern the distribution, pursuant to 
the act, of judgment funds awarded to the Osage Tribe of Indians of 
Oklahoma. All funds appropriated by the act of January 8, 1971 (84 Stat. 
1981), in satisfaction of a judgment in the Indian Claims Commission 
against the United States in dockets numbered 105, 106, 107, and 108, 
together with interest thereon, are to be distributed, except the sum of 
$1 million and any funds that revert to the Osage Tribe and except the 
amount allowed for attorney fees and expenses and the cost of 
distribution.



Sec. 121.3  Notice of time limit and place for filing claims.

    The act provides for distribution of funds to allottees and heirs of 
Osage Indian blood of deceased allottees.
    (a) All claims for per capita shares by heirs of Osage Indian blood 
shall be filed with the Superintendent, Osage Agency, Bureau of Indian 
Affairs, Pawhuska, Okla. 74056, not later than April 27, 1974. An 
individual who claims as an heir of Osage Indian blood should make a 
timely filing of a claim which identifies, by name and allotment number, 
each allottee in whose share the individual claims an interest, in order 
that the Superintendent may notify the individual when the order of 
distribution for each such allottee is made. Failure to file a claim in 
this manner may prevent an individual from receiving notice of 
distribution in an instance in which he is an interested party. Failure 
of an heir of Osage Indian blood to file a claim will not necessarily 
prevent the distribution to such heir of the portion of the allottee's 
share due that heir if sufficient evidence to support such distribution 
is available to the Superintendent.

[[Page 345]]

However, no heir who fails to file a claim within the prescribed period 
(on or before April 27, 1974) shall after that period have any right to 
any distribution other than that ordered by the Superintendent based on 
evidence available to the Superintendent during that period. Unclaimed 
shares of distributees are required by statute to revert to the Osage 
Tribe 6 months after determination of their right to share.
    (b) Distribution of a living allottee's own share will be made 
without the filing of a claim.



Sec. 121.4  Issuance of Orders of Distribution.

    The Superintendent, Osage Agency, Bureau of Indian Affairs, 
Pawhuska, Okla. 74056, is authorized to issue the Orders of Distribution 
in accordance with the act and the regulations in this part. The 
Superintendent's decisions thereon shall be final unless a timely appeal 
therefrom is filed in accordance with Sec. 121.8.



Sec. 121.5  Segregation of per capita shares.

    The Superintendent shall segregate one per capita share for each 
allottee for distribution as follows:
    (a) One share for distribution to each such allottee who is living 
on the date the Order for Distribution for that share is issued; and
    (b) One share for distribution to the heir or heirs of Osage Indian 
blood of each allottee who is deceased on the date the Order of 
Distribution for that share is issued, to be divided among such heirs in 
such proportions as shall be computed in accordance with Sec. 121.6.



Sec. 121.6  Distribution of share of deceased allottee.

    The Superintendent shall issue an Order of Distribution which, 
except as otherwise provided in this Sec. 121.6, divides the share of a 
deceased allottee leaving heirs of Osage Indian blood in such 
proportions as the allottee's heirs of Osage Indian blood would have 
shared in the estate of the allottee if the allottee had died intestate 
leaving one or more individuals of Osage Indian blood as the allottee's 
only heirs at law under the Oklahoma law of intestate succession. In 
preparing such an order, the Superintendent shall accept as accurate any 
unambiguous determination of heirship, of an allottee or of the heir of 
an allottee, either made by the Secretary prior to April 18, 1912, or 
contained in a final order of an Oklahoma court after that date. When no 
such unambiguous determination is available, such order shall be based 
upon all other pertinent heirship evidence available to the 
Superintendent. When one or more of the immediate heirs of Osage Indian 
blood of an allottee is deceased, the heirs of Osage Indian blood of 
such deceased heirs shall be ascertained, successively among all remote 
heirs of Osage Indian blood of the allottee, in the sequence in which 
the deaths of the heirs occurred until the identities of all living 
remote heirs of Osage Indian blood, and the respective proportions of 
the share to which they are entitled, have been ascertained. To qualify 
for distribution as an heir, it must be established that the distributee 
and each heir of the allottee through whom the claim is traced had Osage 
Indian blood acquired either from an allottee or from a common ancestor 
of an allottee and the distributee.



Sec. 121.7  Notice of orders to claimants and distributees.

    Notice of an Order of Distribution shall be mailed, on the date of 
issuance of such order, to the allottee whose share is being distributed 
if living, but if not living, to (a) each distributee named therein, (b) 
each claimant whose claim asserts entitlement to a portion of the 
allottee's share, and (c) each person who had not filed a claim on the 
date of issuance of such order but is in that order determined by the 
Superintendent to be ineligible to receive a portion of the allottee's 
share. Such notice shall be accompanied by a copy of the Order of 
Distribution and shall contain instructions for filing an appeal in 
accordance with paragraphs (a) or (b) and (c) of Sec. 121.8.



Sec. 121.8  Appeal from an Order of Distribution.

    (a) An Order of Distribution of the share of an allottee living on 
the date the order is issued shall become final 3 days from the date 
thereof unless an

[[Page 346]]

appeal is filed by an interested party with the Superintendent before 
the expiration of those 3 days.
    (b) An Order of Distribution of the share of an allottee who is 
deceased on the date the order is issued shall become final 30 days from 
the date thereof unless an appeal is filed by an interested party with 
the Superintendent before the expiration of those 30 days.
    (c) Each appeal must contain a statement of the reasons that the 
appellant considers the Order of Distribution to be subject to error, 
and each appellant must, at the time of filing his appeal, mail a copy 
thereof to each person named as a distributee in the Order of 
Distribution. The Superintendent shall furnish a copy of the appeal to 
each other interested party to whom a copy of the Order of Distribution 
was mailed.
    (d) The Regional Solicitor, Tulsa, is authorized to determine 
appeals from Orders of Distribution in accordance with the act and the 
regulations in this part. The Regional Solicitor's decision thereon 
shall be final on the date of the issuance of his decision and shall 
constitute the final action of the Department of the Interior in 
connection with such appeal.
    (e) The Superintendent may, in his discretion for good cause shown, 
order partial distribution of any undisputed segment of any share for 
which an appeal is pending when such distribution will not be affected 
by the appeal decision on the disputed portion of the share.

[38 FR 9163, Apr. 11, 1973, as amended at 39 FR 41707, Dec. 2, 1974. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 121.9  Disbursement of distributed shares.

    When an Order of Distribution, either as issued or as amended by 
decision on appeal, has become final, the Superintendent shall either 
disburse to distributees the amounts distributed to them or deposit such 
amounts to appropriate accounts, in accordance with the following 
guidelines:
    (a) When the amount distributed to any heir is less than $20, the 
amount shall be segregated in a special account for that heir until all 
Orders of Distribution have become final, at which time the sum of all 
amounts thus segregated to such account shall be disbursed or 
redeposited as provided in paragraphs (b), (c), (d) and (e) of this 
section, if such sum equals or exceeds $20. When such sum is less than 
$20, such sum in each of such accounts, and all unclaimed shares, and 
all amounts awarded to distributees which remain unclaimed for 6 months 
after the Order of Distribution has become final, shall, subsequent to 
April 27, 1974, be deposited to the account of the Osage Tribe as sums 
which have reverted to it.
    (b) Living allottees having certificates of competency shall have 
their distributions disbursed directly to them.
    (c) Living allottees not having certificates of competency shall 
have their distributions deposited to their accounts, subject to 
withdrawal by them at their request.
    (d) Heirs of Osage Indian blood who are at least 18 years of age and 
are not under guardianship shall have their distributions disbursed 
directly to them.
    (e) Heirs of Osage Indian blood who are under guardianship shall 
have their distributions deposited to their accounts, subject to 
disbursement to the distributees or their guardians or other persons on 
their behalf on such terms and conditions as the Superintendent shall 
consider to be in their best interests during their legal disability, 
after which the remaining portion shall be disbursed to such 
distributees.
    (f) Heirs of Osage Indian blood who are under 18 years of age shall 
have their distributions deposited to their accounts, with the funds 
represented by such deposits invested at favorable rates of return for 
prudent investments, to be disbursed with earnings thereon only when the 
respective distributees for whom they are held shall attain the age of 
18 years.



Sec. 121.10  Miscellaneous provisions.

    (a) Powers of attorney, assignments, and orders given to another 
person by anyone entitled to share in the payment will not be 
recognized.
    (b) None of the funds distributed are subject to Federal or State 
income taxes.

[[Page 347]]

    (c) Claimants are hereby notified that criminal penalties are 
provided by statute (18 U.S.C. 1001) for knowingly filing fraudulent 
information.



PART 122--MANAGEMENT OF OSAGE JUDGMENT FUNDS FOR EDUCATION--Table of Contents




Sec.
122.1  Purpose and scope.
122.2  Definitions.
122.3  Information collection.
122.4  Establishment of the Osage Tribal Education Committee.
122.5  Selection/nomination process for committee members.
122.6  Duties of the Osage Tribal Education Committee.
122.7  Budget.
122.8  Administrative costs for management of the fund.
122.9  Annual report.
122.10  Appeal.
122.11  Applicability.

    Authority: 86 Stat. 1295, 98 Stat. 3103 (25 U.S.C. 331 note).

    Source: 54 FR 34155, Aug. 18, 1989, unless otherwise noted.



Sec. 122.1  Purpose and scope.

    (a) The purpose of this part is to set forth procedures and 
guidelines to govern the use of authorized funds in education programs 
for the benefit of Osage Tribal members, along with application 
requirements and procedures used by those eligible persons.
    (b) The Osage Tribe by act of Congress, October 27, 1972 (25 U.S.C. 
883, 86 Stat. 12950, as amended by Pub. L. 98-605) on October 30, 1984, 
provides that $1 million, together with other funds which revert to the 
Osage Tribe, may be advanced, expended, invested, or reinvested for the 
purpose of financing an education program of benefit to the Osage Tribe 
of Indians of Oklahoma, with said program to be administered as 
authorized by the Secretary of the Interior.



Sec. 122.2  Definitions.

    Act means Osage Tribe by Act of Congress, October 27, 1972 (25 
U.S.C. 883, 86 Stat. 1295), as amended by Pub. L. 98-605.
    Allottee means a person whose name appears on the roll of Osage 
Tribe of Indians approved by the Secretary of the Interior on April 11, 
1908, pursuant to the Act of June 28, 1906 (34 Stat. 539).
    Assistant Secretary means the Assistant Secretary--Indian Affairs.
    Osage Tribal Education Committee means the committee selected to 
administer the provisions of this part as specified by Sec. 122.6.
    Reverted funds means the unpaid portions of the per capita 
distribution fund, as provided by the Act, which were not distributed 
because the funds were:
    (1) Unclaimed within the period specified by the Act; or
    (2) For an amount totaling less than $20 due an individual from one 
or more shares of one or more Osage allottees.
    Secretary means the Secretary of the Department of the Interior or 
his/her authorized representative.



Sec. 122.3  Information collection.

    (a) The information collection requirements contained in Secs. 122.6 
and 122.9 have been approved by the Office of Management and Budget 
under U.S.C. 3501 et seq. and assigned clearance numbers 1076-0098 and 
1076-0106, respectively. The information collected in Sec. 122.6 is used 
to determine the eligibility of Osage Indian student applicants for 
educational assistance grants. The information collected in Sec. 122.9 
provides summary review for program evaluation and program planning. 
Response to the information collections is required to obtain a benefit 
in accordance with 25 U.S.C. 883.
    (b) Public reporting burden for this information collection is 
estimated to average 30 minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the collection 
of information. Send comments regarding this burden estimate or any 
other aspect of this collection of information, including suggestions 
for reducing the burden, to the Bureau of Indian Affairs, Information 
Collection Clearance Officer, Room 337 SIB, 18th & C Streets, NW., 
Washington, DC 20240; and the Office of Management and Budget, Paperwork 
Reduction Project (1076-0106), Washington DC 20503.

[[Page 348]]



Sec. 122.4  Establishment of the Osage Tribal Education Committee.

    (a) The Osage Tribe, to maintain its right of Tribal autonomy, 
shall, at the direction of the Bureau of Indian Affairs, establish the 
Osage Tribal Education Committee (OTEC) to fulfill the responsibilities 
and provisions of this part as set out in Sec. 122.6.
    (b) This committee shall be composed of seven (7) members. Five (5) 
of the members shall be of Osage blood or descendents of Osage, and two 
(2) from the education staff of the Bureau of Indian Affairs.
    (1) Of the five Osage members, at least three shall be legal 
residents and/or live within a 20-mile radius of one of the three Osage 
Indian villages. Of these, at least one member shall reside within the 
specified radius of the Pawhuska Indian village; at least one member 
shall reside within the specified radius of the Hominy Indian village; 
and at least one member shall reside within the specified radius of the 
Greyhorse Indian village.
    (2) The two remaining Osage committee members will be members at 
large.



Sec. 122.5  Selection/nomination process for committee members.

    (a) Selection of the five (5) OTEC members shall be made by the 
Assistant Secretary in accordance with the following:
    (1) Any adult person of Osage Indian blood who is an allottee or a 
descendant of an allottee is eligible to serve on the Osage Tribal 
Education Committee.
    (2) Nominees for committee membership shall include a brief 
statement of interest and qualifications for serving on the committee.
    (b) Nominations may be made by any Osage organization, including the 
Osage village communities of Greyhorse, Hominy and Pawhuska, by 
requesting its candidates to follow procedures outlined in paragraph 
(a)(2) of this section.
    (c) Nominations shall be delivered by registered mail to the 
following address: Osage Tribal Education Committee, c/o Area Education 
Programs Administrator, Bureau of Indian Affairs, Muskogee Area Office--
Room 152, 5th & W, Okmulgee, Muskogee, Oklahoma 74401.
    (d) A Nominee Selection Committee composed of OTEC members so 
designated by the Assistant Secretary will review all nominations. Upon 
completion of this process, the Nominee Selection Committee will forward 
its recommendations for final consideration to the Assistant Secretary.
    (e) Each member shall be sworn in for a four year term. At the 
discretion of the Assistant Secretary, members may succeed themselves 
with a recommendation for reappointment from the Nominee Selection 
Committee.
    (f) The Assistant Secretary may, until a vacancy is filled, appoint 
an individual to serve for a temporary period not to exceed 120 days.



Sec. 122.6  Duties of the Osage Tribal Education Committee.

    (a) For the purpose of providing financial assistance to eligible 
Osage applicants for educational assistance, the Osage Tribal Education 
Committee shall maintain an office and retain all official records at 
the Bureau of Indian Affairs offices located at the Federal Building, 
Muskogee, Oklahoma.
    (b) The Osage Tribal Education Committee shall be responsible for 
implementing an overall plan of operation consistent with the policy of 
Indian self-determination which incorporates a systematic sequential 
process whereby all student applications for financial aid are rated and 
ranked simultaneously to enable a fair distribution of available funds.
    (1) All applicants shall be rated by a point system appropriate to 
applications for education assistance. After all applications are rated, 
the Osage Tribal Education Committee will rank the applications in a 
descending order for award purposes. No awards shall be made until all 
applications are rated against the point system.
    (2) Monetary awards shall be for fixed amounts as determined by the 
Osage Tribal Education Committee. The fixed amounts shall be itemized in 
the committee's annual budgetary request, and the monetary award amounts 
shall be consistent with the fixed amounts itemized in the approved 
budget.

[[Page 349]]

    (3) Payment of the monetary awards shall be made directly to the 
student, with half of the amount payable on or before September 15 and 
the second half payable on or before February 15, provided the student 
is successfully enrolled in an accredited institution of higher 
education and meeting the institution's requirement for passing work.
    (4) No student will be funded beyond 10 semesters or five academic 
years, not to include summer sessions, nor shall any student with a 
baccalaureate degree be funded for an additional undergraduate degree.



Sec. 122.7  Budget.

    (a) By August 1 of each year, the Osage Tribal Education Committee 
will submit a proposed budget to the Assistant Secretary or to his/her 
designated representative for formal approval. Unless the Assistant 
Secretary or his/her designated representative informs the committee in 
writing of budget restrictions by September 1, the proposed budget is 
considered to be accepted.
    (b) The investment principal, composed of the one million dollars 
appropriated by the Act and reverted funds, must be invested in a 
federally insured banking or savings institution or invested in 
obligations of the Federal Government. There are no provisions in this 
part which shall limit the right of the Osage Tribal Education Committee 
to withdraw interest earned from the investment principal; however, 
expenditures shall be made against only the interest generated from 
investment principal and reverted funds.
    (c) All funds deposited will accumulate interest at a rate not less 
than that generally available for similar funds deposited at the same 
banking or savings institution or invested in the same obligations of 
the United States Government for the same period of time.



Sec. 122.8  Administrative costs for management of the fund.

    Funds available for expenditures may be used by the Osage Tribal 
Education Committee in the performance of its duties and 
responsibilities. Recordkeeping is required and proposed expenditures 
are to be attached with the August 1 proposed annual budget to the 
Assistant Secretary or his/her designated representative.



Sec. 122.9  Annual report.

    The Osage Tribal Education Committee shall submit an annual report 
on OMB approved Form 1076-0106, Higher Education Annual Report, to the 
Assistant Secretary or his/her designated representative on or before 
November 1, for the preceding 12 month period.



Sec. 122.10  Appeal.

    The procedure for appealing any decision regarding the awarding of 
funds under this part shall be made in accordance with 25 CFR part 2, 
Appeals from Administrative Action.



Sec. 122.11  Applicability.

    These regulations shall cease upon determination of the legal and 
appropriate body to administer the fund and upon the establishment of 
succeeding regulations.



PART 123--ALASKA NATIVE FUND--Table of Contents




Sec.
123.1  Scope and purpose.
123.2  Definitions.
123.3  Payment of shares of the Fund in the absence of recognition of an 
          assignment.
123.4  Recognition of assignments.
123.5  Register of recognized assignments.
123.6  Sub-assignment.
123.7  Multiple assignments.
123.8  Disclaimer.
123.9  Cancellation of assignments.
123.10  Decision; finality.

    Authority: Secs. 25 and 31, Pub. L. 92-203, 85 Stat. 715, as amended 
by Pub. L. 95-178, 91 Stat. 1370 (43 U.S.C. 1624, 1628).

    Source: 43 FR 20003, May 10, 1978, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 123.1  Scope and purpose.

    (a) The regulations in this part shall apply to all future 
distributions of the Alaska Native Fund pursuant to section 6 of the 
Alaska Native Claims Settlement Act (43 U.S.C. 1605), except money 
reserved for the payment of attorney and other fees as provided in 
section 20 of the Act (43 U.S.C. 1619).

[[Page 350]]

    (b) These regulations are not intended (1) to alter the distribution 
formula of section 6 of the Act (43 U.S.C. 1605), or the redistribution 
formulas of section 7(j) or 7(m) of the Act (43 U.S.C. 1606(j), (m)); or 
(2) to require the distribution of money in the Fund when not authorized 
by the Act, or when the money has been set aside in an escrow or 
reserved account pursuant to an order of a court of competent 
jurisdiction.
    (c) The regulations in this part are intended to implement section 
31 of the Act (43 U.S.C. 1628) which authorizes the Secretary to 
recognize validly executed assignments of a Regional Corporation's 
rights to receive payments from the Fund.



Sec. 123.2  Definitions.

    As used in the regulations in this part:
    Act means the Alaska Native claims Settlement Act, as amended (Pub. 
L. 92-203, 85 Stat. 715, 43 U.S.C. 1601 et seq.; Pub. L. 95-178, 91 
Stat. 1370).
    Assignee means the person or entity receiving from a Regional 
Corporation an assignment of certain of the corporation's future 
interests in the Fund.
    Assignor means a Regional Corporation which has assigned to another 
certain of its future interests in the Fund.
    Assistant Secretary means the Assistant Secretary for Indian 
Affairs, U.S. Department of the Interior, or his authorized 
representative.
    Fund means the Alaska Native Fund created by section 6 of the Act 
(43 U.S.C. 1605).
    Payee means the recipient of a distribution from the Fund. The payee 
must be a financial corporation such as a bank, credit union, or savings 
and loan association which is insured under the Federal Deposit 
Insurance Corporation, the National Credit Union Administration, or the 
Federal Savings and Loan Insurance Corporation, respectively. The payee 
must be capable of receiving payment through the U.S. Treasury's 
Financial Communication System.
    Regional Corporation means an Alaska Native Regional Corporation 
established under the laws of the State of Alaska in accordance with the 
provisions of the Act.
    Secretary means the Secretary of the Interior.



Sec. 123.3  Payment of shares of the Fund in the absence of recognition of an assignment.

    (a) All money in the Fund shall be distributed by the Assistant 
Secretary at the end of each three months of the fiscal year among the 
Regional Corporations on the basis of the relative numbers of Natives 
enrolled in each region.
    (b) Except as otherwise authorized in the regulations in this part, 
a Regional Corporation's quarterly share of the Fund shall be made 
payable to the Regional Corporation through a payee designated by the 
Regional Corporation.
    (c) A Regional Corporation may designate a payee of its quarterly 
share at any time, and may change that designation at any time, 
Provided, That the Assistant Secretary receive written notification of 
any such designation or change in designation at least ten (10) days 
before the quarterly distribution date. Any such designation must 
include the name and address of the payee and the identifying American 
Banking Association number.



Sec. 123.4  Recognition of assignments.

    (a) Upon application of a Regional Corporation, as provided in 
paragraph (c) of this section, the Assistant Secretary shall recognize a 
validly executed assignment of that portion of a furture interest in the 
Fund not subject to the redistribution provisions of sections 7(j) and 
7(m) of the Act. A future interest which is not subject to those 
redistribution provisions shall be referred to in this section as an 
``assignable future interest'' or the ``assignable portion of a 
quarterly distribution.''
    (b) Such assignments shall only be recognized to the extent that the 
Regional Corporation involved is not required to distribute funds 
pursuant to subsection (j) or (m) of section 7 of the Act.
    (c) Upon recognition of such an assignment, the Assistant Secretary 
shall distribute the amount assigned to the payee designated by the 
parties to the assignment, and shall continue to

[[Page 351]]

pay the amount assigned to that payee, except as provided by 
Secs. 123.6(b) and 123.9.
    (d) A Regional Corporation's application for recognition of an 
assignment of a future interest in the Fund:
    (1) Shall be addressed to the Assistant Secretary for Indian 
Affairs, Attn.: Assistant Director, Financial Management, Bureau of 
Indian Affairs, U.S. Department of the Interior, Washington, D.C. 20240;
    (2) Shall specifically request that the Assistant Secretary 
recognize an assignment of a fixed sum to which the Regional Corporation 
may be entitled from the Fund;
    (3) Shall designate a payee of the amount assigned;
    (4) Shall be accompanied by a duly-adopted resolution of the Board 
of Directors of the Regional Corporation, which resolution authorizes 
the making of the assignment and the application for recognition of that 
assignment by the Secretary of the Interior, or evidence of stockholder 
approval when required by Alaska state law; and
    (5) Shall be accompanied by one executed copy and three facsimile 
copies of a validly executed assignment of all or a portion of the 
Regional Corporation's assignable future interest in the Fund, which 
assignment shall contain the following language:

    (i) The parties to this assignment agree to seek recognition of this 
assignment by the Secretary of the Interior, as authorized by section 4 
of the Act of November 15, 1977, Pub. L. 95-178 (91 Stat. 1369, 1370).
    (ii) It is understood by the parties to this assignment that in the 
event the Secretary of the Interior recognizes this assignment, the 
United States reserves the right to assert against the assignee and 
successors of the assignee, any setoff or counterclaim which the United 
States has, or may have, against the Assignor Corporation.

    (e)(1) An assignment may provide that:
    (i) All of the assignable portion of each quarterly distribution be 
paid to the payee designated in the application for recognition of 
assignment;
    (ii) A fraction of the assignable portion of each quarterly 
distribution be paid to the designated payee; or that
    (iii) The assignable portion of each quarterly distribution, up to a 
stated maximum amount, be paid to the designated payee.
    (2) Other formulas for assignment of assignable future interests may 
be recognized if:
    (i) Such a formula clearly identifies what portion of each affected 
quarterly distribution is to be paid to the designated payee, and
    (ii) The formula will permit the Assistant Secretary to set 
priorities in accordance with Sec. 123.7 when subsequent application is 
made for recognition of additional assignments.



Sec. 123.5  Register of recognized assignments.

    The Assistant Secretary shall maintain and make available for 
inspection by the public a register of requests for recognition of 
assignments and assignments recognized by him pursuant to the 
regulations in this part. Such register shall list the name of the 
Regional Corporation; the name and address of the assignee; the name, 
address, American Banking Association number, and account number for 
deposit of the payee of the amount assigned; the amount assigned; the 
amount paid at each quarterly distribution under the terms of the 
assignment; and the date of the Assistant Secretary's recognition.



Sec. 123.6  Sub-assignment.

    (a) Nothing in the regulations in this part shall prohibit an 
assignee from making a valid sub-assignment of a Regional Corporation's 
rights to receive payments from the Fund. However, the Assistant 
Secretary has no authority and shall not recognize any sub-assignment by 
the assignee of any future interest of a Regional Corporation in the 
Fund.
    (b) The Assistant Secretary may accept a re-designation of a new 
payee of an assignment recognized by the Assistant Secretary, upon 
application of an authorized official of the assignee in accordance with 
Sec. 123.3(c).



Sec. 123.7  Multiple assignments.

    (a) The Assistant Secretary may recognize more than one assignment 
of a Regional Corporation's future interests

[[Page 352]]

in the Fund. A second or later assignment of a Regional Corporation's 
future interest in the Fund, when recognized in accordance with 
Sec. 123.4, shall be recognized subject to assignments already 
recognized.
    (b) The Assistant Secretary shall not recognize an assignment of a 
Regional Corporation's future interest in the Fund if he has more than 
one outstanding application from that Corporation seeking recognition of 
such future interests. If more than one application from a Regional 
Corporation is pending before the Assistant Secretary, he shall notify 
both the Regional Corporation and the assignees of the assignments 
sought to be recognized, and seek a written consensus on the priorities 
to be established. In the Absence of such a consensus, the Assistant 
Secretary shall not recognize any such assignment.



Sec. 123.8  Disclaimer.

    The Assistant Secretary does not guarantee by any action taken 
pursuant to the regulations in this part that the entitlement of a 
Regional Corporation to any quarterly distribution of the Fund shall be 
of any given amount, or that the cumulative entitlement of that 
Corporation will reach any given sum.



Sec. 123.9  Cancellation of assignments.

    (a) The Assistant Secretary shall cancel his recognition of an 
assignment upon joint application of the assignee and Regional 
Corporation involved. Such application must include a resolution of the 
Board of Directors of the Regional Corporation, and a validly executed 
agreement between the Regional Corporation and assignee cancelling the 
assignment and authorizing the Secretary of the Interior to cancel his 
recognition of the assignment.
    (b) Such cancellation of recognition of an assignment shall be 
reflected in the register compiled by the Assistant Secretary as 
provided in Sec. 123.5.



Sec. 123.10  Decision; finality.

    (a) A decision of the Assistant Secretary not to recognize an 
assignment of a future interest in the Fund shall inform the Regional 
Corporation what defects, if any, remain in its application for 
recognition, and shall provide the corporation with an opportunity to 
cure those defects.
    (b) A decision of the Assistant Secretary to recognize an assignment 
of a Regional Corporation's future interest in the Fund shall not be 
subject to reconsideration or administrative appeal, and shall therefore 
be final for the Department.



PART 124--PROCEDURES FOR DEPOSITING FUNDS TO THE CREDIT OF 14X6140-DEPOSITS OF PROCEEDS OF LANDS WITHDRAWN FOR NATIVE SELECTION, BIA--Table of Contents




Sec.
124.1  Purpose.
124.2  Proceeds received by Federal agencies.
124.3  Proceeds received by the State of Alaska.

    Authority: 89 Stat. 1145.

    Source: 42 FR 32229, June 24, 1977, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 124.1  Purpose.

    The purpose of the regulations in this part is to describe the 
procedures to be used by all Departments and Agencies of the Federal 
Government and the State of Alaska for the deposit of proceeds derived 
from contracts, leases, permits, and rights-of-way or easements 
pertaining to affected lands or resources in affected lands withdrawn 
for Native selection pursuant to the Alaska Native Claims Settlement 
Act.



Sec. 124.2   Proceeds received by Federal agencies.

    (a) Direct deposits. (1) Agency will prepare Deposit Ticket (SF 
215), using Agency Accounting Station Code 14-20-0650.
    (2) In Block (6) Fund Symbol 14X6140 will be inserted as well as the 
following:

Credit to Bureau of Indian Affairs, Branch of Finance and Accounting, 
P.O. Box 127, Albuquerque, New Mexico 87103.
    (3) Memorandum copy and confirmed copy of Deposit Ticket will be 
mailed to above address, immediately upon completion and confirmation.
    (4) Agency will provide information (lease, contract or other 
identification) which will permit depositing agency to

[[Page 353]]

identify deposit with particular plot of land at time distribution of 
the funds is to be made. This information can be shown in Block (6) if 
space permits, or on an attached listing.
    (b) Periodic deposits. (1) In some circumstances, collection from 
Withdrawn Lands will be in such small amounts and such frequency as to 
be administratively burdensome to make individual deposits to the fund, 
or collections may be mixed with collections to be credited to other 
funds. In such instances depositing agencies may initially deposit the 
collections to their own suspense accounts. Such deposits will then be 
transferred to Fund 14X6140 no less frequently than monthly. The ``Pay 
to'' side of the SF 1081 will be completed as follows:

Department, Interior.
Bureau, Indian Affairs.
Agency Station Symbol, 14-20-0650.
Address, Albuquerque, NM 87103.
Appropriation or Fund Symbol, 14X6140.

and will be supported by sufficient detail to permit future 
identification by depositing agency. An advance copy of the SF 1081, 
with supporting documentation will be forwarded to the BIA at 
Albuquerque immediately.
    (2) Agencies not using the SF 1081 procedures will issue a check 
made payable to the Treasurer of the United States, and forward it to:

Juneau Area Office, Bureau of Indian Affairs, P.O. Box 8000--B, Juneau, 
Alaska 99802.

accompanied by a listing in sufficient detail to permit the collecting 
agency to identify the collections with each parcel of land at the time 
distribution of the funds is to be made.



Sec. 124.3  Proceeds received by the State of Alaska.

    The State agency responsible for making collections will deposit the 
proceeds to the credit of the State of Alaska. A check will then be 
issued, payable to the Treasurer of the United States, and will be 
forwarded to the Juneau Area Office, Bureau of Indian Affairs, 
accompanied by a detailed listing providing information which will 
permit identification of the funds with each particular parcel of land 
at the time distribution of the funds is to be made. The Juneau Area 
Office will deposit all such receipts to the credit of Fund Symbol 
14X6140, forwarding the memorandum copy to the Branch of Finance and 
Accounting immediately, together with a copy of the detail provided by 
the State of Alaska.



PART 125--PAYMENT OF SIOUX BENEFITS--Table of Contents




Sec.
125.1  Scope.
125.2  Purpose.
125.3  Definitions.
125.4  Eligibility.
125.5  Application procedure.
125.6  Administration.
125.7  Information collection.

    Authority: Act of March 2, 1889, c. 405, sec. 17, 25 Stat. 888, 895; 
Act of June 10, 1896, c. 398, 29 Stat. 321, 334; Act of May 21, 1928, c. 
662, 45 Stat. 984; Act of June 18, 1934, c. 576, Sec. 14, 48 Stat. 987, 
25 U.S.C. 474.

    Source: 46 FR 36136, July 14, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 125.1  Scope.

    The regulations in this part govern the payment of ``Sioux 
benefits'' to allotted Sioux Indians under the Act of March 2, 1889, c. 
405, Sec. 17, 25 Stat. 888, 895; the Act of June 10, 1896, c. 398, 29 
Stat. 321, 334; and the Act of May 21, 1928, c. 662, 45 Stat. 984; and 
to unallotted Sioux Indians on the Cheyenne River Indian Reservation 
under the Act of June 18, 1934, c. 576, Sec. 14, 48 Stat. 987, 25 U.S.C. 
474.



Sec. 125.2  Purpose.

    The purpose of these regulations is to implement the provisions of 
federal statutes which provide for the payment of ``Sioux benefits'' to 
Sioux Indians by setting forth the criteria governing eligibility for 
and entitlement to ``Sioux benefits'' and by establishing procedures 
governing application for and payment of ``Sioux benefits.''



Sec. 125.3  Definitions.

    As used in this part, the term--
    (a) ``Area Director'' means the Area Director, Aberdeen Area Office, 
BIA, or his/her delegate.
    (b) ``Bureau'' or ``BIA'' means the Bureau of Indian Affairs, 
Department of the Interior.

[[Page 354]]

    (c) ``Commissioner'' means the Commissioner of Indian Affairs, BIA, 
or his/her delegate.
    (d) ``Sioux benefits'' means the allotment of stock and farming 
equipment plus $50.00 cash as provided for by the Act of March 2, 1889, 
c. 405, Sec. 17, 25 Stat. 888, 895, or its commuted cash value as 
provided in the Act of June 10, 1896, c. 398, 29 Stat. 321, 334.
    (e) ``Sioux Indian'' means a member of any of the bands or tribes 
comprising the Sioux Nation of Indians to which the Act of March 2, 
1889, c. 405, 25 Stat. 888, applied.
    (f) ``Single person'' includes all unmarried persons (other than an 
unmarried person under the age of eighteen years) and any person who is 
legally separated, divorced, or widowed.
    (g) ``Head of a family'' means only:
    (1) A married person who meets the requirements of Sec. 125.4(c)(1) 
or (2) (if living with his/her spouse) or Sec. 125.4(c)(3) (if not 
living with his/her spouse), and
    (2) An unmarried person under the age of eighteen years who meets 
the requirements of Sec. 125.4(c)(3).
    (h) For the purpose of determining family support under 
Secs. 125.4(c)(2) and 125.4(c)(3), ``family'' means two or more persons 
(including the applicant) related by blood, through marriage, or by 
adoption to the applicant and who live together in the same household 
and are dependent upon the applicant for all or part of their support.



Sec. 125.4  Eligibility.

    (a) Allotted Sioux Indians. The eligibility of allotted Sioux 
Indians for Sioux benefits is governed by the Act of March 2, 1889, c. 
405, Sec. 17, 25 Stat. 888, 895; the Act of June 10, 1896, c. 398, 29 
Stat. 321, 334; and the Act of May 21, 1928, c. 662, 45 Stat. 984. The 
Act of June 18, 1934, c. 576 Sec. 14, 48 Stat. 987, 25 U.S.C. 474, is 
inapplicable to any Sioux Indian to whom an allotment of land has been 
made under the provisions of the Act of May 29, 1908, c. 216, Sec. 19, 
35 Stat. 444, 451, or any prior federal statute. Under the applicable 
statutes, an allotted Sioux Indian is eligible for Sioux benefits if--
    (1) He/she received a valid allotment of land under the provisions 
of the Act of May 29, 1908, c. 216, Sec. 19, 35 Stat. 444, 451, or any 
prior Federal statute (regardless of whether such allotment is still 
held by the applicant);
    (2) He/she is either a single person over the age of eighteen (18) 
years or a head of a family (as provided in Sec. 125.4(c));
    (3) He/she has duly made application for Sioux benefits, and such 
application has been approved during his/her lifetime (as provided in 
Sec. 125.5); and
    (4) He/she has not previously been paid Sioux benefits in his/her 
own right (as provided in Sec. 125.4(d)).
    (b) Unallotted Sioux Indians. The Act of June 18, 1934, c. 576, 
Sec. 14, 48 Stat. 987, 25 U.S.C. 474, applies only to Sioux Indians who, 
but for the provisions of section 1 of that Act, 25 U.S.C. 461, would 
have been eligible for an allotment of land under the provisions of the 
Act of May 29, 1908, c. 216, Sec. 19, 35 Stat. 444, 451, or any prior 
Federal statute, and have not, in fact, been allotted lands under the 
provisions of such Federal statutes. That Act has current application 
only to unallotted members of the Cheyenne River Sioux Tribe because of 
the proviso that the payment of Sioux benefits under that Act would 
continue only until such time as the lands available for allotment on 
each reservation as of June 18, 1934, would have been exhausted by the 
allotment of eighty (80) acres of land to each person receiving Sioux 
benefits under that Act. Under this statute a member of the Cheyenne 
River Sioux Tribe is eligible for Sioux benefits if--
    (1) He/she would be eligible, but for the provisions of the Act of 
June 18, 1934, c. 576, Sec. 1, 48 Stat. 984, 25 U.S.C. 461, for an 
allotment of land under the provisions of the Act of May 29, 1908, c. 
216, Sec. 19, 35 Stat. 444, 451, or any prior Federal statute, and has 
not been allotted lands under the provisions of such Federal statutes;
    (2) He/she is either a single person over the age of eighteen (18) 
years or a head of a family (as provided in Sec. 125.4(c));
    (3) He/she has duly made application for Sioux benefits and such 
application has been approved during his/her lifetime (as provided in 
Sec. 125.5);
    (4) He/she has not previously been paid Sioux benefits in his/her 
own right (as provided in Sec. 125.4(d)); and

[[Page 355]]

    (5) The hypothetical allotment of 80 acres of tribal land to the 
applicant would not exhaust the lands available for allotment on the 
Cheyenne River Indian Reservation as of June 18, 1934, considering the 
allowance of similar hypothetical allotments to other such Indians 
previously receiving Sioux benefits under such Act.
    (c) Head of a family. The following criteria apply in determining 
head of family status under both Secs. 125.4(a) and 125.4(b).
    (1) Except as provided in Sec. 125.4(c)(2), when an applicant for 
Sioux benefits is married and living with his/her spouse, the applicant 
will be deemed to be a head of a family if designated as such by both 
the applicant and his/her spouse.
    (2) When an applicant for Sioux benefits is married and living with 
his/her spouse, but the applicant's spouse (i) does not concur in the 
applicant's designation as head of the family, or (ii) has previously 
received Sioux benefits as head of the family which includes the 
applicant, the applicant will be deemed to be a head of a family if the 
economic contribution to the support of the family attributable to the 
applicant exceeds the contribution by his/her spouse for the eighteen 
(18) months period immediately preceding the date of the application for 
Sioux benefits.
    (3) When an applicant for Sioux benefits is (i) unmarried, or (ii) 
married, but not living with his/her spouse, the applicant will be 
deemed to be a head of a family if the primary source of economic 
contribution to the support of the family is attributable to the 
applicant. Welfare or support payment made to the applicant by the 
government or his/her spouse shall be deemed attributable to the 
applicant.
    (4) The Bureau shall not presume that a husband is a head of a 
family for purposes of this part solely because of his status as a 
husband. The Bureau shall not presume that a wife is not a head of a 
family for purposes of this part solely because of her status as a wife.
    (5) The Bureau shall not presume that a Sioux woman married to a 
non-Sioux man is a head of a family for purposes of this part solely 
because of such status. The Bureau shall not presume that a Sioux woman 
marrried to a Sioux man is not a head of a family for purposes of this 
part solely because of such status.
    (d) Double benefits. The prohibition against multiple payment of 
Sioux benefits to a person in his/her own right extends to the payment 
of Sioux benefits under any Federal statute. However, a person will not 
be deemed to have received payment of Sioux benefits in his/her own 
right due to the fact that:
    (1) Sioux benefits were paid to such person in his/her capacity as 
an heir of an Indian who, under prior law, was held to have a vested 
right to receive such benefits as of the date of death, or
    (2) Sioux benefits have previously been paid to that person's spouse 
or former spouse. Although the prohibition against double benefits would 
not preclude both spouses from receiving Sioux benefits during their 
marriage (assuming they both were otherwise eligible) or preclude a 
widowed or divorced applicant from receiving Sioux benefits merely 
because his/her spouse had previously received Sioux benefits, an 
applicant would not be able to receive Sioux benefits in his/her own 
right first as a single adult and again as a head of a family, or vice 
versa.



Sec. 125.5  Application procedure.

    (a) Agency Superintendent. Application for Sioux benefits must be 
submitted to the Agency Superintendent for the reservation and shall 
contain such information as may be prescribed by the Bureau. 
Applications must be submitted within the lifetime of the applicant. 
Within thirty (30) days of receipt of a completed application, the 
Agency Superintendent shall verify the necessary information and forward 
the application and relevant documentation to the Area Director along 
with his/her recommendation for approval or disapproval.
    (b) Area Director. Within fourteen (14) days of receipt of an 
application from the Agency Superintendent, the Area Director shall 
approve or disapprove the application and notify, in writing, the 
applicant and the Agency Superintendent of such decision and, if denied, 
the reasons therefor. Failure of the Area Director to act within the

[[Page 356]]

specified time shall have the effect of approval of the application.
    (c) Appeal. Approval of an application by the Area Director shall be 
final and conclusive. Disapproval of an application may be appealed to 
the Commissioner pursuant to the administrative review procedures of 25 
CFR part 2, and the Commissioner's determination shall be subject to the 
administrative appeal procedures of 43 CFR part 4, subpart D. Approval 
of an application on administrative appeal or pursuant to judicial 
review shall relate back to the date of the Area Director's decision.
    (d) Prior applications. (1) Eligibility for Sioux Benefits will be 
determined by an applicant's status as of the date of application, 
except that where an applicant's application was disapproved prior to 
the promulgation of these regulations under the provisions of previous 
Bureau regulations or policies, the applicant may reapply and, if he/she 
so requests, have his/her eligibility determined based upon his/her 
status as of the date of such prior application, which shall be deemed 
to be the date of the application, but nothing in this subsection shall 
be construed to allow any application to be made on behalf of a deceased 
Sioux Indian whose prior application was disapproved.
    (2) Unallotted Sioux Indians of the Pine Ridge and Rosebud 
Reservations whose applications were submitted and disapproved prior to 
the termination of payment of Sioux benefits on each respective 
reservation may reapply for benefits under this subsection within one 
year of the effective date of this part and receive payment if their 
eligibility under Sec. 125.4(b) is established as of the date of such 
initial application.
    (e) Information collection. The information collection requirements 
contained in this part have been approved by the Office of Management 
and Budget under 44 U.S.C. 3507 and assigned clearance number 1076-0004. 
The information is being collected to provide information necessary for 
the Bureau to determine eligibility for Sioux benefits. This information 
will be used to grant statutory benefits. The obligation to respond is 
required to obtain a benefit.

[46 FR 36136, July 14, 1981; 46 FR 38074, July 24, 1981. Redesignated at 
47 FR 13327, Mar. 30, 1982]



Sec. 125.6  Administration.

    (a) No payment of Sioux benefits may be made unless an application 
therefor has been made and approved during the lifetime of the applicant 
as provided by Federal law.
    (b) Payment of Sioux benefits shall be made in accordance with a 
budget or plan for expenditure submitted by the applicant and approved 
by the Agency Superintendent.
    (c) The Commissioner shall annually compute the commuted monetary 
value of Sioux benefits to be effective on October 1 of that year and 
notify the affected tribes and Bureau agencies of such determination.
    (d) The Area Director shall annually notify both the Cheyenne River 
Sioux Tribe and the Commissioner of the number of Sioux benefits 
remaining available to be paid under the provisions of the Act of June 
18, 1934, c. 576, Sec. 14, 48 Stat. 987, 25 U.S.C. 474.



Sec. 125.7  Information collection.

    The information collection requirements contained in Secs. 125.4 and 
125.5 have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance number 1076-0004. The 
information is being collected to solicit information necessary to make 
a determination of eligibility for Sioux benefits. The information will 
be used to determine eligibility for payment. Response is required to 
obtain a benefit.

[53 FR 21995, June 13, 1988]



PART 134--PARTIAL PAYMENT CONSTRUCTION CHARGES ON INDIAN IRRIGATION PROJECTS--Table of Contents




Sec.
134.1  Partial reimbursement of irrigation charges; 5 percent per annum 
          of cost of system, June 30, 1920.
134.2  Landowners financially unable to pay.
134.3  Period for payments extended.
134.4  Annual payment reduced.
134.4a  Assessment and collection of additional construction costs.

[[Page 357]]

134.5  Payments to disbursing officer.
134.6  ``Owner'' defined.
134.7  Modifications.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. 
Interpret or apply sec. 1, 41 Stat. 409; 25 U.S.C. 386.

    Source: 22 FR 10643, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 134.1  Partial reimbursement of irrigation charges; 5 percent per annum of cost of system, June 30, 1920.

    In pursuance of the act of February 14, 1920 (41 Stat. 409; 25 
U.S.C. 386), regulations governing partial payment of construction 
charges on Indian irrigation projects, with the exception of certain 
ones mentioned therein, where approved by the Department June 21, 1920, 
and require that each owner of irrigable land under any irrigation 
system constructed for the benefit of Indians under provisions of law 
requiring reimbursement of the cost of such system and to which land, 
water for irrigation purposes can be delivered from such system, shall 
pay, on or before November 15, 1920, a sum equal to 5 percent of the per 
acre cost, as of June 30, 1920, of the construction of the system under 
which such land is situated. The per acre cost of a given system as of 
June 30, 1920, shall be determined by dividing the total amount expended 
for construction purposes on such system up to that day by the total 
area of land to which water for irrigation purposes can be delivered on 
that date; and on November 15 of each year following the year 1920, 
until further notice, the land owners, as therein prescribed, shall pay 
5 percent of the per acre construction cost as of June 30, of the 
current year, such per acre cost to be determined by dividing the cost 
of the system to June 30 of that year by the total area of land to which 
water for irrigation purposes can be delivered from the system on that 
date. Provision is contained that no payments shall be required under 
the regulations in behalf of lands still in process of allotment or 
prior to the issuance of the first or trust patent therefor, nor for 
lands reserved for school, agency, or other administrative purposes 
where the legal title still remains in the United States.



Sec. 134.2  Landowners financially unable to pay.

    Considerable difficulty has been encountered in collecting charges 
under the regulations in this part owing to the fact that Indians have 
been financially unable to pay the charges, the result being that the 
construction charges have accrued against the lands and in cases where 
the land is sold for the benefit of the allottee or his heirs under the 
regulations, the purchaser is to pay the accrued and future irrigation 
charges which make it difficult in some instances, to sell the land at 
as favorable terms as might otherwise be secured.



Sec. 134.3  Period for payments extended.

    Furthermore, in recent legislation dealing with specific projects in 
the Bureau and also all reclamation projects the policy has been to 
extend the payment of such charges over a longer period of years.



Sec. 134.4  Annual payment reduced.

    In view of these conditions the regulations governing this matter 
are hereby modified so as to distribute the unaccrued installments over 
a period of time so that 2\1/2\ percent of the total amount yet due 
shall be due and payable on November 15 of each year until further 
notice. You shall accordingly ascertain the per acre cost after 
deducting the amount of the accrued charges and take 2\1/2\ percent of 
that amount and a like sum each year so that the amount of the annual 
installments will be the same each year. Superintendents are obligated 
to submit all proposed lists of sales involving allotments containing 
irrigable allotments to the project or supervising engineer for 
checking, as to the irrigable acreage and amounts of unpaid 
construction, operation, and maintenance charges against such 
allotments. Each sale forwarded to the Bureau for action shall be 
accompanied by contract executed on Form 5-462b where irrigable acreage 
is involved and after approval thereof a copy of contract on said form 
shall be sent to the project engineer for his records and the charges 
paid by the purchaser shall be turned over to the disbursing agent for 
credit and deposit as instructed in the next paragraph.

[[Page 358]]

The regulations in this part shall not apply to lands in the Wapato 
project, on the Yakima Indian Reservation, nor to the irrigation 
projects on the Blackfeet, Fort Peck, Flathead, and Crow Reservations, 
Montana, for which special regulations have been issued nor to the Fort 
Hall Reservation, Idaho, or the San Carlos project, Arizona.\1\


    \1\ The special regulations for Wapato, Fort Peck, and Flathead, 
were not codified. Operations of the Blackfeet project were discontinued 
by the Bureau, July 20, 1938, effective September 30, 1933.

    Cross References: For special regulations applying to San Carlos 
project, see part 137 of this chapter. For further information 
concerning Form 5-462b, see part 159 of this chapter.



Sec. 134.4a  Assessment and collection of additional construction costs.

    (a) Upon the completion of the construction of an Indian irrigation 
project, or unit thereof, subsequent to the determination of the partial 
per acre construction assessment rate which was fixed prior to July 1, 
1957, pursuant to Sec. 134.4 the Secretary of the Interior or his 
authorized representative shall determine such additional construction 
cost and distribute that cost on a per acre basis against all of the 
irrigable lands of the project, or unit thereof, and \1/40\th of such 
per acre additional construction cost thus determined shall be assessed 
and collected annually from the non-Indian landowner of the project, or 
unit, thereof. The first installment shall be due and payable on 
November 15 of the year following the completion of such additional 
construction work or, if such additional construction work on the 
project, or unit thereof, has been completed prior to July 1, 1957, and 
the per acre annual rate determined, the first installment of the 
additional construction cost to be repaid by such non-Indian landowners 
shall be due and payable on November 15, 1958. This annual per acre rate 
shall be in addition to, and run concurrently with, the per acre 
construction rate assessed annually under Sec. 134.4.
    (b) Project lands in Indian ownership are not subject to assessment 
for their proportionate share of the per acre construction cost of the 
project, or unit thereof, until after the Indian title to the land has 
been extinguished. At that time the total annual per acre assessment 
rate against non-Indian lands of the project, or unit thereof, shall be 
assessed against the former Indian lands for each and every acre of 
irrigable land to which water can be delivered through the project 
works, beginning on November 15 of the year following the extinguishment 
of the Indian title to the land and on November 15 of each year 
thereafter over a forty year period. In cases where the Indian title to 
project land was extinguished prior to July 1, 1957, the assessment rate 
shall be due and payable on November 15, 1958.



Sec. 134.5  Payments to disbursing officer.

    Payments under this part shall be made to the disbursing officer for 
the supervising engineer of the Indian Irrigation Service having 
jurisdiction over the irrigation system under which the land for which 
payment is made may lie. The sum so collected will then, after proper 
credit has been made to the land for which collected, be deposited in 
the Treasury of the United States to the credit of the respective funds 
used in constructing irrigation systems toward which reimbursement shall 
have been made.



Sec. 134.6  ``Owner'' defined.

    The word ``owner'' as used in this part shall be construed to 
include any person, Indian or white, or any firm, partnership, 
corporation, association, or other organization to whom title to the 
land capable of irrigation, as provided in the act of February 14, 1920 
(41 Stat. 409; 25 U.S.C. 386), has passed, either by fee or trust 
patent, or otherwise.



Sec. 134.7  Modifications.

    The act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a), cancelled 
all irrigation assessments for construction costs against lands in 
Indian ownership which were unpaid at that date and deferred all future 
assessments for construction costs until the Indian title to the land 
shall have been extinguished.

[[Page 359]]



PART 135--CONSTRUCTION ASSESSMENTS, CROW INDIAN IRRIGATION PROJECT--Table of Contents




      Subpart A--Charges Assessed Against Irrigation District Lands

Sec.
135.1  Contracts.
135.2  Annual rate of assessments.
135.3  Annual assessments.
135.4  Time of payment.
135.5  Penalty.
135.6  Refusal of water delivery.

Subpart B--Charges Assessed Against Non-Indian Lands Not Included in an 
                           Irrigation District

135.20  Private contract lands; assessments.
135.21  Time of payment.
135.22  Penalty.
135.23  Refusal of water delivery.

    Authority: Sec. 15, 60 Stat. 338.

    Source: 22 FR 10644, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



      Subpart A--Charges Assessed Against Irrigation District Lands



Sec. 135.1  Contracts.

    Under provisions of the act of Congress approved June 28, 1946 (60 
Stat. 333-338), contracts were executed June 28, 1951, by the United 
States with the Lower Little Horn and Lodge Grass Irrigation District 
and the Upper Little Horn Irrigation District providing for the payment, 
over a period of 40 years, by each of the Districts of its respective 
share of the sum of $210,726 expended for the construction of the Willow 
Creek storage works on account of non-Indian lands within the Districts 
entitled to share in the storage water, directly or by substitution.



Sec. 135.2   Annual rate of assessments.

    Within the Lower Little Horn and Lodge Grass Irrigation District 
there are 3,196.8 acres for which the District is obligated by contract 
to pay its proper share of the total construction costs. Within the 
Upper Little Horn Irrigation District there are 1,554.7 acres for which 
the District is obligated by contract to pay its proper share of the 
total construction costs. There are 3,237.6 acres, more or less, covered 
by contracts with private landowners, obligating such owners to pay 
their proper share of such construction costs. The total per acre charge 
against all such lands is $26.38. This amounts to an annual per acre 
rate of $0.6595. For the purpose of this notice the annual per acre rate 
is hereby fixed at $0.66. This annual per acre rate of assessment will 
continue for a 40-year period within which the total amount of 
construction costs of $210,726 is to be repaid without interest. The 
amount of each annual installment chargeable against each of the 
Districts for the acreage covered by their respective contracts shall be 
determined by multiplying the total acreage, under each contract 
entitled to Willow Creek storage rights, either directly or by 
subsituation, by the per acre annual rate.



Sec. 135.3  Annual assessments.

    Notice is hereby given of an annual assessment of $2,108.05 to be 
repaid by the Lower Little Horn and Lodge Grass Irrigation District for 
the 3,196.8 acres of irrigable land of the District, and an annual 
assessment of $1,025.06 to be repaid by the Upper Little Horn Irrigation 
District for the 1,554.7 acres of irrigable land of the District. 
Against the amounts due annually by the Districts under this notice, 
there shall be allowed any credits due under section 6 of the act of 
June 28, 1946. Credits due on behalf of any land shall be reflected by 
the respective Districts when placing against such land the annual 
assessment on the tax rolls.



Sec. 135.4  Time of payment.

    Annual assessments shall be paid by the Districts to the United 
States, one-half thereof on or before February 1 and one-half thereof on 
or before July 1 following, of each year commencing with the calendar 
year 1952.



Sec. 135.5  Penalty.

    To all assessments not paid on the due date, there shall be added a 
penalty of one-half of one percent per month or fraction thereof, from 
the due date so long as the delinquency continues.



Sec. 135.6  Refusal of water delivery.

    The right is reserved to the United States to refuse the delivery of 
water

[[Page 360]]

to each of the said Irrigation Districts in the event of default in the 
payment of assessments, including penalties on account of delinquencies.



Subpart B--Charges Assessed Against Non-Indian Lands Not Included in an 
                           Irrigation District



Sec. 135.20  Private contract lands; assessments.

    In addition to 4,751.5 acres of non-Indian land included within the 
two irrigation Districts dealt with in subpart A, there are 3,237.6 
acres of land, more or less, in non-Indian ownership under private 
ditches, covered by repayment contracts executed pursuant to the act of 
June 28, 1946 (60 Stat. 333-338), obligating such owners to pay their 
proper share of such construction costs. The total per acre charge 
against all such lands is $26.38. This amounts to an annual per acre 
rate of $0.6595. For the purposes of this notice the annual per acre 
rate is hereby fixed at $0.66. This annual rate of assessment will 
continue for a 40-year period within which the total amount of 
construction cost of $210,726 is to be repaid without interest. The 
amount of each annual installment chargeable against the lands covered 
by each of the several contracts with individual landowners whose lands 
are served under private ditches, shall be determined by multiplying the 
total acreage, under each contract entitled to Willow Creek storage 
rights, either directly or by substitution, by the per acre annual rate. 
Against the amounts due annually by the individual landowners whose 
lands are served by private ditches, under this notice there shall be 
allowed any credits due under section 6 of the act of June 28, 1946. 
Credits due on behalf of any land shall be reflected in any statement 
submitted to the landowners.



Sec. 135.21  Time of payment.

    The amount of each annual installment, payable under the private 
landowner contracts, determined as provided in this part shall be paid 
by the landowners to the United States, on or before November 15 of each 
year commencing with the calendar year 1951.



Sec. 135.22  Penalty.

    To all assessments not paid on the due date there shall be added a 
penalty of one-half of one percent per month or fraction thereof, from 
the due date so long as the delinquency continues.



Sec. 135.23  Refusal of water delivery.

    The right is reserved to refuse the delivery of water to any 
landowner in the event of default in the payment of assessments, 
including penalties on account of delinquencies.



PART 136--FORT HALL INDIAN IRRIGATION PROJECT, IDAHO--Table of Contents




Sec.
136.1  Repayment contracts.
136.2  Construction costs.
136.3  Repayment of construction costs.

    Authority: Sec. 9, 46 Stat. 1063.

    Source: 22 FR 10645, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 136.1  Repayment contracts.

    A rehabilitation program was established on the Fort Hall Unit of 
the Fort Hall Project in 1936. Based upon the estimated construction 
costs, contracts were signed by all non-Indian landowners within the 
project, including such landowners within the Little Indian Unit, now a 
part of the Fort Hall Unit. Under the terms of their contracts, the 
landowners agreed to repay to the Government their pro rata share, on an 
acreage basis, of all expenditures for construction and other necessary 
improvements for carrying out the approved program, payments not to 
exceed $7.50 per acre, based upon an estimated expenditure of 
$450,000.00 for a project then considered as covering approximately 
60,000 acres.



Sec. 136.2  Construction costs.

    The program of rehabilitation has now been completed at a cost of 
$419,186.52. This amount, chargeable on an equal per acre basis against 
60,000 acres, amounts to a rate of $6.986 per acre, which rate is hereby 
determined to be the per acre cost to be repaid to the United States 
under the 1936 contracts.

[[Page 361]]



Sec. 136.3  Repayment of construction costs.

    Under the terms of the contracts, the landowners agreed to repay the 
construction cost in forty (40) equal annual installments. Therefore, 
the annual per acre installment is hereby fixed at seventeen and one-
half cents (17\1/2\ cents) per acre, due and payable on December 1st of 
each year, the first payment being due on December 1, 1955. Under 
section 4 of the repayment contracts of the landowners and the act of 
March 10, 1928 (45 Stat. 210), the charges remain a lien against the 
lands until paid.



PART 137--REIMBURSEMENT OF CONSTRUCTION COSTS, SAN CARLOS INDIAN IRRIGATION PROJECT, ARIZONA--Table of Contents




Sec.
137.1  Water supply.
137.2  Availability of water.
137.3  Construction charges.
137.4  Future charges.
137.5  Construction costs limited.
137.6  Power development.
137.7  Private ownership defined.
137.8  Indian lands excluded.

    Authority: Sec. 5, 43 Stat. 476.

    Source: 22 FR 10645, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 137.1  Water supply.

    The engineering report dealt with in section 1 of the act of June 7, 
1924 (43 Stat. 475) and other available records show that the storage 
capacity of the San Carlos reservoir created by the Coolidge Dam and the 
water supply therefor over a period of years will provide for the 
irrigation of only 80,000 acres of lands in Indian and public or private 
ownership within the San Carlos irrigation project, the balance of the 
water supply needed for the additional 20,000 acres of the project to be 
provided for by recaptured and return flow water and by means of pumping 
the underground supply. The cost of providing the proposed supply and of 
operating the works for this latter acreage to be equally distributed 
over the entire 100,000 acres of the project regardless of where the 
works are placed and operated.



Sec. 137.2  Availability of water.

    Pursuant to section 3 of the act of June 7, 1924 (43 Stat. 475), 
requiring the Secretary of the Interior by public notice to announce 
when water is actually available for lands in private ownership under 
the project and the amount of the construction charges per irrigable 
acre against the same which charges shall be payable in annual 
installments as provided for therein, this public notice, of which 
Sec. 137.1 is made a part hereof, is hereby given:
    The date when a reasonable water supply is actually available for 
lands in private ownership under the San Carlos irrigation project is 
hereby declared to be the 1st day of December 1932.



Sec. 137.3  Construction charges.

    Each acre of land in private ownership of said project is hereby 
charged with $95.25 of construction cost assessable thereto at the date 
hereof (Dec. 1, 1932), which sum is based upon 50,000 acres of such 
privately owned lands, making a total charge or assessment due from the 
owners thereof of $4,762,250 on this date (Dec. 1, 1932), excluding the 
cost of operation and maintenance for the calendar year of 1933 which 
may be carried into construction cost as provided for by section 3 of 
the act of June 7, 1924 (43 Stat. 476), and also excluding interest at 
the rate of 4 percent which is charged against such lands by said act. 
Of the 50,000 acres constituting the lands in private ownership within 
the said project only 46,107.49 acres have at this date (Dec. 1, 1932) 
actually been designated as coming within the project. Should this 
present designated area be not increased within a reasonable time 
herefrom and prior to the due date of the first installment of the 
charge fixed in this section, namely, on December 1, 1935, so as to 
bring the total designated area up to the 50,000 acres, the per acre 
charge fixed in this section shall be proportionately increased against 
the then designated area so as to assure reimbursement of the total 
indebtedness due the Government by the owners of the lands in private 
ownership from the lesser designated acreage.

[[Page 362]]



Sec. 137.4  Future charges.

    The payment of said construction cost and costs of future operation 
and maintenance of said project as provided for in said section 3 of the 
act of June 7, 1924 (43 Stat. 476), as supplemented or amended and such 
contingent project liabilities which may be incurred in accordance with 
the provisions of said repayment contract shall be made in accordance 
with the provisions of said act of June 7, 1924, as supplemented or 
amended and the repayment contract by and between the San Carlos 
irrigation and drainage district and the Secretary of the Interior 
bearing date of June 8, 1931; the said construction cost incurred 
subsequent to this public notice assessable against the lands in private 
ownership and costs of operation and maintenance assessed against such 
privately owned lands within the project for the first year after this 
public notice to be included in the construction cost and such 
contingent project liabilities which may be incurred in accordance with 
provisions of the repayment contract shall also be repaid to the 
Government pursuant to the terms of said act of June 7, 1924, as 
supplemented or amended, and the repayment contract and this public 
notice.



Sec. 137.5  Construction costs limited.

    The repayment contract \1\ with the San Carlos irrigation and 
drainage district, page 13 thereof, contains the following:
---------------------------------------------------------------------------

    \1\ Contract available at the Bureau of Indian Affairs, Washington, 
D.C.

    In accordance with the foregoing the costs of the San Carlos project 
as fixed by the public notice to be issued as aforesaid, unless further 
sums shall be agreed to by the Secretary of the Interior and the 
district after the execution of this instrument, may amount to but shall 
not exceed the sum of $9,556,313.77, except that said total may be 
exceeded by the inclusion of any sums expended to safeguard the project 
as hereinabove provided for, and any sums expended on account of 
contingent liabilities as in the next paragraph hereof provided.
    The foregoing and subsequent statements of project costs, the 
district's shares of which are to be repaid hereunder, unless otherwise 
provided by Congress more favorably to the lands of the project, may be 
increased by the addition of sums not now fixed as project charges but 
which possibly constitute contingent project liabilities incurred after 
the date of the San Carlos Act of June 7, 1924 (43 Stat. 476), or 
incurred on account of the Florence-casa Grande project, and so may 
become project charges by the judgment of courts of competent 
jurisdiction or of other proper authority.
    The limitations therein fixed has approximately been reached, there 
remaining but $32,815.02 yet to be expended on project works before 
reaching that limitation. Upon the expenditure of this additional sum 
there shall be no further expenditures of funds for construction, 
operation and maintenance of the San Carlos project so far as the 
private lands are concerned until the San Carlos irrigation and drainage 
district shall, through appropriate action, authorize pursuant to the 
terms of the said repayment contract such additional expenditures. This 
limitation does not apply to project expenditures for the extension of 
the distributing and pumping system regardless of where they may arise. 
This class of expenditures being excepted from the limitation on 
expenditures contained in the said repayment contract by section 14, 
page 10, thereof, which section is known as the ``Equalization of 
Expenditures.''



Sec. 137.6  Power development.

    The cost of the power development at the Coolidge Dam is hereby 
fixed at $735,000. The net revenues derived from the operation of this 
power development shall be disposed of as required by the terms and 
conditions of the act of March 7, 1928 (45 Stat. 210) as supplemented or 
amended.



Sec. 137.7  Private ownership defined.

    The term ``private ownership'' used in this public notice includes 
all lands of the San Carlos irrigation project that have or may be 
designated by the Secretary of the Interior that are situated outside of 
the boundaries of the Gila River Indian Reservation.



Sec. 137.8  Indian lands excluded.

    This public notice, with the exception of that part dealing with 
payment in advance each year of operation and maintenance charges 
against lands in Indian ownership operated under lease, does not apply 
in so far as payments are concerned to Indian lands within the project. 
The act of July 1, 1932 (47

[[Page 363]]

Stat. 564; 25 U.S.C. 386a) defers the collection of construction costs 
from Indian owned lands so long as the title to such lands remains in 
the Indian ownership.



PART 138--REIMBURSEMENT OF CONSTRUCTION COSTS, AHTANUM UNIT, WAPATO INDIAN IRRIGATION PROJECT, WASHINGTON--Table of Contents




Sec.
138.1  Construction costs and assessable acreage.
138.2  Repayment of construction costs.
138.3  Payments.
138.4  Deferment of assessments on lands remaining in Indian ownership.
138.5  Assessments after the Indian title has been extinguished.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385.

    Source: 22 FR 10646, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 138.1  Construction costs and assessable acreage.

    The construction program has been completed on the Ahtanum Unit of 
the Wapato Indian Irrigation Project and the construction costs have 
been established as $79,833.64. The area benefited by this development 
has been established at 4,765.2 acres. Under the requirements of the 
acts of February 14, 1920 (41 Stat. 409) and March 7, 1928 (45 Stat. 
210), these costs are to be repaid to the United States Treasury by the 
owners of the lands benefited.



Sec. 138.2  Repayment of construction costs.

    The cost per acre under Sec. 138.1 is, therefore, established at 
$16.7535. Under the provisions of the acts of February 14, 1920 (41 
Stat. 409) and March 7, 1928 (45 Stat. 210) is based on forty equal 
annual payments, the annual per acre assessment is hereby fixed at $0.42 
per acre for the year 1957 and each succeeding year until the entire 
cost for each tract shall have been repaid to the United States 
Treasury. On those tracts where payments have been made pursuant to part 
134 of this chapter, annual assessments beginning with the year 1957 at 
the rate of $0.42 per acre will be made until the entire cost of 
$16.7535 per acre shall have been repaid to the United States Treasury. 
Landowners may pay at any time the total of the then remaining 
indebtedness. Under the act of March 10, 1928 (45 Stat. 210) the unpaid 
charges stand as a lien against the lands until paid.

[22 FR 10646, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 138.3  Payments.

    Payments are due on December 31 of each year and shall be made to 
the official in charge of collections for the project.



Sec. 138.4  Deferment of assessments on lands remaining in Indian ownership.

    In conformity with the act of July 1, 1932 (47 Stat. 564); 25 U.S.C. 
386(a) no assessment shall be made on behalf of construction costs 
against Indian-owned land within the project until the Indian title 
thereto has been extinguished.



Sec. 138.5  Assessments after the Indian title has been extinguished.

    Indian-owned lands passing to non-Indian ownership shall be assessed 
for construction costs and the first assessment shall be due on December 
31 of the year that Indian title is extinguished. Assessments against 
this land will be at the annual rate of $0.42 per acre and shall be due 
as provided in Sec. 138.3, and payable promptly thereafter until the 
total construction cost of $16.7535 per acre chargeable against the land 
has been paid in full.



PART 139--REIMBURSEMENT OF CONSTRUCTION COSTS, WAPATO-SATUS UNIT, WAPATO INDIAN IRRIGATION PROJECT, WASHINGTON--Table of Contents




Sec.
139.1  Construction costs and assessable acreage.
139.2  Repayment of construction costs.
139.3  Payments.
139.4  Deferment of assessments on lands remaining in Indian ownership.
139.5  Assessments after the Indian title has been extinguished.


[[Page 364]]


    Authority: Sec. 1, 41 Stat. 409, 45 Stat. 210; 25 U.S.C. 386, 387.

    Source: 28 FR 6536, June 26, 1963, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 139.1  Construction costs and assessable acreage.

    The construction program has been completed on the Wapato-Satus Unit 
of the Wapato Indian Irrigation Project, and the construction costs have 
been established by Designation Report dated August 1962 as 
$7,903,823.12 for the project and $1,499,073.62 for the ``B'' lands 
share of the construction costs in the Bureau of Reclamation reservoirs 
on the Yakima River. The area benefited by this development has been 
established at 136,559.59 acres divided into 79,025.68 acres of ``A'' 
land and 57,533.91 acres of ``B'' land. Under the requirements of the 
acts of February 14, 1920 (41 Stat. 409), and March 7, 1928 (45 Stat. 
210), these costs are to be repaid to the U.S. Treasury by the owners of 
the lands benefited.



Sec. 139.2  Repayment of construction costs.

    The cost per acre of the construction under Sec. 139.1 is, 
therefore, calculated at $57.8782 for ``A'' lands and $83.9337 for ``B'' 
lands in non-Indian ownership as established by Designation Report dated 
August 1962. Under the provisions of the acts cited in Sec. 139.1 the 
annual per acre assessment for forty equal annual payments, is hereby 
fixed at $1.45 per acre for ``A'' lands and $2.10 per acre for ``B'' 
lands for the year 1962 and each succeeding year, until the entire cost 
for each tract shall have been repaid to the U.S. Treasury. On those 
tracts where payments have been made pursuant to uncodified special 
regulations, annual assessments beginning with the year 1962 at the rate 
of $1.45 per acre for ``A'' lands and $2.10 per acre for ``B'' lands 
will be made until the entire cost of $57.8782 per acre for ``A'' lands 
and $83.9337 per acre for ``B'' lands shall have been repaid to the U.S. 
Treasury. Landowners may pay at any time the total of the then remaining 
indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the unpaid 
charges stand as a lien against the lands until paid.



Sec. 139.3  Payments.

    Payments are due on December 31 of each year and shall be made to 
the official in charge of collections for the project.



Sec. 139.4  Deferment of assessments on lands remaining in Indian ownership.

    In conformity with the act of July 1, 1932 (47 Stat. 564; U.S.C. 
386(a)), no assessment shall be made on behalf of construction costs 
against Indian-owned land within the project until the Indian title 
thereto has been extinguished.



Sec. 139.5  Assessments after the Indian title has been extinguished.

    Indian-owned lands passing to non-Indian ownership shall be assessed 
for construction costs and the first assessment shall be due on December 
31 of the year that the Indian title is extinguished. The construction 
costs against this land will be established as provided by section 5 of 
the act of September 26, 1961 (75 Stat. 680). The annual per acre 
assessment rate will be determined by dividing the established 
construction cost per acre into forty equal payments. ``B'' lands will 
also be assessed for reservoir construction costs in the annual per-acre 
rate as established in the Designation Report dated August 1962. 
Assessments against this land will continue until the entire established 
construction costs shall have been repaid to the U.S. Treasury. 
Landowners may pay at any time the total of the then remaining 
indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the unpaid 
charges stand as a lien against the lands until paid.



PART 140--LICENSED INDIAN TRADERS--Table of Contents




Sec.
140.1  Sole power to appoint.
140.2  Presidential prohibition.
140.3  Forfeiture of goods.
140.5  Bureau of Indian Affairs employees not to contract or trade with 
          Indians except in certain cases.
140.9  Application for license.
140.11  License period.
140.12  License renewal.
140.13  Power to close unlicensed stores.
140.14  Trade limited to specified premises.

[[Page 365]]

140.15  License applicable for trading only by original licensee.
140.16  Trade in annuities or gratuities prohibited.
140.17  Tobacco sales to minors.
140.18  Intoxicating liquors.
140.19  Drugs.
140.21  Gambling.
140.22  Inspection of traders' prices.
140.23  Credit at trader's risk.
140.24  Cash payments only to Indians.
140.25  Trade in antiquities prohibited.
140.26  Infectious plants.

    Authority: Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as amended; 
25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C. 2 and 9, and 
5 U.S.C. 301, unless otherwise noted.

    Source: 22 FR 10670, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

    Cross References: For law and order regulations on Indian 
Reservations, see part 11 of this chapter. For regulations pertaining to 
business practices on Navajo, Hopi and Zuni reservations, see part 141 
of this chapter. For additional regulation of certain employees trading 
with Indians, see 43 CFR part 20.735-28 and 29.



Sec. 140.1  Sole power to appoint.

    The Commissioner of Indian Affairs shall have the sole power and 
authority to appoint traders to the Indian tribes. Any person desiring 
to trade with the Indians on any reservation may, upon establishing the 
fact, to the satisfaction of the Commissioner of Indian Affairs, that he 
is a proper person to engage in such trade, be permitted to do so under 
such rules and regulations as the Commissioner of Indian Affairs may 
prescribe.



Sec. 140.2  Presidential prohibition.

    The President is authorized, whenever in his opinion the public 
interest may require, to prohibit the introduction of goods, or of any 
particular articles, into the country belonging to any Indian tribe, and 
to direct that all licenses to trade with such tribe be revoked, and all 
applications therefor rejected. No trader shall, so long as such 
prohibition exists, trade with any Indians of or for said tribe.

(R.S. 2132; 25 U.S.C. 263)



Sec. 140.3  Forfeiture of goods.

    Any person other than an Indian of the full blood who shall attempt 
to reside in the Indian country, or on any Indian reservation, as a 
trader, or to introduce goods, or to trade therein, without a license, 
shall forfeit all merchandise offered for sale to the Indians or found 
in his possession, and shall moreover be liable to a penalty of $500: 
Provided, That this section shall not apply to any person residing among 
or trading with the Choctaws, Cherokee, Chickasaws, Creeks, or 
Seminoles, commonly called the Five Civilized Tribes: And provided 
further, That no white person shall be employed as a clerk by any Indian 
trader, except as such trade with said Five Civilized Tribes, unless 
first authorized so to do by the Commissioner of Indian Affairs.

(R.S. 2133, as amended; 25 U.S.C. 264)



Sec. 140.5  Bureau of Indian Affairs employees not to contract or trade with Indians except in certain cases.

    (a) Definitions of terms as used in this part:
    (1) ``Indian'' means any member of an Indian tribe recognized as 
eligible for the services provided by the Bureau of Indian Affairs who 
is residing on a Federal Indian Reservation, on land held in trust by 
the United States for Indians, or on land subject to a restriction 
against alienation imposed by the United States. The term shall also 
include any such tribe and any Indian owned or controlled organization 
located on such a reservation or land.
    (2) ``Bureau'' or the ``Bureau of Indian Affairs'' means the Bureau 
of Indian Affairs and the Office of the Assistant Secretary for Indian 
Affairs, both in the Department of the Interior.
    (3) ``Employee'' means an officer, employee, or agent of the Bureau 
of Indian Affairs.
    (4) ``Secretary'' means the Secretary of the Interior.
    (5) ``Contract'' means any agreement made or under negotiation with 
any Indian for the purchase, transportation or delivery of goods or 
supplies.
    (6) ``Trading'' means buying, selling, bartering, renting, leasing, 
permitting and any other transaction involving the acquisition of 
property or services.
    (7) ``Commercial trading'' means any trading transaction where an 
employee engages in the business of buying or

[[Page 366]]

selling services or items which he/she is trading.
    (b) With the exceptions provided in subsection (b) of section 437 of 
title 18 U.S. Code, section 437 provides that whoever, being an officer, 
employee, or agent of the Bureau of Indian Affairs, has (other than as a 
lawful respresentative of the United States) any interest, in such 
officer, employee, or agent's name, or in the name of another person 
where such officer, employee, or agent benefits or appears to benefit 
from such interest:
    (1) In any contract made or under negotiation with any Indian, for 
the purchase, transportation or delivery of goods or supplies for any 
Indian, or
    (2) In any purchase or sale of any service or real or personal 
property (or any interest therein) from or to any Indian, or colludes 
with any person attempting to obtain any such contract, purchase, or 
sale, shall be fined not more than $5,000 or imprisoned not more than 
six months or both, and shall be removed from office, notwithstanding 
any other provision of law concerning termination from Federal 
employment.
    (c) The further subsections of this section authorize certain 
employees contracting and trading with Indians as authorized by the 
exceptions in section 437 of title 18 U.S. Code. All such contracting 
and trading is subject to the express provision of section 437 that none 
of the sales or purchases so authorized may be made if the purpose of 
any such sale, trade, or purchase is that of commercially selling, 
reselling, trading, or bartering such property.
    (d)(1) Under authority granted by section 437(b)(1) of title 18 U.S. 
Code, employees of the Bureau of Indian Affairs may with the approval of 
an authorized officer of the Bureau, as designated in paragraph (d)(2) 
of this section, purchase from or sell to an Indian any service or any 
real or personal property, not held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, or any interest in such property. In addition, employees may 
purchase from Indians without approval from an authorized officer of the 
Bureau any non-trust or unrestricted personal property for home use or 
consumption the value of which property does not exceed $1000. Where the 
purchase or sale price is less than $1,000, employees may also purchase 
motor vehicles for their personal use from Indians or sell their 
personal motor vehicles to Indians without obtaining approval of such 
purchases or sales from an authorized officer of the Bureau. Approval 
must be obtained if the purchase or sale price is $1,000 or more.
    (2) As used in paragraph (d)(1) of this section an authorized 
officer of the Bureau of Indian Affairs for employees on reservations 
and in agencies or in field service units shall be the superintendent or 
other officer in charge of the unit in which the employee is employed. 
The authorized officer for the superintendent or officer in charge is 
his or her immediate supervisor. The authorized officer for employees in 
area offices is the Area Director, and the authorized officer for an 
Area Director is his or her immediate supervisor. The authorized officer 
for employees in the Central Office is the Deputy Assistant Secretary--
Indian Affairs (Operations).
    (e) No employee of the Bureau of Indian Affairs may have any 
interest in any purchase or sale involving property or funds which are 
either held in trust by the United States for Indians or which are 
purchased, sold, utilized, or received in connection with a contract or 
grant to an Indian from the Bureau if such employee is employed in the 
office or installation of the Bureau which recommends, approves, 
executes, or administers such transaction, grant, or contract on behalf 
of the United States, except that, as authorized by section 437(b)(1) of 
title 18 U.S. Code an employee of the Bureau may have such an interest 
if such purchase or sale is approved by an authorized officer of the 
Bureau, as designated in paragraphs (e) (3) to (5) of this section, and 
the conditions in (e) (1) and (2) of this section are satisfied to the 
extent to which they are applicable to the transaction concerned:
    (1) The coveyance or granting of any interest in property held in 
trust or subject to restriction against alienation imposed by the United 
States is otherwise authorized by law.

[[Page 367]]

    (2) Trading by employees with Indians which involves property or 
funds which are either held in trust by the United States or are subject 
to restrictions against alienation imposed by the United States must be 
conducted on the basis of sealed bid or public auction. If the trading 
involves leases or sales of trust or restricted Indian land it must be 
conducted on the basis of sealed bids. Such requirements for sealed bid 
or public auction may only be waived by the Assistant Secretary for 
Indian Affairs on the basis of a full report showing:
    (i) The need for the transaction,
    (ii) The benefits accruing to both parties,
    (iii) That the consideration for the proposed transaction shall be 
not less than the fair market value of the trust or restricted property 
or interest therein, unless the employee is involved in a transaction in 
accordance with Sec. 152.25(c) or (d) or Sec. 162.5(b)(1), (2), or (3) 
of this title or the employee is the recipient of a benefit for tribal 
members for which a uniform charge to all members is made, and
    (iv) An affidavit as follows shall accompany each proposed 
transaction: ``I (name) (title), swear (or affirm) that I have not 
exercised any undue influence nor used any special knowledge received by 
reason of my employment in the Bureau in obtaining the (grantor's, 
purchaser's, vendor's) consent to the instant transaction.''
    (3) The authorized officer of the Bureau for employees employed on 
reservations, in agencies or service units is one who is not a relative 
by blood or marriage of the employee, and is not employed at the 
employee's reservation, agency or service unit. That officer must also 
be employed at not less than one grade level higher than such employee 
at the Wahington, District of Columbia, Central Office or at an Area 
Office other than that with authority over the employee's reservation, 
agency, or service unit.
    (4) The authorized officer of the Bureau for employees employed in 
Area offices is one who is not a relative by blood or marriage of the 
employee, is not employed at the employee's area office, and must be 
employed at not less than one grade level higher than the employee at 
the Washington, District of Columbia, Central Office.
    (5) The authorized officer of the Bureau for employees employed at 
the Washington, District of Columbia, Central Office is the Secretary.
    (f) Except as provided in subsection (b)(2) of section 437 of title 
18 U.S. Code as implemented by this section, nothing in the cited law 
shall be construed as preventing any employee of the Bureau who is an 
Indian, of whatever degree of Indian blood, from obtaining or receiving 
any benefit or benefits made available to Indians generally or to any 
member of his or her particular tribe, under any Act of Congress, nor to 
prevent any such employee who is an Indian from being a member of or 
receiving benefits by reason of his or her membership in any Indian 
tribe, corporation, or cooperative association organized by Indians, 
when authorized under such rules and regulations as the Secretary or 
his/her designee has prescribed or shall prescribe.

[49 FR 25434, June 21, 1984]



Sec. 140.9  Application for license.

    (a) Application for license must be made in writing on Form 5-052, 
setting forth the full name and residence of the applicant; if a firm, 
the firm name and the name of each member thereof; the place where it is 
proposed to carry on the trade; the capital to be invested; the names of 
the clerks to be employed; and the business experience of the applicant. 
The application must be forwarded through the Superintendent to the 
Commissioner of Indian Affairs, accompanied by two satisfactory 
testimonials on Form 2-077 as to the character of the applicant and his 
employees and their fitness to be in the Indian country, and by an 
affidavit of the Superintendent on Form 5-053 that neither he nor any 
person for him has any interest, direct or indirect, present or 
prospective, in the proposed business or the profits arising therefrom, 
and that no arrangement for any benefit to himself or to any other 
person on his behalf is contemplated in case the license is granted. 
Licensed traders will be held responsible for the conduct of their 
employees.
    (b) Itinerant peddlers or purveyors of foodstuffs and other 
merchandise shall

[[Page 368]]

be considered as traders and shall obtain a license or permit from the 
Superintendent setting forth the class of trade or peddling to be 
carried on, furnishing such character or credit references, or both, as 
may be required by the Superintendent. The period of the license for 
such itinerant peddlers shall be determined by the Superintendent.
    (c) When a license or permit to trade is issued under the 
regulations in this part 140, a fee of $5, payable when the license is 
issued, shall be levied against the licensee.

[30 FR 8267, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 140.11  License period.

    Licenses to trade shall not be issued unless the proposed licensee 
has a right to the use of the land on which the business is to be 
conducted. The license period shall correspond to the period of the 
lease or permit held by the licensee on restricted Indian land, except 
that where the proposed licensee is the owner or beneficial owner or 
holds a use right to the land on which the business is to be conducted, 
the license period shall be fixed by the Commissioner of Indian Affairs 
or his authorized representative, but in no case shall the license 
period exceed 25 years.

[30 FR 8268, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 140.12  License renewal.

    Application for renewal of license must be made to the Commissioner 
of Indian Affairs on Form 5-054, through the superintendent, at least 30 
days prior to the expiration of the existing license, and the 
superintendent must report as to the record the applicant has made as a 
trader and his fitness to continue as such under a new license.



Sec. 140.13  Power to close unlicensed stores.

    If persons carry on trade within a reservation with the Indians 
without a license, or continue to trade after expiration of the license 
without applying for renewal, the superintendent will immediately report 
the facts in the case to the Commissioner of Indian Affairs, who may, if 
necessary, direct the superintendent to close the stores of such 
traders.



Sec. 140.14  Trade limited to specified premises.

    No trade with Indians is permitted at any other place than that 
specified in the license. Licenses to not cover branch stores. A 
separate license and bond must be furnished for each such store. The 
business of a licensed trader must be managed by the bonded principal, 
who must habitually reside upon the reservation, and not by an unbonded 
subordinate.



Sec. 140.15  License applicable for trading only by original licensee.

    No trader will be allowed to lease, sublet, rent, or sell any of the 
buildings which he occupies, for any purpose to any other person or 
concern, without the approval of the Commissioner of Indian Affairs. A 
license to trade with Indians does not confer upon the trader any right 
or privileges in respect to the herding or raising of livestock upon the 
reservation. The use of reservation lands, whether tribal or allotted, 
for such purposes can be obtained by a trader only upon the terms and 
under the restrictions which apply to other persons. His license gives 
him no advantage over others in this respect.



Sec. 140.16  Trade in annuities or gratuities prohibited.

    Traders are forbidden to buy, trade for, or have in their possession 
any annuity or other goods of any description which have been purchased 
or furnished by the Government for the use or welfare of the Indians. 
Livestock or their increase purchased by the Government and in 
possession or control of the Indians may not be purchased by any trader, 
not a member of the tribe to which the owners or possessors of the 
cattle belong, except with the written consent of the agent of said 
tribe.



Sec. 140.17  Tobacco sales to minors.

    No trader shall sell tobacco, cigars, or cigarettes to any Indian 
under 18 years of age.

[[Page 369]]



Sec. 140.18  Intoxicating liquors.

    No trader shall use or permit to be used his premises for any 
unlawful conduct or purpose whatsoever. No trader shall use of permit to 
be used any part of his premises for the manufacture, sale, gift, 
transportation, drinking or storage of intoxicating liquors or beverages 
in violation of existing laws relating thereto. Violation of this 
section will subject the trader to criminal prosecution, revocation of 
license and such other action as may be necessary.



Sec. 140.19  Drugs.

    Traders shall not keep for sale, or sell, give away, or use any 
opium, chloral, cocaine, peyote or mescal bean, hashish or Indian hemp 
or marihuana, or any compound containing either ingredient, and for 
violation hereof the trader's license shall be revoked.



Sec. 140.21  Gambling.

    Gambling, by dice, cards, or in any way whatever, is strictly 
prohibited in any licensed trader's store or on the premises.



Sec. 140.22  Inspection of traders' prices.

    It is the duty of the superintendent to see that the prices charged 
by licensed traders are fair and reasonable. To this end the traders 
shall on request submit to the superintendent or inspecting officials 
the original invoice, showing cost, together with a statement of 
transportation charges, retail price of articles sold by them, the 
amount of Indian accounts carried on their books, the total annual 
sales, the value of buildings, livestock owned on reservation, the 
number of employees, and any other business information such officials 
may desire. The quality of all articles kept on sale must be good and 
merchantable.



Sec. 140.23  Credit at trader's risk.

    Credit given Indians will be at the trader's own risk, as no 
assistance will be given by Government officials in the collection of 
debts against Indians. Traders shall not accept pawns or pledges of 
personal property by Indians to obtain credit or loans.



Sec. 140.24  Cash payments only to Indians.

    Traders must not pay Indians in tokens, tickets, store orders, or 
anything else of that character. Payment must be made in money, or in 
credit if the Indian is indebted to the trader.



Sec. 140.25  Trade in antiquities prohibited.

    Traders shall not deal in objects of antiquity removed from any 
historic or prehistoric ruin or monument on land owned or controlled by 
the United States.

    Cross Reference: For additional regulations pertaining to 
preservation of antiquities, see part 261 of this chapter. For 
regulations of the Bureau of Land Management regarding antiquities, see 
43 CFR part 3.



Sec. 140.26  Infectious plants.

    Traders shall not introduce into, sell, or spread within Indian 
reservations any plant, plant product, seed, or any type of vegetation, 
which is infested, or infected or which might act as a carrier of any 
pests of infectious, transmissible, or contagious diseases, as 
determined by the laws and regulations of the State for plant quarantine 
and pest control. For the purpose of enforcement of this provision State 
officers may enter Indian reservations, with the consent of the 
superintendent, to inspect the premises of such traders and otherwise to 
execute such State laws and regulations.



PART 141--BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI RESERVATIONS--Table of Contents




            Subpart A--Interpretation and Construction Guides

Sec.
141.1  Purpose.
141.2  Scope.
141.3  Definitions.
141.4  Interpretation and construction.

            Subpart B--Licensing Requirements and Procedures

141.5  Reservation business license required.
141.6  Approval or denial of license application.
141.7  Bond requirement for a reservation business.

[[Page 370]]

141.8  License period for reservation businesses.
141.9  Application for license renewal.
141.10  License fees for reservation businesses.
141.11  Tribal fees, taxes, and enforcement.
141.12  Peddler's permits.
141.13  Amusement company licenses.
141.14  Trade in livestock restricted.
141.15  Consent to jurisdiction of Hopi and Zuni tribal courts.

                  Subpart C--General Business Practices

141.16  Price marking.
141.17  Health and sanitation requirements.
141.18  Availability of employee authorized to transact business.
141.19  Check cashing.
141.20  Payment for purchase of Indian goods or services.
141.21  Trade confined to premises.
141.22  Subleasing prohibited.
141.23  Posted statement of ownership.
141.24  Attendance at semi-annual meetings.
141.25  Withholding of mail prohibited.
141.26  Trade in antiquities prohibited.
141.27  Trade in imitation Indian crafts prohibited.
141.28  Gambling prohibited.
141.29  Political contributions restricted.
141.30  Retaliation prohibited.
141.31  Trade by Indian Affairs employees restricted.

                     Subpart D--Pawnbroker Practices

141.32  Reservation pawnbroker license required.
141.33  Fees for pawnbroker license.
141.34  Pawnbroker records.
141.35  Pawnbroker disclosure requirements.
141.36  Maximum finance charges on pawn transactions.
141.37  Prepayment.
141.38  Pawn loans; period, notice and sale.
141.39  Sale and redemption of pawn.
141.40  Proceeds of sale.
141.41  Refinancing transaction.
141.42  Lost pawn receipts or tickets.
141.43  Outstanding obligations owed to pledgee.
141.44  Insurance on pawn.

         Subpart E--Consumer Credit Transactions Other Than Pawn

141.45  Consumer credit applications.
141.46  Credit disclosure statements.
141.47  Monthly billing statement.
141.48  Translation of disclosure statements.
141.49  Usury prohibited.

         Subpart F--Enforcement Powers, Procedures and Remedies

141.50  Penalty and forfeiture of merchandise.
141.51  Authority to close unlicensed reservation businesses.
141.52  Revocation of license and lease and recovery on bond.
141.53  Cease and desist orders.
141.54  Periodic review of performance.
141.55  Price monitoring and control.
141.56  Show cause procedures.
141.57  Procedures to cancel liability on bond.
141.58  Records, reports, and obligations of reservation business 
          owners.
141.59  Customer complaint procedures.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.

    Source: 40 FR 39835, Aug. 29, 1975, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



            Subpart A--Interpretation and Construction Guides



Sec. 141.1  Purpose.

    The purpose of the regulations of this part is to prescribe rules 
for the regulation of reservation businesses for the protection of 
Indian consumers on the Navajo, Hopi and Zuni Reservations as required 
by 25 U.S.C. 261, 262, 263, and 264.



Sec. 141.2  Scope.

    The regulations of this part apply to all non-members of the Navajo, 
Hopi and Zuni Tribes, who engage in retail businesses on the above 
respective reservations. These regulations do not apply to businesses 
that are wholly owned and operated by either the Navajo, Hopi or Zuni 
Tribes, or by individual tribal members within their respective 
reservations.

[45 FR 64906, Oct. 1, 1980. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.3  Definitions.

    For the purposes of this part--
    (a) ``Annual percentage rate'' means the annual percentage rate of 
finance charge determined in accordance with 12 CFR 226.5, which defines 
annual percentage rates.
    (b) ``Consumer credit transaction'' means a grant of credit or a 
loan that is made by a person regularly engaged in the business of 
making loans or granting credit primarily for a personal, family, 
household, or agricultural purpose.
    (c) ``Draft'' means a writing that is a direction to pay that:

[[Page 371]]

    (1) Identifies the person to pay with reasonable certainty;
    (2) Is signed by the drawer;
    (3) Contains an unconditional order to pay a sum certain in money 
and no other promise, order, obligation or power given by the drawer;
    (4) Is payable on demand or at a definite time; and
    (5) Is payable to order.
    (d) ``Finance charge'' means the cost of credit determined in 
accordance with 12 CFR 226.4, which defines ``finance charge''.
    (e) ``Firm'' means a corporation or a partnership.
    (f) ``Gross receipts'' include the following:
    (1) All cash received from the conduct and operation of the 
licensee's business at the premises described in the application for 
license.
    (2) Receipts from both wholesale and retail transactions.
    (3) Receipts resulting from transactions concluded off the 
reservation that originate from the conduct and operation of the 
licensee's business on the reservation.
    (4) The market value of all property taken in trade on the date when 
received and either held by the licensee for purposes other than resale 
or credited on any account in payment for merchandise.
    (5) Proceeds from the sale of any goods bought from Indians 
regardless of where the sale takes place.
    (6) Finance charge received on loans, but not the return of 
principal.
    (g) ``Open end credit'' means consumer credit transactions made on 
an account by a plan under which:
    (1) The creditor may permit the customer to make purchases or obtain 
loans, from time to time, directly from the creditor or indirectly by 
use of a credit card, check, or other device, as the plan may provide;
    (2) The customer has the privilege of paying the balance in full or 
in installments; and
    (3) A finance charge may be computed by the creditor from time to 
time on an outstanding unpaid balance.
    (h) ``Pawnbroker'' means a person whose business includes lending 
money secured by personal property deposited with the lender.
    (i) ``Peddler'' means a person who offers goods for sale within the 
exterior boundaries of the Hopi, Navajo or Zuni Reservations, but does 
not do business from a fixed location or site on any of those 
reservations.
    (j) ``Person'' includes a natural person, a corporation, trust, 
estate, partnership, cooperative or association.
    (k) ``Replacement value'' means the present cost to the owner of 
replacing an item with one having the same quality and usefulness.
    (l) ``Reservation business'' means a person that engages at a fixed 
location or site within the exterior boundaries of the Navajo, Hopi or 
Zuni Reservations in the sale or purchase of goods or services or in 
consumer credit transactions with Indians and is not a bank, saving 
bank, trust company, savings or building and loan association or credit 
union operating under the laws of the United States or the laws of New 
Mexico, Arizona or Utah, a business on the Hopi Reservation that is 
wholly owned and operated by members of the Hopi Tribe, or a business on 
the Zuni Reservation that is wholly owned and operated by members of the 
Zuni Tribe.



Sec. 141.4  Interpretation and construction.

    (a) ``Area Director'' refers to the Area Director of the Bureau of 
Indian Affairs or the Administrator of the Joint Use Area of the Bureau 
of Indian Affairs who has jurisdiction over the land on which a person 
does business or intends to do business with Indians.
    (b) ``Commissioner'' refers to the Commissioner of Indian Affairs or 
a person to whom the Commissioner of Indian Affairs has delegated 
authority under this part or under 25 U.S.C. 261, 262, 263, or 264.
    (c) ``Superintendent'' refers to the Superintendent of the Bureau of 
Indian Affairs who has jurisdiction over the land on which a person does 
business or intends to do business with Indians.
    (d) ``Tribe'' refers to the tribe that has jurisdiction over the 
land on which a person does business or intends to do business with 
Indians.

[[Page 372]]



            Subpart B--Licensing Requirements and Procedures



Sec. 141.5  Reservation business license required.

    (a) No person may own or lease a reservation business without a 
license issued under the provisions of this subpart.
    (b) The applicant shall apply in writing on a form provided by the 
Commissioner setting forth the following:
    (1) The full name and residence of the applicant.
    (2) Three (3) responsible references.
    (3) The firm name and the name of each member of the board of 
directors if the applicant is a firm.
    (4) Satisfactory evidence as to the character, experience and 
business ability of the applicant and the employees of the applicant.
    (5) Satisfactory evidence of the general fitness of the applicant 
and employees of the applicant to reside on the Indian reservation.
    (c) Upon the request of the Commissioner, the applicant shall 
furnish the following:
    (1) The capital invested or to be invested and, of this, the amount 
of capital owned and the amount borrowed or to be borrowed.
    (2) The name of the lender of any borrowed capital, the date due, 
the rate of interest to be paid, and the names of any endorsers and 
security.
    (3) A copy of any contract or trade agreement whether oral or 
written with creditors or financing individuals or institutions, 
including any stipulations whereby financing fees are to be paid.
    (d) Information that if released might adversely affect the 
competitive position of the applicant shall remain confidential.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.6  Approval or denial of license application.

    (a) The Commissioner shall approve or deny each license application 
and notify the applicant no later than thirty (30) days after receipt of 
a completed application.
    (b) No application is complete until any clearance or tribal council 
approval required by tribal or Federal regulations has been obtained.
    (c) The Commissioner may not deny a license to an applicant for the 
purpose of limiting competition.
    (d) If the application is approved the license shall be issued on a 
form provided by the Commissioner.
    (e) If the Commissioner denies the license application the applicant 
may appeal under the provisions of part 2 of this title no later than 
thirty (30) days after the date on which notice of denial of the 
application was sent.



Sec. 141.7  Bond requirement for a reservation business.

    (a) An applicant for a license or renewal of a license to operate a 
reservation business shall at the time the application is submitted 
furnish a bond on a form provided by the Commissioner in the name of the 
applicant in the amount of ten thousand dollars ($10,000) or such larger 
sum as the Commissioner may designate, with two (2) on more sureties 
approved by the Commissioner or with a guaranty company qualified under 
the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C. 6-13). The bond shall 
be for the same period covered by the license. No licensee may trade 
without a bond. Except as provided in paragraph (d) of this section, no 
surety may be released from liability until the license expires.
    (b) The bond shall be in favor of the United States for the benefit 
of the United States and any customer of the licensee who recovers a 
judgment for damages resulting from violation of any law or regulation 
affecting or relating to reservation businesses. Any customer who 
recovers such a judgment may bring suit on the bond in his or her own 
name. The bond shall be conditioned on payment by the licensee of all 
judgments for damages resulting from violations of the regulations of 
this part.
    (c) Any surety for a reservation business on the Hopi or Zuni 
Reservation shall agree in writing to submit itself voluntarily to the 
jurisdiction of the tribal court for the purpose of adjudicating any 
claim arising under the bond.

[[Page 373]]

    (d) Any surety on the bond of a licensed reservation business may be 
relieved from liabilities by complying with the provisions of 
Sec. 141.57 of this title.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.8  License period for reservation businesses.

    A license to operate a reservation business may not be issued unless 
the applicant has a right to use the land on which the business is to be 
conducted. The license period shall correspond to the period of the 
lease held by the licensee. The license period in no event may exceed 
twenty-five (25) years.



Sec. 141.9  Application for license renewal.

    (a) An applicant for renewal of the license to trade shall file an 
application on a form provided by the Commissioner with the Area 
Director not less than three (3) months prior to the expiration of the 
existing license. The Area Director shall report in writing to the 
Commissioner on the record the applicant has made as a reservation 
business owner and the applicant's present fitness to reside on the 
Indian reservation.
    (b) The Commissioner may issue a temporary permit for three (3) 
months pending consideration of application for license renewal.
    (c) Prior to expiration of the existing license or, if issued, the 
temporary permit, the Commissioner shall approve or deny the application 
for license renewal and notify the applicant.
    (d) No license may be renewed until any clearance or tribal council 
approval required by tribal or other federal regulations has been 
obtained.
    (e) If the Commissioner denies the application for renewal, the 
applicant may appeal under the provisions of part 2 of this title.



Sec. 141.10  License fees for reservation businesses.

    (a) Prior to the issuance of an initial license, each licensee who 
is not a member of the Navajo tribe shall pay the following amount:
    (1) If the license is issued before July 1, the licensee shall pay 
fifty dollars ($50).
    (2) If the license is issued on or after July 1, the licensee shall 
pay twenty-five dollars ($25).
    (b) Each licensed business owner who is not a member of the Navajo 
tribe shall pay on or before January 10 of each year an annual license 
fee determined as follows based on the licensee's most recent annual 
report:
    (1) If the licensee's gross receipts are less than one hundred 
thousand dollars ($100,000) for the year or the licensee has not yet 
been required to file its first annual report, the license fee is fifty 
dollars ($50).
    (2) If the licensee's gross receipts for the year are at least one 
hundred thousand dollars ($100,000) but not more than four hundred and 
ninety-nine thousand nine hundred and ninety-nine dollars ($499,999) the 
fee is one hundred dollars ($100).
    (3) If the licensee's gross receipts for the year are at least five 
hundred thousand dollars ($500,000) but not more than seven hundred and 
forty-nine thousand nine hundred and ninety-nine dollars ($749,999), the 
fee is two hundred dollars ($200).
    (4) If the licensee's gross receipts for the year are seven hundred 
fifty thousand dollars ($750,000) or more, the fee is three hundred 
dollars ($300).
    (c) The Navajo Area Director shall determine the annual license fee 
payable by licensees who are enrolled members of the Navajo Tribe. The 
license fee for an enrolled member of the Navajo Tribe may not be less 
than twenty percent (20%) nor greater than one hundred percent (100 
percent) of the amount the licensee would be required to pay if the 
licensee were not a tribal member.
    (d) All fees are payable to the Area Director and shall be deposited 
to the credit of the account ``Special Deposits.''

[40 FR 39835, Aug. 29, 1975, as amended at 59 FR 54502, Oct. 31, 1994]



Sec. 141.11  Tribal fees, taxes, and enforcement.

    (a) The regulations in this part do not preclude the Hopi, Navajo, 
or Zuni

[[Page 374]]

tribal councils from assessing and collecting such fees or taxes as they 
may deem appropriate from reservation businesses.
    (b) Nothing in the regulations of this part may be construed to 
preclude tribal enforcement of these regulations or consistent tribal 
ordinances.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.12  Peddler's permits.

    (a) Except as provided in paragraph (b) of this section, no peddler 
may offer goods for sale within the exterior boundaries of the Hopi, 
Navajo, or Zuni reservations without a peddler's permit. The permit 
shall state on its face the class of goods that may be offered for sale. 
No peddler may offer for sale any class of goods other than those listed 
on the face of the permit.
    (b) No peddler who is an enrolled member of a federally recognized 
Indian tribe is required to obtain a peddler's permit for offering to 
sell the following items:
    (1) Coal and wood for non-commercial use,
    (2) Homegrown fresh products,
    (3) Meat products raised locally by the peddler, or
    (4) Arts and crafts made by the peddler or the peddler's family.
    (c) The applicant shall apply for a permit in writing on a form 
provided by the Commissioner.
    (d) Peddlers shall pay such fee and post such surety bond on a form 
provided by the Commissioner as the Commissioner requires. The surety 
bond required may not be less than five hundred dollars ($500) nor more 
than ten thousand dollars ($10,000).
    (e) Any surety on the bond of a peddler may be relieved of liability 
by complying with the provisions of Sec. 141.57.

(25 U.S.C. 261 et seq.)

[43 FR 27826, June 27, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.13  Amusement company licenses.

    (a) No person may operate a portable dance pavilion, mechanical 
amusement device such as a ferris wheel or carousel, or commercial games 
of skill within the exterior boundaries of the Navajo, Hopi, or Zuni 
Reservations without a license from the Commissioner.
    (b) The licensee shall pay such fee as the Commissioner requires. 
The fee shall be not less than five dollars ($5) nor more than twenty-
five dollars ($25) per unit.
    (c) The licensee shall post a surety bond on a form provided by the 
Commissioner in an amount not exceeding ten thousand dollars ($10,000) 
and a personal injury and property damage liability bond of not less 
than five thousand dollars ($5,000) nor more than fifty thousand dollars 
($50,000) as may be required by the Commissioner.
    (d) The provisions of this section do not apply to amusement 
companies where the contract between the tribe and the amusement company 
provides for the payment of a fee to the tribe and for the protection of 
the public against personal injury and property damage by bond in the 
amounts specified in paragraph (c) of this section.
    (e) Any surety on a bond under this section may be relieved of 
liability by complying with the provisions of Sec. 141.57.



Sec. 141.14  Trade in livestock restricted.

    (a) No person other than an enrolled member of the tribe or any 
association, partnership, corporation or business entity wholly owned by 
enrolled members of the tribe may purchase livestock from tribal members 
without a special permit issued by the Commissioner.
    (b) The Commissioner shall issue a permit to each applicant who 
establishes to the Commissioner's satisfaction that the applicant is a 
fit person to engage in the purchase of livestock and who posts a bond 
on a form provided by the Commissioner in the amount of ten thousand 
dollars ($10,000). This paragraph does not require a person who has 
posted a bond of ten thousand dollars ($10,000) or more under other 
provisions of this part to post an additional bond to obtain a permit 
under this section.
    (c) Any surety on a bond under this section may be relieved of 
liability by complying with the provisions of Sec. 141.57.

[[Page 375]]

    (d) The provisions of this section do not apply to purchases of 
livestock made at an organized public auction.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.15  Consent to jurisdiction of Hopi and Zuni tribal courts.

    As a condition to doing business on the Hopi or the Zuni Reservation 
each applicant for license under this part shall, in accordance with the 
constitutions of those tribes, voluntarily submit the applicant and the 
applicant's employees or agents to the jurisdiction of the tribal court 
for the purpose of the adjudication of any dispute, claim or obligation 
arising under tribal ordinance relating to commerce carried out by the 
licensee.



                  Subpart C--General Business Practices



Sec. 141.16  Price marking.

    The price of each article offered for sale shall be marked on the 
article, its containers or in any other manner that is plain and visible 
to the customer and that affords the customer a reasonable opportunity 
to learn the price of the article prior to purchase.



Sec. 141.17  Health and sanitation requirements.

    (a) Each licensee shall keep both the premises and the place of 
business in a clean and sanitary condition at all times and shall avoid 
exposure of foodstuffs to contamination. No licensee may offer for sale 
any goods that are banned for health or sanitation reasons from retail 
sale by any Federal agency or by the tribe or, where not in conflict 
with the tribal regulations, by the State or by any State agency. No 
licensee may knowingly offer for sale any food that is contaminated.
    (b) All weights and measure shall conform to standards set by the 
National Bureau of Standards and to standards, if any, set by the tribe 
and, if not in conflict with tribal regulations, to the standards set by 
the State.
    (c) If training in foodhandling is available from the Indian Health 
Service, each person working in a reservation business shall complete 
the foodhandler training offered by the Indian Health Service before 
handling any food sold by a reservation business.
    (d) Any person whom the Service Unit Director of the Indian Health 
Service determines is infected with or is a carrier of any communicable 
disease in a stage likely to be communicable to persons exposed as a 
result of the infected employee's normal duties as a foodhandler may not 
be employed by a reservation business.
    (e) Each business shall comply with all Federal health regulations 
and with all tribal health regulations that are consistent with Federal 
regulations. Each business shall comply with State health regulations 
that are consistent with tribal and Federal health regulations.
    (f) Except as otherwise provided herein, nothing in this section may 
be construed as a grant of enforcement powers to any agency of a State 
or its subdivisions.
    (g) It is the duty of the health officers of the Indian Health 
Service to make periodic inspections, recommend improvements, and report 
thereon to the Commissioner.



Sec. 141.18  Availability of employee authorized to transact business.

    Each licensee shall provide during normal business hours an employee 
authorized in writing to engage in all business transactions that the 
licensee normally offers to customers.



Sec. 141.19  Check cashing.

    (a) A reservation business may give a fully negotiable check in 
addition to U.S. currency when cashing a draft, check or money order. A 
reservation business may not give scrip, credit or other substitute for 
U.S. currency when cashing a draft, check or money order.
    (b) A reservation business owner or employee may advise a customer 
cashing checks, money orders or drafts of the amount due on the 
customer's credit accounts, pawn accounts or any other obligation the 
customer owes to the business, but in no event may the owner or employee 
withhold the proceeds of the check, money order or

[[Page 376]]

draft from the customer on the basis of existing credit obligations.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.20  Payment for purchase of Indian goods or services.

    (a) A reservation business shall pay for the purchase of Indian 
goods or services with cash or a fully negotiable check. A reservation 
business may not pay for Indian goods or services with trade slips or 
future credit. In any transaction involving the purchase of Indian goods 
on the Navajo Reservation, the reservation business shall furnish a bill 
of sale indicating the name of the seller, a description of the goods, 
the amount paid for the goods, the date of sale, and the signature of 
both parties and shall retain a copy of the bill of sales in its 
business records.
    (b) A reservation business owner or employee may advise a customer 
selling Indian goods or services of the amount due on the customer's 
credit accounts, pawn accounts or any other obligation the customer owes 
to the business, but in no event may the owner or employee withhold the 
proceeds of the sale from the customer on the basis of existing credit 
obligations.



Sec. 141.21  Trade confined to premises.

    The licensee shall confine all trade on the reservation to the 
premises specified in the license, except, where permitted under 
Sec. 141.14, the buying and selling of livestock and livestock products.



Sec. 141.22  Subleasing prohibited.

    No licensee may lease, sublet, rent, or sell any building that the 
licensee occupies for any purpose to any person without the approval of 
the Commissioner and the consent of the tribe.



Sec. 141.23  Posted statement of ownership.

    The licensee of a reservation business shall display in a prominent 
place a notice that is legible to customers stating the form of the 
business entity, the names and addresses of all other reservation 
businesses owned in whole or in part by the business entity, and if the 
licensee is not a corporation, the names and addresses of the owner or 
owners of the business. If the licensee is a corporation the notice 
shall list the names and addresses of the members of the Board of 
Directors.



Sec. 141.24  Attendance at semi-annual meetings.

    Upon the request of a tribal official designated by the governing 
body, each licensee shall attend a semi-annual public meeting of a 
tribal governing body to respond to customer inquiries.



Sec. 141.25  Withholding of mail prohibited.

    No owner or employee of a reservation business may open, withhold, 
or otherwise delay the delivery of mail.



Sec. 141.26  Trade in antiquities prohibited.

    No licensee may knowingly buy, sell, rent or lease any artifact 
created before 1930 that was removed from an historic ruin or monument.



Sec. 141.27  Trade in imitation Indian crafts prohibited.

    No person may introduce or possess for disposition or sale within 
the exterior boundaries of the Hopi, Navajo or Zuni Reservations any 
object that is represented to be an Indian handicraft unless the object 
was produced by an Indian or Indians with the help of only such devices 
as allow the manual skill of the maker to condition the shape and design 
of each individual's product.



Sec. 141.28  Gambling prohibited.

    No licensee may permit any person to gamble by dice, cards, or in 
any way whatever, including the use of any mechanical device, on the 
premises of any licensed business.



Sec. 141.29  Political contributions restricted.

    No reservation business owner who is ineligible to vote in a Navajo 
tribal election may grant or donate any money or goods to any candidate 
for election to Navajo tribal office.



Sec. 141.30  Retaliation prohibited.

    No licensee may refuse service to any customer for the purpose of 
retaliating against that customer for enforcing or

[[Page 377]]

attempting to enforce the regulations of this part.



Sec. 141.31  Trade by Indian Affairs employees restricted.

    (a) Except as authorized in this section, no person employed by the 
U.S. Government in Indian Affairs may have any interest in any trade 
with an Indian or an Indian organization. Employees of the U.S. 
Government may trade with an Indian or Indian organization for any 
purpose other than to engage in a profit-making activity under the 
following conditions:
    (1) Where the amount involved is $500 or less a U.S. Government 
employee may purchase goods or services from an Indian or Indian 
organization.
    (2) Where the amount involved is greater than $500 a U.S. Government 
employee may, with the approval of the Secretary of the Interior, 
purchase goods or services from any Indian or Indian organization.
    (b) Lease or sale of home sites or allotments on trust or restricted 
Indian land to or from Indian employees of the U.S. Government shall be 
made on sealed bids, unless the Commissioner waives this requirement on 
the basis of a report showing:
    (1) The need for the transaction,
    (2) The benefits accruing to both parties, and
    (3) That the consideration for the proposed transaction is not less 
than the appraised value of the land or leasehold interest unless the 
Indian employee qualifies and is intending a transaction in accordance 
with Sec. 152.5 (b) and (c) of this chapter or Sec. 162.5(b)(1), (2) and 
(3) of this chapter.
An affidavit, as follows, shall accompany each proposed land 
transaction:

I,______________________________________(Name)

______________________________________(Title)

swear (or affirm) that I have not excercised any undue influence nor 
used any special knowledge received by reason of my office in obtaining 
the (grantor's, purchaser's, vendor's) consent to the instant 
transaction.

    (c) This section does not prohibit any reservation business from 
contracting with the Federal Government to provide postal services to 
Indian communities in which Government postal service is unavailable.
    (d) Nothing in this section prohibits an Indian employee from 
receiving benefits by reason of membership in a tribe or corporation or 
cooperative association organized by and operated for Indians.
    (e) U.S. Government employees who violate this section are liable to 
a penalty of five thousand dollars ($5,000) and shall be removed from 
office, see 25 U.S.C. 68.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]

    Editorial Note: For further information concerning Federal employees 
contracting or trading with Indians, see Executive Order 12328 of Oct. 
8, 1981, at 46 FR 50357, Oct. 13, 1981.



                     Subpart D--Pawnbroker Practices



Sec. 141.32  Reservation pawnbroker license required.

    (a) No person may accept pawns or pledges of personal property as 
security for monies or accounts due by an Indian within the exterior 
boundaries of the Navajo, Hopi or Zuni Reservations unless such person 
is an agent of a bank, saving bank, trust company, savings or building 
and loan association, or credit union operating under the laws of the 
United States or the laws of New Mexico, Arizona, or Utah or unless such 
person--
    (1) Holds a valid license to operate a reservation business,
    (2) Holds a valid reservation pawnbroker license, and
    (3) Posts a bond on a form provided by the commissioner in the name 
of the licensee in the amount of twenty-five thousand dollars ($25,000) 
or such larger sum as may be designated by the Commissioner with two (2) 
or more sureties approved by the Commissioner or with a guaranty company 
qualified under the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C. 6-
13).
    (b) An applicant for a reservation pawnbroker license shall apply in 
writing on a form provided by the Commissioner.
    (c) The bond required by paragraph (a) of this section shall be in 
favor of the United States for the benefits of the customers of the 
licensee and shall specifically indemnify all customers

[[Page 378]]

who have recovered judgment against the licensee for destroyed, lost, 
misplaced or misappropriated pawn or other property. Any customer 
recovering such a judgment may bring suit on the bond in his or her own 
name. The bond shall be for the same period as the license.
    (d) Any surety on a bond under this section may be relieved of 
liability by complying with the provisions of Sec. 141.57.
    (e) No person may accept pawns or pledges of personal property as 
security for monies or accounts due by an Indian after the effective 
date of a tribal ordinance banning the acceptance of pawn on the 
reservation.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 
FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.33  Fees for pawnbroker license.

    (a) Prior to the issuance of an initial pawnbroker license, each 
licensee who is not a member of the Navajo Tribe shall pay the following 
amount:
    (1) If the license is issued before July 1, the licensee shall pay 
two hundred dollars ($200).
    (2) If the license is issued on or after July 1, the licensee shall 
pay one hundred dollars ($100).
    (b) Each licensed pawnbroker who is not a member of the Navajo Tribe 
shall pay on or before January 10 of each year an annual license fee of 
two hundred dollars ($200).
    (c) The Area Director shall determine the annual license fee payable 
by licensees who are enrolled members of the Navajo Tribe. The license 
fee for a member of the Navajo Tribe may not be less than twenty percent 
(20 percent) nor greater than one hundred percent (100 percent) of the 
amount the licensee would be required to pay if the licensee were not 
tribal member.
    (d) All fees are payable to the Area Director and shall be deposited 
to the credit of the account ``Special Deposits.''

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982; 59 FR 54502, Oct. 31, 1994]



Sec. 141.34  Pawnbroker records.

    Each pawnbroker shall keep a written record of the following 
information:
    (a) Transaction number.
    (b) Name of pledgor.
    (c) Address of pledgor.
    (d) Census number or social security number of pledgor.
    (e) Date of transaction.
    (f) Replacement value of pawn.
    (g) Description of pawned item.
    (h) Amount loaned in cash.
    (i) Amount loaned as credit.
    (j) Finance charge.
    (k) Amount financed.
    (l) Date and amount of payments made by pledgor.
    (m) Date notice of default sent to pledgor.
    (n) Date pawned item sold.
    (o) Name and address of purchaser.
    (p) Amount received upon sale.
    (q) Amount of any surplus returned to the pledgor.
    (r) Such other information as the Commissioner may require.



Sec. 141.35  Pawnbroker disclosure requirements.

    In all transactions in which pawn is taken the lender shall give the 
borrower a written ticket or receipt disclosing the following 
information to the extent applicable:
    (a) Clear identification of the property pledged.
    (b) The date of the transaction.
    (c) Amount of the loan.
    (d) Name and social security or census number of the pledgor.
    (e) Replacement value of the pawn as agreed upon by the pledgor and 
pledgee.
    (f) Date on which loan is due.
    (g) The amount, expressed as a dollar amount, of any finance 
charges.
    (h) The finance charges expressed as an annual percentage rate and 
computed in accordance with the provisions of 12 CFR 226.5(b).
    (i) The amount, or method of computing the amount, of any charges to 
be assessed after the date the loan is due.
    (j) A statement of the conditions of default and the pledgor's 
rights upon default, as defined by this part.

[[Page 379]]

    (k) Identification of the method of computing any unearned portion 
of the finance charges in the event of prepayment of the obligation.



Sec. 141.36  Maximum finance charges on pawn transactions.

    No pawnbroker may impose an annual finance charge greater than 
twenty-four percent (24 percent) of the unpaid balance for the period of 
the loan nor assess late charges or delinquency charges on any loan.



Sec. 141.37  Prepayment.

    (a) Subject to the provisions of paragraph (b) of this section, the 
pledgor may prepay in full or in any part the unpaid balance of a loan 
at any time without penalty.
    (b) When a loan is prepaid the lender may collect the earned portion 
of the finance charge or may charge an administrative fee not to exceed 
ten percent (10 percent) of the unearned finance charge or two dollars 
($2) whichever is greater.



Sec. 141.38  Pawn loans, period, notice and sale.

    (a) The proceeds of all loans secured by pawn and for which a 
finance charge is imposed shall be paid only in cash or with a fully 
negotiable check.
    (b) The period of all such loans shall be no less than twelve (12) 
months, subject to the provisions of paragraph (c).
    (c) Thirty (30) days prior to the end of the loan period the pledgee 
may make a declaration of intention to proceed with sale of the pawned 
item by sending notice of intent to the pledgor.
    (d) The notice required in paragraph (c) of this section shall be 
sent to the pledgor and proof of delivery obtained and shall contain a 
description of the item pawned, a statement of the principal and finance 
charge owed, a statement of the intention to sell, the date of the sale, 
and the procedure for redemption.
    (e) Nothing in this section requires the business owner to proceed 
with notice and sale if the business owner desires to hold the pawn for 
a period longer than the loan period stated in the original agreement.
    (f) Unless notice is given under paragraph (c) of this section, or 
the loan is refinanced under the provisions of Sec. 141.41, no finance 
charge may be imposed for the time the loan remains unpaid after the end 
of the loan period stated on the pawn ticket.



Sec. 141.39  Sale and redemption of pawn.

    (a) If the retention period has expired and notice as required under 
Sec. 141.38 of this part has been sent and received, the pledgee may 
proceed with the sale of the pawn.
    (b) The pawn shall be sold no sooner than thirty (30) days but no 
later than twelve (12) months after notice of intent to sell has been 
given. The sale shall be a public sale, with notice of the time, place, 
and manner to be given in a tribal newspaper of general circulation not 
less than fourteen (14) days prior to the sale, or in the absence of 
such a newspaper, in a commercially reasonable manner. The sale itself 
shall also be conducted in a commercially reasonable manner.
    (c) A pledgor may redeem pawn which has been put up for sale at any 
time before the day it is to be sold by tendering to the pledgee the 
face amount of the loan, plus the finance charge assessed on the 
original loan. The pledgee may also collect an additional charge 
covering the period between the date due and the date of redemption, 
provided that the rate of charge does not exceed the finance charge on 
the original loan.
    (d) The pledgee may buy at the pledgee's own sale if the collateral 
is of a type customarily sold in a recognized market or which is the 
subject of widely distributed standard price quotations.
    (e) Pawn held for more than twelve (12) months after notice of 
intent to sell has been given may not be sold, but the pledgor may 
redeem the pawn at any time by tendering to the pledgee the face amount 
of the loan, plus the finance charge that accrued before the end of the 
sale period provided in paragraph (b) of this section.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.40  Proceeds of sale.

    (a) The following items shall be deducted from the proceeds of the 
sale of

[[Page 380]]

pawned items in the following order of priority:
    (1) The expense of advertising and conducting the sale, not to 
exceed ten percent (10%) of the amount loaned.
    (2) The principal amount of the loan, plus any accrued finance 
charges.
    (3) The finance charge calculated at the annual percentage rate of 
the original loan on the unpaid balance of the loan for the period from 
the date of default to the date of sale.
    (b) Within ten (10) days after the sale of the pledge under this 
section, the pledgee shall send a notice to the pledgor informing the 
pledgor of the date of the sale, the proceeds of the sale, the allowable 
costs of the sale, any additional finance charges, and the amount of any 
surplus realized. The pledgee shall obtain proof that the notice was 
delivered.
    (c) Any proceeds of the sale remaining after the deductions 
authorized in paragraph (a) of this section are deemed to be ``surplus'' 
and shall be paid over to the pledgor or the pledgor's estate in U.S. 
currency.
    (d) The sale of pledged goods and the application of the proceeds in 
accordance with this section extinguishes all rights of action of the 
pledgee for any unpaid principal or finance charge on the original loan.



Sec. 141.41  Refinancing transaction.

    (a) Any pawn agreement may be refinanced, either with or without an 
increase in the principal amount of the loan, prior to or following the 
date of expiration of the original period of the loan upon agreement 
between the parties.
    (b) Such refinancing constitutes a new transaction for purposes of 
all disclosure and record keeping requirements of this part and requires 
the issuance of a new ticket or receipt.
    (c) The rate of the additional finance charge imposed as part of the 
refinancing agreement may not exceed the maximum rate imposed by 
Sec. 141.36.
    (d) The total finance charges in a refinancing agreement may not 
exceed the sum of the following amounts:
    (1) The finance charge that the pledgor would have been required to 
pay upon prepayment on the date of refinancing under Sec. 141.37 of this 
part, except that, for the purpose of computing this amount, no minimum 
finance charge or administrative fee may be included, and
    (2) Such additional finance charge as is permissible on the balance 
of the loan over the remaining period of the loan as extended.
    (e) The default and sale procedures of this part apply to a 
refinanced pawn transaction in the same manner as they apply to an 
original pawn transaction.



Sec. 141.42  Lost pawn receipts or tickets.

    (a) Redemption may not be denied on the sole ground that the pledgor 
is unable to produce a receipt or pawn ticket, provided the pledgor 
gives a reasonable description of the pawned item or makes an actual 
identification of the item. The pledgee may require the pledgor to sign 
a receipt for the redeemed pawn. No person other than the pledgor may 
redeem pawn without a ticket.
    (b) No additional charges may be imposed for the loss of a pawn 
receipt or ticket.



Sec. 141.43  Outstanding obligations owed to pledgee.

    If the pledgor tenders payment to be applied toward redemption of a 
pawned item, it shall be so applied by the pledgee, irrespective of 
other outstanding obligations owed by the pledgor to the pledgee. The 
pledgee may not deny the pledgor the right to redeem the pawn.



Sec. 141.44  Insurance on pawn.

    (a) Any licensee under this part who lends money or extends credit 
with personal property as security and holds such property as a pledge 
shall maintain invault all risk insurance coverage running in favor of 
the pledgor for such property in amounts based upon a report issued 
monthly to the insurer. Such monthly report shall be an amount not less 
than the total agreed replacement value of all pawned items then held by 
the licensee.
    (b) A copy of the insurance policy shall be available for inspection 
at the licensee's place of business and a copy shall be filed with the 
Commissioner.

[[Page 381]]



         Subpart E--Consumer Credit Transactions Other Than Pawn



Sec. 141.45  Consumer credit applications.

    Any reservation business offering credit which is not secured by 
pawn shall provide an application for credit to any customer requesting 
credit. Within thirty (30) days of the date of application, the lender 
shall act upon the application and notify the customer in writing of the 
decision with the reason therefor. A business owner who reduces the 
amount of credit available to a customer or terminates a credit account 
shall provide written notice to the customer stating the reason for the 
reduction or termination of such credit.



Sec. 141.46  Credit disclosure statements.

    Upon approval of a credit application the lender shall give the 
applicant the following information where applicable in a written 
disclosure statement:
    (a) The maximum credit limit of the account.
    (b) The conditions under which a finance charge may be imposed.
    (c) The period in which payment may be made without incurring a 
finance charge.
    (d) The method used in determining the balance on which the finance 
charge is calculated.
    (e) The method used to calculate the finance charge.
    (f) The periodic rates used and the range of balances to which each 
rate applies.
    (g) The conditions under which additional charges may be made and 
the method for calculating those charges.
    (h) A description of any lien that may be acquired on a customer's 
property.
    (i) The minimum payment that must be made on each billing.



Sec. 141.47  Monthly billing statement.

    On all credit accounts on which a finance charge may be imposed and 
for all other credit accounts when requested by the customer, a licensee 
shall issue a monthly billing statement to the customer stating the 
following information where applicable:
    (a) The unpaid balance at the start of the billing period.
    (b) The amount and date of each extension of credit and 
identification of each item costing more than ten dollars ($10).
    (c) Payments made by a customer and other credits, including 
returns, rebates, and adjustments.
    (d) The finance charge shown in dollars and cents.
    (e) The rates used in calculating the finance charge plus the range 
of balances to which the finance charge was calculated.
    (f) The closing date of the billing cycle.
    (g) The unpaid balance at that time.



Sec. 141.48  Translation of disclosure statements.

    Disclosure required by Secs. 141.46 and 141.47 shall be made in 
writing regardless of the customer's ability to speak, read, or write 
the English language. Disclosure to non-English speaking persons shall 
be translated orally into the appropriate language.



Sec. 141.49  Usury prohibited.

    No reservation business may take or receive money, goods, or other 
things of value for a loan or forbearance on a debt that exceeds in 
value the principal plus twenty-four percent (24 percent) per annum 
finance charge. Any reservation business contracting for, reserving, or 
receiving directly or indirectly, any greater amount shall forfeit the 
finance charge.



         Subpart F--Enforcement Powers, Procedures and Remedies



Sec. 141.50  Penalty and forfeiture of merchandise.

    Any person other than an enrolled member of the tribe who either 
resides as a reservation business owner within the exterior boundaries 
of the Navajo, Hopi, or Zuni Reservations or introduces or attempts to 
introduce goods or to trade therein without a license shall forfeit all 
merchandise offered for sale to the Indians or found in the person's 
possession and is liable to a penalty of five hundred dollars ($500). 
This section may be enforced by commencing an action in the appropriate 
United States District Court under the provisions of 28 U.S.C. 1345.

[[Page 382]]



Sec. 141.51  Authority to close unlicensed reservation businesses.

    The Commissioner shall close any reservation business subject to the 
provisions of this part that does not hold a valid license or temporary 
permit.



Sec. 141.52  Revocation of license and lease and recovery on bond.

    The reservation business owner is subject to revocation of license 
and lease and recovery on the bond in whole or in part in the event of 
any violation of the regulations of this part after a show cause 
proceeding according to the provisions of Sec. 141.56.

[41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.53  Cease and desist orders.

    (a) If the Commissioner believes that violation of the regulations 
in this part is occurring, the Commissioner may order the person 
believed to be in violation to show cause according to the provisions of 
Sec. 141.56 why a cease and desist order should not be issued.
    (b) If the person accused of the violations fails to show cause at 
the hearing why such an order should not issue, the Commissioner shall 
issue the order.
    (c) A person subject to a cease and desist order issued under this 
section who violates the order is liable to revocation of license after 
a show cause proceeding according to the provisions of Sec. 141.56 of 
this part.



Sec. 141.54  Periodic review of performance.

    (a) The Commissioner shall review licenses at ten (10) year 
intervals to determine whether or not the business is operating in 
accordance with these regulations and all other applicable laws and 
regulations and whether the business is adequately serving the economic 
needs of the community.
    (b) If, as a result of the review provided in paragraph (a) of this 
section, the Commissioner finds that the licensee has repeatedly 
violated these regulations, the Commissioner may order the licensee to 
show cause according to the provisions of Sec. 141.56 why the licensee's 
license should not be revoked.
    (c) If the licensee fails to show cause why the license should not 
be revoked, the Commissioner shall revoke the license.



Sec. 141.55  Price monitoring and control.

    (a) A reservation business may not charge its customers unfair or 
unreasonable prices. To insure compliance with this section, the 
Commissioner shall perform audits as provided in Sec. 141.58. In 
performing those audits the Commissioner may inspect all original books, 
records, and other evidences of the cost of doing business. In addition, 
at least once a year the Commissioner shall cause to be made a survey of 
the prices of flour, sugar, fresh eggs, lard, coffee, ground beef, 
bread, cheese, fresh milk, canned fruit, and such other goods as the 
Commissioner deems appropriate in all stores licensed under these 
regulations and in a representative number of similar stores located in 
communities immediately adjoining the reservations. The results of the 
survey shall be posted publicly, sent to each licensed business, and 
made available to the appropriate agency of the tribal government. 
Copies of the survey shall be available at the office of the Area 
Director.
    (b) If the Commissioner finds that a reservation business is 
charging higher prices, especially for basic consumer commodities, than 
those charged on the average based on the studies conducted under the 
provisions of paragraph (a) of this section, the Commissioner may order 
the business owner to show cause under the provisions of Sec. 141.56 why 
an order should not be issued to reduce prices. If the Commissioner 
determines that the prices charged by the business are not economically 
justified, based on all of the information, then the Commissioner may 
order the business to reduce its price on all items determined to be 
priced too high to a reasonable price as determined by the Commissioner, 
but in no event to a lower price than the cost of the item increased by 
a reasonable mark-up.



Sec. 141.56  Show cause procedures.

    (a) When the Commissioner believes there has been a violation of 
this part

[[Page 383]]

the Commissioner shall serve the licensee with written notice setting 
forth in detail the nature of the alleged violation and stating what 
remedial action the Commissioner proposes to take.
    (b) The licensee shall have ten (10) days from the date of receipt 
of notice in which to show cause why the contemplated remedial action 
should not be ordered.
    (c) If within the ten (10) day period the Commissioner determines 
that the violation may be corrected and the licensee agrees to take the 
necessary corrective measure, the licensee shall be given the 
opportunity to take the necessary corrective measures.
    (d) If the licensee fails within a reasonable time to correct the 
violation or to show cause why the contemplated remedial action should 
not be ordered, the Commissioner shall order the appropriate remedial 
action.
    (e) If the Commissioner orders remedial action the licensee may 
appeal under the provisions of part 2 of this title not later than 
thirty (30) days after the date on which the remedial action is ordered.



Sec. 141.57  Procedures to cancel liability on bond.

    (a) Any surety who wishes to be relieved from liability arising on a 
bond issued under this part shall file with the Commissioner a statement 
in writing setting forth the desire of the surety to be relieved of 
liability and the reasons therefor.
    (b) The surety shall mail a copy of the statement by certified mail, 
return receipt requested, to the last known address of the licensee 
named in the bond.
    (c) Twenty (20) days after the statement required in paragraph (b) 
of this section is mailed to the licensee and the statement required in 
paragraph (a) of this section is filed with the Commissioner, the surety 
from all liability thereafter arising on the bond.
    (d) If the licensee does not have other bond sufficient to meet the 
requirements of this part or has not executed and filed a new or 
substitute bond within twenty (20) days after the service of the 
statement, the Commissioner shall declare the license and lease void.
    (e) No surety is released from liability under the bond for claims 
which arose prior to the issuance of the Commissioner's order releasing 
the surety.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 
FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.58  Records, reports, and obligations of reservation business owners.

    (a) The Commissioner may, in consultation with interested persons 
and agencies, promulgate a model bookkeeping system for use in 
reservation businesses. Until such model bookkeeping system is 
promulgated, each business owner shall keep records in accordance with 
generally accepted accounting principles.
    (b) Each reservation business owner shall file with the Area 
Director an annual report on or before April 15 in a form approved by 
the Commissioner. Reports shall be subject to a yearly audit. The 
reports shall contain the names and respective interests of all persons 
participating in the business.
    (c) The business owner or an employee shall record all sales and 
purchases whether for cash or credit. If the business is on the Navajo 
Reservation the owner or an employee shall supply the customer with a 
copy of the sale transaction containing a description of the article 
purchased or sold, the date of the transaction, and the price. A cash 
register receipt complies with this paragraph for grocery or dry goods 
purchases for cash.
    (d) The licensee shall keep a duplicate copy of any writing required 
by paragraph (c) of this section for a period of not less than three (3) 
years and shall provide the customer or the customer's representative 
one copy of those writings upon request.

[40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976; 41 
FR 13937, Apr. 1, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 141.59  Customer complaint procedures.

    (a) Any customer of a licensee may file a complaint with the 
Commissioner alleging that the licensee has committed a violation of 
this part.

[[Page 384]]

    (b) Upon receipt of a customer complaint the Commissioner shall 
initiate show cause proceedings under the provisions of Sec. 141.56 of 
this part.
    (c) If the Commissioner fails to order remedial action within forty 
(40) days from the date the complaint is filed, the complainant may 
appeal under the provisions of part 2 of this title not later than 
seventy (70) days after the date the complaint is filed.
    (d) If the Commissioner orders remedial action, the complainant may 
appeal under the provisions of part 2 of this title not later than 
thirty (30) days after the date on which the remedial action is ordered.



PART 142--OPERATION OF U.S.M.S. ``NORTH STAR'' BETWEEN SEATTLE, WASH., AND STATIONS OF THE BUREAU OF INDIAN AFFAIRS AND OTHER GOVERNMENT AGENCIES, ALASKA--Table of Contents




Sec.
142.1  Responsibility for operation.
142.2  Transportation of freight for Federal agencies and others.
142.3  Employment of Natives.
142.4  Prohibition of trade with Natives.
142.5  Passenger rates.
142.6  Private passengers.
142.7  Transportation of children.
142.8  Transportation of Federal employees and their families and 
          Natives.
142.9  Preferential passengers.

    Authority: 5 U.S.C. 301.

    Source: 22 FR 10674, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 142.1  Responsibility for operation.

    (a) The director of the Seattle Liaison Office, Bureau of Indian 
Affairs, Seattle, Washington, under the jurisdiction of the Area 
Director, Juneau Area Office, Bureau of Indian Affairs, Juneau, Alaska, 
has responsibility for the operation of the ship for the Department of 
the Interior, Bureau of Indian Affairs, including repair, upkeep, 
payment of bills and employment of personnel.
    (b) Itineraries for each voyage shall be made by the Director of the 
Seattle Liaison Office in consultation with the Area Director of the 
Juneau Area Office, Bureau of Indian Affairs, Juneau, Alaska. Preference 
is to be accorded to the work of the Bureau of Indian Affairs. The Area 
Director is vested with authority to direct the use of the ship to 
perform special services which may arise and to act in any emergency.

[39 FR 12246, Apr. 4, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 142.2  Transportation of freight for Federal agencies and others.

    (a) All agencies of the Federal Government, including activities of 
the Bureau of Indian Affairs, Alaskan Natives, cooperatives of Alaskan 
Natives, business enterprises owned and operated by Alaskan Natives and 
Federal employees shall be charged for freight, lighterage and 
longshoring and other terminal charges in accordance with tariff rates 
and terminal charges established by the Commissioner of Indian Affairs.
    (b) Baggage and other personal property of passengers that cannot be 
readily accommodated in the passengers' staterooms will be manifested as 
freight and charged for at the established rates.
    (c) Commercial freight may be carried between points where adequate 
service is not provided by commercial vessels. Commercial freight, when 
carried, shall be prepaid at the same tariff rates established under 
paragraph (a) of this section.
    (d) All freight accepted must be properly manifested, giving the 
name and address of the consignor and the consignee, and a description 
of the goods, including gross weight.
    (e) The liability of the United States for any loss or damage to, or 
non-delivery of freight shall be limited as permitted in 46 U.S.C. 746 
and the Carriage of Goods by Sea Act (46 U.S.C. 1300-1315), and the 
terms of such limitation of liability shall be contained in any document 
of title relating to the carriage of goods by sea.

[22 FR 10674, Dec. 24, 1957, as amended at 27 FR 12399, Dec. 14, 1962. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 142.3  Employment of Natives.

    Natives shall be employed on the ``North Star'' to fill all 
positions for which they are qualified.

[[Page 385]]



Sec. 142.4  Prohibition of trade with Natives.

    Officers and members of the crew on the vessel are prohibited from 
engaging in trade with the Natives.



Sec. 142.5  Passenger rates.

    Rates for transportation of passengers shall be established by the 
Commissioner and shall be the same for all passengers, except as 
provided in Sec. 142.7. Rates shall be on file for public inspection at 
the Bureau of Indian Affairs offices in Seattle, Washington and Juneau, 
Alaska.



Sec. 142.6  Private passengers.

    No private passengers (except Federal employees and their families 
and Natives of Alaska) shall be transported on the ``North Star'' 
between points where adequate services are provided by commercial 
vessels. Where such commercial vessels are not available, and where 
accommodations can be furnished on the ``North Star'' without detriment 
to Government business, private travelers may be transported at the 
rates established pursuant to Sec. 142.5.



Sec. 142.7  Transportation of children.

    The rates established for the transportation of children shall be 
subject to the following rules:
    (a) No charge shall be made for transportation of children under two 
years of age.
    (b) Children who have reached their second birthday, but not their 
twelfth birthday shall be transported at half the rate established 
pursuant to Sec. 142.5 for all other passengers.



Sec. 142.8  Transportation of Federal employees and their families and Natives.

    (a) All agencies of the Federal Government will be billed at the 
rates established pursuant to Sec. 142.5 for each employee traveling on 
official business.
    (b) When not in official travel status, Federal employees and 
families of Federal employees will be transported at the rates 
established pursuant to Sec. 142.5.
    (c) Natives of Alaska, who are not indigent, will be charged the 
same rates as all other passengers.



Sec. 142.9  Preferential passengers.

    In the booking of passage on the ship, preference shall be given to 
employees of the Bureau of Indian Affairs and their families, to Natives 
of Alaska, and to Public Health Service personnel traveling in behalf of 
the Indian health program, and their families.



PART 143--CHARGES FOR GOODS AND SERVICES PROVIDED TO NON-FEDERAL USERS--Table of Contents




Sec.
143.1  Definitions.
143.2  Purpose.
143.3  Procedures.
143.4  Charges.
143.5  Payment.

    Authority: 31 U.S.C. 9701; 25 U.S.C. 2, 13, 413.

    Source: 55 FR 19621, May 10, 1990, unless otherwise noted.



Sec. 143.1  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary--Indian 
Affairs, Department of the Interior, or other employee to whom authority 
has been delegated.
    (b) Reservation means any bounded geographical area established or 
created by treaty, statute, executive order, or interpreted by court 
decision and over which a federally recognized Indian Tribal entity may 
exercise certain jurisdiction.
    (c) Flat fee is the amount prorated to each user based on the total 
costs incurred by the Government for the goods/services being provided.
    (d) Non-Federal users are persons not employed by the Federal 
Government who receive goods/services provided by the BIA.
    (e) Goods/Services for the purpose of these regulations are those 
provided or performed at the request of an indentifiable recipient and 
are above and beyond those which accrue to the public at large.



Sec. 143.2  Purpose.

    (a) The purpose of the regulations in this part is to establish 
procedures for the assessment, billing, and collection of charges for 
goods/services provided to non-Federal users.

[[Page 386]]

    (b) The Assistant Secretary may sell or contract to sell to non-
Federal users within, or in the immediate vicinity of an Indian 
Reservation (or former Reservation), any of the following goods/services 
if it is determined that the goods/services are not available from 
another local source or providing that goods/services is in the best 
interest of the Indian tribes or individual Indians. The goods/services 
include, but are not limited to:
    (1) Electric power;
    (2) Water;
    (3) Sewage operations;
    (4) Landfill operations;
    (5) Steam;
    (6) Compressed air;
    (7) Telecommunications;
    (8) Natural, manufactured, or mixed gas;
    (9) Fuel oil;
    (10) Landscaping; and
    (11) Garbage collections.



Sec. 143.3  Procedures.

    (a) All non-Federal users who receive the above listed goods/
services must sign a standard agreement adopted by the Assistant 
Secretary for the goods/services. This agreement shall contain the 
following statement:

    ``Application for __________ (specify good(s)/service(s)) is hereby 
requested at the noted address. In exchange for receiving the requested 
good(s)/service(s), the applicant agrees to accept and abide by all 
applicable rules, regulations, and rate schedules, including any future 
amendments, additions, or changes thereto. If the applicant should fail 
to comply with any of the rules, regulations, or rate schedules, the 
cost incurred by the United States Government for enforcement of same 
shall be charged to the applicant.

    (b) Lack of a signed agreement does not invalidate payment 
requirements. Any user will be responsible for payment of actual goods/
services received or delivered.



Sec. 143.4  Charges.

    (a) Charges shall be established by the Assistant Secretary and 
shall be based upon the total costs (including both direct and indirect) 
of goods/services to the Government at that locale. A schedule of 
charges will be made available to the public upon request.
    (b) All documentation used in establishing charges must be 
maintained at the appropriate Bureau of Indian Affairs agency or Area 
Office and shall be made available for review by the public upon 
request.
    (c) Established charges may be reviewed, amended, and adjusted 
monthly, but not less than annually.
    (d) A flat fee may be charged where it is impractical to measure 
actual usage by recipients.
    (e) Security deposits are authorized under this regulation at the 
discretion of the Assistant Secretary. The deposit may not exceed the 
amount of one billing cycle. All deposits will be applied to the final 
bill.



Sec. 143.5  Payment.

    (a) The Assistant Secretary--Indian Affairs will establish a billing 
cycle that is appropriate to the goods/services being provided.
    (b) Payment is due within 30 days after the billing date.
    (c) Upon non-payment by the non-Federal user, the Assistant 
Secretary may discontinue service. Service may be discontinued after 
proper notification by letter. Proper notification shall include:
    (1) Written notice to user that payment is due. Such notice shall 
afford the user the opportunity to challenge payment or excuse non-
payment within 14 days of the date on the notification letter.
    (2) Following the expiration of the 14 day deadline for response, 
and after consideration of any such response, the Assistant Secretary--
Indian Affairs may notify the user by letter that if payment is not 
received within 10 days of the date on the letter, the service will be 
discontinued.
    (d) The Assistant Secretary has the discretion to continue services 
for health and safety reasons. However, the non-Federal user is still 
responsible for payment for goods/services provided.
    (e) Once service has been discontinued based on deliquency of 
payment, the discontinuance may be appealed under part 2 of this title.

[[Page 387]]



                      SUBCHAPTER H--LAND AND WATER





PART 150--LAND RECORDS AND TITLE DOCUMENTS--Table of Contents




Sec.
150.1  Purpose and scope.
150.2  Definitions.
150.3  Maintenance of land records and title documents.
150.4  Location and service areas for land titles and records offices.
150.5  Other Bureau offices with title service responsibility.
150.6  Recordation of title documents.
150.7  Curative action to correct title defects.
150.8  Title status reports.
150.9  Land status maps.
150.10  Certification of land records and title documents.
150.11  Disclosure of land records, title documents, and title reports.

    Authority: Act of June 30, 1834 (4 Stat. 738; 25 U.S.C. 9). Act of 
July 26, 1892 (27 Stat. 272; 25 U.S.C. 5). Reorganization Plan No. 3 of 
1950 approved June 20, 1949 (64 Stat. 1262). (Act of April 26, 1906 (34 
Stat. 137); Act of May 27, 1908 (35 Stat. 312); Act of August 1, 1914 
(38 Stat. 582, 598) deal specifically with land records of the Five 
Civilized Tribes.)

    Source: 46 FR 47537, Sept. 29, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

    Cross-Reference: For further regulations pertaining to proceedings 
in Indian probate, see 43 CFR part 4, subpart D.



Sec. 150.1  Purpose and scope.

    These regulations set forth authorities, policy and procedures 
governing the recording, custody, maintenance, use and certification of 
title documents, and the issuance of title status reports for Indian 
land.



Sec. 150.2  Definitions.

    As used in this part.
    (a) ``Secretary'' is the Secretary of the Interior or his authorized 
representative.
    (b) ``Commissioner'' is the Commissioner of Indian Affairs or his 
authorized representative.
    (c) ``Agency'' is an Indian Agency or other field unit of the Bureau 
of Indian Affairs having Indian land under its immediate jurisdiction.
    (d) ``Superintendent'' is the designated officer in charge of an 
Agency.
    (e) ``Tribe'' is a tribe, band, nation, community, rancheria, 
colony, pueblo, or other Federally-acknowledged group of Indians.
    (f) ``Bureau'' is the Bureau of Indian Affairs.
    (g) ``Land'' is real property, including any interests, benefits, 
and rights inherent in the ownership of the real property.
    (h) ``Indian land'' is an inclusive term describing all lands held 
in trust by the United States for individual Indians or tribes, or all 
lands, titles to which are held by individual Indians or tribes, subject 
to Federal restrictions against alienation or encumbrance, or all lands 
which are subject to the rights of use, occupancy and/or benefit of 
certain tribes. For purposes of this part, the term Indian land also 
includes land for which the title is held in fee status by Indian 
tribes, and U.S. Government-owned land under Bureau jurisdiction.
    (i) ``Administrative Law Judge'' is an employee of the Office of 
Hearing and Appeals, Department of the Interior, upon whom authority has 
been conferred by the Secretary to probate the trust or restricted 
estates of deceased Indians in accordance with 43 CFR part 4, subpart D.
    (j) ``Land Titles and Records Offices'' are those offices within the 
Bureau of Indian Affairs charged with the Federal responsibility to 
record, provide custody, and maintain records that affect titles to 
Indian lands, to examine titles, and to provide title status reports for 
such land.
    (k) ``Manager'' is the designated officer in charge of a Land Titles 
and Records Office.
    (l) ``Title document'' is any document that affects the title to or 
encumbers Indian land and is required to be recorded by regulation or 
Bureau policy.
    (m) ``Recordation'' or ``recording'' is the acceptance of a title 
document by the appropriate Land Titles and Records Office. The purpose 
of recording is to provide evidence of a transaction, event, or 
happening that affects land titles; to preserve a record of the title

[[Page 388]]

document; and to give constructive notice of the ownership and change of 
ownership and the existence of encumbrances to the land.
    (n) ``Title examination'' means an examination and evaluation by a 
qualified title examiner of the completeness and accuracy of title 
documents affecting a particular tract of Indian land with certification 
of the findings by the Manager of the Land Titles and Records Office.
    (o) ``Title status report'' means a report issued after a title 
examination which shows the proper legal description of a tract of 
Indian land; current ownership, including any applicable conditions, 
exceptions, restrictions or encumbrances on record; and whether the land 
is in unrestricted, restricted, trust, or other status as indicated by 
the records in a Land Titles and Records Office.



Sec. 150.3  Maintenance of land records and title documents.

    The Land Titles and Records Offices within the Bureau are hereby 
designated as the offices of record for land records and title documents 
and are hereby charged with the Federal responsibility to record, 
provide custody, and maintain records that affect titles to Indian land, 
to examine titles, and to provide title status reports.



Sec. 150.4  Locations and service areas for land titles and records offices.

    Shown below are present Land Titles and Records Offices and the 
jurisdictional area served by each office.
    (a) Aberdeen, S. Dakota Office provides title service for Indian 
land located under the jurisdiction of the Aberdeen and Minneapolis Area 
Offices, except for Indian land on the White Earth, Isabella, and Oneida 
Indian Reservations.
    (b) Albuquerque, New Mexico Office provides title services for 
Indian land located under the jurisdiction of the Albuquerque, Navajo, 
and Phoenix Area Offices.
    (c) Anadarko, Oklahoma Office provides title services for Indian 
land located under the jurisdiction of the Anadarko Area Office and 
under the Miami Agency of the Muskogee Area Office.
    (d) Billings, Montana Office provides title services for Indian land 
located under the jurisdiction of the Billings Area Office.
    (e) Portland, Oregon Office provides title services for Indian land 
located under the jurisdiction of the Portland and Sacramento Area 
Offices.



Sec. 150.5  Other Bureau offices with title service responsibility.

    (a) Muskogee Area Office is the office of record and performs 
limited title functions for all Indian land of the Five Civilized 
Tribes. The regulations in this part apply to the Muskogee Area Office 
to the extent that they relate to the title services performed by that 
office.
    (b) The Juneau Area Office has title service responsibility for the 
Juneau Area. This authority has been largely delegated to the agencies. 
The regulations in this part apply to the Juneau Area Office to the 
extent practicable.
    (c) The Cherokee Agency has title service responsibility for the 
Eastern Cherokee Reservation. The regulations in this part apply to the 
Cherokee Agency to the extent practicable.
    (d) The Bureau Central Office, Washington, DC, provides title 
services for all other Indian land not shown above in Sec. 150.4 or in 
this section, including the land of the Absentee Wyandottes. The 
regulations in this part apply to the Central Office.



Sec. 150.6  Recordation of title documents.

    All title documents shall be submitted to the appropriate Land 
Titles and Records Office for recording immediately after final 
approval, issuance, or acceptance. Bureau officials delegated authority 
by the Secretary to approve title documents or accept title are 
responsible for prompt compliance with the recording requirement. 
Documents submitted for recording shall be completed in accordance with 
prescribed Bureau regulations or instructions.
    (a) Title documents other than probate records. The original, a 
signed duplicate, or a certified copy of such documents shall be 
submitted for recording. Following the recording process, the

[[Page 389]]

Land Titles and Records Office will return those title documents that 
are required to be returned to the originating office with appropriate 
recording information.
    (b) Probate records. In accordance with 43 CFR part 4, subpart D, 
Administrative Law Judges shall forward the original record of Indian 
probate decisions and copies of petitions for rehearing, reopening, and 
other appeals to the Land Titles and Records Office which provides 
service to the originating Agency. If trust land or Indian heirs 
involved in the probate are located within the jurisdictional area of 
another Land Titles and Records Office, the Administrative Law Judge 
shall also send a duplicate copy to that office. Probate records 
submitted by an Administrative Law Judge for recording will be retained 
by the Land Titles and Records Office.



Sec. 150.7  Curative action to correct title defects.

    Land Titles and Records Office shall initiate such action as 
described below to cure defects in the record discovered during the 
recording of title documents or examination of titles.
    (a) If an error is traced to a defective title document other than 
probate records, the Land Titles and Records Office shall notify the 
originating office of the defect.
    (b) If errors are discovered in probate records, the Land Titles and 
Records Office may initiate corrective action as follows:
    (1) An administrative modification shall be issued to modify probate 
records to include any Indian land omitted from the inventory if such 
property is located in the same state and takes the same line of descent 
as that shown in the original probate decision. Authority is delegated 
to the Commissioner by 43 CFR 4.272 to make such modifications except on 
those Indian reservations covered by special Inheritance Acts (43 CFR 
4.300). Copies of administrative modifications shall be distributed to 
the appropriate Administrative Law Judge, Agencies with jurisdiction 
over the Indian land, and to all persons who share in the estate.
    (2) Land Titles and Records Offices shall notify the Superintendent 
when modifications are required by Administrative Law Judges for other 
types of probate errors. Corrective action is then initiated in 
accordance with 43 CFR part 4, subpart D.
    (3) Land Titles and Records Offices shall issue administrative 
corrections to correct probate errors which are clerical in nature and 
which do not affect vested property rights or involve questions of due 
process. Copies of administrative corrections are distributed to the 
appropriate Administrative Law Judge and Agency.



Sec. 150.8  Title status reports.

    Land Titles and Records Offices may conduct a title examination of a 
tract of Indian land provide a title status report upon request to those 
persons authorized by law to receive such information. Requests for 
title status reports shall be submitted by or through the Bureau office 
that has administrative jurisdiction over the Indian land. All requests 
must clearly identify the tract of Indian land.



Sec. 150.9  Land status maps.

    The Land Titles and Records Offices shall prepare and maintain maps 
of all reservations and similar entities within their jurisdictions to 
assist Bureau personnel in the execution of their title service 
responsibilities. Base maps shall be prepared from plats of official 
survey made by the General Land Office and the Bureau of Land 
Management. These base maps, showing prominent physical features and 
section, township and range lines, shall be used to prepare land status 
maps. The land status maps shall reflect the individual tracts, tract 
numbers, and current status of the tract. Other special maps, such as 
plats and townsite maps, may also be prepared and maintained to meet the 
needs of individual Land Titles and Records Offices, Agencies, and 
Indian tribes.



Sec. 150.10  Certification of land records and title documents.

    Under the provisions of the Act of July 26, 1892 (27 Stat. 273; 25 
U.S.C. 6), an offical seal was created for the use of the Commissioner 
of Indian Affairs in authenticating and certifying copies of Bureau 
records. Managers of Land

[[Page 390]]

Titles and Records Offices are designated as Certifying Officers for 
this purpose. When a copy or reproduction of a title document is 
authenticated by the official seal and certified by a Manager, Land 
Titles and Records Office, the copy or reproduction shall be admitted 
into evidence the same as the original from which it was made. The fees 
for furnishing such certified copies are established by a uniform fee 
schedule applicable to all constituent units of the Department of the 
Interior and published in 43 CFR part 2, appendix A.



Sec. 150.11  Disclosure of land records, title documents, and title reports.

    (a) The usefulness of a Land Titles and Records Office depends in 
large measure on the ability of the public to consult the records 
contained therein. It is therefore, the policy of the Bureau of Indian 
Affairs to allow access to land records and title documents unless such 
access would violate the Privacy Act, 5 U.S.C. 552a or other law 
restricting access to such records, or there are strong policy grounds 
for denying access where such access is not required by the Freedom of 
Information Act, 5 U.S.C. 552. It shall be the policy of the Bureau of 
Indian Affairs that, unless specifically authorized, monetary 
considerations will not be disclosed insofar as leases of tribal land 
are concerned.
    (b) Before disclosing information concerning any living individual, 
the Manager, Land Titles and Records Office, shall consult 5 U.S.C. 
552a(b) and the notice of routine users then in effect to determine 
whether the information may be released without the written consent of 
the person to whom it pertains.



PART 151--LAND ACQUISITIONS--Table of Contents




Sec.
151.1  Purpose and scope.
151.2  Definitions.
151.3  Land acquisition policy.
151.4  Acquisitions in trust of lands owned in fee by an Indian.
151.5  Trust acquisitions in Oklahoma under section 5 of the I.R.A.
151.6  Exchanges.
151.7  Acquisition of fractional interests.
151.8  Tribal consent for nonmember acquisitions.
151.9  Requests for approval of acquisitions.
151.10  On-reservation acquisitions.
151.11  Off-reservation acquisitions.
151.12  Action on requests.
151.13  Title examination.
151.14  Formalization of acceptance.
151.15  Information collection.

    Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat. 1106, 
as amended; 46 Stat. 1471, as amended; 48 Stat. 985, as amended; 49 
Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69 Stat. 392, as 
amended; 70 Stat. 290, as amended; 70 Stat. 626; 75 Stat. 505; 77 Stat. 
349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174, as amended, 82 Stat. 884; 
84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 86 Stat. 530; 86 Stat. 744; 
88 Stat. 78; 88 Stat. 81; 88 Stat. 1716; 88 Stat. 2203; 88 Stat. 2207; 
25 U.S.C. 2, 9, 409a, 450h, 451, 464, 465, 487, 488, 489, 501, 502, 573, 
574, 576, 608, 608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other 
authorizing acts.

    Source: 45 FR 62036, Sept. 18, 1980, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

    Cross-Reference: For regulations pertaining to: The inheritance of 
interests in trust or restricted land, see parts 15, 16, and 17 of this 
title and 43 CFR part 4; the purchase of lands under the BIA Loan 
Guaranty, Insurance and Interest Subsidy program, see part 103 of this 
title; the exchange and partition of trust or restricted lands, see part 
152 of this title; land acquisitions authorized by the Indian Self-
Determination and Education Assistance Act, see parts 272 and 276 of 
this title; the acquisition of allotments on the public domain or in 
national forests, see 43 CFR part 2530; the acquisition of Native 
allotments and Native townsite lots in Alaska, see 43 CFR parts 2561 and 
2564; the acquisition of lands by Indians with funds borrowed from the 
Farmers Home Administration, see 7 CFR part 1823, subpart N; the 
acquisition of land by purchase or exchange for members of the Osage 
Tribe not having certificates of competency, see Secs. 117.8 and 158.54 
of this title.



Sec. 151.1  Purpose and scope.

    These regulations set forth the authorities, policy, and procedures 
governing the acquisition of land by the United States in trust status 
for individual Indians and tribes. Acquisition of land by individual 
Indians and tribes in fee simple status is not covered by these 
regulations even though such land may, by operation of law, be held in 
restricted status following acquisition. Acquisition of land in trust 
status by inheritance or escheat is not covered by these regulations. 
These regulations do not cover the acquisition of

[[Page 391]]

land in trust status in the State of Alaska, except acquisitions for the 
Metlakatla Indian Community of the Annette Island Reserve or it members.



Sec. 151.2  Definitions.

    (a) Secretary means the Secretary of the Interior or authorized 
representative.
    (b) Tribe means any Indian tribe, band, nation, pueblo, community, 
rancheria, colony, or other group of Indians, including the Metlakatla 
Indian Community of the Annette Island Reserve, which is recognized by 
the Secretary as eligible for the special programs and services from the 
Bureau of Indian Affairs. For purposes of acquisitions made under the 
authority of 25 U.S.C. 488 and 489, or other statutory authority which 
specifically authorizes trust acquisitions for such corporations, 
``Tribe'' also means a corporation chartered under section 17 of the Act 
of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477) or section 3 of the Act 
of June 26, 1936 (49 Stat. 1967; 25 U.S.C. 503).
    (c) Individual Indian means:
    (1) Any person who is an enrolled member of a tribe;
    (2) Any person who is a descendent of such a member and said 
descendant was, on June 1, 1934, physically residing on a federally 
recognized Indian reservation;
    (3) Any other person possessing a total of one-half or more degree 
Indian blood of a tribe;
    (4) For purposes of acquisitions outside of the State of Alaska, 
Individual Indian also means a person who meets the qualifications of 
paragraph (c)(1), (2), or (3) of this section where ``Tribe'' includes 
any Alaska Native Village or Alaska Native Group which is recognized by 
the Secretary as eligible for the special programs and services from the 
Bureau of Indian Affairs.
    (d) Trust land or land in trust status means land the title to which 
is held in trust by the United States for an individual Indian or a 
tribe.
    (e) Restricted land or land in restricted status means land the 
title to which is held by an individual Indian or a tribe and which can 
only be alienated or encumbered by the owner with the approval of the 
Secretary because of limitations contained in the conveyance instrument 
pursuant to Federal law or because of a Federal law directly imposing 
such limitations.
    (f) Unless another definition is required by the act of Congress 
authorizing a particular trust acquisition, Indian reservation means 
that area of land over which the tribe is recognized by the United 
States as having governmental jurisdiction, except that, in the State of 
Oklahoma or where there has been a final judicial determination that a 
reservation has been disestablished or diminished, Indian reservation 
means that area of land constituting the former reservation of the tribe 
as defined by the Secretary.
    (g) Land means real property or any interest therein.
    (h) Tribal consolidation area means a specific area of land with 
respect to which the tribe has prepared, and the Secretary has approved, 
a plan for the acquisition of land in trust status for the tribe.

[45 FR 62036, Sept. 18, 1980, as amended at 60 FR 32879, June 23, 1995]



Sec. 151.3  Land acquisition policy.

    Land not held in trust or restricted status may only be acquired for 
an individual Indian or a tribe in trust status when such acquisition is 
authorized by an act of Congress. No acquisition of land in trust 
status, including a transfer of land already held in trust or restricted 
status, shall be valid unless the acquisition is approved by the 
Secretary.
    (a) Subject to the provisions contained in the acts of Congress 
which authorize land acquisitions, land may be acquired for a tribe in 
trust status:
    (1) When the property is located within the exterior boundaries of 
the tribe's reservation or adjacent thereto, or within a tribal 
consolidation area; or
    (2) When the tribe already owns an interest in the land; or
    (3) When the Secretary determines that the acquisition of the land 
is necessary to facilitate tribal self-determination, economic 
development, or Indian housing.
    (b) Subject to the provisions contained in the acts of Congress 
which authorize land acquisitions or holding

[[Page 392]]

land in trust or restricted status, land may be acquired for an 
individual Indian in trust status:
    (1) When the land is located within the exterior boundaries of an 
Indian reservation, or adjacent thereto; or
    (2) When the land is already in trust or restricted status.



Sec. 151.4  Acquisitions in trust of lands owned in fee by an Indian.

    Unrestricted land owned by an individual Indian or a tribe may be 
conveyed into trust status, including a conveyance to trust for the 
owner, subject to the provisions of this part.



Sec. 151.5  Trust acquisitions in Oklahoma under section 5 of the I.R.A.

    In addition to acquisitions for tribes which did not reject the 
provisions of the Indian Reorganization Act and their members, land may 
be acquired in trust status for an individual Indian or a tribe in the 
State of Oklahoma under section 5 of the Act of June 18, 1934 (48 Stat. 
985; 25 U.S.C. 465), if such acquisition comes within the terms of this 
part. This authority is in addition to all other statutory authority for 
such an acquisition.



Sec. 151.6  Exchanges.

    An individual Indian or tribe may acquire land in trust status by 
exchange if the acquisition comes within the terms of this part. The 
disposal aspects of an exchange are governed by part 152 of this title.



Sec. 151.7  Acquisition of fractional interests.

    Acquisition of a fractional land interest by an individual Indian or 
a tribe in trust status can be approved by the Secretary only if:
    (a) The buyer already owns a fractional interest in the same parcel 
of land; or
    (b) The interest being acquired by the buyer is in fee status; or
    (c) The buyer offers to purchase the remaining undivided trust or 
restricted interests in the parcel at not less than their fair market 
value; or
    (d) There is a specific law which grants to the particular buyer the 
right to purchase an undivided interest or interests in trust or 
restricted land without offering to purchase all of such interests; or
    (e) The owner of a majority of the remaining trust or restricted 
interests in the parcel consent in writing to the acquisition by the 
buyer.



Sec. 151.8  Tribal consent for nonmember acquisitions.

    An individual Indian or tribe may acquire land in trust status on a 
reservation other than its own only when the governing body of the tribe 
having jurisdiction over such reservation consents in writing to the 
acquisition; provided, that such consent shall not be required if the 
individual Indian or the tribe already owns an undivided trust or 
restricted interest in the parcel of land to be acquired.



Sec. 151.9  Requests for approval of acquisitions.

    An individual Indian or tribe desiring to acquire land in trust 
status shall file a written request for approval of such acquisition 
with the Secretary. The request need not be in any special form but 
shall set out the identity of the parties, a description of the land to 
be acquired, and other information which would show that the acquisition 
comes within the terms of this part.



Sec. 151.10  On-reservation acquisitions.

    Upon receipt of a written request to have lands taken in trust, the 
Secretary will notify the state and local governments having regulatory 
jurisdiction over the land to be acquired, unless the acquisition is 
mandated by legislation. The notice will inform the state or local 
government that each will be given 30 days in which to provide written 
comments as to the acquisition's potential impacts on regulatory 
jurisdiction, real property taxes and special assessments. If the state 
or local government responds within a 30-day period, a copy of the 
comments will be provided to the applicant, who will be given a 
reasonable time in which to reply and/or request that the Secretary 
issue a decision. The Secretary will consider the following criteria in 
evaluating requests for the acquisition of land in trust status when

[[Page 393]]

the land is located within or contiguous to an Indian reservation, and 
the acquisition is not mandated:
    (a) The existence of statutory authority for the acquisition and any 
limitations contained in such authority;
    (b) The need of the individual Indian or the tribe for additional 
land;
    (c) The purposes for which the land will be used;
    (d) If the land is to be acquired for an individual Indian, the 
amount of trust or restricted land already owned by or for that 
individual and the degree to which he needs assistance in handling his 
affairs;
    (e) If the land to be acquired is in unrestricted fee status, the 
impact on the State and its political subdivisions resulting from the 
removal of the land from the tax rolls;
    (f) Jurisdictional problems and potential conflicts of land use 
which may arise; and
    (g) If the land to be acquired is in fee status, whether the Bureau 
of Indian Affairs is equipped to discharge the additional 
responsibilities resulting from the acquisition of the land in trust 
status.
    (h) The extent to which the applicant has provided information that 
allows the Secretary to comply with 516 DM 6, Appendix 4, National 
Environmental Policy Act Revised Implementing Procedures, and 602 DM 2, 
Land Acquisitions: Hazardous Substances Determinations. (For copies, 
write to the Department of the Interior, Bureau of Indian Affairs, 
Branch of Environmental Services, 1849 C Street NW., Room 4525 MIB, 
Washington, DC 20240.)

[45 FR 62036, Sept. 18, 1980, as amended at 60 FR 32879, June 23, 1995]



Sec. 151.11  Off-reservation acquisitions.

    The Secretary shall consider the following requirements in 
evaluating tribal requests for the acquisition of lands in trust status, 
when the land is located outside of and noncontiguous to the tribe's 
reservation, and the acquisition is not mandated:
    (a) The criteria listed in Sec. 151.10 (a) through (c) and (e) 
through (h);
    (b) The location of the land relative to state boundaries, and its 
distance from the boundaries of the tribe's reservation, shall be 
considered as follows: as the distance between the tribe's reservation 
and the land to be acquired increases, the Secretary shall give greater 
scrutiny to the tribe's justification of anticipated benefits from the 
acquisition. The Secretary shall give greater weight to the concerns 
raised pursuant to paragraph (d) of this section.
    (c) Where land is being acquired for business purposes, the tribe 
shall provide a plan which specifies the anticipated economic benefits 
associated with the proposed use.
    (d) Contact with state and local governments pursuant to Sec. 151.10 
(e) and (f) shall be completed as follows: Upon receipt of a tribe's 
written request to have lands taken in trust, the Secretary shall notify 
the state and local governments having regulatory jurisdiction over the 
land to be acquired. The notice shall inform the state and local 
government that each will be given 30 days in which to provide written 
comment as to the acquisition's potential impacts on regulatory 
jurisdiction, real property taxes and special assessments.

[60 FR 32879, June 23, 1995, as amended at 60 FR 48894, Sept. 21, 1995;



Sec. 151.12  Action on requests.

    (a) The Secretary shall review all requests and shall promptly 
notify the applicant in writing of his decision. The Secretary may 
request any additional information or justification he considers 
necessary to enable him to reach a decision. If the Secretary determines 
that the request should be denied, he shall advise the applicant of that 
fact and the reasons therefor in writing and notify him of the right to 
appeal pursuant to part 2 of this title.
    (b) Following completion of the Title Examination provided in 
Sec. 151.13 of this part and the exhaustion of any administrative 
remedies, the Secretary shall publish in the Federal Register, or in a 
newspaper of general circulation serving the affected area a notice of 
his/her decision to take land into trust under this part. The notice 
will state that a final agency determination to take land in trust has 
been made and that the Secretary shall acquire title in the name of the 
United States no

[[Page 394]]

sooner than 30 days after the notice is published.

[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23, 
1995, as amended at 61 FR 18083, Apr. 24, 1996]



Sec. 151.13  Title examination.

    If the Secretary determines that he will approve a request for the 
acquisition of land from unrestricted fee status to trust status, he 
shall acquire, or require the applicant to furnish, title evidence 
meeting the Standards For The Preparation of Title Evidence In Land 
Acquisitions by the United States, issued by the U.S. Department of 
Justice. After having the title evidence examined, the Secretary shall 
notify the applicant of any liens, encumbrances, or infirmities which 
may exist. The Secretary may require the elimination of any such liens, 
encumbrances, or infirmities prior to taking final approval action on 
the acquisition and he shall require elimination prior to such approval 
if the liens, encumbrances, or infirmities make title to the land 
unmarketable.

[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23, 
1995]



Sec. 151.14  Formalization of acceptance.

    Formal acceptance of land in trust status shall be accomplished by 
the issuance or approval of an instrument of conveyance by the Secretary 
as is appropriate in the circumstances.

[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23, 
1995]



Sec. 151.15  Information collection.

    (a) The information collection requirements contained in 
Secs. 151.9; 151.10; 151.11(2)(c), and 151.13 have been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1076-0100. This information is being collected 
to acquire land into trust on behalf of the Indian tribes and 
individuals, and will be used to assist the Secretary in making a 
determination. Response to this request is required to obtain a benefit.
    (b) Public reporting for this information collection is estimated to 
average 4 hours per response, including the time for reviewing 
instructions, gathering and maintaining data, and completing and 
reviewing the information collection. Direct comments regarding the 
burden estimate or any other aspect of this information collection to 
the Bureau of Indian Affairs, Information Collection Clearance Officer, 
Room 337-SIB, 18th and C Streets, NW., Washington, DC 20240; and the 
Office of Information and Regulatory Affairs [Project 1076-0100], Office 
of Management and Budget, Washington, DC 20502.

[60 FR 32879, June 23, 1995]



PART 152--ISSUANCE OF PATENTS IN FEE, CERTIFICATES OF COMPETENCY, REMOVAL OF RESTRICTIONS, AND SALE OF CERTAIN INDIAN LANDS--Table of Contents




Sec.
152.1  Definitions.
152.2  Withholding action on application.

 Issuing Patents In Fee, Certificates Of Competency Or Orders Removing 
                              Restrictions

152.3  Information regarding status of applications for removal of 
          Federal supervision over Indian lands.
152.4  Application for patent in fee.
152.5  Issuance of patent in fee.
152.6  Issuance of patents in fee to non-Indians and Indians with whom a 
          special relationship does not exist.
152.7  Application for certificate of competency.
152.8  Issuance of certificate of competency.
152.9  Certificates of competency to certain Osage adults.
152.10  Application for orders removing restrictions, except Five 
          Civilized Tribes.
152.11  Issuance of orders removing restrictions, except Five Civilized 
          Tribes.
152.12  Removal of restrictions, Five Civilized Tribes, after 
          application under authority other than section 2(a) of the Act 
          of August 11, 1955.
152.13  Removal of restrictions, Five Civilized Tribes, after 
          application under section 2(a) of the Act of August 11, 1955.
152.14  Removal of restrictions, Five Civilized Tribes, without 
          application.
152.15  Judicial review of removal of restrictions, Five Civilized 
          Tribes, without application.
152.16  Effect of order removing restrictions, Five Civilized Tribes.

[[Page 395]]

      Sales, Exchanges And Conveyances Of Trust Or Restricted Lands

152.17  Sales, exchanges, and conveyances by, or with the consent of the 
          individual Indian owner.
152.18  Sale with the consent of natural guardian or person designated 
          by the Secretary.
152.19  Sale by fiduciaries.
152.20  Sale by Secretary of certain land in multiple ownership.
152.21  Sale or exchange of tribal land.
152.22  Secretarial approval necessary to convey individual-owned trust 
          or restricted lands or land owned by a tribe.
152.23  Applications for sale, exchange or gift.
152.24  Appraisal.
152.25  Negotiated sales, gifts and exchanges of trust or restricted 
          lands.
152.26  Advertisement.
152.27  Procedure of sale.
152.28  Action at close of bidding.
152.29  Rejection of bids; disapproval of sale.
152.30  Bidding by employees.
152.31  Cost of conveyance; payment.
152.32  Irrigation fee; payment.

               Partitions In Kind Of Inherited Allotments

152.33  Partition.

         Mortgages And Deeds Of Trust To Secure Loans To Indians

152.34  Approval of mortgage and deeds of trust.
152.35  Deferred payment sales.

    Authority: R.S. 161; 5 U.S.C. 301. Interpret or apply sec. 7, 32 
Stat. 275, 34 Stat. 1018, sec. 1, 35 Stat. 444, sec. 1 and 2, 36 Stat. 
855, as amended, 856, as amended, sec. 17, 39 Stat. 127, 40 Stat. 579, 
62 Stat. 236, sec. 2, 40 Stat. 606, 68 Stat. 358, 69 Stat. 666: 25 
U.S.C. 378, 379, 405, 404, 372, 373, 483, 355, unless otherwise noted.

    Source: 38 FR 10080, Apr. 24, 1973, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

    Cross References: For further regulations pertaining to the sale of 
irrigable lands, see parts 160, 159 and Sec. 134.4 of this chapter. For 
Indian money regulations, see parts 115, 111, 116, and 112 of this 
chapter. For regulations pertaining to the determination of heirs and 
approval of wills, see part 15 and Secs. 11.30 through 11.32C of this 
chapter.



Sec. 152.1  Definitions.

    As used in this part:
    (a) ``Secretary'' means the Secretary of the Interior or his 
authorized representative acting under delegated authority.
    (b) ``Agency'' means an Indian agency or other field unit of the 
Bureau of Indian Affairs having trust or restricted Indian land under 
its immediate jurisdiction.
    (c) ``Restricted land'' means land or any interest therein, the 
title to which is held by an individual Indian, subject to Federal 
restrictions against alienation or encumbrance.
    (d) ``Trust land'' means land or any interest therein held in trust 
by the United States for an individual Indian.
    (e) ``Competent'' means the possession of sufficient ability, 
knowledge, experience, and judgment to enable an individual to manage 
his business affairs, including the administration, use, investment, and 
disposition of any property turned over to him 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. (Act of August 11, 1955 (69 Stat. 666)).
    (f) ``Tribe'' means a tribe, band, nation, community, group, or 
pueblo of Indians.



Sec. 152.2  Withholding action on application.

    Action on any application, which if approved would remove Indian 
land from restricted or trust status, may be withheld, if the Secretary 
determines that such removal would adversely affect the best interest of 
other Indians, or the tribes, until the other Indians or the tribes so 
affected have had a reasonable opportunity to acquire the land from the 
applicant. If action on the application is to be withheld, the applicant 
shall be advised that he has the right to appeal the withholding action 
pursuant to the provisions of part 2 of this chapter.

Issuing Patents In Fee, Certificates Of Competency Or Orders Re- moving 
                              Restrictions



Sec. 152.3  Information regarding status of applications for removal of Federal supervision over Indian lands.

    The status of applications by Indians for patents in fee, 
certificates of competency, or orders removing restrictions shall be 
disclosed to employees of the Department of the Interior whose

[[Page 396]]

duties require that such information be disclosed to them; to the 
applicant or his attorney, upon request; and to Members of Congress who 
inquire on behalf of the applicant. Such information will be available 
to all other persons, upon request, 15 days after the fee patent has 
been issued by the Bureau of Land Management, or 15 days after issuance 
of certificate of competency or order removing restrictions, or after 
the application has been rejected and the applicant notified. Where the 
termination of the trust or restricted status of the land covered by the 
application would adversely affect the protection and use of Indian land 
remaining in trust or restricted status, the owners of the land that 
would be so affected may be informed that the application has been 
filed.



Sec. 152.4  Application for patent in fee.

    Any Indian 21 years of age or over may apply for a patent in fee for 
his trust land. A written application shall be made in the form approved 
by the Secretary and shall be completed and filed with the agency having 
immediate jurisdiction over the land.



Sec. 152.5  Issuance of patent in fee.

    (a) An application may be approved and fee patent issued if the 
Secretary, in his discretion, determines that the applicant is 
competent. When the patent in fee is delivered, an inventory of the 
estate covered thereby shall be given to the patentee. (Acts of Feb. 8, 
1887 (24 Stat. 388), as amended (25 U.S.C. 349); June 25, 1910 (36 Stat. 
855), as amended (25 U.S.C. 372); and May 14, 1948 (62 Stat. 236; 25 
U.S.C. 483), and other authorizing acts.)
    (b) If an application is denied, the applicant shall be notified in 
writing, given the reasons therefor and advised of his right to appeal 
pursuant to the provisions of part 2 of this chapter.
    (c) White Earth Reservation: The Secretary will, pursuant to the Act 
of March 1, 1907 (34 Stat. 1015), issue a patent in fee to any adult 
mixed-blood Indian owning land within the White Earth Reservation in the 
State of Minnesota upon application from such Indian, and without 
consideration as to whether the applicant is competent.
    (d) Fort Peck Reservation: Pursuant to the Act of June 30, 1954 (68 
Stat. 358), oil and gas underlying certain allotments in the Fort Peck 
Reservation were granted to certain Indians to be held in trust for such 
Indians and provisions was made for issuance of patents in fee for such 
oil and gas or patents in fee for land in certain circumstances.
    (1) Where an Indian or Indians were the grantees of the entire 
interest in the oil and gas underlying a parcel of land, and such Indian 
or Indians had before June 30, 1954, been issued a patent or patents in 
fee for any land within the Fort Peck Reservation, the title to the oil 
and gas was conveyed by the act in fee simple status.
    (2) Where the entire interest in the oil and gas granted by the act 
is after June 30, 1954, held in trust for Indians to whom a fee patent 
has been issued at any time, for any land within the Fort Peck 
Reservation, or who have been or are determined by the Secretary to be 
competent, the Secretary will convey, by patent, without application, 
therefor, unrestricted fee simple title to the oil and gas.
    (3) Where the Secretary determines that the entire interest in a 
tract of land on the Fort Peck Reservation is owned by Indians who were 
grantees of oil and gas under the act and he determines that such 
Indians are competent, he will issue fee patents to them covering all 
interests in the land without application.



Sec. 152.6  Issuance of patents in fee to non-Indians and Indians with whom a special relationship does not exist.

    Whenever the Secretary determines that trust land, or any interest 
therein, has been acquired through inheritance or devise by a non-
Indian, or by a person of Indian descent to whom the United States owes 
no trust responsibility, the Secretary may issue a patent in fee for the 
land or interest therein to such person without application.



Sec. 152.7  Application for certificate of competency.

    Any Indian 21 years old or over, except certain adult members of the 
Osage Tribe as provided in Sec. 152.9, who

[[Page 397]]

holds land or an interest therein under a restricted fee patent may 
apply for a certificate of competency. The written application shall be 
made in the form approved by the Secretary and filed with the agency 
having immediate jurisdiction over the land.



Sec. 152.8  Issuance of certificate of competency.

    (a) An application may be approved and a certificate of competency 
issued if the Secretary, in his discretion, determines that the 
applicant is competent. The delivery of the certificate shall have the 
effect of removing the restrictions from the land described therein. 
(Act of June 25, 1910 (36 Stat. 855), as amended (25 U.S.C. 372).)
    (b) If the application is denied, the applicant shall be notified in 
writing, given the reasons therefor and advised of his right to appeal 
pursuant to the provisions of part 2 of this chapter.



Sec. 152.9  Certificates of competency to certain Osage adults.

    Applications for certificates of competency by adult members of the 
Osage Tribe of one-half or more Indian blood shall be in the form 
approved by the Secretary. Upon the finding by the Secretary that an 
applicant is competent, a certificate of competency may be issued 
removing restrictions against alienation of all restricted property and 
terminating the trust on all restricted property, except Osage headright 
interests, of the applicant.

    Cross-References: For regulations pertaining to the issuance of 
certificates of competency to adult Osage Indians of less than one-half 
Indian blood, see part 154 of this chapter.



Sec. 152.10  Application for orders removing restrictions, except Five Civilized Tribes.

    Any Indian not under legal disability under the laws of the State 
where he resides or where the land is located, or the court-appointed 
guardian or conservator of any Indian, may apply for an order removing 
restrictions from his restricted land or the restricted land of his 
ward. The application shall be in writing setting forth reasons for 
removal of restrictions and filed with the agency having immediate 
jurisdiction over the lands.



Sec. 152.11  Issuance of orders removing restrictions, except Five Civilized Tribes.

    (a) An application for an order removing restrictions may be 
approved and such order issued by the Secretary, in his discretion, if 
he determines that the applicant is competent or that removal of 
restrictions is in the best interests of the Indian owner. The effect of 
the order will be to remove the restrictions from the land described 
therein.
    (b) If the application is denied, the applicant will be notified in 
writing, given the reasons therefor and advised of his right to appeal 
pursuant to the provisions of part 2 of this chapter.



Sec. 152.12  Removal of restrictions, Five Civilized Tribes, after application under authority other than section 2(a) of the Act of August 11, 1955.

    When an Indian of the Five Civilized Tribes makes application for 
removal of restrictions from his restricted lands under authority other 
than section 2(a) of the Act of August 11, 1955 (69 Stat. 666), such 
application may be for either unconditional removal of restrictions or 
conditional removal of restrictions, but shall not include lands or 
interest in lands acquired by inheritance or devise.
    (a) If the application is for unconditional removal of restrictions 
and the Secretary, in his discretion, determines the applicant should 
have the unrestricted control of that land described in his application, 
the Secretary may issue an order removing restrictions therefrom.
    (b) When the Secretary, in his discretion, finds that in the best 
interest of the applicant all or part of the land described in the 
application should be sold with conditions concerning terms of sale and 
disposal of the proceeds, the Secretary may issue a conditional order 
removing restrictions which shall be effective only and simultaneously 
with the execution of a deed by said applicant upon completion of an 
advertised sale or negotiated sale acceptable to the Secretary.

[[Page 398]]



Sec. 152.13  Removal of restrictions, Five Civilized Tribes, after application under section 2(a) of the Act of August 11, 1955.

    When an Indian of the Five Civilized Tribes makes application for 
removal of restrictions under authority of section 2(a) of the Act of 
August 11, 1955 (69 Stat. 666), the Secretary will determine the 
competency of the applicant.
    (a) If the Secretary determines the applicant to be competent, he 
shall issue an order removing restrictions having the effect stated in 
Sec. 152.16.
    (b) If the Secretary rejects the application, his action is not 
subject to administrative appeal, notwithstanding the provisions 
concerning appeals in part 2 of this chapter.
    (c) If the Secretary rejects the application, or neither rejects nor 
approves the application within 90 days of the application date, the 
applicant may apply to the State district court in the county in which 
he resides for an order removing restrictions. If that State district 
court issues such order, it will have the effect stated in Sec. 152.16.



Sec. 152.14  Removal of restrictions, Five Civilized Tribes, without application.

    Section 2(b) of the Act of August 11, 1955 (69 Stat. 666), 
authorizes the Secretary to issue an order removing restrictions to an 
Indian of the Five Civilized Tribes without application therefor. When 
the Secretary determines an Indian to be competent, he shall notify the 
Indian in writing of his intent to issue an order removing restrictions 
30 days after the date of the notice. This decision may be appealed 
under the provisions of part 2 of this chapter within such 30 days. All 
administrative appeals under that part will postpone the issuance of the 
order. When the decision is not appealed within 30 days after the date 
of notice, or when any dismissal of an appeal is not appealed within the 
prescribed time limit, or when the final appeal is dismissed, an order 
removing restrictions will be issued.



Sec. 152.15  Judicial review of removal of restrictions, Five Civilized Tribes, without application.

    When an order removing restrictions is issued, pursuant to 
Sec. 152.14, a copy of such order will be delivered to the Indian, to 
any person acting in his behalf, and to the Board of County 
Commissioners for the county in which the Indian resides. At the time 
the order is delivered written notice will be given the parties that 
under the terms of the Act of August 11, 1955 (69 Stat. 666), the Indian 
or the Board of County Commissioners has, within 6 months of the date of 
notification, the right to appeal to the State district court for the 
district in which the Indian resides for an order setting aside the 
order removing restrictions. The timely initiation of proceedings in the 
State district court will stay the effective date of the order removing 
restrictions until such proceedings are concluded. If the State district 
court dismisses the appeal, the order removing restrictions will become 
effective 6 months after notification to the parties of such dismissal. 
The effect of the issuance of such order will be as prescribed in 
Sec. 152.16.



Sec. 152.16  Effect of order removing restrictions, Five Civilized Tribes.

    An order removing restrictions issued pursuant to the Act of August 
11, 1955 (69 Stat. 666), on its effective date shall serve to remove all 
jurisdiction and supervision of the Bureau of Indian Affairs over money 
and property held by the United States in trust for the individual 
Indian or held subject to restrictions against alienation imposed by the 
United States. The Secretary shall cause to be turned over to the Indian 
full ownership and control of such money and property and issue 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 becomes effective shall 
be

[[Page 399]]

preserved as provided in section 2(d) of the Act of August 11, 1955 (69 
Stat. 666).

      Sales, Exchanges And Conveyances Of Trust Or Restricted Lands



Sec. 152.17  Sales, exchanges, and conveyances by, or with the consent of the individual Indian owner.

    Pursuant to the Acts of May 27, 1902 (32 Stat. 275; 25 U.S.C. 379); 
May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70 Stat. 954; 48 
U.S.C. 357); March 1, 1907 (34 Stat. 1018; 25 U.S.C. 405); May 29, 1908 
(35 Stat. 444; 25 U.S.C. 404); June 25, 1910 (36 Stat. 855; 25 U.S.C. 
372), as amended May 25, 1926 (44 Stat. 629; 48 U.S.C. 355a-355d); June 
18, 1934 (48 Stat. 984; 25 U.S.C. 464); and May 14, 1948 (62 Stat. 236; 
25 U.S.C. 483); and pursuant to other authorizing acts, trust or 
restricted lands acquired by allotment, devise, inheritance, purchase, 
exchange, or gift may be sold, exchanged, and conveyed by the Indian 
owner with the approval of the Secretary or by the Secretary with the 
consent of the Indian owner.



Sec. 152.18  Sale with the consent of natural guardian or person designated by the Secretary.

    Pursuant to the Act of May 29, 1908 (35 Stat. 444; 25 U.S.C. 404), 
the Secretary may, with the consent of the natural guardian of a minor, 
sell trust or restricted land belonging to such minor; and the Secretary 
may, with the consent of a person designated by him, sell trust or 
restricted land belonging to Indians who are minor orphans without a 
natural guardian, and Indians who are non compos mentis or otherwise 
under legal disability. The authority contained in this act is not 
applicable to lands in Oklahoma, Minnesota, and South Dakota, nor to 
lands authorized to be sold by the Act of May 14, 1948 (62 Stat. 236; 25 
U.S.C. 483).



Sec. 152.19  Sale by fiduciaries.

    Guardians, conservators, or other fiduciaries appointed by State 
courts, or by tribal courts operating under approved constitutions or 
law and order codes, may, upon order of the court, convey with the 
approval of the Secretary or consent to the conveyance by the Secretary 
of trust or restricted land belonging to their Indian wards who are 
minors, non compos mentis or otherwise under legal disability. This 
section is subject to the exceptions contained in 25 U.S.C. 954(b).



Sec. 152.20  Sale by Secretary of certain land in multiple ownership.

    Pursuant to the Act of June 25, 1910 (36 Stat. 855), as amended (25 
U.S.C. 372), if the Secretary decides that one or more of the heirs who 
have inherited trust land are incapable of managing their own affairs, 
he may sell any or all interests in that land. This authority is not 
applicable to lands authorized to be sold by the Act of May 14, 1948 (62 
Stat. 236; 25 U.S.C. 483).



Sec. 152.21  Sale or exchange of tribal land.

    Certain tribal land may be sold or exchanged pursuant to the Acts of 
February 14, 1920 (41 Stat. 415; 25 U.S.C. 294); June 18, 1934 (48 Stat. 
984; 25 U.S.C. 464); August 10, 1939 (53 Stat. 1351; 25 U.S.C. 463(e)); 
July 1, 1948 (62 Stat. 1214); June 4, 1953 (67 Stat. 41; 25 U.S.C. 
293(a)); July 28, 1955 (69 Stat. 392), as amended August 31, 1964 (78 
Stat. 747; 25 U.S.C. 608-608c); June 18, 1956 (70 Stat. 290; 25 U.S.C. 
403a-2); July 24, 1956 (70 Stat. 626); May 19, 1958 (72 Stat. 121; 25 
U.S.C. 463, Note); September 2, 1958 (72 Stat. 1762); April 4, 1960 (74 
Stat. 13); April 29, 1960 (74 Stat. 85); December 11, 1963 (77 Stat. 
349); August 11, 1964 (78 Stat. 389), and pursuant to other authorizing 
acts. Except as otherwise provided by law, and as far as practicable, 
the regulations in this part 152 shall be applicable to sale or 
exchanges of such tribal land.



Sec. 152.22  Secretarial approval necessary to convey individual-owned trust or restricted lands or land owned by a tribe.

    (a) Individual lands. Trust or restricted lands, except inherited 
lands of the Five Civilized Tribes, or any interest therein, may not be 
conveyed without the approval of the Secretary. Moreover, inducing an 
Indian to execute an instrument purporting to convey any trust land or 
interest therein, or the offering of any such instrument for record, is 
prohibited and criminal penalties may be incurred. (See 25 U.S.C. 202 
and 348.)

[[Page 400]]

    (b) Tribal lands. Lands held in trust by the United States for an 
Indian tribe, lands owned by a tribe with Federal restrictions against 
alienation and any other land owned by an Indian tribe may only be 
conveyed where specific statutory authority exists and then only with 
the approval of the Secretary unless the Act of Congress authorizing 
sale provides that approval is unnecessary. (See 25 U.S.C. 177.)



Sec. 152.23  Applications for sale, exchange or gift.

    Applications for the sale, exchange or gift of trust or restricted 
land shall be filed in the form approved by the Secretary with the 
agency having immediate jurisdiction over the land. Applications may be 
approved if, after careful examination of the circumstances in each 
case, the transaction appears to be clearly justified in the light of 
the long-range best interest of the owner or owners or as under 
conditions set out in Sec. 152.25(d).



Sec. 152.24  Appraisal.

    Except as otherwise provided by the Secretary, an appraisal shall be 
made indicating the fair market value prior to making or approving a 
sale, exchange, or other transfer of title of trust or restricted land.



Sec. 152.25  Negotiated sales, gifts and exchanges of trust or restricted lands.

    Those sales, exchanges, and gifts of trust or restricted lands 
specifically described in the following paragraphs (a), (b), (c), and 
(d) of this section may be negotiated; all other sales shall be by 
advertised sale, except as may be otherwise provided by the Secretary.
    (a) Consideration not less than the appraised fair market value. 
Indian owners may, with the approval of the Secretary, negotiate a sale 
of and sell trust or restricted land for not less than the appraised 
fair market value:
    (1) When the sale is to the United States, States, or political 
subdivisions thereof, or such other sale as may be for a public purpose;
    (2) When the sale is to the tribe or another Indian; or
    (3) When the Secretary determines it is impractical to advertise.
    (b) Exchange at appraised fair market value. With the approval of 
the Secretary, Indian owners may exchange trust or restricted land, or a 
combination of such land and other things of value, for other lands or 
combinations of land and other things of value. The value of the 
consideration received by the Indian in the exchange must be at least 
substantially equal to the appraised fair market value of the 
consideration given by him.
    (c) Sale to coowners. With the approval of the Secretary, Indian 
owners may negotiate a sale of and sell trust or restricted land to a 
coowner of that land. The consideration may be less than the appraised 
fair market value, if in the opinion of the Secretary there is a special 
relationship between the coowners or special circumstances exist.
    (d) Gifts and conveyances for less than the appraised fair market 
value. With the approval of the Secretary, Indian owners may convey 
trust or restricted land, for less than the appraised fair market value 
or for no consideration when the prospective grantee is the owner's 
spouse, brother, sister, lineal ancestor of Indian blood or lineal 
descendant, or when some other special relationship exists between the 
grantor and grantee or special circumstances exist that in the opinion 
of the Secretary warrant the approval of the conveyance.



Sec. 152.26  Advertisement.

    (a) Upon approval of an application for an advertised sale, notice 
of the sale will be published not less than 30 days prior to the date 
fixed for the sale unless for good cause a shorter period is authorized 
by the Secretary.
    (b) The notice of sale will include:
    (1) Terms, conditions, place, date, hour, and methods of sale, 
including explanation of auction procedure as set out in 
Sec. 152.27(b)(2) if applicable;
    (2) Where and how bids shall be submitted;
    (3) A statement warning all bidders against violation of 18 U.S.C. 
1860 prohibiting unlawful combination or intimidation of bidders or 
potential bidders; and
    (4) Description of tracts, all reservations to which title will be 
subject and any restrictions and encumbrances of

[[Page 401]]

record with the Bureau of Indian Affairs and any other information that 
may improve sale prospects.



Sec. 152.27  Procedure of sale.

    Advertised sales shall be by sealed bids except as otherwise 
provided herein.
    (a)(1) Bids, conforming to the requirements set out in the 
advertisement of sale, along with a certified check, cashier's check, 
money order, or U.S. Treasury check, payable to the Bureau of Indian 
Affairs, for not less than 10 percent of the amount of the bid, must be 
enclosed in a sealed envelope marked as prescribed in the notice of 
sale. A cash deposit may be submitted in lieu of the above-specified 
negotiable instruments at the bidder's risk. Tribes submitting bids 
pursuant to this paragraph may guarantee the required 10 percent deposit 
by an appropriate resolution;
    (2) The sealed envelopes containing the bids will be publicly opened 
at the time fixed for sale. The bids will be announced and will be 
appropriately recorded.
    (b) The policy of the Secretary recognizes that in many instances a 
tribe or a member thereof has a valid interest in acquiring trust or 
restricted lands offered for sale.
    (1) With the consent of the owner and when the notice of sale so 
states, the tribe or members of such tribe shall have the right to meet 
the high bid.
    (2) Provided the tribe is not the high bidder and when one or more 
acceptable sealed bids are received and when so stated in the notice of 
sale, an oral auction may be held following the bid opening. Bidding in 
the auction will be limited to the tribe, and to those who submitted 
sealed bids at 75 percent or more of the appraised value of the land 
being auctioned. At the conclusion of the auction the highest bidder 
must increase his deposit to not less than 10 percent of his auction 
bid.



Sec. 152.28  Action at close of bidding.

    (a) The officer in charge of the sale shall publicly announce the 
apparent highest acceptable bid. The deposits submitted by the 
unsuccessful bidders shall be returned immediately. The deposit 
submitted by the apparent successful bidder shall be held in a special 
account.
    (b) If the highest bid received at an advertised sale is less than 
the appraised fair market value of the land, the Secretary with the 
consent of the owner may accept that bid if the amount bid approximates 
said appraised fair market value and in the Secretary's judgment is the 
highest price that may be realized in the circumstances.
    (c) The Secretary shall award the bid and notify the apparent 
successful bidder that the remainder of the purchase price must be 
submitted within 30 days.
    (1) Upon a showing of cause the Secretary may, in his discretion, 
extend the time of payment of the balance due.
    (2) If the remainder of the purchase price is not paid within the 
time allowed, the bid will be rejected and the apparent successful 
bidder's 10 percent deposit will be forfeited to the landowner's use.
    (d) The issuance of the patent or delivery of a deed to the 
purchaser will not be authorized until the balance of the purchase price 
has been paid, except that the fee patent may be ordered in cases where 
the purchaser is obtaining a loan from an agency of the Federal 
Government and such agency has given the Secretary a commitment that the 
balance of the purchase price will be paid when the fee patent is 
issued.



Sec. 152.29  Rejection of bids; disapproval of sale.

    The Secretary reserves the right to reject any and all bids before 
the award, after the award, or at any time prior to the issuance of a 
patent or delivery of a deed, when he shall have determined such 
rejection to be in the best interests of the Indian owner.



Sec. 152.30  Bidding by employees.

    Except as authorized by the provisions of part 140 of this chapter, 
no person employed in Indian Affairs shall directly or indirectly bid, 
make, or prepare any bid, or assist any bidder in preparing his bid. 
Sales between Indians, either of whom is an employee of the U.S. 
Government, are governed by

[[Page 402]]

the provisions of part 140 of this chapter (see 25 U.S.C. 68 and 441).



Sec. 152.31  Cost of conveyance; payment.

    Pursuant to the Act of February 14, 1920 (41 Stat. 415), as amended 
by the Act of March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413), the 
Secretary may in his discretion collect from a purchaser reasonable fees 
for work performed or expense incurred in the transaction. The amount so 
collected shall be deposited to the credit of the United States as 
general fund receipts, except as stated in paragraph (b) of this 
section.
    (a)(1) The amount of the fee shall be $22.50 for each transaction.
    (2) The fee may be reduced to a lesser amount or may be waived, if 
the Secretary determines circumstances justify such action.
    (b)(1) If any or all of the costs of the work performed or expenses 
incurred are paid with tribal funds, an alternate schedule of fees may 
be established, subject to approval of the Secretary, and that part of 
such fees deemed appropriate may be credited to the tribe.
    (2) When the purchaser is the tribe which bears all or any part of 
such costs, the collection of the proportionate share from the tribe may 
be waived.



Sec. 152.32  Irrigation fee; payment.

    Collection of all construction costs against any Indian-owned lands 
within Indian irrigation projects is deferred as long as Indian title 
has not been extinguished. (Act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 
386a)). This statute is interpreted to apply only where such land is 
owned by Indians either in trust or restricted status.
    (a) When any person whether Indian or non-Indian acquires Indian 
lands in a fee simple status that are part of an Indian irrigation 
project he must enter into an agreement,
    (1) To pay the pro rata share of the construction of the project 
chargeable to the land,
    (2) To pay all construction costs that accrue in the future, and
    (3) To pay all future charges assessable to the land which are based 
on the annual cost of operation and maintenance of the irrigation 
system.
    (b) Any operation and maintenance charges that are delinquent when 
Indian land is sold will be deducted from the proceeds of sale unless 
other acceptable arrangements are made to provide for their payment 
prior to the approval of the sale.
    (c) A lien clause covering all unpaid irrigation construction costs, 
past and future, will be inserted in the patent or other instrument of 
conveyance issued to all purchasers of restricted or trust lands that 
are under an Indian irrigation project.

    Cross-Reference: See part 159 and part 160 and cross-references 
thereunder in this chapter for further regulations regarding sale of 
irrigable lands.

               Partitions In Kind Of Inherited Allotments



Sec. 152.33  Partition.

    (a) Partition without application. If the Secretary of the Interior 
shall find that any inherited trust allotment or allotments (as 
distinguished from lands held in a restricted fee status or authorized 
to be sold under the Act of May 14, 1948 (62 Stat. 236; 25 U.S.C. 483)), 
are capable of partition in kind to the advantage of the heirs, he may 
cause such lands to be partitioned among them, regardless of their 
competency, patents in fee to be issued to the competent heirs for their 
shares and trust patents to be issued to the incompetent heirs for the 
lands respectively or jointly set apart to them, the trust period to 
terminate in accordance with the terms of the original patent or order 
of extension of the trust period set out in said patent. (Act of May 18, 
1916 (39 Stat. 127; 25 U.S.C. 378)). The authority contained in the Act 
of May 18, 1916, is not applicable to lands authorized to be sold by the 
Act of May 14, 1948, nor to land held in restricted fee status.
    (b) Application for partition. Heirs of a deceased allottee may make 
written application, in the form approved by the Secretary, for 
partition of their trust or restricted land. If the Secretary finds the 
trust lands susceptible of partition, he may issue new patents or deeds 
to the heirs for the portions set aside to them. If the allotment is

[[Page 403]]

held under a restricted fee title (as distinguished from a trust title), 
partition may be accomplished by the heirs executing deeds approved by 
the Secretary, to the other heirs for their respective portions.

         Mortgages and Deeds of Trust to Secure Loans to Indians



Sec. 152.34  Approval of mortgages and deeds of trust.

    Any individual Indian owner of trust or restricted lands, may with 
the approval of the Secretary execute a mortgage or deed of trust to his 
land. Prior to approval of such mortgage or deed of trust, the Secretary 
shall secure appraisal information as he deems advisable. Such lands 
shall be subject to foreclosure or sale pursuant to the terms of the 
mortgage or deed of trust in accordance with the laws of the State in 
which the lands are located. For the purpose of foreclosure or sale 
proceedings under this section, the Indian owners shall be regarded as 
vested with unrestricted fee simple title to the lands (Act of March 29, 
1956).

(70 Stat. 62; 25 U.S.C. 483a)



Sec. 152.35  Deferred payment sales.

    When the Indian owner and purchaser desire, a sale may be made or 
approved on the deferred payment plan. The terms of the sale will be 
incorporated in a memorandum of sale which shall constitute a contract 
for delivery of title upon payment in full of the amount of the agreed 
consideration. The deed executed by the grantor or grantors will be held 
by the Superintendent and will be delivered only upon full compliance 
with the terms of sale. If conveyance of title is to be made by fee 
patent, request therefor will be made only upon full compliance with the 
terms of the sale. The terms of the sale shall require that the 
purchaser pay not less than 10 percent of the purchase price in advance 
as required by the Act of June 25, 1910 (36 Stat. 855), as amended (25 
U.S.C. 372); terms for the payment of the remaining installments plus 
interest shall be those acceptable to the Secretary and the Indian 
owner. If the purchaser on any deferred payment plan makes default in 
the first or subsequent payments, all payments, including interest, 
previously made will be forfeited to the Indian owner.



PART 153--DETERMINATION OF COMPETENCY: CROW INDIANS--Table of Contents




Sec.
153.1  Purpose of regulations.
153.2  Application and examination.
153.3  Application form.
153.4  Factors determining competency.
153.5  Children of competent Indians.
153.6  Appeals.

    Authority: Sec. 12, 41 Stat. 755, 46 Stat. 1495, as amended.

    Source: 22 FR 10563, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 153.1  Purpose of regulations.

    The regulations in this part govern the procedures in determining 
the competency of Crow Indians under Public Law 303, 81st Congress, 
approved September 8, 1949.



Sec. 153.2  Application and examination.

    The Commissioner of Indian Affairs or his duly authorized 
representative, upon the application of any unenrolled adult member of 
the Crow Tribe, shall classify him by placing his name to the competent 
or incompetent rolls established pursuant to the act of June 4, 1920 (41 
Stat. 751), and upon application shall determine whether those persons 
whose names now or hereafter appear on the incompetent roll shall be 
reclassified as competent and their names placed on the competent roll.



Sec. 153.3  Application form.

    The application form shall include, among other things:
    (a) The name of the applicant;
    (b) His age, residence, degree of Indian blood, and education;
    (c) His experience in farming, cattle raising, business, or other 
occupation (including home-making);
    (d) His present occupation, if any;
    (e) A statement concerning the applicant's financial status, 
including his average earned and unearned income for the last two years 
from restricted leases and from other sources, and his outstanding 
indebtedness to the United States, to the tribe, or to others;

[[Page 404]]

    (f) A description of his property and its value, including his 
allotted and inherited lands; and
    (g) The name of the applicant's spouse, if any, and the names of his 
minor children, if any, and their ages, together with a statement 
regarding the land, allotted and inherited, held by each.



Sec. 153.4  Factors determining competency.

    Among the matters to be considered by the Commissioner of Indian 
Affairs in determining competency are the amount of the applicant's 
indebtedness to the tribe, to the United States Government, and to 
others; whether he is a public charge or a charge on friends and 
relatives, or will become such a charge, by reason of being classed as 
competent; and whether the applicant has demonstrated that he possesses 
the ability to take care of himself and his property, to protect the 
interests of himself and his family, to lease his land and collect the 
rentals therefrom, to lease the land of his minor children, to prescribe 
in lease agreements those provisions which will protect the land from 
deterioration through over-grazing and other improper practices, and to 
assume full responsibility for obtaining compliance with the terms of 
any lease.



Sec. 153.5  Children of competent Indians.

    Children of competent Indians who have attained or upon attaining 
their majority shall automatically become competent except any such 
Indian who is declared incompetent by a court of competent jurisdiction 
or who is incompetent under the laws of the State within which he 
resides.



Sec. 153.6  Appeals.

    An appeal to the Secretary of the Interior may be made within 30 
days from the date of notice to the applicant of the decision of the 
Commissioner of Indian Affairs.



PART 154--OSAGE ROLL, CERTIFICATE OF COMPETENCY--Table of Contents




Sec.
154.1  Definitions.
154.2  Preparation of competency roll.
154.3  Determination of age and quantum of Indian blood.
154.4  Notification; disagreement and decision.
154.5  Issuance of certificate of competency.
154.6  Costs of recording certificates of competency.
154.7  Delivery of cash and securities.

    Authority: 62 Stat. 18; 25 U.S.C. 331 note.

    Source: 22 FR 10563, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 154.1  Definitions.

    When used in the regulations in this part the following words or 
terms shall have the meaning shown below:
    (a) ``Secretary'' means the Secretary of the Interior.
    (b) ``Commissioner'' means the Commissioner of Indian Affairs.
    (c) ``Superintendent'' means the superintendent of the Osage Agency.
    (d) ``Person'' means an unallotted member of the Osage Tribe of less 
than one-half Indian blood who has not received a certificate of 
competency.



Sec. 154.2  Preparation of competency roll.

    The superintendent shall cause a roll to be compiled of all persons 
who have attained the age of 21 years, and shall add thereto the names 
of minors as they attain the age of 21 years. The roll shall include the 
names, last known address, date of birth, and the total quantum of Osage 
blood and non-Osage Indian blood of each person listed thereon.



Sec. 154.3  Determination of age and quantum of Indian blood.

    (a) The date of birth as shown by the census records of the Osage 
Agency shall be accepted as prima facie evidence in determining the age 
of a person.
    (b) The total quantum of Indian blood of a person shall be computed 
and determined as follows:
    (1) When the parents of a person are enrolled members, or when one 
parent is an enrolled member and the other parent is a descendant of an 
enrolled member, or when both parents are descendants of enrolled 
members, or when one parent is an enrolled member of descendant of an 
enrolled member of the Osage Tribe, and the other parent

[[Page 405]]

is of non-Indian blood, the Osage Agency register of Indian families for 
the year ending December 31, 1901, shall be accepted as prima facie 
evidence of the quantum of Indian blood.
    (2) When one parent of a person is an enrolled member, or the 
descendant of an enrolled member of the Osage Tribe, and the other 
parent is of non-Osage blood, the Osage Agency register of Indian 
families for the year ending December 31, 1901, shall be accepted as 
prima facie evidence in determining the quantum of Osage Indian blood.
    (3) When one parent of a person is of non-Osage Indian blood, the 
certification of the superintendent or other officer in charge of the 
Indian Agency having jurisdiction over the affairs of the tribe of which 
the non-Osage Indian parent is a member or descendant of a member, as to 
such parent's quantum of Indian blood, shall be accepted as prima facie 
evidence in determining the quantum of non-Osage Indian blood.
    (4) When the non-Osage parent of a person is alleged to be of Indian 
blood, and the superintendent or other officer in charge of the Indian 
agency having jurisdiction over the affairs of the tribe of which such 
parent is an alleged member or descendant of a member thereof, is unable 
to certify as to the quantum of Indian blood of such parent, affidavits 
as to such parent's quantum of Indian blood, when properly executed by 
two qualified individuals, may be accepted.



Sec. 154.4  Notification; disagreement and decision.

    When the superintendent shall have determined that a person, 21 
years or over, is of less than one-half Indian blood, he shall notify 
such person of his finding and inform him that if objection is not 
received within 20 days from the date of notification, a certificate of 
competency will be issued. If the person claims to be of one-half or 
more Indian blood and that a certificate of competency should not be 
issued, he should submit to the superintendent two affidavits or other 
evidence in support of his claim. The claim, affidavits or other 
evidence of the person as to his quantum of blood shall be submitted to 
the Commissioner of Indian Affairs for a ruling before the certificate 
of competency is issued.



Sec. 154.5  Issuance of certificate of competency.

    A certificate of competency shall be issued by the superintendent on 
Form 5-182 \1\ to each person heretofore or hereafter attaining the age 
of 21 years and who has been determined to be of less than one-half 
Indian blood. Such certificate shall be recorded with the county clerk 
of Osage County, Oklahoma, before delivering the same to the person 
entitled thereto.
---------------------------------------------------------------------------

    \1\ Filed with the original document. Copies may be obtained upon 
request at the Bureau of Indian Affairs, Department of the Interior, 
Washington, DC.
---------------------------------------------------------------------------



Sec. 154.6  Costs of recording certificates of competency.

    The superintendent may expend the surplus funds of a person to make 
direct payments of the cost of recording a certificate of competency. If 
the person to whom a certificate of competency is issued has no surplus 
funds, the cost of recording the same shall be paid from Osage tribal 
funds.



Sec. 154.7  Delivery of cash and securities.

    After issuance and recordation of a certificate of competency as 
authorized by the regulations in this part, the superintendent shall 
deliver to the individual named therein, or the legal guardian thereof, 
the original copy of the certificate of competency, together with all 
cash, stocks and bonds credited to the account of such individual upon 
the books of the Osage Agency, and obtain a receipt therefor.



PART 156--REALLOTMENT OF LANDS TO UNALLOTTED INDIAN CHILDREN\2\--Table of Contents



---------------------------------------------------------------------------

    \2\ The reallotment provisions herein dealt with are not applicable 
on reservations subject to the Indian Reorganization Act of June 18, 
1934 (48 Stat. 984, as amended; 25 U.S.C. 461-479).
---------------------------------------------------------------------------

Sec.
156.1  Relinquishment of original patent.
156.2  Relinquishment when original patent has been lost or destroyed.

    Authority: Sec. 3, 36 Stat. 856; 25 U.S.C. 408.


[[Page 406]]


    Cross References: For Bureau of Land Management regulations 
pertaining to allotments to Indians and Eskimos, see 43 CFR parts 2530 
and 2560. For Bureau of Land Management regulations pertaining to 
restored and ceded Indian lands, see 43 CFR part 1400.



Sec. 156.1  Relinquishment of original patent.

    To effect a reallotment under section 3 of the Act of June 25, 1910 
(36 Stat. 856; 25 U.S.C. 408), the Indian owner shall endorse on the 
original patent a relinquishment of all lands described therein and 
explain the purpose of the relinquishment. The relinquishment shall name 
the child or children to be reallotted and follow with descriptions by 
legal subdivisions of the land. If a part of the allotment is being 
retained by the Indian owner, the relinquishment and application for 
reallotment may describe only the tract to be reallotted. The 
relinquishment must be signed by the original allottee or owner of the 
land involved and be acknowledged before a superintendent of an Indian 
agency or an officer authorized to administer oaths. The signatures of 
those who cannot write must be by thumb mark and be witnessed.

[22 FR 10564, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 156.2  Relinquishment when original patent has been lost or destroyed.

    When the original patent has been lost or destroyed, the 
relinquishment and application for reallotment may be submitted in the 
form of a letter, which must be accompanied by an affidavit showing the 
loss or destruction of the original patent. If no patent has been 
issued, that fact should be set out in the letter.

[22 FR 10564, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 158--OSAGE LANDS--Table of Contents




Sec.
158.51  Definitions.
158.52  Application for change in designation of homestead.
158.53  Order to change designation of homestead.
158.54  Exchanges of restrictive lands.
158.55  Institution of partition proceedings.
158.56  Partition records.
158.57  Approval of deeds or other instruments vesting title on 
          partition and payment of costs.
158.58  Disposition of proceeds of partition sales.

    Authority: 5 U.S.C. 301. Interpret or apply 62 Stat. 18; 25 U.S.C. 
331 note.

    Source: 22 FR 10565, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 158.51  Definitions.

    When used in this part:
    (a) ``Homestead'' means the restricted nontaxable lands, not 
exceeding 160 acres, allotted to an enrolled member of the Osage Tribe 
pursuant to the act of June 28, 1906 (34 Stat. 539), or the restricted 
surplus lands designated in lieu thereof pursuant to the act of May 25, 
1918 (40 Stat. 578).
    (b) ``Surplus land'' means those restricted lands, other than the 
homestead, allotted to an enrolled member of the Osage Tribe pursuant to 
the act of June 28, 1906 (34 Stat. 539).



Sec. 158.52  Application for change in designation of homestead.

    Any Osage allottee or the legal guardian thereof may make 
application to change his homestead for an equal area of his surplus 
land. The application shall give in detail the reasons why such change 
is desired and shall be submitted to the Osage Indian Agency on the form 
``Application to Change Designation of Homestead.''



Sec. 158.53  Order to change designation of homestead.

    The application of an Osage allottee, or his legal guardian, may be 
approved by the Secretary of the Interior, or his authorized 
representative, and an order issued to change designation of homestead, 
if it is found that the applicant owns an equal area of surplus land. 
The expense of recording the order shall be borne by the applicant. The 
order to change designation shall be made on the form ``Order to Change 
Designation of Homestead.''



Sec. 158.54  Exchanges of restrictive lands.

    Upon written application of the Indians involved, the exchange of 
restricted lands between adult Indians,

[[Page 407]]

and between adult Indians and non-Indians, may be approved by the 
Secretary of the Interior, or his authorized representative. Title to 
all lands acquired under this part by an Indian who does not have a 
certificate of competency shall be taken by deed containing a clause 
restricting alienation or encumbrance without the consent of the 
Secretary, or his authorized representative. In case of differences in 
the appraised value of lands under consideration for exchange, the 
application of an Indian for funds to equalize such differences may be 
approved to the extent authorized by Sec. 117.8 of this chapter.



Sec. 158.55  Institution of partition proceedings.

    (a) Prior authorization should be obtained from the Secretary, or 
his authorized representative, before the institution of proceedings to 
partition the lands of deceased Osage allottees in which any interest is 
held by an Osage Indian not having a certificate of competency. Requests 
for authority to institute such partition proceedings shall contain a 
description of the lands involved, the names of the several owners and 
their respective interests and the reasons for such court action. 
Authorization may be given for the institution of partition proceedings 
in a court of competent jurisdiction when it appears to the best 
interest of the Indians involved to do so and the execution of voluntary 
exchange deeds is impracticable.
    (b) When it appears to the best interest of the Indians to do so, 
the Secretary's, or his authorized representative's, authorization to 
institute partition proceedings may require that title to the lands be 
quieted in the partition action in order that the deeds issued pursuant 
to the proceedings shall convey good and merchantable title to the 
grantee therein. (See section 6, 37 Stat. 87.)



Sec. 158.56  Partition records.

    Upon completion of an action in partition, a copy of the judgment 
roll showing schedule of costs and owelty moneys having accrued to or 
from the several parties, together with deeds, or other instruments 
vesting title on partition, in triplicate, shall be furnished to the 
Osage Agency. The original allotment number shall follow the legal 
description on all instruments vesting title. When a grantee is a member 
of the Osage Tribe who has not received a certificate of competency, 
deeds or other instruments vesting title shall contain the following 
clause against alienation:

    Subject to the condition that while title to the above-described 
lands shall remain in the grantee or his Osage Indian heirs or devisees 
who do not have certificates of competency, the same shall not be 
alienated or encumbered without approval of the Secretary of the 
Interior or his authorized representative.



Sec. 158.57  Approval of deeds or other instruments vesting title on partition and payment of costs.

    Upon completion of the partition proceedings in accordance with the 
law and in conformity with the regulations in this part, the Secretary, 
or his authorized representative, may approve the deeds, or other 
instruments vesting title on partition, and may disburse from the 
restricted (accounts) funds of the Indians concerned, such amounts as 
may be necessary for payment of their share of court costs, attorney 
fees, and owelty moneys.



Sec. 158.58  Disposition of proceeds of partition sales.

    Owelty moneys due members of the Osage Tribe who do not have 
certificates of competency shall be paid into the Treasury of the United 
States and placed to the credit of the Indians upon the same conditions 
as attach to segregated shares of the Osage national fund.



PART 159--SALE OF IRRIGABLE LANDS, SPECIAL WATER CONTRACT REQUIREMENTS--Table of Contents




    Cross References: For additional regulations pertaining to the 
payment of fees and charges in connection with the sale of irrigable 
lands, see part 160 and Secs. 134.4 and 152.21 of this chapter. For 
general regulations pertaining to the issuance of patents in fee, see 
part 152 of this chapter.

[[Page 408]]



Sec. 159.1  Conditions of contract.

    (a) The form of contract (Form 5-462b) \1\ for sale of irrigable 
lands specifically provides that the purchaser will obligate and pay on 
a per acre basis all irrigation charges assessed or to be assessed 
against the land purchased including accrued assessment, which accrued 
assessment shall be paid prior to the approval of the sale, and for the 
payment of the construction and operation and maintenance assessments on 
the due dates of each year. The agreement is to be acknowledged and 
recorded in the county records in which county the land is situated. The 
charges incidental to the recording of the instrument shall be paid by 
the purchaser at the time of executing the agreement.
---------------------------------------------------------------------------

    \1\ Forms may be obtained from the Commissioner of Indian Affairs, 
Washington, D.C.
---------------------------------------------------------------------------

    (b) A strict compliance with the terms of paragraph (a) of this 
section is absolutely necessary and required.

(Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. Interprets or 
applies sec. 1, 41 Stat. 409; 25 U.S.C. 386)

[22 FR 10566, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]

    Note: On May 12, 1921, Circular No. 1677, re sale of irrigable 
lands, was addressed to all superintendents. It was pointed out therein 
that the collection of irrigation construction charges was required by 
the terms of an act approved February 14, 1920 (41 Stat. 409; 25 U.S.C. 
386), and that in addition to the construction charge there was an 
operation and maintenance charge assessable annually that must be paid 
by the landowners benefited; furthermore, that the purpose of this 
circular was to point out to the superintendents the necessity of 
advising prospective purchasers that irrigation charges must be paid and 
that a so-called paid-up water right was not conveyed with the land. A 
form of agreement to be executed by the prospective purchaser 
accompanied this circular.
    It has been brought to the attention of the Bureau that irrigation 
construction charges and operation and maintenance charges have accrued 
against irrigable allotments prior to the time of their being advertised 
for sale and that the superintendents have failed to provide for payment 
of the accrued irrigation charges, with the result that no means are 
apparent for their collection.
    With a view of preventing any future misunderstanding the form of 
contract accompanying Circular No. 1677 has been redrafted and Form 5-
462b assigned to it. The circular has been designated ``No. 1677a.''



PART 160--INCLUSION OF LIENS IN ALL PATENTS AND INSTRUMENTS EXECUTED--Table of Contents




Sec.
160.1  Liens.
160.2  Instructions.
160.3  Leases to include description of lands.
160.4  Prompt payment of irrigation charges by lessees.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385.

    Source: 22 FR 10566, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 160.1  Liens.

    The act of March 7, 1928 (45 Stat. 210; 25 U.S.C. 387) creates a 
first lien against irrigable lands under all Indian irrigation projects 
where the construction, operation and maintenance costs of such projects 
remain unpaid and are reimbursable, and directs that such lien shall be 
recited in any patent or instrument issued for such lands to cover such 
unpaid charges. Prior to the enactment of this legislation similar liens 
had been created by legislative authority against irrigable lands of the 
projects on the Fort Yuma, Colorado River, and Gila River Reservations, 
in Arizona; Blackfeet, Fort Peck, Flathead, Fort Belknap, and Crow 
Reservations, Mont.; Wapato project, Yakima Reservation, Wash.; the 
irrigable lands on the Colville Reservation within the West Okanogan 
irrigation district, Washington, and the Fort Hall Reservation, Idaho. 
This legislation, therefore, extends protection similar to that existing 
in the legislation applicable to the projects on the reservations above 
mentioned.

    Cross References: For operation and maintenance charges and 
construction costs, see parts 174, 134, and 137 of this chapter.



Sec. 160.2  Instructions.

    All superintendents and other officers are directed to familiarize 
themselves with this provision of law, and in all cases involving the 
issuance of patents or deeds direct to the Indian or purchaser of Indian 
allotments embracing irrigable lands, they will recite in

[[Page 409]]

the papers forwarded to the Department for action the fact that the 
lands involved are within an irrigation project (giving the name) and 
accordingly are subject to the provisions of this law. This requirement 
will be in addition to the existing regulations requiring the 
superintendents in case of sales of irrigable lands to obtain from the 
project engineer a written statement relative to the irrigability of the 
lands to be sold, and whether or not there are any unpaid irrigation 
charges, together with the estimated per acre construction cost 
assessable against the land involved in the sale. Each sale will also be 
accompanied by contract executed in accordance with regulations 
obligating the purchaser to pay the accrued charges, namely, 
construction, operation, and maintenance, prior to the approval of the 
sale and to assume and pay the unassessed irrigation charges in 
accordance with regulations promulgated by the Secretary of the 
Interior.

    Cross References: For additional regulations pertaining to the 
payment of fees and charges in connection with the sale of irrigable 
lands, see part 159 and Secs. 134.4 and 152.21 of this chapter.



Sec. 160.3  Leases to include description of lands.

    It is important, also, for superintendents in leasing irrigable 
lands to present to the project engineer lists containing descriptions 
of the lands involved for his approval of the irrigable acreage and for 
checking as to whether or not such lands are in fact irrigable under 
existing works. Strict compliance with this section is required for the 
purpose of avoiding error.



Sec. 160.4  Prompt payment of irrigation charges by lessees.

    Superintendents will also see that irrigation charges are promptly 
paid by lessees, and where such charges are not so paid take appropriate 
and prompt action for their collection. Such unpaid charges are a lien 
against the land, and accordingly any failure on the part of the 
superintendents to collect same increases the obligation against the 
land.



PART 162--LEASING AND PERMITTING--Table of Contents




Sec.
162.1  Definitions.
162.2  Grants of leases by Secretary.
162.3  Grants of leases by owners or their representatives.
162.4  Use of land of minors.
162.5  Special requirements and provisions.
162.6  Negotiation of leases.
162.7  Advertisement.
162.8  Duration of leases.
162.9  Ownership of improvements.
162.10  Unitization for leasing.
162.11  Conservation and land use requirement.
162.12  Subleases and assignments.
162.13  Payment of fees and drainage and irrigation charges.
162.14  Violation of lease.
162.15  Crow Reservation.
162.16  Fort Belknap Reservation.
162.17  Cabazon, Augustine, and Torres-Martinez Reservations, 
          California.
162.18  Colorado River Reservation.
162.19  Grazing units excepted.
162.20  San Xavier and Salt River Pima-Maricopa Reservations.

    Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9. 
Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs. 1, 
2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015, 1034, 35 
Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat. 128, 41 Stat. 
415, as amended, 751, 1232, sec. 17, 43 Stat. 636, 641, 44 Stat. 658, as 
amended, 894, 1365, as amended, 47 Stat. 1417, sec. 17, 48 Stat. 984, 
988, 49 Stat. 115, 1135, sec. 55, 49 Stat. 781, sec. 3, 49 Stat. 1967, 
54 Stat. 745, 1057, 60 Stat. 308, secs. 1, 2, 60 Stat. 962, sec. 5, 64 
Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat. 470, 69 Stat. 539, 540, 72 Stat. 
968; 25 U.S.C. 380, 393, 393a, 394, 395, 397, 402, 402a, 403, 403a, 
403b, 403c, 413, 415, 415a, 415b, 415c, 415d, 477, 635.

    Source: 26 FR 10966, Nov. 23, 1961, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 162.1  Definitions.

    As used in this part:
    (a) ``Secretary'' means the Secretary of the Interior or his 
authorized representative acting under delegated authority.
    (b) ``Individually owned land'' means land or any interest therein 
held in trust by the United States for the benefit of individual Indians 
and land or any interest therein held by individual

[[Page 410]]

Indians subject to Federal restrictions against alienation or 
encumbrance.
    (c) ``Tribal land'' means land or any interest therein held by the 
United States in trust for a tribe, band, community, group or pueblo of 
Indians, and land that is held by a tribe, band, community, group or 
pueblo of Indians subject to Federal restrictions against alienation or 
encumbrance, and includes such land reserved for Indian Bureau 
administrative purposes when it is not immediately needed for such 
purposes. The term also includes lands held by the United States in 
trust for an Indian corporation chartered under section 17 of the Act of 
June 18, 1934 (48 Stat. 984; 25 U.S.C. 476). This term also includes 
assignments of tribal land. Unless the terms of the assignment provide 
for the leasing of the land by the holder of the assignment, the tribe 
must join with the assignee in the grant of a lease.
    (d) ``Government land'' means land, other than tribal land, acquired 
or reserved by the United States for Indian Bureau administrative 
purposes which are not immediately needed for the purposes for which 
they were acquired or reserved and land transferred to or placed under 
the jurisdiction of the Bureau of Indian Affairs.
    (e) ``Permit'' means a privilege revocable at will in the discretion 
of the Secretary and not assignable, to enter on and use a specified 
tract of land for a specified purpose. The terms ``lease'', ``lessor'', 
and ``lessee'', when used in this part include, when applicable, 
``permit'', ``permitter'', and ``permittee'', respectively.



Sec. 162.2  Grants of leases by Secretary.

    (a) The Secretary may grant leases on individually owned land on 
behalf of:
    (1) Persons who are non compos mentis;
    (2) Orphaned minors;
    (3) The undetermined heirs of a decedent's estate;
    (4) The heirs or devisees to individually owned land who have not 
been able to agree upon a lease during the three-month period 
immediately following the date on which a lease may be entered into; 
provided, that the land is not in use by any of the heirs or devisees; 
and
    (5) Indians who have given the Secretary written authority to 
execute leases on their behalf.
    (b) The Secretary may grant leases on the individually owned land of 
an adult Indian whose whereabouts is unknown, on such terms as are 
necessary to protect and preserve such property.
    (c) The Secretary may grant permits on Government land.



Sec. 162.3  Grants of leases by owners or their representatives.

    The following may grant leases:
    (1) Adults, other than those non compos mentis,
    (2) Adults other than those non compos mentis, on behalf of their 
minor children, and on behalf of minor children to whom they stand in 
loco parentis when such children do not have a legal representative,
    (3) The guardian, conservator or other fiduciary, appointed by a 
state court or by a tribal court operating under an approved 
constitution or law and order code, of a minor or persons who are non 
compos mentis or are otherwise under legal disability,
    (4) Tribes or tribal corporations acting through their appropriate 
officials.



Sec. 162.4  Use of land of minors.

    The natural or legal guardian, or other person standing in loco 
parentis of minor children who have the care and custody of such 
children may use the individually owned land of such children during the 
period of minority without charge for the use of the land if such use 
will enable such person to engage in a business or other enterprise 
which will be beneficial to such minor children.



Sec. 162.5  Special requirements and provisions.

    (a) All leases made pursuant to the regulations in this part shall 
be in the form approved by the Secretary and subject to his written 
approval.
    (b) Except as otherwise provided in this part no lease shall be 
approved or granted at less than the present fair annual rental.
    (1) An adult Indian owner of trust or restricted land may lease his 
land for

[[Page 411]]

religious, educational, recreational or other public purposes to 
religious organizations or to agencies of the Federal, State or local 
government at a nominal rental. Such adult Indian may lease land to 
members of his immediate family with or without rental consideration. 
For purposes of this section, ``immediate family'' is defined as the 
Indian's spouse, brothers, sisters, lineal ancestors, or descendants.
    (2) In the discretion of the Secretary, tribal land may be leased at 
a nominal rental for religious, educational, recreational, or other 
public purposes to religious organizations or to agencies of Federal, 
State, or local governments; for purposes of subsidization for the 
benefit of the tribe; and for homesite purposes to tribal members 
provided the land is not commercial or industrial in character.
    (3) Leases may be granted or approved by the Secretary at less than 
the fair annual rental when in his judgment such action would be in the 
best interest of the landowners.
    (c) Unless otherwise provided by the Secretary a satisfactory surety 
bond will be required in an amount that will reasonably assure 
performance of the contractual obligations under the lease. Such bond 
may be for the purpose of guaranteeing:
    (1) Not less than one year's rental unless the lease contract 
provides that the annual rental shall be paid in advance.
    (2) The estimated construction cost of any improvement to be placed 
on the land by the lessee.
    (3) An amount estimated to be adequate to insure compliance with any 
additional contractual obligations.
    (d) The lessee may be required to provide insurance in an amount 
adequate to protect any improvements on the leased premises; the lessee 
may also be required to furnish appropriate liability insurance, and 
such other insurance as may be necessary to protect the lessor's 
interest.
    (e) No lease shall provide the lessee a preference right to future 
leases nor shall any lease contain provisions for renewal, except as 
otherwise provided in this part. No lease shall be entered into more 
than 12 months prior to the commencement of the term of the lease. 
Except with the approval of the Secretary no lease shall provide for 
payment of rent in advance of the beginning of the annual use period for 
which such rent is paid. The lease contract shall contain provisions as 
to the dates rents shall become due and payable.
    (f) Leases granted or approved under this part shall contain 
provisions as to whether payment of rentals is to be made direct to the 
owner of the land or his representative or to the official of the Bureau 
of Indian Affairs having jurisdiction over the leased premises.
    (g) All leases issued under this part shall contain the following 
provisions:
    (1) While the leased premises are in trust or restricted status, all 
of the lessee's obligations under this lease, and the obligations of his 
sureties, are to the United States as well as to the owner of the land.
    (2) Nothing contained in this lease shall operate to delay or 
prevent a termination of Federal trust responsibilities with respect to 
the land by the issuance of a fee patent or otherwise during the term of 
the lease; however, such termination shall not serve to abrogate the 
lease. The owners of the land and the lessee and his surety or sureties 
shall be notified of any such change in the status of the land.
    (3) The lessee agrees that he will not use or cause to be used any 
part of the leased premises for any unlawful conduct or purpose.
    (h) Leases granted or approved under this part on individually owned 
lands which provide for payment of rental direct to the owner or his 
representative shall contain the following provisions:
    (1) In the event of the death of the owner during the term of this 
lease and while the leased premises are in trust or restricted status, 
all rentals remaining due or payable to the decedent or his 
representative under the provisions of the lease shall be paid to the 
official of the Bureau of Indian Affairs having jurisdiction over the 
leased premises.
    (2) While the leased premises are in trust or restricted status, the 
Secretary may in his discretion suspend the direct rental payment 
provisions of this lease in which event the rentals

[[Page 412]]

shall be paid to the official of the Bureau of Indian Affairs having 
jurisdiction over the leased premises.



Sec. 162.6  Negotiation of leases.

    (a) Leases of individually owned land or tribal land may be 
negotiated by those owners or their representatives who may execute 
leases pursuant to Sec. 162.3.
    (b) Where the owners of a majority interest, or their 
representatives, who may grant leases under Sec. 162.3, have negotiated 
a lease satisfactory to the Secretary he may join in the execution of 
the lease and thereby commit the interests of those persons in whose 
behalf he is authorized to grant leases under Sec. 162.2(a) (1), (2), 
(3), and (5).
    (c) Where the Secretary may grant leases under Sec. 162.2 he may 
negotiate leases when in his judgment the fair annual rental can thus be 
obtained.



Sec. 162.7  Advertisement.

    Except as otherwise provided in this part, prior to granting a lease 
or permit as authorized under Sec. 162.2 the Secretary shall advertise 
the land for lease. Advertisements will call for sealed bids and will 
not offer preference rights.



Sec. 162.8  Duration of leases.

    Leases granted or approved under this part shall be limited to the 
minimum duration, commensurate with the purpose of the lease, that will 
allow the highest economic return to the owner consistent with prudent 
management and conservation practices, and except as otherwise provided 
in this part shall not exceed the number of years provided for in this 
section. Except for those leases authorized by Sec. 162.5(b)(1) and (2), 
unless the consideration for the lease is based primarily on percentages 
of income produced by the land, the lease shall provide for periodic 
review, at not less than five-year intervals, of the equities involved. 
Such review shall give consideration to the economic conditions at the 
time, exclusive of improvement or development required by the contract 
or the contribution value of such improvements. Any adjustments of 
rental resulting from such review may be made by the Secretary where he 
has the authority to grant leases, otherwise the adjustment must be made 
with the written concurrence of the owners and the approval of the 
Secretary.
    (a) Leases for public, religious, educational, recreational, 
residential, or business purposes shall not exceed 25 years but may 
include provisions authorizing a renewal or an extension for one 
additional term of not to exceed 25 years, except such leases of land on 
the Hollywood (formerly Dania) Reservation, Fla.; the Navajo 
Reservation, Ariz.; N. Mex., and Utah; the Palm Springs Reservation, 
Calif.; the Southern Ute Reservation, Colo.; the Fort Mohave 
Reservation, Calif., Ariz., and Nev.; the Pyramid Lake Reservation, 
Nev.; the Gila River Reservation, Ariz.; the San Carlos Apache 
Reservation, Ariz.; the Spokane Reservation, Wash.; the Hualapai 
Reservation, Ariz.; the Swinomish Reservation, Wash.; the Pueblos of 
Cochiti, Pojoaque, Tesuque, and Zuni, N. Mex.; and land on the Colorado 
River Reservation, Ariz., and Calif., as stated in Sec. 162.18; which 
leases may be made for terms of not to exceed 99 years.
    (b) Leases may be made for 25 years for those farming purposes which 
require the making of a substantial investment in the improvement of the 
land for the production of specialized crops. To determine whether a 
long term lease is justified, it is necessary to give consideration to 
the nature of the crop to be grown, including the feasibility of growing 
the proposed crop. The amount or substantially of the investment, as 
well as the necessity of such an investment in order to grow the 
proposed crop, are also elements to consider in evaluating the term of 
the proposed lease.
    (c) Farming leases not granted for the purpose of growing 
specialized crops shall not exceed five years for dry-farming land or 
ten years for irrigable land.
    (d) Grazing leases which require substantial development or 
improvement of the land shall not exceed ten years.
    (e) Leases granted by the Secretary pursuant to Sec. 162.2(a)(3) 
shall be for a

[[Page 413]]

term of not to exceed two years except as otherwise provided in 
Sec. 162.6(b).

[26 FR 10966, Nov. 23, 1961, as amended at 29 FR 2542, Feb. 18, 1964; 34 
FR 3686, Mar. 1, 1969. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 162.9  Ownership of improvements.

    Improvements placed on the leased land shall become the property of 
the lessor unless specifically excepted therefrom under the terms of the 
lease. The lease shall specify the maximum time allowed for removal of 
any improvements so excepted.



Sec. 162.10  Unitization for leasing.

    Where it appears advantageous to the owners and advantageous to the 
operation of the land a single lease contract may include more than one 
parcel of land in separate ownerships, tribal or individual, provided 
the statutory authorities and other applicable requirements of this part 
are observed.



Sec. 162.11  Conservation and land use requirement.

    Farming and grazing operations conducted under leases granted or 
approved under this part shall be conducted in accordance with 
recognized principles of good practice and prudent management. Land use 
stipulations or conservation plans necessary to define such use shall be 
incorporated in and made a part of the lease.



Sec. 162.12  Subleases and assignments.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, a sublease, assignment, amendment or encumbrance of any lease 
or permit issued under this part may be made only with the approval of 
the Secretary and the written consent of all parties to such lease or 
permit, including the surety or sureties.
    (b) With the consent of the Secretary, the lease may contain a 
provision authorizing the lessee to sublease the premises, in whole or 
in part, without further approval. Subleases so made shall not serve to 
relieve the sublessor from any liability nor diminish any supervisory 
authority of the Secretary provided for under the approved lease.
    (c) With the consent of the Secretary, the lease may contain 
provisions authorizing the lessee to encumber his leasehold interest in 
the premises for the purpose of borrowing capital for the development 
and improvement of the leased premises. The encumbrance instrument, must 
be approved by the Secretary. If a sale or foreclosure under the 
approved encumbrance occurs and the encumbrancer is the purchaser, he 
may assign the leasehold without the approval of the Secretary or the 
consent of the other parties to the lease, provided, however, that the 
assignee accepts and agrees in writing to be bound by all the terms and 
conditions of the lease. If the purchaser is a party other than the 
encumbrancer, approval by the Secretary of any assignment will be 
required, and such purchaser will be bound by the terms of the lease and 
will assume in writing all the obligations thereunder.
    (d) With the consent of the Secretary, leases of tribal land to 
individual members of the tribe or to tribal housing authorities may 
contain provisions permitting the assignment of the lease without 
further consent or approval where a lending institution or an agency of 
the United States makes, insures or guarantees a loan to an individual 
member of the tribe or to a tribal housing authority for the purpose of 
providing funds for the construction of housing for Indians on the 
leased premises; provided, the leasehold has been pledged as security 
for the loan and the lender has obtained the leasehold by foreclosure or 
otherwise. Such leases may with the consent of the Secretary also 
contain provisions permitting the lessee to assign the lease without 
further consent or approval.

[26 FR 10966, Nov. 23, 1961, as amended at 29 FR 2542, Feb. 18, 1964. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 162.13  Payment of fees and drainage and irrigation charges.

    (a) Except as provided in part 174 of this chapter, any lease 
covering lands within an irrigation project or drainage district shall 
require the lessee to pay annually on or before the due date, during the 
term of the lease and in the amounts determined, all charges assessed 
against such lands. Such charges

[[Page 414]]

shall be in addition to the rental payments prescribed in the lease. All 
payments of such charges and penalties shall be made to the official 
designated in the lease to receive such payments.
    (b) Unless otherwise provided in this part or by the Secretary, fees 
based upon the annual rental payable under the lease shall be collected 
on each lease, sublease, assignment, transfer, renewal, extension, 
modification, or other instrument issued in connection with the leasing 
or permitting of restricted lands under the regulations in this part.
    (1) Except where all or any part of the expenses of the work are 
paid from tribal funds, in which event an additional or alternate 
schedule of fees may be established subject to the approval of the 
Secretary, the fee to be paid shall be as follows:

    Rental Percent
On the first $500 3
On the next $4,500 2
On all rental above $5,000 1
In no event shall the fee be less than $2.00 nor exceed $250.

    (2) In the case of percentage rental leases, the fee shall be 
calculated on the basis of the guaranteed minimum rental. Where rental 
consists of a stated annual cash rental in addition to a percentage 
rental, the estimated revenue anticipated from the percentage rental 
shall be mutually agreed upon solely for the purpose of fixing the fee. 
The fee to be collected in case of crop-share or other special 
consideration leases or permits shall be based on an estimate of the 
cash rental value of the acreage, or the estimated value of the lessor's 
share of the crops. No fees so collected shall be refunded.



Sec. 162.14  Violation of lease.

    Upon a showing satisfactory to the Secretary that there has been a 
violation of the lease or the regulations in this part, the lessee shall 
be served with written notice setting forth in detail the nature of the 
alleged violation and allowing him ten days from the date of receipt of 
notice in which to show cause why the lease should not be cancelled. The 
surety or sureties shall be sent a copy of each such notice. If within 
the ten-day period, it is determined that the breach may be corrected 
and the lessee agrees to take the necessary corrective measures, he will 
be given an opportunity to carry out such measures and shall be given a 
reasonable time within which to take corrective action to cure the 
breach. If the lessee fails within such reasonable time to correct the 
breach or to furnish satisfactory reasons why the lease should not be 
cancelled, the lessee shall forthwith be notified in writing of the 
cancellation of the lease and demands shall be made for payment of all 
obligations and for possession of the premises. The notice of 
cancellation shall inform the lessee of his right to appeal pursuant to 
part 2 of this chapter. Where breach of contract can be satisfied by the 
payment of damages, the Secretary may approve the damage settlement 
between the parties to the lease, or where the Secretary has granted the 
lease, he may accept the damage settlement. With the consent of the 
Secretary, leases of tribal land to individual members of the tribe or 
to tribal housing authorities for the purpose of providing lands on 
which housing for Indians is to be constructed, may contain a provision 
prohibiting the cancellation or termination of the lease during the 
period that a loan, loan insurance, or loan guarantee is in effect 
without the approval of the lender or the agency of the United States 
which has made, insured or guaranteed the loan for the construction of 
housing on the leased premises.

[29 FR 2542, Feb. 18, 1964. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 162.15  Crow Reservation.

    (a) Notwithstanding the regulations in other sections of this part 
162, Crow Indians classified as competent under the Act of June 4, 1920 
(41 Stat. 751), as amended, may lease their trust lands and the trust 
lands of their minor children for farming or grazing purposes without 
the approval of the Secretary pursuant to the Act of May 26, 1926 (44 
Stat. 658), as amended by the Act of March 15, 1948 (62 Stat. 80). 
However, at their election Crow Indians classified as competent may 
authorize the Secretary to lease, or assist in the leasing of such 
lands, and an appropriate notice of such action shall be made a

[[Page 415]]

matter of record. When this prerogative is exercised, the general 
regulations contained in this part 162 shall be applicable. Approval of 
the Secretary is required on leases signed by Crow Indians not 
classified as competent or made on inherited or devised trust lands 
owned by more than five competent devisees or heirs.
    (b) The Act of May 26, 1926 (44 Stat. 658), as amended by the Act of 
March 15, 1948 (62 Stat. 80), provides that no lease for farming or 
grazing purposes shall be made for a period longer than five years, 
except irrigable lands under the Big Horn Canal; which may be leased for 
periods of ten years. No such lease shall provide the lessee a 
preference right to future leases which, if exercised, would thereby 
extend the total period of encumbrance beyond the five or ten years 
authorized by law.
    (c) All leases entered into by Crow Indians classified as competent, 
under the above-cited special statutes, must be recorded at the Crow 
Agency. Such recording shall constitute notice to all persons. Under 
these special statutes, Crow Indians classified as competent are free to 
lease their property within certain limitations. The five-year (ten-year 
in the case of lands under the Big Horn Canal) limitation is intended to 
afford a protection to the Indians. The essence of this protection is 
the right to deal with the property free, clear, and unencumbered at 
intervals at least as frequent as those provided by law. If lessees are 
able to obtain new leases long before the termination of existing 
leases, they are in a position to set their own terms. In these 
circumstances lessees could perpetuate their leaseholds and the 
protection of the statutory limitations as to terms would be destroyed. 
Therefore, in implementation of the foregoing interpretation, any lease 
which, on its face, is in violation of statutory limitations or 
requirements, and any grazing lease executed more than 12 months, and 
any farming lease executed more than 18 months, prior to the 
commencement of the term thereof or any lease which purports to cancel 
an existing lease with the same lessee as of a future date and take 
effect upon such cancellation will not be recorded. Under a Crow tribal 
program, approved by the Department of the Interior, competent Crow 
Indians may, under certain circumstances, enter into agreements which 
require that, for a specified term, their leases be approved. 
Information concerning whether a competent Crow Indian has executed such 
an instrument is available at the office of the Superintendent of the 
Crow Agency, Bureau of Indian Affairs, Crow Agency, Montana. Any lease 
entered into with a competent Crow Indian during the time such 
instrument is in effect and which is not in accordance with such 
instrument will be returned without recordation.
    (d) Where any of the following conditions are found to exist, leases 
will be recorded but the lessee and lessor will be notified upon 
discovery of the condition:
    (1) The lease in single or counterpart form has not been executed by 
all owners of the land described in the lease,
    (2) There is, of record, a lease on the land for all or a part of 
the same term,
    (3) The lease does not contain stipulations requiring sound land 
utilization plans and conservation practices, or
    (4) There are other deficiencies such as, but not limited to, 
erroneous land descriptions, and alterations which are not clearly 
endorsed by the lessor.
    (e) Any adult Crow Indian classified as competent shall have the 
full responsibility for obtaining compliance with the terms of any lease 
made by him pursuant to this section. This shall not preclude action by 
the Secretary to assure conservation and protection of these trust 
lands.
    (f) Leases made by competent Crow Indians shall be subject to the 
right to issue permits and leases to prospect for, develop, and mine 
oil, gas, and other minerals, and to grant rights-of-way and easements, 
in accordance with applicable law and regulations. In the issuance or 
granting of such permits, leases, rights-of-way or easements due 
consideration will be given to the interests of lessees and to the 
adjustment of any damages to such interests. In the event of a dispute 
as to the amount

[[Page 416]]

of such damage, the matter will be referred to the Secretary whose 
determination will be final as to the amount of said damage.

[29 FR 473, Jan. 18, 1964. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 162.16  Fort Belknap Reservation.

    Not to exceed 20,000 acres of allotted and tribal lands 
(nonirrigable as well as irrigable) on the Fort Belknap Reservation in 
Montana may be leased for the culture of sugar beets and other crops in 
rotation for terms not exceeding 10 years.



Sec. 162.17  Cabazon, Augustine, and Torres-Martinez Reservations, California.

    (a) Upon a determination by the Secretary that the owner or owners 
are not making beneficial use thereof, restricted lands on the Cabazon, 
Augustine, and Torres-Martinez Indian Reservations which are or may be 
irrigated from distribution facilities administered by the Coachella 
Valley County Water District in Riverside County, California, may be 
leased by the Secretary in accordance with the regulations in this part 
for the benefit of the owner or owners.
    (b) All leases granted or approved on restricted lands of the 
Cabazon, Augustine, and Torres-Martinez Indian Reservations shall be 
filed for record in the office of the country recorder of the county in 
which the land is located, the cost thereof to be paid by the lessee. A 
copy of each such lease shall be filed by the lessee with the Coachella 
Valley County Water District or such other irrigation or water district 
within which the leased lands are located. All such leases shall include 
a provision that the lessee, in addition to the rentals provided for in 
the lease, shall pay all irrigation charges properly assessed against 
the land which became payable during the term of the lease. Act of 
August 25, 1950 (64 Stat. 470); Act of August 28, 1958 (72 Stat. 968).



Sec. 162.18  Colorado River Reservation.

    The Act of April 30, 1964 (78 Stat. 188), fixed the beneficial 
ownership of the Colorado River Reservation in the Colorado River Indian 
Tribes of the Colorado River Reservation and authorized the Secretary of 
the Interior to approve leases of said lands for such uses and terms as 
are authorized by the Act of August 9, 1955 (69 Stat. 539), as amended 
(25 U.S.C. 415, et seq.), including the same uses and terms as are 
permitted thereby on the Agua Caliente (Palm Springs), Dania, Navajo, 
and Southern Ute Reservations. Regulations in this part 162 govern 
leasing under the Act of August 9, 1955. Therefore, part 162 shall also 
govern the leasing of lands on the Colorado River Reservation: Provided, 
however, That application of this part 162 shall not extend to any lands 
lying west of the present course of the Colorado River and south of sec. 
12 of T. 5 S., R. 23 E., San Bernardino base and meridian in California 
and shall not be construed to affect the resolution of any controversy 
over the location of the boundary of the Colorado River Reservation; 
Provided further, That any of the described lands in California shall be 
subject to the provisions of this part 162 when and if determined to be 
within the reservation.

[30 FR 14156, Nov. 10, 1965, as amended at 35 FR 18051, Nov. 25, 1970. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 162.19  Grazing units excepted.

    Tribal or individually owned lands within range units established 
pursuant to part 166 of this chapter, general grazing regulations, shall 
not be leased and permits respecting such lands shall not be issued 
under this part.



Sec. 162.20  San Xavier and Salt River Pima-Maricopa Reservations.

    (a) Purpose and scope. The Act of November 2, 1966 (80 Stat. 1112), 
provides statutory authority for long-term leasing on the San Xavier and 
Salt River Pima-Maricopa Reservations, Ariz., in addition to that 
contained in the Act of August 9, 1955 (69 Stat. 539), as amended (25 
U.S.C. 415). When leases are made under the 1955 Act on the San Xavier 
or Salt River Pima-Maricopa Reservations, the regulations in Secs. 162.1 
through 162.14 and in Sec. 162.19 apply. The purpose of this Sec. 162.20 
is to provide regulations for implementation of the 1966 Act. The 1966 
Act does not apply to

[[Page 417]]

leases made for purposes that are subject to the laws governing mining 
leases on Indian lands.
    (b) Duration of leases. Leases made under the 1966 Act for public, 
religious, educational, recreational, residential, or business purposes 
may be made for terms of not to exceed 99 years. The terms of a grazing 
lease shall not exceed 10 years; the term of a farming lease that does 
not require the making of a substantial investment in the improvement of 
the land shall not exceed 10 years; and the term of a farming lease that 
requires the making of a substantial investment in the improvement of 
the land shall not exceed 40 years. No lease shall contain an option to 
renew which extends the total term beyond the maximum term permitted by 
this section.
    (c) Required covenant and enforcement thereof. Every lease under the 
1966 Act shall contain a covenant on the part of the lessee that he will 
not commit or permit on the leased land any act that causes waste or a 
nuisance or which creates a hazard to health of persons or to property 
wherever such persons or property may be.
    (d) Notification regarding leasing proposals. If the Secretary 
determines that a proposed lease to be made under the 1966 Act for 
public, religious, educational, recreational, residential, or business 
purposes will substantially affect the governmental interests of a 
municipality contiguous to the San Xavier Reservation or the Salt River 
Pima-Maricopa Reservation, as the case may be, he shall notify the 
appropriate authority of such municipality of the pendency of the 
proposed lease. The Secretary may, in his discretion, furnish such 
municipality with an outline of the major provisions of the lease which 
affect its governmental interests and shall consider any comments on the 
terms of the lease affecting the municipality or on the absence of such 
terms from the lease that the authorities may offer. The notice to the 
authorities of the municipality shall set forth a reasonable period, not 
to exceed 30 days, within which any such comments shall be submitted.
    (e) Applicability of other regulations. The regulations of 
Secs. 162.1 through 162.14 and in Sec. 162.19 shall apply to leases made 
under the 1966 Act except where such regulations are inconsistent with 
this Sec. 162.20.
    (f) Mission San Xavier del Bac. Nothing in the 1966 Act authorizes 
development that would detract from the scenic, historic, and religious 
values of the Mission San Xavier del Bac owned by the Franciscan Order 
of Friars Minor and located on the San Xavier Reservation.

[33 FR 14641, Oct. 1, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 163--GENERAL FORESTRY REGULATIONS--Table of Contents




                      Subpart A--General Provisions

Sec.
163.1  Definitions.
163.2  Information collection.
163.3  Scope and objectives.
163.4  Secretarial recognition of tribal laws.

               Subpart B--Forest Management and Operations

163.10  Management of Indian forest land.
163.11  Forest management planning and sustained yield management.
163.12  Harvesting restrictions.
163.13  Indian tribal forest enterprise operations.
163.14  Sale of forest products.
163.15  Advertisement of sales.
163.16  Forest product sales without advertisement.
163.17  Deposit with bid.
163.18  Acceptance and rejection of bids.
163.19  Contracts for the sale of forest products.
163.20  Execution and approval of contracts.
163.21  Bonds required.
163.22  Payment for forest products.
163.23  Advance payment for timber products.
163.24  Duration of timber contracts.
163.25  Forest management deductions.
163.26  Forest product harvesting permits.
163.27  Free-use harvesting without permits.
163.28  Fire management measures.
163.29  Trespass.
163.30  Revocable road use and construction permits for removal of 
          commercial forest products.
163.31  Insect and disease control.
163.32  Forest development.
163.33  Administrative appeals.
163.34  Environmental compliance.
163.35  Indian forest land assistance account.
163.36  Tribal forestry program financial support.
163.37  Forest management research.

[[Page 418]]

  Subpart C--Forestry Education, Education Assistance, Recruitment and 
                                Training

163.40  Indian and Alaska Native forestry education assistance.
163.41  Postgraduation recruitment, continuing education and training 
          programs.
163.42  Obligated service and breach of contract.

          Subpart D--Alaska Native Technical Assistance Program

163.60  Purpose and scope.
163.61  Evaluation committee.
163.62  Annual funding needs assessment and rating.
163.63  Contract, grant, or agreement application and award process.

                    Subpart E--Cooperative Agreements

163.70  Purpose of agreements.
163.71  Agreement funding.
163.72  Supervisory relationship.

                      Subpart F--Program Assessment

163.80  Periodic assessment report.
163.81  Assessment guidelines.
163.82  Annual status report.
163.83  Assistance from the Secretary of Agriculture.

    Authority: 25 U.S.C. 2, 5, 9, 13, 406, 407, 413, 415, 466; and 3101-
3120.

    Source: 60 FR 52260, Oct. 5, 1995, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 163.1  Definitions.

    Advance deposits means, in Timber Contract for the Sale of Estimated 
Volumes, contract-required deposits in advance of cutting which the 
purchaser furnishes to maintain an operating balance against which the 
value of timber to be cut will be charged.
    Advance payments means, in Timber Contract for the Sale of Estimated 
Volumes, non-refundable partial payments of the estimated value of the 
timber to be cut. Payments are furnished within 30 days of contract 
approval and prior to cutting. Advance payments are normally 25 percent 
of the estimated value of the forest products on each allotment. Advance 
payments may be required for tribal land.
    Alaska Native means native as defined in section 3(b) of the Alaska 
Native Claims Settlement Act of December 18, 1971 (43 U.S.C. 1604).
    ANCSA corporation means both profit and non-profit corporations 
established pursuant to the Alaska Native Claims Settlement Act (43 
U.S.C. 1604).
    Approval means authorization by the Secretary, Area Director, 
Superintendent, tribe or individual Indian in accordance with 
appropriate delegations of authority.
    Approving officer means the officer approving instruments of sale 
for forest products or his/her authorized representative.
    Authorized representative means an individual or entity duly 
empowered to make decisions under a direct, clear, and specific 
delegation of authority.
    Authorized tribal representative means an individual or entity duly 
empowered to make decisions under a direct, clear, and specific 
delegation of authority from an Indian tribe.
    Beneficial owner means an individual or entity who holds an 
ownership interest in Indian land.
    Bid deposit means, in Timber Contract for the Sale of Estimated 
Volumes or in Timber Contract for the Sale of Predetermined Volumes, a 
deposit with bid furnished by prospective purchasers. At contract 
execution, the bid deposit of the successful bidder becomes a portion of 
the contract required advance deposit in estimated volume contracts or 
an installment payment in predetermined volume contracts.
    Commercial forest land means forest land that is producing or 
capable of producing crops of marketable forest products and is 
administratively available for intensive management and sustained 
production.
    Expenditure plan means a written agreement between an Indian tribe 
and the Secretary documenting tribal commitment to undertake specified 
forest land management activities within general time frames.
    Forest or forest land means an ecosystem at least one acre in size, 
including timberland and woodland, which: Is characterized by a more or 
less dense and extensive tree cover; contains, or once contained, at 
least ten percent tree crown cover, and is not developed or planned for 
exclusive non-forest resource use.

[[Page 419]]

    Forest land management activities means all activities performed in 
the management of Indian forest land including:
    (a) All aspects of program administration and executive direction 
such as:
    (1) Development and maintenance of policy and operational 
procedures, program oversight, and evaluation;
    (2) Securing of legal assistance and handling of legal matters;
    (3) Budget, finance, and personnel management; and
    (4) Development and maintenance of necessary data bases and program 
reports.
    (b) All aspects of the development, preparation and revision of 
forest inventory and management plans, including aerial photography, 
mapping, field management inventories and re- inventories, inventory 
analysis, growth studies, allowable annual cut calculations, 
environmental assessment, and forest history, consistent with and 
reflective of tribal integrated resource management plans where such 
plans exist.
    (c) Forest land development, including forestation, thinning, tree 
improvement activities, and the use of silvicultural treatments to 
restore or increase growth and yield to the full productive capacity of 
the forest environment.
    (d) Protection against losses from wildfire, including acquisition 
and maintenance of fire fighting equipment and fire detection systems, 
construction of fire breaks, hazard reduction, prescribed burning, and 
the development of cooperative wildfire management agreements.
    (e) Protection against insects and disease, including:
    (1) All aspects of detection and evaluation;
    (2) Preparation of project proposals containing project 
descriptions, environmental assessments and statements, and cost- 
benefit analyses necessary to secure funding;
    (3) Field suppression operations and reporting.
    (f) Assessment of damage caused by forest trespass, infestation or 
fire, including field examination and survey, damage appraisal, 
investigation assistance and report, demand letter, and testimony 
preparation.
    (g) All aspects of the preparation, administration, and supervision 
of timber sale contracts, paid and free use permits, and other Indian 
forest product harvest sale documents, including;
    (1) Cruising, product marketing, silvicultural prescription, 
appraisal and harvest supervision;
    (2) Forest product marketing assistance, including evaluation of 
marketing and development opportunities related to Indian forest 
products and consultation and advice to tribes, tribal and Indian 
enterprises on maximization of return on forest products;
    (3) Archeological, historical, environmental and other land 
management reviews, clearances, and analyses;
    (4) Advertising, executing, and supervising contracts;
    (5) Marking and scaling of timber; and
    (6) Collecting, recording and distributing receipts from sales.
    (h) Provision of financial assistance for the education of Indians 
and Alaska Natives enrolled in accredited programs of postsecondary and 
postgraduate forestry and forestry-related fields of study, including 
the provision of scholarships, internships, relocation assistance, and 
other forms of assistance to cover educational expenses.
    (i) Participation in the development and implementation of tribal 
integrated resource management plans, including activities to coordinate 
current and future multiple uses of Indian forest lands.
    (j) Improvement and maintenance of extended season primary and 
secondary Indian forest land road systems.
    (k) Research activities to improve the basis for determining 
appropriate management measures to apply to Indian forest land.
    Forest management deduction means a percentage of the gross proceeds 
from the sales of forest products harvested from Indian land which is 
collected by the Secretary pursuant to 25 U.S.C. 413 to cover in whole 
or in part the cost of managing and protecting such Indian forest lands.
    Forest management plan means the principal document, approved by the 
Secretary, reflecting and consistent

[[Page 420]]

with an integrated resource management plan, which provides for the 
regulation of the detailed, multiple-use operation of Indian forest land 
by methods ensuring that such lands remain in a continuously productive 
state while meeting the objectives of the tribe and which shall include: 
Standards setting forth the funding and staffing requirements necessary 
to carry out each management plan, with a report of current forestry 
funding and staffing levels; and standards providing quantitative 
criteria to evaluate performance against the objectives set forth in the 
plan.
    Forest products means marketable products extracted from Indian 
forests, such as: Timber; timber products, including lumber, lath, 
crating, ties, bolts, logs, pulpwood, fuelwood, posts, poles, and split 
products; bark; Christmas trees, stays, branches, firewood, berries, 
mosses, pinyon nuts, roots, acorns, syrups, wild rice, mushrooms, and 
herbs; other marketable material; and gravel which is extracted from, 
and utilized on, Indian forest land.
    Forestry-related field or forestry-related curriculum means a 
renewable natural resource management field necessary to manage Indian 
forest land and other professionally recognized fields as approved by 
the education committee established pursuant to Sec. 163.40(a)(1).
    Forest resources means all the benefits derived from Indian forest 
land, including forest products, soil productivity, water, fisheries, 
wildlife, recreation, and aesthetic or other traditional values of 
Indian forest land.
    Forester intern means an Indian or Alaska Native who: Is employed as 
a forestry or forestry-related technician with the Bureau of Indian 
Affairs, an Indian tribe, or tribal forest-related enterprise; is 
acquiring necessary academic qualifications to become a forester or a 
professional trained in forestry-related fields; and is appointed to one 
of the Forester Intern positions established pursuant to Sec. 163.40(b).
    Indian means a member of an Indian tribe.
    Indian enterprise means an enterprise which is designated as such by 
the Secretary or tribe.
    Indian forest land means Indian land, including commercial, non-
commercial, productive and non-productive timberland and woodland, that 
are considered chiefly valuable for the production of forest products or 
to maintain watershed or other land values enhanced by a forest cover, 
regardless of whether a formal inspection and land classification action 
has been taken.
    Indian land means land title which is held by: The United States in 
trust for an Indian, an individual of Indian or Alaska Native ancestry 
who is not a member of a federally-recognized Indian tribe, or an Indian 
tribe; or by an Indian, an individual of Indian or Alaska Native 
ancestry who is not a member of a federally recognized tribe, or an 
Indian tribe subject to a restriction by the United States against 
alienation.
    Indian tribe or tribe means any Indian tribe, band, nation, 
rancheria, Pueblo or other organized group or community which is 
recognized as eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians and 
shall mean, where appropriate, the recognized tribal government of such 
tribe's reservation.
    Installment payments means, in Timber Contract for the Sale of 
Predetermined Volumes, scheduled partial payments of the total contract 
value based on purchaser bid. Payments made are normally not refundable.
    Integrated resource management plan means a document, approved by an 
Indian tribe and the Secretary, which provides coordination for the 
comprehensive management of the natural resources of such tribe's 
reservation.
    Noncommercial forest land means forest land that is available for 
extensive management, but is incapable of producing sustainable forest 
products within the general rotation period. Such land may be 
economically harvested, but the site quality does not warrant 
significant investment to enhance future crops.
    Productive forest land means forest land producing or capable of 
producing marketable forest products that is unavailable for harvest 
because of administrative restrictions or because access is not 
practical.
    Reservation means an Indian reservation established pursuant to 
treaties,

[[Page 421]]

Acts of Congress, or Executive Orders and public domain Indian 
allotments, Alaska Native allotments, rancherias, and former Indian 
reservations in Oklahoma.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Stumpage rate means the stumpage value per unit of measure for a 
forest product.
    Stumpage value means the value of a forest product prior to 
extraction from Indian forest land.
    Sustained yield means the yield of forest products that a forest can 
produce continuously at a given intensity of management.
    Timberland means forest land stocked, or capable of being stocked, 
with tree species that are regionally utilized for lumber, pulpwood, 
poles or veneer products.
    Trespass means the removal of forest products from, or damaging 
forest products on, Indian forest land, except when authorized by law 
and applicable federal or tribal regulations. Trespass can include any 
damage to forest resources on Indian forest land resulting from 
activities under contracts or permits or from fire.
    Tribal forest enterprise means an Indian enterprise that is 
initiated and organized by a reservation's recognized tribal government.
    Unproductive forest land means forest land that is not producing or 
capable of producing marketable forest products and is also unavailable 
for harvest because of administrative restrictions or because access is 
not practical.
    Woodland means forest land not included within the timberland 
classification, stocked, or capable of being stocked, with tree species 
of such form and size to produce forest products that are generally 
marketable within the region for products other than lumber, pulpwood, 
or veneer.



Sec. 163.2  Information collection.

    The information collection requirements contained in 25 CFR part 163 
do not require the approval of the Office of Management and Budget under 
44 U.S.C. 3504(h) et seq.



Sec. 163.3  Scope and objectives.

    (a) The regulations in this part are applicable to all Indian forest 
land except as this part may be superseded by legislation.
    (b) Indian forest land management activities undertaken by the 
Secretary shall be designed to achieve the following objectives:
    (1) The development, maintenance and enhancement of Indian forest 
land in a perpetually productive state in accordance with the principles 
of sustained yield and with the standards and objectives set forth in 
forest management plans by providing effective management and protection 
through the application of sound silvicultural and economic principles 
to the harvesting of forest products, forestation, timber stand 
improvement and other forestry practices;
    (2) The regulation of Indian forest land through the development and 
implementation, with the full and active consultation and participation 
of the appropriate Indian tribe, of forest management plans which are 
supported by written tribal objectives;
    (3) The regulation of Indian forest land in a manner that will 
ensure the use of good method and order in harvesting so as to make 
possible, on a sustained yield basis, continuous productivity and a 
perpetual forest business;
    (4) The development of Indian forest land and associated value-added 
industries by Indians and Indian tribes to promote self-sustaining 
communities, so that Indians may receive from their Indian forest land 
not only stumpage value, but also the benefit of all the labor and 
profit that such Indian forest land is capable of yielding;
    (5) The retention of Indian forest land in its natural state when an 
Indian tribe determines that the recreational, cultural, aesthetic, or 
traditional values of the Indian forest land represents the highest and 
best use of the land;
    (6) The management and protection of forest resources to retain the 
beneficial effects to Indian forest land of regulating water run-off and 
minimizing soil erosion; and
    (7) The maintenance and improvement of timber productivity, grazing,

[[Page 422]]

wildlife, fisheries, recreation, aesthetic, cultural and other 
traditional values.



Sec. 163.4  Secretarial recognition of tribal laws.

    Subject to the Secretary's trust responsibilities, and unless 
otherwise prohibited by Federal statutory law, the Secretary shall 
comply with tribal laws pertaining to Indian forest land, including laws 
regulating the environment or historic or cultural preservation, and 
shall cooperate with the enforcement of such laws on Indian forest land. 
Such cooperation does not constitute a waiver of United States sovereign 
immunity and shall include:
    (a) Assistance in the enforcement of such laws;
    (b) Provision of notice of such laws to persons or entities 
undertaking activities on Indian forest land; and
    (c) Upon the request of an Indian tribe, the appearance in tribal 
forums.



               Subpart B--Forest Management and Operations



Sec. 163.10  Management of Indian forest land.

    (a) The Secretary shall undertake forest land management activities 
on Indian forest land, either directly or through contracts, cooperative 
agreements, or grants under the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-638, as amended).
    (b) Indian forest land management activities undertaken by the 
Secretary shall be designed to achieve objectives enumerated in 
Sec. 163.3 of this part.



Sec. 163.11  Forest management planning and sustained yield management.

    (a) To further the objectives identified in Sec. 163.3 of this part, 
an appropriate forest management plan shall be prepared and revised as 
needed for all Indian forest lands. Such documents shall contain a 
statement describing the manner in which the policies of the tribe and 
the Secretary will be applied, with a definite plan of silvicultural 
management, analysis of the short term and long term effects of the 
plan, and a program of action, including a harvest schedule, for a 
specified period in the future. Forest management plans shall be based 
on the principle of sustained yield management and objectives 
established by the tribe and will require approval of the Secretary.
    (b) Forest management planning for Indian forest land shall be 
carried out through participation in the development and implementation 
of integrated resource management plans which provide coordination for 
the comprehensive management of all natural resources on Indian land. If 
the integrated resource management planning process has not been 
initiated, or is not ongoing or completed, a stand-alone forest 
management plan will be prepared.
    (c) The harvest of forest products from Indian forest land will be 
accomplished under the principles of sustained yield management and will 
not be authorized until practical methods of harvest based on sound 
economic and silvicultural and other forest management principles have 
been prescribed. Harvest schedules will be prepared for a specified 
period of time and updated annually. Such schedules shall support the 
objectives of the beneficial land owners and the Secretary and shall be 
directed toward achieving an approximate balance between net growth and 
harvest at the earliest practical time.



Sec. 163.12  Harvesting restrictions.

    (a) Harvesting timber on commercial forest land will not be 
permitted unless provisions for natural and/or artificial reforestation 
of acceptable tree species is included in harvest plans.
    (b) Clearing of large contiguous areas will be permitted only on 
land that, when cleared, will be devoted to a more beneficial use than 
growing timber crops. This restriction shall not prohibit clearcutting 
when it is silviculturally appropriate, based on ecological principles, 
to harvest a particular stand of timber by such method and it otherwise 
conforms with objectives in Sec. 163.3 of this part.



Sec. 163.13  Indian tribal forest enterprise operations.

    Indian tribal forest enterprises may be initiated and organized with 
consent of the authorized tribal representatives. Such enterprises may 
contract

[[Page 423]]

for the purchase of non-Indian owned forest products. Subject to 
approval by the Secretary the following actions may be taken:
    (a) Authorized tribal enterprises may enter into formal agreements 
with tribal representatives for the use of tribal forest products, and 
with individual beneficial Indian owners for their forest products;
    (b) Authorized officials of tribal enterprises, operating under 
approved agreements for the use of Indian-owned forest products pursuant 
to this section, may sell the forest products produced according to 
generally accepted trade practices;
    (c) With the consent of the beneficial Indian owners, such 
enterprises may, without advertisement, contract for the purchase of 
forest products on Indian land at stumpage rates authorized by the 
Secretary;
    (d) Determination of and payment for stumpage and/or products 
utilized by such enterprises will be authorized in accordance with 
Sec. 163.22. However, the Secretary may issue special instructions for 
payment by methods other than those in Sec. 163.22 of this part; and
    (e) Performance bonds may or may not be required in connection with 
operations on Indian land by such enterprises as determined by the 
Secretary.



Sec. 163.14  Sale of forest products.

    (a) Consistent with the economic objectives of the tribe and with 
the consent of the Secretary and authorized by tribal resolution or 
resolution of recognized tribal government, open market sales of Indian 
forest products may be authorized. Such sales require consent of the 
authorized representatives of the tribe for the sale of tribal forest 
products, and the owners of a majority Indian interest on individually 
owned lands. Open market sales of forest products from Indian land 
located off reservations will be permitted with the consent of the 
Secretary and majority Indian interest of the beneficial Indian 
owner(s).
    (b) On individually owned Indian forest land not formally designated 
for retention in its natural state, the Secretary may, after 
consultation, sell the forest products without the consent of the 
owner(s) when in his or her judgment such action is necessary to prevent 
loss of value resulting from fire, insects, diseases, windthrow or other 
catastrophes.
    (c) Unless otherwise authorized by the Secretary, each sale of 
forest products having an estimated stumpage value exceeding $15,000 
will not be approved until:
    (1) An examination of the forest products to be sold has been made 
by a forest officer; and
    (2) A report setting forth all pertinent information has been 
submitted to the approving officer as provided in Sec. 163.20 of this 
part.
    (d) With the approval of the Secretary, authorized beneficial Indian 
owners who have been duly apprised as to the value of the forest 
products to be sold, may sell or transfer forest products for less than 
the appraised value.
    (e) Except as provided in Sec. 163.14(d) of this part, in all such 
sales, the forest products shall be appraised and sold at stumpage rates 
not less than those established by the Secretary.



Sec. 163.15  Advertisement of sales.

    Except as provided in Secs. 163.13, 163.14, 163.16, and 163.26 of 
this part, sales of forest products shall be made only after 
advertising.
    (a) The advertisement shall be approved by the officer who will 
approve the instrument of sale. Advertised sales shall be made under 
sealed bids, or at public auction, or under a combination thereof. The 
advertisement may limit sales of Indian forest products to Indian forest 
enterprises, members of the tribe, or may grant to Indian forest 
enterprises and/or members of the tribe who submitted bids the right to 
meet the higher bid of a non-member. If the estimated stumpage value of 
the forest products offered does not exceed $15,000, the advertisement 
may be made by posters and circular letters. If the estimated stumpage 
value exceeds $15,000, the advertisement shall also be made in at least 
one edition of a newspaper of general circulation in the locality where 
the forest products are situated. If the estimated stumpage value does 
not exceed $50,000, the advertisement shall be made for not less than 15 
days; if the

[[Page 424]]

estimated stumpage value exceeds $50,000 but not $250,000, for not less 
than 30 days; and if the estimated stumpage value exceeds $250,000, for 
not less than 60 days.
    (b) The approving officer may reduce the advertising period because 
of emergencies such as fire, insect attack, blowdown, limitation of 
time, or when there would be no practical advantage in advertising for 
the prescribed period.
    (c) If no instrument of sale is executed after such advertisement, 
the approving officer may, within one year from the last day on which 
bids were to be received as defined in the advertisement, permit the 
sale of such forest products. The sale will be made upon the terms and 
conditions in the advertisement and at not less than the advertised 
value or the appraised value at the time of sale, whichever is greater.



Sec. 163.16  Forest product sales without advertisement.

    (a) Sales of forest products may be made without advertisement to 
Indians or non-Indians with the consent of the authorized tribal 
representatives for tribal forest products or with the consent of the 
beneficial owners of a majority Indian interest of individually owned 
Indian land, and the approval of the Secretary when:
    (1) Forest products are to be cut in conjunction with the granting 
of a right-of-way;
    (2) Granting an authorized occupancy;
    (3) Tribal forest products are to be purchased by an Indian tribal 
forest enterprise;
    (4) It is impractical to secure competition by formal advertising 
procedures;
    (5) It must be cut to protect the forest from injury; or
    (6) Otherwise specifically authorized by law.
    (b) The approving officer shall establish a documented record of 
each negotiated transaction. This will include:
    (1) A written determination and finding that the transaction is a 
type allowing use of negotiation procedures;
    (2) The extent of solicitation and competition, or a statement of 
the facts upon which a finding of impracticability of securing 
competition is based; and
    (3) A statement of the factors on which the award is based, 
including a determination as to the reasonability of the price accepted.



Sec. 163.17  Deposit with bid.

    (a) A deposit shall be made with each proposal for the purchase of 
Indian forest products. Such deposits shall be at least:
    (1) Ten (10) percent if the appraised stumpage value is less than 
$100,000 and in any event not less than $1,000 or full value whichever 
is less;
    (2) Five (5) percent if the appraised stumpage value is $100,000 to 
$250,000 but in any event not less than $10,000; and
    (3) Three (3) percent if the appraised stumpage value exceeds 
$250,000 but in any event not less than $12,500.
    (b) Deposits shall be in the form of either a certified check, 
cashier's check, bank draft, postal money order, or irrevocable letter-
of-credit, drawn payable as specified in the advertisement, or in cash.
    (c) The deposit of the apparent high bidder, and of others who 
submit a written request to have their bids considered for acceptance 
will be retained pending acceptance or rejection of the bids. All other 
deposits will be returned following the opening and posting of bids.
    (d) The deposit of the successful bidder will be forfeited and 
distributed as damages to the beneficial owners if the bidder does not:
    (1) Furnish the performance bond required by Sec. 163.21 of this 
part within the time stipulated in the advertisement for sale of forest 
products;
    (2) Execute the contract; or
    (3) Perform the contract.
    (e) Forfeiture of a deposit does not limit or waive any further 
claims for damages available under applicable law or terms of the 
contract.
    (f) In the event of an administrative appeal under 25 CFR part 2, 
the Secretary may hold such bid deposits in an escrow account pending 
resolution of the appeal.

[[Page 425]]



Sec. 163.18  Acceptance and rejection of bids.

    (a) The high bid received in accordance with any advertisement 
issued under authority of this part shall be accepted, except that the 
approving officer, having set forth the reason(s) in writing, shall have 
the right to reject the high bid if:
    (1) The high bidder is considered unqualified to fulfill the 
contractual requirement of the advertisement; or
    (2) There are reasonable grounds to consider it in the interest of 
the Indians to reject the high bid.
    (b) If the high bid is rejected, the approving officer may 
authorize:
    (1) Rejection of all bids; or
    (2) Acceptance of the offer of another bidder who, at bid opening, 
makes written request that their bid and bid deposit be held pending a 
bid acceptance.
    (c) The officer authorized to accept the bid shall have the 
discretion to waive minor technical defects in advertisements and 
proposals, such as typographical errors and misplaced entries.



Sec. 163.19  Contracts for the sale of forest products.

    (a) In sales of forest products with an appraised stumpage value 
exceeding $15,000, the contract forms approved by the Secretary must be 
used unless a special form for a particular sale or class of sales is 
approved by the Secretary.
    (b) Unless otherwise directed, the contracts for forest products 
from individually-owned Indian land will be paid by remittance drawn to 
the Bureau of Indian Affairs and transmitted to the Superintendent. Upon 
the request of the tribe, the contracts for tribal forest products may 
require that the proceeds be paid promptly and directly into a bank 
depository account designated by such tribe, or by remittance drawn to 
the Bureau of Indian Affairs and transmitted to the Superintendent.
    (c) By mutual agreement of the parties to a contract, contracts may 
be extended, modified, or assigned subject to approval by the approving 
officer, and may be terminated by the approving officer upon completion 
or by mutual agreement.



Sec. 163.20  Execution and approval of contracts.

    (a) All contracts for the sale of tribal forest products shall be 
executed by the authorized tribal representative(s). There shall be 
included with the contract an affidavit executed by the authorized 
tribal representative(s) setting forth the resolution or other authority 
of the governing body of the tribe. Contracts must be approved by the 
Secretary to be valid.
    (b) Contracts for the sale of individually owned forest products 
shall be executed by the beneficial Indian owner(s) or the Secretary 
acting pursuant to a power of attorney from the beneficial Indian 
owner(s). Contracts must be approved by the Secretary to be valid.
    (1) The Secretary may, after consultation with any legally appointed 
guardian, execute contracts on behalf of minors and beneficial Indian 
owners who are non compos mentis.
    (2) The Secretary may execute contracts for a decedent's estate 
where ownership has not been determined or for those persons who cannot 
be located after a reasonable and diligent search and the giving of 
notice by publication.
    (3) Upon the request of the owner of an undivided but unrestricted 
interest in land in which there are trust or restricted Indian 
interests, the Secretary may include such unrestricted interest in a 
sale of the trust or restricted interests in the timber, pursuant to 
this part, and perform any functions required of him/her by the contract 
of sale for both the restricted and the unrestricted interests, 
including the collection and disbursement of payments for timber and the 
forest management deductions from such payments.
    (4) When consent of only a majority interest has been obtained, the 
Secretary may execute the sale on behalf of all owners to fulfill 
responsibilities to the beneficiaries of the trust. In such event, the 
contract file must contain evidence of the effort to obtain consent of 
all owners. When an individual cannot be located, the Secretary, after a 
reasonable and diligent search and the giving of notice by publication, 
may sign a power of attorney consenting to the sale for particular 
interests.

[[Page 426]]

For Indian forest land containing undivided restricted and unrestricted 
interests, only the restricted interests are considered in determining 
if a majority interest has been obtained.



Sec. 163.21  Bonds required.

    (a) Performance bonds will be required in connection with all sales 
of forest products, except they may or may not be required, as 
determined by the approving officer, in connection with the use of 
forest products by Indian tribal forest enterprises pursuant to this 
part in Sec. 163.13 or in timber cutting permits issued pursuant to 
Sec. 163.26 of this part.
    (1) In sales in which the estimated stumpage value, calculated at 
the appraised stumpage rates, does not exceed $15,000, the bond shall be 
at least 20 percent of the estimated stumpage value.
    (2) In sales in which the estimated stumpage value exceeds $15,000 
but is not over $150,000, the bond shall be at least 15 percent of the 
estimated stumpage value but not less than $3,000.
    (3) In sales in which the estimated stumpage value exceeds $150,000, 
but is not over $350,000, the bond shall be at least 10 percent of the 
estimated stumpage value but not less than $22,500.
    (4) In sales in which the estimated stumpage value exceeds $350,000, 
the bond shall be at least 5 percent of the estimated stumpage value but 
not less than $35,000.
    (b) Bonds shall be in a form acceptable to the approving officer and 
may include:
    (1) A corporate surety bond by an acceptable surety company;
    (2) A cash bond designating the approving officer to act as trustee 
under terms of an appropriate trust;
    (3) Negotiable U.S. Government securities supported by an 
appropriate trust instrument; or
    (4) An irrevocable letter of credit.



Sec. 163.22  Payment for forest products.

    (a) The basis of volume determination for forest products sold shall 
be the Scribner Decimal C log rules, cubic volume, lineal measurement, 
piece count, weight, or such other form of measurement as the Secretary 
may authorize for use. With the exception of Indian tribal forest 
enterprises pursuant to Sec. 163.13 of this part, payment for forest 
products will be required in advance of cutting for timber, or removal 
for other forest products.
    (b) Upon the request of an Indian tribe, the Secretary may provide 
that the purchaser of the forest products of such tribe, which are 
harvested under a timber sale contract, permit, or other harvest sale 
document to make advanced deposits, or direct payments of the gross 
proceeds of such forest products, less any amounts segregated as forest 
management deductions pursuant to Sec. 163.25 of this part, into 
accounts designated by such Indian tribe. Such accounts may be in one or 
more of the following formats:
    (1) Escrow accounts at a tribally designated financial institution 
for receiving deposits with bids and advance deposits from which direct 
disbursements for timber harvested shall be made to tribes and forest 
management deductions accounts; or
    (2) Tribal depository accounts for receiving advance payments, 
installment payments, payments from Indian tribal forest enterprises, 
and/or disbursements from advance deposit accounts or escrow accounts.
    (c) The format must allow the Secretary to maintain trust 
responsibility through written verification that all required deposits, 
payments, and disbursements have been made.
    (d) Terms and conditions for payment of forest products under lump 
sum (predetermined volume) sales shall be specified in forest product 
contract documents.



Sec. 163.23  Advance payment for timber products.

    (a) Unless otherwise authorized by the Secretary, and except in the 
case of lump sum (predetermined volume) sales, contracts for the sale of 
timber from allotted, trust or restricted Indian forest land shall 
provide for an advance payment of up to 25 percent of the stumpage 
value, calculated at the bid price, within 30 days from the date of 
approval and before cutting begins. Additional advance payments may be

[[Page 427]]

specified in contracts. However, no advance payment will be required 
that would make the sum of such payment and of advance deposits and 
advance payments previously applied against timber cut from each 
ownership in a sale exceed 50 percent of the bid stumpage value. Advance 
payments shall be credited against the timber of each ownership in the 
sale as the timber is cut and scaled at stumpage rates governing at the 
time of scaling. Advance payments are not refundable.
    (b) Advance payments may be required on tribal land. When required, 
advance payments will operate the same as provided for in Sec. 163.23(a) 
of this part.



Sec. 163.24  Duration of timber contracts.

    After the effective date of a forest product contract, unless 
otherwise authorized by the Secretary, the maximum period which shall be 
allowed for harvesting the estimated volume of timber purchased, shall 
be five years.



Sec. 163.25  Forest management deductions.

    (a) Pursuant to the provisions of 25 U.S.C. 413 and 25 U.S.C. 3105, 
a forest management deduction shall be withheld from the gross proceeds 
of sales of forest products harvested from Indian forest land as 
described in this section.
    (b) Gross proceeds shall mean the value in money or money's worth of 
consideration furnished by the purchaser of forest products purchased 
under a contract, permit, or other document for the sale of forest 
products.
    (c) Forest management deductions shall not be withheld where the 
total consideration furnished under a contract, permit or other document 
for the sale of forest products is less than $5,001.
    (d) Except as provided in Sec. 163.25(e) of this part, the amount of 
the forest management deduction shall not exceed the lesser amount of 
ten percent (10%) of the gross proceeds or, the actual percentage in 
effect on November 28, 1990.
    (e) The Secretary may increase the forest management deduction 
percentage for Indian forest land upon receipt of a written request from 
a tribe supported by a resolution executed by the authorized tribal 
representatives. At the request of the authorized tribal representatives 
and at the discretion of the Secretary the forest management deduction 
percentage may be decreased to not less than one percent (1%) or the 
requirement for collection may be waived.
    (f) Forest management deductions are to be utilized to perform 
forest land management activities in accordance with an approved 
expenditure plan. Expenditure plans shall describe the forest land 
management activities anticipated to be undertaken, establish a time 
period for their completion, summarize anticipated obligations and 
expenditures, and specify the method through which funds are to be 
transferred or credited to tribal accounts from special deposit accounts 
established to hold amounts withheld as forest management deductions. 
Any forest management deductions that have not been incorporated into an 
approved expenditure plan by the end of the fiscal year following the 
fiscal year in which the deductions are withheld, shall be collected 
into the general funds of the United States Treasury pursuant to 25 
U.S.C. 413.
    (1) For Indian forest lands located on an Indian reservation, a 
written expenditure plan for the use of forest management deductions 
shall be prepared annually and approved by the authorized tribal 
representative(s) and the Secretary. The approval of the expenditure 
plan by the authorized tribal representatives constitutes allocation of 
tribal funds for Indian forest land management activities. Approval of 
the expenditure plan by the Secretary shall constitute authority for 
crediting of forest management deductions to tribal account(s). The full 
amount of any deduction collected by the Secretary plus any income or 
interest earned thereon shall be available for expenditure according to 
the approved expenditure plan for the performance of forest land 
management activities on the reservation from which the forest 
management deduction is collected.
    (2) Forest management deductions shall be handled in the same manner 
as described under Sec. 163.25(f)(1) of this part if the expenditure 
plan approved by an Indian tribe and the Secretary provides

[[Page 428]]

for the conduct of forest land management activities on Indian forest 
lands located outside the boundaries of an Indian reservation.
    (3) For public domain and Alaska Native allotments held in trust for 
Indians by the United States, forest management deductions may be 
utilized to perform forest land management activities on such lands in 
accordance with an expenditure plan approved by the Secretary.
    (g) Forest management deductions withheld pursuant to this section 
shall not be available to cover the costs that are paid from funds 
appropriated for fire suppression or pest control or otherwise offset 
federal appropriations for meeting the Federal trust responsibility for 
management of Indian forest land.
    (h) Within 120 days after the close of the tribal fiscal year, 
tribes shall submit to the Secretary a written report detailing the 
actual expenditure of forest management deductions during the past 
fiscal year. The Secretary shall have the right to inspect accounts, 
books, or other tribal records supporting the report.
    (i) Forest management deductions incorporated into an expenditure 
plan approved by the Secretary shall remain available until expended.
    (j) As provided in Sec. 163.25(f) of this part, only forest 
management deductions that have not been incorporated into an approved 
expenditure plan may be deposited to a U.S. Treasury miscellaneous 
receipt account. No amount collected as forest management deductions 
shall be credited to any Federal appropriation. No other forest 
management deductions or fees derived from Indian forest land shall be 
collected to be covered into the general funds of the United States 
Treasury.



Sec. 163.26  Forest product harvesting permits.

    (a) Except as provided in Secs. 163.13 and 163.27 of this part, 
removal of forest products that are not under formal contract, pursuant 
to Sec. 163.19, shall be under forest product harvesting permit forms 
approved by the Secretary. Permits will be issued only with the written 
consent of the beneficial Indian owner(s) or the Secretary, for harvest 
of forest products from Indian forest land, as authorized in Sec. 163.20 
of this part. To be valid, permits must be approved by the Secretary. 
Minimum stumpage rates at which forest products may be sold will be set 
at the time consent to issue the permit is obtained. Payment and bonding 
requirements will be stipulated in the permit document as appropriate.
    (b) Free use harvesting permits issued shall specify species and 
types of forest products to be removed. It may be stipulated that forest 
products removed under this authority cannot be sold or exchanged for 
other goods or services. The estimated value which may be harvested in a 
fiscal year by any individual under this authority shall not exceed 
$5,000. For the purpose of issuance of free use permits, individual 
shall mean an individual Indian or any organized group of Indians.
    (c) Paid permits subject to forest management deductions, as 
provided in Sec. 163.25 of this part, may be issued. Unless otherwise 
authorized by the Secretary, the stumpage value which may be harvested 
under paid permits in a fiscal year by any individual under this 
authority shall not exceed $25,000. For the purpose of issuance of paid 
permits, individual shall mean an individual or any operating entity 
comprised of more than one individual.
    (d) A Special Allotment Timber Harvest Permit may be issued to an 
Indian having sole beneficial interest in an allotment to harvest and 
sell designated forest products from his or her allotment. The special 
permit shall include provision for payment by the Indian of forest 
management deductions pursuant to Sec. 163.25 of this part. Unless 
waived by the Secretary, the permit shall also require the Indian to 
make a bond deposit with the Secretary as required by Sec. 163.21. Such 
bonds will be returned to the Indian upon satisfactory completion of the 
permit or will be used by the Secretary in his or her discretion for 
planting or other work to offset damage to the land or the timber caused 
by failure to comply with the provisions of the permit. As a condition 
to granting a special permit under authority of this paragraph, the 
Indian shall be required to provide evidence acceptable to the Secretary 
that

[[Page 429]]

he or she has arranged a bona fide sale of the forest products, on terms 
that will protect the Indian's interests.



Sec. 163.27  Free-use harvesting without permits.

    With the consent of the beneficial Indian owners and the Secretary, 
Indians may harvest designated types of forest products from Indian 
forest land without a permit or contract, and without charge. Forest 
products harvested under this authority shall be for the Indian's 
personal use, and shall not be sold or exchanged for other goods or 
services.



Sec. 163.28  Fire management measures.

    (a) The Secretary is authorized to maintain facilities and staff, 
hire temporary labor, rent fire fighting equipment, purchase tools and 
supplies, and pay for their transportation as needed, to maintain an 
adequate level of readiness to meet normal wildfire protection needs and 
extinguish forest or range fires on Indian land. No expenses for 
fighting a fire outside Indian lands may be incurred unless the fire 
threatens Indian land or unless the expenses are incurred pursuant to an 
approved cooperative agreement with another protection agency. The rates 
of pay for fire fighters and for equipment rental shall be the rates for 
fire fighting services that are currently in use by public and private 
wildfire protection agencies adjacent to Indian reservations on which a 
fire occurs, unless there are in effect at the time different rates that 
have been approved by the Secretary. The Secretary may also enter into 
reciprocal agreements with any fire organization maintaining protection 
facilities in the vicinity of Indian reservations or other Indian land 
for mutual aid in wildfire protection. This section does not apply to 
the rendering of emergency aid, or agreements for mutual aid in fire 
protection pursuant to the Act of May 27, 1955 (69 Stat. 66).
    (b) The Secretary is authorized to conduct a wildfire prevention 
program to reduce the number of person-caused fires and prevent damage 
to natural resources on Indian land.
    (c) The Secretary is authorized to expend funds for emergency 
rehabilitation measures needed to stabilize soil and watershed on Indian 
land damaged by wildfire.
    (d) Upon consultation with the beneficial Indian owners, the 
Secretary may use fire as a management tool on Indian land to achieve 
land and/or resource management objectives.



Sec. 163.29   Trespass.

    (a) Trespassers will be liable for civil penalties and damages to 
the enforcement agency and the beneficial Indian owners, and will be 
subject to prosecution for acts of trespass.
    (1) Cases in Tribal Court. For trespass actions brought in tribal 
court pursuant to these regulations, the measure of damages, civil 
penalties, remedies and procedures will be as set forth in this 
Sec. 163.29 of this part. All other aspects of a tribal trespass 
prosecution brought under these regulations will be that prescribed by 
the law of the tribe in whose reservation or within whose jurisdiction 
the trespass was committed, unless otherwise prescribed under federal 
law. Absent applicable tribal or federal law, the measure of damages 
shall be that prescribed by the law of the state in which the trespass 
was committed.
    (2) Cases in Federal Court. For trespass actions brought in Federal 
court pursuant to these regulations, the measure of damages, civil 
penalties, remedies and procedures will be as set forth in this 
Sec. 163.29. In the absence of applicable federal law, the measure shall 
be that prescribed by the law of the tribe in whose reservation or 
within whose jurisdiction the trespass was committed, or in the absence 
of tribal law, the law of the state in which it was committed.
    (3) Civil penalties for trespass include, but are not limited to:
    (i) Treble damages, whenever any person, without lawful authority 
injures, severs, or carries off from a reservation any forest product as 
defined in Sec. 163.1 of this part. Proof of Indian ownership of the 
premises and commission of the acts by the trespasser are prima facie 
evidence sufficient to support liability for treble damages, with no 
requirement to show willfulness or intent. Treble damages shall be based

[[Page 430]]

upon the highest stumpage value obtainable from the raw materials 
involved in the trespass.
    (ii) Payment of costs associated with damage to Indian forest land 
includes, but is not limited to, rehabilitation, reforestation, lost 
future revenue and lost profits, loss of productivity, and damage to 
other forest resources.
    (iii) Payment of all reasonable costs associated with the 
enforcement of these trespass regulations beginning with detection and 
including all processes through the prosecution and collection of 
damages, including but not limited to field examination and survey, 
damage appraisal, investigation assistance and reports, witness 
expenses, demand letters, court costs, and attorney fees.
    (iv) Interest calculated at the statutory rate prescribed by the law 
of the tribe in whose reservation or within whose jurisdiction the 
trespass was committed, or in the absence of tribal law in the amount 
prescribed by federal law. Where tribal law or federal law does not 
supply a statutory interest rate, the rate of interest shall be 
statutory rate upon judgments as prescribed by the law of the state in 
which the trespass was committed. Interest shall be based on treble the 
highest stumpage value obtainable from the raw materials involved in the 
trespass, and calculated from the date of the trespass until payment is 
rendered.
    (b) Any cash or other proceeds realized from forfeiture of equipment 
or other goods or from forest products damaged or taken in the trespass 
shall be applied to satisfy civil penalties and other damages identified 
under Sec. 163.29(a) of this part. After disposition of real and 
personal property to pay civil penalties and damages resulting from 
trespass, any residual funds shall be returned to the trespasser. In the 
event that collection and forfeiture actions taken against the 
trespasser result in less than full recovery, civil penalties shall be 
distributed as follows:
    (1) Collection of damages up to the highest stumpage value of the 
trespass products shall be distributed pro rata between the Indian 
beneficial owners and any costs and expenses needed to restore the 
trespass land; or
    (2) Collections exceeding the highest stumpage value of the trespass 
product, but less than full recovery, shall be proportionally 
distributed pro rata between the Indian beneficial owners, the law 
enforcement agency, and the cost to restore the trespass land. Forest 
management deductions shall not be withheld where less than the highest 
stumpage value of the unprocessed forest products taken in trespass has 
been recovered.
    (c) Indian beneficial owners who trespass, or who are involved in 
trespass upon their own land, or undivided land in which such owners 
have a partial interest, shall not receive their beneficial share of any 
civil penalties and damages collected in consequence of the trespass. 
Any civil penalties and damages defaulted in consequence of this 
provision instead shall be distributed first toward restoration of the 
land subject of the trespass and second toward costs of the enforcement 
agency in consequence of the trespass, with any remainder to the forest 
management deduction account of the reservation in which the trespass 
took place.
    (d) Civil penalties and other damages collected under these 
regulations, except for penalties and damages provided for in 
Secs. 163.29(a)(3) (ii) and (iii) of this part, shall be treated as 
proceeds from the sale of forest products from the Indian forest land 
upon which the trespass occurred.
    (e) When a federal official or authorized tribal representative 
pursuant to Sec. 163.29(j) of this part has reason to believe that 
Indian forest products are involved in trespass, such individual may 
seize and take possession of the forest products involved in the 
trespass if the products are located on reservation. When forest 
products are seized, the person seizing the products must at the time of 
the seizure issue a Notice of Seizure to the possessor or claimant of 
the forest products. The Notice of Seizure shall indicate the date of 
the seizure, a description of the forest products seized, the estimated 
value of forest products seized, an indication of whether the forest 
products are perishable, and the name and authority of the person 
seizing the forest products. Where the official initiates seizure

[[Page 431]]

under these regulations only, the Notice of Seizure shall further 
include the statement that any challenge or objection to the seizure 
shall be exclusively through administrative appeal pursuant to part 2 of 
title 25, and shall provide the name and the address of the official 
with whom the appeal may be filed. Alternately, an official may exercise 
concurrent tribal seizure authority under these regulations using 
applicable tribal law. In such case, the Notice of Seizure shall 
identify the tribal law under which the seizure may be challenged, if 
any. A copy of a Notice of Seizure shall be given to the possessor or 
claimant at the time of the seizure. If the claimant or possessor is 
unknown or unavailable, Notice of Seizure shall be posted on the 
trespass property, and a copy of the Notice shall be kept with any 
incident report generated by the official seizing the forest products. 
If the property seized is perishable and will lose substantial value if 
not sold or otherwise disposed of, the representative of the Secretary, 
or authorized tribal representative where deferral has been requested, 
may cause the forest products to be sold. Such sale action shall not be 
stayed by the filing of an administrative appeal nor by a challenge of 
the seizure action through a tribal forum. All proceeds from the sale of 
the forest products shall be placed into an escrow account and held 
until adjudication or other resolution of the underlying trespass. If it 
is found that the forest products seized were involved in a trespass, 
the proceeds shall be applied to the amount of civil penalties and 
damages awarded. If it is found that a trespass has not occurred or the 
proceeds are in excess of the amount of the judgment awarded, the 
proceeds or excess proceeds shall be returned to the possessor or 
claimant.
    (f) When there is reason to believe that Indian forest products are 
involved in trespass and that such products have been removed to land 
not under federal or tribal government supervision, the federal official 
or authorized tribal representative pursuant to Sec. 163.29(k) of this 
part responsible for the trespass shall immediately provide the 
following notice to the owner of the land or the party in possession of 
the trespass products:
    (1) That such products could be Indian trust property involved in a 
trespass; and
    (2) That removal or disposition of the forest products may result in 
criminal and/or civil action by the United States or tribe.
    (g) A representative of the Secretary or authorized tribal 
representative pursuant to Sec. 163.29(j) of this part will promptly 
determine if a trespass has occurred. The appropriate representative 
will issue an official Notice of Trespass to the alleged trespasser and, 
if necessary, the possessor or potential buyer of any trespass products. 
The Notice is intended to inform the trespasser, buyer, or the 
processor:
    (1) That a determination has been made that a trespass has occurred;
    (2) The basis for the determination;
    (3) An assessment of the damages, penalties and costs;
    (4) Of the seizure of forest products, if applicable; and
    (5) That disposition or removal of Indian forest products taken in 
the trespass may result in civil and/or criminal action by the United 
States or the tribe.
    (h) The Secretary may accept payment of damages in the settlement of 
civil trespass cases. In the absence of a court order, the Secretary 
will determine the procedure and approve acceptance of any settlements 
negotiated by a tribe exercising its concurrent jurisdiction pursuant to 
Sec. 163.29(j) of this part.
    (i) The Secretary may delegate by written agreement or contract, 
responsibility for detection and investigation of forest trespass.
    (j) Indian tribes that adopt the regulations set forth in this 
section, conformed as necessary to tribal law, shall have concurrent 
civil jurisdiction to enforce 25 U.S.C. 3106 and this section against 
any person.
    (1) The Secretary shall acknowledge said concurrent civil 
jurisdiction over trespass, upon:
    (i) Receipt of a formal tribal resolution documenting the tribe's 
adoption of this section; and
    (ii) Notification of the ability of the tribal court system to 
properly adjudicate forest trespass cases, including a

[[Page 432]]

statement that the tribal court will enforce the Indian Civil Rights Act 
or a tribal civil rights law that contains provisions for due process 
and equal protection that are similar to or stronger than those 
contained in the Indian Civil Rights Act.
    (2) Where an Indian tribe has acquired concurrent civil jurisdiction 
over trespass cases as set forth in Sec. 163.29(j)(1) of this part, the 
Secretary and tribe's authorized representatives will be jointly 
responsible to coordinate prosecution of trespass actions. The Secretary 
shall, upon timely request of the tribe, defer prosecution of forest 
trespasses to the tribe. Where said deferral is not requested, the 
designated Bureau of Indian Affairs forestry trespass official shall 
coordinate with the authorized forest trespass official of each tribe 
the exercise of concurrent tribal and Federal trespass jurisdiction as 
to each trespass. Such officials shall review each case, determine in 
which forums to recommend bringing an action, and promptly provide their 
recommendation to the Federal officials responsible for initiating and 
prosecuting forest trespass cases. Where an Indian tribe has acquired 
concurrent civil jurisdiction, but does not request deferral of 
prosecution, the federal officials responsible for initiating and 
prosecuting such cases may file and prosecute the action in the tribal 
court or forum.
    (3) The Secretary may rescind an Indian tribe's concurrent civil 
jurisdiction over trespass cases under this regulation if the Secretary 
or a court of competent jurisdiction determines that the tribal court 
has not adhered to the due process or equal protection requirements of 
the Indian Civil Rights Act. If it is determined that said rescission is 
justified, the Secretary shall provide written Notice of the rescission, 
including the findings justifying the rescission and the steps needed to 
remedy the violations causing the rescission, to the chief judge of the 
tribal judiciary or other authorized tribal official should there be no 
chief judge. If said steps are not taken within 60 days, the Secretary's 
rescission of concurrent civil jurisdiction shall become final. The 
affected tribe(s) may appeal a Notice of Rescission under part 2 of 
title 25.
    (4) Nothing shall be construed to prohibit or in any way diminish 
the authority of a tribe to prosecute individuals under its criminal or 
civil trespass laws where it has jurisdiction over those individuals.



Sec. 163.30  Revocable road use and construction permits for removal of commercial forest products.

    (a) In accordance with 25 U.S.C. 415 as amended, the Secretary may 
request tribes and/or other beneficial owners to sign revocable permits 
designating the Secretary as agent for the landowner and empowering him 
or her to issue revocable road use and construction permits to users for 
the purpose of removing forest products.
    (b) When a majority of trust interest in a tract has consented, the 
Secretary may issue revocable road use and con- struction permits for 
removal of forest products over and across such land. In addition, the 
Secretary may act for individual owners when:
    (1) One or more of the individual owner(s) of the land or of an 
interest therein is a minor or a person non compos mentis, and the 
Secretary finds that such grant, in total or for an interest therein, 
will cause no substantial injury to the land or the owner, which cannot 
be adequately compensated for by monetary damages;
    (2) The whereabouts of the owner(s) of the land or those with an 
interest therein are unknown so long as the majority of owner(s) of 
interests whose whereabouts are known, consent to the grant;
    (3) The heirs or devisees of a deceased owner of the land or 
interest have not been determined, and the Secretary finds the grant 
will cause no substantial injury to the land or any land owner; or
    (4) The owners of interests in the land are so numerous that the 
Secretary finds it would be impractical to obtain the consent of the 
majority and finds that such grant in total or an interest therein will 
cause no substantial injury to the land or the owner(s), that cannot be 
adequately compensated for by monetary damages.

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    (c) Nothing in this section shall preclude acquisition of rights-of-
way over Indian lands, under 25 CFR part 169, or conflict with 
provisions of that part.



Sec. 163.31  Insect and disease control.

    (a) The Secretary is authorized to protect and preserve Indian 
forest land from disease or insects (Sept. 20, 1922, Ch. 349, 42 Stat. 
857). The Secretary shall consult with the authorized tribal 
representatives and beneficial owners of Indian forest land concerning 
control actions.
    (b) The Secretary is responsible for controlling and mitigating 
harmful effects of insects and diseases on Indian forest land and will 
coordinate control actions with the Secretary of Agriculture in 
accordance with 92 Stat. 365, 16 U.S.C. 2101.



Sec. 163.32  Forest development.

    Forest development pertains to forest land management activities 
undertaken to improve the sustainable productivity of commercial Indian 
forest land. The program shall consist of reforestation, timber stand 
improvement projects, and related investments to enhance productivity of 
commercial forest land with emphasis on accomplishing on-the-ground 
projects. Forest development funds will be used to re-establish, 
maintain, and/or improve growth of commercial timber species and control 
stocking levels on commercial forest land. Forest development activities 
will be planned and executed using benefit-cost analyses as one of the 
determinants in establishing priorities for project funding.



Sec. 163.33  Administrative appeals.

    Any challenge to action under 25 CFR part 163 taken by an approving 
officer or subordinate official exercising delegated authority from the 
Secretary shall be exclusively through administrative appeal or as 
provided in the Indian Self-Determination and Education Assistance Act 
(Pub. L. 93-638, as amended). Such appeal(s) shall be filed in 
accordance with the provisions of 25 CFR part 2, Appeals from 
administrative actions, except that an appeal of any action under part 
163 of this title shall:
    (a) Not stay any action unless otherwise directed by the Secretary; 
and
    (b) Define ``interested party'' for purposes of bringing such an 
appeal or participating in such an appeal as any person whose own direct 
economic interest is adversely affected by an action or decision.



Sec. 163.34  Environmental compliance.

    Actions taken by the Secretary under the regulations in this part 
must comply with the National Environmental Policy Act of 1969, 
applicable Council on Environmental Quality Regulations, and tribal laws 
and regulations.



Sec. 163.35  Indian forest land assistance account.

    (a) At the request of a tribe's authorized representatives, the 
Secretary may establish tribal-specific forest land assistance accounts 
within the trust fund system.
    (b) Deposits shall be credited either to forest transportation or to 
general forest land management accounts.
    (c) Deposits into the accounts may include:
    (1) Funds from non-federal sources related to activities on or for 
the Indian forest land of such tribe's reservation;
    (2) Donations or contributions;
    (3) Unobligated forestry appropriations for the tribe;
    (4) User fees; and
    (5) Funds transferred under Federal interagency agreements if 
otherwise authorized by law.
    (d) For purposes of Sec. 163.35(c)(3) of this part; unobligated 
forestry appropriations shall consist of balances that remain 
unobligated at the end of the fiscal year(s) for which funds are 
appropriated for the benefit of an Indian tribe.
    (e) Funds in the Indian forest land assistance account plus any 
interest or other income earned shall remain available until expended 
and shall not be available to otherwise offset Federal appropriations 
for the management of Indian forest land.
    (f) Funds in the forest land assistance account shall be used only 
for forest

[[Page 434]]

land management activities on the reservation for which the account is 
established.
    (g) Funds in a tribe's forest land assistance account shall be 
expended in accordance with a plan approved by the tribe and the 
Secretary.
    (h) The Secretary may, where circumstances warrant, at the request 
of the tribe, or upon the Secretary's own volition, conduct audits of 
the forest land assistance accounts and shall provide the audit results 
of to the tribe(s).



Sec. 163.36  Tribal forestry program financial support.

    (a) The Secretary shall maintain a program to provide financial 
support to qualifying tribal forestry programs. A qualifying tribal 
forestry program is an organization or entity established by a tribe for 
purposes of carrying out forest land management activities. Such 
financial support shall be made available through the Indian Self-
Determination and Education Assistance Act (Pub. L. 93-638, as amended).
    (b) The authorized tribal representatives of any category 1, 2, or 3 
reservation (as defined under Sec. 163.36(b)(1)-(3)) with an established 
tribal forestry program or with an intent to establish such a program 
for the purpose of carrying out forest land management activities may 
apply and qualify for tribal forestry program financial support. 
Reservation categories, as determined by the Secretary, are defined as:
    (1) Category 1 includes major forested reservations comprised of 
more than 10,000 acres of trust or restricted commercial timberland or 
having more than a one million board foot harvest of forest products 
annually.
    (2) Category 2 includes minor forested reservations comprised of 
less than 10,000 acres of trust or restricted commercial timberland and 
having less than a one million board foot harvest of forest products 
annually, or whose forest resource is determined by the Secretary to be 
of significant commercial timber value.
    (3) Category 3 includes significant woodland reservations comprised 
of an identifiable trust or restricted forest area of any size which is 
lacking a timberland component, and whose forest resource is determined 
by the Secretary to be of significant commercial woodland value.
    (c) A group of tribes that has either established or intends to 
establish a cooperative tribal forestry program to provide forest land 
management services to their reservations may apply and qualify for 
tribal forestry program financial support. For purposes of financial 
support under this provision, the cooperative tribal forestry program 
and the commercial forest acreage and annual allowable cut which it 
represents may be considered as a single reservation.
    (d) Before the beginning of each Federal fiscal year, tribes 
applying to qualify for forestry program financial support shall submit 
application packages to the Secretary which:
    (1) Document that a tribal forestry program exists or that there is 
an intent to establish such a program;
    (2) Describe forest land management activities and the time line for 
implementing such activities which would result from receiving tribal 
forestry program financial support; and
    (3) Document commitment to sustained yield management.
    (e) Tribal forestry program financial support shall provide 
professional and technical services to carry out forest land management 
activities and shall be based on levels of funding assistance as 
follows:
    (1) Level one funding assistance shall be equivalent to a Federal 
Employee General Pay Schedule GS 9 step 5 position salary plus an 
additional 40 percent of the annual salary for such a position to pay 
for fringe benefits and support costs;
    (2) Level two funding assistance shall be equivalent to an 
additional Federal Employee General Pay Schedule GS 9 step 5 position 
salary plus an additional 40 percent of the annual salary for such a 
position to pay for fringe benefits and support costs; and
    (3) Level three funding assistance shall be based on equal 
distribution of remaining funds among qualifying applicants.
    (f) Determination of qualification for level of funding assistance 
shall be as follows:

[[Page 435]]

    (1) A funding level qualification value shall be determined for each 
eligible applicant using the formula below. Such formula shall only be 
used to determine which applicants qualify for level one funding 
assistance. Acreage and allowable cut data used in the formula shall be 
as maintained by the Secretary. Eligible applicants with a funding level 
qualification value of one (1) or greater shall qualify for level one 
assistance.

                   Funding Level Qualification Formula
[GRAPHIC] [TIFF OMITTED] TR05OC95.000

where:
CA=applicant's total commercial Indian forest land acres;
Tot. CA=national total commercial Indian forest land acres;
AAC=applicant's total allowable annual cut from commercial Indian forest 
land acres; and
Tot. AAC=national total allowable annual cut from commercial Indian 
forest land acres.

    (2) All category 1 or 2 reservations that are eligible applicants 
under Sec. 163.36(d) of this part are qualified and eligible for level 
two assistance.
    (3) All category 1, 2 or 3 reservations that are eligible applicants 
under Sec. 163.36(d) of this part are qualified and eligible for level 
three assistance.
    (g) Tribal forestry program financial support funds shall be 
distributed based on the following:
    (1) All requests from reservations qualifying for level one funding 
assistance must be satisfied before funds are made available for level 
two funding assistance;
    (2) All requests from reservations qualifying for level two funding 
assistance must be satisfied before funds are made available for level 
three funding assistance; and
    (3) If available funding is not adequate to satisfy all requests at 
a particular level of funding, funds will be evenly divided among tribes 
qualifying at that level.



Sec. 163.37  Forest management research.

    The Secretary, with the consent of the authorized Indian 
representatives' is authorized to perform forestry research activities 
to improve the basis for determining appropriate land management 
activities to apply to Indian forest land.



  Subpart C--Forestry Education, Education Assistance, Recruitment and 
                                Training



Sec. 163.40  Indian and Alaska Native forestry education assistance.

    (a) Establishment and evaluation of the forestry education 
assistance programs. (1) The Secretary shall establish within the Bureau 
of Indian Affairs Division of Forestry an education committee to 
coordinate and implement the forestry education assistance programs and 
to select participants for all the forestry education assistance 
programs with the exception of the cooperative education program. This 
committee will be, at a minimum, comprised of a professional educator, a 
personnel specialist, an Indian or Alaska Native who is not employed by 
the Bureau of Indian Affairs, and a professional forester from the 
Bureau of Indian Affairs.
    (2) The Secretary, through the Bureau of Indian Affairs Division of 
Forestry, shall monitor and evaluate the forestry education assistance 
programs to ensure that there are adequate Indian and Alaska Native 
foresters and forestry-related professionals to manage the Bureau of 
Indian Affairs forestry programs and forestry programs maintained by or 
for tribes and ANCSA Corporations. Such monitoring and evaluating shall 
identify the number of participants in the intern, cooperative 
education, scholarship, and outreach programs; the number of 
participants who completed the requirements to become a professional 
forester or forestry-related professional; and the number of 
participants completing advanced degree requirements.
    (b) Forester intern program. (1) The purpose of the forester intern 
program is to ensure the future participation of trained, professional 
Indians and Alaska Natives in the management of Indian and Alaska Native 
forest land. In

[[Page 436]]

keeping with this purpose, the Bureau of Indian Affairs in concert with 
tribes and Alaska Natives will work:
    (i) To obtain the maximum degree of participation from Indians and 
Alaska Natives in the forester intern program;
    (ii) To encourage forester interns to complete an undergraduate 
degree program in a forestry or forestry-related field which could 
include courses on indigenous culture; and
    (iii) To create an opportunity for the advancement of forestry and 
forestry-related technicians to professional resource management 
positions with the Bureau of Indian Affairs, a tribe, tribal forest 
enterprise or ANCSA Corporation.
    (2) The Secretary, through the Bureau of Indian Affairs Division of 
Forestry, subject to the availability of personnel resource levels 
established in agency budgets, shall establish and maintain in the 
Bureau of Indian Affairs at least 20 positions for the forester intern 
program. All Indians and Alaska Natives who satisfy the qualification 
criteria in Sec. 163.40(b)(3) of this part may compete for such 
positions.
    (3) To be considered for selection, applicants for forester intern 
positions must meet the following criteria:
    (i) Be eligible for Indian preference as defined in 25 CFR part 5, 
subchapter A;
    (ii) Possess a high school diploma or its recognized equivalent;
    (iii) Be able to successfully complete the intern program within a 
three year maximum time period; and
    (iv) Possess a letter of acceptance to an accredited post-secondary 
school or demonstrate that such a letter of acceptance will be acquired 
within 90 days.
    (4) The Bureau of Indian Affairs shall advertise vacancies for 
forester intern positions semiannually, no later than the first day of 
April and October, to accommodate entry into school.
    (5) Selection of forester interns will be based on the following 
guidelines:
    (i) Selection will be on a competitive basis selecting applicants 
who have the greatest potential for success in the program;
    (ii) Selection will take into consideration the amount of time which 
will be required for individual applicants to complete the intern 
program;
    (iii) Priority in selection will be given to candidates currently 
employed with and recommended for participation by the Bureau of Indian 
Affairs, a tribe, a tribal forest enterprise or ANCSA Corporation; and
    (iv) Selection of individuals to the program awaiting the letter of 
acceptance required by Sec. 163.40(b)(3)(iv) of this part may be 
canceled if such letter of acceptance is not secured and provided to the 
education committee in a timely manner.
    (6) Forester interns shall comply with each of the following program 
requirements:
    (i) Maintain full-time status in a forestry related curriculum at an 
accredited post-secondary school having an agreement which assures the 
transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a forestry 
related program at a bachelor degree granting institution accredited by 
the American Association of Universities;
    (ii) Maintain good academic standing;
    (iii) Enter into an obligated service agreement to serve as a 
professional forester or forestry-related professional with the Bureau 
of Indian Affairs, the recommending tribe, tribal forest enterprise or 
ANCSA Corporation for two years for each year in the program; and
    (iv) Report for service with the Bureau of Indian Affairs, a tribe, 
tribal forest enterprise or ANCSA Corporation during any break in 
attendance at school of more than three weeks duration. Time spent in 
such service shall be counted toward satisfaction of the intern's 
obligated service.
    (7) The education committee established pursuant to 
Sec. 163.40(a)(1) of this part will evaluate annually the performance of 
forester intern program participants against requirements enumerated in 
Sec. 163.40(b)(6) of this part to ensure that they are satisfactorily 
progressing toward completing program requirements.
    (8) The Secretary shall pay all costs for tuition, books, fees and 
living expenses incurred by a forester intern while attending an 
accredited post-secondary school.

[[Page 437]]

    (c) Cooperative education program. (1) The purpose of the 
cooperative education program is to recruit and develop promising Indian 
and Alaska Native students who are enrolled in secondary schools, tribal 
or Alaska Native community colleges, and other post-secondary schools 
for employment as professional foresters and other forestry-related 
professionals by the Bureau of Indian Affairs, a tribe, tribal forest 
enterprise or ANCSA Corporation.
    (2) The program shall be operated by the Bureau of Indian Affairs 
Division of Forestry in accordance with the provisions of 5 CFR 
213.3202(a) and 213.3202(b).
    (3) To be considered for selection, applicants for the cooperative 
education program must meet the following criteria:
    (i) Meet eligibility requirements stipulated in 5 CFR 213.3202;
    (ii) Be accepted into or enrolled in a course of study at a high 
school offering college preparatory course work, an accredited 
institution which grants bachelor degrees in forestry or forestry-
related curriculums or a post-secondary education institution which has 
an agreement with a college or university which grants bachelor degrees 
in forestry or forestry-related curriculums. The agreement must assure 
the transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a forestry 
related program at the bachelor degree-granting institution.
    (4) Cooperative education steering committees established at the 
field level shall select program participants based on eligibility 
requirements stipulated in Sec. 163.40(c)(3) of this part without regard 
to applicants' financial needs.
    (5) A recipient of assistance under the cooperative education 
program shall be required to enter into an obligated service agreement 
to serve as a professional forester or forestry- related professional 
with the Bureau of Indian Affairs, a recommending tribe, tribal forest 
enterprise or ANCSA Corporation for one year in return for each year in 
the program.
    (6) The Secretary shall pay all costs of tuition, books, fees, and 
transportation to and from the job site to school, for an Indian or 
Alaska Native student who is selected for participation in the 
cooperative education program.
    (d) Scholarship program. (1) The Secretary is authorized, within the 
Bureau of Indian Affairs Division of Forestry, to establish and grant 
forestry scholarships to Indians and Alaska Natives enrolled in 
accredited programs for post-secondary and graduate forestry and 
forestry-related programs of study as full-time students.
    (2) The education committee established pursuant to this part in 
Sec. 163.40(a)(1) shall select program participants based on eligibility 
requirements stipulated in Secs. 163.40(d)(5), 163.40(d)(6) and 
163.40(d)(7) without regard to applicants' financial needs or past 
scholastic achievements.
    (3) Recipients of scholarships must reapply annually to continue 
funding beyond the initial award period. Students who have been 
recipients of scholarships in past years, who are in good academic 
standing and have been recommended for continuation by their academic 
institution will be given priority over new applicants for selection for 
scholarship assistance.
    (4) The amount of scholarship funds an individual is awarded each 
year will be contingent upon the availability of funds appropriated each 
fiscal year and, therefore, may be subject to yearly changes.
    (5) Preparatory scholarships are available for a maximum of two and 
one half academic years of general, undergraduate course work leading to 
a degree in forestry or forestry-related curriculums and may be awarded 
to individuals who meet the following criteria:
    (i) Must possess a high school diploma or its recognized equivalent; 
and
    (ii) Be enrolled and in good academic standing or accepted for 
enrollment at an accredited post-secondary school which grants degrees 
in forestry or forestry-related curriculums or be in a post-secondary 
institution which has an agreement with a college or university which 
grants bachelor degrees in

[[Page 438]]

forestry or forestry-related curriculums. The agreement must assure the 
transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a 
forestry-related curriculum at the bachelor degree granting institution.
    (6) Pregraduate scholarships are available for a maximum of three 
academic years and may be awarded to individuals who meet the following 
criteria:
    (i) Have completed a minimum of 55 semester hours towards a bachelor 
degree in a forestry or forestry-related curriculum; and
    (ii) Be accepted into a forestry or forestry-related bachelor 
degree-granting program at an accredited college or university.
    (7) Graduate scholarships are available for a maximum of three 
academic years for individuals selected into the graduate program of an 
accredited college or university that grants advanced degrees in 
forestry or forestry-related fields.
    (8) A recipient of assistance under the scholarship program shall be 
required to enter into an obligated service agreement to serve as a 
professional forester or forestry-related professional with the Bureau 
of Indian Affairs, a tribe, tribal forest enterprise or ANCSA 
Corporation for one year for each year in the program.
    (9) The Secretary shall pay all scholarships approved by the 
education committee established pursuant to this part in 
Sec. 163.40(a)(1), for which funding is available.
    (e) Forestry education outreach. (1) The Secretary shall establish 
and maintain a forestry education outreach program within the Bureau of 
Indian Affairs Division of Forestry for Indian and Alaska Native youth 
which will:
    (i) Encourage students to acquire academic skills needed to succeed 
in post-secondary mathematics and science courses;
    (ii) Promote forestry career awareness that could include modern 
technologies as well as native indigenous forestry technologies;
    (iii) Involve students in projects and activities oriented to 
forestry related professions early so students realize the need to 
complete required precollege courses; and
    (iv) Integrate Indian and Alaska Native forestry program activities 
into the education of Indian and Alaska Native students.
    (2) The program shall be developed and carried out in consultation 
with appropriate community education organizations, tribes, ANCSA 
Corporations, and Alaska Native organizations.
    (3) The program shall be coordinated and implemented nationally by 
the education committee established pursuant to Sec. 163.40(a)(1) of 
this part.
    (f) Postgraduate studies. (1) The purpose of the postgraduate 
studies program is to enhance the professional and technical knowledge 
of Indian and Alaska Native foresters and forestry-related professionals 
working for the Bureau of Indian Affairs, a tribe, tribal forest 
enterprise or ANCSA Corporations so that the best possible service is 
provided to Indian and Alaska Native publics.
    (2) The Secretary is authorized to pay the cost of tuition, fees, 
books and salary of Alaska Natives and Indians who are employed by the 
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA 
Corporation who have previously received diplomas or degrees in forestry 
or forestry-related curriculums and who wish to pursue advanced levels 
of education in forestry or forestry-related fields.
    (3) Requirements of the postgraduate study program are:
    (i) The goal of the advanced study program is to encourage 
participants to obtain additional academic credentials such as a degree 
or diploma in a forestry or forestry-related field;
    (ii) The duration of course work cannot be less than one semester or 
more than three years; and
    (iii) Students in the postgraduate studies program must meet 
performance standards as required by the graduate school offering the 
study program during their course of study.
    (4) Program applicants will submit application packages to the 
education committee established by Sec. 163.40(a)(1). At a minimum, such 
packages shall contain a complete SF 171 and an endorsement, signed by 
the applicant's

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supervisor clearly stating the needs and benefits of the desired 
training.
    (5) The education committee established pursuant to 
Sec. 163.40(a)(1) shall select program participants based on the 
following criteria:
    (i) Need for the expertise sought at both the local and national 
levels;
    (ii) Expected benefits, both to the location and nationally; and
    (iii) Years of experience and the service record of the employee.
    (6) Program participants will enter into an obligated service 
agreement in accordance with Sec. 163.42(a), to serve as a professional 
forester or forestry-related professional with the Bureau of Indian 
Affairs, a tribe, tribal forest enterprise or ANCSA Corporation for two 
years for each year in the program. However, the obligated service 
requirement may be reduced by the Secretary if the employee receives 
supplemental funding such as research grants, scholarships or graduate 
stipends and, as a result, reduces the need for financial assistance. If 
the obligated service agreement is breached, the Secretary is authorized 
to pursue collection in accordance with Sec. 163.42(b) of this part.



Sec. 163.41   Postgraduation recruitment, continuing education and training programs.

    (a) Postgraduation recruitment program. (1) The purpose of the 
postgraduation recruitment program is to recruit Indian and Alaska 
Native graduate foresters and trained forestry technicians into the 
Bureau of Indian Affairs forestry program or forestry programs conducted 
by a tribe, tribal forest enterprise or ANCSA Corporation.
    (2) The Secretary is authorized to assume outstanding student loans 
from established lending institutions of Indian and Alaska Native 
foresters and forestry technicians who have successfully completed a 
post-secondary forestry or forestry- related curriculum at an accredited 
institution.
    (3) Indian and Alaska Natives receiving benefits under this program 
shall enter into an obligated service agreement in accordance with 
Sec. 163.42(a) of this part. Obligated service required under this 
program will be one year for every $5,000 of student loan debt repaid.
    (4) If the obligated service agreement is breached, the Secretary is 
authorized to pursue collection of the student loan(s) in accordance 
with Sec. 163.42(b) of this part.
    (b) Postgraduate intergovernmental internships. (1) Forestry 
personnel working for the Bureau of Indian Affairs, a tribe, tribal 
forest enterprise or ANCSA Corporation may apply to the Secretary and be 
granted an internship within forestry-related programs of agencies of 
the Department of the Interior.
    (2) Foresters or forestry-related personnel from other Department of 
the Interior agencies may apply through proper channels for internships 
within Bureau of Indian Affairs forestry programs and, with the consent 
of a tribe or Alaska Native organization, within tribal or Alaska Native 
forestry programs.
    (3) Forestry personnel from agencies not within the Department of 
the Interior may apply, through proper agency channels and pursuant to 
an interagency agreement, for an internship within the Bureau of Indian 
Affairs and, with the consent of a tribe or Alaska Native organization, 
within a tribe, tribal forest enterprise or ANCSA Corporation.
    (4) Forestry personnel from a tribe, tribal forest enterprise or 
ANCSA Corporation may apply, through proper channels and pursuant to a 
cooperative agreement, for an internship within another tribe, tribal 
forest enterprise or ANCSA Corporation forestry program.
    (5) The employing agency of participating Federal employees will 
provide for the continuation of salary and benefits.
    (6) The host agency for participating tribal, tribal forest 
enterprise or ANCSA Corporation forestry employees will provide for 
salaries and benefits.
    (7) A bonus pay incentive, up to 25 percent of the intern's base 
salary, may be provided to intergovernmental interns at the conclusion 
of the internship period. Bonus pay incentives will be at the discretion 
of and funded by

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the host organization and will be conditioned upon the host agency's 
documentation of the intern's superior performance, in accordance with 
the agency's performance standards, during the internship period.
    (c) Continuing education and training. (1) The purpose of continuing 
education and training is to establish a program to provide for the 
ongoing education and training of forestry personnel employed by the 
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA 
Corporation. This program will emphasize continuing education and 
training in three areas:
    (i) Orientation training, including tribal-Federal relations and 
responsibilities;
    (ii) Technical forestry education; and
    (iii) Developmental training in forest land-based enterprises and 
marketing.
    (2) The Secretary shall implement within the Bureau of Indian 
Affairs Division of Forestry, an orientation program designed to 
increase awareness and understanding of Indian culture and its effect on 
forest management practices and on Federal laws that affect forest 
management operations and administration in the Indian forestry program.
    (3) The Secretary shall implement within the Bureau of Indian 
Affairs Division of Forestry, a continuing technical forestry education 
program to assist foresters and forestry-related professionals to 
perform forest management on Indian forest land.
    (4) The Secretary shall implement, within the Bureau of Indian 
Affairs Division of Forestry, a forest land-based forest enterprise and 
marketing training program to assist with the development and use of 
Indian and Alaska Native forest resources.



Sec. 163.42  Obligated service and breach of contract.

    (a) Obligated service. (1) Individuals completing forestry education 
programs with an obligated service requirement may be offered full time 
permanent employment with the Bureau of Indian Affairs, a tribe, tribal 
forest enterprise or ANCSA Corporation to fulfill their obligated 
service within 90 days of the date all program education requirements 
have been completed. If such employment is not offered within the 90-day 
period, the student shall be relieved of obligated service requirements. 
Not less than 30 days prior to the commencement of employment, the 
employer shall notify the participant of the work assignment, its 
location and the date work must begin. If the employer is other than the 
Bureau of Indian Affairs, the employer shall notify the Secretary of the 
offer for employment.
    (2) Qualifying employment time eligible to be credited to fulfilling 
the obligated service requirement will begin the day after all program 
education requirements have been completed, with the exception of the 
forester intern program, which includes the special provisions outlined 
in Sec. 163.40(b)(6)(iv). The minimum service obligation period shall be 
one year of full-time employment.
    (3) The Secretary or other qualifying employer reserves the right to 
designate the location of employment for fulfilling the service 
obligation.
    (4) A participant in any of the forestry education programs with an 
obligated service requirement who receives a degree may, within 30 days 
of the degree completion date, request a deferment of obligated service 
to pursue postgraduate or postdoctoral studies. In such cases, the 
Secretary shall issue a decision within 30 days of receipt of the 
request for deferral. The Secretary may grant such a request, however, 
deferments granted in no way waive or otherwise affect obligated service 
requirements.
    (5) A participant in any of the forestry education programs with an 
obligated service requirement may, within 30 days of the date all 
program education requirements have been completed, request a waiver of 
obligated service based on personal or family hardship. The Secretary 
may grant a full or partial waiver or deny the request for waiver. In 
such cases, the Secretary shall issue a decision within 30 days of 
receipt of the request for waiver.
    (b) Breach of contract. Any individual who has participated in and 
accepted financial support under forestry education programs with an 
obligated service requirement and who does not

[[Page 441]]

accept employment or unreasonably terminates such employment by their 
own volition will be required to repay financial assistance as follows:
    (1) Forester intern program--Amount plus interest equal to the sum 
of all salary, tuition, books, and fees that the forester intern 
received while occupying the intern position. The amount of salary paid 
to the individual during breaks in attendance from school, when the 
individual was employed by the Bureau of Indian Affairs, a tribe, tribal 
forest enterprise, or ANCSA Corporation, shall not be included in this 
total.
    (2) Cooperative education program--Amount plus interest equal to the 
sum of all tuition, books, and fees that the individual received under 
the cooperative education program.
    (3) Scholarship program--Amount plus interest equal to 
scholarship(s) provided to the individual under the scholarship program.
    (4) Postgraduation recruitment program--Amount plus interest equal 
to the sum of all the individual's student loans assumed by the 
Secretary under the postgraduation recruitment program.
    (5) Postgraduate studies program--Amount plus interest equal to the 
sum of all salary, tuition, books, and fees that the individual received 
while in the postgraduate studies program. The amount of salary paid to 
that individual during breaks in attendance from school, when the 
individual was employed by the Bureau of Indian Affairs, a tribe, a 
tribal enterprise, or ANCSA Corporation, shall not be included in this 
total.
    (c) Adjustment of repayment for obligated service performed. Under 
forestry education programs with an obligated service requirement, the 
amount required for repayment will be adjusted by crediting time of 
obligated service performed prior to breach of contract toward the final 
amount of debt.



          Subpart D--Alaska Native Technical Assistance Program



Sec. 163.60  Purpose and scope.

    (a) The Secretary shall provide a technical assistance program to 
ANCSA corporations to promote sustained yield management of their forest 
resources and, where practical and consistent with the economic 
objectives of the ANCSA Corporations, promote local processing and other 
value-added activities. For the purpose of this subpart, technical 
assistance means specialized professional and technical help, advice or 
assistance in planning, and providing guidance, training and review for 
programs and projects associated with the management of, or impact upon, 
Indian forest land, ANCSA corporation forest land, and their related 
resources. Such technical assistance shall be made available through 
contracts, grants or agreements entered into in accordance with the 
Indian Self-Determination and Education Assistance Act (Pub. L. 93-638, 
as amended).
    (b) Nothing in this part shall be construed as: Affecting, modifying 
or increasing the responsibility of the United States toward ANCSA 
corporation forest land, or affecting or otherwise modifying the Federal 
trust responsibility towards Indian forest land; or requiring or 
otherwise mandating an ANCSA corporation to apply for a contract, grant, 
or agreement for technical assistance with the Secretary. Such 
applications are strictly voluntary.



Sec. 163.61  Evaluation committee.

    (a) The Secretary shall establish an evaluation committee to assess 
and rate technical assistance project proposals. This committee will 
include, at a minimum, local Bureau of Indian Affairs and Alaska Native 
representatives with expertise in contracting and forestry.



Sec. 163.62  Annual funding needs assessment and rating.

    (a) Each year, the Secretary will request a technical assistance 
project needs assessment from ANCSA corporations. The needs assessments 
will provide information on proposed project goals and estimated costs 
and benefits and will be rated by the evaluation committee established 
pursuant to Sec. 163.61 for the purpose of making funding 
recommendations to the Secretary. To the extent practicable, such

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recommendations shall achieve an equitable funding distribution between 
large and small ANCSA corporations and shall give priority for 
continuation of previously approved multi-year projects.
    (b) Based on the recommendations of the evaluation committee, the 
Secretary shall fund such projects, to the extent available 
appropriations permit.



Sec. 163.63  Contract, grant, or agreement application and award process.

    (a) At such time that the budget for ANCSA corporation technical 
assistance projects is known, the Secretary shall advise the ANCSA 
corporations on which projects were selected for funding and on the 
deadline for submission of complete and detailed contract, grant or 
agreement packages.
    (b) Upon the request of an ANCSA corporation and to the extent that 
funds and personnel are available, the Bureau of Indian Affairs shall 
provide technical assistance to ANCSA corporations to assist them with:
    (1) Preparing the technical parts of the contract, grant, or 
agreement application; and
    (2) Obtaining technical assistance from other Federal agencies.



                    Subpart E--Cooperative Agreements



Sec. 163.70  Purpose of agreements.

    (a) To facilitate administration of the programs and activities of 
the Department of the Interior, the Secretary is authorized to negotiate 
and enter into cooperative agreements between Indian tribes and any 
agency or entity within the Department. Such cooperative agreements 
include engaging tribes to undertake services and activities on all 
lands managed by Department of the Interior agencies or entities or to 
provide services and activities performed by these agencies or entities 
on Indian forest land to:
    (1) Engage in cooperative manpower and job training and development 
programs;
    (2) Develop and publish cooperative environmental education and 
natural resource planning materials; and
    (3) Perform land and facility improvements, including forestry and 
other natural resources protection, fire protection, reforestation, 
timber stand improvement, debris removal, and other activities related 
to land and natural resource management.
    (b) The Secretary may enter into such agreements when he or she 
determines the public interest will be benefited. Nothing in 
Sec. 163.70(a) shall be construed to limit the authority of the 
Secretary to enter into cooperative agreements otherwise authorized by 
law.



Sec. 163.71  Agreement funding.

    In cooperative agreements, the Secretary is authorized to advance or 
reimburse funds to contractors from any appropriated funds available for 
similar kinds of work or by furnishing or sharing materials, supplies, 
facilities, or equipment without regard to the provisions of 31 U.S.C. 
3324, relating to the advance of public moneys.



Sec. 163.72  Supervisory relationship.

    In any agreement authorized by the Secretary, Indian tribes and 
their employees may perform cooperative work under the supervision of 
the Department of the Interior in emergencies or otherwise, as mutually 
agreed to, but shall not be deemed to be Federal employees other than 
for purposes of 28 U.S.C. 2671 through 2680, and 5 U.S.C. 8101 through 
8193.



                      Subpart F--Program Assessment



Sec. 163.80  Periodic assessment report.

    The Secretary shall commission every ten years an independent 
assessment of Indian forest land and Indian forest land management 
practices under the guidelines established in Sec. 163.81 of this part.
    (a) Assessments shall be conducted in the first year of each decade 
(e.g., 2000, 2010, etc.) and shall be completed within 24 months of 
their initiation date. Each assessment shall be initiated no later than 
November 28 of the designated year.
    (b) Except as provided in Sec. 163.83 of this part, each assessment 
shall be conducted by a non-Federal entity knowledgeable of forest 
management practices on Federal and private land. Assessments will 
evaluate and compare

[[Page 443]]

investment in and management of Indian forest land with similar Federal 
and private land.
    (c) Completed assessment reports shall be submitted to the Committee 
on Interior and Insular Affairs of the United States House of 
Representatives and the Select Committee on Indian Affairs of the United 
States Senate and shall be made available to Indian tribes.



Sec. 163.81  Assessment guidelines.

    Assessments shall be national in scope and shall include:
    (a) An in-depth analysis of management practices on, and the level 
of funding by management activity for, specific Indian forest land 
compared with similar Federal and private forest land;
    (b) A survey of the condition of Indian forest land, including 
health and productivity levels;
    (c) An evaluation of the staffing patterns, by management activity, 
of forestry organizations of the Bureau of Indian Affairs and of Indian 
tribes;
    (d) An evaluation of procedures employed in forest product sales 
administration, including preparation, field supervision, and 
accountability for proceeds;
    (e) An analysis of the potential for streamlining administrative 
procedures, rules and policies of the Bureau of Indian Affairs without 
diminishing the Federal trust responsibility;
    (f) A comprehensive review of the intensity and utility of forest 
inventories and the adequacy of Indian forest land management plans, 
including their compatibility with other resource inventories and 
applicable integrated resource management plans and their ability to 
meet tribal needs and priorities;
    (g) An evaluation of the feasibility and desirability of 
establishing or revising minimum standards against which the adequacy of 
the forestry program of the Bureau of Indian Affairs in fulfilling its 
trust responsibility to Indian forest land can be measured;
    (h) An evaluation of the effectiveness of implementing the Indian 
Self-Determination and Education Assistance Act (Pub. L. 93-638, as 
amended) in regard to the Bureau of Indian Affairs forestry program;
    (i) A recommendation of any reforms and increased funding and other 
resources necessary to bring Indian forest land management programs to a 
state-of-the-art condition; and
    (j) Specific examples and comparisons from across the United States 
where Indian forest land is located.



Sec. 163.82  Annual status report.

    The Secretary shall, within 6 months of the end of each fiscal year, 
submit to the Committee on Interior and Insular Affairs of the United 
States House of Representatives, the Select Committee on Indian Affairs 
of the United States Senate, and to the affected Indian tribes, a report 
on the status of Indian forest land with respect to attaining the 
standards, goals and objectives set forth in approved forest management 
plans. The report shall identify the amount of Indian forest land in 
need of forestation or other silvicultural treatment, and the quantity 
of timber available for sale, offered for sale, and sold, for each 
Indian tribe.



Sec. 163.83  Assistance from the Secretary of Agriculture.

    The Secretary of the Interior may ask the Secretary of Agriculture, 
through the Forest Service, on a nonreimbursable basis, for technical 
assistance in the conduct of such research and evaluation activities as 
may be necessary for the completion of any reports or assessments 
required by Sec. 163.80 of this part.



PART 166--GENERAL GRAZING REGULATIONS--Table of Contents




Sec.
166.1  Definitions.
166.2  General authority.
166.3  Objectives.
166.4  Regulations; scope; exceptions.
166.5  Establishment of range units.
166.6  Grazing capacity.
166.7  Grazing on range units authorized by permit.
166.8  Grazing exempt from permit.
166.9  Authority of the Superintendent to include land in grazing 
          permits.
166.10  Allocation of grazing privileges.
166.11  Competitive and negotiated sale of grazing privileges.
166.12  Kind of livestock.

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166.13  Establishment of grazing fees.
166.14  Duration of grazing permits.
166.15  Assignment, modification, and cancellation of permits.
166.16  Conservation and land use provisions.
166.17  Range improvements; ownership.
166.18  Payment of tribal fees and taxes.
166.19  Special permit requirements and provisions.
166.20  Bonding and insurance requirements.
166.21  Payment of annual grazing fees.
166.22  Payment of preparation fees.
166.23  On-and-off grazing privileges.
166.24  Livestock trespass.
166.25  Control of livestock diseases.

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 
9; and by sec. 6, 69 Stat. 986, 25 U.S.C. 466. Interpret or apply R.S. 
2078, 25 U.S.C. 68; R.S. 2117, 25 U.S.C. 179; sec. 3, 26 Stat. 795, 25 
U.S.C. 397; sec. 1, 28 Stat. 305, 25 U.S.C. 402; sec. 4, 36 Stat. 856, 
25 U.S.C. 403; sec. 1, 39 Stat. 128, 25 U.S.C. 394; sec. 1, 41 Stat. 
1232, 25 U.S.C. 393; C. 158, 47 Stat. 1417, 25 U.S.C. 413; secs. 16, 17, 
48 Stat. 987, 988, 25 U.S.C. 476, 477; C. 210, 53 Stat. 840, 25 U.S.C. 
68a, 87a; C. 554, 54 Stat. 745, 25 U.S.C. 380; secs. 1, 2, 4, 5, 6, 69 
Stat. 539, 540, 25 U.S.C. 415, 415a, 415b, 415c, 415d.

    Source: 34 FR 9383, June 14, 1969, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

    Cross References: For Navajo grazing regulations, see part 167 of 
this chapter. For leasing and permitting of restricted Indian lands for 
farming, farm pasture, and business, see part 162 of this chapter.



Sec. 166.1  Definitions.

    (a) ``Tribe'' means a tribe, band, community, group, or pueblo of 
Indians.
    (b) ``Governing body'' means the general council or the tribal 
committee, board, or other membership body recognized by the Secretary 
as having the authority to act for the tribe, band, community, pueblo, 
or group of Indians.
    (c) ``Secretary'' means the Secretary of the Interior.
    (d) ``Commissioner'' means the Commissioner of Indian Affairs.
    (e) ``Area Director'' means the Director of any established Area of 
the Bureau of Indian Affairs.
    (f) ``Superintendent'' means the Superintendent of any Agency of the 
Bureau of Indian Affairs.
    (g) ``Individually owned land'' means land or any interest therein 
held in trust by the United States for the benefit of individual Indians 
and land or any interest therein held by individual Indians subject to 
Federal restrictions against alienation or encumbrance.
    (h) ``Tribal land'' means land or any interest therein held by the 
United States in trust for a tribe, band, community, group, or pueblo of 
Indians subject to Federal restrictions against alienation or 
encumbrance, and includes such land reserved for Indian Bureau 
administrative purposes when it is not immediately needed for such 
purposes. The term also includes lands held by the United States in 
trust for an Indian corporation chartered under section 17 of the Act of 
June 18, 1934 (48 Stat. 988; 25 U.S.C. 477).
    (i) ``Government land'' means land, other than tribal land, acquired 
or reserved by the United States for Indian Bureau administrative 
purposes which is not immediately needed for the purposes for which it 
was acquired or reserved and land transferred to or placed under the 
jurisdiction of the Bureau of Indian Affairs.
    (j) ``Range unit'' means a tract of range land designated as a 
management unit for administration of grazing. A range unit may consist 
of tribal, individually owned or Government land or any combination 
thereof consolidated for grazing administration.
    (k) ``Permit'' means a revocable privilege granted in writing 
limited to entering on and utilizing forage by domestic livestock on a 
specified tract of land.
    (l) ``Adult tribal members,'' for the purposes of this part, means a 
member of an Indian tribe, band, community, pueblo, or group, who has 
attained the age of 21 years.
    (m) ``Immediate family'' means the spouse, brothers, sisters, lineal 
ancestors, and descendants of an adult tribal member.
    (n) ``Allocation'' means the apportionment of grazing privileges 
without competitive bidding including the determination of who may graze 
livestock, the number and kind of livestock, and the place such 
livestock will be grazed.



Sec. 166.2  General authority.

    It is within the authority of the Secretary to protect individually 
owned and tribal lands against waste and to prescribe rules and 
regulations under

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which these lands may be leased or permitted for grazing. Improper use 
which threatens destruction of the range and soil resource is properly 
considered waste. With respect to reservations upon which the Indian 
Reorganization Act of June 18, 1934 (48 Stat. 984), is applicable, the 
action of the Secretary must follow the directions in section 6 of that 
Act which are: ``The Secretary of the Interior is directed to make rules 
and regulations for the operation and maintenance of Indian forestry 
units on the principle of sustained-yield management, to restrict the 
number of livestock grazed on Indian range units to the estimated 
carrying capacity of such ranges, and to promulgate such other rules and 
regulations as may be necessary to protect the range from deterioration, 
to prevent soil erosion, to assure full utilization of the range, and 
like purposes.'' It is also the Secretary's responsibility to improve 
the economic well being of the Indian people through proper and 
efficient resource use.



Sec. 166.3  Objectives.

    It is the purpose of the regulations of this part to:
    (a) Preserve, through proper grazing management, the land, water, 
forest, forage, wildlife, and recreational values on the reservations 
and improve and build up these resources where they have deteriorated.
    (b) Promote use of the range resource by Indians to enable them to 
earn a living, in whole or in part, through the grazing of their own 
livestock.
    (c) Provide for the administration of grazing privileges in a manner 
which will yield the highest return consistent with sustained yield land 
management principles and the fulfillment of the rights and objectives 
of tribal governing bodies and individual land owners.



Sec. 166.4  Regulations; scope; exceptions.

    The grazing regulations of this part apply to individually owned, 
tribal, and Government lands under the jurisdiction of the Bureau of 
Indian Affairs, except as superseded by special written instructions 
from the Commissioner in particular instances, or by provisions of any 
tribal constitution, bylaws, or charter, heretofore duly ratified or 
approved, or by any tribal action authorized thereunder. All forms 
necessary to carry out the purpose of the regulations of this part shall 
be approved by the Commissioner. Grazing lands not in range units 
established under this part may be leased pursuant to part 162 of this 
chapter.



Sec. 166.5  Establishment of range units.

    The conservation, development, and effective utilization of the 
range resource requires consolidation of small individual and tribal 
ownerships and the organization of the total range area into management 
units. This shall be done under the direction of the Superintendent, 
after consultation with the Indians, in a manner which will best meet 
the requirements of Indian needs, land ownership status, and proper land 
use. Any contiguous block of Indian and Government rangeland in excess 
of 2,560 acres shall be designated as one or more range units. Range 
units smaller than 2,560 acres may also be established under this 
procedure.



Sec. 166.6  Grazing capacity.

    Subject to approval of the Area Director, the Superintendent shall 
prescribe the maximum number of livestock which may be grazed on each 
range unit and the season, or seasons, of use to achieve the objectives 
cited in Sec. 166.3. The grazing capacity so prescribed will take into 
consideration the implementation of tribal objectives and programs 
requiring grazeable land to support wildlife and other nonlivestock 
uses. Stocking rates shall be reviewed on a continuing basis and 
adjusted as conditions warrant.



Sec. 166.7  Grazing on range units authorized by permit.

    All grazing use of range units shall be authorized by a grazing 
permit except Indians' use of their own land pursuant to Sec. 166.8. 
Permits on range units containing trust or restricted land which is 
entirely tribally owned, or is in combination with Government land, may 
be issued by the governing body, subject to approval by the 
Superintendent, or by the Superintendent pursuant to Sec. 166.9 (b). The 
Superintendent shall issue all permits on

[[Page 446]]

range units containing trust or restricted land which is entirely 
individually owned or is in combination with tribal and or Government 
land.

[34 FR 9383, June 14, 1969; 34 FR 11263, July 4, 1969. Redesignated at 
47 FR 13327, Mar. 30, 1982]



Sec. 166.8  Grazing exempt from permit.

    Adult tribal members of any tribe may, without approval of the 
Superintendent, graze livestock on their own individually owned grazing 
land or other grazing land for which they are responsible on behalf of 
those non compos mentis, on behalf of their minor children and on behalf 
of minor children or others to whom they stand in loco parentis when 
such children do not have a legal representative. The term ``graze 
livestock'' means the grazing of livestock which are either owned by 
those persons listed above, or if not owned, are under their direct 
management and supervision. Grazing of livestock under any other 
arrangement requires approval of the Superintendent.



Sec. 166.9  Authority of the Superintendent to include land in grazing permits.

    (a) The Superintendent may include individually owned land in 
grazing permits on behalf of:
    (1) Orphaned minors;
    (2) Persons who are non compos mentis and without legal guardians;
    (3) Undetermined heirs or devisees of a deceased Indian owner;
    (4) Adults whose whereabouts are unknown;
    (5) Heirs or devisees, none of whom are using the land and who have 
not been able to agree upon the permitting of their land during a 3-
month period, and after notice from the Superintendent given by posting 
a general notice in all Post Offices on the reservation and with the 
tribal governing body;
    (6) Those Indian land owners listed in Sec. 166.8 who give the 
Superintendent written authority to grant grazing privileges; and
    (7) Any other Indian minor or person who is non compos mentis or 
otherwise under legal disability, if that person's guardian, 
conservator, or other fiduciary, appointed by a State court or by a 
tribal court or court of Indian offenses operating under an approved 
constitution or law and order code, gives the Superintendent written 
authority to grant grazing privileges.
    (b) The Superintendent may include tribal land in grazing permits on 
behalf of governing bodies who give written authority. When timely 
action is not taken by the governing body to give the Superintendent 
written authority, or to issue permits pursuant to Sec. 166.7 and the 
criteria prescribed in Sec. 166.10, the Superintendent may proceed to 
issue permits on tribal land, subject to veto of the governing body, in 
order to prevent resource waste or unreasonable economic loss to the 
tribe or its members. The Superintendent shall notify the governing body 
in writing of the action he proposes to take and allow a 60-day period 
during which the tribal veto may be exercised.
    (c) The Superintendent may include Government land in grazing 
permits provided such land is not already under revocable permit to the 
tribe, in which case, paragraph (b) of this section applies.



Sec. 166.10  Allocation of grazing privileges.

    A tribal governing body may authorize the allocation of grazing 
privileges without competitive bidding on tribal and tribally controlled 
Government land to Indian corporations, Indian associations, and adult 
tribal members of the tribe represented by that governing body. The 
Superintendent may implement the governing body's allocation program by 
authorizing the allocation of grazing privileges on individually owned 
land. The eligibility requirements for allocations shall be prescribed 
by the governing body, subject to written concurrence of the 
Superintendent. Where timely action is not taken by the governing body 
to prescribe satisfactory requirements, the Superintendent shall notify 
it in writing that it has a 60-day period during which it may present 
requirements. Subject to the approval of the Area Director, the 
Superintendent shall prescribe the eligibility requirements after 
expiration of the 60-day period in

[[Page 447]]

the event satisfactory action is not taken by the governing body.

[34 FR 9383, June 14, 1969, as amended at 34 FR 11544, July 12, 1969. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 166.11  Competitive and negotiated sale of grazing privileges.

    (a) Grazing privileges not exempt from permit under Sec. 166.8 and 
not reserved for allocation under Sec. 166.10 shall be advertised for 
competitive public sale by the Superintendent except as otherwise 
provided in paragraph (b) of this section. Advertisements shall be:
    (1) Approved by the Area Director prior to publication;
    (2) Shall be for a 30-day period unless otherwise authorized by the 
Area Director;
    (3) Shall call for sealed bids;
    (4) May provide for oral auction subsequent to sealed bid opening at 
the discretion of the governing body; and
    (5) Shall limit the privilege of meeting high sealed bids of non-
Indians to adult tribal members, Indian corporations, and Indian 
associations, according to preferences determined by the governing body 
and concurred in writing by the Area Director.
    (b) The Area Director may authorize the issuance of grazing permits 
by negotiation when in his discretion no useful purpose would be served 
by advertisement. Negotiated permits shall be limited to the grazing 
capacity established pursuant to Sec. 166.6.

[34 FR 9383, June 14, 1969; 34 FR 11263, July 4, 1969. Redesignated at 
47 FR 13327, Mar. 30, 1982]



Sec. 166.12  Kind of livestock.

    (a) Tribal governing bodies may determine, subject to the grazing 
capacity prescribed by the Superintendent and Area Director the kind of 
livestock, e.g., cattle, sheep, etc., that may be grazed on range units 
composed entirely of tribal land or in combination with Government land.
    (b) The Superintendent shall designate the same kind of livestock to 
be grazed on range units composed entirely of individually owned land, 
or in combination with tribal and or Government land, as that determined 
by governing bodies pursuant to paragraph (a) of this section, unless 
the principles of proper land management or efficient permit 
administration require otherwise.



Sec. 166.13  Establishment of grazing fees.

    (a) Tribal governing bodies may determine the minimum rental rate to 
be charged for the use of tribal lands (1) included in advertisements 
for public sale and (2) by allocation, except that allocated Indian 
permittees shall be required to pay not less than the reservation 
minimum rental rate established by the Area Director pursuant to 
paragraph (b) of this section for all non-Indian owned livestock which 
they may be authorized to graze on tribal lands. Prior to these 
determinations, the Superintendent shall provide the tribe with all 
available information including appraisal data concerning the value of 
grazing on tribal lands.
    (b) The Area Director shall establish a reservation minimum 
acceptable grazing rental rate. The reservation minimum rate shall apply 
to all grazing privileges permitted on individually owned lands, to non-
Indian owned livestock which allocated permittees may be authorized to 
graze on tribal lands, and to all tribal lands when the governing body 
fails to establish a rate pursuant to paragraph (a) of this section. 
Except as otherwise provided in paragraph (c) of this section, the rate 
established shall provide a fair annual return to the land owners.
    (c) Indian landowners, in giving the Superintendent written 
authority to grant grazing privileges on their individually owned land, 
may stipulate a minimum rate above the reservation minimum set by the 
Area Director if justified because of above average value. They may also 
stipulate a lower rate than the reservation minimum, subject to approval 
of the Superintendent when the permittee is a member of the landowner's 
immediate family.



Sec. 166.14  Duration of grazing permits.

    (a) Tribal governing bodies may determine the duration of grazing 
permits on range units composed entirely of tribal land or in 
combination with Government land, subject to a maximum period of 5 years 
except when substantial development or improvement

[[Page 448]]

is required, in which case the maximum period shall be 10 years.
    (b) Subject to the same duration limits set forth in paragraph (a) 
of this section, the Superintendent shall prescribe the same period of 
duration for permits on range units composed entirely of individually 
owned land, or in combination with tribal and/or Government land, as 
that determined by governing bodies pursuant to paragraph (a) of this 
section unless the principles of proper land management or efficient 
permit administration require otherwise.
    (c) Permits for a period in excess of 5 years shall provide for 
review of the grazing fees by the Superintendent at the end of the first 
5 years and for adjustment as necessary.



Sec. 166.15  Assignment, modification, and cancellation of permits.

    (a) Grazing permits shall not be assigned, subpermitted, or 
transferred without the consent of the contracting parties, including 
the surety, and the approval of the Superintendent.
    (b) The Superintendent may revoke or withdraw all or any part of a 
grazing permit by cancellation or modification on 30 days' written 
notice for violation of the permit or because of termination of trust 
status of permitted land. In case of cancellation or modification 
because of trust termination the action shall be effected on the next 
annual anniversary date of the grazing permit following the date of 
notice.
    (c) The Superintendent may revoke or withdraw all or any part of a 
grazing permit by cancellation or modification on 180 days' written 
notice for allocated Indian use or for grazing exempt from permit 
pursuant to Sec. 166.8. Unless otherwise mutually agreed upon by the 
interested parties, such actions shall be effected on the annual 
anniversary date of the grazing permit following the date of notice 
except when such timeliness of notice is not possible, in which case 
deferment of the intended action shall not be required to extend beyond 
180 days from the date of the notice. Rental fees for grazing privileges 
taken for allocation shall not be less than those paid by the preceding 
permittee.



Sec. 166.16  Conservation and land use provisions.

    Grazing operations shall be conducted in accordance with recognized 
principles of good range management. Stipulations or management plans 
necessary to accomplish this may be made a part of the grazing permit.



Sec. 166.17  Range improvements; ownership.

    Improvements placed on the permitted land shall be considered 
affixed to the land unless specifically excepted therefrom under the 
permit terms. Written permission to construct and to remove improvements 
must be secured from the Superintendent. The permit will specify the 
maximum time allowed for removal of improvements so excepted.



Sec. 166.18  Payment of tribal fees and taxes.

    Fees and taxes exclusive of annual grazing fees, assessed by the 
tribe in connection with grazing permits and with the approval of the 
Commissioner or Secretary, shall be billed for by the tribe and paid 
annually in advance to the designated tribal official. Failure to make 
payment will subject the grazing permit to cancellation and may 
disqualify the permittee for future permits.



Sec. 166.19  Special permit requirements and provisions.

    (a) All grazing permits shall contain the following provisions:
    (1) While the lands covered by the permit are in trust or restricted 
status, all of the permittee's obligations under the permit and the 
obligation of his sureties are to the United States as well as to the 
owner of the land.
    (2) Nothing contained in the permit shall operate to delay or 
prevent a termination of Federal trust responsibilities with respect to 
the land by the issuance of a fee patent or otherwise during the term of 
the permit.
    (3) The permittee agrees he will not use, cause, or allow to be used 
any part of the permitted area for any unlawful conduct or purpose.
    (4) The permit authorizes the grazing of livestock only and the 
permittee shall not utilize the permitted area for

[[Page 449]]

hay cutting, hunting, post or timber cutting, or any other use without 
written authorization from the responsible Indian or Federal authority.



Sec. 166.20  Bonding and insurance requirements.

    (a) A performance bond satisfactory to the Superintendent may be 
required in an amount that will reasonably assure performance of the 
contractual obligations. A bond, when required, may be for the purpose 
of guarantying the estimated construction cost of any improvement to be 
placed on the land which will become the property of the landowner or to 
insure compliance with special or additional contractual obligations.
    (b) The permittee may be required to provide insurance in an amount 
adequate to protect any improvements on the permitted premises; and may 
also be required to furnish appropriate liability insurance and such 
other insurance as may be necessary to protect the landowner's interest.



Sec. 166.21  Payment of annual grazing fees.

    Annual grazing fees for all grazing permits shall be paid in advance 
and the date due shall be a provision of the permit. Payment shall be 
made to the Bureau of Indian Affairs unless otherwise provided by the 
permit.



Sec. 166.22  Payment of preparation fees.

    Permittees shall pay annually in advance the following fee, in 
addition to the grazing fee, to cover the cost of work performed in the 
preparation of grazing permits: Provided, That where all or any part of 
the expenses of the work are paid from tribal funds an alternate 
schedule of fees may be approved by the Commissioner:

                           Annual Grazing Fee                           
------------------------------------------------------------------------
                     Preparation fee                          Percent   
------------------------------------------------------------------------
On the first $500........................................        3      
On the next $4,500.......................................        2      
On all above $5,000......................................        1      
------------------------------------------------------------------------

    In no event shall the fee be less than $2 nor exceed $250.



Sec. 166.23  On-and-off grazing privileges.

    The permittee may be allowed credit for the grazing capacity of 
other range lands not covered by the permit, but which are owned or 
controlled by him and grazed in common with the permitted lands as a 
part of the range unit. The grazing capacity will be determined by the 
Superintendent and shown on the grazing permit.



Sec. 166.24  Livestock trespass.

    (a) Acts prohibited on Indian trust, restricted or Government lands. 
The following acts are prohibited on Indian trust or restricted lands 
under the jurisdiction of the Bureau of Indian Affairs:
    (1) The grazing upon or driving across any individually owned, 
tribal, or Government lands of any livestock without an approved grazing 
or crossing permit.
    (2) Allowing livestock to drift and graze on trust or restricted 
Indian lands without an approved permit.
    (3) The grazing or livestock upon trust or restricted Indian lands 
within an area closed to grazing of that class of livestock.
    (4) The grazing of livestock by permittee upon an area of trust or 
restricted Indian lands withdrawn from use for grazing purposes to 
protect it from damage by reason of the improper handling of livestock, 
after the receipt of notice from the Superintendent of such withdrawal, 
or refusal to remove livestock upon instructions from the Superintendent 
when an injury is being done to the Indian lands by reason of improper 
handling of livestock.
    (b) Unauthorized grazing. The owner of any livestock grazing in 
trespass on trust or restricted Indian lands is liable to a penalty of 
$1 per head for each animal thereof for each day of trespass (except in 
North Dakota, South Dakota, Nebraska and Minnesota where the penalty 
shall be $1 per head of cattle regardless of the number of days of 
trespass), together with the reasonable value of the forage consumed by 
their livestock and damages to property injured or destroyed, and for 
expenses incurred in impoundment and disposal. The Superintendent shall 
take action to collect all such penalties and damages, reimbursement for 
expenses incurred in impoundment and disposal,

[[Page 450]]

and seek injunctive relief when appropriate. All payments for such 
penalties and damages shall be credited to the landowners where the 
trespass occurs except that the value of forage or crops consumed or 
destroyed may be paid to the lessee of the lands not to exceed the 
rental paid, and reimbursement for expenses incurred in impoundment and 
disposal shall be credited as appropriate.
    (c) Notice and order to remove. (1) When it has been determined that 
a violation exists and the owner of the unauthorized livestock is known, 
written notice shall be served upon the alleged violator or his agent by 
certified mail with return receipt requested, or personal delivery and a 
copy of the notice shall be sent to any known lien holder. The notice 
shall set forth the act consituting the violation, the legal description 
of the land where the livestock were observed, the verification of 
brands in the State Brand Book, and the regulation alleged to have been 
violated. The notice shall also instruct the alleged violator to remove 
the livestock within a specified time, allow a specified time from 
receipt of the notice to show that there has been no violations, or to 
make settlement under Sec. 166.24(d). If the alleged violator fails to 
comply with the notice, the Superintendent may impound the livestock 
under Sec. 166.24(f).
    (2) When neither the owner of the unauthorized livestock nor his 
representative is known, the Superintendent may proceed to impound the 
livestock under Sec. 166.24(f).
    (d) Settlement. The amount due the Indian landowner and/or the 
United States in settlement for unauthorized grazing use shall be 
determined by the Superintendent as follows:
    (1) A penalty of $1 for each animal thereof for each day of 
trespass, except in the States of Minnesota, Nebraska, North Dakota, and 
South Dakota where the penalty shall be $1 for each animal without 
regard to the number of days of trespass.
    (2) A reasonable value of forage consumed based upon the average 
rate received per month for comparable grazing privileges on the 
reservation for the kind of livestock concerned, or the estimated 
commercial value for such privileges if no comparable grazing privileges 
are sold.
    (3) Damages to Indian or Government property injured or destroyed.
    (4) All expenses incurred in gathering, impounding, caring for, and 
disposing of livestock in cases which necessitate impoundment under 
Sec. 166.24(f).
    (5) Neither the imposition of any civil penalty nor any action by 
the Secretary of the Interior shall preclude either any civil action by 
the United States, an Indian, or an Indian tribe for damages caused by 
trespassing livestock or prosecution for any offense involved with such 
trespass.
    (e) Demand for payment. Where the livestock have been removed, but 
satisfactory settlement has not been made within the time prescribed 
under Sec. 166.24(c), a certified letter, return receipt requested, 
shall be sent or personally delivered to the livestock owner or his 
agent, and a copy of the letter shall be sent to any know lien holder. 
The letter shall demand immediate settlement and advise the violator 
that unless settlement is received within five working days from date of 
receipt, the case may be referred to the Department of Justice for 
appropriate action.
    (f) Impoundment and disposal. Unauthorized livestock remaining on 
trust or restricted Indian or Government lands which are not removed 
therefrom within the period prescribed in Sec. 166.24(c) may be 
impounded and disposed of by the Superintendent as provided herein:
    (1) A written notice of intent to impound shall be sent by certified 
mail, return receipt requested, or personally delivered to the owner, or 
his agent, and a copy of the notice shall be sent to any known lien 
holder. Any time after five days of delivery of the notice, the 
unauthorized livestock may be impounded.
    (2) Where the owner or his agent is unknown, or a known owner or his 
agent refuses to accept delivery of the notice, a notice of intent to 
impound shall be published in a local newspaper, posted at the nearest 
community building and tribal council headquarters, and at a post office 
near the Indian or Government lands involved. Any time after five days 
of posting of the notice,

[[Page 451]]

the unauthorized livestock may be impounded.
    (3) Unauthorized livestock that are owned by persons given notice 
under paragraphs (f) (1) and (2) of this section may be impounded 
without further notice any time within the 12-month period following the 
effective date of a notice given under this subsection.
    (4) Where there is imminent danger that trespassing livestock will 
severely injure a growing or harvestable crop or substantially destroy 
the range forage, the livestock may be impounded immediately.
    (g) Notice of public sale. Following the impoundment of unauthorized 
livestock, a notice of sale of impounded livestock shall be published in 
a local newspaper, posted at the nearest community building and tribal 
council headquarters, and at a post office near the Indian or Government 
lands involved. The notice will describe the livestock and specify the 
date, time and place of sale. The date set shall be at least five days 
after the publication and posting of such notice. Any known owners or 
agents and known lien holders shall be notified in writing by certified 
mail, return receipt requested, or by personal delivery of the sale, and 
the procedure by which the impounded livestock may be redeemed prior to 
the sale as described in Sec. 166.24(h).
    (h) Redemption. Any owner or known lien holder of the impounded 
livestock may redeem them at any time before the time set for the sale 
by submitting proof of ownership and the settlement of all obligations 
described in Sec. 166.24(d).
    (i) Sale. If the livestock are not redeemed before the time fixed 
for their sale, they shall be sold at public sale to the highest bidder. 
If a satisfactory bid is not received, the livestock may be reoffered 
for sale, condemned and destroyed, or otherwise disposed of. When 
livestock are sold by the Superintendent pursuant to these regulations, 
he shall furnish the purchaser a bill of sale or other written 
instrument evidencing the sale.
    (j) Distribution of proceeds. The net proceeds of the sale, after 
deduction of the prescribed penalty and the deduction of the necessary 
costs and expenses of the Secretary of the Interior as provided in 
Sec. 166.24(d), shall be paid to the owner of the animal upon 
satisfactory proof of ownership submitted within six months of the date 
of the sale. Net proceeds of the sale of an animal, not paid to the 
owner, shall be deposited in the United States Treasury to the credit of 
the landowners where the trespass occurred.

[45 FR 69446, Oct. 21, 1980. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 166.25  Control of livestock diseases.

    Whenever livestock on Indian lands become infected with contagious 
or infectious diseases, or have been exposed thereto, such livestock 
must be treated and the movement thereof restricted in accordance with 
applicable Federal and State laws and tribal ordinances.



PART 167--NAVAJO GRAZING REGULATIONS--Table of Contents




Sec.
167.1  Authority.
167.2  General regulations.
167.3  Objectives.
167.4  Regulations; scope; exceptions.
167.5  Land management districts.
167.6  Carrying capacities.
167.7  Records.
167.8  Grazing rights.
167.9  Grazing permits.
167.10  Special grazing permits.
167.11  Tenure of grazing permits.
167.12  Grazing fees.
167.13  Trespass.
167.14  Movement of livestock.
167.15  Control of livestock disease and introduction of livestock.
167.16  Fences.
167.17  Construction near permanent livestock water developments.

    Authority: R.S. 465, 2117, as amended, sec. 3, 26 Stat. 795, sec. 1, 
28 Stat. 305, as amended; 25 U.S.C. 9, 179, 397, 345, 402.

    Source: 22 FR 10578, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 167.1  Authority.

    It is within the authority of the Secretary of the Interior to 
protect Indian tribal lands against waste. Subject to regulations of 
this part, the right exists for Indian tribes to authorize the granting 
of permits upon their tribal lands and to prescribe by appropriate

[[Page 452]]

tribal action the conditions under which their lands may be used.



Sec. 167.2  General regulations.

    Part 166 of this subchapter authorizes the Commissioner of Indian 
Affairs to regulate the grazing of livestock on Indian lands under 
conditions set forth therein. In accordance with this authority and that 
of the Navajo Tribal Council, the Central Grazing Committee and the 
District Grazing Committees, the grazing of livestock on the Navajo 
Reservation shall be governed by the regulations in this part.



Sec. 167.3  Objectives.

    It is the purpose of the regulations in this part to aid the Navajo 
Indians in achievement of the following objectives:
    (a) The preservation of the forage, the land, and the water 
resources on the Navajo Reservation, and the building up of those 
resources where they have deteriorated.
    (b) The protection of the interests of the Navajo Indians from the 
encroachment of unduly aggressive and anti-social individuals who may or 
may not be members of the Navajo Tribe.
    (c) The adjustment of livestock numbers to the carrying capacity of 
the range in such a manner that the livestock economy of the Navajo 
Tribe will be preserved.
    (d) To secure increasing responsibility and participation of the 
Navajo people, including tribal participation in all basic policy 
decisions, in the sound management of one of the Tribe's greatest 
assets, its grazing lands, and to foster a better relationship and a 
clearer understanding between the Navajo people and the Federal 
Government in carrying out the grazing regulations.
    (e) The improvement of livestock through proper breeding practices 
and the maintenance of a sound culling policy. Buck and bull pastures 
may be established and maintained either on or off the reservation 
through District Grazing Committee and Central Grazing Committee action.



Sec. 167.4  Regulations; scope; exceptions.

    The grazing regulations in this part apply to all lands within the 
boundaries of the Navajo Reservation held in trust by the United States 
for the Navajo Tribe and all the trust lands hereafter added to the 
Navajo Reservation. The regulations in this part do not apply to any of 
the area described in the Executive order of December 16, 1882, to 
individually owned allotted lands within the Navajo Reservation nor to 
tribal purchases, allotted or privately owned Navajo Indian lands 
outside the exterior boundaries of the Navajo Reservation.

[34 FR 14599, Sept. 19, 1969. Redesignated at 47 FR 13327, Mar. 30, 
1982]



Sec. 167.5  Land management districts.

    The Commissioner of Indian Affairs has established and will retain 
the present land management districts within the Navajo Indian 
Reservation, based on the social and economic requirements of the Navajo 
Indians and the necessity of rehabilitating the grazing lands. District 
boundary changes may be made when deemed necessary and advisable by the 
District Grazing Committees, Central Grazing Committee and Tribal 
Council, with approval by the Superintendent, Area Director, and the 
Commissioner of Indian Affairs.



Sec. 167.6  Carrying capacities.

    (a) The Commissioner of Indian Affairs on June 26, 1943, promulgated 
the authorized carrying capacity for each land management district of 
the Navajo Reservation.
    (b) Recommended adjustments in carrying capacities shall be referred 
by the Superintendent to District Grazing Committee, Central Grazing 
Committee, and the Navajo Tribal Council for review and recommendations 
prior to presentation to the Area Director and the Commissioner of 
Indian Affairs for approval.
    (c) Upon the request of the District Grazing Committee, Central 
Grazing Committee and Navajo Tribal Council to the Superintendent; 
recommendations for future adjustments to the established carrying 
capacities shall be made by Range Technicians based on the best 
information available through annual utilization studies and range 
condition studies analyzed along with numbers of livestock and 
precipitation

[[Page 453]]

data. The recommendations of the Range Technicians shall be submitted to 
the Superintendent, the Area Director and the Commissioner of Indian 
Affairs.
    (d) Carrying capacities shall be stated in terms of sheep units 
yearlong, in the ratio of horses, mules, and burros 1 to 5; cattle 1 to 
4; goats 1 to 1. The latter figure in each case denotes sheep units. 
Sheep, goats, cattle, horses, mules, and burros one year of age or older 
shall be counted against the carrying capacity.



Sec. 167.7  Records.

    The District Grazing Committee, the Superintendent, and his 
authorized representatives shall keep accurate records of all grazing 
permits and ownership of all livestock. Master files shall be maintained 
by the Superintendent or his authorized representatives.
    (a) The District Grazing Committee shall be responsibile for and 
assist in organizing the sheep and goat dipping and horse and cattle 
branding program and obtaining the annual live- stock count.
    (b) In order to obtain true records of ownership the permittee shall 
personally appear at the dipping vat or tallying point designated by the 
Grazing Committee with his or her sheep and goats and at branding and 
tallying points for cattle and horses. Should the permittee be unable to 
appear personally he or she shall designate a representative to act for 
and in his or her behalf. The sheep and goats will be dipped and the 
cattle and horses will be branded and recorded in the name of the 
permittee.
    (c) The Superintendent shall prepare and keep current a register 
containing the names of all permittees using the range, the number of 
each class of stock by age classes grazed annually and the periods 
during which grazing shall be permitted in each part thereof. An annual 
stock census will be taken to insure that the carrying capacity is not 
exceeded. All classes of livestock twelve months of age or over will be 
counted against range use and permitted number, except that yearling 
colts will not be counted against permitted numbers on all permits with 
less than six horses. (Cross Reference Sec. 167.9.)



Sec. 167.8  Grazing rights.

    (a) The Superintendent shall determine grazing rights of bona fide 
live-stock owners based on recommendations of District Grazing 
Committees. Grazing rights shall be recognized for those permittees 
having ownership records as established in accordance with Sec. 167.7 or 
who have acquired grazing rights by marriage, inheritance, purchase or 
division of permits. Whenever the permitted number of sheep units within 
a district is less than the carrying capacity, new permits to the 
carrying capacity limit may be granted as provided in Sec. 167.9.
    (b) All enrolled members of the Navajo Tribe over 18 years of age 
are eligible to acquire and hold grazing permits. Minors under 18 years 
of age can get possession of grazing permits only through inheritance or 
gift, and in each case Trustees must be appointed by the Tribal Courts 
to manage the permits and livestock of such minors until they become 18 
years of age and can hold grazing permits in their own right.
    (c) No person can hold a grazing permit in more than one district on 
the Navajo Reservation.
    (d) Determination of rights to grazing permits involved in cases of 
divorce, separation, threatened family disruption, and permits of 
deceased permittees shall be the responsibility of the Navajo Court of 
Indian Offenses under existing laws, rules, and regulations.



Sec. 167.9  Grazing permits.

    (a) All livestock grazed on the Navajo Reservation must be covered 
by an authorized grazing permit issued by the Superintendent based upon 
the recommendations of the District Grazing Committee. All such grazing 
permits will be automatically renewed annually until terminated. 
District Grazing Committees shall act on all grazing permit changes 
resulting from negotiability within their respective Districts. The 
number of livestock that may be grazed under each permit shall be the 
number originally permitted plus or minus any changes as indicated

[[Page 454]]

by Transfer Agreements and Court Judgment Orders.
    (b) Any permittee who has five or more horses on his current permit 
will be required to apply any acquired sheep units in classes of stock 
other than horses. If the purchaser wishes more than his present number 
of horses, he must have his needs evaluated by the District Grazing 
Committee. Yearling colts will be counted against permitted number on 
all permits with six or more horses. Yearling colts will not be counted 
against permitted number on all permits with less than six horses. In 
hardship cases the District Grazing Committee may reissue horses removed 
from grazing permits through negotiability to permit holders who are 
without sufficient horses on their present permits to meet minimum 
needs.
    (c) No permittee shall be authorized to graze more than ten head of 
horses or to accumulate a total of over 350 sheep units.
    (d) Upon recommendation of the District Grazing Committee and with 
the approval of the Superintendent, grazing permits may be transferred 
from one permittee to another in accordance with instructions provided 
by the Advisory Committee of the Navajo Tribal Council, or may be 
inherited; provided that the permitted holdings of any individual 
permittee shall not exceed 350 sheep units or the equivalent thereof. 
Should inheritance or other acquisition of permits increase the holdings 
of any permittee to more than 350 sheep units, said permittee shall 
dispose of all livestock in excess of 350 sheep units not later than 
November 15 following date of inheritance or other acquisition, and that 
portion of his or her permit in excess of 350 sheep units within one 
year from date of inheritance.
    (e) By request of a permittee to sublet all or a part of his or her 
regular grazing permit to a member of his family or to any person who 
would receive such permit by inheritance, such subletting of permits may 
be authorized by the District Grazing Committee and the Superintendent 
or his authorized representative.



Sec. 167.10  Special grazing permits.

    The problem of special grazing permits shall be settled by the 
Bureau of Indian Affairs working in cooperation with the Tribal Council, 
or any Committee designated by it, with a view to terminating these 
permits at a suitable date and with the least hardship to the Indians 
concerned.



Sec. 167.11  Tenure of grazing permits.

    (a) All active regular grazing permits shall be for one year and 
shall be automatically renewed annually until terminated. Any Navajo 
eligible to hold a grazing permit as defined in Sec. 167.8 may become a 
livestock operator by obtaining an active grazing permit through 
negotiability or inheritance or both.
    (b) In many Districts, and portions of all districts, unused grazing 
permits or portions of grazing permits are beneficial in aiding range 
recovery. Each District Grazing Committee will handle each matter of 
unused grazing permit or portions of grazing permits on individual 
merits. Where ample forage is available operators will be encouraged to 
fill their permits with livestock or dispose of their unused permits 
through negotiability. In those areas where forage is in need of 
rehabilitation permittees will not be encouraged to stock to their 
permitted numbers until the range has sufficiently recovered to justify 
the grazing of additional livestock.



Sec. 167.12  Grazing fees.

    Grazing fees shall not be charged at this time.\1\
---------------------------------------------------------------------------

    \1\ Grazing Committees were organized in May 1953. These committees 
have not had ample time to fully acquaint themselves or the stockmen in 
their respective districts with all of the various items of range 
administration and range management. Also the drought of several years 
has not broken. The Navajo Tribe therefore requests that the matter of 
establishing regulations regarding the adoption of grazing fees be 
deferred until such a time as a full understanding of the advantages of 
fees can be had by the majority of the stockmen in all Districts. The 
assessment of grazing fees will not aid materially in obtaining proper 
range use. At this time it is more important that other sections of 
these grazing regulations be adopted and enforced. Resolution of Navajo 
Tribal Council No. CJ-22-54 of June 9, 1954.

---------------------------------------------------------------------------

[[Page 455]]



Sec. 167.13  Trespass.

    The owner of any livestock grazing in trespass in Navajo Tribal 
ranges shall be subject to action by the Navajo Court of Indian Offenses 
as provided in part 11 of this chapter, however, upon recommendations of 
the District Grazing Committee, first offenses may be referred to the 
Central Grazing Committee and the Superintendent or his authorized 
representative for proper settlement out of court. The following acts 
are considered as trespass:
    (a) Any person who sells an entire permit must dispose of all his 
livestock or be in trespass. Any person selling a portion of his permit 
must not run more stock than covered by his remaining permit, or be 
subject to immediate trespass.
    (b) All persons running livestock in excess of their permitted 
number must by April 25, 1959, either obtain permits to cover their 
total livestock numbers or reduce to their permitted number, or be in 
trespass. Additional time may be granted in unusual individual cases as 
determined and approved by the District Grazing Committee, General 
Grazing Committee, and the Superintendent or his authorized 
representative.
    (c) Failure to comply with the provisions in Sec. 167.9, shall be 
considered as trespass.
    (d) Any person who willfully allows his livestock to drift from one 
district to another shall be subject to trespass action. The grazing of 
livestock in customary use areas extending over District Boundary lines, 
when such customary use areas are defined and agreed upon by the 
District Grazing Committees involved, shall not be considered as willful 
trespass.
    (e) The owner of any livestock who violates the customary or 
established use units of other permittees shall be subject to trespass 
action.

[22 FR 10578, Dec. 24, 1957, as amended at 24 FR 1178, Feb. 17, 1959. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 167.14  Movement of livestock.

    Annually, prior to the normal lamb buying season, the Central 
Grazing Committee after consultation with District Grazing Committees 
shall issue regulations covering the buying period and the procedures 
and methods to be used in moving livestock to market. All movements of 
livestock other than trucking from buying areas to loading or shipping 
points must be authorized by Trailing Permits issued by the District 
Grazing Committees on the approved forms. Failure to comply with this 
section and with annual lamb buying regulations will be considered as 
trespass.



Sec. 167.15  Control of livestock disease and introduction of livestock.

    (a) The District Grazing Committees with the approval of the 
Superintendent shall require livestock to be dipped, vaccinated, 
inspected and be restricted in movement when necessary to prevent the 
introduction and spread of contagious or infectious disease in the 
economic interest of the Navajo stock owners. Upon the recommendation of 
the District Grazing Committee livestock shall be dipped annually when 
such dipping is necessary to prevent the spread of contagious diseases. 
These annual dippings shall be completed on or before September 1st each 
year. Livestock, however, may be dipped at other times when necessary. 
The Superintendent or his authorized representative and the District 
Grazing Committee may also require the rounding up of cattle, horses, 
mules, etc., in each District for the purpose of inspection for disease, 
vaccinating, branding and other related operations.
    (b) No livestock shall be brought onto the Reservation without a 
permit issued by the Superintendent or his authorized representative 
following inspection, in order to safeguard Indian livestock from 
infections and contagious disease and to insure the introduction of good 
quality sires and breeding stock.
    (c) Any unusual disease conditions beyond the control measures 
provided herein shall be immediately reported by the District Grazing 
Committee to the Chairman of the Navajo Tribal Council and the 
Superintendent who

[[Page 456]]

shall attempt to obtain specialists and provide emergency funds to 
control and suppress the disease.



Sec. 167.16  Fences.

    Favorable recommendation from the District Grazing Committee and a 
written authorization from the Superintendent or his authorized 
representative must be secured before any fences may be constructed in 
non-agricultural areas. The District Grazing Committee shall recommend 
to the Superintendent the removal of unauthorized existing fences, or 
fences enclosing demonstration areas no longer used as such, if it is 
determined that such fences interfere with proper range management or an 
equitable distribution of range privileges. All enclosures fenced for 
the purpose of protecting agricultural land shall be kept to a size 
commensurate with the needs for protection of agricultural land and must 
be enclosed by legal four strand barbed wire fence or the equivalent.



Sec. 167.17  Construction near permanent livestock water developments.

    (a) The District Grazing Committee shall regulate the construction 
of all dwellings, corrals and other structures within one-half mile of 
Government or Navajo Tribal developed permanent livestock waters such as 
springs, wells, and charcos or deep reservoirs.
    (b) A written authorization from the District Grazing Committee must 
be secured before any dwellings, corrals, or other structures may be 
constructed within one-half mile of Government or Navajo Tribal 
developed springs, wells and charcos or deep reservoirs.
    (c) No sewage disposal system shall be authorized to be built which 
will drain into springs or stream channels in such a manner that it 
would cause contamination of waters being used for livestock or human 
consumption.



PART 168--GRAZING REGULATIONS FOR THE HOPI PARTITIONED LANDS AREA--Table of Contents




Sec.
168.1  Definitions.
168.2  Authority.
168.3  Purpose.
168.4  Establishment of range units.
168.5  Grazing capacity.
168.6  Grazing on range units authorized by permit.
168.7  Kind of livestock.
168.8  Grazing fees.
168.9  Assignment, modification and cancellation of permits.
168.10  Conservation and land use provisions.
168.11  Range improvements; ownership; new construction.
168.12  Special permit requirements and provisions.
168.13  Fences.
168.14  Livestock trespass.
168.15  Control of livestock diseases and parasites.
168.16  Impoundment and disposal of unauthorized livestock.
168.17  Concurrence procedures.
168.18  Appeals.
168.19  Information collection.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 640d-8, and 640d-18.

    Source: 47 FR 39817, Sept. 10, 1982, unless otherwise noted.



Sec. 168.1  Definitions.

    As used in this part, terms shall have the meanings set forth in 
this section.
    (a) ``Secretary'' means the Secretary of Interior or his designee;
    (b) ``Area Director'' means the officer in charge of the Phoenix 
Bureau of Indian Affairs Area Office (or his successor; and/or his 
authorized representative) to whom has been delegated the authority of 
the Assistant Secretary--Indian Affairs to act in all matters pertaining 
to lands partitioned to the Hopi Tribe under its jurisdiction, within 
the boundaries of the former Joint Use Area.
    (c) ``Superintendent'' means the Superintendent, Hopi Agency or his 
designee.
    (d) ``Tribal Government'' means the Hopi Tribal Council, or its duly 
designated representative.
    (e) ``Project Officer'' means the former Special Project Officer of 
the Bureau of Indian Affairs, Administrative Office, Flagstaff, Arizona 
86001, who had been delegated the authority of the Commissioner of 
Indian Affairs to act in matters respecting the former Joint Use Area.
    (f) ``Former Joint Use Area'' means the area established by the 
United States District Court for the District of Arizona in the case 
entitled Healing v. Jones, 210 F. Supp. 125 (1962), which is

[[Page 457]]

inside the Executive order area (Executive order of December 16, 1882) 
but outside Land Management District 6 and which was partitioned by the 
judgment of partition dated April 18, 1979.
    (g) ``Hopi Partition Area'' means that portion of the Former Joint 
Use Area which has been added to the Hopi Tribe's reservation.
    (h) ``Range Unit'' means a tract of range land designated as a 
management unit for administration of grazing.
    (i) ``Range improvements'' means fences, stockwater devices, 
corrals, trails and other similar devices or practices which are applied 
to the land to enhance range productivity or usability.
    (j) ``Permit'' means a revocable privilege granted in writing 
limited to entering on and utilizing forage by domestic livestock on a 
specified tract of land. The term as used herein shall include written 
authorizations issued to enable the crossing or trailing of domestic 
livestock across specified tracts or range units.
    (k) ``Interim permit'' means a permit granted to members of the 
Navajo tribe residing on Hopi Partitioned Lands who meet the 
qualifications of Sec. 168.6(b) in accordance with Pub. L. 93-531 as 
amended.
    (l) ``Animal unit'' (AU) means one adult cow with unweaned calf by 
her side or equivalent thereof based on comparative forage consumption. 
Accepted conversion factors are: sheep and goats, one ewe, doe, buck or 
ram equals 0.25 A.U.; one sheep unit year long (SUYL) equals 0.25 Animal 
Unit year long; horses and mules, one horse, mule, donkey or burro 
equals 1.25 A.U.
    (m) ``Tribe'' means the Hopi Tribe including all villages and clans.
    (n) ``Allocate'' means to apportion grazing, including the 
determination of who may graze livestock, the number and kind of 
livestock, and the place such livestock will be grazed.
    (o) ``Person awaiting relocation'' means a resident of the Hopi 
Partitioned Area who meets each of the following criteria:
    (1) Is listed on the Bureau of Indian Affairs enumeration (as 
defined in (q) below);
    (2) Has a livestock inventory listed with the project Officer (see 
(r) below);
    (3) Is awaiting relocation under the Settlement Act; and
    (4) Was grazing livestock on the date of the entry of the Judgment 
of Partition, April 18, 1979.
    (p) ``Carrying capacity'' means the maximum stocking rate possible 
without inducing damage to vegetation or related resources.
    (q) ``BIA enumeration'' means the list of persons living on and 
improvements located within the former Joint Use Area obtained by 
interviews by the Project Officer's staff.
    (r) ``Livestock inventory'' means the original list as amended 
(developed by the Project Officer in 1976-77) of livestock owned by 
persons having customary grazing use in the former Joint Use Area.
    (s) ``Settlement Act'' means the Act of December 22, 1974, 88 Stat. 
1712, as amended.
    (t) ``Life tenant'' means a person who has applied for and been 
granted a life estate lease pursuant to section 30 of the Settlement 
Act, 25 U.S.C. 640d-28.



Sec. 168.2  Authority.

    It is within the general authority of the Secretary to protect 
Indian trust lands against waste and to prescribe rules and regulations 
under which these lands may be leased or permitted for grazing. Also, 
under the Navajo-Hopi Settlement Act as amended, 25 U.S.C. 640d-8 and 
18, the Secretary is authorized and directed to:
    (a) Reduce livestock grazing within the former Joint Use Area to 
carrying capacity,
    (b) Restore the grazing range potential of the resource to maximum 
grazing extent feasible,
    (c) Survey, monument and fence the partition boundary,
    (d) Protect the rights and property of individuals awaiting 
relocation or authorized to reside on life estates, and
    (e) To administer conservation practices, including grazing control 
and range restoration activities on the Hopi Partitioned Lands.

[[Page 458]]



Sec. 168.3  Purpose.

    These regulations are issued to implement the Secretary's 
responsibilities mandated by the Settlement Act and subsequent U.S. 
District Court Judgement filed May 4, 1982, in the case, Hopi Tribe v. 
Watt, Civ. No. 81-272 PCT-EHC. This portion of the regulations apply 
only to lands partitioned to the Hopi Tribe within the former Joint Use 
Area.



Sec. 168.4  Establishment of range units.

    The Area Director will use Soil and Range Inventory data to 
establish range units on the Hopi Partitioned Area to provide for a 
surface land management program to restore the land to its full grazing 
potential and maintain that potential to the maximum extent feasible. 
The establishment of range units on Hopi Partitioned Lands is subject to 
the concurrence of the Hopi Tribe in accordance with Sec. 168.17 of 
these regulations.



Sec. 168.5  Grazing capacity.

    (a) The Area Director shall prescribe the maximum number of each 
kind of livestock which may be grazed on land under his jurisdiction 
without inducing damage to vegetation or related resources on each range 
unit and the season or seasons of use to achieve the objectives of the 
land recovery program required by the Settlement Act.
    (b) The Area Director shall review the stocking rate upon which the 
grazing permits are issued on a continuing basis and adjust that rate as 
conditions warrant.



Sec. 168.6  Grazing on range units authorized by permit.

    Grazing use on range units is authorized only by permits granted 
under paragraph (a) or (b) of this section.
    (a) Grazing permits to Hopi tribal members on their partitioned 
lands. The Area Director shall assign grazing privileges to the Hopi 
Tribe for lands within Hopi Partitioned Lands. The tribal government 
will then allocate use to their tribal members for permit periods not to 
exceed five years. Grazing use by Hopi tribal enterprises may be 
authorized. The Area Director will issue permits based on the 
determination of the Hopi tribal government.
    (b) Interim Grazing Permit for persons awaiting relocation. Navajo 
Tribal members who have maintained both a permanent residence on Hopi 
Partitioned lands; a livestock inventory since enumeration; and meet all 
the criteria listed in Sec. 168.1(o), shall be eligible for an interim 
grazing allocation on Hopi Partitioned Lands under the following terms 
and conditions:
    (1) The Area Director shall first verify that an applicant meets the 
criteria of the definition in Sec. 168.1(o) and will issue all permits.
    (2) The permitted number shall not exceed either (i) 10 SUYL (See 
Sec. 168.1(1)) for each eligible family member, or (ii) the grazing 
applicant's livestock inventory reduced by voluntary sales as adjusted 
by reproduction, in accordance with procedures developed by the Project 
Officer based upon the study by Stubblefield and Camfield, 1975 page 5. 
The determination of the person to whom permits will be issued and the 
number of livestock to be permitted will be based on information 
provided by the permit applicant and an assessment of the number of 
dependents residing in the immediate household.
    (3) The permit shall authorize grazing for a specific number and 
kind of animal(s) in a specified range unit. Interim grazing permits 
will not be issued in excess of one-half the authorized carrying 
capacity of the Hopi Partition area.
    (4) Subject to the provisions of Sec. 168.9(b), permits shall expire 
when the person awaiting relocation is relocated pursuant to the 
Settlement Act. No interim permit will be issued for a term greater than 
one year. Permits may be reissued upon application and redetermination 
of eligibility. All interim permits will expire at the end of the period 
provided for completion of relocation, Pub. L. 99-190. When a Navajo 
permit holder discontinues grazing livestock or reduces the number being 
grazed whether by reason of his relocating or for any other reason, his 
grazing permit will be cancelled or reduced and no permit will be issued 
in lieu thereof. The total number of authorized animal units grazed by 
the

[[Page 459]]

Navajo permit holders awaiting relocation will reduced by the number of 
animal units authorized under the cancelled or reduced permit.

[47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25, 1986]



Sec. 168.7  Kind of livestock.

    Unless determined otherwise by the Area Director for conservation 
purposes, the Hopi Tribe may determine, subject to the authorized 
carrying capacity, the kind of livestock that may be grazed by their 
tribal members on the range units within the Hopi Partitioned Land area.



Sec. 168.8  Grazing fees.

    (a) The rental value of all uses of Hopi Partitioned lands by 
persons who are not members of the Hopi Tribe, including eligible 
holders of interim permits, will be determined, and assessed by the Area 
Director and paid in accordance with 25 U.S.C. 640d-15.
    (b) The Hopi Tribe has established an annual grazing fee to be 
assessed all range users on Hopi Partitioned Lands. The annual Hopi 
grazing fee shall be paid in full in advance of the annual effective 
date of the permit, prior to the issuance of a grazing permit. All 
interim permits will expire at the end of the period provided for 
completion of relocation, Pub. L. 99-190. Failure of the permittee to 
make payment in full in advance will be cause to deny issuance of the 
grazing permit.

[47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25, 1986]



Sec. 168.9  Assignment, modification and cancellation of permits.

    (a) Grazing permits to Hopi tribal members shall not be reassigned, 
subpermitted or transferred without the approval of the permit 
issuer(s).
    (b) The Area Director may revoke or withdraw all or any part of any 
grazing permit in Hopi Partitioned Lands by cancellation or modification 
on 30 days written notice of a violation of the permit or special 
conditions affecting the land or the safety of the livestock thereon, as 
may result from flood, disaster, drought, contagious diseases, etc. 
Except in the case of extreme necessity, cancellation or modification 
shall be effected on the next annual anniversay date of the grazing 
permit following the date of notice. Revocation or withdrawal of all or 
any of the grazing permit by cancellation or modification as provided 
herein is effective on the date the notice of cancellation or 
modification is received and shall be appealable under 25 CFR
part 2.



Sec. 168.10  Conservation and land use provisions.

    Grazing operations shall be conducted in accordance with recognized 
principles of good range management. Conservation management plans 
necessary to accomplish this will be made a part of the grazing permit 
by stipulation.



Sec. 168.11  Range improvements; ownership; new construction.

    Except as provided by the Relocation Act, range improvements placed 
on the permitted land shall be considered affixed to the land unless 
specifically excepted therefrom under the permit terms. Written 
permission to construct or remove improvements must be obtained from the 
Hopi Tribe.



Sec. 168.12  Special permit requirements and provisions.

    All grazing permits shall contain the following provisions:
    (a) Because the lands covered by the permit are in trust status, all 
of the permittees' obligations on the permit and the obligations of his 
sureties are to the United States as well as to the beneficial owners of 
the lands.
    (b) The permittee agrees he will not use, cause, or allow to be used 
any part of the permitted area for any unlawful conduct or purpose.
    (c) The permit authorizes only the grazing of livestock.



Sec. 168.13  Fences.

    Fencing will be erected by the Federal Government around the 
perimeter of the 1882 Executive Order Area, Land Management District 6, 
and on the boundary of the former Joint Use Area partitioned to each 
tribe by the Judgment of Partition of April 18, 1979. Fencing of other 
areas in the former Joint Use Area will be required for a

[[Page 460]]

range recovery program in accordance with the range units established 
under Sec. 168.4. Such fencing shall be erected at Government expense 
and ownership shall be clearly identified by appropriate posting on the 
fencing. Intentional destruction of Federal property will be treated as 
a violation of 18 U.S.C. 1164.



Sec. 168.14  Livestock trespass.

    The owner of any livestock grazing in trespass on the Hopi 
Partitioned Lands Area is liable to a civil penalty of $1 per head per 
day for each animal in trespass, together with the replacement value of 
the forage consumed and a reasonable value for damages to property 
injured or destroyed. The Superintendent may take appropriate action to 
collect all such penalties and damages and seek injunctive relief when 
appropriate. All payments for such penalties and damages shall be 
credited to the Tribe. The following acts are prohibited:
    (a) The grazing upon or driving across any of the Hopi Partitioned 
Lands of any livestock without an approved grazing or crossing permit;
    (b) Allowing livestock to drift and graze on lands without an 
approved permit;
    (c) The grazing of livestock upon lands within an area closed to 
grazing of that class of livestock;
    (d) The grazing of livestock by permittees upon any land withdrawn 
from use for grazing purpose to protect it from damage, after the 
receipt of notice from the Area Director; and
    (e) Grazing livestock in excess of those numbers and kinds 
authorized on a livestock grazing permit approved by the Area Director.



Sec. 168.15  Control of livestock diseases and parasites.

    Whenever livestock within the Hopi Partitioned Lands become infected 
with contagious or infectious diseases or parasites or have been exposed 
thereto, such livestock must be treated and the movement thereof 
restricted in accordance with applicable laws.



Sec. 168.16  Impoundment and disposal of unauthorized livestock.

    Unauthorized livestock within any range unit of the Hopi Partitioned 
Lands which are not removed therefrom within the periods prescribed by 
the regulation will be impounded and disposed of by the Superintendent 
as provided herein.
    (a) When the Area Director determines that unauthorized livestock 
use is occurring and has definite knowledge of the kind of unauthorized 
livestock, and knows the name and address of the owners, such livestock 
may be impounded any time five days after written notice of intent to 
impound unauthorized livestock is mailed by certified mail or personally 
delivered to such owners or their agent.
    (b) When the Area Director determines that unauthorized livestock 
use is occurring but does not have complete knowledge of the number and 
class of livestock or if the name and address of the owner thereof are 
unknown, such livestock will be impounded anytime 15 days after the date 
of a General Notice of Intent to Impound unauthorized livestock is first 
published in the local newspaper, posted at the nearest chapter house, 
and in one or more local trading posts.
    (c) Unauthorized livestock on the Hopi Partitioned Lands which are 
owned by persons given notice under paragraph (a) of this section, and 
any unauthorized livestock in areas for which a notice has been posted 
and published under paragraph (b) of this section, will be impounded 
without further notice anytime within the twelve-month period 
immediately following the effective date of the notice.
    (d) Following the impoundment of unauthorized livestock a notice of 
sale of impounded livestock will be published in the local newspaper, 
posted at the nearest chapter house, and in one or more local trading 
posts. The notice will describe the livestock and specify the date, time 
and place of sale. The date set shall be at least 5 days after the 
publication and posting of such notice.
    (e) The owners or their agent may redeem the livestock anytime 
before the time set for the sale by submitting

[[Page 461]]

proof of ownership and paying for all expenses incurred in gathering, 
impounding and feeding or pasturing the livestock and any trespass fees 
and/or damages caused by the animals.
    (f) Livestock erroneously impounded shall be returned to the 
rightful owner and all expenses accruing thereto shall be waived.
    (g) If the livestock are not redeemed before the time fixed for 
their sale, they shall be sold at public sale to the highest bidder, 
provided his bid is at or above the minimum amount set by the 
Superintendent based upon U.S.D.A.'s current Agricultural Statistic's 
Report for Arizona. If a bid at or above the minimum is not received the 
livestock may be sold at private sale at or above the minimum amount, 
reoffered at public sale, condemned and destroyed, or otherwise disposed 
of. When livestock are sold pursuant to this regulation, the 
superintendent shall furnish the buyer a bill of sale or other written 
instrument evidencing the sale.
    (h) The proceeds of any sale of impounded livestock shall be applied 
as follows:
    (1) To the payment of all expenses incurred by the United States in 
gathering, impounding, and feeding or pasturing the livestock;
    (2) In payment of any penalties or damages assessed pursuant to 
Sec. 168.14 of this part which penalties or damages shall be credited to 
the Hopi tribe as provided in said section;
    (3) Any remaining amount shall be paid over to the owner of said 
livestock upon his submitting proof of ownership.
Any proceeds remaining after payment of the first and second items noted 
above not claimed with one year from the date of sale, will be credited 
to the Hopi Tribe.



Sec. 168.17  Concurrence procedures.

    (a) Definitions. As used in this section, terms shall have the 
meaning set forth as follows:
    (1) ``Concurrence'' means agreement by the Area Director and the 
Hopi Tribe, speaking through the Chairman of the Tribe (or his 
designee).
    (2) ``Non-concurrence'' means disagreement between the Area Director 
and the Hopi Tribe, speaking through the Chairman of the Hopi Tribe (or 
his designee), or a failure of the Hopi Tribe to respond to a proposal 
by the Area Director in a timely manner.
    (3) ``Timely manner'' means a period of thirty days, unless this 
period is shortened by the existence of an emergency. Upon request by 
the Tribal Council, the Area Director may extend the 30 day period. In 
instances where this period applies to the Area Director, he may extend 
the period by so notifying the Tribe.
    (4) ``An emergency'' is a condition that the Area Director finds 
threatens the rights and property of life tenants and persons awaiting 
relocation or one that the Area Director finds is causing the condition 
of the range land to deteriorate.
    (5) ``Conservation practice'' is a program consisting of a series of 
acts in conformance with the Bureau's range management policies and 
procedures which maintains or seeks to achieve the grazing potential of 
range lands on a continuing basis.
    (6) ``Range restoration activities'' is a program consisting of a 
series of range management acts, including but not limited to procedures 
which increase range forage production, reduce erosion, improve range 
usability and reduce stocking by issuing grazing permits to persons 
residing on Hopi partitioned lands at rates which maximize the carrying 
capacity of the range lands on a continuing basis.
    (7) ``Grazing control'' is a program consisting of a series of range 
management acts, including but not limited to procedures by which 
grazing permits are issued to persons residing on Hopi partitioned 
lands, which limit the grazing on range lands to its carrying capacity.
    (b) The Area Director will seek the participation of the Hopi Tribe 
in his investigation, formulation and planning of conservation practices 
for Hopi partitioned lands. The Area Director will submit, in writing, 
the proposed plan to the Hopi Tribe.
    (c) Upon receipt of the Area Director's proposed conservation 
practices, the Hopi Tribe will deliver, in writing, to the Area Director 
its concurrence or non-concurrence on all of the proposed conservation 
practices in a timely

[[Page 462]]

manner. The Area Director will continue to seek Hopi Tribal 
participation during the review process.
    (d) Concurrence of the Hopi Tribe will be sought on all conservation 
practices, range restoration activities, and grazing control programs on 
the Hopi Partitioned Lands.
    (1) If the Area Director and the Hopi Tribe concur on all or part of 
the proposed conservation practices in writing in a timely manner, those 
practices concurred upon may be immediately implemented.
    (2) If the Hopi Tribe does not concur on all or part of the proposed 
conservation practices in a timely manner, the Area Director will submit 
in writing to the Hopi Tribe a declaration of non-concurrence. The Area 
Director will then notify the Hopi Tribe in writing of a formal hearing 
to be held not sooner than 15 days from the date of the non-concurrence 
declaration.
    (i) The formal hearing on non-concurrence will permit the submission 
of written evidence and argument concerning the proposal. Minutes of the 
hearing will be taken. Following the hearing, the Area Director may 
amend, alter or otherwise change his proposed conservation practices. 
Except as provided in Sec. 168.17(d)(1) of this section, if following 
the hearing, the Area Director altered or amends portions of his 
proposed plan of action, he will submit those individual altered or 
amended portions of the plan to the Tribe in a timely manner for their 
concurrence.
    (ii) In the event the Tribe fails or refuses to give its concurrence 
to the proposal at the hearing, then the implementation of such proposal 
may only be undertaken in those situations where the Area Director 
expressly determines in a written order, based upon findings of fact, 
that the proposed action is necessary to protect the rights and property 
of life tenants and/or persons awaiting relocation.



Sec. 168.18  Appeals.

    Appeals from decisions issued under this part will be in accordance 
with procedures in 25 CFR part 2.



Sec. 168.19  Information collection.

    The information collection requirement(s) contained in this 
regulation have been approved by the Office of Management and Budget 
under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0027. 
The information is being collected in order to ascertain eligibility for 
the issuance of a grazing permit. Response is mandatory in order to 
obtain a permit.



PART 169--RIGHTS-OF-WAY OVER INDIAN LANDS--Table of Contents




Sec.
169.1  Definitions.
169.2  Purpose and scope of regulations.
169.3  Consent of landowners to grants of right-of-way.
169.4  Permission to survey.
169.5  Application for right-of-way.
169.6  Maps.
169.7  Field notes.
169.8  Public survey.
169.9  Connection with natural objects.
169.10  Township and section lines.
169.11  Affidavit and certificate.
169.12  Consideration for right-of-way grants.
169.13  Other damages.
169.14  Deposit and disbursement of consideration and damages.
169.15  Action on application.
169.16  Affidavit of completion.
169.17  Change of location.
169.18  Tenure of approved right-of-way grants.
169.19  Renewal of right-of-way grants.
169.20  Termination of right-of-way grants.
169.21  Condemnation actions involving individually owned lands.
169.22  Service lines.
169.23  Railroads.
169.24  Railroads in Oklahoma.
169.25  Oil and gas pipelines.
169.26  Telephone and telegraph lines; radio, television, and other 
          communications facilities.
169.27  Power projects.
169.28  Public highways.

    Authority: 5 U.S.C. 301; 62 Stat. 17 (25 U.S.C. 323--328), and other 
acts cited in the text.

    Source: 33 FR 19803, Dec. 27, 1968, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 169.1  Definitions.

    As used in this part 169:
    (a) ``Secretary'' means the Secretary of the Interior or his 
authorized representative acting under delegated authority. Before 
proceeding under these regulations anyone desiring a right-of-

[[Page 463]]

way should inquire at the Indian Agency, Area Field Office, or other 
office of the Bureau of Indian Affairs having immediate supervision over 
the lands involved to determine the identity of the authorized 
representative of the Secretary for the purposes of this part 169.
    (b) ``Individually owned land'' means land or any interest therein 
held in trust by the United States for the benefit of individual Indians 
and land or any interest therein held by individual Indians subject to 
Federal restrictions against alienation or encumbrance.
    (c) ``Tribe'' means a tribe, band, nation, community, group or 
pueblo of Indians.
    (d) ``Tribal land'' means land or any interest therein, title to 
which is held by the United States in trust for a tribe, or title to 
which is held by any tribe subject to Federal restrictions against 
alienation or encumbrance, and includes such land reserved for Indian 
Bureau administrative purposes. The term also includes lands held by the 
United States in trust for an Indian corporation chartered under section 
17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477).
    (e) ``Government owned land'' means land owned by the United States 
and under the jurisdiction of the Secretary which was acquired or set 
aside for the use and benefit of Indians and not included in the 
definitions set out in paragraphs (b) and (d) of this section.



Sec. 169.2  Purpose and scope of regulations.

    (a) Except as otherwise provided in Sec. 1.2 of this chapter, the 
regulations in this part 169 prescribe the procedures, terms and 
conditions under which rights-of-way over and across tribal land, 
individually owned land and Government owned land may be granted.
    (b) Appeals from administrative action taken under the regulations 
in this part 169 shall be made in accordance with part 2 of this 
chapter.
    (c) The regulations contained in this part 169 do not cover the 
granting of rights-of-way upon tribal lands within a reservation for the 
purpose of constructing, operating, or maintaining dams, water conduits, 
reservoirs, powerhouses, transmission lines or other works which shall 
constitute a part of any project for which a license is required by the 
Federal Power Act. The Federal Power Act provides that any license which 
shall be issued to use tribal lands within a reservation shall be 
subject to and contain such conditions as the Secretary of the Interior 
shall deem necessary for the adequate protection and utilization of such 
lands. (16 U.S.C. 797(e)). In the case of tribal lands belonging to a 
tribe organized under the Act of June 18, 1934 (48 Stat. 984), the 
Federal Power Act requires that annual charges for the use of such 
tribal lands under any license issued by the Federal Power Commission 
shall be subject to the approval of the tribe (16 U.S.C. 803(e)).



Sec. 169.3  Consent of landowners to grants of right-of-way.

    (a) No right-of-way shall be granted over and across any tribal 
land, nor shall any permission to survey be issued with respect to any 
such lands, without the prior written consent of the tribe.
    (b) Except as provided in paragraph (c) of this section, no right-
of-way shall be granted over and across any individually owned lands, 
nor shall any permission to survey be issued with respect to any such 
lands, without the prior written consent of the owner or owners of such 
lands and the approval of the Secretary.
    (c) The Secretary may issue permission to survey with respect to, 
and he may grant rights-of-way over and across individually owned lands 
without the consent of the individual Indian owners when
    (1) The individual owner of the land or of an interest therein is a 
minor or a person non compos mentis, and the Secretary finds that such 
grant will cause no substantial injury to the land or the owner, which 
cannot be adequately compensated for by monetary damages;
    (2) The land is owned by more than one person, and the owners or 
owner of a majority of the interests therein consent to the grant;
    (3) The whereabouts of the owner of the land or an interest therein 
are unknown, and the owners or owner of any interests therein whose 
whereabouts

[[Page 464]]

are known, or a majority thereof, consent to the grant;
    (4) The heirs or devisees of a deceased owner of the land or an 
interest therein have not been determined, and the Secretary finds that 
the grant will cause no substantial injury to the land or any owner 
thereof;
    (5) The owners of interests in the land are so numerous that the 
Secretary finds it would be impracticable to obtain their consent, and 
also finds that the grant will cause no substantial injury to the land 
or any owner thereof.

[36 FR 14183, July 31, 1971. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.4  Permission to survey.

    Anyone desiring to obtain permission to survey for a right-of-way 
across individually owned, tribal or Government owned land must file a 
written application therefor with the Secretary. The application shall 
adequately describe the proposed project, including the purpose and 
general location, and it shall be accompanied by the written consents 
required by Sec. 169.3, by satisfactory evidence of the good faith and 
financial responsibility of the applicant, and by a check or money order 
of sufficient amount to cover twice the estimated damages which may be 
sustained as a result of the survey. With the approval of the Secretary, 
a surety bond may be substituted in lieu of a check or money order 
accompanying an application, provided the company issuing the surety 
bond is licensed to do business in the State where the land to be 
surveyed is located. The application shall contain an agreement to 
indemnify the United States, the owners of the land, and occupants of 
the land, against liability for loss of life, personal injury and 
property damage occurring because of survey activities and caused by the 
applicant, his employees, contractors and their employees, or 
subcontractors and their employees. When the applicant is an agency or 
instrumentality of the Federal or a State Government and is prohibited 
by law from depositing estimated damages in advance or agreeing to 
indemnification, the requirement for such a deposit and indemnification 
may be waived providing the applicant agrees in writing to pay damages 
promptly when they are sustained. An application filed by a corporation 
must be accompanied by a copy of its charter or articles of 
incorporation duly certified by the proper State official of the State 
where the corporation was organized, and a certified copy of the 
resolution or bylaws of the corporation authorizing the filing of the 
application. When the land covered by the application is located in a 
State other than that in which the application was incorporated, it must 
also submit a certificate of the proper State official that the 
applicant is authorized to do business in the State where the land is 
located. An application filed by an unincorporated partnership or 
association must be accompanied by a certified copy of the articles of 
partnership or association, or if there be none, this fact must be 
stated over the signature of each member of the partnership or 
association. If the applicant has previously filed with the Secretary an 
application accompanied by the evidence required in this section, a 
reference to the date and place of such filing, accompanied by proof of 
current financial responsibility and good faith, will be sufficient. 
Upon receipt of an application made in compliance with the regulations 
of this part 169, the Secretary may grant the applicant written 
permission to survey.



Sec. 169.5  Application for right-of-way.

    Written application identifying the specific use requested shall be 
filed in duplicate with the Secretary. The application shall cite the 
statute or statutes under which it is filed and the width and length of 
the desired right-of-way, and shall be accompanied by satisfactory 
evidence of the good faith and financial responsibility of the 
applicant. An application filed by a corporation must be accompanied by 
a copy of its charter or articles of incorporation duly certified by the 
proper State official of the State where the corporation was organized, 
and a certified copy of the resolution or bylaws of the corporation 
authorizing the filing of the application. When the land covered by the 
application is located in a State other than that in which the applicant 
was incorporated, it must

[[Page 465]]

also submit a certificate of the proper State official that the 
applicant is authorized to do business in the State where the land is 
located. An application filed by an unincorporated partnership or 
association must be accompanied be a certified copy of the articles of 
partnership or association, or if there be none, this fact must be 
stated over the signature of each member of the partnership or 
association. If the applicant has previously filed with the Secretary an 
application accompanied by the evidence required by this section, a 
reference to the date and place of such filing will be sufficient. 
Except as otherwise provided in this section, the application shall be 
accompanied by a duly executed stipulation, in duplicate, expressly 
agreeing to the following:
    (a) To construct and maintain the right-of-way in a workmanlike 
manner.
    (b) To pay promptly all damages and compensation, in addition to the 
deposit made pursuant to Sec. 169.4, determined by the Secretary to be 
due the landowners and authorized users and occupants of the land on 
account of the survey, granting, construction and maintenance of the 
right-of-way.
    (c) To indemnify the landowners and authorized users and occupants 
against any liability for loss of life, personal injury and property 
damage arising from the construction, maintenance, occupancy or use of 
the lands by the applicant, his employees, contractors and their 
employees, or subcontractors and their employees.
    (d) To restore the lands as nearly as may be possible to their 
original condition upon the completion of construction to the extent 
compatible with the purpose for which the right-of-way was granted.
    (e) To clear and keep clear the lands within the right-of-way to the 
extent compatible with the purpose of the right-of-way; and to dispose 
of all vegetative and other material cut, uprooted, or otherwise 
accumulated during the construction and maintenance of the project.
    (f) To take soil and resource conservation and protection measures, 
including weed control, on the land covered by the right-of-way.
    (g) To do everything reasonably within its power to prevent and 
suppress fires on or near the lands to be occupied under the right-of-
way.
    (h) To build and repair such roads, fences, and trails as may be 
destroyed or injured by construction work and to build and maintain 
necessary and suitable crossings for all roads and trails that intersect 
the works constructed, maintained, or operated under the right-of-way.
    (i) That upon revocation or termination of the right-of-way, the 
applicant shall, so far as is reasonably possible, restore the land to 
its original condition.
    (j) To at all times keep the Secretary informed of its address, and 
in case of corporations, of the address of its principal place of 
business and of the names and addresses of its principal officers.
    (k) That the applicant will not interfere with the use of the lands 
by or under the authority of the landowners for any purpose not 
inconsistent with the primary purpose for which the right-of-way is 
granted.

When the applicant is the U.S. Government or a State Government or an 
instrumentality thereof and is prohibited by law from executing any of 
the above stipulations, the Secretary may waive the requirement that the 
applicant agree to any stipulations so prohibited.

[33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.6  Maps.

    (a) Each application for a right-of-way shall be accompanied by maps 
of definite location consisting of an original on tracing linen or other 
permanent and reproducible material and two reproductions thereof. The 
field notes shall accompany the application, as provided in Sec. 169.7. 
The width of the right-of-way shall be clearly shown on the maps.
    (b) A separate map shall be filed for each section of 20 miles of 
right-of-way, but the map of the last section may include any excess of 
10 miles or less.
    (c) The scale of maps showing the line of route normally should be 
2,000 feet to an inch. The maps may, however, be drawn to a larger scale 
when

[[Page 466]]

necessary and when an increase in scale cannot be avoided through the 
use of separate field notes, but the scale must not be increased to such 
extent as to make the maps too cumbersome for convenient handling and 
filing.
    (d) The maps shall show the allotment number of each tract of 
allotted land, and shall clearly designate each tract of tribal land 
affected, together with the sections, townships, and ranges in which the 
lands crossed by the right-of-way are situated.



Sec. 169.7  Field notes.

    Field notes of the survey shall appear along the line indicating the 
right-of-way on the maps, unless the maps would be too crowded thereby 
to be easily legible, in which event the field notes may be filed 
separately on tracing linen in such form that they may be folded readily 
for filing. Where field notes are placed on separate tracing linen, it 
will be necessary to place on the maps only a sufficient number of 
station numbers so as to make it convenient to follow the field notes. 
The field notes shall be typewritten. Whether endorsed on the maps or 
filed separately, the field notes shall be sufficiently complete so as 
to permit the line indicating the right-of-way to be readily retraced on 
the ground from the notes. They shall show whether the line was run on 
true or magnetic bearings, and, in the latter case, the variation of the 
needle and date of determination must be stated. One or more bearings 
(or angular connections with public survey lines) must be given. The 10-
mile sections must be indicated and numbered on all lines of road 
submitted.



Sec. 169.8  Public survey.

    (a) The terminal of the line of route shall be fixed by reference of 
course and distance to the nearest existing corner of the public survey. 
The maps, as well as the engineer's affidavit and the certificate, shall 
show these connections.
    (b) When either terminal of the line of route is upon unsurveyed 
land, it must be connected by traverse with an established corner of the 
public survey if not more than 6 miles distant from it, and the single 
bearing and distance from the terminal point to the corner computed and 
noted on the maps, in the engineer's affidavit, and in the certificate. 
The notes and all data for the computation of the traverse must be 
given.



Sec. 169.9  Connection with natural objects.

    When the distance to an established corner of the public survey is 
more than 6 miles, this connection will be made with a natural object or 
a permanent monument which can be readily found and recognized, and 
which will fix and perpetuate the position of the terminal point. The 
maps must show the position of such mark, and course and distance to the 
terminus. There must be given an accurate description of the mark and 
full data concerning the traverse, and the engineer's affidavit and the 
certificate on the maps must state the connections.



Sec. 169.10  Township and section lines.

    Whenever the line of survey crosses a township or section line of 
the public survey, the distance to the nearest existing corner shall be 
noted. The maps shall show these distances and the station numbers at 
the points of intersections. The field notes shall show these distances 
and the station numbers.



Sec. 169.11  Affidavit and certificate.

    (a) There shall be subscribed on the maps of definite location an 
affidavit executed by the engineer who made the survey and a certificate 
executed by the applicant, both certifying to the accuracy of the survey 
and maps and both designating by termini and length in miles and 
decimals, the line of route for which the right-of-way application is 
made.
    (b) Maps covering roads built by the Bureau of Indian Affairs which 
are to be transferred to a county or State government shall contain an 
affidavit as to the accuracy of the survey, executed by the Bureau 
highway engineer in charge of road construction, and a certificate by 
the State or county engineer or other authorized State or county officer 
accepting the right-of-way and stating that he is satisfied as to the 
accuracy of the survey and maps.

[[Page 467]]



Sec. 169.12  Consideration for right-of-way grants.

    Except when waived in writing by the landowners or their 
representatives as defined in Sec. 169.3 and approved by the Secretary, 
the consideration for any right-of-way granted or renewed under this 
part 169 shall be not less than but not limited to the fair market value 
of the rights granted, plus severance damages, if any, to the remaining 
estate. The Secretary shall obtain and advise the landowners of the 
appraisal information to assist them (the landowner or landowners) in 
negotiations for a right-of-way or renewal.

[45 FR 45910, July 8, 1980. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.13  Other damages.

    In addition to the consideration for a grant of right-of-way 
provided for by the provisions of Sec. 169.12, the applicant for a 
right-of-way will be required to pay all damages incident to the survey 
of the right-of-way or incident to the construction or maintenance of 
the facility for which the right-of-way is granted.



Sec. 169.14  Deposit and disbursement of consideration and damages.

    At the time of filing an application for right-of-way, the applicant 
must deposit with the Secretary the total estimated consideration and 
damages, which shall include consideration for the right-of-way, 
severance damages, damages caused during the survey, and estimated 
damages to result from construction less any deposit previously made 
under Sec. 169.4. In no case shall the amount deposited as consideration 
for the right-of-way over any parcel be less than the amount specified 
in the consent covering that parcel. If in reviewing the application, 
the Secretary determines that the amounts deposited are inadequate to 
compensate the owners, the applicant shall increase the deposit to an 
amount determined by the Secretary to be adequate. The amounts so 
deposited shall be held in a ``special deposit'' account for 
distribution to or for the account of the landowners and authorized 
users and occupants of the land. Amounts deposited to cover damages 
resulting from survey and construction may be disbursed after the 
damages have been sustained. Amounts deposited to cover consideration 
for the right-of-way and severance damages shall be disbursed upon the 
granting of the right-of-way. Any part of the deposit which is not 
required for disbursement as aforesaid shall be refunded to the 
applicant promptly following receipt of the affidavit of completion of 
construction filed pursuant to Sec. 169.16.



Sec. 169.15  Action on application.

    Upon satisfactory compliance with the regulations in this part 169, 
the Secretary is authorized to grant the right-of-way by issuance of a 
conveyance instrument in the form approved by the Secretary. Such 
instrument shall incorporate all conditions or restrictions set out in 
the consents obtained pursuant to Sec. 169.3. A copy of such instrument 
shall be promptly delivered to the applicant and thereafter the 
applicant may proceed with the construction work. Maps of definite 
location may be attached to and incorporated into the conveyance 
document by reference. In the discretion of the Secretary, one 
conveyance document may be issued covering all of the tracts of land 
traversed by the right-of-way, or separate conveyances may be made 
covering one or several tracts included in the application. A duplicate 
original copy of the conveyance instrument, permanent and reproducible 
maps, a copy of the application and stipulations, together with any 
other pertinent documents shall be transmitted by the Secretary to the 
office of record for land documents affecting the land covered by the 
right-of-way, where they will be recorded and filed.



Sec. 169.16  Affidavit of completion.

    Upon the completion of the construction of any right-of-way, the 
applicant shall promptly file with the Secretary an affidavit of 
completion, in duplicate, executed by the engineer and certified by the 
applicant. The Secretary shall transmit one copy of the affidavit to the 
office of record mentioned in Sec. 169.15. Failure to file an affidavit 
in accordance with this section shall subject the right-of-way to 
cancellation in accordance with Sec. 169.20.

[[Page 468]]



Sec. 169.17  Change of location.

    If any change from the location described in the conveyance 
instrument is found to be necessary on account of engineering 
difficulties or otherwise, amended maps and field notes of the new 
location shall be filed, and a right-of-way for such new route or 
location shall be subject to consent, approval, the ascertainment of 
damages, and the payment thereof, in all respects as in the case of the 
original location. Before a revised conveyance instrument is issued, the 
applicant shall execute such instruments deemed necessary by the 
Secretary extinguishing the right-of-way at the original location. Such 
instruments shall be transmitted by the Secretary to the office of 
record mentioned in Sec. 169.15 for recording and filing.



Sec. 169.18  Tenure of approved right-of-way grants.

    All rights-of-way granted under the regulations in this part 169 
shall be in the nature of easements for the periods stated in the 
conveyance instrument. Except as otherwise determined by the Secretary 
and stated in the conveyance instrument, rights-of-way granted under the 
Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), for railroads, 
telephone lines, telegraph lines, public roads and highways, access 
roads to homesite properties, public sanitary and storm sewer lines 
including sewage disposal and treatment plants, water control and use 
projects (including but not limited to dams, reservoirs, flowage 
easements, ditches, and canals), oil, gas, and public utility water 
pipelines (including pumping stations and appurtenant facilities), 
electric power projects, generating plants, switchyards, electric 
transmission and distribution lines (including poles, towers, and 
appurtenant facilities), and for service roads and trails essential to 
any of the aforestated use purposes, may be without limitation as to 
term of years; whereas, rights-of-way for all other purposes shall be 
for a period of not to exceed 50 years, as determined by the Secretary 
and stated in the conveyance instrument.

[37 FR 12937, June 30, 1972. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.19  Renewal of right-of-way grants.

    On or before the expiration date of any right-of-way heretofore or 
hereafter granted for a limited term of years, an application may be 
submitted for a renewal of the grant. If the renewal involves no change 
in the location or status of the original right-of-way grant, the 
applicant may file with his application a certificate under oath setting 
out this fact, and the Secretary, with the consent required by 
Sec. 169.3, may thereupon extend the grant for a like term of years, 
upon the payment of consideration as set forth in Sec. 169.12. If any 
change in the size, type, or location of the right-of-way is involved, 
the application for renewal shall be treated and handled as in the case 
of an original application for a right-of-way.



Sec. 169.20  Termination of right-of-way grants.

    All rights-of-way granted under the regulations in this part may be 
terminated in whole or in part upon 30 days written notice from the 
Secretary mailed to the grantee at its latest address furnished in 
accordance with Sec. 169.5(j) for any of the following causes:
    (a) Failure to comply with any term or condition of the grant or the 
applicable regulations;
    (b) A nonuse of the right-of-way for a consecutive 2-year period for 
the purpose for which it was granted;
    (c) An abandonment of the right-of-way.

If within the 30-day notice period the grantee fails to correct the 
basis for termination, the Secretary shall issue an appropriate 
instrument terminating the right-of-way. Such instrument shall be 
transmitted by the Secretary to the office of record mentioned in 
Sec. 169.15 for recording and filing.

[33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.21  Condemnation actions involving individually owned lands.

    The facts relating to any condemnation action to obtain a right-of-
way over individually owned lands shall be reported immediately by 
officials of

[[Page 469]]

the Bureau of Indian Affairs having knowledge of such facts to 
appropriate officials of the Interior Department so that action may be 
taken to safeguard the interests of the Indians.



Sec. 169.22  Service lines.

    (a) An agreement shall be executed by and between the landowner or a 
legally authorized occupant or user of individually owned land and the 
applicant before any work by the applicant may be undertaken to 
construct a service line across such land. Such a service line shall be 
limited in the case of power lines to a voltage of 14.5 kv. or less 
except lines to serve irrigation pumps and commercial and industrial 
uses which shall be limited to a voltage not to exceed 34.5 kv. A 
service line shall be for the sole purpose of supplying the individual 
owner or authorized occupant or user of land, including schools and 
churches, with telephone, water, electric power, gas, and other 
utilities for use by such owner, occupant, or user of the land on the 
premises.
    (b) A similar agreement to that required in paragraph (a) of this 
section shall be executed by the tribe or legally authorized occupant or 
user of tribal land and the applicant before any work by the applicant 
may be undertaken for the construction of a service line across tribal 
land. A service line shall be for the sole purpose of supplying an 
occupant or user of tribal land with any of the utilities specified in 
paragraph (a) of this section. No agreement under this paragraph shall 
be valid unless its execution shall have been duly authorized in advance 
of construction by the governing body of the Indian tribe whose land is 
affected, unless the contract under which the occupant or user of the 
land obtained his rights specifically authorizes such occupant or user 
to enter into service agreements for utilities without further tribal 
consent.
    (c) In order to encourage the use of telephone, water, electric 
power, gas and other utilities and to facilitate the extension of these 
modern conveniences to sparsely settled Indian areas without undue costs 
the agreement referred to in paragraph (a) of this section shall only be 
required to include or have appended thereto, a plat or diagram showing 
with particularity the location, size, and extent of the line. When the 
plat or diagram is placed on a separate sheet it shall bear the 
signature of the parties. In case of tribal land, the agreement shall be 
accompanied by a certified copy of the tribal authorization when 
required.
    (d) An executed copy of the agreement, together with a plat or 
diagram, and in the case of tribal land, an authenticated copy of the 
tribal authorization, when required, shall be filed with the Secretary 
within 30 days after the date of its execution. Failure to meet this 
requirement may result in the removal of improvements placed on the land 
at the expense of the party responsible for the placing of such 
improvements and subject such party to the payment of damages caused by 
his unauthorized act.



Sec. 169.23  Railroads.

    (a) The Act of March 2, 1899 (30 Stat. 990), as amended by the Acts 
of February 28, 1902 (32 Stat. 50), June 21, 1906 (34 Stat. 330), and 
June 25, 1910 (36 Stat. 859; 25 U.S.C. 312--318); the Act of March 3, 
1875 (18 Stat. 482; 43 U.S.C. 934); and the Act of March 3, 1909 (35 
Stat. 781), as amended by the Act of May 6, 1910 (36 Stat. 349; 25 
U.S.C. 320), authorize grants of rights-of-way across tribal, 
individually owned and Government-owned land, except in the State of 
Oklahoma, for railroads, station buildings, depots, machine shops, side 
tracks, turnouts, and water stations; for reservoirs, material or 
ballast pits needed to the construction, repair, and maintenance of 
railroads; and for the planting and growing of trees to protect railroad 
lines. Rights-of-way granted under the above acts shall be subject to 
the provisions of this section as well as other pertinent sections of 
this part 169. Except when otherwise determined by the Secretary, 
rights-of-way for the above purposes granted under the Act of February 
5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), shall also be subject to the 
provisions of this section.
    (b) Rights-of-way for railroads shall not exceed 50 feet in width on 
each side of the centerline of the road, except where there are heavy 
cuts and fills,

[[Page 470]]

when they shall not exceed 100 feet in width on each side of the road. 
The right-of-way may include grounds adjacent to the line for station 
buildings, depots, machine shops, side tracks, turnouts, and water 
stations, not to exceed 200 feet in width by a length of 3,000 feet, 
with no more than one station to be located within any one continuous 
length of 10 miles of road.
    (c) Short spurs and branch lines may be shown on the map of the main 
line, separately described by termini and length. Longer spurs and 
branch lines shall be shown on separate maps. Grounds desired for 
station purposes may be indicated on the map of definite location but 
separate plats must be filed for such grounds. The maps shall show any 
other line crossed, or with which connection is made. The station number 
shall be shown on the survey thereof at the point of intersection. All 
intersecting roads must be represented in ink of a different color from 
that used for the line for which application is made.
    (d) Plats of railroad station grounds shall be drawn on a scale of 
400 feet to an inch, and must be filed separately from the line of 
route. Such plats shall show enough of the line of route to indicate the 
position of the tract with reference thereto. Each station ground tract 
must be located with respect to the public survey as provided in 
Sec. 169.8 and all buildings or other structures shall be platted on a 
scale sufficiently large to show clearly their dimensions and relative 
positions.
    (e) If any proposed railroad is parallel to, and within 10 miles of, 
a railroad already built or in course of construction, it must be shown 
wherein the public interest will be promoted by the proposed road. Where 
the Interstate Commerce Commission has passed on this point, a certified 
copy of its findings must be filed with the application.
    (f) The applicant must certify that the road is to be operated as a 
common carrier of passengers and freight.
    (g) The applicant shall execute and file, in duplicate, a 
stipulation obligating the company to use all precautions possible to 
prevent forest fires and to suppress such fires when they occur, to 
construct and maintain passenger and freight stations for each 
Government townsite, and to permit the crossing, in a manner 
satisfactory to the Government officials in charge, of the right-of-way 
by canals, ditches, and other projects.
    (h) A railroad company may apply for sufficient land for ballast or 
material pits, reservoirs, or tree planting to aid in the construction 
or maintenance of the road. The authority to use any land for such 
purposes shall terminate upon abandonment or upon failure to use the 
land for such purposes for a continuous period of 2 years.



Sec. 169.24  Railroads in Oklahoma.

    (a) The Act of February 28, 1902 (32 Stat. 43), authorizes right-of-
way grants across tribal and individually owned land in Oklahoma. 
Rights-of-way granted under that act shall be subject to the provisions 
of this section as well as other pertinent sections of this part 169. 
Except when otherwise determined by the Secretary, railroad rights-of-
way in Oklahoma granted under the Act of February 5, 1948 (62 Stat. 17; 
25 U.S.C. 323-328), shall also be subject to the provisions of this 
section.
    (b) One copy on tracing linen of the map of definite location 
showing the line of route and all lands included within the right-of-way 
must be filed with the Secretary. When tribal lands are involved, a copy 
of the map must also be filed with the tribal council.
    (c) Before any railroad may be constructed or any lands taken or 
condemned for any of the purposes set forth in section 13 of the Act of 
February 28, 1902 (32 Stat. 47), full damages shall be paid to the 
Indian owners.
    (d) After the maps have been filed, the matter of damages shall be 
negotiated by the applicant directly with the Indian owners. If an 
amicable settlement cannot be reached, the amount to be paid as 
compensation and damages shall be fixed and determined as provided in 
the statute. If court proceedings are instituted, the facts shall be 
reported immediately as provided in Sec. 169.21.



Sec. 169.25  Oil and gas pipelines.

    (a) The Act of March 11, 1904 (33 Stat. 65), as amended by the Act 
of March 2,

[[Page 471]]

1917 (39 Stat. 973; 25 U.S.C. 321), authorizes right-of-way grants for 
oil and gas pipelines across tribal, individually owned and Government-
owned land. Rights-of-way granted under that act shall be subject to the 
provisions of this section as well as other pertinent sections of this 
part 169. Except when otherwise determined by the Secretary, rights-of-
way granted for such purposes under the Act of February 5, 1948 (62 
Stat. 17; 25 U.S.C. 323-328) shall also be subject to the provisions of 
this section.
    (b) Rights-of-way, granted under aforesaid Act of March 11, 1904, as 
amended, for oil and gas pipelines, pumping stations or tank sites shall 
not extend beyond a term of 20 years and may be extended for another 
period of not to exceed 20 years following the procedures set out in 
Sec. 169.19 of this part.
    (c) All oil or gas pipelines, including connecting lines, shall be 
buried a sufficient depth below the surface of the land so as not to 
interfere with cultivation. Whenever the line is laid under a road or 
highway, the right-of-way for which has been granted under an approved 
application pursuant to an act of Congress, its construction shall be in 
compliance with the applicable Federal and State laws; during the period 
of construction, at least one-half the width of the road shall be kept 
open to travel; and, upon completion, the road or highway shall be 
restored to its original condition and all excavations shall be 
refilled. Whenever the line crosses a ravine, canyon, or waterway, it 
shall be laid below the bed thereof or upon such superstructure as will 
not interfere with the use of the surface.
    (d) The size of the proposed pipeline must be shown in the 
application, on the maps, and in the engineer's affidavit and 
applicant's certificate. The application and maps shall specify whether 
the pipe is welded, screw-joint, dresser, or other type of coupling. 
Should the grantee of an approved right-of-way desire at any time to lay 
additional line or lines of pipe in the same trench, or to replace the 
original line with larger or smaller pipe, written permission must first 
be obtained from the Secretary and all damages to be sustained by the 
owners must be paid in advance in the amount fixed and determined by the 
Secretary.
    (e) Applicants for oil or gas pipeline rights-of-way may apply for 
additional land for pumping stations or tank sites. The maps shall show 
clearly the location of all structures and the location of all lines 
connecting with the main line. Applicants for lands for pumping stations 
or tank sites shall execute and file a stipulation agreeing as follows:
    (1) Upon abandonment of the right-of-way to level all dikes, fire-
guards, and excavations and to remove all concrete masonry foundations, 
bases, and structural works and to restore the land as nearly as may be 
possible to its original condition.
    (2) That a grant for pumping station or tank site purposes shall be 
subservient to the owner's right to remove or authorize the removal of 
oil, gas, or other mineral deposits; and that the structures for pumping 
station or tank site will be removed or relocated if necessary to avoid 
interference with the exploration for or recovery of oil, gas, or other 
minerals.
    (f) Purely lateral lines connecting with oil or gas wells on 
restricted lands may be constructed upon filing with the Secretary a 
copy of the written consent of the Indian owners and a blueprint copy of 
a map showing the location of the lateral. Such lateral lines may be of 
any diameter or length, but must be limited to those used solely for the 
transportation of oil or gas from a single tract of tribal or 
individually owned land to another lateral or to a branch of the main 
line.
    (g) The applicant, by accepting a pipeline right-of-way, thereby 
agrees that the books and records of the applicant shall be open to 
inspection by the Secretary at all reasonable times, in order to obtain 
information pertaining in any way to oil or gas produced from tribal or 
individually owned lands or other lands under the jurisdiction of the 
Secretary.



Sec. 169.26  Telephone and telegraph lines; radio, television, and other communications facilities.

    (a) The Act of February 15, 1901 (31 Stat. 790), as amended by the 
Act of March 4, 1940 (54 Stat. 41; 43 U.S.C. 959);

[[Page 472]]

the Act of March 4, 1911 (36 Stat. 1253), as amended by the Act of May 
27, 1952 (66 Stat. 95; 43 U.S.C. 961); and the Act of March 3, 1901 (31 
Stat. 1083; 25 U.S.C. 319), authorize right-of-way grants across tribal, 
individually owned, and Government-owned land for telephone and 
telegraph lines and offices, for poles and lines for communication 
purposes, and for radio, television, and other forms of communication 
transmitting, relay, and receiving structures and facilities. Rights-of-
way granted under these acts shall be subject to the provisions of this 
section as well as other pertinent sections of this part 169. Except 
when otherwise determined by the Secretary, rights-of-way granted for 
such purposes under the Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. 
323--328), shall also be subject to the provisions of this section.
    (b) A right-of-way granted under the said Act of March 4, 1911, as 
amended, shall be limited to a term not exceeding 50 years from the date 
of the issuance of such grant.
    (c) No right-of-way shall be granted for a width in excess of 50 
feet on each side of the centerline, unless special requirements are 
clearly set forth in the application which fully justify a width in 
excess of 50 feet on each side of the centerline.
    (d) Applicants engaged in the general telephone and telegraph 
business may apply for additional land for office sites. The maps 
showing the location of proposed office sites shall be filed separately 
from those showing the line of route, and shall be drawn to a scale of 
50 feet to an inch. Such maps shall show enough of the line of route to 
indicate the position of the tract with reference thereto. The tract 
shall be located with respect to the public survey as provided in 
Sec. 169.8, and all buildings or other structures shall be platted on a 
scale sufficiently large to show clearly their dimensions and relative 
positions.
    (e) Rights-of-way for poles and lines for communication purposes, 
and for radio, television, and other forms of communication 
transmitting, relay, and receiving structures and facilities, shall be 
limited to 200 feet on each side of the centerline of such lines and 
poles; radio and television, and other forms of communication 
transmitting, relay, and receiving structures and facilities shall be 
limited to an area not to exceed 400 feet by 400 feet.



Sec. 169.27  Power projects.

    (a) The Act of March 4, 1911 (36 Stat. 1253), as amended by the Act 
of May 27, 1952 (66 Stat. 95; 43 U.S.C. 961), authorizes right-of-way 
grants across tribal, individually owned and Government-owned land for 
electrical poles and lines for the transmission and distribution of 
electrical power. Rights-of-way granted under that act shall be subject 
to the provisions of this section as well as other pertinent sections of 
this part 169. Except when otherwise determined by the Secretary, 
rights-of-way granted for such purposes under the Act of February 5, 
1948 (62 Stat. 17; 25 U.S.C. 323--328) shall also be subject to the 
provisions of this section.
    (b) All applications, other than those made by power-marketing 
agencies of the Department of the Interior, for authority to survey, 
locate, or commence construction work on any project for the generation 
of electric power, or the transmission or distribution of electrical 
power of 66 kV or higher involving Government-owned lands shall be 
referred to the Office of the Assistant Secretary of the Interior for 
Water and Power Resources or such other agency as may be designated for 
the area involved, for consideration of the relationship of the proposed 
project to the power development program of the United States. Where the 
proposed project will not conflict with the program of the United 
States, the Secretary, upon notification to the effect, may then proceed 
to act upon the application. In the case of necessary changes respecting 
the proposed location, construction, or utilization of the project in 
order to eliminate conflicts with the power development program of the 
United States, the Secretary shall obtain from the applicant written 
consent to or compliance with such requirements before taking further 
action on the application.
    (c) A right-of-way granted under the said Act of March 4, 1911, as 
amended, shall be limited to a term not exceeding 50 years from the date 
of the issuance of such grant.

[[Page 473]]

    (d) Rights-of-way for power lines shall be limited to those widths 
which can be justified and in no event shall exceed a width of 200 feet 
on each side of the centerline.
    (e) The applicant shall make provision, or bear the reasonable cost 
(as may be determined by the Secretary) of making provision, for 
avoiding inductive interference between any project transmission line or 
other project works constructed, operated, or maintained by it on the 
right-of-way authorized under the grant and any radio installation, 
telephone line, or other communication facilities now or hereafter 
constructed and operated by the United States or any agency thereof. 
This provision shall not relieve the applicant from any responsibility 
or requirement which may be imposed by other lawful authority for 
avoiding or eliminating inductive interference.
    (f) An applicant for a right-of-way for a transmission line across 
Government-owned lands having a voltage of 66 kV or more must, in 
addition to the stipulation required by Sec. 169.5, execute and file 
with its application a stipulation agreeing to accept the right-of-way 
grant subject to the following conditions:
    (1) The applicant agrees that, in the event it becomes necessary for 
the United States to acquire the applicant's transmission line or 
facilities constructed on or across such right-of-way, the United States 
reserves the right to acquire such line or facilities at a sum to be 
determined upon by a representative of the applicant, a representative 
of the Secretary of the Interior, and a third representative to be 
selected by the other two for the purpose of determining the value of 
such property thus to be acquired by the United States.
    (2) To allow the Department of the Interior to utilize for the 
transmission of electrical power any surplus capacity of the line in 
excess of the capacity needed by the holder of the grant for the 
transmission of electrical power in connection with the applicant's 
operations, or to increase the capacity of the line at the Department's 
expense and to utilize the increased capacity for the transmission of 
electrical power. Utilization by the Department of surplus or increased 
capacity shall be subject to the following terms and conditions:
    (i) When the Department desires to utilize surplus capacity thought 
to exist in a line, notification will be given to the applicant and the 
applicant shall furnish to the Department within 30 days a certificate 
stating whether the line has any surplus capacity not needed by the 
applicant for the transmission of electrical power in connection with 
the applicant's operations, and, if so, the extent of such surplus 
capacity.
    (ii) In order to utilize any surplus capacity certified by the 
applicant to be available, or any increased capacity provided by the 
Department at its own expense, the Department may interconnect its 
transmission facilities with the applicant's line in a manner 
conformable to approved standards of practice for the interconnection of 
transmission circuits.
    (iii) The expense of interconnection will be borne by the 
Department, and the Department will at all times provide and maintain 
adequate switching, relaying, and protective equipment so as to insure 
that the normal and efficient operation of the applicant's line will not 
be impaired.
    (iv) After any interconnection is completed, the applicant shall 
operate and maintain its line in good condition; and, except in 
emergencies, shall maintain in a closed position all connections under 
the applicant's control between the applicant's line and the 
interconnecting facilities provided by the Department.
    (v) The interconnected power systems of the Department and the 
applicant will be operated in parallel.
    (vi) The transmission of electrical power by the Department over the 
applicant's line will be effected in such manner and quantity as will 
not interfere unreasonably with the applicant's use and operation of the 
line in accordance with the applicant's normal operating standards, 
except that the Department shall have the exclusive right to utilize any 
increased capacity of the line which has been provided at the 
Department's expense.
    (vii) The applicant will not be obligated to allow the transmission 
over

[[Page 474]]

its line by the Department of electrical power to any person receiving 
service from the applicant on the date of the filing of the application 
for a grant, other than persons entitled to statutory preference in 
connection with the distribution and sale of electrical power by the 
Department.
    (viii) The Department will pay to the applicant an equitable share 
of the total monthly cost of maintaining and operating the part of the 
applicant's line utilized by the Department for the transmission of 
electrical power, the payment to be an amount in dollars representing 
the same proportion of the total monthly operation and maintenance cost 
of such part of the line as the maximum amount in kilowatts of the power 
transmitted on a scheduled basis by the Department over the applicant's 
line during the month bears to the total capacity in kilowatts of that 
part of the line. The total monthly cost may include interest and 
amortization, in accordance with the system of accounts prescribed by 
the Federal Power Commission, on the applicant's net total investment 
(exclusive of any investment by the Department) in the part of the line 
utilized by the Department.
    (ix) If, at any time subsequent to a certification by the applicant 
that surplus capacity is available for utilization by the Department, 
the applicant needs for the transmission of electrical power in 
connection with its operations the whole or any part of the capacity of 
the line theretofore certified as being surplus to its needs, the 
applicant may modify or revoke the previous certification by giving the 
Secretary of the Interior 30 months' notice, in advance, of the 
applicant's intention in this respect. After the revocation of a 
certificate, the Department's utilization of the particular line will be 
limited to the increased capacity, if any, provided by the Department at 
its expense.
    (x) If, during the existence of the grant, the applicant desires 
reciprocal accommodations for the transmission of electrical power over 
the interconnecting system of the Department to its line, such 
reciprocal accommodations will be accorded under terms and conditions 
similar to those prescribed in this paragraph with respect to the 
transmission by the Department of electrical power over the applicant's 
line.
    (xi) The terms and conditions prescribed in this paragraph may be 
modified at any time by means of a supplemental agreement negotiated 
between the applicant and the Secretary of the Interior or his designee.
    (g) Applicants may apply for additional lands for generating plants 
and appurtenant facilities. The lands desired for such purposes may be 
indicated on the maps showing the definite location of the right-of-way, 
but separate maps must be filed therefor. Such maps shall show enough of 
the line of route to indicate the position of the tract with respect to 
said line. The tract shall be located with respect to the public survey 
as provided in Sec. 169.8, and all buildings or other structures shall 
be platted on a scale sufficiently large to show clearly their 
dimensions and relative positions.

[33 FR 19803, Dec. 27, 1968, as amended at 38 FR 14680, June 4, 1973. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 169.28  Public highways.

    (a) The appropriate State or local authorities may apply under the 
regulations in this part 169 for authority to open public highways 
across tribal and individually owned lands in accordance with State 
laws, as authorized by the Act of March 3, 1901 (31 Stat. 1084; 25 
U.S.C. 311).
    (b) In lieu of making application under the regulations in this part 
169, the appropriate State or local authorities in Nebraska or Montana 
may, upon compliance with the requirements of the Act of March 4, 1915 
(38 Stat. 1188), lay out and open public highways in accordance with the 
respective laws of those States. Under the provisions of that act, the 
applicant must serve the Secretary with notice of intention to open the 
proposed road and must submit a map of definite location on tracing 
linen showing the width of the proposed road for the approval of the 
Secretary prior to the laying out and opening of the road.
    (c) Applications for public highway rights-of-way over and across 
roadless and wild areas shall be considered in

[[Page 475]]

accordance with the regulations contained in part 265 of this chapter.



PART 170--ROADS OF THE BUREAU OF INDIAN AFFAIRS--Table of Contents




                  Construction and Maintenance of Roads

Sec.
170.1  Purpose.
170.2  Definitions.
170.3  Construction and improvement.
170.4  Approval of road construction activities.
170.4a  Selection of road construction projects.
170.5  Right-of-way.
170.5a  Employment of Indians.
170.6  Maintenance of Indian roads.
170.6a  Contributions from tribes.
170.7  Cooperation with States.
170.8  Use of roads.
170.9  Roadless and wild areas.

                    Public Hearings on Road Projects

170.10  Purpose and objectives.
170.11  Criteria.
170.12  Need for public hearing determined.
170.13  Notice of road construction projects.
170.14  Notice of public hearing.
170.15  Record of hearing proceedings.
170.16  Conducting the public hearing.
170.17  Written statements.
170.18  Hearing statement.
170.19  Appeals.

    Authority: 36 Stat. 861; 78 Stat. 241, 253, 257; 45 Stat. 750 (25 
U.S.C. 47; 42 U.S.C. 2000e(b), 2000e-2(i); 23 U.S.C. 101(a), 208, 308), 
unless otherwise noted.

    Source: Sections 170.1 to 170.9, 39 FR 27132, July 25, 1974, unless 
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.

                  Construction and Maintenance of Roads



Sec. 170.1  Purpose.

    The regulations in this part govern the planning, design, 
construction, maintenance and general administration of certain Indian 
reservation roads and bridges.



Sec. 170.2  Definitions.

    As used in this part:
    (a) ``Commissioner'' means the Commissioner of Indian Affairs.
    (b) ``Superintendent'' means the Agency Superintendent at all 
locations, with the exception that at the Navajo Reservation this term 
shall mean the Area Director or his designated representative for public 
hearings on arterial roads which cross Agency boundaries of 
jurisdiction.
    (c) ``State'' means a State or territory or political subdivision 
thereof.
    (d) ``Indian Reservation Roads and Bridges'' means roads and bridges 
that are located within or provide access to an Indian reservation or 
Indian trust land or restricted Indian land which is not subject to fee 
title alienation without the approval of the Federal Government, or 
Indian and Alaska Native villages, groups or communities in which 
Indians and Alaskan Natives reside, whom the Commissioner has determined 
are eligible for services generally available to Indians under Federal 
laws specifically applicable to Indians. (23 U.S.C. 101(a))
    (e) ``Indian and Alaskan Native villages, groups, or communities in 
which Indian or Alaska Natives reside'' means villages, groups or 
communities or portions of villages, groups, or communities in which the 
majority of the residents are Indians or Alaska Natives.
    (f) ``Federal-Aid Indian Road System'' means those Indian 
reservation roads and bridges for which financial aid for construction 
is available only from specific appropriations of Federal funds therefor 
and which are designated by the Bureau of Indian Affairs and the Federal 
Highway Administration. This term does not include roads or bridges on 
Indian reservations for which financial aid for construction and 
improvement is available to a State under the Federal-Aid Highway Act. 
(45 Stat. 750)
    (g) ``Construction'' means supervising, inspecting, actual building, 
and all expenses incidental to the construction and improvement of roads 
and bridges including the elimination of roadway hazards and the 
acquisition of rights-of-way.
    (h) ``Maintenance'' means the act of preserving the entire roadway, 
including surface, shoulders, roadsides, structures, and the necessary 
traffic control devices as nearly as possible in the as-built condition 
and to provide services for the satisfactory and safe use of such roads.

[[Page 476]]



Sec. 170.3  Construction and improvement.

    Subject to the availability of appropriations for Indian reservation 
roads and bridges and any other contribution of State or Indian tribal 
lands, the Commissioner shall plan, survey, design and construct roads 
on the Federal-Aid Indian Road System to provide an adequate system of 
road facilities serving Indian lands.



Sec. 170.4  Approval of road construction activities.

    The Secretary of Transportation or his authorized representative 
shall approve the location, type, and design of all projects on the 
Federal-Aid Indian Road System before any construction expenditures are 
made. All such construction shall be under the general supervision of 
the Secretary of Transportation or his authorized representative.

(23 U.S.C. 208)



Sec. 170.4a  Selection of road construction projects.

    The Commissioner, who is responsible for the planning, surveys and 
design, shall keep the appropriate local tribal officials informed of 
all technical information relating to the project alternatives of 
proposed road developments. The Commissioner shall recommend to the 
tribe those proposed road projects having the greatest need as 
determined by the comprehensive transportation analysis. Tribes shall 
then establish annual priorities for road construction projects. Subject 
to the approval of the Commissioner, the annual selection of road 
projects for construction shall be performed by tribes. Funds available 
for the construction of roads on the Federal-Aid Indian Road System 
shall not be used for the capital improvement to privately-owned 
property. (39 Stat. 355)



Sec. 170.5  Right-of-way.

    (a) The procedure for obtaining permission to survey and for 
granting any necessary right-of-way are governed by part 169 of this 
chapter. Tribal consent as required under Sec. 169.3(a) may be made by 
public dedication where proper tribal authority exists. Before any work 
is undertaken for the construction of road projects, the Commissioner 
shall obtain the written consent of the Indian landowners. Where an 
Indian has an interest in tribal land by virtue of a land use 
assignment, such consent shall be obtained from both the landholder of 
the assignment and the Indian tribe. Right-of-way easements are to be on 
a form approved by the Commissioner.
    (b) If it appears that the road might be transferred to the tribe, 
the county or the State within 10 years, then before such construction 
is undertaken, right-of-way easements for the project shall be obtained 
in favor of the United States, its successors and assigns, with the 
right to construct, maintain, and repair improvements thereon and 
thereover, for such purposes and with the further right in the United 
States, its successors and assigns, to transfer the right-of-way 
easements by assignment, grant or otherwise.



Sec. 170.5a  Employment of Indians.

    The Bureau of Indian Affairs road program shall be administered in 
such a way as to provide training and employment of Indians. The 
Commissioner may contract with tribes and Indian-owned construction 
companies, or the Commissioner may purchase materials, obtain equipment 
and employ Indian labor in the construction and maintenance of roads.

(36 Stat. 861; 78 Stat. 241, 253; 78 Stat. 257; 25 U.S.C. 47; 42 U.S.C. 
2000e(b), 2000e-2(i); 23 U.S.C. 208(c))



Sec. 170.6  Maintenance of Indian roads.

    The administration and maintenance of Indian reservation roads and 
bridges is basically a function of the local Government. Subject to the 
availability of funds, the Commissioner shall maintain, or cause to be 
maintained, those approved roads on the Federal-Aid Indian Road System. 
The Commissioner may also maintain roads not on the Federal-Aid Indian 
Road System if such roads meet the definition of ``Indian reservation 
road and bridges'' and are approved for maintenance by the Commissioner. 
No funds authorized under 23 U.S.C. 208 are available for the 
maintenance of roads.

[[Page 477]]



Sec. 170.6a  Contributions from tribes.

    The Commissioner may enter into agreements with an Indian tribe for 
a contribution from its tribal funds for the construction or maintenance 
of roads governed by regulations of this part. However, the tribe must 
be able to make such contributions without undue impairment of the 
necessary tribal functions.



Sec. 170.7  Cooperation with States.

    The Commissioner may enter into an agreement with the State for 
cooperation in the construction and the maintenance of certain Indian 
reservation roads and bridges, especially at those locations where road 
projects serve non-Indian land as well as Indian land.

(23 U.S.C. 208(d); 23 U.S.C.308(a))



Sec. 170.8  Use of roads.

    (a) Free public use is required on roads eligible for construction 
and maintenance with Federal funds under this part. When required for 
public safety, fire prevention or suppression, or fish or game 
protection, or to prevent damage to unstable roadbed, the Commissioner 
may restrict the use of them or may close them to public use.
    (b) The Commissioner shall conduct engineering and traffic analysis 
in accordance with established traffic engineering practices and 
determine the necessary maximum speed limit, maximum vehicular weight 
limit and other needed regulatory signs for roads which he maintains. 
The Commissioner shall make recommendations to local Government 
officials, who are authorized to enact and enforce ordinances on Indian 
lands, of his determination of the needed regulatory signs. Such 
regulatory signs as are authorized by established ordinances shall be 
erected by the Commissioner. At locations under the jurisdiction of the 
Court of Indian Offenses the Commissioner shall erect such regulatory 
signs as he determines are needed.



Sec. 170.9  Roadless and wild areas.

    Roads passable to motor transportation shall not be constructed 
under the regulations in this part within the boundaries of the roadless 
and wild areas established in part 265 of this chapter.

                    Public Hearings on Road Projects

    Authority: 45 Stat. 750; 25 U.S.C. 318a. Interpret or apply sec. 6, 
49 Stat. 1521, as amended; 25 U.S.C. 318b.

    Source: Sections 170.10 to 170.19, 39 FR 12733, Apr. 8, 1974, unless 
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 170.10  Purpose and objectives.

    The regulations in this subpart govern the calling and conducting of 
public hearings on Bureau of Indian Affairs road projects beginning with 
road projects scheduled to begin construction in Fiscal Year 1975, and 
thereafter. In order to promote coordination and comprehensive planning 
of construction activities on Indian reservations, the objectives for 
conducting public hearings on proposed road projects are to:
    (a) Inform interested persons of the road proposals which affect 
them and allow such persons to express their views at those stages of a 
project's development when the flexibility to respond to these views 
still exists.
    (b) Insure that road locations and designs are consistent with the 
reservations' objectives and with applicable Federal regulations.



Sec. 170.11  Criteria.

    A public hearing shall be held for each project that:
    (a) Is a new route being constructed,
    (b) Would significantly change the layout or function of connecting 
or related roads or streets,
    (c) Would have an adverse effect upon adjacent real property, or
    (d) Is expected to be of a controversial nature.



Sec. 170.12  Need for public hearing determined.

    The Superintendent will call a meeting of representatives from the 
tribe, the Bureau of Indian Affairs, and other appropriate agencies to 
determine for each road project if a public hearing is needed. The 
determination will be based on the criteria given in Sec. 170.11. More 
than one public hearing may be held for a project if necessary.

[[Page 478]]



Sec. 170.13  Notice of road construction projects.

    When no public hearing is scheduled for a road construction project, 
notice of the road construction project must be given at least 90 days 
before the date construction is scheduled to begin. Such notice should 
give the project name and location, the type of improvement planned, the 
date construction is scheduled to start, and the name and address of the 
office where more information can be obtained. The notice should be 
posted or published as determined by the Superintendent.



Sec. 170.14  Notice of public hearing.

    Notice will be given to inform the local public of the scheduled 
hearing. The notice should give the date, time, and place of the 
scheduled hearing; the project location; the proposed work to be done; 
the place where the preliminary plans may be reviewed; and the place 
where more information on the project can be obtained. The notice should 
be posted or published as determined by the Superintendent. Notice 
should be given at least 15 days before the scheduled date of the public 
hearing and again, at least 5 days before the hearing date.



Sec. 170.15  Record of hearing proceedings.

    A record of the hearing shall be made. The record shall include 
written statements submitted at the hearing or within 5 days following 
the hearing.



Sec. 170.16  Conducting the public hearing.

    (a) The Superintendent will appoint a tribal or Bureau of Indian 
Affairs official to preside at the public hearing and to maintain a 
medium for free and open discussion designed to reach early and amicable 
resolution of issues.
    (b) The Superintendent shall be responsible for maintaining a record 
of the hearing and shall make arrangements for appropriate officials to 
be present at the hearing to be responsive to questions which may arise.
    (c) The purpose of the hearing and an agenda of items to be 
discussed should be presented at the beginning of the hearing. It should 
be made clear at the hearing that the tribal chairman or his designated 
roads committee are the officials responsible for setting reservation 
road priorities and considering the merits of one road project over 
another. Sufficient maps and project plans will be available at the 
hearing for public review. The hearing audience should be informed of 
the Bureau's road construction and right-of-way acquisition procedures 
on reservations. If the project will require relocating residences or 
businesses, information on relocation services and authorized payments 
will be given.



Sec. 170.17  Written statements.

    Written statements may be submitted as well as oral statements made 
at the public hearing. Written statements may also be submitted during 
the 5 days following the hearing.



Sec. 170.18  Hearing statement.

    If significant issues develop at the public hearing which remain 
unresolved, the Superintendent will issue a hearing statement 
summarizing the results of the public hearing and his determination as 
to the further action to be taken in connection with the proposed 
project. The hearing statement shall be issued within 20 days of the 
date of the public hearing. The hearing statement will be posted at the 
place where the hearing was held, and shall be sent to interested 
persons upon request. The hearing statement will outline procedures 
whereby the determination may be appealed.



Sec. 170.19  Appeals.

    Any determination concerning the proposed road project may be 
appealed in accordance with the procedures set forth in part 2 of this 
title.



PART 171--OPERATION AND MAINTENANCE--Table of Contents




Sec.
171.1  Administration.
171.2  Irrigation season.
171.3  Domestic and stock water.
171.4  Farm units.
171.5  Delivery points.
171.6  Distribution and apportionment of water.
171.7  Application for and record of deliveries of irrigation water.
171.8  Surface drainage.

[[Page 479]]

171.9  Structures.
171.10  Fencing.
171.11  Obstructions.
171.12  Rights-of-way.
171.13  Crops and statistical reports.
171.14  Carriage agreements and water right applications.
171.15  Leaching water.
171.16  Excess water.
171.17  Delivery of water.
171.18  Service or farm ditches.
171.19  Operation and maintenance assessments.
171.20  Water users' ledgers.
171.21  Health and sanitation.
171.22  Complaints.
171.23  Disputes.

    Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385. 
Sec. 171.4(b) also issued under 34 Stat. 1024, 38 Stat. 583, and 68 
Stat. 1026. Secs. 171.4(a), 171.4(c), 171.16(b), and 171.17(f) also 
issued under sec. 11, 39 Stat. 142.

    Source: 42 FR 30362, June 14, 1977, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 171.1  Administration.

    (a) The Agency Superintendent, Project Engineer or such official as 
authorized by the Area Director is the Officer-in-Charge of those Indian 
Irrigation Projects or units operated or subject to administration by 
the Bureau of Indian Affairs, whether or not each project or unit is 
specifically mentioned in this part. The Officer-in-Charge is fully 
authorized to administer, carry out, and enforce these regulations 
either directly or through employees designated by him. Such enforcement 
includes the refusal to deliver water.
    (b) The Officer-in-Charge is authorized to apply to irrigation 
subsistence units or garden tracts only those regulations in this part 
which in his judgment would be applicable in view of the size of the 
units and the circumstances under which they are operated.
    (c) The Officer-in-Charge is responsible for performing such work 
and taking any action which in his judgment is necessary for the proper 
operation, maintenance and administration of the irrigation project or 
unit. In making such judgments, the Officer-in-Charge consults with 
water users and their representatives, and with tribal council 
representatives, and seeks advice on matters of program priorities and 
operational policies. The Officer-in-Charge will be guided by the basic 
requirement that the operation will be so administered as to provide the 
maximum possible benefits from the project's or unit's constructed 
facilities. The operations will insure safe, economical, beneficial, and 
equitable use of the water supply and optimum water conservation.
    (d) The Secretary of the Interior reserves the right to exercise at 
any time all rights, powers, and privileges given him by law, and 
contracts with irrigation districts within Indian Irrigation Projects. 
Close cooperation between the Indian tribal councils, the project water 
users and the Officer-in-Charge is necessary and will be to the 
advantage of the entire project.
    (e) The Area Director, or his delegated representative, is 
authorized to fix as well as to announce, by notice published in the 
Federal Register, the annual operation and maintenance assessment rates 
for the irrigation projects or units within his area of responsibility. 
In addition to the rates, the notices will include such information as 
is pertinent to the assessment, payment, and collections of the charges 
including penalties and duty of water.
    (f) The rates will be based on a carefully prepared estimate of the 
cost of the normal operation and maintenance of the project. Normal 
operation and maintenance is defined for this purpose as the average per 
acre cost of all activities involved in delivering irrigation water and 
maintaining the facilities.
    (g) San Carlos Irrigation Project, Arizona. The administration, 
rights obligations and responsibilities for the operation and 
maintenance of this project are set forth in the Repayment Contract 
dated June 8, 1931 as supplemented or amended, between the San Carlos 
Irrigation and Drainage District and the United States as authorized by 
the Act of June 7, 1924 (43 Stat. 475-476) and the Secretarial Order of 
June 15, 1938, title ``Order Defining Joint, District and Indian Works 
of the San Carlos Federal Irrigation Project: Turning over Operation and 
Maintenance of District Works to the San Carlos Irrigation and Drainage 
District.'' The

[[Page 480]]

regulations appearing in this subchapter apply only to the Indian lands 
works and in the San Carlos Irrigation Project unless specified 
otherwise, and should not be interpreted or construed as amending or 
modifying the District Contract or the Secretarial Order.

[42 FR 30362, June 14, 1977, as amended at 43 FR 8799, Mar. 3, 1978. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 171.2  Irrigation season.

    The irrigation season, when water shall be available for irrigation, 
will be established by the Officer-in-Charge.



Sec. 171.3  Domestic and stock water.

    Domestic or stock water will not be carried in the project's or 
unit's irrigation system when in the judgment of the Officer-in-Charge 
such practice will:
    (a) Interfere with the operation and maintenance of the system.
    (b) Be detrimental to or endanger the canal, lateral system and/or 
related structures.
    (c) Adversely affect the stored water supply for irrigation.



Sec. 171.4  Farm units.

    For the purpose of delivery of water and the administration of the 
project or unit, a farm unit is defined as follows:
    (a) For the Blackfeet, Crow, Fort Belknap, and Fort Peck Irrigation 
Projects, Montana, and the Colville Irrigation Project, Washington.
    (1) Forty (40) or more contiguous acres of land in single ownership 
with the exception that those original Indian allotments containing less 
than 40 irrigable acres of the same subdivision of the public land 
survey shall also be considered farm units.
    (2) Forty (40) or more contiguous acres of Indian-owned land under 
lease to one party.
    (3) Forty (40) contiguous acres in multiple ownership within the 
same forty (40) acre subdivision of the public land survey.
    (b) For the Fort Hall Irrigation Project, Idaho:
    (1) Twenty (20) or more contiguous acres of land in single ownership 
covered by one or more water rights contracts.
    (2) Twenty (20) or more contiguous acres of Indian-owned land under 
lease to one party or being farmed by one Indian.
    (3) Ten (10) or more contiguous acres of subdivided land in multiple 
ownership.
    (c) For the Flathead Irrigation Project, Montana: A contiguous area 
of land in single ownership containing not less than one forty (40) acre 
subdivision of the public land survey, or the original allotment as 
established by the Secretary of the Interior and as recorded or amended 
in the records of the Bureau of Land Management. In the case of leased 
land, it is defined as a contiguous area under a single lease. For 
Bureau of Land Management regulations pertaining to Flathead Project, 
see 43 CFR 2211.8, Flathead Irrigation District, Montana.
    (d) For the Wapato Irrigation Project (all units), Washington:
    (1) Eighty (80) or more contiguous acres in single ownership at the 
time of the establishment of the delivery system, or when subsequent 
changes of ownership result in larger tracts under single ownership and 
the owner requests that this land be treated as a farm unit, whether 
covered by one or more water right contracts.
    (2) Eighty (80) or more contiguous acres of Indian-owned land under 
lease to one person or being farmed by one Indian.
    (3) Eighty (80) contiguous acres in multiple ownership: Provided, 
That such acreage shall be within the same eight (80) acre subdivision 
of the U.S. public land survey.
    (4) In all cases where an original Indian allotment consisted of 
less than eighty (80) contiguous acres, such original Indian allotment, 
whether (i) under single or multiple ownership and/or covered by one or 
more water right contracts, (ii) under lease to the same or different 
lessees, or (iii) farmed by one or more Indians, shall be treated as a 
farm unit.
    (e) For all other projects or units: An original allotment, 
homestead, an assignment of unallotted tribal lands, or a contiguous, 
development lease area.

[[Page 481]]



Sec. 171.5  Delivery points.

    (a) Project operators will deliver irrigation water to one point on 
the boundary of each farm unit within the irrigation project. The 
Officer-in-Charge may establish additional delivery points when in his 
judgment it is impractical for the landowner to irrigate his farm unit 
from the one delivery point for such reasons as topography, isolation, 
or cost. When irrigation water is supplied from wells, the delivery 
point may be established at the well head. Where portions of a farm unit 
lie at an elevation too high to be watered by gravity flow from the 
normal elevation of water in the project distribution system, no change 
will be made in the water level elevation of the project system so as to 
place water on such land. Where such land has been included in the 
project, the landowner may install and operate pumping equipment at his 
own expense to raise the water to such included land from a point 
designated by the Officer-in-Charge and in accordance with his 
specifications. If the landowner so installs pumping equipment and pays 
the construction and maintenance charges, the project will deliver the 
same amount of water per acre for this land as the project delivers at 
the delivery point for other lands on the project.
    (b) If a farm unit for which a project delivery point has been 
established is subsequently subdivided into smaller units by the owner 
or owners of the farm unit, the following provisions apply:
    (1) A plat or map of the subdivision must be recorded and a copy 
filed with the Officer-in-Charge. The plat or map must show how the 
irrigation water is to be delivered to the irrigable acres in the 
subdivision.
    (2) No further extensions or alterations in the project's system 
will be provided officials to serve the subdivided units, except as 
agreed to by the Officer-in-Charge and at the landowner's expense.
    (3) Any additional construction necessary to deliver irrigation 
water to these units must be mutually worked out between the original 
owner of the farm units and the new owners of the subdivided unit at 
their expense.
    (4) The project will not bear any responsibility for the operation 
and maintenance of such internal systems, or the division of irrigation 
water after it is delivered to the established project delivery points.
    (c) Where project points of delivery have been established for farm 
units which are to be combined under lease or ownership into a singular 
farm unit to be irrigated by means of a sprinkler of more efficient 
system, the Officer-in-Charge may approve the removal or relocation of 
project delivery facilities. Such reorganization shall be at the expense 
of the landowners or lessees in conformance with established project 
standards and a time schedule which will not disrupt water delivery 
service to others on the system.
    (d) Where a reorganization has been approved and established as in 
Sec. 171.5(c), any reversion requiring reestablishment of removed or 
relocated project delivery facilities must be approved by the Officer-
in-Charge and conform to established project standards and time 
schedules which will not disrupt water delivery service to other water 
users on the system. All expenses incurred shall be the responsibility 
of the landowners or lessees.



Sec. 171.6  Distribution and apportionment of water.

    (a) The Officer-in-Charge will establish the method of and 
procedures for the delivery and distribution of the available irrigation 
water supply. He will endeavor to apportion the water at all times on a 
fair and equitable basis between all project water users entitled to the 
receipt of irrigation water.
    (b) Any person who interferes with the flow of water in or from the 
project's storage, carriage or lateral systems or opens or closes or in 
any other way changes the position of a headgate or any other water 
control structure without specific authority from the Officer-in-Charge 
or his designated representative will be subject to prosecution. Cutting 
a canal or lateral bank for the purpose of diverting water or placing an 
obstruction in such facilities in order to change the flow of water 
through a headgate will be considered a violation of this section.

[[Page 482]]

    (c) San Carlos Irrigation Project, Arizona--(1) The portion of the 
project's common water supply available for the Indian lands will be 
distributed subject to beneficial use in equal per acre amounts to each 
acre under irrigation and cultivation, insofar as possible.
    (2) All water users (Indian and non-Indian) will be notified at the 
beginning of the irrigation season of the amount of stored and pumped 
water available. An apportionment of this water will be recommended by 
the Officer-in-Charge of the irrigation project to the approval of the 
Area Director. Subsequent apportionments may be made if and when 
additional water is available.
    (3) If it is determined by the Officer-in-Charge that there is water 
in excess of demands and available storage facilities, he will promptly 
notify all water users that such water is available. This water shall 
not be charged against the water apportionment of the land on which it 
is used.
    (d) Uintah Irrigation Project, Utah--(1) Water will be delivered to 
all lands under the Lakefork, Uintah and Whiterocks Rivers in accordance 
with the provisions of the decree of the Federal Court in the cases of 
the ``United States v. Dry Gulch Irrigation Company, et al.,'' and the 
``United States v. Cedarview Irrigation Company, et al.,'' which decrees 
fix the maximum duty of three (3) acre-feet per acre for the period from 
March 1 to November 1 of each year. The rate of delivery will be 
substantially in accordance with the following schedule except that it 
may be modified by the Officer-in-Charge at such times as changed 
climatic conditions and the water supply indicate that such modification 
would be beneficial to the project.

------------------------------------------------------------------------
                                             Acres per     Acre feet per
                  Period                    second-feet        acre     
------------------------------------------------------------------------
Mar. 1 to 18.............................      None         None        
Mar. 19 to 31............................     1,000            0.023    
Apr. 1 to 10.............................       800             .025    
Apr. 11 to 20............................       400             .050    
Apr. 21 to 30............................       200             .099    
May 1 to 10..............................       180             .110    
May 11 to 20.............................       135             .147    
May 21 to 31.............................        95             .229    
June 1 to 20.............................        70             .566    
June 21 to 31............................        85             .233    
July 1 to 10.............................        90             .220    
July 11 to 20............................        95             .208    
July 21 to 31............................       100             .218    
Aug. 1 to 10.............................       133             .147    
Aug. 11 to 20............................       155             .128    
Aug. 21 to 31............................       175             .124    
Sept.1 to 10.............................       195             .101    
Sept. 11 to 30...........................       220             .180    
Oct. 1 to 10.............................       220             .090    
Oct. 11 to 20............................       300             .066    
Oct. 21 to 31............................       600             .036    
                                          ------------------------------
    Total................................  .............   3,000        
------------------------------------------------------------------------

    (2) The rotation method will be used in distributing the water 
diverted from the Lakefork, Uintah and Whiterocks Rivers. Rotation 
schedules will be prepared under direction of the Officer-in-Charge and 
will be put into effect each season as soon as it is determined what 
acreage is to be irrigated. A written copy of the water schedule will be 
delivered to each water user showing the time that his turn starts on 
each tract and the duration of each turn.
    (3) In the event a rotation system is adopted for lands receiving 
water from the Duchesne River, the same procedure will be used as for 
the lands under the Lakefork, Uintah and Whiterocks Rivers. The Officer-
in-Charge will advise all water users sufficiently in advance of the 
time the rotation schedule will go into effect.
    (e) Wapato Irrigation Project, Washington--(1) To protect adjoining 
lands against seepage and erosion by the excess use of water on the 
bench lands of the Wapato-Satus Unit, the maximum delivery of water to 
the bench lands shall not exceed 4.5 acre-feet per acre per season.
    (2) The rate of delivery to lands of the Satus 2 and Satus 3 
subunits shall not exceed one (1) cubic foot per second for each 50 
irrigated acres.
    (3) The measurement and distribution of water for the lands on the 
Ahtanum Unit shall take place at the mutually advantageous points on the 
Ahtanum Main or Lower Canals. The conveyance of the water from these 
points of distribution to the irrigable acres of the farm units shall be 
entirely by and at the expense of the individual operators of the farms. 
However, when several such users join together to use one single channel 
for the conveyance of their water to the points of final diversion, they 
shall be jointly responsible for the channel of conveyance

[[Page 483]]

and the apportionment of the water to their respective farm units.



Sec. 171.7  Application for and record of deliveries of irrigation water.

    (a) Except when rotation schedules have been established and are 
being followed, water users in requesting the delivery of water will so 
notify the Officer-in-Charge or his designated representative by such 
means and with such advance notice as may be required by system 
operations and as established by the Officer-in-Charge. The request 
shall indicate the time the water is to be delivered, the period of time 
it will be used, the rate of flow desired, and where the water will be 
used.
    (b) It is the responsibility of the ditchriders during the 
irrigation season to maintain records showing the beginning and ending 
time of each water delivery, the amount of such delivery, and the 
estimated acreage irrigated. Such records are to be filed at the 
irrigation project office at the end of the season.
    (c) Water users on the Indian portion of the San Carlos Indian 
Irrigation Project will submit their requests for water to the 
Superintendent, Pima Agency.



Sec. 171.8  Surface drainage.

    (a) The water users will be responsible for all waste water 
resulting from their irrigation practices and for its conveyance to 
project canals, drains, wasteways or natural drainage channels. Any 
expenses involved in doing this will be borne by the water user. Waste 
water may be emptied into project constructed ditches only at points 
designated by and in a manner approved by the Officer-in-Charge. In 
those situations involving two or more landowners and/or water users, it 
is their responsibility to work out a satisfactory arrangement among 
themselves for the conveyance of their waste water to project ditches or 
natural drainage channels.
    (b) Waste water shall not be permitted to flow upon or collect in 
road or project rights-of-way. Failure to comply with this requirement 
could result in the Officer-in-Charge refusing the further delivery of 
water.



Sec. 171.9  Structures.

    (a) All structures, including bridges or other crossings, which are 
necessary as a part of the project's irrigation and drainage system will 
be installed and maintained by the project.
    (b) During the construction of a new irrigation project or the 
extension of an existing project, bridges, crossings or other structures 
may be built by the Officer-in-Charge for private use where justified by 
severance agreements or other practical considerations. Title to these 
structures may or may not be vested in the United States depending upon 
the agreement with the landowner. Structures built partially or wholly 
in lieu of severance damages may be required to be maintained by the 
landowner even though title remains with the United States.
    (c) After a project is completed, additional structures crossing or 
encroaching on project canal, lateral or drain rights-of-way which are 
needed for private use may be constructed privately in accordance with 
plans approved by the Officer-in-Charge or by the project. In either 
case the cost of installing such structures will not be at the project's 
expense. Such structures will be constructed and maintained under 
revocable permits on proper forms issued by the Officer-in-Charge of the 
irrigation project to the party or parties desiring such structures.
    (d) It it is determined that a crossing constructed for and by the 
project is no longer needed for operation and maintenance of the system. 
It should be removed. However, if a private party, corporation, State, 
or other Federal entity desires to use the crossing, it may be 
transferred to such entity by the Officer-in-Charge under a permit which 
relieves the United States from any further liability or responsibility 
for the crossing, including its maintenance. The following provisions 
pertain:
    (1) Permits issued in such situations shall stipulate what is 
granted, and accepted by the permittee on the condition that the repair 
and maintenance of the structure shall be the duty of the permittee or 
his successors without cost to the irrigation project.

[[Page 484]]

    (2) The permit shall further provide that if any such structure is 
not regularly used for a period of one year or is not properly 
maintained, the Officer-in-Charge may notify the person responsible for 
the structure's maintenance either to remove it or to correct any unsafe 
conditions within a period of 90 days.
    (3) If the structure is not removed or the unsafe condition 
corrected within the time allowed, it may be removed by the Officer-in-
Charge, the cost of such removal to be paid by the party responsible for 
the maintenance of the structure.



Sec. 171.10  Fencing.

    Fences across project rights-of-way will not be constructed without 
the approval of the Officer-in-Charge. The granting of such approval 
shall be dependent upon proper installation so as not interfere with the 
flow of water or the passage of project operators and equipment. In case 
an unauthorized fence is installed, the landowner shall be notified to 
remove it. If it is not removed within a reasonable period of time or 
satisfactory arrangements made with the Officer-in-Charge, it may be 
removed by project personnel at the landowner's expense.



Sec. 171.11  Obstructions.

    No obstructions of any kind including service or farm ditches, will 
be permitted upon project rights-of-way. Due notice will be given to an 
operator or landowner to remove any obstructions. If not removed within 
a reasonable period of time after notice is given, an obstruction will 
be removed by project forces at the expense of the operator or 
landowner.



Sec. 171.12  Rights-of-way.

    (a) Rights-of-way reserved for the project's irrigation system are 
of sufficient width to permit passage and use of equipment necessary for 
construction and proper operation and maintenance of the project's 
canals, laterals, and other irrigation works.
    (b) In the construction of new irrigation projects or extension of 
existing projects, rights-of-way which have not been reserved across 
Indian lands will be obtained in accordance with part 169 of this 
chapter.



Sec. 171.13  Crops and statistical reports.

    An annual project crops and statistical report shall be prepared by 
the Officer-in-Charge. The landowner or farm unit operator shall 
cooperate in furnishing such information as requested.



Sec. 171.14  Carriage agreements and water right applications.

    (a) Pine River Indian Irrigation Project, Colorado. If the Area 
Director determines that there is sufficient capacity in the project's 
carriage and/or distribution system in excess of that required by the 
project he is authorized to enter into carriage agreements with non-
project water users to convey non-project water through project 
facilities for delivery to non-project lands.
    (b) Uintah Indian Irrigation Project, Utah. If the Superintendent 
determines that there is sufficient capacity in the irrigation project's 
carriage and/or distribution system in excess of that required by the 
project, he is authorized to enter into carriage agreements with non-
project water users to convey non-project lands. The Superintendent is 
also authorized to enter into carriage agreements with private 
irrigation or ditch companies for the conveyance of project water 
through non-project facilities for delivery to isolated Indian lands 
that cannot be served from project facilities.
    (c) Wapato Irrigation Project, Washington. The Project Engineer is 
authorized to execute water right applications submitted by landowners 
in the project on behalf of the Secretary of the Interior. Such 
applications should be submitted on the approved Departmental form.



Sec. 171.15  Leaching water.

    (a) The Officer-in-Charge is authorized to furnish irrigation water 
for leaching purposes without the payment of operation and maintenance 
charges to any Indian trust land, or patent in fee land covered by a 
repayment contract, as an aid to improve land within the project that is 
impregnated by alkali or in the development of new project land.

[[Page 485]]

    (b) Delivery of such water will depend upon the availability of 
water and the preparation of a definite plan of operation by the land 
operator satisfactory to the Officer-in-Charge. In addition, the 
operator shall agree to meet such reasonable leaching and cropping 
activities as shall be prescribed by the Officer-in-Charge.
    (c) If prompt and beneficial use of the leaching water is not made 
by or before July 1 of the season for which it is granted, the Officer-
in-Charge may declare the leaching permit forfeited. The normal water 
charges will be considered as assessed and any delinquency enforced as 
though no leaching privilege had been granted.
    (d) In the case of patent in fee lands no water will be delivered 
for leaching purposes until the annual construction costs, when 
assessed, are paid.



Sec. 171.16  Excess water.

    (a) General. On those irrigation projects where a water duty or 
water quota has been established each water user will be notified when 
his quota of water, as covered by the basic assessment and as announced 
in the public notice, has been delivered. In such cases, additional 
irrigation water, if available, may be delivered providing the water 
user so requests it and agrees to pay for the excess water in accordance 
with the excess water provisions as set forth in the public notice.
    (b) Flathead Indian Irrigation Project, Montana. (1) After an 
agreement has been reached by the Commissioners of the irrigation 
district and the Officer-in-Charge as to the duty of water on individual 
tracts where water users claim excess requirements above the duty of 
water established for the project on account of porous or gravelly 
soils, the Officer-in-Charge is authorized to increase the quantity of 
water to be delivered to such tracts.
    (2) The amount of water delivered in such cases will not exceed four 
(4) acre feet per assessable acre except in the Moiese Division where 
the amount shall not exceed six (6) acre feet providing there is 
sufficient water available in Lower Crow Reservoir without having to 
draw on the water supply for the Mission Valley Division.
    (3) The charge for such water shall be at the same general rate as 
established for project land not having such a porous or gravely 
condition.



Sec. 171.17  Delivery of water.

    (a) Irrigation water will not be delivered until the annual 
operation and maintenance assessments are paid in accordance with the 
established annual rate schedule as set forth in the public notice 
issued by the Area Director. Under the following special circumstances, 
this rule may be waived and water delivered to:
    (1) Trust and restricted lands farmed by the Indian owner when the 
Superintendent has certified that the operator is financially unable to 
pay the assessment and he has made arrangements to pay such assessments 
from the proceeds received from the sale of crops or from any other 
source of income. In such cases the unpaid charges will stand as a first 
lien against the land until paid but without penalty on account of 
delinquency.
    (2) Non-Indian lands on which there is an approved deferred payment 
contract executed under the provisions of the Act of June 22, 1936 (49 
Stat, 1803).
    (3) Land on which an adjustment or cancellation of unpaid 
assessments has been recommended and final action is pending.
    (b) Water will not be delivered to Indian trust or restricted land 
that are under lease approved by the Secretary of the Interior or his 
authorized representative acting under delegated authority until the 
lessee has paid the annual assessed operation and maintenance charges.
    (c) No water will be delivered to Indian trust land under a lease 
that has been negotiated by an Indian owner until the owner has paid the 
annual assessed operation and maintenance charges or has made 
satisfactory arrangements for their payment with the Superintendent who 
has so notified the Officer-in-Charge.
    (d) Water will not be delivered to any lands within an irrigation 
district which has executed a repayment contract with the United States 
until all irrigation charges, as assessed, are paid

[[Page 486]]

in accordance with the terms and conditions of the contracts and the 
public notice as issued by the Area Director.
    (e) All irrigation districts may make such rules and regulations as 
they may find necessary in regard to the delivery of the water to water 
users within the district who are delinquent in their payments to the 
district of assessed irrigation charges. Such rules and regulations will 
be adhered to by the Officer-in-Charge when it appears to be in the best 
interests of the United States and the district to do so.
    (f) Water will not be delivered to lands that are subject to 
construction assessments not paid in accordance with part 134 of this 
chapter.
    (g) Flathead Indian Irrigation Project, Montana--(1) Secretarial 
Water Right holders. (i) For all acres recognized by the Secretary of 
the Interior as entitled to a ``Secretarial Water Right'', the Officer-
in-Charge is authorized to carry such water in the project's carriage 
and distribution system and deliver it: Providing, That landowner 
holding such a right requests it and his land is so located that the 
water can be delivered without undue expense to the project. Before this 
service is provided, the landowner must also agree to pay a minimum of 
fifty (50) percent of up to a maximum of one hundred (100) percent of 
the annual operation and maintenance charges as assessed against project 
lands in the same general area as his. Under such agreement the project 
will not be obligated to deliver more than that allowed for each acre of 
land under the Secretary's private water right findings less a 
proportionate share of the project's normal losses in transporting the 
water from the point of entry into the project's system to the point of 
delivery.
    (ii) ``Secretarial Water rights'' are defined as those rights 
allocated to Indian allotments by the Assistant Secretary of the 
Interior by his approval on November 25, 1921, of the findings of the 
Commission appointed by him to investigage the ``private rights'' on the 
Flathead Indian Reservation. Authority: Sec. 9, Act of May 29, 1908 (35 
Stat. 449).
    (2) Pump lands--Flathead Irrigation Project. (i) The Officer-in-
Charge is authorized to deliver irrigation water to lands (pump lands) 
within a project farm unit that are too high to be served from the 
project's gravity flow system: Providing, The holder of legal title to 
the lands so requests it in writing and agrees to have such land 
designated by the Secretary of the Interior or his authorized 
representative as a part of the irrigation project. Land so designated 
shall be subject to the assessment and payment of the pro rata per acre 
share of the project's construction, operation and maintenance costs the 
same as all other lands within the irrigation project in the same 
general area. In addition, such ``pump lands'' shall be obligated to pay 
an additional assessment on an annual basis as determined by the 
Officer-inCharge to defray the cost of pumping the water from the 
Flathead River for those lands in the Mission Valley Division, and from 
the Little Bitterroot Lake for lands in the Camas Division.
    (ii) At the time he submits the request, the landowner must also 
agree in writing to include the ``pump lands'' in an existing irrigation 
district or a district that may be subsequently formed pursuant to the 
laws of the State of Montana. This will not apply to Indian trust or 
restricted lands as such lands cannot be included within an irrigation 
district.
    (iii) A request for the inclusion of ``pump lands'' into the project 
will not be considered until the Officer-in-Charge determines that there 
is sufficient project water available to serve these lands without 
adversely affecting in any way the water entitlement of the designated 
project lands for which the project was designed and constructed.
    (iv) All costs incidental to the pumping and distribution of the 
delivered water from the project farm unit delivery point to the ``pump 
lands'' shall be borne by the landowner.



Sec. 171.18  Service or farm ditches.

    The service or farm ditches into which water is delivered from 
project canals or laterals must have ample capacity and be maintained by 
the water user in proper condition to receive water and convey it to the 
place of use with a minimum of loss. Water delivery

[[Page 487]]

will be refused to such ditches not satisfactorily maintained. Project 
irrigation water shall be put to beneficial use.



Sec. 171.19  Operation and maintenance assessments.

    (a) Operation and maintenance assessments will be levied against the 
acreage within each allotment, farm unit or tribal unit that is 
designated as assessable and to which irrigation water can be delivered 
by the project operators from the constructed works whether water is 
requested or not, unless specified otherwise in this section.
    (1) Colville Indian Irrigation Project, Washington. Operation and 
maintenance assessments will be levied against all patent in fee and 
Indian trust lands to which water can be delivered for irrigation and 
for which an application for water has been made by the water user and 
approved by the Superintendent.
    (2) Wapato Irrigation Project-Toppenish-Simcoe Unit, Washington. 
Operation and maintenance assessments will be levied against all lands 
which can be irrigated from the constructed works for which application 
for water is made annually and approved by the Project Engineer.
    (b) Subdivided farm units--(1) General. (i) Where farm units, as 
defined in Sec. 171.4 have been subdivided into smaller units, the Area 
Director or such official as he may so delegate may, at his discretion, 
fix a higher operation and maintenance rate for such subdivided acreage 
than the rate fixed for the acreage in the original farm unit. In such 
cases the higher rate will also be announced in the annual public 
notice.
    (ii) In the event higher rates are fixed for a subdivided farm unit, 
the individual owners thereof may obtain for their lands the same rate 
as fixed for acreages within farm units not so divided by joining in a 
written contract with the other owners within the subdivided unit. Under 
such a contract, the various owners will appoint an agent in whom shall 
be vested full power and authority to enter into a contract with the 
Area Director, hereafter referred to as the Contracting Officer, or such 
official as he may so authorize, covering the water rights for the 
entire area of the several small acreages: Provided, however, Such 
contract must not represent less acreage than that included in the 
original farm unit unless a smaller unit has been established by project 
regulation as eligible for a subdivision contract; And provided further, 
That whether the contract involves acreage in one or more farm units, it 
must represent contiguous acreages.
    (iii) The contract between the agent of the owners of the small 
tracts and the Contracting Officer shall be executed on or before 
February 1 of the year preceding the next irrigation season. The agent 
shall at the time of the execution of this contract, on a form approved 
by the Secretary of the Interior, furnish a certified copy of the 
contract executed by the several landowners of the subdivided tract 
appointing the agent to act in their behalf.
    (iv) Any owner of a tract within a subdivided unit, with the written 
consent of the owners of a majority of the acreage, under a contract as 
set forth in paragraph (b)(1)(iii) of this section, may voluntarily 
withdraw from the contract by filing a written notice of his intent to 
withdraw with the Contracting Officer on or before February 1 of the 
year, such withdrawal is to be effective, together with the consent of 
the owners of the majority of the acreage endorsed thereon; Provided, 
That, the remaining acreage is contiguous; such withdrawal does not 
reduce the remaining acreage under the contract to less than the acreage 
included in the original farm unit before it was subdivided or less than 
the minimum acreage established on a project as eligible for a 
subdivision contract; and all irrigation charges due under said contract 
have been paid. Upon the receipt of said notice, the Contracting 
Officer, if the notice meets the requirements as herein provided, shall 
note his approval thereon and send a copy thereof to the agent of the 
landowners. Thereafter the land of the withdrawing owner shall no longer 
be subject to the contract.
    (v) If one or more owners under a contract desire to withdraw, and 
if, by so doing, it would reduce the total remaining contiguous acreage 
under the contract to less than the total acreage included in the 
original farm unit, or

[[Page 488]]

the minimum eligible acreage established on the project, the contract 
can be terminated. However, before such a termination can be approved, a 
written notice from the owners of the majority of the acreage must be 
filed with the Contracting Officer indicating their consent to and 
requesting his approval of the termination. The notice must be filed on 
or before February 1 of the year the termination is to become effective, 
and must include the payment of any irrigation charges then due under 
the existing contract. Upon the receipt of the written notice, the 
contracting Officer shall note his approval thereon provided that the 
requirements set forth herein are satisfied. A copy of the approved 
notice will be given to the agent of the landowners concerned.
    (2) Fort Hall Irrigation Project. The Superintendent, Fort Hall 
Agency, is authorized to approve contracts as set forth in this section 
as well as withdrawals or termination of such contracts. However, no 
contracts will be entered into if the total contiguous acreage is less 
than 10 acres.
    (3) Wapato Irrigation Project. The Project Engineer is authorized to 
approve contracts as set forth in paragraph (b) of this section, as well 
as withdrawals or termination of such contracts. However, no contracts 
will be entered into if the total contiguous acreage is less than 40 
acres.



Sec. 171.20  Water users' ledgers.

    (a) Water users' ledgers will be maintained by the Officer-in-Charge 
on all irrigation projects or units where irrigation assessments are 
levied and collected. Separate entries shall be made in the ledger for 
each farm tract, and bills issued to the owner or owners of record. When 
payment is received, it will be credited to the proper ledger account.
    (b) When Indian trust or restricted land is leased and the Officer-
in-Charge has been so advised by the Superintendent, irrigation bills 
will be submitted to the lessee. Upon receipt of payment, it will be 
credited to the Indian owner or owners of record in the ledger account.
    (c) On those projects where irrigation districts have been formed 
and have executed repayment contracts, irrigation bills will be rendered 
to the district. When payment is received, it will be credited to the 
proper ledger accounts.



Sec. 171.21  Health and sanitation.

    Use of Government storage reservoirs, canals, laterals or drains for 
disposal of sewage and trash shall not be permitted under any 
circumstances. If such conditions occur, and project forces are unable 
to correct them, the Officer-in-Charge shall request the Area Director 
to arrange for the necessary legal action.



Sec. 171.22  Complaints.

    All complaints must be made in writing to the Project Engineer or 
the Officer-in-Charge of the project.



Sec. 171.23  Disputes.

    In case of a dispute between a water user and the Project Engineer 
or Officer-in-Charge of the project concerning the application of the 
regulations of this part or a decision rendered by such official, the 
water user within 30 days may appeal to the Area Director. Further 
appeals may be made to the Commissioner of Indian Affairs pursuant to 
part 2 of this chapter.



PART 172--PUEBLO INDIAN LANDS BENEFITED BY IRRIGATION AND DRAINAGE WORKS OF MIDDLE RIO GRANDE CONSERVANCY DISTRICT, NEW MEXICO--Table of Contents




    Authority: 45 Stat. 312.



Sec. 172.1  Acreage designated.

    Pursuant to the provisions of the act of March 13, 1928 (45 Stat. 
312) the contract executed between the Middle Rio Grande Conservancy 
District of New Mexico and the United States under date of December 14, 
1928, the official plan approved pursuant thereto, as modified, and the 
terms of section 24 of a contract between said parties dated September 
4, 1936, dealing among other things with the payment of operation and 
maintenance and betterment assessments by the United States to the 
District, and section 24 of a similar contract dated April 8, 1938 
executed by the representative of the United States, on this date, it is 
found that a

[[Page 489]]

total of 20,242.05 acres of Pueblo Indian lands of the Pueblos of 
Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia and Isleta is 
susceptible of economic irrigation and cultivation and is materially 
benefited by the works constructed by said District. This acreage is 
designated as follows:

Lands with recognized water rights not subject to operation and 
maintenance or betterment charges by the District and designated as 
``now irrigated''--8,847

Lands classified as ``newly reclaimed'' lands (exclusive of the 
purchased area)--11,074.4

Lands classified as newly reclaimed lands (the area recently 
purchased)--320.65

Total irrigable area materially benefited--20,242.05

[22 FR 10641, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 173--CONCESSIONS, PERMITS AND LEASES ON LANDS WITHDRAWN OR ACQUIRED IN CONNECTION WITH INDIAN IRRIGATION PROJECTS--Table of Contents




Sec.
173.0  Scope.
173.1  Terms used.
173.2  Project engineer's authority.
173.3  Enforcement.
173.4  Permits subject to existing and future rights-of-way.
173.5  Plans, approval thereof.
173.6  Stock grazing.
173.7  Permits, transferable.
173.8  Applications.
173.9  Bonds.
173.10  Payments.
173.11  Supervision of permittees' rates.
173.12  Services from project.
173.13  Permit not a lease.
173.14  Further requirements authorized.
173.15  Permittee subject to State law.
173.16  Reserved area, Coolidge Dam.
173.17  Agricultural and grazing permits and leases.
173.18  Term and renewal of permits.
173.19  Improvements.
173.20  Revocation of permits.
173.21  Notice to vacate.
173.22  Disposition of revenue.
173.23  Organized tribes.

    Authority: 52 Stat. 193; 25 U.S.C. 390.

    Source: 22 FR 10642, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 173.0  Scope.

    The regulations in this part are promulgated governing the granting 
of concessions, business, agricultural and grazing leases or permits on 
reservoir sites, reserves for canals or flowage areas, and other lands 
withdrawn or otherwise acquired in connection with the San Carlos, Fort 
Hall, Flathead and Duck Valley or Western Shoshone irrigation projects.



Sec. 173.1  Terms used.

    When used in this part ``Secretary'' refers to the Secretary of the 
Interior; ``project'' to the Federal Indian irrigation project on which 
concession, lease or permit is granted, and ``project engineer'' to the 
engineer in charge of said project.



Sec. 173.2  Project engineer's authority.

    The project engineer is the official charged with the responsibility 
for the enforcement of this part. He is vested with the authority to 
issue temporary concession permits to applicants for periods not to 
exceed 30 days. All except temporary permits shall become effective when 
approved by the Secretary.



Sec. 173.3  Enforcement.

    The project engineer shall enforce these and all project regulations 
now or hereafter promulgated by the Secretary. Willful violation or 
failure to comply with the provisions of this part and all proper orders 
of the project engineer shall be cause for revocation of the permit by 
the Secretary who shall be the judge of what constitutes such violation. 
The project engineer may suspend any permit for cause. The project 
engineer shall, immediately after suspending a permit, submit to the 
Secretary through the Commissioner of Indian Affairs a detailed report 
of the case, accompanied by his reasons for the action and his 
recommendations, for final action by the Secretary.

[[Page 490]]



Sec. 173.4  Permits subject to existing and future rights-of-way.

    Use by the permittee of any land authorized under this part shall be 
subject to the right of the Secretary to establish trails, roads and 
other rights-of-way including improvements thereupon or through the 
premises, and the right to use same by the public. No interference shall 
be permitted with the continued use of all existing roads, trails and 
other rights-of-way and improvements thereon.



Sec. 173.5  Plans, approval thereof.

    No building or other structure shall be erected by permittee except 
in accordance with plans, specifications and locations approved by the 
project engineer. All premises and appurtenances shall be kept in a 
sanitary, safe and sightly condition.



Sec. 173.6  Stock grazing.

    Permittees may graze upon lands covered by such permits, such stock 
as may be required in connection with the purposes for which the permit 
is issued subject to such restrictions and limitations as may be 
prescribed by the project engineer.



Sec. 173.7  Permits, transferable.

    Permits may be transferred only with the approval of the Secretary.



Sec. 173.8  Applications.

    All applications for permits must be made on the approved form. The 
project engineer will furnish copies of this form upon request. All 
applications must be executed in triplicate.



Sec. 173.9  Bonds.

    Except in cases of temporary concession permits, leases, permits, 
and traders' licenses granted under parts 166, 162, and 140 of this 
chapter, which are governed by the requirements of those parts, the 
applicant shall within 60 days after approval of the application furnish 
a surety bond for the faithful performance of the terms of the permit in 
an amount equal to the total sum accruing during the period of the 
permit. Such bond shall be executed by an approved surety company, or by 
at least three individual sureties, whose individual unencumbered assets 
are equal to double the amount of the bond. In the case of temporary 
concession permits, the permittee shall deposit at the time of receiving 
the permit, a sum equal to twice the rental, which sum shall, upon the 
expiration of the permit, be refunded to the permittee, if all the terms 
and conditions of the permit have been met; otherwise, such sum shall be 
retained as liquidated damages.



Sec. 173.10  Payments.

    Each permittee shall pay at the time of receiving the permit the 
first year's charge as fixed therein. When a permit extends over a 
period of years, the next and succeeding payments shall be due and 
payable annually in advance. The full amount accruing under a temporary 
permit shall be paid at the time the application is filed.



Sec. 173.11  Supervision of permittees' rates.

    All rates or charges collected by a permittee for services rendered 
by the permittee in the operation of the concession granted under a 
permit, must be submitted through the project engineer to the Secretary 
for approval. Copies of the approved rate schedule shall be posted in at 
least two conspicuous places on the premises. Approved rates may not be 
changed without first obtaining in the same manner a change in the rate 
schedule. The Secretary shall have the right to readjust rates charged 
from time to time and to amend or change any permit issued. Failure to 
comply with the approved rates automatically makes the permit subject to 
cancellation.



Sec. 173.12  Services from project.

    When the facilities of the project make it possible to supply water 
for domestic purposes, electricity or any other type of service to the 
permittee, the cost of connecting the project facilities shall be borne 
by the permittee and the work must be in accordance with standard 
practices and accepted by the project engineer, and as provided for in 
project regulations. All services rendered by the project to the 
permittee shall be paid for at the existing or modified schedule of 
rates; or if

[[Page 491]]

no schedule has been approved, at a rate to be approved by the Secretary 
which will reasonably reimburse the project for the cost of such 
services.



Sec. 173.13  Permit not a lease.

    Any permit issued under this part does not grant any leasehold 
interest nor cover the sale, barter, merchandising, or renting of any 
supplies or equipment except as therein specified. Any permittee who 
engages in trade with the Indians must also apply for and receive a 
trader's license as provided by part 140 of this chapter.



Sec. 173.14  Further requirements authorized.

    The project engineer is authorized to incorporate into any proposed 
permit to meet the needs of any particular case, subject to the approval 
of the Secretary, such further special requirements as may be agreed 
upon by him and the applicant, such requirements to be consistent with 
the general purposes of this part.



Sec. 173.15  Permittee subject to State law.

    The holder of any permit issued under this part shall be subject to 
and abide by the laws and regulations of the United States and State 
laws if applicable to the conduct of the particular business or activity 
conducted by the permittee. Violations of this section shall render the 
permit void but shall not release the permittee from any obligations 
arising thereunder.



Sec. 173.16  Reserved area, Coolidge Dam.

    No permit for any commercial business or other activity (except 
boating concessions confined to the Soda Spring Canyon) shall be issued 
to any applicant to operate within a radius of three-fourths of a mile 
from the center of the Coolidge Dam, Arizona.



Sec. 173.17  Agricultural and grazing permits and leases.

    (a) Permits or leases may be granted after the lands set forth in 
Sec. 173.0 have been classified as to use and then only for the purpose 
for which the land is classified. Permits for grazing lands suitable for 
division into range units shall be granted in accordance with part 166 
of this chapter; and agricultural lands and all other grazing lands 
shall be leased in accordance with part 166 of this chapter.
    (b) Lands for which leases or permits are granted pursuant to the 
terms and conditions of this part shall not be eligible for benefit 
payments under the provisions and conditions of the Crop Control and 
Soil Conservation Act of April 27, 1935 (49 Stat. 163; 16 U.S.C. 590a), 
as amended by the act of February 29, 1936 (49 Stat. 1148; 16 U.S.C. 
590g), and subsequent amendatory acts.



Sec. 173.18  Term and renewal of permits.

    No concession granted under the provisions of this part shall extend 
for a period in excess of 10 years. An application for the renewal of a 
lease, permit, or concession permit shall be treated in the same manner 
as an original application under this part. Should there be an 
application or applications other than the renewal application for a 
permit covering the same area, the renewal application may, if the 
applicant has met all the requirements of the expiring permit and has 
been a satisfactory permittee, be given preferential consideration for 
the renewal of the permit should the applicant meet the highest and most 
satisfactory offer contained in the several applications.



Sec. 173.19  Improvements.

    Title to improvements constructed on the premises by the permittee 
shall be fixed and determined by the terms of the permit.



Sec. 173.20  Revocation of permits.

    Any permit issued pursuant to this part may be revoked at any time 
within the discretion of the Secretary. Agricultural and grazing leases 
dealt with in Sec. 173.17 shall be subject to cancellation as provided 
for in the respective parts 162 and 166 of this chapter, and the 
conditions of the instruments executed pursuant thereto.



Sec. 173.21  Notice to vacate.

    A permittee shall within 10 days after notification in writing of 
the cancellation of his permit by the Secretary, vacate the premises 
covered by the said permit. Any person occupying lands dealt with in the 
act of April 4, 1938 (52 Stat. 193) without an approved

[[Page 492]]

permit or lease shall be notified in writing by the project engineer of 
the requirements of this part and that for the failure of such person to 
comply with these requirements and receive a permit or lease within 60 
days after receipt of the written notice shall constitute a willful 
violation of this part, and the project engineer shall submit promptly 
to the Commissioner of Indian Affairs a detailed report concerning the 
case, together with recommendations looking to the taking of appropriate 
legal action to remove such person from the area and to the collection 
of such funds to compensate for any use made of the property or damages 
suffered thereto.



Sec. 173.22  Disposition of revenue.

    Funds derived from concessions or leases under this part except 
those so derived from Indian tribal property withdrawn for irrigation 
purposes and for which the tribe has not been compensated, shall be 
available for expenditure under existing law in the operation and 
maintenance of the irrigation project on which collected and as provided 
for in part 161 of this chapter. Funds so derived from Indian tribal 
property withdrawn for irrigation purposes and for which the tribe has 
not been compensated, shall be deposited to the credit of the proper 
tribe.



Sec. 173.23  Organized tribes.

    Concessions and leases on tribal lands withdrawn or reserved for the 
purposes specified in the act of April 4, 1938 (52 Stat. 193) and dealt 
with in this part, of any Indian tribe organized under section 16 of the 
act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) for which the tribe 
has not been compensated shall be made by the organized tribe pursuant 
to its constitution or charter: Provided, No lease or concession so made 
shall be inconsistent with the primary purpose for which the lands were 
reserved or withdrawn.



PART 175--INDIAN ELECTRIC POWER UTILITIES--Table of Contents




                      Subpart A--General Provisions

Sec.
175.1  Definitions.
175.2  Purpose.
175.3  Compliance.
175.4  Authority of area director.
175.5  Operations manual.
175.6  Information collection.

       Subpart B--Service Fees, Electric Power Rates and Revenues

175.10  Revenues collected from power operations.
175.11  Procedures for setting service fees.
175.12  Procedures for adjusting electric power rates except for 
          adjustments due to changes in the cost of purchased power or 
          energy.
175.13  Procedures for adjusting electric power rates to reflect changes 
          in the cost of purchased power or energy.

                Subpart C--Utility Service Administration

175.20  Gratuities.
175.21  Discontinuance of service.
175.22  Requirements for receiving electrical service.
175.23  Customer responsibilities.
175.24  Utility responsibilities.

              Subpart D--Billing, Payments, and Collections

175.30  Billing.
175.31  Methods and terms of payment.
175.32  Collections.

                Subpart E--System Extensions and Upgrades

175.40  Financing of extensions and upgrades.

                        Subpart F--Rights-of-Way

175.50  Obtaining rights-of-way.
175.51  Ownership.

                           Subpart G--Appeals

175.60  Appeals to the area director.
175.61  Appeals to the Interior Board of Indian Appeals.
175.62  Utility actions pending the appeal process.

    Authority: 5 U.S.C. 301; sec. 2, 49 Stat. 1039-1040; 54 Stat. 422; 
sec. 5, 43 Stat. 475-476; 45 Stat. 210-211; and sec. 7, 62 Stat. 273.

    Source: 56 FR 15136, Apr. 15, 1991, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 175.1  Definitions.

    Appellant means any person who files an appeal under this part.

[[Page 493]]

    Area Director means the Bureau of Indian Affairs official in charge 
of a designated Bureau of Indian Affairs Area, or an authorized 
delegate.
    Customer means any individual, business, or government entity which 
is provided, or which seeks to have provided, services of the utility.
    Customer service means the assistance or service provided to 
customers, other than the actual delivery of electric power or energy, 
including but not limited to such items as: Line extension, system 
upgrade, meter testing, connections or disconnection, special meter-
reading, or other assistance or service as provided in the operations 
manual.
    Electric power utility or Utility means that program administered by 
the Bureau of Indian Affairs which provides for the marketing of 
electric power or energy.
    Electric service means the delivery of electric energy or power by 
the utility to the point of delivery pursuant to a service agreement or 
special contract. The requirements for such delivery are set forth in 
the operations manual.
    Officer-in-Charge means the individual designated by the Area 
Director as the official having day-to-day authority and responsibility 
for administering the utility, consistent with this part.
    Operations manual means the utility's written compilation of its 
procedures and practices which govern service provided by the utility.
    Power rates means the charges established in a rate schedule(s) for 
electric service provided to a customer.
    Service means electric service and customer service provided by the 
utility.
    Service agreement means the written form provided by the utility 
which constitutes a binding agreement between the customer and the 
utility for service except for service provided under a special 
contract.
    Service fees means the charge for providing administrative or 
customer service to customers, prospective customers, and other entities 
having business relationships with the utility.
    Special contract means a written agreement between the utility and a 
customer for special conditions of service. A special contract may 
include, but is not limited to, such items as: Street or area lights, 
traffic lights, telephone booths, irrigation pumping, unmetered 
services, system extensions and extended payment agreements.
    Utility office(s) means the current or future facility or facilities 
of the utility which are used for conducting general business with 
customers.



Sec. 175.2  Purpose.

    The purpose of this part is to regulate the electric power utilities 
administered by the Bureau of Indian Affairs.



Sec. 175.3  Compliance.

    All utility customers and the utilities are bound by the rule in 
this part.



Sec. 175.4  Authority of area director.

    The Area Director may delegate authority under this part to the 
Officer-in-Charge except for the authority to set rates as described in 
Secs. 175.10 through 175.13.



Sec. 175.5  Operations manual.

    (a) The Area Director shall establish an operations manual for the 
administration of the utility, consistent with this part and all 
applicable laws and regulations. The Area Director shall amend the 
operations manual as needed.
    (b) The public shall be notified by the Area Director of a proposed 
action to establish or amend the operations manual. Notices of the 
proposed action shall be published in local newspaper(s) of general 
circulation, posted at the utility office(s), and provided by such other 
means, if any, as determined by the Area Director. The notice shall 
contain: A brief description of the proposed action; the effective date; 
the name, address, and telephone number for addressing comments and 
inquiries; and the period of time in which comments will be received. 
Notices shall be published and posted at least 30 days before the 
scheduled effective date of the operations manual, or amendments 
thereto.
    (c) After giving consideration to all comments received, the Area 
Director shall establish or amend the operations manual, as appropriate. 
A notice of the Area Director's decision and the basis for the decision 
shall be published and

[[Page 494]]

posted in the same manner as the previous notices.



Sec. 175.6  Information collection.

    The information collection requirements contained in Sec. 175.22 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance number 1076-0021. This 
information is being collected to provide electric power service to 
customers. Response to this request is ``required to obtain a benefit.'' 
Public reporting for this information collection is estimated to average 
.5 hours per response, including the time for reviewing instructions, 
gathering and maintaining data, and completing and reviewing the 
information collection. Direct comments regarding the burden estimate or 
any other aspect of this information collection to the Bureau of Indian 
Affairs, Information Collection Clearance Officer, room 337-SIB, 1849 C 
Street, NW., Washington, DC 20240; and the Office of Information and 
Regulatory Affairs, Project 1076-0021, Office of Management and Budget, 
Washington, DC 20502.



       Subpart B--Service Fees, Electric Power Rates and Revenues



Sec. 175.10  Revenues collected from power operations.

    The Area Director shall set service fees and electric power rates in 
accordance with the procedures in Secs. 175.11 and 175.12 to generate 
power revenue.
    (a) Revenues. Revenues collected from power operations shall be 
administered for the following purposes, as provided in the Act of 
August 7, 1946 (60 Stat. 895), as amended by the Act of August 31, 1951 
(65 Stat. 254):
    (1) Payment of the expenses of operating and maintaining the 
utility;
    (2) Creation and maintenance of reserve Funds to be available for 
making repairs and replacements to, defraying emergency expenses for, 
and insuring continuous operation of the utility;
    (3) Amortization, in accordance with repayment provisions of the 
applicable statutes or contracts, of construction costs allocated to be 
returned from power revenues; and
    (4) Payment of other expenses and obligations chargeable to power 
revenues to the extent required or permitted by law.
    (b) Rate and fee reviews. Rates and fees shall be reviewed at least 
annually to determine if project revenues are sufficient to meet the 
requirements set forth in paragraph (a) of this section. The review 
process shall be as prescribed by the Area Director.



Sec. 175.11  Procedures for setting service fees.

    The Area Director shall establish, and amend as needed, service fees 
to cover the expense of customer service. Service fees shall be set by 
unilateral action of the Area Director and remain in effect until 
amended by the Area Director pursuant to this section. At least 30 days 
prior to the effective date, a schedule of the service fees, together 
with the effective date, shall be published in local newspaper(s) of 
general circulation and posted in the utility office(s). The Area 
Director's decision shall be final for the Department of the Interior.



Sec. 175.12  Procedures for adjusting electric power rates except for adjustments due to changes in the cost of purchased power or energy.

    Except for adjustments to rates due to changes in the cost of 
purchased power or energy, the Area Director shall adjust electric power 
rates according to the following procedures:
    (a) Whenever the review described in Sec. 175.10(b) of this part 
indicates that an adjustment in rates may be necessary for reasons other 
than a change in cost of purchased power or energy, the Area Director 
shall direct further studies to determine whether a rate adjustment is 
necessary and, if indicated, prepare rate schedules.
    (b) Upon completion of the rate studies, and where a rate adjustment 
has been determined necessary, the Area Director shall conduct public 
information meetings as follows:
    (1) Notices of public meetings shall be published in local 
newspapers of general circulation, posted at the utility office(s), and 
provided by such other means, if any, as determined by the Area 
Director. The notice shall provide: The date, time, and place of

[[Page 495]]

the scheduled meeting; a brief description of the action; the name, the 
address, and the telephone number for addressing comments and inquiries; 
and the period of time in which comments will be received. Notices shall 
be published and posted at least 15 days before the scheduled date of 
the meeting.
    (2) Written and oral statements shall be received at the public 
meetings. The record of the public meeting shall remain open for the 
filing of written statements for five days following the meeting.
    (c) After giving consideration to all written and oral statements, 
the Area Director shall make a decision about a rate adjustment. A 
notice of the Area Director's decision, the basis for the decision, and 
the adjusted rate schedule(s), if any, shall be published and posted in 
the same manner as the previous notices of public meetings.
    (d) Rates shall remain in effect until further adjustments are 
approved by the Area Director pursuant to this part.



Sec. 175.13   Procedures for adjusting electric power rates to reflect changes in the cost of purchased power or energy.

    Whenever the cost of purchased power or energy changes, the effect 
of the change on the cost of service shall be determined and the Area 
Director shall adjust the power rates accordingly. Rate adjustments due 
to the change in cost of purchased power or energy shall become 
effective upon the unilateral action of the Area Director and shall 
remain in effect until amended by the Area Director pursuant to this 
section. A notice of the rate adjustment, the basis for the adjustment, 
the rate schedule(s) shall be published and posted in the same manner as 
described in Sec. 175.12(c) of this part. The Area Director's decision 
shall be final for the Department of the Interior.



                Subpart C--Utility Service Administration



Sec. 175.20   Gratuities.

    All employees of the utility are forbidden to accept from a customer 
any personal compensation or gratuity rendered related to employment by 
the utility.



Sec. 175.21   Discontinuance of service.

    Failure of customer(s) to comply with utility requirements as set 
forth in this part and the operations manual may result in 
discontinuance of service. The procedure(s) for discontinuance of 
service shall be set forth in the operations manual.



Sec. 175.22   Requirements for receiving electrical service.

    In addition to the other requirements of this part, the customer, in 
order to receive electrical service, shall enter into a written service 
agreement or special contract for electrical power services.



Sec. 175.23   Customer responsibilities.

    The customer(s) of a utility subject to this part shall:
    (a) Comply with the National Electrical Manufacturers Association 
Standards and/or the National Electrical Code of the National Board of 
Fire Underwriters for Electric Wiring and Apparatus as they apply to the 
installation and operation of customer-owned equipment;
    (b) Be responsible for payment of all financial obligations 
resulting from receiving utility service;
    (c) Comply with additional requirements as further defined in the 
operations manual;
    (d) Not operate or handle the utility's facilities without the 
express permission of the utility;
    (e) Not allow the unauthorized-use of electricity; and
    (f) Not install or utilize equipment which will adversely affect the 
utility system or other customers of the utility.



Sec. 175.24   Utility responsibilities.

    A utility subject to this part shall:
    (a) Endeavor to provide safe and reliable energy to its customers. 
The specific types of service and limitations shall be further defined 
in the operations manual;
    (b) Construct and operate facilities in accordance with accepted 
industry practice;

[[Page 496]]

    (c) Exercise reasonable care in protecting customer-owned equipment 
and property;
    (d) Comply with additional requirements as further defined in the 
operations manual;
    (e) Read meters or authorize the customer(s) to read meters at 
intervals prescribed in the operations manual, service agreement, or 
special contract, except in those situations where the meter cannot be 
read due to conditions described in the operations manual;
    (f) Not operate or handle customer-owned equipment without the 
express permission of the customer, except to eliminate what, in the 
judgment of the utility, is an unsafe condition; and
    (g) Not allow the unauthorized use of electricity.



              Subpart D--Billing, Payments, and Collections



Sec. 175.30   Billing.

    (a) Metered customers. The utility shall render bills at monthly 
intervals unless otherwise provided in special contracts. Bills shall be 
based on the applicable rate schedule(s). Unless otherwise determined, 
the amount of energy and/or power demand used by the customer shall be 
as determined from the register on the utility's meter at the customer's 
point of delivery. A reasonable estimate of the amount of energy and/or 
power demand may be made by the utility in the event a meter is found 
with the seal broken, the utility's meter fails, utility personnel are 
unable to obtain actual meter registrations, or as otherwise agreed by 
the customer and the utility. Estimates shall be based on the pattern of 
the customer's prior consumption, or on an estimate of the customer's 
electric load where no billing history exists.
    (b) Unmetered customers. Bills shall be determined and rendered as 
provided in the customer's special contract.
    (c) Service fee billing. The utility shall render service fee bills 
to the customer(s) as a special billing.



Sec. 175.31   Methods and terms of payment.

    Payments shall be made in person or by mail to the utility's office 
designated in the operations manual. The utility may refuse, for cause, 
to accept personal checks for payment of bills.



Sec. 175.32   Collections.

    The utility shall attempt collection on checks returned by the 
customer's bank due to insufficient funds or other cause. An 
administrative fee shall be charged for each collection action taken by 
the utility other than court proceedings. An unredeemed check shall 
cause the customer's account to become delinquent, which may be cause 
for discontinuance of service. Only legal tender, a cashier's check, or 
a money order shall be accepted by the utility to cover an unredeemed 
check and associated charges.



                Subpart E--System Extensions and Upgrades



Sec. 175.40   Financing of extensions and upgrades.

    (a) The utility may extend or upgrade its electric system to serve 
additional loads (new or increased loads).
    (b) If funds are not available, but the construction would not be 
adverse to the interests of the utility, a customer may contract with 
the utility to finance all necessary construction.
    (1) A customer may be allowed to furnish required material or 
equipment for an extension or upgrade or to install such items or to pay 
the utility for such installation. Any items furnished or construction 
performed by the customer shall comply with the applicable plans and 
specifications approved by the utility.
    (2) The utility may arrange to refund all or part of a customer's 
payment of construction costs if additional customers are later served 
by the same extension or if the Area Director determines that the 
service will provide substantial economic benefits to the utility. All 
arrangements for refunds shall be stipulated in a special contract.

[[Page 497]]



                        Subpart F--Rights-of-Way



Sec. 175.50   Obtaining rights-of-way.

    Where there is no existing right(s)-of-way for the utility's 
facilities, the customer shall be responsible for obtaining all rights-
of-way necessary to the furnishing of service.



Sec. 175.51  Ownership.

    All rights-of-way, material, or equipment furnished and/or installed 
by a customer pursuant to this part shall be and remain the property of 
the United States.



                           Subpart G--Appeals



Sec. 175.60   Appeals to the area director.

    (a) Any person adversely affected by a decision made under this part 
by a person under the authority of an Area Director may file a notice of 
appeal with the Area Director within 30 days of the personal delivery or 
mailing of the decision. The notice of appeal shall be in writing and 
shall clearly identify the decision being appealed. No extension of time 
shall be granted for filing a notice of appeal.
    (b) Within 30 days after a notice of appeal has been filed, the 
appellant shall file a statement of reason(s) with the Area Director. 
The statement of reason(s) shall explain why the appellant believes the 
decision being appealed is in error, and shall include any argument(s) 
that the appellant wishes to make and any supporting document(s). The 
statement of reason(s) may be filed at the same time as the notice of 
appeal. If no statement of reason(s) is filed, the Area Director may 
summarily dismiss the appeal.
    (c) Documents are properly filed with the Area Director when they 
are received in the facility officially designated for receipt of mail 
addressed to the Area Director, or in the immediate office of the Area 
Director.
    (d) Within 30 days of filing of the statement of reason(s), the Area 
Director shall:
    (1) Render a written decision on the appeal, or
    (2) Refer the appeal to the Office of Hearings and Appeals Board of 
Indian Appeals for decision.
    (e) Where the Area Director has not rendered a decision with 30 days 
of filing of the statement of reasons, the appellant may file an appeal 
with the Office of Hearings and Appeals Board of Indian Appeals pursuant 
to Sec. 175.61.



Sec. 175.61   Appeals to the Interior Board of Indian Appeals.

    (a) An Area Director's decision under this part, except a decision 
under Sec. 175.11 or 175.13, may be appealed to the Office of Hearings 
and Appeals Board of Indian Appeals pursuant to the provisions of 43 CFR 
part 4, subpart D, except that a notice of appeal from a decision under 
Sec. 175.12 shall be filed within 30 days of publication of the 
decision. The address for the Interior Board of Indian Appeals shall be 
included in the operations manual.
    (b) Where the Area Director determines to refer an appeal to the 
Office of Hearings and Appeals Board of Indian Appeals, in lieu of 
deciding the appeal, he/she shall be responsible for making the 
referral.
    (c) If no appeal is timely filed with the Office of Hearings and 
Appeals Board of Indian Appeals, the Area Director's decision shall be 
final for the Department of the Interior.



Sec. 175.62   Utility actions pending the appeal process.

    Pending an appeal, utility actions relating to the subject of the 
appeal shall be as follows:
    (a) If the appeal involves discontinuance of service, the utility is 
not required to resume such service during the appeal process unless the 
customer meets the utility's requirements.
    (b) If the appeal involves the amount of a bill and:
    (1) The customer has paid the bill, the customer shall be deemed to 
have paid the bill under protest until the final decision has been 
rendered on the appeal; or
    (2) The customer has not paid the bill and the final decision 
rendered in the appeal requires payment of the bill, the bill shall be 
handled as a delinquent account and the amount of the bill shall be 
subject to interest, penalties, and administrative costs pursuant to 
section 3 of the Federal Claims Collection Act of 1966, As amended, 31 
U.S.C. 3717.

[[Page 498]]

    (c) If the appeal involves an electric power rate, the rate shall be 
implemented and remain in effect subject to the final decision on the 
appeal.



PART 178--RESALE OF LANDS WITHIN THE BADLANDS AIR FORCE GUNNERY RANGE (PINE RIDGE AERIAL GUNNERY RANGE)--Table of Contents




Sec.
178.1  Purpose.
178.2  Definitions.
178.3  Eligibility to purchase.
178.4  Notice to former owners.
178.5  Special notice to former Indian owners.
178.6  Applications by former owners.
178.7  Conveyance documents.
178.8  Selection of lieu lands.
178.9  Lands formerly held subject to restrictions against alienation.

    Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2; 16 U.S.C. 3; 
82 Stat. 663.

    Source: 34 FR 9985, June 28, 1969, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 178.1  Purpose.

    The regulations in this part govern the reacquisition by former 
Indian and non-Indian owners of lands, or interests therein, acquired by 
the United States of America as a part of the Badlands Air Force Gunnery 
Range, sometimes referred to and known as the Pine Ridge Aerial Gunnery 
Range. The regulations also govern the acquisition by former Indian 
owners of life estates in national monument lands formerly owned by them 
and the acquisition of lieu lands when lands formerly owned by them are 
not available or are not desired by them for reacquisition. The 
legislative authority for reacquisition of lands or interests therein by 
former owners is the Act of August 8, 1968 (Pub. L. 90-468; 82 Stat. 
663).



Sec. 178.2  Definitions.

    (a) ``Secretary'' means the Secretary of the Interior or his duly 
authorized representative.
    (b) ``Superintendent'' means the officer in charge of the Pine Ridge 
Indian Agency, Pine Ridge, S. Dak.
    (c) ``Act'' means the Act of August 8, 1968 (Pub. L. 90-468; 82 
Stat. 663).
    (d) ``Gunnery Range'' means the area on the Pine Ridge Indian 
Reservation in South Dakota that was acquired by the United States for 
use of the Air Force commonly known as the Pine Ridge Aerial Gunnery 
Range or the Badlands Air Force Gunnery Range.
    (e) ``Monument'' means the Badlands National Monument as enlarged by 
section 1 of the Act of August 8, 1968 (Pub. L. 90-468).
    (f) ``Tribe'' means the Oglala Sioux Tribe of Indians of South 
Dakota.



Sec. 178.3  Eligibility to purchase.

    (a) Any former owner of a tract of land or interest in a tract of 
land, whether title was held in trust or in fee, which was acquired by 
the United States as a part of the Gunnery Range may purchase such tract 
pursuant to the provisions of the Act and the regulations set forth in 
this part: Provided, Said tract has been declared excess to the needs of 
the Department of the Air Force, has been transferred to the 
administrative jurisdiction of the Secretary of the Interior, and is not 
within the boundaries of the Monument or within that portion of the 
Gunnery Range retained for use of the Department of the Air Force.
    (b) If a former owner is deceased and is survived by a spouse, the 
spouse may purchase under the same terms and conditions as the former 
owner except that if the former owner was an Indian whose land was held 
in trust and his surviving spouse is a non-Indian, the title to said 
tract shall be conveyed to the non-Indian spouse in a fee simple status.
    (c) If the former owner is deceased and the spouse is also deceased, 
the children of the former owner may repurchase the tract.
    (d) If the former owner is not survived by a spouse or children 
there exist no repurchase rights involving the tract.
    (e) Not more than five former owners may join in purchasing a tract 
of land. ``Former owner'' means each person from whom the United States 
acquired an interest in a tract of land, or if such person is deceased, 
the surviving spouse, or if such spouse is deceased, his children. If 
more than five former owners apply to acquire a tract, the 
Superintendent shall notify them in writing that it will be necessary 
for

[[Page 499]]

them to agree among themselves as to the five or less of them who shall 
acquire the tract. If agreement among the owners is obtained, those 
individuals who are to acquire the tract shall then file an application 
to purchase it. The matter of reaching agreement among the owners is the 
sole responsibility of said owners and not the responsibility of the 
Department of the Interior and/or the Bureau of Indian Affairs to 
participate in the negotiations between the owners. If the former owners 
fail to reach such an agreement, all applications for the tract shall be 
rejected.



Sec. 178.4  Notice to former owners.

    After publication of these regulations, there shall be published in 
the Federal Register notice that certain described lands and interests 
in lands have been transferred to the administrative jurisdiction of the 
Secretary and are available for repurchase by the former owners pursuant 
to section 3(b) of the Act. Upon transfer of administrative jurisdiction 
over lands that may thereafter be declared excess to the needs of the 
Department of the Air Force and acceptance by the Secretary, notice of 
such transfer shall be published in the Federal Register. No attempt 
shall be made to notify each individual former non-Indian owner 
personally, but the transfer of jurisdiction to the Secretary may be 
further publicized by the publishing of notice in a local newspaper of 
general circulation.



Sec. 178.5  Special notice to former Indian owners.

    (a) The Superintendent shall notify the former Indian owners, in 
writing, at their last known addresses of their right to repurchase the 
tracts formerly owned by them in those instances where the tracts are 
outside of the boundaries of the Monument and are outside of the 
boundaries of the area of the Gunnery Range retained by the Department 
of the Air Force. Such notice shall include (1) the legal description; 
(2) the purchase price thereof; (3) the minimum amount of down payment 
required; (4) a recital that balance of purchase price may be paid in 20 
annual installments; (5) the annual rate of interest on unpaid balance; 
(6) information whether title is to be taken in trust or in fee; and (7) 
the date by which the executed application to purchase must be received 
in the office of the Superintendent. A form of application for execution 
by the former owners shall accompany said notice, said application to 
include the legal description of the land, purchase price and other 
pertinent information.
    (b) In those instances where the tracts of land or portions thereof 
are within the boundaries of the area of the Gunnery Range retained by 
the Department of the Air Force, the Superintendent shall notify the 
former Indian owners, in writing, at their last known addresses that 
they may elect to purchase available tracts of land in lieu of the lands 
formerly owned by them, said lieu lands to be of substantially the same 
value as the tracts originally owned by them. Such notice shall also 
advise said former owners that they may, as an alternative, elect to 
purchase the tracts formerly owned by them at such time as the tracts 
may be declared excess to the needs of the Department of the Air Force 
and transferred to the Secretary of the Interior. As to this 
alternative, no promise or prediction may be made as to when, or 
whether, the land may eventually become surplus to the needs of the 
Department of the Air Force, and the notice shall specifically so state. 
Such notice shall include (1) the legal description of the land formerly 
owned by them; (2) the purchase price of the lieu land which price shall 
be computed on the same basis as though the original tract were 
available; (3) the minimum amount of down payment required; (4) a 
recital that balance of purchase price may be paid in 20 annual 
installments; (5) the annual rate of interest on unpaid balance; (6) 
information whether title is to be taken in trust or in fee; and (7) the 
date by which election to purchase lieu lands or wait until lands 
formerly owned by them are declared excess must be received in the 
office of the Superintendent. The notice shall be accompanied by a form 
for execution by the former owner whereby said owner elects to purchase 
lieu lands or to repurchase the tract formerly owned by said owner when 
it is declared excess.

[[Page 500]]

    (c) In those instances where a tract of land or portion thereof is 
within the boundaries of the Monument, the Superintendent shall notify 
the former Indian owner, in writing, at his last known address that he 
may elect to acquire a life estate in such tract or portion thereof at 
no cost but subject to the restrictions on use referred to under 
``Conveyance Documents'' (Sec.  257.7). Such notice shall include the 
legal description of the lands formerly owned by him upon which he may 
acquire a life estate. The notice shall also inform the former owner 
that he may elect to purchase any available tract of land in lieu of the 
lands formerly owned by him, said lieu lands to have substantially the 
same values as the tract originally owned by him. Such notice shall 
include (1) the purchase price of the lieu land which price shall be 
computed on the same basis as though the original tract were available 
for purchase; (2) the minimum amount of down payment required; (3) a 
recital that balance of purchase price may be paid in 20 annual 
installments; (4) the annual rate of interest on unpaid balance; (5) 
information whether title is to be taken in trust or in fee; and (6) the 
date by which the election to acquire the life estate or lieu lands must 
be received in the Office of the Superintendent. Such notice shall be 
accompanied by a form for execution by the former owner whereby said 
owner elects to acquire a life estate in the lands formerly owned by 
said owner or elects to purchase lieu lands.



Sec. 178.6  Applications by former owners.

    (a) Applications by former Indian owners to purchase lands formerly 
owned by them, or to purchase lieu lands, or to take a life estate in a 
tract of land within the Monument area should be made on forms furnished 
by the Superintendent and filed within the period specified in section 
3(b) (5) of the Act. Such applications shall be filed in the Office of 
the Superintendent.
    (b) A former non-Indian owner may file application to purchase land 
pursuant to section 3(b) of the Act within 1 year from the date notice 
is published in the Federal Register that the land he formerly owned has 
been declared excess to the needs of the Department of the Air Force and 
has been transferred to the Secretary. Such application shall be filed 
in the Office of the Superintendent. The applicant shall furnish proof 
of his ownership or the ownership of his predecessor in interest at the 
time of the acquisition of the land by the United States. Upon receipt 
of an application to purchase and proof of ownership the Superintendent 
shall cause the land to be appraised and thereafter he shall inform the 
applicant in writing of the fair market value of the tract which shall 
be the purchase price, the minimum amount of down payment required, that 
the balance of the purchase price may be paid in 20 annual installments, 
and the annual rate of interest on the unpaid balance.



Sec. 178.7  Conveyance documents.

    (a) Where there is an election by a former Indian owner of a tract 
of land within the monument boundary to acquire a life estate in such 
tract at no cost the following types of provisions and restrictions 
shall be applicable to the use thereof:
    (1) Agricultural uses are permitted. Only those commercial 
activities associated with normal agricultural operations would be 
allowed.
    (2) Construction or reconstruction of any roads to the property, 
including locations and materials used, are subject to approval by the 
National Park Service.
    (3) Mining activities of all kinds are prohibited inasmuch as the 
United States retains all mineral rights.
    (4) Residential and other facilities necessary for, or incidental 
to, ranching and other agricultural purposes are permitted. This 
includes, but is not limited to, barns, sheds, fences, stock dams, wells 
utilizing surface or subsurface water, and other needed access accessory 
structures.
    (5) The cutting of native trees, except for firewood for the 
personal use of the grantee, his family or assignee, is prohibited 
unless determined by the National Park Service to be essential to the 
permitted use of the tract.
    (6) All improvements and structures are subject to removal upon 
termination of the life estate or they shall

[[Page 501]]

be deemed to become the property of the United States. The family or 
assignee of the grantee shall have a reasonable time to vacate the 
premises upon termination of the life estate and may harvest annual 
crops planted during the tenure of the estate.
    (7) Water rights owned by the United States in the premises remain 
vested in the United States, but the grantee has a right to reasonable 
use of the water.
    (8) Grantee must observe and adhere to all applicable Federal, 
State, and local laws and regulations, including Federal laws and 
regulations for the protection of the black-footed ferret and other 
wildlife in the Monument. The United States reserves the right to enter 
upon the conveyed lands to assure such compliance and for the exercise 
of any other rights and privileges reserved to it.
    (9) The conveyed premises must be kept in a neat and orderly 
condition and no waste or injury may be committed to the land. Pollution 
of water on or adjacent to the property is prohibited.
    (10) Reasonable precautions must be taken to prevent, suppress, and 
extinguish forest, brush, grass, and other fires on the property.
    (11) Grantee may not claim damages for injury by or against the 
United States which might be directly attributable to existence of the 
Monument.
    (12) Other provisions deemed necessary by the National Park Service 
in individual circumstances may be included in the conveyance document.
    (b) When title to the land being acquired is to be taken in trust 
for the purchaser and the purchase is effected by deferred payments as 
authorized in section 3(b)(2) of the Act, a sale contract shall be 
executed by the purchaser and the Secretary. The down payment shall be 
not less than $100 or 20 per centum of the purchase price, whichever is 
less. The purchaser shall be entitled to a credit of a pro rata share of 
the grazing fees collected by the United States for use of the land 
during the grazing year in which the sale contract is executed, which 
credit shall be applied as all or a part of the down payment for the 
land being purchased. In the event the proportionate share of the 
grazing fees credited to the purchaser is less than the required down 
payment, the purchaser shall pay the balance of the down payment in 
cash, or by certified check, cashier's check, money order, or U.S. 
Treasury check, payable to the Bureau of Indian Affairs at the time the 
sale contract is executed. Upon execution of the contract by the 
Secretary, a deed shall be prepared and executed by the Secretary 
conveying title to the land to the United States in trust for the 
purchaser. When the sale contract and deed are executed, the balance of 
the proportionate share of the grazing fees, if any, due the purchaser 
shall be paid to him and the down payment shall be deposited in the U.S. 
Treasury to the credit of the United States as general fund receipts. 
All subsequent installment payments shall be deposited in a like manner 
to the credit of the United States. The sale contract shall include (1) 
the legal description of the land; (2) the purchase price; (3) the 
amount of down payment; (4) the amount of annual principal installment 
payments; (5) the annual rate of interest on unpaid balance; (6) the due 
dates of annual installments; (7) a recital that the unpaid balance is a 
lien against the land and against all rents, bonuses and royalties 
received therefrom; (8) a recital that a delinquency of 90 days in 
making annual installment payments will subject the contract to 
foreclosure with loss of all payments theretofore made thereon; and (9) 
a recital that upon payment being made in full the deed to the United 
States in trust for the purchaser will be delivered to the purchaser.
    (c) If title to the tract is acquired in a trust status and full 
payment therefor is made by the purchaser at the time the application 
for purchase is approved, the title shall be conveyed to the United 
States of America in trust for the purchaser by a deed executed by the 
Secretary.
    (d) If the purchaser is to acquire the tract in a fee status and the 
purchase is effected by deferred payments as authorized in section 
3(b)(2) of the Act, the title shall be conveyed to the purchaser in a 
fee status by a deed executed by the Secretary. The purchaser shall 
execute a mortgage naming the United States as mortgagee and shall

[[Page 502]]

execute promissory notes for the annual installment payments with the 
annual rate of interest set forth therein. The deed and mortgage shall 
be recorded in the office of the register of deeds of the county in 
which the land is situated, the recording costs to be borne by the 
purchaser. Upon payment of the full amount of the mortgage a 
satisfaction of mortgage shall be executed by the Secretary and 
delivered to the purchaser who shall be responsible for recordation 
thereof in the office of the register of deeds.
    (e) If the purchaser is to acquire the tract in a fee status and 
full payment therefor is made by the purchaser at the time the 
application for purchase is approved, the title shall be conveyed to 
said purchaser in a fee status by a deed executed by the Secretary. The 
purchaser shall be responsible for recordation of the deed in the office 
of the register of deeds of the county in which the land is situated.
    (f) Each deed executed pursuant to paragraphs (c), (d), and (e) of 
this section shall contain a provision that if the tract is offered for 
sale by the purchaser within a period of 10 years from the date of said 
deed, the tribe shall be notified in writing that the tract is being 
offered for sale and of the terms of the offer and said tribe shall have 
a period of 60 days to exercise a right of first refusal to purchase 
such tract upon the terms set forth in the notice.
    (g) All sale documents referred to in this section shall be recorded 
in the office of the Bureau of Indian Affairs having custody of the land 
title records of the Pine Ridge Indian Reservation pursuant to 25 CFR 
part 150.



Sec. 178.8  Selection of lieu lands.

    (a) Lieu lands which may be selected for purchase by former Indian 
owners whose lands are within the boundaries of the area retained for 
use by the Department of the Air Force or are within the boundaries of 
the Monument are defined as (1) those lands heretofore acquired by the 
United States for use of the Air Force Gunnery Range which are outside 
the boundaries of the Monument and outside the boundaries of the area 
retained for use by the Department of the Air Force which are not 
selected for repurchase by former owners within 1 year from date of 
publication of the notice prescribed in section 3(b)(5) of the Act, and 
(2) all of the submarginal lands acquired by the United States under 
authority of the National Industrial Recovery Act of 1933 and subsequent 
relief acts, within the Pine Ridge Indian Reservation, except those 
submarginal lands within the area retained for use by the Department of 
the Air Force or within the Monument, administrative jurisdiction over 
which was transferred to the Secretary of the Interior by Executive 
Order No. 7368, dated April 15, 1938.
    (b) The former Indian owners whose lands are within the boundaries 
of the area retained for use by the Department of the Air Force or are 
within the boundaries of the Monument may elect to purchase lieu lands 
of substantially the same value pursuant to section 4(b) and section 
4(c) of the Act. Inasmuch as identification of all of the lands from 
which lieu selections may be made cannot be determined until the time 
has expired for former owners of lands outside of the area used by the 
Department of the Air Force and outside the boundaries of the Monument 
to purchase the tracts formerly owned by them, former owners who have 
filed an election to purchase lieu lands within 1 year from the date of 
publication of the notice prescribed in section 3(b)(5) of the Act, 
shall be deemed to have filed a timely application to purchase 
notwithstanding the fact that a specific tract of land has not been 
designated in said election.
    (c) Upon the expiration of 1 year from date of publication of the 
notice prescribed in section 3(b)(5) of the Act, the Superintendent 
shall prepare a complete list of all lands available from which 
selections of lieu lands may be made. The Superintendent shall also 
prepare a list of all former owners who elected to purchase lieu lands, 
numbering them consecutively without regard as to date of receipt of 
such election. The numbers shall then be placed on separate uniform 
slips of paper and placed in a bowl. The numbers will then be withdrawn 
from the bowl and a record made of the order in which they were 
withdrawn. The owner of the first number withdrawn shall be afforded the 
first opportunity to select lieu

[[Page 503]]

lands. The owners of lands represented by the following numbers will be 
afforded an opportunity to select lieu lands in the priority in which 
their numbers were drawn.
    (d) When all selections of lieu lands have been made as provided in 
paragraph (c) of this section, the Secretary shall determine the 
comparability of the lands originally owned and the lieu selections. If 
the lieu selections are not substantially the same value as the lands 
originally owned, the owners shall be afforded an opportunity to make 
other selections which are substantially the same value.
    (e) To determine whether the former Indian owned land and the 
selected lieu land in each case are of substantially the same value, the 
consideration paid by the United States for each tract may be accepted 
as indicative of the value of each tract at the time it was acquired. If 
information as to the price paid for any specific tract is not 
available, or if for any reason it is concluded that the consideration 
paid by the United States for the land is not acceptable evidence as to 
value for this purpose, the Secretary shall cause the tracts to be 
appraised to determine their comparability. The appraisals of lands 
shall be made on the basis of current market values. The lands shall be 
considered to be substantially the same value if the differences in 
values do not exceed 10 percent of the greater value.



Sec. 178.9  Lands formerly held subject to restrictions against alienation.

    Former Indian owners who held title to the lands which were acquired 
for the gunnery range subject to restrictions against alienation without 
the approval of the Secretary of the Interior shall be conveyed title to 
the reacquired lands in a trust status in the same manner as though they 
had held trust title to the lands taken.



PART 179--LIFE ESTATES AND FUTURE INTERESTS--Table of Contents




Sec.
179.1  Purpose, scope, and information collection.
179.2  Definitions.
179.3  Application of State law.
179.4  Distribution of principal and income.
179.5  Value of life estates and remainders.
179.6  Notice of termination of life estate.

    Authority: 86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat. 2515; 
25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201-11.

    Source: 53 FR 25953, July 8, 1988, unless otherwise noted.

    Cross Reference: For regulations pertaining to income, rents, 
profits, bonuses and principal from Indian lands and the recording of 
title documents pertaining thereto, see parts 150, Land Records and 
Title Documents; 152, Issuance of Patents in Fee, Certificates of 
Competency, Removal of Restrictions, and Sale of Certain Indian Lands; 
162, Leasing and Permitting; 163, General Forest Regulations; 166, 
General Grazing Regulations; 169, Rights-of-Way over Indian Lands; 170, 
Roads of the Bureau of Indian Affairs; 212, Leasing of Allotted Lands 
for Mining; 213, Leasing of Restricted Lands of Members of the Five 
Civilized Tribes, Oklahoma, for Mining; 215, Lead and Zinc Mining 
Operations and Leases, Quapaw Agency.



Sec. 179.1  Purpose, scope, and information collection.

    (a) These regulations set forth the authorities, policy and 
procedures governing the administration of life estates and future 
interests in Indian lands by the Secretary of the Interior. These 
regulations do not apply to any use rights assigned by tribes, in the 
exercise of their jurisdiction over tribal lands, to tribal members.
    (b) These regulations do not contain information collection 
requirements which require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501 et seq.



Sec. 179.2  Definitions.

    ``Agency'' means an Indian Agency or other field unit of the Bureau 
of Indian Affairs having the Indian land under its immediate 
jurisdiction.
    ``Contract Bonus'' means cash consideration paid or agreed to be 
paid as incentive for execution of the contract.
    ``Income'' means the rents and profits of real property and the 
interest on invested principal.
    ``Indian Land'' means all lands held in trust by the United States 
for individual Indians or tribes; or all lands, titles to which are held 
by individual Indians or tribes, subject to Federal restrictions against 
alienation or encumbrance.

[[Page 504]]

    ``Principal'' means the corpus and capital of an estate, including 
any payment received for the sale or diminishment of the corpus, as 
opposed to the income.
    ``Secretary'' means the Secretary of the Interior or authorized 
representative.
    ``Superintendent'' means the designated officer in charge of an 
Agency.



Sec. 179.3  Application of State law.

    In the absence of Federal law or Federally-approved tribal law to 
the contrary, the rules of life estates and future interests in the 
State in which the land is located shall be applied on Indian land. 
State procedural laws concerning the appointment and duties of private 
trustees shall not apply.



Sec. 179.4  Distribution of principal and income.

    In all cases where the document creating the life estate does not 
specify a distribution of proceeds; or where the vested remainderman and 
life tenant have not entered into a written agreement approved by the 
Secretary providing for the distribution of proceeds; or where, by such 
document or agreement or by the application of State law, the open mine 
doctrine does not apply; the Secretary shall:
    (a) Distribute all rents and profits, as income, to the life tenant.
    (b) Distribute any contract bonus one-half each to the life tenant 
and the remainderman.
    (c) In the case of mineral contracts, invest the principal, with 
interest income to be paid the life tenant during the life estate, 
except in those instances where the administrative cost of investment is 
disproportionately high, in which case Sec. 179.4(d) shall apply. The 
principal will be distributed to the remainderman upon termination of 
the life estate.
    (d) In all other instances, distribute the principal immediately 
according to the formulas set forth in Sec. 179.5, investing all 
proceeds attributable to any contingent remainderman in an account, with 
disbursement to take place upon determination of the contingent 
remainderman.



Sec. 179.5  Value of life estates and remainders.

    (a) The value of a life estate shall be determined by the formula: 
Value of Life Estate = P  x  L, where P = Value of principal, and L = 
Life estate factor for the age and sex of the life tenant, as shown in 
Column 2 on Tables A(1) and A(2).
    (b) The value of a remainder shall be determined by the formula: 
Value of Remainder = P  x  R, where P = Value of principal, and R = 
Remainder factor for the age and sex of the life tenant, as shown in 
Column 3 on Tables A(1) and A(2).

 Table A(1)--Single Life Male, 6 Percent, Showing the Present Worth of a
            Life Estate Interest, and of a Remainder Interest           
------------------------------------------------------------------------
                                               (2)--Life                
                   (1)--Age                      estate   (3)--Remainder
------------------------------------------------------------------------
0............................................     0.9305       0.06295  
1............................................     .96217        .03783  
2............................................     .96170        .03830  
3............................................     .96053        .03947  
4............................................     .95905        .04095  
5............................................     .95732        .04268  
6............................................     .95540        .04460  
7............................................     .95331        .04669  
8............................................     .95195        .04895  
9............................................     .94861        .05139  
                                                                        
10...........................................     .94598        .05402  
11...........................................     .94316        .05684  
12...........................................     .94019        .05981  
13...........................................     .93708        .06292  
14...........................................     .93391        .06609  
15...........................................     .93069        .06931  
16...........................................     .92746        .07254  
17...........................................     .92419        .07581  
18...........................................     .92089        .07911  
19...........................................     .91751        .08249  
                                                                        
20...........................................     .91403        .08597  
21...........................................     .91046        .08954  
22...........................................     .90678        .09328  
23...........................................     .90292        .09702  
24...........................................     .89884        .10116  
25...........................................     .89445        .10555  
26...........................................     .88972        .11028  
27...........................................     .88465        .11535  
28...........................................     .87925        .12075  
29...........................................     .87353        .12647  
                                                                        
30...........................................     .86750        .13250  
31...........................................     .86117        .13883  
32...........................................     .85451        .14549  
33...........................................     .84752        .15248  
34...........................................     .84020        .15980  
35...........................................     .83255        .16745  
36...........................................     .82455        .17545  
37...........................................     .81622        .18378  
38...........................................     .80755        .19245  
39...........................................     .79854        .20146  
                                                                        
40...........................................     .78923        .21077  
41...........................................     .77960        .22040  

[[Page 505]]

                                                                        
42...........................................     .76967        .23033  
43...........................................     .75944        .24056  
44...........................................     .74891        .25109  
45...........................................     .73808        .26192  
46...........................................     .72695        .27305  
47...........................................     .71552        .28448  
48...........................................     .70385        .29615  
49...........................................     .69198        .30802  
                                                                        
50...........................................     .67997        .32003  
51...........................................     .66785        .33215  
52...........................................     .65560        .34440  
53...........................................     .64320        .35680  
54...........................................     .63060        .36940  
55...........................................     .61776        .38224  
56...........................................     .60466        .39534  
57...........................................     .59131        .40869  
58...........................................     .57778        .42222  
59...........................................     .56417        .43583  
                                                                        
60...........................................     .55052        .44948  
61...........................................     .53687        .46313  
62...........................................     .52321        .47679  
63...........................................     .50954        .49046  
64...........................................     .49585        .50415  
65...........................................     .48212        .51788  
66...........................................     .46836        .53164  
67...........................................     .45458        .54542  
68...........................................     .44077        .55923  
69...........................................     .42689        .57311  
                                                                        
70...........................................     .41294        .58706  
71...........................................     .39889        .60111  
72...........................................     .38474        .61526  
73...........................................     .37051        .62949  
74...........................................     .35624        .64376  
75...........................................     .34194        .65806  
76...........................................     .32761        .67239  
77...........................................     .31327        .68673  
78...........................................     .29895        .70105  
79...........................................     .28481        .71519  
                                                                        
80...........................................     .27098        .72902  
81...........................................     .25773        .74227  
82...........................................     .24527        .75473  
83...........................................     .23354        .76646  
84...........................................     .22217        .77783  
85...........................................     .21070        .78930  
86...........................................     .19955        .80045  
87...........................................     .18870        .81130  
88...........................................     .17822        .82178  
89...........................................     .16831        .83169  
                                                                        
90...........................................     .15922        .84078  
91...........................................     .15097        .84903  
92...........................................     .14350        .85650  
93...........................................     .13681        .86319  
94...........................................     .13081        .86919  
95...........................................     .12535        .87465  
96...........................................     .11998        .88002  
97...........................................     .11487        .88513  
98...........................................     .10999        .89001  
99...........................................     .10532        .89468  
                                                                        
100..........................................     .10087        .89913  
101..........................................     .09661        .90339  
102..........................................     .09250        .90750  
103..........................................     .08846        .91154  
104..........................................     .08439        .91561  
105..........................................     .08000        .92000  
106..........................................     .07471        .92529  
107..........................................     .06718        .93282  
108..........................................     .05426        .94574  
109..........................................     .02830        .97170  
------------------------------------------------------------------------


 Table A(2)--Single Life Female, 6 Percent, Showing the Present Worth of
           a Life Estate Interest, and of a Remainder Interest          
------------------------------------------------------------------------
                                               (2)--Life                
                   (1)--Age                      estate   (3)--Remainder
------------------------------------------------------------------------
0............................................    0.95383       0.04617  
1............................................     .97370        .02630  
2............................................     .97372        .02628  
3............................................     .97308        .02692  
4............................................     .97217        .02783  
5............................................     .97110        .02890  
6............................................     .96989        .03011  
7............................................     .96853        .03147  
8............................................     .96703        .03297  
9............................................     .96541        .03459  
                                                                        
10...........................................     .96365        .03635  
11...........................................     .96176        .03824  
12...........................................     .95975        .04025  
13...........................................     .95764        .04236  
14...........................................     .95543        .04457  
15...........................................     .95314        .04686  
16...........................................     .95076        .04924  
17...........................................     .94829        .05171  
18...........................................     .94572        .05428  
19...........................................     .94303        .05697  
                                                                        
20...........................................     .94021        .05979  
21...........................................     .93724        .06276  
22...........................................     .93412        .06588  
23...........................................     .93085        .06915  
24...........................................     .92739        .07261  
25...........................................     .92375        .07625  
26...........................................     .91993        .08007  
27...........................................     .91591        .08409  
28...........................................     .91168        .08832  
29...........................................     .90725        .09275  
30...........................................     .90259        .09741  
                                                                        
31...........................................     .89773        .10227  
32...........................................     .89265        .10735  
33...........................................     .88733        .11267  
34...........................................     .88176        .11824  
35...........................................     .87593        .12407  
36...........................................     .86985        .13015  
37...........................................     .86349        .13651  
38...........................................     .85687        .14313  
39...........................................     .84998        .15002  
40...........................................     .84281        .15719  
                                                                        
41...........................................     .83536        .16464  
42...........................................     .82764        .17236  
43...........................................     .81962        .18038  
44...........................................     .81131        .18869  
45...........................................     .80269        .19731  
46...........................................     .79374        .20626  

[[Page 506]]

                                                                        
47...........................................     .78448        .21552  
48...........................................     .77488        .22512  
49...........................................     .76498        .23502  
50...........................................     .75476        .24524  
                                                                        
51...........................................     .74423        .25577  
52...........................................     .73339        .26661  
53...........................................     .72220        .27780  
54...........................................     .71062        .28938  
55...........................................     .69859        .30141  
56...........................................     .68612        .31388  
57...........................................     .67320        .32680  
58...........................................     .65988        .34012  
59...........................................     .64622        .35378  
60...........................................     .63226        .36774  
                                                                        
61...........................................     .61803        .38197  
62...........................................     .60352        .39648  
63...........................................     .58871        .41129  
64...........................................     .57355        .42645  
65...........................................     .55803        .44197  
66...........................................     .54211        .45789  
67...........................................     .52583        .47417  
68...........................................     .50924        .49076  
69...........................................     .49241        .50759  
70...........................................     .47540        .52460  
                                                                        
71...........................................     .45823        .54177  
72...........................................     .44088        .55912  
73...........................................     .42341        .57659  
74...........................................     .40587        .59413  
75...........................................     .38833        .61167  
76...........................................     .37073        .62927  
77...........................................     .35307        .64693  
78...........................................     .33546        .66454  
79...........................................     .31811        .68189  
80...........................................     .30117        .69883  
                                                                        
81...........................................     .28489        .71511  
82...........................................     .26935        .73065  
83...........................................     .25439        .74561  
84...........................................     .23956        .76044  
85...........................................     .22441        .77559  
86...........................................     .21010        .78990  
87...........................................     .19674        .80326  
88...........................................     .18431        .81569  
89...........................................     .17285        .82715  
90...........................................     .16241        .83759  
                                                                        
91...........................................     .15301        .84699  
92...........................................     .14470        .85530  
93...........................................     .13741        .86259  
94...........................................     .13103        .86897  
95...........................................     .12535        .87465  
96...........................................     .11998        .88002  
97...........................................     .11487        .88513  
98...........................................     .10999        .89001  
99...........................................     .10532        .89468  
                                                                        
100..........................................     .10087        .89913  
101..........................................     .09661        .90339  
102..........................................     .09250        .90750  
103..........................................     .08846        .91154  
104..........................................     .08439        .91561  
105..........................................     .08000        .92000  
106..........................................     .07471        .92529  
107..........................................     .06718        .93282  
108..........................................     .05426        .94574  
109..........................................     .02830        .97170  
------------------------------------------------------------------------



Sec. 179.6  Notice of termination of life estate.

    Upon receipt of a renunciation of interest or notice of death of an 
Indian or non-Indian who died possessed of a life estate in Indian land, 
the Superintendent having jurisdiction shall file a copy of the 
renunciation or death certificate or other evidence of death with the 
appropriate Bureau of Indian Affairs' Land Titles and Records Office for 
recording.

[[Page 507]]



                    SUBCHAPTER I--ENERGY AND MINERALS





PART 200--TERMS AND CONDITIONS: COAL LEASES--Table of Contents




Sec.
200.1--200.10  [Reserved]
200.11  Incorporation of coal lease terms and conditions.
200.12  Contract term incorporation.

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), as amended.

    Source: 54 FR 22188, May 22, 1989, unless otherwise noted.
Secs. 200.1--200.10  [Reserved]



Sec. 200.11  Incorporation of coal lease terms and conditions.

    (a) All leases of coal on Indian lands, as defined in Sec. 216.101 
of this chapter, issued by the Secretary, will include at the time of 
issuance, renewal, renegotiation, or readjustment, as applicable, the 
following provision:

    The Lessee shall comply with all applicable requirements of the 
Surface Mining Control and Reclamation Act of 1977, and all regulations 
promulgated thereunder, including those codified at 30 CFR part 750.

    (b) With respect to leases of coal on Indian lands issued by the 
Secretary after August 3, 1977, the Secretary shall, at the time of 
issuance, renewal, renegotiation, or readjustment, as applicable, 
include and enforce in such leases, terms and conditions related to the 
Surface Mining Control and Reclamation Act of 1977, as requested by the 
lessor Indian tribe in writing.



Sec. 200.12  Contract term incorporation.

    The requirements of 30 CFR Part 750 shall be incorporated in all 
existing and new contracts entered into for coal mining on Indian lands.

[59 FR 43419, Aug. 23, 1994]



PART 211--LEASING OF TRIBAL LANDS FOR MINERAL DEVELOPMENT--Table of Contents




                           Subpart A--General

Sec.
211.1  Purpose and scope.
211.2  Information collection.
211.3  Definitions.
211.4  Authority and responsibility of the Bureau of Land Management 
          (BLM).
211.5  Authority and responsibility of the Office of Surface Mining 
          Reclamation and Enforcement (OSM).
211.6  Authority and responsibility of the Minerals Management Service 
          (MMS).
211.7  Environmental studies.
211.8  Government employees cannot acquire leases.
211.9  Existing permits or leases for minerals issued pursuant to 43 CFR 
          chapter II and acquired for Indian tribes.

                    Subpart B--How To Acquire Leases

 211.20  Leasing procedures.
211.21  [Reserved]
211.22  Leases for subsurface storage of oil or gas.
211.23  Corporate qualifications and requests for information.
211.24  Bonds.
211.25  Acreage limitation.
211.26  [Reserved]
211.27  Duration of leases.
211.28  Unitization and communitization agreements, and well spacing.
211.29  Exemption of leases and permits made by organized tribes.

         Subpart C--Rents, Royalties, Cancellations and Appeals

211.40  Manner of payments.
211.41  Rentals and production royalty on oil and gas leases.
211.42  Annual rentals and expenditures for development on leases other 
          than oil and gas, and geothermal resources.
211.43  Royalty rates for minerals other than oil and gas.
211.44  Suspension of operations.
211.45  [Reserved]
211.46  Inspection of premises, books and accounts.
211.47  Diligence, drainage and prevention of waste.
211.48  Permission to start operations.
211.49  Restrictions on operations.
211.50  [Reserved]
211.51  Surrender of leases.
211.52  Fees.
211.53  Assignments, overriding royalties, and operating agreements.
211.54  Lease or permit cancellation; Bureau of Indian Affairs notice of 
          noncompliance.
211.55  Penalties.
211.56  Geological and geophysical permits.
211.57  Forms.
211.58  Appeals.


[[Page 508]]


    Authority: Sec. 4, Act of May 11, 1938, (52 Stat. 347): Act of 
August 1, 1956 (70 Stat. 774): 25 U.S.C. 396a-g; and 25 U.S.C. 2 and 9.

    Source: 61 FR 35653, July 8, 1996, unless otherwise noted.



                           Subpart A--General



Sec. 211.1   Purpose and scope.

    (a) The regulations in this part govern leases and permits for the 
development of Indian tribal oil and gas, geothermal, and solid mineral 
resources except as provided under paragraph (e) of this section. These 
regulations are applicable to lands or interests in lands the title to 
which is held in trust by the United States or is subject to a 
restriction against alienation imposed by the United States. These 
regulations are intended to ensure that Indian mineral owners desiring 
to have their resources developed are assured that they will be 
developed in a manner that maximizes their best economic interests and 
minimizes any adverse environmental impacts or cultural impacts 
resulting from such development.
    (b) The regulations in this part shall be subject to amendment at 
any time by the Secretary of the Interior. No regulation that becomes 
effective after the date of approval of any lease or permit shall 
operate to affect the duration of the lease or permit, rate of royalty, 
rental, or acreage unless agreed to by all parties to the lease or 
permit.
    (c) The regulations of the Bureau of Land Management, the Office of 
Surface Mining Reclamation and Enforcement, and the Minerals Management 
Service that are referenced in Secs. 211.4, 211.5, and 211.6 are 
supplemental to the regulations in this part, and apply to parties 
holding leases or permits for development of Indian mineral resources 
unless specifically stated otherwise in this part or in such other 
Federal regulations.
    (d) Nothing in the regulations in this part is intended to prevent 
Indian tribes from exercising their lawful governmental authority to 
regulate the conduct of persons, businesses, operations or mining within 
their territorial jurisdiction.
    (e) The regulations in this part do not apply to leasing and 
development governed by regulations in 25 CFR Parts 213 (Members of the 
Five Civilized Tribes of Oklahoma), 226 (Osage), or 227 (Wind River 
Reservation).



Sec. 211.2   Information collection.

    The information collection requirements contained in this part do 
not require a review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501; et seq.).



Sec. 211.3   Definitions.

    As used in this part, the following words and phrases have the 
specified meaning except where otherwise indicated:
    Applicant means any person seeking a permit, lease, or an assignment 
from the superintendent or area director.
     Approving official means the Bureau of Indians Affairs official 
with delegated authority to approve a lease or permit.
    Area director means the Bureau of Indian Affairs official in charge 
of an area office.
    Authorized officer means any employee of the Bureau of Land 
Management authorized by law or by lawful delegation of authority to 
perform the duties described in this part and in 43 CFR Parts 3160, 
3180, 3260, 3280, 3480 and 3590.
    Cooperative agreement means a binding arrangement between two or 
more parties purporting to the act of agreeing or of coming to a mutual 
arrangement that is accepted by all parties to a transaction (e.g., 
communitization and unitization).
    Director's representative means the Office of Surface Mining 
Reclamation and Enforcement director's representative authorized by law 
or lawful delegation of authority to perform the duties described in 30 
CFR part 750.
    Gas means any fluid, either combustible or non-combustible, that is 
produced in a natural state from the earth and that maintains a gaseous 
or rarefied state at ordinary temperature and pressure conditions.
    Geological and geophysical permit means a written authorization to 
conduct on-site surveys to locate potential deposits of oil and gas, 
geothermal or solid mineral resources on the lands.
    Geothermal resources means:

[[Page 509]]

    (1) All products of geothermal processes, including indigenous 
steam, hot water and hot brines;
    (2) Steam and other gases, hot water, and hot brines, resulting from 
water, gas or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any by-product derived therefrom.
    In the best interest of the Indian mineral owner refers to the 
standards to be applied by the Secretary in considering whether to take 
an administrative action affecting the interests of an Indian mineral 
owner. In considering whether it is ``in the best interest of the Indian 
mineral owner'' to take a certain action (such as approval of a lease, 
permit, unitization or communitization agreement), the Secretary shall 
consider any relevant factor, including, but not limited to: economic 
considerations, such as date of lease expiration; probable financial 
effect on the Indian mineral owner; leasability of land concerned; need 
for change in the terms of the existing lease; marketability; and 
potential environmental, social, and cultural effects.
    Indian lands means any lands owned by any individual Indian or 
Alaska Native, Indian tribe, band, nation, pueblo, community, rancheria, 
colony, or other tribal group which owns land or interests in the land, 
the title to which is held in trust by the United States or is subject 
to a restriction against alienation imposed by the United States.
    Indian mineral owner means an Indian tribe, band, nation, pueblo 
community, rancheria, colony, or other tribal group which owns mineral 
interests in oil and gas, geothermal or solid mineral resources, title 
to which is held in trust by the United States, or is subject to a 
restriction against alienation imposed by the United States.
    Indian surface owner means any individual Indian or Indian tribe 
whose surface estate is held in trust by the United States, or is 
subject to restriction against alienation imposed by the United States.
    Lease means any contract approved by the United States under the Act 
of May 11, 1938 (52 Stat. 347) (25 U.S.C. 396a-396g), as amended, that 
authorizes exploration for, extraction of, or removal of any minerals.
    Lessee means a natural person, proprietorship, partnership, 
corporation, or other entity that has entered into a lease with an 
Indian mineral owner, or who has been assigned an obligation to make 
royalty or other payments required by the lease.
    Lessor means an Indian mineral owner who is a party to a lease.
    Minerals includes both metalliferous and non-metalliferous minerals; 
all hydrocarbons, including oil and gas, coal and lignite of all ranks; 
geothermal resources; and includes but is not limited to, sand, gravel, 
pumice, cinders, granite, building stone, limestone, clay, silt, or any 
other energy or non-energy mineral.
    Minerals Management Service official means any employee of the 
Minerals Management Service (MMS) authorized by law or by lawful 
delegation of authority to perform the duties described in 30 CFR 
chapter II, subchapters A and C.
    Mining means the science, technique, and business of mineral 
development including, but not limited to: opencast work, underground 
work, and in-situ leaching directed to severance and treatment of 
minerals; Provided, when sand, gravel, pumice, cinders, granite, 
building stone, limestone, clay or silt is the subject mineral, an 
enterprise is considered ``mining'' only if the extraction of such a 
mineral exceeds 5,000 cubic yards in any given year.
    Oil means all nongaseous hydrocarbon substances other than those 
substances leasable as coal, oil shale, or gilsonite (including all 
vein-type solid hydrocarbons). Oil includes liquefiable hydrocarbon 
substances such as drip gasoline and other natural condensates recovered 
or recoverable in a liquid state from produced gas without resorting to 
a manufacturing process.
    Permit means any contract issued by the superintendent and/or area 
director to conduct exploration on; or removal of less than 5,000 cubic 
yards per year of common varieties of minerals from Indian lands.
    Permittee means a person holding or required by this part to hold a 
permit to conduct exploration operations on; or remove less than 5,000 
cubic yards

[[Page 510]]

per year of common varieties of minerals from Indian lands.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Solid minerals means all minerals excluding oil, gas and geothermal 
resources.
    Superintendent means the Bureau of Indian Affairs official in charge 
of the agency office having jurisdiction over the minerals subject to 
leasing under this part.



Sec. 211.4  Authority and responsibility of the Bureau of Land Management (BLM).

    The functions of the Bureau of Land Management are found in 43 CFR 
part 3160--Onshore Oil and Gas Operations, 43 CFR part 3180--Onshore Oil 
and Gas Unit Agreements: Unproven Area, 43 CFR part 3260--Geothermal 
Resources Operations, 43 CFR part 3280--Geothermal Resources Unit 
Agreements: Unproven Areas, 43 CFR part 3480--Coal Exploration and 
Mining Operations, and 43 CFR part 3590--Solid Minerals (other than 
coal) Exploration and Mining Operations; and currently include, but are 
not limited to, resource evaluation, approval of drilling permits, 
mining and reclamation, production plans, mineral appraisals, inspection 
and enforcement, and production verification. These regulations, apply 
to leases and permits approved under this part.



Sec. 211.5  Authority and responsibility of the Office of Surface Mining Reclamation and Enforcement (OSM).

    The OSM is the regulatory authority for surface coal mining and 
reclamation operations on Indian lands pursuant to the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). The 
relevant regulations for surface coal mining and reclamation operations 
are found in 30 CFR part 750. Those regulations apply to mining and 
reclamation on leases approved under this part.



Sec. 211.6  Authority and responsibility of the Minerals Management Service (MMS).

    The functions of the MMS for reporting, accounting, and auditing are 
found in 30 CFR chapter II, subchapters A and C, which, apply to leases 
approved under this part. To the extent the parties to a lease or permit 
are able to provide reasonable provisions satisfactorily addressing the 
functions governed by MMS regulations, the Secretary may approve 
alternate provisions in a lease or permit.



Sec. 211.7  Environmental studies.

    (a) The Secretary shall ensure that all environmental studies are 
prepared as required by the National Environmental Policy Act of 1969 
(NEPA) and the regulations promulgated by the Council on Environmental 
Quality (CEQ), found in 40 CFR parts 1500 through 1508.
    (b) The Secretary shall ensure that all necessary surveys are 
performed and clearances obtained in accordance with 36 CFR parts 60, 
63, and 800 and with the requirements of the Archaeological and Historic 
Preservation Act (16 U.S.C. 469 et seq.), the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), The American Indian Religious 
Freedom Act (42 U.S.C. 1996), and Executive Order 11593, Protection and 
Enhancement of the Cultural Environment (3 CFR, 1971 through 1975 Comp., 
p. 559). If these surveys indicate that a mineral development will have 
an adverse effect on a property listed on or eligible for listing on the 
National Register of Historic Places, the Secretary shall:
    (1) Seek the comments of the Advisory Council on Historic 
Preservation, in accordance with 36 CFR part 800;
    (2) Ensure that the property is avoided, that the adverse effect is 
mitigated, or;
    (3) Ensure that appropriate excavations or other related research is 
conducted and ensure that complete data describing the historic property 
is preserved.



Sec. 211.8  Government employees cannot acquire leases.

    U.S. Government employees are prevented from acquiring leases or 
interests in leases by the provisions of 25 CFR part 140 and 43 CFR part 
20 pertaining to conflicts of interest and ownership of an interest in 
trust land.

[[Page 511]]



Sec. 211.9  Existing permits or leases for minerals issued pursuant to 43 CFR chapter II and acquired for Indian tribes.

    (a) Title to the minerals underlying certain Federal lands, which 
were previously subject to general leasing and mining laws, is now held 
in trust by the United States for Indian tribes. Existing mineral 
prospecting permits, exploration and mining leases on these lands, 
issued prior to these lands being placed in trust status or becoming 
Indian lands, pursuant to 43 CFR chapter II (and its predecessor 
regulations), and all actions on the permits and leases shall be 
administered by the Secretary in accordance with the regulations set 
forth in 30 CFR chapters II and VII and 43 CFR chapter II, as 
applicable, provided, that all payment or reports required by a non-
producing lease or permit, issued pursuant to 43 CFR chapter II, shall 
be made to the superintendent having administrative jurisdiction over 
the land involved, instead of the officer of the Bureau of Land 
Management designated in 43 CFR unless specifically stated otherwise in 
the statutes authorizing the United States to hold the land in trust for 
an Indian tribe. Producing lease payments and reports will be submitted 
to the Minerals Management Service in accordance with 30 CFR chapter II, 
subchapters A and C.
    (b) Administrative actions regarding an existing lease or permit 
under this section, may be appealed pursuant to 25 CFR part 2.



                    Subpart B--How to Acquire Leases



Sec. 211.20  Leasing procedures.

    (a) Indian mineral owners may, with the approval of the 
superintendent or area director, lease their land for mining purposes. 
No oil and gas lease shall be approved unless it has first been offered 
for bidding at an advertised lease sale in accordance with this section. 
Leases for minerals other than oil and gas shall be advertised for bids 
as prescribed in this section unless the Secretary grants the Indian 
mineral owners written permission to negotiate for lease. Application 
for leases shall be made to the superintendent having jurisdiction over 
the lands.
    (b) Indian mineral owners may request that the Secretary prepare and 
advertise or negotiate (if the requirements of this section have been 
met) mineral leases on their behalf. If requested by an applicant 
interested in acquiring rights to Indian-owned minerals, the Secretary 
shall promptly notify the Indian mineral owner, and advise the owner in 
writing of the alternatives available, including the right to decline to 
lease. If the Indian mineral owner decides to have the leases 
advertised, the Secretary shall consult with the Indian mineral owner 
concerning the appropriate royalty rate and rental. The Secretary may 
then undertake the responsibility to advertise and lease in accordance 
with the following procedures:
    (1) Leases shall be advertised to receive optimum competition for 
bonus consideration, under sealed bid, oral auction, or a combination of 
both. Notice of such advertisement shall be published in at least one 
local newspaper and in one trade publication at least thirty (30) days 
in advance of sale. If applicable, such notice must identify the 
reservation within which the tracts to be leased are found. No specific 
description of the tracts to be leased need be published. Specific 
description of such tracts shall be available at the office of the 
superintendent and/or area director upon request. The complete text of 
the advertisement, including a specific description, shall be mailed to 
each person listed on the appropriate agency or area mailing list. 
Individuals and companies interested in receiving advertisements of 
lease sales should send their mailing information to the appropriate 
superintendent or area director for future reference.
    (2) The advertisement shall offer the tracts to the responsible 
bidder offering the highest bonus. The Secretary, after consultation 
with the Indian mineral owner, shall establish the rental and royalty 
rates which shall be stated in the advertisement and shall not be 
subject to negotiation. The advertisement shall provide that the 
Secretary reserves the right to reject any or all bids, and that 
acceptance of the lease bid by the Indian mineral owner is required.

[[Page 512]]

    (3) Each sealed bid must be accompanied by a cashier's check, 
certified check or postal money order, or any combination thereof, 
payable to the payee designated in the advertisement, in an amount not 
less than 25 percent of the bonus bid, which shall be returned if that 
bid is not accepted.
    (4) A successful oral auction bidder will be allowed five (5) 
working days to remit the required 25 percent deposit of the bonus bid.
    (5) A successful bidder shall, within thirty (30) days after 
notification of the bid award, remit to the Secretary the balance of the 
bonus, the first year's rental, a $75 filing fee, its prorated share of 
the advertising costs as determined by the Bureau of Indian Affairs, and 
file with the Secretary all required bonds. The successful bidder shall 
also file the lease in completed form at that time. However, for good 
reasons, the Secretary may grant extensions of time in thirty (30) day 
increments for filing of the lease and all required bonds, provided that 
additional extension requests are submitted and approved prior to the 
expiration of the original thirty (30) days or the previously granted 
extension. Failure on the part of the bidder to take all reasonable 
actions necessary to comply with the foregoing shall result in 
forfeiture of the required payment of 25 percent of any bonus bid for 
the use and benefit of the Indian mineral owner.
    (6) If no satisfactory bid is received, or if the accepted bidder 
fails to complete all requirements necessary for the approval of the 
lease, or if the Secretary determines that it is not in the best 
interest of the Indian mineral owner to accept any of the bids the 
Secretary may re-advertise the lease for sale, or, subject to the 
consent of the Indian mineral owner, the lease may be let through 
private negotiations.
    (c) The Secretary shall advise the Indian mineral owner of the 
results of the bidding, and shall not approve the lease until the 
consent of the Indian mineral owner has been obtained.
    (d) The Indian mineral owner may also submit negotiated leases to 
the Secretary for review and approval.
Sec. 211.21  [Reserved]



Sec. 211.22  Leases for subsurface storage of oil or gas.

    (a) The Secretary, with the consent of the Indian mineral owners, 
may approve storage leases, or modifications, amendments, or extensions 
of existing leases, on Indian lands to provide for the subsurface 
storage of oil or gas, irrespective of the lands from which production 
is initially obtained. The storage lease, or modification, amendment, or 
extension to an existing lease, shall provide for the payment of such 
storage fee or rental on such oil or gas as may be determined adequate 
in each case, or, in lieu thereof, for a royalty other than that 
prescribed in the oil and gas lease when such stored oil and gas is 
produced in conjunction with oil or gas not previously produced.
    (b) The Secretary, with consent of the Indian mineral owners, may 
approve a provision in an oil and gas lease under which storage of oil 
and gas is authorized, for continuance of the lease at least for the 
period of such storage use and so long thereafter as oil or gas not 
previously produced is produced in paying quantities.
    (c) Applications for subsurface storage of oil or gas shall be filed 
in triplicate with the authorized officer and shall disclose the 
ownership of the lands involved, the parties in interest, the storage 
fee, rental, or royalty offered to be paid for such storage, and all 
essential information showing the necessity for such project. Enough 
copies of the final agreement signed by the Indian mineral owners and 
other parties in interest shall be submitted for the approval of the 
Secretary to permit retention of five copies by the Department after 
approval.



Sec. 211.23  Corporate qualifications and requests for information.

    (a) The signing in a representative capacity and delivery of bids, 
geological and geophysical permits, mineral leases, or assignments, 
bonds, or other instruments required by the regulations in this part 
constitutes certification that the individual signing (except a surety 
agent) is authorized to act in such capacity. An agent for a

[[Page 513]]

surety shall furnish a power of attorney.
    (b) A corporate applicant proposing to acquire an interest in a 
permit or lease shall have on file with the superintendent or area 
director a statement showing:
    (1) The State(s) in which the corporation is incorporated, and that 
the corporation is authorized to hold such interests in the State where 
the land described in the instrument is situated; and
    (2) A notarized statement that the corporation has power to conduct 
all business and operations as described in the lease or permit.
    (c) The Secretary may, either before or after the approval of a 
permit, mineral lease, assignment, or bond, call for any reasonable 
additional information necessary to carry out the regulations in this 
part, or other applicable laws and regulations.



Sec. 211.24  Bonds.

    (a) The lessee, permittee or prospective lessee acquiring a lease, 
or any interest therein, by assignment shall furnish with each lease, 
permit or assignment a surety bond or personal bond in an amount 
sufficient to ensure compliance with all of the terms and conditions of 
the lease(s), permit(s), or assignment(s) and the statutes and 
regulations applicable to the lease, permit, or assignment. Surety bonds 
shall be issued by a qualified company approved by the Department of the 
Treasury (see Department of the Treasury Circular No. 570).
    (b) An operator may file a $75,000 bond for all geothermal, mining, 
or oil and gas leases, permits, or assignments in any one State, which 
may also include areas on that part of an Indian reservation extending 
into any contiguous State. Statewide bonds are subject to approval in 
the discretion of the Secretary.
    (c) An operator may file a $150,000 bond for full nationwide 
coverage to cover all geothermal or oil and gas leases, permits, or 
assignments without geographic or acreage limitation to which the 
operator is or may become a party. Nationwide bonds are subject to 
approval in the discretion of the Secretary.
    (d) Personal bonds shall be accompanied by:
    (1) Certificate of deposit issued by a financial institution, the 
deposits of which are federally insured, explicitly granting the 
Secretary full authority to demand immediate payment in case of default 
in the performance of the provisions and conditions of the lease or 
permit. The certificate shall explicitly indicate on its face that 
Secretarial approval is required prior to redemption of the certificate 
of deposit by any party;
    (2) Cashier's check;
    (3) Certified check;
    (4) Negotiable Treasury securities of the United States of a value 
equal to the amount specified in the bond. Negotiable Treasury 
securities shall be accompanied by a proper conveyance to the Secretary 
of full authority to sell such securities in case of default in the 
performance of the provisions and conditions of a lease or permit; or
    (5) Letter of credit issued by a financial institution authorized to 
do business in the United States and whose deposits are federally 
insured, and identifying the Secretary as sole payee with full authority 
to demand immediate payment in the case of default in the performance of 
the provisions and conditions of a lease or permit.
    (i) The letter of credit shall be irrevocable during its term.
    (ii) The letter of credit shall be payable to the Bureau of Indian 
Affairs upon demand, in part or in full, upon receipt from the Secretary 
of a notice of attachment stating the basis thereof (e.g., default in 
compliance with the lease or permit provisions and conditions or failure 
to file a replacement in accordance with paragraph (d)(5)(v) of this 
section).
    (iii) The initial expiration date of the letter of credit shall be 
at least one (1) year following the date it is filed in the proper 
Bureau of Indian Affairs office.
    (iv) The letter of credit shall contain a provision for automatic 
renewal for periods of not less than one (1) year in the absence of 
notice to the proper Bureau of Indian Affairs office at least ninety 
(90) days prior to the originally stated or any extended expiration 
date.

[[Page 514]]

    (v) A letter of credit used as security for any lease or permit upon 
which operations have taken place and final approval for abandonment has 
not been given, or as security for a statewide or nationwide bond, shall 
be forfeited and shall be collected by the Secretary if not replaced by 
other suitable bond or letter of credit at least thirty (30) days before 
its expiration date.
    (e) The required amount of bonds may be increased in any particular 
case at the discretion of the Secretary.



Sec. 211.25  Acreage limitation.

    A lessee may acquire more than one lease but no single lease shall 
be granted for mineral leasing purposes on Indian tribal or restricted 
lands in excess of the following acreage except where the rule of 
approximation applies:
    (a) Leases for oil and gas and all other minerals except coal are to 
be contained within one United States Governmental survey section of 
land and shall be described by legal subdivisions including lots or 
tract equivalents not to exceed 640 acres; in instances of irregular 
surveys, including lands not surveyed under the United States 
Governmental survey, lands shall be considered in multiples of 40 acres 
or the nearest aliquot equivalent thereof;
    (b) Leases for coal shall ordinarily be limited to 2,560 acres in a 
reasonably compact form and shall be described by legal subdivisions 
including lots or tract equivalents. In instances of irregular surveys, 
including lands not surveyed under the United States Governmental 
survey, lands shall be considered in multiples of 40 acres or the 
nearest aliquot equivalent thereof. The Secretary may, upon application 
and with the consent of the Indian mineral owner, approve the issuance 
of a single lease for more than 2,560 acres, in a reasonably compact 
form, upon a finding that the issuance is in the best interest of the 
lessor.
Sec. 211.26  [Reserved]



Sec. 211.27  Duration of leases.

    (a) All leases shall be for a term not to exceed a primary term of 
lease duration of ten (10) years and, absent specific lease provisions 
to the contrary, shall continue as long thereafter as the minerals 
specified in the lease are produced in paying quantities. Absent 
specific lease provisions to the contrary, all provisions in leases 
governing their duration shall be measured from the date of approval by 
the Secretary.
    (b) An oil and gas or geothermal resource lease which stipulates 
that it shall continue in full force and effect beyond the expiration of 
the primary term of lease duration (``commencement clause'') if drilling 
operations have commenced during the primary term, shall be valid and 
shall hold the lease beyond the primary term of lease duration if the 
lessee or the lessee's designee has commenced actual drilling by 
midnight of the last day of the primary term of the lease with a 
drilling rig designed to reach the total proposed depth, and drilling is 
continued with reasonable diligence until the well is completed to 
production or abandoned. However, in no case shall such drilling hold 
the lease longer than 120 days past the primary term of lease duration 
without actual production of oil, gas, or geothermal resources. 
Provided, that this extension does not allow a lease to continue past 
the 10-year statutory limitation. Drilling which meets the requirements 
of this section and occurs within a unit or communitization agreement to 
which the lease is committed shall be considered as if it occurs on the 
leasehold itself. If there is a conflict between the commencement clause 
and the habendum clause of a lease, the commencement clause will 
control.
    (c) A solid minerals lease which stipulates that it shall continue 
in full force and effect beyond the expiration of the primary term of 
lease duration if mining operations have commenced during the primary 
term (commencement clause), shall be valid and hold the lease beyond the 
primary term of lease duration if the lessee or the lessee's designee 
has by midnight of the last day of the primary term of the lease 
commenced actual removal of mineral materials intended for sale and upon 
which royalties will be paid. If there is a conflict between the 
commencement clause and the habendum clause of a lease, the commencement 
clause will control.

[[Page 515]]



Sec. 211.28  Unitization and communitization agreements, and well spacing.

    (a) For the purpose of promoting conservation and efficient 
utilization of minerals, the Secretary may approve a cooperative unit, 
drilling or other development plan on any leased area upon a 
determination that approval is advisable and in the best interest of the 
Indian mineral owner. For the purposes of this section, a cooperative 
unit, drilling or other development plan means an agreement for the 
development or operation of a specifically designated area as a single 
unit without regard to separate ownership of the land included in the 
agreement. Such cooperative agreements include, but are not limited to, 
unit agreements, communitization agreements and other types of 
agreements that allocate costs and benefits.
    (b) The consent of the Indian mineral owner to such unit or 
cooperative agreement shall not be required unless such consent is 
specifically required in the lease. However, the Secretary shall consult 
with the Indian mineral owner prior to making a determination concerning 
a cooperative agreement or well spacing plan.
    (c) Requests for approval of cooperative agreements which comply 
with the requirements of all applicable rules and regulations shall be 
filed with the superintendent or area director.
    (d) All Indian mineral owners of any right, title or interest in the 
mineral resources to be included in a cooperative agreement must be 
notified by the lessee at the time the agreement is submitted to the 
superintendent or area director. An affidavit from the lessee stating 
that a notice was mailed to each mineral owner of record for whom the 
superintendent or area director has an address will satisfy this notice 
requirement.
    (e) A request for approval of a proposed cooperative agreement, and 
all documents incident to such agreement, must be filed with the 
superintendent or area director at least ninety (90) days prior to the 
first expiration date of any of the Indian leases in the area proposed 
to be covered by the cooperative agreement.
    (f) Unless otherwise provided in the cooperative agreement, approval 
of the agreement commits each lease to the unit in the area covered by 
the agreement on the date approved by the Secretary or the date of first 
production, whichever is earlier, as long as the agreement is approved 
before the lease expiration date.
    (g) Any lease committed in part to any such cooperative agreement 
shall be segregated into a separate lease or leases as to the lands 
committed and lands not committed to the agreement. Segregation shall be 
effective on the date the agreement is effective.
    (h) Wells shall be drilled in conformity with a well spacing program 
approved by the authorized officer.



Sec. 211.29  Exemption of leases and permits made by organized tribes.

    The regulations in this part may be superseded by the provisions of 
any tribal constitution, bylaw or charter issued pursuant to the Indian 
Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), 
the Alaska Act of May 1, 1936 (49 Stat. 1250; 48 U.S.C. 362,258a), or 
the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967; 25 
U.S.C., and Sup., 501-509), or by ordinance, resolution, or other action 
authorized under such constitution, bylaw or charter; Provided, that 
such tribal law may not supersede the requirements of Federal statutes 
applicable to Indian mineral leases. The regulations in this part, in so 
far as they are not so superseded, shall apply to leases and permits 
made by organized tribes if the validity of the lease or permit depends 
upon the approval of the Secretary of the Interior.



         Subpart C--Rents, Royalties, Cancellations and Appeals



Sec. 211.40  Manner of payments.

    Unless otherwise specifically provided for in a lease, once 
production has been established, all payments shall be made to the MMS 
or such other party as may be designated, and shall be made at such time 
as provided in 30 CFR chapter II, subchapters A and C. Prior to 
production, all bonus and rental payments, shall be made to the 
superintendent or area director.

[[Page 516]]



Sec. 211.41  Rentals and production royalty on oil and gas leases.

    (a) A lessee shall pay, in advance, beginning with the effective 
date of the lease, an annual rental of $2.00 per acre or fraction of an 
acre or such other greater amount as prescribed in the lease. This 
rental shall not be credited against production royalty nor shall the 
rental be prorated or refunded because of surrender or cancellation.
    (b) The Secretary shall not approve leases with a royalty rate less 
than 16-\2/3\ percent of the amount or value of production produced and 
sold from the lease unless a lower royalty rate is agreed to by the 
Indian mineral owner and is found to be in the best interest of the 
Indian mineral owner. Such approval may only be granted by the area 
director if the approving official is the superintendent and by the 
Assistant Secretary for Indian Affairs if the approving official is the 
area director.
    (c) Value of lease production for royalty purposes shall be 
determined in accordance with applicable lease provisions and 
regulations in 30 CFR chapter II, subchapters A and C. If the valuation 
provisions in the lease are inconsistent with the regulations in 30 CFR 
chapter II, subchapters A and C, the lease provisions shall govern.
    (d) If the leased premises produce gas in excess of the lessee's 
requirements for the development and operation of said premises, then 
the lessor may use sufficient gas, free of charge, for any desired 
school or other buildings belonging to the tribe, by making his own 
connections to a regulator installed, connected to the well and 
maintained by the lessee, and the lessee shall not be required to pay 
royalty on gas so used. The use of such gas shall be at the lessor's 
risk at all times.



Sec. 211.42  Annual rentals and expenditures for development on leases other than oil and gas, and geothermal resources.

    (a) Unless otherwise authorized by the Secretary, a lease for 
minerals other than oil, gas and geothermal resources shall provide for 
a yearly development expenditure of not less than $20 per acre. All such 
leases shall provide for a rental payment of not less than $2.00 for 
each acre or fraction of an acre payable on or before the first day of 
each lease year.
    (b) Within twenty (20) days after the lease year, an itemized 
statement, in duplicate, of the expenditure for development under a 
lease for minerals other than oil and gas shall be filed with the 
superintendent or area director. The lessee must certify the statement 
under oath.



Sec. 211.43  Royalty rates for minerals other than oil and gas.

    (a) Except as provided in paragraph (b) of this section, the minimum 
rates for leases of minerals other than oil and gas shall be as follows:
    (1) For substances other than coal, the royalty rate shall be 10 
percent of the value of production produced and sold from the lease at 
the nearest shipping point.
    (2) For coal to be strip or open pit mined the royalty rate shall be 
12\1/2\ percent of the value of production produced and sold from the 
lease, and for coal removed from an underground mine, the royalty rate 
shall be 8 percent of the value of production produced and sold from the 
lease.
    (3) For geothermal resources, the royalty rate shall be 10 percent 
of the amount or value of steam, or any other form of heat or energy 
derived from production of geothermal resources under the lease and sold 
or utilized by the lessee. In addition, the royalty rate shall be 5 
percent of the value of any byproduct derived from production of 
geothermal resources under the lease and sold or utilized or reasonably 
susceptible of sale or utilization by the lessee, except that the 
royalty for any mineral byproduct shall be governed by the appropriate 
paragraph of this section.
    (b) A lower royalty rate shall be allowed if it is determined to be 
in the best interest of the Indian mineral owner. Approval of a lower 
rate may only be granted by the area director if the approving official 
is the superintendent or by the Assistant Secretary for Indian Affairs, 
if the approving official is the area director.

[[Page 517]]



Sec. 211.44  Suspension of operations.

    (a) After the expiration of the primary term of the lease the 
Secretary may approve suspension of operations for remedial purposes 
which are necessary for continued production, to protect the resource, 
the environment, or for other good reasons. Provided, that such remedial 
operations are conducted in accordance with 43 CFR part 3160, subpart 
3165 and under such stipulations and conditions as may be prescribed by 
the Secretary and are conducted with reasonable diligence. Any 
suspension shall not relieve the lessee from liability for the payment 
of rental and other payments as required by lease provisions.
    (b) An application for permission to suspend operations or 
production for economic or marketing reasons on a lease capable of 
production after the expiration of the primary term of lease duration 
must be accompanied by the written consent of the Indian mineral owner, 
an economic analysis, and an executed amendment by the parties to the 
lease setting forth the provisions pertaining to the suspension of 
operations and production. Such application shall be treated as a 
negotiated change to lease provisions, and as such, shall be subject to 
review and approval by the Secretary.
Sec. 211.45  [Reserved]



Sec. 211.46  Inspection of premises, books and accounts.

    Lessees shall allow the Indian mineral owner, the Indian mineral 
owner's representatives, or any authorized representative of the 
Secretary to enter all parts of the leased premises for the purpose of 
inspection and audit. Lessees shall keep a full and correct account of 
all operations and submit all related reports required by the lease and 
applicable regulations. Books and records shall be available for 
inspection during regular business hours.



Sec. 211.47  Diligence, drainage and prevention of waste.

    The lessee shall:
    (a) Exercise diligence in mining, drilling and operating wells on 
the leased lands while minerals production can be secured in paying 
quantities;
    (b) Protect the lease from drainage (if oil and gas or geothermal 
resources are being drained from the lease premises by a well or wells 
located on lands not included in the lease, the Secretary reserves the 
right to impose reasonable and equitable terms and conditions to protect 
the interest of the Indian mineral owner of the lands, such as payment 
of compensatory royalty for the drainage);
    (c) Carry on operations in a good and workmanlike manner in 
accordance with approved methods and practices;
    (d) Have due regard for the prevention of waste of oil or gas or 
other minerals, the entrance of water through wells drilled by the 
lessee to other strata, to the destruction or injury of the oil or gas, 
other mineral deposits, or fresh water aquifers, the preservation and 
conservation of the property for future productive operations, and the 
health and safety of workmen and employees;
    (e) Securely plug all wells and effectively shut off all water from 
the oil or gas-bearing strata before abandoning them;
    (f) Not construct any well pad location within 200 feet of any 
structures or improvements without the Indian surface owner's written 
consent;
    (g) Carry out, at the lessee's expense, all reasonable orders and 
requirements of the authorized officer relative to prevention of waste;
    (h) Bury all pipelines crossing tillable lands below plow depth 
unless other arrangements are made with the Indian surface owner; and
    (i) Pay the Indian surface owner all damages, including damages to 
crops, buildings, and other improvements of the Indian surface owner 
occasioned by the lessee's operations as determined by the 
superintendent.



Sec. 211.48  Permission to start operations.

    (a) No exploration, drilling, or mining operations are permitted on 
any Indian lands before the Secretary has granted written approval of a 
mineral lease or permit pursuant to the regulations in this part.
    (b) After a lease or permit is approved, written permission must be 
secured from the Secretary before any

[[Page 518]]

operations are started on the leased premises, in accordance with 
applicable rules and regulations in 25 CFR part 216; 30 CFR chapter II, 
subchapters A and C; 30 CFR part 750 (Requirements for Surface Coal 
Mining and Reclamation Operations on Indian Lands), 43 CFR parts 3160, 
3260, 3480, 3590, and Orders or Notices to Lessees (NTLs) issued 
thereunder.



Sec. 211.49  Restrictions on operations.

    Leases issued under the provisions of the regulations in this part 
shall be subject to such restrictions as to time or times for well 
operations and production from any leased premises as the Secretary 
judges may be necessary or proper for the protection of the natural 
resources of the leased land and in the interest of the lessor.
Sec. 211.50  [Reserved]



Sec. 211.51  Surrender of leases.

    A lessee may, with the approval of the Secretary, surrender a lease 
or any part of it, on the following conditions:
    (a) All royalties and rentals due on the date the request for 
surrender is received must be paid;
    (b) The superintendent, after consultation with the authorized 
officer, must be satisfied that proper provisions have been made for the 
conservation and protection of the property, and that all operations on 
the portion of the lease surrendered have been properly reclaimed, 
abandoned, or conditioned, as required;
    (c) If a lease has been recorded, the lessee must submit a release 
along with the recording information of the original lease so that, 
after acceptance of the release, it may be recorded;
    (d) If a lessee requests to surrender an entire lease or an entire 
undivided portion of a lease document, the lessee must deliver to the 
superintendent or area director the original lease documents; Provided, 
that where the request is made by an assignee to whom no copy of the 
lease was delivered, the assignee must deliver to the superintendent or 
area director only its copy of the assignment;
    (e) If the lease (or a portion thereof being surrendered) is owned 
in undivided interests, all lessees owning undivided interests in the 
lease must join in the request for surrender;
    (f) No part of any advance rental shall be refunded to the lessee, 
nor shall any subsequent surrender or termination of a lease relieve the 
lessee of the obligation to pay advance rental if advance rental became 
due prior to the date the request for surrender was received by the 
superintendent or area director;
    (g) If oil, gas, or geothermal resources are being drained from the 
leased premises by a well or wells located on lands not included in the 
lease, the Secretary reserves the right, prior to acceptance of the 
surrender, to impose reasonable and equitable terms and conditions to 
protect the interests of the Indian mineral owners of the lands 
surrendered. Such terms and conditions may include payment of 
compensatory royalty for any drainage; and
    (h) Upon expiration or surrender of a solid mineral lease the lessee 
shall deliver the leased premises in a condition conforming to the 
approved reclamation plan. Unless otherwise provided in the lease, the 
machinery necessary to operate the mine is the property of the lessee. 
However, the machinery may not be removed from the leased premises 
without the written permission of the Secretary.



Sec. 211.52  Fees.

    Unless otherwise authorized by the Secretary, each permit, lease, 
sublease, or other contract, or assignment, thereof shall be accompanied 
by a filing fee of $75.00 at the time of filing.



Sec. 211.53  Assignments, overriding royalties, and operating agreements.

    (a) Approved leases or any interest therein may be assigned or 
transferred only with the approval of the Secretary. The Indian mineral 
owner must also consent if approval of the Indian mineral owner is 
required in the lease. If consent is not required, then the Secretary 
shall notify the Indian mineral owner of the proposed assignment. To 
obtain the approval of the Secretary the assignee must be qualified to 
hold the lease under existing rules and regulations and shall furnish a 
satisfactory bond conditioned for the

[[Page 519]]

faithful performance of the covenants and conditions of the lease.
    (b) No lease or interest therein or the use of such lease shall be 
assigned, sublet, or transferred, directly or indirectly, by working or 
drilling contract, or otherwise, without the consent of the Secretary.
    (c) Assignments of leases, and stipulations modifying the provisions 
of existing leases, which stipulations are also subject to the approval 
of the Secretary, shall be filed with the superintendent within five (5) 
working days after the date of execution. Upon execution of satisfactory 
bonds by the assignee the Secretary may permit the release of any bonds 
executed by the assignor. Upon execution of satisfactory bonds the 
assignee accepts all the assignor's responsibilities and prior 
obligations and liabilities of the assignor (including but not limited 
to any underpaid royalties and rentals) under the lease.
    (d) Agreements creating overriding royalties or payments out of 
production shall not be considered as interests in the leases as such 
provision is used in this section. Agreements creating overriding 
royalties or payments out of production, or agreements designating 
operators are hereby authorized and the approval of the Secretary shall 
not be required with respect thereto, but such agreements shall be 
subject to the condition that nothing in such agreements shall be 
construed as modifying any of the obligations of the lessee, including, 
but not limited to, obligations imposed by requirements of the MMS for 
reporting, accounting, and auditing; obligations for diligent 
development and operation, protection against drainage and mining in 
trespass, compliance with oil and gas, geothermal, and mining 
regulations (25 CFR part 216; 43 CFR parts 3160, 3260, 3480, and 3590; 
and those applicable rules found in 30 CFR chapter II, subchapters A and 
C) and the requirements for Secretarial approval before abandonment of 
any oil and gas or geothermal well or mining operation. All such 
obligations are to remain in full force and effect, the same as if free 
of any such overriding royalties or payments. The existence of 
agreements creating overriding royalties or payments out of production, 
whether or not actually paid, shall not be considered as justification 
for the approval of abandonment of any oil and gas or geothermal well or 
mining operation. Nothing in this paragraph revokes the requirement for 
approval of assignments and other instruments which is required in this 
section, but any overriding royalties or payments out of production 
created by the provisions of such assignments or instruments shall be 
subject to the condition stated in this section. Agreements creating 
overriding royalties or payments out of production, or agreements 
designating operators shall be filed with the superintendent unless 
incorporated in assignments or instruments required to be filed pursuant 
to this section.



Sec. 211.54  Lease or permit cancellation; Bureau of Indian Affairs notice of noncompliance.

    (a) If the Secretary determines that a permittee or lessee has 
failed to comply with the terms of the permit or lease; the regulations 
in this part; or other applicable laws or regulations; the Secretary 
may:
    (1) Serve a notice of noncompliance specifying in what respect the 
permittee or lessee has failed to comply with the requirements 
referenced in this paragraph, and specifying what actions, if any, must 
be taken to correct the noncompliance; or
    (2) Serve a notice of proposed cancellation of the lease or permit. 
The notice of proposed cancellation shall set forth the reasons why 
lease or permit cancellation is proposed and shall specify what actions, 
if any, must be taken to avoid cancellation.
    (b) The notice of noncompliance or proposed cancellation shall 
specify in what respect the permittee or lessee has failed to comply 
with the requirements referenced in paragraph (a), and shall specify 
what actions, if any, must be taken to correct the noncompliance.
    (c) The notice shall be served upon the permittee or lessee by 
delivery in person or by certified mail to the permittee or lessee at 
the permittee's or lessee's last known address. When certified mail is 
used, the date of service shall be deemed to be when the notice is 
received or five (5) working days

[[Page 520]]

after the date it is mailed, whichever is earlier.
    (d) The lessee or permittee shall have thirty (30) days (or such 
longer time as specified in the notice) from the date that the notice is 
served to respond, in writing, to the official or the Bureau of Indian 
Affairs office that issued the notice.
    (e) If a permittee or lessee fails to take any action that is 
prescribed in the notice of proposed cancellation, fails to file a 
timely written response to the notice, or files a written response that 
does not, in the discretion of the Secretary, adequately justify the 
permittee's or lessee's actions, then the Secretary may cancel the lease 
or permit, specifying the basis for the cancellation.
    (f) If a permittee or lessee fails to take corrective action or to 
file a timely written response adequately justifying the permittee's or 
lessee's actions pursuant to a notice of noncompliance, the Secretary 
may issue an order of cessation of operations. If the permittee or 
lessee fails to comply with the order of cessation, or fails to timely 
file an appeal of the order of cessation pursuant to paragraph (h), the 
Secretary may issue an order of lease or permit cancellation.
    (g) Cancellation of a lease or permit shall not relieve the lessee 
or permittee of any continuing obligations under the lease or permit.
    (h) Orders of cessation or of lease or permit cancellation issued 
pursuant to this section may be appealed under 25 CFR part 2.
    (i) This section does not limit any other remedies of the Indian 
mineral owner as set forth in the lease or permit.
    (j) Nothing in this section is intended to limit the authority of 
the authorized officer or the MMS official to take any enforcement 
action authorized pursuant to statute or regulation.
    (k) The authorized officer, MMS official, and the superintendent 
and/or area director should consult with one another before taking any 
enforcement actions.



Sec. 211.55  Penalties.

    (a) In addition to or in lieu of cancellation under Sec. 211.54, 
violations of the terms and conditions of any lease, or the regulations 
in this part, or failure to comply with a notice of noncompliance or a 
cessation order issued by the Secretary, or, in the case of solid 
minerals the authorized officer, may subject a lessee or permittee to a 
penalty of not more than $1,000 per day for each day that such a 
violation or noncompliance continues beyond the time limits prescribed 
for corrective action.
    (b) A notice of a proposed penalty shall be served on the lessee or 
permittee either personally or by certified mail to the lessee or 
permittee at the lessee's or permittee's last known address. The date of 
service by certified mail shall be deemed to be the date when received 
or five (5) working days after the date mailed, whichever is earlier.
    (c) The notice shall specify the nature of the violation and the 
proposed penalty, and shall specifically advise the lessee or permittee 
of the lessee's or permittee's right to either request a hearing within 
thirty (30) days from receipt of the notice or pay the proposed penalty. 
Hearings shall be held before the superintendent and/or area director 
whose findings shall be conclusive, unless an appeal is taken pursuant 
to 25 CFR part 2.
    (d) If the lessee or permittee served with a notice of proposed 
penalty requests a hearing, penalties shall accrue each day the 
violations or noncompliance set forth in the notice continue beyond the 
time limits prescribed for corrective action. The Secretary may issue a 
written suspension of the requirement to correct the violations pending 
completion of the hearings provided by this section only upon a 
determination, at the discretion of the Secretary, that such a 
suspension will not be detrimental to the lessor and upon submission and 
acceptance of a bond deemed adequate to indemnify the lessor from loss 
or damage. The amount of the bond must be sufficient to cover the cost 
of correcting the violations set forth in the notice or any disputed 
amounts plus accrued penalties and interest.
    (e) Payment in full of penalties more than ten (10) days after a 
final decision imposing a penalty shall subject the

[[Page 521]]

lessee or permittee to late payment charges. Late payment charges shall 
be calculated on the basis of a percentage assessment rate of the amount 
unpaid per month for each month or fraction thereof until payment is 
received by the Secretary. In the absence of a specific lease provision 
prescribing a different rate, the interest rate on late payments and 
underpayments shall be a rate applicable under Sec. 6621(a)(2) of the 
Internal Revenue Code of 1954. Interest shall be charged only on the 
amount of payment not received and only for the number of days the 
payment is late.
    (f) None of the provisions of this section shall be interpreted as:
    (1) Replacing or superseding the independent authority of the 
authorized officer, the director's representative or the MMS official to 
impose penalties for violations of applicable regulations pursuant to 43 
CFR part 3160, and 43 CFR Groups 3400 and 3500, 30 CFR part 750, or 30 
CFR chapter II, subchapters A and C;
    (2) Replacing or superseding any penalty provision in the terms and 
conditions of a lease or permit approved by the Secretary pursuant to 
this part; or
    (3) Authorizing the imposition of a penalty for violations of lease 
or permit terms for which the authorized officer, director's 
representative or MMS official, have either statutory or regulatory 
authority to assess a penalty.



Sec. 211.56  Geological and geophysical permits.

    Permits to conduct geological and geophysical operations on Indian 
lands which do not conflict with any mineral leases entered into 
pursuant to this part, may be approved by the Secretary with the consent 
of the Indian mineral owner under the following conditions:
    (a) The permit must describe the area to be explored, the duration, 
and the consideration to be paid the Indian owner;
    (b) The permit will not grant the permittee any option or preference 
rights to a lease or other development contract, or authorize the 
production of, or removal of oil and gas, geothermal resources, or other 
minerals, except samples for assay and experimental purposes, unless 
specifically so stated in the permit; and
    (c) Copies of all data collected pursuant to operations conducted 
under the permit shall be forwarded to the Secretary and the Indian 
mineral owner, unless otherwise provided in the permit. Data collected 
under a permit may be held by the Secretary as privileged and 
proprietary information for the time prescribed in the permit. Where no 
time period is prescribed in the permit, the Secretary may release such 
information after six (6) years, with the consent of the Indian mineral 
owner.



Sec. 211.57  Forms.

    Leases, bonds, permits, assignments, and other instruments relating 
to mineral leasing shall be on forms, prescribed by the Secretary, that 
may be obtained from the superintendent or area director. The provisions 
of a standard lease or permit may be changed, deleted, or added to by 
written agreement of all parties with the approval of the Secretary.



Sec. 211.58  Appeals.

    Appeals from decisions of Bureau of Indian Affairs officers under 
this part may be taken pursuant to 25 CFR part 2.



PART 212--LEASING OF ALLOTTED LANDS FOR MINERAL DEVELOPMENT--Table of Contents




                           Subpart A--General

Sec.
212.1  Purpose and scope.
212.2  Information collection.
212.3  Definitions.
212.4  Authority and responsibility of the Bureau of Land Management 
          (BLM).
212.5  Authority and responsibility of the Office of Surface Mining 
          Reclamation and Enforcement (OSM).
212.6  Authority and responsibility of the Minerals Management Service 
          (MMS).
212.7  Environmental studies.
212.8  Government employees cannot acquire leases.

                    Subpart B--How to Acquire Leases

212.20  Leasing procedures.
212.21  Execution of leases.

[[Page 522]]

212.22  Leases for subsurface storage of oil or gas.
212.23  Corporate qualifications and requests for information.
212.24  Bonds.
212.25  Acreage limitation.
212.26  [Reserved]
212.27  Duration of leases.
212.28  Unitization and communitization agreements, and well spacing.
212.29  [Reserved]
212.30  Removal of restrictions.
212.31-212.32  [Reserved]
212.33  Terms applying after relinquishment.
212.34  Individual tribal assignments excluded.

         Subpart C--Rents, Royalties, Cancellations, and Appeals

212.40  Manner of payments.
212.41  Rentals and production royalty on oil and gas leases.
212.42  Annual rentals and expenditures for development on leases other 
          than oil and gas, and geothermal resources.
212.43  Royalty rates for minerals other than oil and gas.
212.44  Suspension of operations.
212.45  [Reserved]
212.46  Inspection of premises, books and accounts.
212.47  Diligence, drainage and prevention of waste.
212.48  Permission to start operations.
212.49  Restrictions on operations.
212.50  [Reserved]
212.51  Surrender of leases.
212.52  Fees.
212.53  Assignments, overriding royalties, and operating agreements.
212.54  Lease or permit cancellation; Bureau of Indian Affairs notice of 
          noncompliance.
212.55  Penalties.
212.56  Geological and geophysical permits.
212.57  Forms.
212.58  Appeals.

    Authority: Act of March 3, 1909, (35 Stat. 783; 25 U.S.C. 396 (as 
amended)): Act of May 11, 1938, (Sec. 2, 52 Stat. 347; 25 U.S.C. 396 b-
g: Act of August 1, 1956, (70 Stat. 774)); and 25 U.S.C. 2 and 9.

    Source: 61 FR 35661, July 8, 1996, unless otherwise noted.



                           Subpart A--General



Sec. 212.1  Purpose and scope.

    (a) The regulations in this part govern leases for the development 
of individual Indian oil and gas, geothermal and solid mineral 
resources. These regulations are applicable to lands or interests in 
lands the title to which is held, for any individual Indian, in trust by 
the United States or is subject to restriction against alienation 
imposed by the United States. These regulations are intended to ensure 
that Indian mineral owners desiring to have their resources developed 
are assured that they will be developed in a manner that maximizes their 
best economic interests and minimizes any adverse environmental impacts 
or cultural impacts resulting from such development.
    (b) The regulations in this part shall be subject to amendment at 
any time by the Secretary of the Interior. No regulation that becomes 
effective after the date of approval of any lease or permit shall 
operate to affect the duration of the lease or permit, rate of royalty, 
rental, or acreage unless agreed to by all parties to the lease or 
permit.
    (c) Nothing in the regulations in this part is intended to prevent 
Indian tribes from exercising their lawful governmental authority to 
regulate the conduct of persons, businesses, operations or mining within 
their territorial jurisdiction.
    (d) The regulations of the Bureau of Land Management, the Office of 
Surface Mining Reclamation and Enforcement, and the Minerals Management 
Service that are referenced in Secs. 212.4, 212.5, and 212.6 of this 
part are supplemental to these regulations, and apply to parties holding 
leases or permits for development of Indian mineral resources unless 
specifically stated otherwise in this part or in such other Federal 
regulations.
    (e) The regulations in this part do not apply to leasing and 
development governed by regulations in 25 CFR part 213 (Members of the 
Five Civilized Tribes of Oklahoma), 226 (Osage), or 227 (Wind River 
Reservation).



Sec. 212.2  Information collection.

    The information collection requirements contained in this part do 
not require a review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501; et seq.).



Sec. 212.3  Definitions.

    As used in this part, the following words and phrases have the 
specified

[[Page 523]]

meaning except where otherwise indicated:
    Applicant means any person seeking a permit, lease, or an assignment 
from the superintendent or area director.
    Approving official means the Bureau of Indian Affairs official with 
delegated authority to approve a lease or permit.
    Area director means the Bureau of Indian Affairs official in charge 
of an area office.
    Authorized officer means any employee of the Bureau of Land 
Management authorized by law or by lawful delegation of authority to 
perform the duties described herein and in 43 CFR parts 3160, 3180, 
3260, 3280, 3480, and 3590.
    Cooperative agreement means a binding arrangement between two or 
more parties purporting to the act of agreeing or of coming to a mutual 
arrangement that is accepted by all parties to a transaction (e.g., 
communitization and unitization).
    Director's representative means the Office of Surface Mining 
Reclamation and Enforcement director's representative authorized by law 
or lawful delegation of authority to perform the duties described in 30 
CFR part 750.
    Gas means any fluid, either combustible or non-combustible, that is 
produced in a natural state from the earth and that maintains a gaseous 
or rarefied state at ordinary temperature and pressure conditions.
    Geological and geophysical permit means a written authorization to 
conduct on-site surveys to locate potential deposits of oil and gas, 
geothermal or solid mineral resources on the lands.
    Geothermal resources means:
    (1) All products of geothermal processes, including indigenous 
steam, hot water and hot brines;
    (2) Steam and other gases, hot water, and hot brines, resulting from 
water, gas or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any by-product derived therefrom.
    In the best interest of the Indian mineral owner refers to the 
standards to be applied by the Secretary in considering whether to take 
an administrative action affecting the interests of an Indian mineral 
owner. In considering whether it is ``in the best interest of the Indian 
mineral owner'' to take a certain action (such as approval of a lease, 
permit, unitization or communitization agreement), the Secretary shall 
consider any relevant factor, including, but not limited to: economic 
considerations, such as date of lease expiration; probable financial 
effect on the Indian mineral owner; leasability of land concerned; need 
for change in the terms of the existing lease; marketability; and 
potential environmental, social, and cultural effects.
    Indian lands means any lands owned by any individual Indian or 
Alaska Native, Indian tribe, band, nation, pueblo, community, rancheria, 
colony, or other tribal group which owns lands or interest in the 
minerals, the title to which is held in trust by the United States or is 
subject to restriction against alienation imposed by the United States.
    Indian mineral owner means any individual Indian or Alaska Native 
who owns mineral interests in oil and gas, geothermal, or solid mineral 
resources, title to which is held in trust by the United States, or is 
subject to the restriction against alienation imposed by the United 
States.
    Indian surface owner means any individual Indian or Indian tribe 
whose surface estate is held in trust by the United States, or is 
subject to restriction against alienation imposed by the United States.
    Lease means any contract, approved by the Secretary of the Interior 
under the Act of March 3, 1909 (35 Stat. 783)(25 U.S.C. 396), as 
amended, and the Act of May 11, 1938 (52 Stat. 347) (25 U.S.C. 396a-
396g), as amended, that authorize exploration for, extraction of, or 
removal of any minerals.
    Lessee means a natural person, proprietorship, partnership, 
corporation, or other entity which has entered into a lease with an 
Indian mineral owner, or who has been assigned an obligation to make 
royalty or other payments required by the lease.
    Lessor means an Indian mineral owner who is a party to a lease.
    Minerals includes both metalliferous and non-metalliferous minerals; 
all hydrocarbons, including oil, gas, coal and lignite of all ranks; 
geothermal resources; and includes but is not limited

[[Page 524]]

to, sand, gravel, pumice, cinders, granite, building stone, limestone, 
clay, silt, or any other energy or non-energy mineral.
    Minerals Management Service official means any employee of the 
Minerals Management Service (MMS) authorized by law or by lawful 
delegation of authority to perform the duties described in 30 CFR 
chapter II, subchapters A and C.
    Mining means the science, technique, and business of mineral 
development including, but not limited to: opencast work, underground 
work, and in-situ leaching directed to severance and treatment of 
minerals; Provided, when sand, gravel, pumice, cinders, granite, 
building stone, limestone, clay or silt is the subject mineral, an 
enterprise is considered ``mining'' only if the extraction of such a 
mineral exceeds 5,000 cubic yards in any given year.
    Oil means all nongaseous hydrocarbon substances other than those 
substances leasable as coal, oil shale, or gilsonite (including all 
vein-type solid hydrocarbons). Oil includes liquefiable hydrocarbon 
substances such as drip gasoline and other natural condensates recovered 
or recoverable in a liquid state from produced gas without resorting to 
a manufacturing process.
    Permit means any contract issued by the superintendent and/or area 
director to conduct exploration on; or removal of less than 5,000 cubic 
yards per year of common varieties of minerals from Indian lands.
    Permittee means a person holding or required by this part to hold a 
permit to conduct exploration operations on; or remove less than 5,000 
cubic yards per year of common varieties of minerals from Indian lands.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Solid minerals means all minerals excluding oil and gas and 
geothermal resources.
    Superintendent means the Bureau of Indian Affairs official in charge 
of the agency office having jurisdiction over the minerals subject to 
leasing under this part.



Sec. 212.4  Authority and responsibility of the Bureau of Land Management (BLM).

    The functions of the Bureau of Land Management are found in 43 CFR 
Part 3160--Onshore Oil and Gas Operations, 43 CFR Part 3180--Onshore Oil 
and Gas Unit Agreements: Unproven Area, 43 CFR Part 3260--Geothermal 
Resources Operations, 43 CFR Part 3280--Geothermal Resources Unit 
Agreements: Unproven Areas, 43 CFR Part 3480--Coal Exploration and 
Mining Operations, and 43 CFR Part 3590--Solid Minerals (Other Than 
Coal) Exploration and Mining Operations, and currently include, but are 
not limited to, resource evaluation, approval of drilling permits, 
mining and reclamation, production plans, mineral appraisals, inspection 
and enforcement, and production verification. Those regulations, apply 
to leases or permits issued under this part.



Sec. 212.5  Authority and responsibility of the Office of Surface Mining Reclamation and Enforcement (OSM).

    The OSM is the regulatory authority for surface coal mining and 
reclamation operations on Indian lands pursuant to the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). The 
relevant regulations for surface coal mining and reclamation operations 
are found in 30 CFR part 750. Those regulations apply to mining and 
reclamation on leases issued under this part.



Sec. 212.6  Authority and responsibility of the Minerals Management Service (MMS).

    The functions of the MMS for reporting, accounting, and auditing are 
found in 30 CFR chapter II, subchapters A and C, which apply to leases 
approved under this part. To the extent the parties to a lease or permit 
are able to provide reasonable provisions satisfactorily addressing the 
functions governed by MMS regulations, the Secretary may approve 
alternate provisions in a lease or permit.



Sec. 212.7  Environmental studies.

    The provisions of Sec. 211.7 of this subchapter, as amended, are 
applicable to leases under this part.

[[Page 525]]



Sec. 212.8  Government employees cannot acquire leases.

    U.S. Government employees are prevented from acquiring leases or 
interests in leases by the provisions of 25 CFR part 140 and 43 CFR part 
20 pertaining to conflicts of interest and ownership of an interest in 
trust land.



                    Subpart B--How to Acquire Leases



Sec. 212.20  Leasing procedures.

    (a) Application for leases shall be made to the superintendent 
having jurisdiction over the lands.
    (b) Indian mineral owners may request the Secretary to prepare, 
advertise and negotiate mineral leases on their behalf. Leases for 
minerals shall be advertised for bids as prescribed in this section 
unless one or more of the Indian mineral owners of a tract sought for 
lease request the Secretary to negotiate for a lease on their behalf 
without advertising. Unless the Secretary decides that negotiation of a 
mineral lease is in the best interests of the Indian mineral owners, he 
shall use the following procedure for leasing:
    (1) Leases shall be advertised to receive optimum competition for 
bonus consideration, under sealed bid, oral auction, or a combination of 
both. Notice of such advertisement shall be published in at least one 
local newspaper and in one trade publication at least thirty (30) days 
in advance of sale. If applicable, such notice must identify the 
reservation within which the tracts to be leased are found. No specific 
description of the tracts to be leased need be published. Specific 
description of such tracts shall be available at the office of the 
superintendent and/or area director upon request. The complete text of 
the advertisement, including a specific description, shall be mailed to 
each person listed on the appropriate agency or area mailing list. 
Individuals and companies interested in receiving advertisements on 
lease sales should send their mailing information to the appropriate 
agency or area office for future reference.
    (2) The advertisement shall offer the tracts to a responsible bidder 
offering the highest bonus. The Secretary shall establish the rental and 
royalty rates which shall be stated in the advertisement and will not be 
subject to negotiation. The advertisement shall provide that the 
Secretary reserves the right to reject any or all bids, and that 
acceptance of the lease bid by or on behalf of the Indian mineral owner 
is required. The requirements under Sec. 212.21 are applicable to the 
acceptance of a lease bid.
    (3) Each sealed bid must be accompanied by a cashier's check, 
certified check or postal money order, or any combination thereof, 
payable to the payee designated in the advertisement, in an amount not 
less than 25 percent of the bonus bid, which shall be returned if that 
bid is not accepted.
    (4) A successful oral auction bidder will be allowed five (5) 
working days to remit the required 25 percent deposit of the bonus bid.
    (5) A successful bidder shall, within thirty (30) days after 
notification of the bid award, remit to the Secretary the balance of the 
bonus, the first year's rental, a $75 filing fee, its prorated share of 
the advertising costs as determined by the Bureau of Indian Affairs, and 
file with the Secretary all required bonds. The successful bidder shall 
also file the lease in completed form, signed by the Indian mineral 
owner(s), at that time. However, for good reasons, the Secretary may 
grant extensions of time in thirty (30) day increments for filing of the 
lease and all required bonds, provided that additional extension 
requests are submitted and approved prior to the expiration of the 
original thirty (30) days or the previously granted extension. Failure 
on the part of the bidder to take all reasonable actions necessary to 
comply with the foregoing shall result in forfeiture of the required 
payment of 25 percent of any bonus bid for the use and benefit of the 
Indian mineral owner.
    (6) If no satisfactory bid is received, or if the accepted bidder 
fails to complete all requirements necessary for approval of the lease, 
or if the Secretary determines that it is not in the best interest of 
the Indian mineral owner to accept any of the bids the Secretary may re-
advertise the tract for sale, or subject to the consent of the Indian 
mineral owner, a lease may be let through private negotiations.

[[Page 526]]

    (c) The Secretary shall advise the Indian mineral owner of the 
results of the bidding, and shall not approve the lease until the 
consent of the Indian mineral owner has been obtained. The requirements 
under Sec. 212.21 are applicable to the approval of a mineral lease.



Sec. 212.21  Execution of leases.

    (a) The Secretary shall not execute a mineral lease on behalf of an 
Indian mineral owner, except when such owner is deceased and the heirs 
to or devisee of the estate have not been determined, or if determined, 
some or all of them cannot be located. Leases involving such interests 
may be executed by the Secretary, provided that the mineral interest 
shall have been offered for sale under the provisions of section 
212.20(b) (1) through (6).
    (b) The Secretary may execute leases on behalf of minors and persons 
who are incompetent by reason of mental incapacity; Provided, that there 
is no parent, guardian, conservator, or other person who has lawful 
authority to execute a lease on behalf of the minor or person with 
mental incapacity.
    (c) If an owner is a life tenant, the procedures set forth in 25 CFR 
part 179 (Life Estates and Future Interests), shall apply.



Sec. 212.22  Leases for subsurface storage of oil or gas.

    The provisions of Sec. 211.22 of this subchapter are applicable to 
leases under this part.



Sec. 212.23  Corporate qualifications and requests for information.

    The provisions of Sec. 211.23 of this subchapter are applicable to 
leases under this part.



Sec. 212.24  Bonds.

    The provisions of Sec. 211.24 of this subchapter are applicable to 
leases under this part.



Sec. 212.25  Acreage limitation.

    The provisions of Sec. 211.25 of this subchapter are applicable to 
leases under this part.
Sec. 212.26  [Reserved]



Sec. 212.27  Duration of leases.

    The provisions of Sec. 211.27 of this subchapter are applicable to 
leases under this part.



Sec. 212.28  Unitization and communitization agreements, and well spacing.

    (a) For the purpose of promoting conservation and efficient 
utilization of minerals, the Secretary may approve a cooperative unit, 
drilling or other development plan on any leased area upon a 
determination that approval is advisable and in the best interest of the 
Indian mineral owner. For the purposes of this section, a cooperative 
unit, drilling or other development plan means an agreement for the 
development or operation of a specifically designated area as a single 
unit without regard to separate ownership of the land included in the 
agreement. Such cooperative agreements include, but are not limited to, 
unit agreements, communitization agreements and other types of 
agreements that allocate costs and benefits.
    (b) The consent of the Indian mineral owner to such unit or 
cooperative agreement shall not be required unless such consent is 
specifically required in the lease.
    (c) Requests for approval of cooperative agreements which comply 
with the requirements of all applicable rules and regulations shall be 
filed with the superintendent or area director.
    (d) All Indian mineral owners of any right, title or interest in the 
mineral resources to be included in a cooperative agreement must be 
notified by the lessee at the time the agreement is submitted to the 
superintendent or area director. An affidavit from the lessee stating 
that a notice was mailed to each mineral owner of record for whom the 
superintendent or area director has an address will satisfy this notice 
requirement.
    (e) A request for approval of a proposed cooperative agreement, and 
all documents incident to such agreement, must be filed with the 
superintendent or area director at least ninety (90) days prior to the 
first expiration date of any of the Indian leases in the area

[[Page 527]]

proposed to be covered by the cooperative agreement.
    (f) Unless otherwise provided in the cooperative agreement, approval 
of the agreement commits each lease to the unit in the area covered by 
the agreement on the date approved by the Secretary or the date of first 
production, whichever is earlier, as long as the agreement is approved 
before the lease expiration date.
    (g) Any lease committed in part to any such cooperative agreement 
shall be segregated into a separate lease or leases as to the lands 
committed and lands not committed to the agreement. Segregation shall be 
effective on the date the agreement is effective.
    (h) Wells shall be drilled in conformity with a well spacing program 
approved by the authorized officer.
Sec. 212.29  [Reserved]



Sec. 212.30  Removal of restrictions.

    (a) Notwithstanding the provisions of any mineral lease to the 
contrary, the removal of all restrictions against alienation shall 
operate to divest the Secretary of all supervisory authority and 
responsibility with respect to the lease. Thereafter, all payments 
required to be made under the lease shall be made directly to the 
owner(s).
    (b) In the event restrictions are removed from a part of the land 
included in any lease approved by the Secretary, the entire lease shall 
continue to be subject to the supervision of the Secretary until such 
times as the holder of the lease and the unrestricted Indian owner 
submits to the Secretary satisfactory evidence that adequate 
arrangements have been made to account for the mineral resources of the 
restricted land separately from those of the unrestricted. Thereafter, 
the unrestricted portion shall be relieved from the supervision of the 
Secretary, the lease, the regulations of this part, and all other 
applicable laws and regulations.
Secs. 212.31-212.32  [Reserved]



Sec. 212.33  Terms applying after relinquishment.

    All leases for individual Indian lands approved by the Secretary 
under this part shall contain provisions for the relinquishment of 
supervision and provide for operations of the lease after such 
relinquishment. These leases shall contain provisions that address the 
following issues:
    (a) Provisions of relinquishment. If the Secretary relinquishes 
supervision at any time during the life of the lease instrument as to 
all or part of the acreage subject to the lease, the Secretary shall 
give the Indian mineral owner and the lessee thirty (30) days written 
notice prior to the termination of supervision. After notice of 
relinquishment has been given to the lessee, the lease shall be subject 
to the following conditions:
    (1) All rentals and royalties thereafter accruing shall be paid 
directly to the lessor or the lessor's successors in title, or to a 
trustee appointed under the provisions of paragraph (b) of this section.
    (2) If, at the time supervision is relinquished by the Secretary, 
the lessee has made all payments then due and has fully performed all 
obligations on the lessee's part to be performed up to the time of such 
relinquishment, the bond given to secure the performance of the lease, 
on file in the appropriate agency or area office, shall be of no further 
force or effect.
    (3) Should relinquishment affect only part of the lease, then the 
lessee may continue to conduct operations on the land covered by the 
lease as an entirety; Provided, that the lessee shall pay, in the manner 
prescribed by the lease and regulations for the benefit of lessor, the 
same proportion of all rentals and royalties due under the provisions of 
this part as the acreage retained under the supervision of the Secretary 
bears to the entire acreage of the lessee, and shall pay the remainder 
of the rentals and royalties directly to the remaining lessors or 
successors in title or said trustee as the case may be, as provided in 
paragraph (a) (1) of this section.
    (b) Division of fee. If, after the execution of the lease and after 
the Secretary relinquishes supervision thereof, the fee of the leased 
land is divided into separate parcels held by different

[[Page 528]]

owners, or if the rental or royalty interest is divided in ownership, 
the obligations of the lessee shall not be modified in any manner except 
as specifically provided by the provisions of the lease. Notwithstanding 
such separate ownership, the lessee may continue to conduct operations 
on said premises as an entirety. Each separate owner shall receive such 
proportion of all rental and royalties accruing after the vesting of its 
title as the acreage of the fee, or rental or royalty interest, bears to 
the entire acreage covered by the lease; or to the entire rental or 
royalty interest as the case may be. If at any time after departmental 
supervision of the lease is relinquished, in whole or in part, to 
rentals and royalties, whether said parties are so entitled by virtue of 
undivided interest or by virtue of ownership of separate parcels of the 
land covered, the lessee may elect to withhold the payment of further 
rentals or royalties (except as the portion due the Indian lessor while 
under restriction), until all of said parties shall agree upon and 
designate a trustee in writing and in a recordable instrument to receive 
all payments due thereunder on behalf of said parties and their 
respective successors in title. Payments to said trustee shall 
constitute lawful payments, and the sole risk of an improper or unlawful 
distribution of said funds by said trustee shall rest upon the parties 
naming said trustee and their said respective successors in title.



Sec. 212.34  Individual tribal assignments excluded.

    The reference in this part to Indian mineral owners does not include 
assignments of tribal lands made pursuant to tribal constitutions or 
ordinances for the use of individual Indians and assignees of such 
lands.



         Subpart C--Rents, Royalties, Cancellations, and Appeals



Sec. 212.40  Manner of payments.

    The provisions of Sec. 211.40 of this subchapter are applicable to 
leases under this part.



Sec. 212.41  Rentals and production royalty on oil and gas leases.

    (a) A lessee shall pay, in advance, beginning with the effective 
date of the lease, an annual rental of $2.00 per acre or fraction of an 
acre or such other greater amount as prescribed in the lease. This 
rental shall not be credited against production royalty nor shall the 
rental be prorated or refunded because of surrender or cancellation.
    (b) The Secretary shall not approve leases with a royalty rate less 
than 16-\2/3\ percent of the amount or value of production produced and 
sold from the lease unless a lower royalty rate is agreed to by the 
Indian mineral owner and is found to be in the best interest of the 
Indian mineral owner. Such approval may only be granted by the area 
director if the approving official is the superintendent and the 
Assistant Secretary for Indian Affairs if the approving official is the 
area director.
    (c) Value of lease production for royalty purposes shall be 
determined in accordance with applicable lease provisions and 
regulations in 30 CFR chapter II, subchapters A and C. If the valuation 
provisions in the lease are inconsistent with the regulations in 30 CFR 
chapter II, subchapters A and C, the lease provisions shall govern.



Sec. 212.42  Annual rentals and expenditures for development on leases other than oil and gas, and geothermal resources.

    The provisions of Sec. 211.42 of this subchapter are applicable to 
leases under this part.



Sec. 212.43  Royalty rates for minerals other than oil and gas.

    The provisions of Sec. 211.43 of this subchapter are applicable to 
leases under this part.



Sec. 212.44  Suspension of operations.

    The provisions of Sec. 211.44 of this subchapter are applicable to 
leases under this part.

[[Page 529]]

Sec. 212.45  [Reserved]



Sec. 212.46  Inspection of premises, books, and accounts.

    The provisions of Sec. 211.46 of this subchapter are applicable to 
leases under this part.



Sec. 212.47  Diligence, drainage and prevention of waste.

    The provisions of Sec. 211.47 of this subchapter are applicable to 
leases under this part.



Sec. 212.48  Permission to start operations.

    The provisions of Sec. 211.48 of this subchapter are applicable to 
leases under this part.



Sec. 212.49  Restrictions on operations.

    The provisions of Sec. 211.49 of this subchapter are applicable to 
leases under this part.
Sec. 212.50  [Reserved]



Sec. 212.51  Surrender of leases.

    The provisions of Sec. 211.51 of this subchapter are applicable to 
leases under this part.



Sec. 212.52  Fees.

    The provisions of Sec. 211.52 of this subchapter are applicable to 
leases under this part.



Sec. 212.53  Assignments, overriding royalties, and operating agreements.

    The provisions of Sec. 211.53 of this subchapter are applicable to 
leases under this part.



Sec. 212.54  Lease or permit cancellation; Bureau of Indian Affairs notice of noncompliance.

    The provisions of Sec. 211.54 of this subchapter are applicable to 
leases under this part.



Sec. 212.55  Penalties.

    The provisions of Sec. 211.55 of this subchapter are applicable to 
this part.



Sec. 212.56  Geological and geophysical permits.

    (a) Permits to conduct geological and geophysical operations on 
Indian lands which do not conflict with any mineral lease entered into 
pursuant to this part may be approved by the Secretary with the consent 
of the Indian owner under the following conditions:
    (1) The permit must describe the area to be explored, the duration 
and the consideration to be paid the Indian owner;
    (2) The permit may not grant the permittee any option or preference 
rights to a lease or other development contract, authorize the 
production of, or removal of oil and gas, or geothermal resources, or 
other minerals except samples for assay and experimental purposes, 
unless specifically so stated in the permit; and
    (3) Copies of all data collected pursuant to operations conducted 
under the permit shall be forwarded to the Secretary and made available 
to the Indian mineral owner, unless otherwise provided in the permit. 
Data collected under a permit shall be held by the Secretary as 
privileged and proprietary information for the time prescribed in the 
permit. Where no time period is prescribed in the permit, the Secretary 
may, in the discretion of the Secretary, release such information after 
six (6) years.
    (b) A permit may be granted by the Secretary without 100 percent 
consent of the individual mineral owners if:
    (1) The minerals are owned by more than one person, and the owners 
of a majority of the interest therein consent to the permit;
    (2) The whereabouts of one or more owners of the minerals or an 
interest therein is unknown, and all the remaining owners of the 
interests consent to the permit;
    (3) The heirs or devisee of a deceased owner of the land or an 
interest therein have not been determined, and the Secretary finds that 
the permit activity will cause no substantial injury to the land or any 
owner thereof; or
    (4) The owners of interests in the land are so numerous that the 
Secretary finds it would be impractical to obtain their consent, and 
also finds that the permit activity will cause no substantial injury to 
the land or any owner thereof.
    (c) A lessee does not need a permit to conduct geological and 
geophysical operations on Indian lands, if provided for

[[Page 530]]

in the lessee's mineral lease, where the Indian mineral owner is also 
the surface land owner. In instances where the Indian mineral owner is 
not the surface owner, the lessee must obtain any additional necessary 
permits or rights of ingress or egress from the surface occupant.



Sec. 212.57  Forms.

    The provisions of Sec. 211.57 of this subchapter are applicable to 
leases under this part.



Sec. 212.58  Appeals.

    The provisions of Sec. 211.58 of this subchapter are applicable to 
leases under this part.



PART 213--LEASING OF RESTRICTED LANDS OF MEMBERS OF FIVE CIVILIZED TRIBES, OKLAHOMA, FOR MINING--Table of Contents




Sec.
213.1  Definitions.

                          How To Acquire Leases

213.2  Applications for leases.
213.3  No Government employee shall acquire leases.
213.4  Sale of oil and gas leases.
213.5  Term of oil and gas leases.
213.6  Leases for minerals other than oil and gas.
213.7  Fees.
213.8  Filing of lease deemed constructive notice.
213.9  Noncontiguous tracts.
213.10  Lessor's signature.
213.11  Minor lessors.
213.12  Leases executed by guardians of minors.
213.13  Inherited lands.
213.14  Corporations and corporate information.
213.15  Bonds.
213.16  Additional information may be requested by Area Director.
213.17  Government reserves right to purchase minerals produced.

                           Rents and Royalties

213.18  Manner of payment of rents and royalties.
213.19  Crediting advance annual payments.
213.20  [Reserved]
213.21  Rate of rents on leases other than oil and gas.
213.22  Expenditures under leases other than oil and gas.
213.23  Royalty rates for minerals other than oil and gas.
213.24  Rate of rents and royalties on oil and gas leases.
213.25  Free use of gas by lessor.
213.26  Rate of royalty on casing-head gas.
213.27  Rate of rental for nonutilized gas wells.
213.28  Royalty payments and production reports.
213.29  Division orders.

                               Operations

213.30  Permission to start operations.
213.31  Restrictions on operations.
213.32  Wells.
213.33  Diligence and prevention of waste.
213.34  Inspection of premises; books and accounts.
213.35  Mines to be timbered properly.
213.36  Surrender of leased premises in good condition.
213.37  Penalties.
213.38  Assignments and overriding royalties.
213.39  Stipulations.
213.40  Cancellations.

                         Removal of Restrictions

213.41  Leases executed but not approved before restrictions removed 
          from land.
213.42  Operations after removal of restrictions from leased lands.
213.43  Relinquishment of Government supervision.
213.44  Division of royalty to separate fee owners.
213.45  Restrictions especially continued as to certain lands.
213.46  Field clerks.
213.47  Forms.
213.48  Effective date.
213.49  Scope of regulations.

    Authority: Sec. 2, 35 Stat. 312, sec. 18, 41 Stat. 426, sec. 1, 45 
Stat. 495, sec. 1, 47 Stat. 777; 25 U.S.C. 356. Interpret or apply secs. 
3, 11, 35 Stat. 313, 316, sec. 8, 47 Stat. 779, unless otherwise noted.

    Source: 22 FR 10599, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

    Cross Reference: For oil and gas operating regulations of the 
Geological Survey, see 30 CFR part 221.



Sec. 213.1  Definitions.

    Area Director. The term ``Area Director'' in this part refers to the 
officer in charge of the Five Civilized Tribes Indian Agency.
    Supervisor. The term ``supervisor'' in this part refers to a 
representative of

[[Page 531]]

the Secretary of the Interior under direction of the Director of the 
U.S. Geological Survey, authorized and empowered to supervise and direct 
operations under oil and gas or other mining leases, to furnish 
scientific and technical information and advice, to ascertain and record 
the amount and value of production, and to determine and record rentals 
and royalties due and paid.

                          How To Acquire Leases



Sec. 213.2  Applications for leases.

    Applications for leases should be made to the Area Director.



Sec. 213.3  No Government employee shall acquire leases.

    No lease, assignment thereof, or interest therein will be approved 
to any employee or employees of the U.S. Government, whether connected 
with the Bureau of Indian Affairs or otherwise, and no employee of the 
Department of the Interior shall be permitted to acquire any interest in 
such leases covering restricted Indian lands by ownership of stock in 
corporations having leases or in any other manner.

(R.S. 2078; 25 U.S.C. 68)



Sec. 213.4  Sale of oil and gas leases.

    (a) At such times and in such manner as he may deem appropriate, the 
Area Director shall publish notices at least thirty days prior to the 
sale, unless a shorter period is authorized by the Commissioner of 
Indian Affairs, that oil and gas leases on specific tracts, each of 
which shall be in a reasonably compact body, will be offered to the 
highest responsible bidder for a bonus consideration, in addition to 
stipulated rentals and royalties. Each bid must be accompanied by a 
cashier's check, certified check, or postal money order, payable to the 
payee designated in the invitation to bid, in an amount not less than 25 
percent of the bonus bid. Within 30 days after notification of being the 
successful bidder, said bidder must remit the balance of the bonus, the 
first year's rental, and his share of the advertising costs, and shall 
file with the Area Director the lease in completed form. The Area 
Director may, for good and sufficient reasons, extend the time for the 
completion and submission of the lease form, but no extension shall be 
granted for remitting the balance of monies due. If the successful 
bidder fails to pay the full consideration within said period, or fails 
to file the completed lease within said period or extension thereof, or 
if the lease is disapproved through no fault of the lessor or the 
Department of the Interior, 25 percent of the bonus bid will be 
forfeited for the use and benefit of the Indian lessor.
    (b) In cases where any part of the bonus bid for a lease is paid 
directly to the Indian lessor, upon his signing the lease, the lessee 
must procure and file with the lease an affidavit of the lessor, sworn 
to before a U.S. Commissioner, Postmaster, Area Director, local 
representative of the Area Director, county or district judge, Federal 
judge or clerk of a Federal court, showing the amount of bonus so paid, 
and the balance thereof must be paid into the office of the Area 
Director upon filing the lease. Where possible lessees are requested to 
take the lessor to the nearest United States field clerk who will render 
all proper assistance in the execution of leases, and before whom the 
bonus affidavit may be executed in cases where any part of bonus 
consideration is paid directly to the lessor. Where leases are executed 
by guardians, under order of court, the affidavit of lessor may be 
executed before a notary public.
    (c) All notices or advertisements of sales of oil and gas leases 
shall reserve to the Secretary of the Interior the right to reject all 
bids when in his judgment the interests of the Indians will be best 
served by so doing, and that if no satisfactory bid is received, or if 
the accepted bidder fails to complete the lease or if the Secretary of 
the Interior shall determine that it is unwise in the interests of the 
Indians to accept the highest bid, the Secretary may readvertise such 
lease for sale, or if deemed advisable, with the consent of the Indian 
owners, a lease may be made by private negotiations. The successful 
bidder or bidders will be required to pay his or their share of the 
advertising costs. Amounts received from unsuccessful bidders will be 
returned; but when no bid is accepted on

[[Page 532]]

a tract, the costs of advertising will be assessed against the applicant 
who requested that said tract be advertised.

(Secs. 16, 17, 48 Stat. 987, 988, sec. 9, 49 Stat. 1968, sec. 4, 52 
Stat. 348; 25 U.S.C. 396d, 476, 477, 509)



Sec. 213.5  Term of oil and gas leases.

    Oil and gas mining leases which require the approval of the 
Secretary of the Interior may be made for periods of 10 years from the 
date of approval of lease by the Secretary of the Interior and as much 
longer thereafter as oil and/or gas is produced in paying quantities.



Sec. 213.6  Leases for minerals other than oil and gas.

    Uncontested mining leases for minerals other than oil and gas shall 
be made on forms \1\ prescribed by the Department, for a period of 15 
years with the right of renewal on such terms as the superintendent may 
prescribe, and shall be subject only to approval by the Area Director. 
See provisions of the act of February 14, 1920 (41 Stat. 408). Any 
persons aggrieved by any decision or order of the Area Director 
approving, rejecting, or disapproving any such lease may appeal from the 
same to the Secretary of the Interior within 30 days from the date of 
such decision or order.
---------------------------------------------------------------------------

    \1\ For further information regarding forms, see Sec. 211.30.
---------------------------------------------------------------------------



Sec. 213.7  Fees.

    The provisions of Sec. 211.25 of this chapter, or as hereafter 
amended, are applicable to this part.

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 213.8  Filing of lease deemed constructive notice.

    The filing of any lease in the office of the Area Director shall be 
deemed constructive notice of the existence of such lease. See act of 
March 1, 1907.

(34 Stat. 1026)



Sec. 213.9  Noncontiguous tracts.

    No lease will be approved covering two or more noncontiguous tracts 
of land, but in such case a lease must be executed on each separate 
tract.



Sec. 213.10  Lessor's signature.

    Any Indian who cannot write his name will be required to sign all 
official papers by making a distinct thumbprint which shall be 
designated as ``right'' or ``left'' thumbmark. Such signatures must be 
witnessed by two persons, one of whom must be a U.S. Government employee 
(such as field clerk, postmaster, U.S. Commissioner, etc.).



Sec. 213.11  Minor lessors.

    Where the lessor is a minor, certified copies of letters of 
guardianship and court orders approving leases must be filed.



Sec. 213.12  Leases executed by guardians of minors.

    Leases executed by guardians of minors under order of court for a 
period extending beyond the minority of the minor will be approved 
unless it appears that such action would be prejudicial to the interests 
of the minor: Provided, That in the event the minor becomes of age 
within 1 year from the date of execution of lease the consent of the 
minor to the execution of the lease should be obtained and submitted 
with the lease for consideration.



Sec. 213.13  Inherited lands.

    Except to prevent loss or waste, leases on undivided inherited lands 
will not be approved until the heirship determination has been approved. 
If the heirs to undivided inherited lands are undetermined or cannot be 
located, or if the heirs owning less than one-half interest in the lands 
refuse to sign a lease and it appears necessary to lease the lands to 
prevent loss or waste, the Area Director will report the facts to the 
Commissioner of Indian Affairs and ask for instructions. Minor heirs can 
lease or joint adult heirs in leasing only through guardians under order 
of court. Proof of heirship shall be given upon Form F prescribed. If 
probate or other court proceedings have established the heirship in any 
case, or the land has been partitioned, certified copy of final order, 
judgment, or decree of the court will be accepted in lieu of Form F.

[[Page 533]]



Sec. 213.14  Corporations and corporate information.

    If the applicant for a lease is a corporation, it shall file 
evidence of authority of its officers to execute papers; and with its 
first application it shall also file a certified copy of its articles of 
incorporation, and, if foreign to the State in which the lands are 
located, evidence showing compliance with the corporation laws thereof. 
Statements of changes in officers and stockholders shall be furnished by 
a corporation lessee to the Area Director January 1 of each year, and at 
such other times as may be requested.
    Whenever deemed advisable in any case the Area Director may require 
a corporation applicant or lessee to file:
    (a) List of officers, principal stockholders, and directors, with 
post office addresses and numbers of shares held by each.
    (b) A sworn statement of the proper officer showing:
    (1) The total number of shares of the capital stock actually issued 
and the amount of cash paid into the treasury on each share sold; or, if 
paid in property, the kind of quantity and value of the same paid per 
share.
    (2) Of the stock sold, how much remains unpaid and subject to 
assessment.
    (3) The amount of cash the company has in its treasury and 
elsewhere.
    (4) The property, exclusive of cash, owned by the company and its 
value.
    (5) The total indebtedness of the company and the nature of its 
obligations.
    (6) Whether the applicant or any person controlling, controlled by 
or under common control with the applicant has filed any registration 
statement, application for registration, prospectus or offering sheet 
with the Securities and Exchange Commission pursuant to the Securities 
Act of 1933 or the Securities Exchange Act of 1934 or said Commission's 
rules and regulations under said acts; if so, under what provision of 
said acts or rules and regulations; and what disposition of any such 
statement, application, prospectus or offering sheet has been made.
    (c) Affidavits of individual stockholders, setting forth in what 
corporations, or with what persons, firms, or associations such 
individual stockholders are interested in mining leases on restricted 
lands within the State, and whether they hold such interest for 
themselves or in trust.

    Cross Reference: For regulations of the Securities and Exchange 
Commission, see 17 CFR chapter II.



Sec. 213.15  Bonds.

    (a) Lessee shall furnish with each mining lease a bond (Form 5-
154b), and an assignee of a lease shall furnish with each assignment a 
bond (Form 5-154m), with an acceptable company authorized to act as sole 
surety, or with two or more personal sureties and a deposit as 
collateral security of any public-debt obligations of the United States 
guaranteed as to principal and interest by the United States, equal to 
the full amount of such bonds, or other collateral satisfactory to the 
Secretary of the Interior, or show ownership of unencumbered real estate 
of the value equal to twice the amount of the bonds. Lessee may file a 
bond on Form 5-154a without sureties and a deposit as collateral 
security of Government bonds equal in value to the full amount of the 
bond. Lease bonds, except as provided in paragraph (c) of this section, 
shall not be less than the following amounts:

For less than 80 acres............................................$l,000
For 80 acres and less than 120 acres...............................1,500
For 120 acres and not more than 160 acres..........................2,000
For each additional 40 acres, or part thereof, above 160 acres.......500

    Provided, That for leases for minerals other than oil and gas the 
Secretary of the Interior or his authorized representative with the 
consent of the Indian landowner may authorize a bond for a lesser amount 
if, in his opinion, the circumstances warrant and the interests of the 
Indian landowners are fully protected: Provided further, That a lessee 
may file a bond (Form 5-154f), in the sum of $15,000 for all leases of 
minerals up to 10,240 acres under the jurisdiction of the officer in 
charge of the Five Civilized Tribe Agency.
    (b) In lieu of the bonds required under paragraph (a) of this 
section, a lessee may furnish a bond (Form 5-156) in the sum of $75,000 
for full nationwide coverage with an acceptable company

[[Page 534]]

authorized to act as sole surety to cover all oil and gas leases and oil 
and gas prospecting permits without geographic or acreage limitation to 
which the lessee or permittee is or may become a party.
    (c) The right is specifically reserved to increase the amount of 
bonds and the collateral security prescribed in paragraph (a) of this 
section in any particular case when the officer in charge deems it 
proper to do so. The nationwide bond may be increased at any time in the 
discretion of the Secretary of the Interior.

[22 FR 10599, Dec. 24, 1957, as amended at 26 FR 164, Jan. 10, 1961. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 213.16  Additional information may be requested by Area Director.

    The Area Director, or other Government officer having the matter in 
charge or under investigation, may, at any time, either before or after 
approval of a lease, call for any additional information desired to 
carry out the purpose of the regulations in this part, and such 
information shall be furnished within the time specified in the request 
therefor. If the lessee fails to furnish the information requested, the 
lease will be subject to disapproval or cancellation, whichever is 
appropriate.



Sec. 213.17  Government reserves right to purchase minerals produced.

    In time of war or other public emergency any of the executive 
departments of the U.S. Government shall have the option to purchase at 
the prevailing market price on the date of sale all or any part of the 
minerals produced under any lease.

                           Rents and Royalties



Sec. 213.18  Manner of payment of rents and royalties.

    (a) Except as provided in paragraph (b) of this section, all rents, 
royalties and other payments due under leases which have been or may be 
approved in accordance with this part shall be paid by check or bank 
draft to the order of the Treasurer of the United States and mailed to 
the Area Director for deposit to the credit of the various lessors. When 
lessees and purchasers are instructed, in writing, by the Area Director, 
which instructions shall be complete as to lessors for each lease, 
separate remittances for each payment due each lessor shall be mailed to 
the Area Director. Any payments under this paragraph, covering lands or 
interests therein from which restrictions have been removed by death or 
otherwise, may continue to be made in the manner provided by this 
paragraph until ten days after notice of relinquishment of supervision 
has been mailed to the lessee.
    (b) The Area Director may, in his discretion, whenever it appears to 
be in the best interest of any lessor, authorize and direct the lessee 
to pay directly to the lessor, or to the legal guardian of any lessor 
under guardianship, the rents, royalties and other payments (other than 
bonuses and advance payments for the first year) due under leases which 
have been or may be approved in accordance with the regulations in this 
part. Any such authority for direct payment shall be in writing, 
addressed to the owner or owners of the lease, and shall expressly 
provide for its revocation or modification at any time, in writing, by 
the Area Director. Written authorization for direct payment and written 
revocations or modifications thereof shall become a part of the lease 
and shall be distributed as in the case of original leases. All such 
revocations or modifications shall have a 5-day grace period after date 
of receipt. Rents, royalties, and other payments paid in accordance 
therewith shall constitute full compliance with the requirements of the 
lease pertaining to such payments.
    (c) Rents and royalties paid pursuant to paragraphs (a) and (b) of 
this section on producing leases shall be supported by statements, 
acceptable to the Secretary or his duly authorized representative, to be 
transmitted to the Supervisor, in duplicate, covering each lease, 
identified by contract number and lease number. Such statements shall 
show the specific items of rents or royalties for which remittances are 
made, and shall identify each remittance by the remittance number, date, 
amount, and name of each payee.
    (d) Rents paid on nonproducing leases pursuant to paragraphs (a) and 
(b) of

[[Page 535]]

this section shall be supported by a statement, acceptable to the Area 
Director, to be transmitted to the Area Director covering each lease, 
identified by contract number and lease number. Each remittance shall be 
identified by the remittance number, date, amount, name of each payee, 
and dates of mailing of remittances. Date of mailing, or, if remittance 
is sent by registered mail, the date of registration receipts covering 
remittances mailed, shall be considered as date of payment.
    (e) For leases other than oil and gas, all advance rentals and 
royalties for the first year shall be paid to the Area Director at the 
time of filing the lease, and the advance royalty and 20 percent of the 
first year's rental so paid shall be and become the property of the 
lessor, if the lease be disapproved because of the lessee's failure to 
meet the requirements of the law or of the regulations in this part or 
because of any other fault or defect chargeable to the lessee.



Sec. 213.19  Crediting advance annual payments.

    In the event of discovery of minerals, all advance rents and advance 
royalties shall be allowed as credit on stipulated royalties for the 
year for which such advance payments have been made. No refund of such 
advance payments made under any lease will be allowed in the event the 
royalty on production is not sufficient to equal such advance payment; 
nor will any part of the moneys so paid be refunded to the lessee 
because of any subsequent surrender or cancellation of the lease.
Sec. 213.20  [Reserved]



Sec. 213.21  Rate of rents on leases other than oil and gas.

    On all mineral leases of allotted lands other than oil and gas 
leases, rental shall be paid annually in advance from the date of 
approval of the lease, as follows: Fifty cents per acre for the first 
year, 75 cents per acre for the second year, and $1 per acre for the 
third and each succeeding year of the term of the lease.



Sec. 213.22  Expenditures under lease other than oil and gas.

    (a) On all leases for deposits of minerals other than oil and gas, 
there shall be expended for each calendar year the lease is in force, 
and for each fraction of a calendar year greater than 6 months, in 
actual mining operations, development, or improvements upon the lands 
leased, or for the benefit thereof, a sum which, with the annual rental, 
shall amount to not less than $5 per acre.
    (b) The expenditures for development required by this section upon 
application may be waived in writing by the Area Director or other 
officer in charge of the Five Civilized Tribes Agency either before or 
after the approval of a lease, such waiver to be subject to termination 
at any time upon 10 days' written notice to the holder of the lease by 
the said Area Director or other officer in charge.
    (c) Each lessee, except oil and gas lessees, shall file with the 
Area Director an itemized statement in duplicate, within 20 days after 
the close of each calendar year, of the amount and character of said 
expenditures during such years the statement to be certified under oath 
by the lessee or his agent having personal knowledge of the facts 
contained therein.



Sec. 213.23  Royalty rates for minerals other than oil and gas.

    Unless otherwise authorized by the Commissioner of Indian Affairs, 
the minimum rates for minerals other than oil and gas shall be as 
follows:
    (a) For substances other than gold, silver, copper, lead, zinc, 
tungsten, coal, asphaltum and allied substances, oil, and gas, the 
lessee shall pay quarterly or as otherwise provided in the lease, a 
royalty of not less than 10 percent of the value, at the nearest 
shipping point, of all ores, metals, or minerals marketed.
    (b) For gold and silver the lessee shall pay quarterly or as 
otherwise provided in the lease, a royalty of not less than 10 percent 
to be computed on the value of bullion as shown by mint returns after 
deducting forwarding charges to the point of sale; and for copper, lead, 
zinc, and tungsten, a royalty of not less than 10 percent to be

[[Page 536]]

computed on the value of ores and concentrates as shown by reduction 
returns after deducting freight charges to the point of sale. Duplicate 
returns shall be filed by the lessee with the Area Director within 10 
days after the ending of the quarter or other period specified in the 
lease within which such returns are made: Provided, however, That the 
lessee shall pay a royalty of not less than 10 percent of the value of 
the ore or concentrates sold at the mine unless otherwise provided in 
the lease.
    (c) For coal the lessee shall pay quarterly or as otherwise provided 
in the lease, a royalty of not less than 10 cents per ton of 2,000 
pounds of mine run, or coal as taken from the mine, including what is 
commonly called ``slack.''
    (d) For asphaltum and allied substances the lessee shall pay 
quarterly or as otherwise provided in the lease, a royalty of not less 
than 10 cents per ton of 2,000 pounds on crude material or not less than 
60 cents per ton on refined substances.



Sec. 213.24  Rate of rents and royalties on oil and gas leases.

    The lessee shall pay, beginning with the date of approval of oil and 
gas leases by the Secretary of the Interior, a rental of $1.25 per acre 
per annum in advance during the continuance thereof, together with a 
royalty of 12\1/2\ percent of the value or amount of all oil, gas and/or 
natural gasoline, and/or all other hydrocarbon substances produced and 
saved from the land leased, save and except oil and/or gas used by the 
lessee for development and operation purposes on the lease, which oil or 
gas shall be royalty free. A higher rate of royalty may be fixed by the 
Secretary of the Interior or his authorized representative, prior to the 
advertisement of land for oil and gas leases. During the period of 
supervision, ``value'' for the purposes of the lease may, in the 
discretion of the Secretary of the Interior be calculated on the basis 
of the highest price paid or offered (whether calculated on the basis of 
short or actual volume) at the time of production for the major portion 
of the oil of the same gravity, and gas, and/or natural gasoline, and/or 
all other hydrocarbon substances produced and sold from the field where 
the leased lands are situated, and the actual volume of the marketable 
product less the content of foreign substances as determined by the 
supervisor. The actual amount realized by the lessee from the sale of 
said products may, in the discretion of the Secretary of the Interior, 
be deemed mere evidence of or conclusive evidence of such value. When 
paid in value, such royalties shall be due and payable monthly at such 
time as the lease provides; when royalty on oil produced is paid in 
kind, such royalty oil shall be delivered in tanks provided by the 
lessee on the premises where produced without cost to the lessor unless 
otherwise agreed to by the parties thereto, at such time as may be 
required by the lessor. The lessee shall not be required to hold such 
royalty oil in storage longer than 30 days after the end of the calendar 
month in which said oil is produced. The lessee shall be in no manner 
responsible or held liable for loss or destruction of such oil in 
storage by causes beyond his control.



Sec. 213.25  Free use of gas by lessor.

    If the leased premises produce gas in excess of the lessee's 
requirements for the development and operation of said premises, then 
the lessor may use sufficient gas, free of charge, for all stoves and 
inside lights in the principal dwelling house on said premises, by 
making his own connections to a regulator, connected to the well and 
maintained by the lessee, and the lessee shall not be required to pay 
royalty on gas so used. The use of such gas shall be at the lessor's 
risk at all times.



Sec. 213.26  Rate of royalty on casing-head gas.

    (a) On casing-head gas used or sold for the manufacture of casing-
head gasoline the minimum rate of royalty shall be 12\1/2\ percent of 
the value of the casing-head gas, which value shall be determined and 
computed on the basis and in the manner provided in the applicable 
operating regulations of the Department.
    (b) In cases where gas produced and sold has a value for drip 
gasoline, casing-head gasoline content, and as dry

[[Page 537]]

gas from which the casing-head gasoline has been extracted, then the 
royalties above provided shall be paid on all such values.



Sec. 213.27   Rate of rental for nonutilized gas wells.

    If the gas from a gas producing well is not marketed or utilized, 
other than for operation of the lease, then for each such well the 
lessee shall pay such rental as may be determined by the supervisor and 
approved by the Secretary of the Interior, calculated from the date of 
the completion of the well. Payment of annual gas rentals shall be made 
within 30 days from the date such payment becomes due.



Sec. 213.28  Royalty payments and production reports.

    (a) Royalty payments on all oil and gas or other producing leases 
shall be made at the rates, and at such time, and in the manner 
prescribed by the terms of the lease.
    (b) Quarterly reports shall be made by each lessee on nonproducing 
leases other than oil and gas within 25 days after December 31, March 
31, June 30, and September 30, of each year, upon forms provided, 
showing manner of operations and total production during such quarter. A 
lessee may include within one sworn statement all leases upon which 
there is no production or upon which dry holes have been drilled. 
Reports of oil and gas leases where royalty accounting is done in the 
field office of the supervisor will be made as required in the operating 
regulations.



Sec. 213.29  Division orders.

    (a) Lessees may make arrangements with the purchasers of oil and gas 
for the payment of the royalties as provided for in the lease and the 
regulations but such arrangement, if made, shall not operate to relieve 
a lessee from responsibility should the purchaser fail or refuse to pay 
royalties when due. Where lessees avail themselves of this privilege, 
division orders should be executed by the lessee and forwarded to the 
supervisor for approval. Purchasers may be authorized by the supervisor 
to reimburse lessees out of royalties for advance rents and advance 
royalties. Copies of written instructions, notices, modifications, 
revocations, and authorizations, as provided for in Sec. 213.18 (a) and 
(b), shall be furnished to purchasers. The right is reserved for the 
supervisor to cancel a division order at any time or require the 
purchaser to discontinue to run the oil of any lessee who fails to 
operate the lease properly or otherwise violates the provisions of the 
lease, of the regulations in this part, or of the operating regulations.
    (b) When oil is taken by authority of a division order, the lessee 
or his representatives shall be actually present when the oil is gauged 
and records are made of the temperature, gravity, and impurities. The 
lessee will be held responsible for the correctness and the correct 
recording and reporting of all the foregoing measurements, which, except 
lowest gauge, shall be made at the time the oil is turned into the 
pipeline. Failure of the lessee to perform properly these duties will 
subject the division order to revocation.

                               Operations



Sec. 213.30  Permission to start operations.

    No operations will be permitted on any lease before it is approved. 
Written permission must be secured from the supervisor before any 
operations are started under any oil and gas lease. Operations must be 
in accordance with the operating regulations promulgated by the 
Secretary of the Interior. Copies of these regulations may be secured 
from either the supervisor or the Area Director and no operations should 
be attempted without a study of the operating regulations.



Sec. 213.31  Restrictions on operations.

    (a) Oil and gas leases issued under the provisions of this part 
shall be subject to imposition by the Secretary of the Interior of such 
restrictions as to time or times for the drilling of wells and as to the 
production from any well or wells as in his judgment may be necessary or 
proper for the protection of the natural resources of the leased land 
and in the interest of the lessor. In the exercise of his judgment the 
Secretary of the Interior may take into consideration, among other 
things, the Federal

[[Page 538]]

laws, State laws, regulations by competent Federal or State authorities, 
lawful agreements among operators regulating either drilling or 
production, or both.
    (b) All such leases shall be subject to any cooperative or unit plan 
of development affecting the leased lands that may be required by the 
Secretary of the Interior, but no lease shall be included in any 
cooperative or unit plan without prior approval of the Secretary of the 
Interior. If said plan effects a change in the lease terms, the consent 
of the lessor or lessors must be obtained before the plan is effective.



Sec. 213.32  Wells.

    The lessee shall agree (a) to drill and produce all wells necessary 
to offset or protect the leased land from drainage by wells on adjoining 
lands not the property of the lessor, or in lieu thereof, compensate the 
lessor in full each month for the estimated loss of royalty through 
drainage: Provided, That during the period of supervision by the 
Secretary of the Interior, the necessity for offset wells shall be 
determined by the supervisor and payment in lieu of drilling and 
producing shall be with the consent of, and in an amount determined by 
the Secretary of the Interior; (b) at the election of the lessee to 
drill and produce other wells: Provided, That the right to drill and 
produce such other wells shall be subject to any system of well spacing 
or production allotments authorized and approved under applicable law or 
regulations, approved by the Secretary of the Interior and affecting the 
field or area in which the leased lands are situated; and (c) if the 
lessee elects not to drill and produce such other wells for any period 
the Secretary of the Interior may, within 10 days after due notice in 
writing, either require the drilling and production of such wells to the 
number necessary, in his opinion, to insure reasonable diligence in the 
development and operation of the property, or may in lieu of such 
additional diligent drilling and production require the payment on and 
after the first anniversary date of the lease of not to exceed $1 per 
acre per annum, which sum shalI be in addition to any rental or royalty 
herein specified.



Sec. 213.33  Diligence and prevention of waste.

    The lessee shall exercise diligence in drilling and operating wells 
for oil and gas on the leased lands while such products can be secured 
in paying quantities; carry on all operations in a good and workmanlike 
manner in accordance with approved methods and practice, having due 
regard for the prevention of waste of oil or gas developed on the land, 
or the entrance of water through wells drilled by the lessee to the 
productive sands or oil or gas-bearing strata to the destruction or 
injury of the oil or gas deposits, the preservation and conservation of 
the property for future productive operations, and to the health and 
safety of workmen and employees; plug securely all wells before 
abandoning the same and to shut off effectually all water from the oil 
or gas-bearing strata; not drill any well within 200 feet of any house 
or barn on the premises without the lessor's written consent approved by 
the Area Director; carry out at his expense all reasonable orders and 
requirements of the supervisor relative to prevention of waste, and 
preservation of the property and the health and safety of workmen; bury 
all pipelines crossing tillable lands below plow depth unless other 
arrangements therefor are made with the Area Director; pay the lessor 
all damages to crops, buildings, and other improvements of the lessor 
occasioned by the lessee's operations: Provided, That the lessee shall 
not be held responsible for delays or casualties occasioned by causes 
beyond his control.



Sec. 213.34  Inspection of premises; books and accounts.

    Lessees shall agree to allow the lessors and their agents or any 
authorized representative of the Interior Department to enter, from time 
to time, upon and into all parts of the leased premises for the purpose 
of inspection, and shall further agree to keep a full and correct 
account of all operations and make reports thereof, as required by the 
applicable regulations of the Department; and their books and records, 
showing manner of operations and persons interested, shall be open at 
all times for examination by such officers

[[Page 539]]

of the Department as shall be instructed in writing by the Secretary of 
the Interior or authorized by regulations to make such examination.



Sec. 213.35  Mines to be timbered properly.

    In mining operations the lessee shall keep the mine well and 
sufficiently timbered at all points where necessary, in accordance with 
good mining practice, and in such manner as may be necessary to the 
proper preservation of the property leased and safety of workmen.



Sec. 213.36  Surrender of leased premises in good condition.

    On expiration of the term of a lease, or when a lease is 
surrendered, the lessee shall deliver to the Government the leased 
ground, with the mine workings in case of leases other than oil and gas, 
in good order and condition, and the bondsmen will be held for such 
delivery in good order and condition, unless relieved by the Secretary 
of the Interior for cause. It shall, however, be stipulated that the 
machinery necessary to operate any mine is the property of the lessee, 
but that it may be removed by him only after the condition of the 
property has been ascertained by inspection by the Secretary of the 
Interior or his authorized agents, to be in satisfactory condition.



Sec. 213.37  Penalties.

    Failure of the lessee to comply with any provisions of the lease, of 
the operating regulations, of the regulations in this part, orders of 
the Area Director or his representative, or of the orders of the 
supervisor or his representative, shall subject the lease to 
cancellation by the Secretary of the Interior or the lessee to a penalty 
of not more than $500 per day for each day the terms of the lease, the 
regulations, or such orders are violated, or to both such penalty and 
cancellation: Provided, That the lessee shall be entitled to notice and 
hearing, within 30 days after such notice, with respect to the terms of 
the lease, regulations, or orders violated, which hearing shall be held 
by the supervisor, whose findings shall be conclusive unless an appeal 
be taken to the Secretary of the Interior within 30 days after notice of 
the supervisor's decision, and the decision of the Secretary of the 
Interior upon appeal shall be conclusive.



Sec. 213.38  Assignments and overriding royalties.

    (a) Leases or any interest therein, may be assigned or transferred 
only with the approval of the Secretary of the Interior, and to procure 
such approval the assignee must be qualified to hold such lease under 
existing rules and regulations, and shall furnish a satisfactory bond 
for the faithful performance of the covenants and conditions thereof. No 
lease or any interest therein, or the use of such lease, shall be 
assigned, sublet, or transferred, directly or indirectly, by working or 
drilling contract, or otherwise, without the consent of the Secretary of 
the Interior. Assignments of leases shall be filed with the Area 
Director within 20 days after the date of execution.
    (b) An agreement creating overriding royalties or payments out of 
production on oil and gas leases under this part shall be subject to the 
provisions of Sec. 211.26(d) of this subchapter, or as hereafter 
amended.

[22 FR 10599, Dec. 24, 1957, as amended at 23 FR 9758, Dec. 18, 1958. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 213.39  Stipulations.

    The lessee under any lease heretofore approved may by stipulation 
(Form 5-154i) with the consent of the lessor and the approval of the 
Secretary of the Interior, make such approved lease subject to all the 
terms, conditions, and provisions contained in the lease form and 
regulations currently in use. Stipulations shall be filed with the Area 
Director within 20 days after the date of execution.



Sec. 213.40  Cancellations.

    (a) When, in the opinion of the Secretary of the Interior, the 
lessee has violated any of the terms and conditions of a lease or of the 
applicable regulations, or if mining operations are conducted wastefully 
and without regard to good mining practice, the Secretary of the 
Interior shall have the right at any time after 30 days' notice to the 
lessee specifying the terms and

[[Page 540]]

conditions violated, and after a hearing, if the lessee shall so request 
within 30 days after issuance of the notice, to declare such lease null 
and void, and the lessor shall then be entitled and authorized to take 
immediate possession of the land.
    (b) On the following conditions, the lessee may, on approval of the 
Secretary of the Interior, surrender a lease or any part of it:
    (1) That he make application for cancellation to the Area Director 
having jurisdiction over the land.
    (2) That he pay a surrender fee of $1 at the time the application is 
made.
    (3) That he pay all royalties and rentals due to the date of such 
application.
    (4) That he make a satisfactory showing that full provision has been 
made for conservation and protection of the property and that all wells, 
drilled on the portion of the lease surrendered, have been properly 
abandoned.
    (5) If the lease has been recorded, that he file, with his 
application, a recorded release of the acreage covered by the 
application.
    (6) If the application is for the cancellation of the entire lease 
or the entire undivided portion, that he surrender the lease: Provided, 
That where the application is made by an assignee to whom no copy of the 
lease was delivered, he will be required to surrender only his copy of 
assignment.
    (7) If the lease (or portion being surrendered or canceled) is owned 
in undivided interests by more than one party, then all parties shall 
join in the application for cancellation.
    (8) That all required fees and papers must be in the mail or 
received on or before the date upon which rents and royalties become 
due, in order for the lessee and his surety to be relieved from 
liability for the payment of such royalties and rentals.
    (9) If there has been a contest respecting a lease or leases, the 
approved, the disapproved, or the canceled parts thereof will be held in 
the office of the Area Director for 5 days after the Department's 
decision has been promulgated, by mail or delivery, and will not be 
delivered, if within that period a motion for review and reconsideration 
be filed, until such motion is passed upon by the Department.
    (10) In the event oil or gas is being drained from the leased 
premises by wells not covered by a lease; the lease, or any part of it, 
may be surrendered, only on such terms and conditions as the Secretary 
of the Interior may determine to be reasonable and equitable.
    (c) No part of any advance rental shall be refunded to the lessee 
nor shall he be relieved, by reason of any subsequent surrender or 
cancellation of the lease, from the obligation to pay said advance 
rental when it becomes due.
    (d) For proper method of terminating departmental leases covering 
lands from which restrictions have been removed see section 3 of the act 
of May 27, 1908 (35 Stat. 312).

                         Removal of Restrictions



Sec. 213.41  Leases executed but not approved before restrictions removed from land.

    Leases executed before the removal of restrictions against 
alienation on land from all of which restrictions against alienation 
shall be removed after such execution, if such leases contain specific 
provisions for approval by the Secretary of the Interior, whether now 
filed with the Department or presented for consideration hereafter, will 
be considered and acted upon by this Department as heretofore but only 
for the purpose of approving or disapproving the instrument.



Sec. 213.42  Operations after removal of restrictions from leased lands.

    (a) Oil and gas leases heretofore approved and leases for other 
minerals now or hereafter in force on land from all of which 
restrictions against alienation have been or shall be removed, even if 
such leases contain provision authorizing supervision by this 
Department, shall after such removal of restrictions against alienation, 
be operated entirely free from such supervision, and the authority and 
power delegated to the Secretary of the Interior in said leases shall 
cease and all payments required to be made to the Area Director shall 
thereafter be made to the lessor or the then owner of the land, and 
changes in regulations thereafter made by the Secretary of the Interior 
shall not apply to such leased

[[Page 541]]

land from which said restrictions are removed.
    (b) In the event restrictions are removed from a part of the land 
included in any lease to which this section applies the entire lease 
shall continue subject to the supervision of the Secretary of the 
Interior, and all royalties thereunder shall be paid to the Area 
Director until such time as the lessor and lessee shall furnish the 
Secretary of the Interior satisfactory information that adequate 
arrangements have been made to account for the oil, gas or mineral upon 
the restricted land separately from that upon the unrestricted. 
Thereafter the restricted land only shall be subject to the supervision 
of the Secretary of the Interior: Provided, That the unrestricted 
portion shall be relieved from such supervision as in the lease or 
regulations provided.



Sec. 213.43  Relinquishment of Government supervision.

    All oil and gas leases hereafter executed shall contain the 
following relinquishment of supervision clause and terms operative after 
such relinquishment, or other provisions similar in substance:

    Relinquishment of supervision by the Secretary of the Interior.--
Should the Secretary of the Interior, at any time during the life of 
this instrument, relinquish supervision as to all or part of the acreage 
covered hereby, such relinquishment shall not bind lessee until said 
Secretary shall have given 30 days' written notice. Until said 
requirements are fulfilled, lessee shall continue to make all payments 
due hereunder as heretofore in section 3(c). After notice of 
relinquishment has been received by lessee, as herein provided this 
lease shall be subject to the following further conditions:
    (a) All rentals and royalties thereafter accruing shall be paid in 
the following manner: Rentals and royalties shall be paid to lessor or 
his successors in title, or to a trustee appointed under the provision 
of section 9 hereof. Rentals and royalties shall be paid directly to 
lessor, his successors in title, or to said trustee as the case may be.
    (b) If, at the time supervision is relinquished by the Secretary of 
the Interior, lessee shall have made all payments then due hereunder, 
and shall have fully performed all obligations on its part to be 
performed up to the time of such relinquishment, then the bond given to 
secure the performance hereof, on file in the Indian Office, shall be of 
no further force or effect.
    (c) Should such relinquishment affect only part of the acreage, then 
lessee may continue to drill and operate the land covered hereby as an 
entirety: Provided, That lessee shall pay in the manner prescribed by 
section 3(c), for the benefit of lessor such proportion of all rentals 
and royalties due hereunder as the acreage retained under the 
supervision of the Secretary of the Interior bears to the entire acreage 
of the lease, the remainder of such rentals and royalties to be paid 
directly to lessor or his successors in title or said trustee as the 
case may be, as provided in subdivision (a) of this section.
    Division of fee. It is covenanted and agreed that should the fee of 
said land be divided into separate parcels, held by different owners, or 
should the rental or royalty interests hereunder be so divided in 
ownership, after the execution of this lease and after the Secretary of 
the Interior relinquishes supervision hereof, the obligations of lessee 
hereunder shall not be added to or changed in any manner whatsoever save 
as specifically provided by the terms of this lease. Notwithstanding 
such separate ownership, lessee may continue to drill and operate said 
premises as an entirety: Provided, That each separate owner shall 
receive such proportion of all rentals and royalties accruing after the 
vesting of his title as the acreage of the fee, or rental or royalty 
interest, bears to the entire acreage covered by the lease; or to the 
entire rental and royalty interest as the case may be: Provided further, 
That, if, at any time after departmental supervision hereof is 
relinquished, in whole or in part, there shall be four or more parties 
entitled to rentals or royalties hereunder, whether said parties are so 
entitled by virtue of undivided interests or by virtue of ownership of 
separate parcels of the land covered hereby, lessee at his election may 
withhold the payment of further rentals or royalties (except as to the 
portion due the Indian lessor while under restriction), until all of 
said parties shall agree upon and designate in writing and in a 
recordable instrument a trustee to receive all payments due hereunder on 
behalf of said parties and their respective successors in title. 
Payments to said trustee shall constitute lawful payments hereunder, and 
the sole risk of an improper or unlawful distribution of said funds by 
said trustee shall rest upon the parties naming said trustee and their 
respective successors in title. (The above provisions are copied from 
oil and gas mining lease Form 5-154h,\1\ revised April 24, 1935.)
---------------------------------------------------------------------------

    \1\ For information relative to obtaining Form 5-154h, see 
Sec. 211.30.

---------------------------------------------------------------------------

[[Page 542]]



Sec. 213.44  Division of royalty to separate fee owners.

    Should the removal of restrictions affect only part of the acreage 
covered by a lease containing provisions to the effect that the 
royalties accruing under the lease, where the fee is divided into 
separate parcels, shall be paid to each owner in the proportion which 
his acreage bears to the entire acreage covered by the lease, the lessee 
or assignee of such unrestricted portion will be required to make the 
reports required by the regulations in this part and the operating 
regulations with respect to the beginning of drilling operations, 
completion of wells, and production the same as if the restrictions had 
not been removed. In the event the unrestricted portion of the leased 
premises is producing, the owner of the lease thereon will be required 
to pay the portion of the royalties due the Indian lessor at the time 
and in the manner specified by the regulations in this part.



Sec. 213.45  Restrictions especially continued as to certain lands.

    Restricted lands allotted as either homestead or surplus allotments, 
designated as tax exempt under section 4 of the act of May 10, 1928, as 
amended May 24, 1928 (45 Stat. 495, 733), the entire interest in which 
was acquired by inheritance, gift, devise, or purchase with restricted 
funds, by persons of one-half or more Indian blood, after the passage of 
the act of January 27, 1933 (47 Stat. 777), continue to be restricted 
under the provisions of the last mentioned act and oil and gas leases 
thereof are subject to the regulations in this part and all such leases 
to be valid must be approved by the Secretary of the Interior. Lands 
inherited by or devised to full blood Indians prior to the act of 
January 27, 1933, are not affected as to restrictions by the provisions 
of said act and may continue to be leased with the approval of the 
county court having jurisdiction of the estate of the deceased allottee 
and without approval of the Secretary of the Interior (54 L.D. 382; 10 
F. (2d), 487). Lands acquired prior to the passage of the act of January 
27, 1933 by Indians of less than full blood, whether such lands were 
restricted and tax exempt or restricted and taxable, passed to such 
persons free of all restrictions. Inherited homesteads restricted prior 
to April 26, 1931, by section 9,\2\ of the act of May 27, 1908 (35 Stat. 
312), for the benefit of heirs of one-half or more Indian blood but less 
than full bloods, born after March 4, 1906, became unrestricted April 
26, 1931, or upon the death prior thereto of the heir born subsequent to 
March 4, 1906, and oil and gas leases thereof are not subject to the 
regulations in this part nor under the jurisdiction of the Secretary of 
the Interior.

    \2\ Repealed restrictions on inherited homesteads, by sec. 2 of the 
act of May 10, 1928 (45 Stat. 495).
---------------------------------------------------------------------------



Sec. 213.46  Field clerks.

    Local representatives known officially as ``field clerks'' are 
located in the various districts comprising that part of the State of 
Oklahoma occupied by the Five Civilized Tribes. Such field clerks shall 
report to and act under the direction of the Area Director. Any and all 
counsel and advice desired by allottees concerning deeds, leases, or 
other instruments or matters relating to lands allotted to them shall be 
furnished by such field clerks free of charge. Field clerks shall not, 
during their term of employment, have any personal interest, directly or 
indirectly, in any transaction concerning leases covering lands of 
allottees or in the purchase or sale of any such lands regardless of 
whether the restrictions have or have not been removed. This 
prohibition, however, shall not apply to lands which such field clerks 
have legally acquired before their employment in the Bureau of Indian 
Affairs. Field clerks shall report to the Area Director at the end of 
each month the work performed during such period and special reports 
shall be made immediately of any apparently illegal transaction 
involving the estates or allotments of allottees.



Sec. 213.47  Forms.

    The provisions of Sec. 211.30 of this chapter, or as hereafter 
amended, are applicable to this part.

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 543]]



Sec. 213.48  Effective date.

    The regulations in this part shall become effective and in full 
force from and after the date of approval (Apr. 27, 1938), and shall be 
subject to change or alteration at any time by the Secretary of the 
Interior: Provided, That no regulations made after the approval of any 
lease shall operate to affect the term of the lease, rate of royalty, 
rental, or acreage unless agreed to by both parties to the lease. All 
former regulations governing the leasing of individually owned lands of 
the Five Civilized Tribes for mining purposes are superseded by the 
regulations in this part.



Sec. 213.49  Scope of regulations.

    The regulations in this part shall apply in so far as practicable to 
land purchased for Indians under the Oklahoma Indian Welfare Act of June 
26, 1936 (49 Stat. 1967; 25 U.S.C. 501-509), as well as to other lands 
of individual Indians of the Five Civilized Tribes.



PART 214--LEASING OF OSAGE RESERVATION LANDS, OKLAHOMA, FOR MINING, EXCEPT OIL AND GAS--Table of Contents




Sec.
214.1  Definition.
214.2  Sale of leases.
214.3  Corporate information.
214.4  Bonds.
214.5  Additional information.
214.6  Failure of lessee to complete lease.
214.7  Operation not permitted until lease approved; 160 acres maximum 
          for single lease.
214.8  Acreage limitation.
214.9  Advance rental.
214.10  Royalty rates.
214.11  Payment of rents and royalties.
214.12  Time of payment of royalties.
214.13  Diligence; annual expenditures; mining records.
214.14  Use of surface lands.
214.15  Homesteads.
214.16  Settlement of damages.
214.17  Use of timber from restricted lands.
214.18  Assignments.
214.19  Cancellation.
214.20  Annual reports by corporate lessees.
214.21  Inspection of lessees' books and records.
214.22  Serving of notices.
214.23  Plat of mine location.
214.24  Forms.
214.25  Forfeiture of lease.
214.26  Fine; notice and hearing.
214.27  Changes in regulations.
214.28  Location of sites for mines and buildings.
214.29  Prospecting; abandonment of mines.
214.30  Lessees must appoint local representative.

    Authority: Sec. 3, 34 Stat. 543.

    Source: 22 FR 10605, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 214.1  Definition.

    The term ``officer in charge'' shall refer to the superintendent of 
the Osage Indian Agency and school or other representative of the 
Government who may, for the time, be in charge of the Osage Agency and 
school, or any person who may be detailed by the Secretary of the 
Interior or the Commissioner of Indian Affairs to take charge of leasing 
or mining operations under the regulations in this part.



Sec. 214.2  Sale of leases.

    Leases of minerals other than oil and gas may be negotiated with the 
tribal council after permission to do so has been obtained from the 
officer in charge. Leases with all papers required, shall be filed with 
the officer in charge within 30 days from the date of execution by the 
lessee and the principal chief of the Osage Tribe. The lease will be 
forwarded to the Commissioner of Indian Affairs for consideration by him 
and the Secretary of the Interior and will become effective only after 
approval by the Secretary of the Interior. If any lease should be 
disapproved through no fault of the lessee, all amounts deposited by him 
will be promptly refunded.



Sec. 214.3  Corporate information.

    A corporation shall file with its first lease a certified copy of 
articles of incorporation, and, if a foreign corporation, evidence 
showing compliance with local corporation laws in duplicate; a list of 
all stockholders, with their post office addresses, and showing the 
number of shares of capital stock held by each; together with a sworn 
statement of its proper officer showing:
    (a) The total number of shares of the capital stock actually issued, 
the number of shares actually sold and the amount of cash paid into the 
treasury

[[Page 544]]

out of the stock sold, or, if paid in property, kind, quantity, and 
value of the same.
    (b) Of the stock sold, how much per share remains unpaid and subject 
to assessment.
    (c) How much cash the company has in its treasury and elsewhere, and 
from what source it was received.
    (d) What property, exclusive of cash, is owned by the company, and 
its value.
    (e) What the total indebtedness of the company is, and the nature of 
its obligations.
    (f) Names of officers and directors.



Sec. 214.4  Bonds.

    Lessee shall furnish with each lease at the time it is filed with 
the officer in charge an acceptable bond not less than the following 
amounts:

For less than 80 acres............................................$1,000
For 80 acres and less than 120 acres...............................1,500
For 120 acres and not more than 160 acres..........................2,000
For each additional 40 acres, or part thereof above 160 acres........500

    Provided, That for leases for minerals other than oil and gas the 
Secretary of the Interior or his authorized representatives with the 
consent of the Indian landowner may authorize a bond for a lesser amount 
if, in his opinion, the circumstances warrant and the interests of the 
Indian landowners are fully protected: Provided further, That the lessee 
shall be allowed to file bond, Form S \1\ covering all leases to which 
he or they are or may become parties instead of a separate bond in each 
case, such bond to be in the penal sum of $15,000. The right is reserved 
to change the amount of the bond in any particular case, or to require a 
new bond in the discretion of the Secretary of the Interior.
---------------------------------------------------------------------------

    \1\ For further information concerning forms, see Sec. 214.24.

[26 FR 164, Jan. 10, 1961. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 214.5  Additional information.

    The officer in charge may, at any time, either before or after 
approval of a lease call for any additional information necessary to 
carry out the purpose and intent of the regulations in this part, and 
such information shall be furnished within the time specified in the 
request therefor.



Sec. 214.6  Failure of lessee to complete lease.

    Should a lessee fail to furnish, within the time specified after his 
bid is accepted, the papers necessary to put his lease and bond in 
proper form for consideration, the officer in charge shall recommend 
that the sale be disapproved and money paid forfeited to the Osage 
Tribe.



Sec. 214.7  Operation not permitted until lease approved; 160 acres maximum for single lease.

    No mining or work of any nature will be permitted upon any tract of 
land until a lease covering such tract shall have been approved by the 
Secretary of the Interior and delivered to the lessee. All leases shall 
be made for such period as the title to the minerals remain in the Osage 
Tribe, which time will expire April 8, 1931, unless otherwise provided 
by Congress and shall be subject to cancellation or termination as 
specified in this part. Leases made by corporations shall be accompanied 
by an affidavit by the secretary or president of the company showing the 
authority of its officers to execute leases, bonds, and other papers. No 
lease shall be made covering more than 160 acres.



Sec. 214.8  Acreage limitation.

    No person, firm, or corporation shall hold under lease at any one 
time without special permission from the Secretary of the Interior in 
excess of the following areas:
    (a) For deposits of the nature of lodes, or veins containing ores of 
gold, silver, copper, or other useful metals, 640 acres.
    (b) For beds of placer gold, gypsum, asphaltum, phosphate, iron 
ores, and other useful minerals, other than coal, lead, and zinc, 960 
acres.
    (c) For coal, 4,800 acres.
    (d) For lead and zinc, 1,280 acres.



Sec. 214.9  Advance rental.

    (a) Lessees shall pay, in addition to other considerations, annual 
advance rentals as follows: 15 cents per acre for

[[Page 545]]

the first year; 30 cents per acre for the second year; 50 cents per acre 
for the third year; and $1 per acre per annum for the fourth and each 
succeeding year during the life of any lease: Provided, That all such 
payments of advance rentals shall be credits on royalties on production 
during the year for which payment of advance rental is made.
    (b) The payment of annual advance rental shall not release the 
lessee from the obligation to conduct mining operations, as required by 
the terms of the lease.



Sec. 214.10  Royalty rates.

    Royalties will be required as follows, subject to the approval of 
the President, in accordance with the act of June 28, 1906 (34 Stat. 
543):
    (a) For gold, silver, or copper lessee shall pay quarterly a royalty 
of 10 percent to be computed on the gross value of the ores as shown by 
reduction returns after deducting freight and treatment charges. 
Duplicate reduction returns shall be filed by the lessee with the 
officer in charge within 20 days after the reduction of the ores.
    (b) For coal the lessee shall pay a royalty of 10 cents per ton of 
2,000 pounds on mine run or coal as taken from the mines, including what 
is commonly called ``slack.''
    (c) For asphaltum and allied substances, the lessee shall pay 
quarterly a royalty of 10 cents per ton of 2,000 pounds on crude 
material, and 60 cents per ton on refined substances.
    (d) For substances other than gold, silver, copper, lead, zinc, 
coal, and asphaltum the lessee shall pay quarterly a royalty of 10 
percent of the value at the nearest shipping point of all ores, metals, 
or minerals marketed.
    (e) The royalties to be paid for lead and zinc shall be computed for 
each mineral at the same rate that the amount of the concentrates of 
such mineral bears to the total amount of dirt or rock actually mined, 
except as stipulated in this section. The royalty so determined shall be 
increased by adding 1 percent for each increase of $10 in the selling 
price per ton thereof over and above the following, which shall be the 
agreed base or standard:

For zinc--$50
For lead--$65

but in no case shall the rate of royalty be less than 5 percent or more 
than 20 percent. The percentage of recovery shall be computed as nearly 
as practicable upon the ore included in each sale, but where it is 
impracticable so to do the officer in charge and the lessee shall agree 
upon some other method of computation which will produce substantially 
the same result: Provided, That in case of their disagreement the 
Commissioner of Indian Affairs shall prescribe a rule of computation to 
be followed in such cases.

    Note: The royalty would always be determined under this rule by 
ascertaining the percentage of recovery were it not for two things: (1) 
the flat rates which are fixed as the minimum and the maximum rates of 
royalty and (2) variations in the selling price of the ores. Concrete 
examples coming under the rule are set forth in the following table:

                                  Zinc                                  
               [Where the base or standard is $50 per ton]              
------------------------------------------------------------------------
 Percentage of recovery       Selling price          Royalty (percent)  
------------------------------------------------------------------------
7......................           $48                        7          
14.....................            49                       14          
12.....................            50                       12          
15.....................            60                       16          
30.....................            60                       20          
9......................            70                       11          
------------------------------------------------------------------------

A similar table might be constructed for royalties on lead, but in so 
doing it would be necessary to bear in mind that the base or standard 
selling price for the lead is to be $65 instead of $50.



Sec. 214.11  Payment of rents and royalties.

    All rentals, royalties, damages, or other amounts which may become 
due under leases approved in accordance with the regulations in this 
part shall be paid to the disbursing agent at Pawhuska, Okla. The 
remittances shall be in St. Louis exchange, except that where such 
exchanges cannot be procured post office or express money orders will be 
accepted. All royalties or other payments or claims of the Osage Tribe 
arising under such leases shall be a lien upon the mining plant 
machinery, and all minerals mined on the property leased or in which the 
lessee still retains any right, claim, or interest.

[[Page 546]]



Sec. 214.12  Time of payment of royalties.

    Royalties on all minerals produced in any quarter (January-March, 
April-June, July-September, October-December) shall be paid on or before 
the 25th day of the month next succeeding, and the remittance shaIl be 
accompanied by sworn reports covering all operations, whether there has 
been production or not. Annual advance rentals shall be paid within 10 
days after the beginning of the lease year.



Sec. 214.13  Diligence; annual expenditures; mining records.

    (a) Lessees shall exercise diligence in the conduct of prospecting 
and mining operations, and on all leases referred to in Sec. 214.8(a) 
shall expend annually in development work a sum which with the annual 
rental shall make an amount of not less than $5 per acre. On all leases 
referred to in Sec. 214.8 (b) and (c) there shall be expended annually 
in development work a sum which inclusive of the annual rental shall 
make an amount of not less than $1 for each acre or fraction thereof 
included in the lease. The lands covered by each lease referred to in 
Sec. 214.8 (d) shall be prospected for lead and zinc ores by drilling 
within 1 year test holes aggregating 2,000 feet unless a sufficient ore 
body is discovered to justify the sinking of a shaft to the ore body and 
the erecting of a mill when such tract may be released from further 
prospecting by the written consent of the superintendent: Provided, That 
within 90 days after an ore body of sufficient quantity is discovered, 
and shown by the logs or records of the drill holes, to justify the 
expenditure, the sinking of a shaft to the ore body, and the erection of 
a mill shall be commenced and continued to completion without cessation 
of work thereon, barring unavoidable accidents or causes beyond the 
control of the lessee.
    (b) Lessee shall keep upon the leased premises accurate records of 
the drilling, redrilling, or deepening of all holes showing the 
formations, and upon the completion of such holes, copies of such 
records shall be transmitted to the superintendent by the lessee after 
the first completion and of any further drilling thereafter, and a 
failure to so furnish report within the time prescribed shall be 
considered a violation of the regulations. Lessee shall, before 
commencing operations, file with the superintendent a plat and 
preliminary statement of how the openings are to be made and the 
property developed.



Sec. 214.14  Use of surface lands.

    (a) Lessees may use so much of the surface of the leased land as 
shall be reasonably necessary for the prospecting and mining operations 
and buildings required by the lease, and shall also have the right-of-
way over and across such land to any point of prospecting or mining 
operations, but such use of the surface shall be permissible only under 
condition of least injury and inconvenience to the allottee or owner of 
the land. Lessees before commencing and during such operations shall pay 
all reasonable damages for the use of the surface land and to any 
growing crops thereon, or to improvements on said land, or any damage 
that during the life of the lease may be occasioned in any manner 
whatsoever by the use of the surface, to the allottee or his successor 
in interest or assignee, or to a lessee of the surface of said land or 
to an oil and gas lessee, damages to be apportioned among the parties 
interested in the surface, whether as owner, lessee, or otherwise, as 
the parties in interest may mutually agree or as their interests may 
appear. If the parties are unable to agree concerning damages the same 
shall be determined by arbitration.
    (b) All agreements (or authenticated copies thereof) providing for 
the settlement of damages shall be filed in the Osage Agency if the 
surface owner is a restricted Indian, and all such amounts which may be 
due and payable to any such Indian shall be paid to the superintendent 
and by him immediately remitted to the Indian entitled thereto. All sums 
due as royalty or damages shall be a lien on all equipment on leased 
premises.



Sec. 214.15  Homesteads.

    Lessees and those acting under them shall not conduct prospecting or 
mining operations within or upon any homestead selection without written

[[Page 547]]

consent of the Secretary of the Interior.



Sec. 214.16  Settlement of damages.

    Any person, other than a lessee or an allottee or the heirs of a 
deceased allottee, claiming an interest in any leased tract or in 
damages thereto must furnish to the officer in charge a statment in 
writing showing his interest, and failure to furnish such statement 
shall constitute a waiver of notice and estop said person from claiming 
any part of such damages after the same shall have been disbursed.



Sec. 214.17  Use of timber from restricted lands.

    Lessees will not be permitted to use any timber from any Osage lands 
not relieved of restrictions upon alienation except under written 
agreement with the owner approved by the officer in charge.



Sec. 214.18  Assignments.

    Approved leases or any interest therein may be transferred or 
assigned with the consent and approval of the Secretary of the Interior 
and not otherwise. Transfers or assignments, when so approved, shall be 
subject to the terms and conditions of the original leases and 
regulations under which such leases were approved as well as to such 
additional requirements as the Secretary of the Interior may prescribe. 
The transferee or assignee shall furnish with his transfer or assignment 
a satisfactory bond as prescribed in Sec. 214.4 in connection with 
leases. Any attempt to transfer or assign an approved lease or any 
interest therein without the consent and approval of the Secretary of 
the Interior shall be absolutely void and shall subject the original 
lease to cancellation in the discretion of the secretary.



Sec. 214.19  Cancellation.

    When a lessee makes application for the cancellation of a lease in 
whole or in part, all royalties or rentals due up to and including the 
date of the application for cancellation must be paid, and that part of 
the lease delivered to the lessee shall be surrendered before such 
application will be considered. In the event a lease is surrendered for 
cancellation in whole or in part, after a new lease year has been 
entered upon, the lessee and his surety shall be liable for the advance 
rentals required to be paid under the lease for that year, and no part 
of such rentals which may have been paid shall be refunded.



Sec. 214.20  Annual reports by corporate lessees.

    Lessees and assignees must submit to the officer in charge on 
January 1, of each year and at such other times as may be required by 
the Secretary of the Interior, a statement containing the information 
called for in Sec. 214.3(a) and (f) and also showing any changes in 
officers or changes in or additions to stockholders. At any time 
individual stockholders may be required to show to the satisfaction of 
the Secretary of the Interior in what companies or with what persons or 
firms they are interested in mining leases on the Osage Reservation and 
whether they hold such stock or interest for themselves or in trust.



Sec. 214.21  Inspection of lessees' books and records.

    Lessees shall allow the agents and representatives of the lessor, or 
any authorized representative of the Interior Department, to enter, from 
time to time, upon and into all parts of the leased premises for the 
purpose of inspection, and their books and records showing manner of 
operations and persons interested, shall be open at all times for the 
examination of such officers of the department as shall be instructed by 
the Secretary of the Interior to make such examinations.



Sec. 214.22  Serving of notices.

    Wherever notice is provided for in this part it shall be sufficient 
if notice has been mailed to the last known place of address of the 
party, and time shall begin to run with the day next ensuing after the 
mailing or from the date of delivery of personal notice; but where the 
party is outside the State of Oklahoma the officer in charge may, in his 
discretion, increase the time allowed.

[[Page 548]]



Sec. 214.23  Plat of mine location.

    Lessees are required, when so requested, to file a plat of their 
leases showing exact locations of all mines, proposed locations, power 
houses, etc.



Sec. 214.24  Forms.

    Applications, leases, and other papers must be upon forms prepared 
by the department, and the superintendent of the Osage Indian school, 
Pawhuska, Okla., will furnish prospective lessees with such forms at a 
cost of $1 per set.

    Form M. Application for mining lease, including financial showing.
    Form N. Lease (except lead and zinc).
    Form O. Bond.
    Form P. Authority of officers to execute papers.
    Form Q. Assignment.
    Form R. Lease for lead and zinc.
    Form S. Collective bond.



Sec. 214.25  Forfeiture of lease.

    On the failure of any lessee or assignee to comply with any 
regulation or any obligation in the lease or assignment, the Secretary 
of the Interior may cancel and annul such lease without resorting to the 
courts and without any further proceeding: Provided, That the party or 
parties charged with such violation shall be first given not less than 
30 days' notice to show cause why such lease should not be canceled and 
annulled or other order made with reference thereto.



Sec. 214.26  Fine; notice and hearing.

    Violation of any of the terms or conditions of any lease or of the 
regulations pertaining thereto shall subject the lease to cancellation 
by the Secretary of the Interior, or the lessee to a fine of not 
exceeding $500 per day for each and every day the terms of the lease or 
of the regulations are violated, or the orders of the superintendent in 
reference thereto are not complied with, or to both such fine and 
cancellation in the discretion of the Secretary of the Interior: 
Provided, That the lessee shall be entitled to notice and hearing with 
respect to the terms of the lease or of the regulations violated, which 
hearing shall be held by the superintendent, whose findings shall be 
conclusive unless an appeal be taken to the Secretary of the Interior 
within 30 days after notice of the superintendent's decision, and the 
decision of the Secretary of the Interior upon appeal shall be 
conclusive.



Sec. 214.27  Changes in regulations.

    The regulations in this part are subject to change or alteration at 
any time by the Secretary of the Interior.



Sec. 214.28  Location of sites for mines and buildings.

    In event of disagreement between two or more mineral lessees 
regarding sites for the location of wells, mines, buildings, plants, 
etc., the same shall be determined by the superintendent after 
investigation and after due consideration of prior right of any lessee 
by reason of date of approval of lease.



Sec. 214.29  Prospecting; abandonment of mines.

    All prospecting or mining operations or the abandonment of a well or 
mine shall be subject to the approval of the superintendent, and any 
disagreement between lessees of mineral leases regarding operations 
likely to result in injury to either lessee shall be determined by the 
superintendent, whose decision shall be final, unless an appeal is filed 
with the Secretary of the Interior within 30 days after notice of such 
decision.



Sec. 214.30  Lessees must appoint local representative.

    Before actual drilling or development operations are commenced on 
leased lands, the lessee or assignee shall appoint a local or resident 
representative within the State, on whom the superintendent or other 
authorized representative of the department may serve notice or 
otherwise communicate with in securing compliance with the regulations 
in this part and shall notify the superintendent of the name and post 
office address of the representative so appointed.



PART 215--LEAD AND ZINC MINING OPERATIONS AND LEASES, QUAPAW AGENCY--Table of Contents




Sec.
215.0  Definitions.
215.1  No operations until lease approved.

[[Page 549]]

215.2  Local representative of lessee.
215.3  Manner and time of royalty payments.
215.4  Leases to be sold at public auction.
215.5  Royalty rates.
215.6  Applications for leases; consent of Indian owners.
215.7  Advertisement of sale of leases.
215.8  Submission of bids.
215.9  Execution of leases.
215.10  Renewal of leases on developed lands.
215.11  New leases where prior leases have been forfeited or abandoned.
215.12  Advertising costs.
215.13  Bond.
215.14  Payments to be made to superintendent.
215.15  Leases to be accompanied by Form D.
215.16  Requirements of corporate lessees.
215.17  Additional information required.
215.18  Term of leases.
215.19  Forms.
215.20  Assignment.
215.21  Payment of gross production tax on lead and zinc.
215.22  Operations.
215.23  Cooperation between superintendent and district mining 
          supervisor.
215.23a  Suspension of operations and production on leases for minerals 
          other than oil and gas.
215.24  Books and accounts.
215.25  Other minerals and deep-lying lead and zinc minerals.

    Authority: Sec. 26, 41 Stat. 1248; 50 Stat. 68.

    Source: 22 FR 10608, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 215.0  Definitions.

    The following expressions, wherever used in the regulations in this 
part or leases thereunder, shall have the meaning designated in this 
section:
    (a) Superintendent. The term ``superintendent'' shall mean any 
person in charge of the Quapaw Indian Agency, or having supervision 
under the direction of the Secretary of the Interior of the Indian 
restricted and trust allotted lands thereunder.
    (b) Allottee. The term ``allottee'' shall mean any Indian to whom 
land has been allotted, or any Indian owner of land or interest therein 
as an heir or devisee.
    (c) Incompetent Indian. The term ``incompetent Indian'' or 
``incompetent'' shall mean any Indian who has been declared by the 
Secretary of the Interior to be incompetent to improve or manage his 
restricted or trust lands properly or with benefit to himself. The term 
shall also include any Indian who is a minor and any Indian who is a 
legal incompetent under the laws of the State. The term shall also apply 
to any Indian who is in fact incompetent, and the question of whether an 
Indian is competent or incompetent at the time of making a lease of his 
restricted or trust Indian lands is one for the Secretary of the 
Interior to determine.
    (d) Lessee. The term ``lessee,'' except where otherwise modified or 
limited in the regulations in this part, shall mean any person, firm, or 
corporation, their legal representatives, heirs, or assigns, to whom a 
lead and zinc mining lease has been made by or on behalf of Indians 
under the provisions of the regulations in this part.
    (e) Lessor. The term ``lessor,'' except where otherwise modified or 
limited in the regulations in this part, shall mean any Indian owning or 
having any interest in restricted or trust allotted any inherited lands 
under the supervision of the Quapaw Indian Agency, by or for whom a 
lease has been executed pursuant to the regulations in this part.
    (f) Leased lands. The terms ``leased lands,'' ``leased premises,'' 
or ``leased tract'' shall mean any leased restricted or trust lands 
within and under jurisdiction of the Quapaw Indian Agency allotted to or 
inherited by an Indian.
    (g) Mining operations. The term ``mining operation'' or 
``operations,'' except where otherwise modified or limited in the 
regulations in this part or in leases thereunder shall mean actual 
drilling, mining, or construction on the leased lands.



Sec. 215.1  No operations until lease approved.

    No operations under any lease executed under the regulations in this 
part shall be permitted upon any restricted or trust lands allotted to 
or inherited by an Indian until such lease covering such tract shall be 
approved by the Secretary of the Interior.



Sec. 215.2  Local representative of lessee.

    Before actual drilling or development operations are commenced on 
the leased lands the lessee shall appoint a local or resident 
representative within Ottawa County, Oklahoma, on whom the 
superintendent may serve notice or

[[Page 550]]

otherwise communicate with in securing compliance with the regulations, 
and shall notify the superintendent of the name and post office address 
of the representative so appointed. In the event of the incapacity or 
absence from the county of Ottawa of such designated local or resident 
representative, the lessee shall appoint some person to serve in his 
stead, and in the absence of such representative or of notice of the 
appointment of a substitute any employee of the lessee upon the leased 
premises, or the contractor, or other person in charge of mining 
operations thereon shall be considered the representative of the lessee 
for the purpose of service of orders or notices as provided in this 
part, and service upon any employee, contractor, or other person shall 
be deemed service on the lessee. Wherever a notice is provided for in 
the regulations in this part or in the lease from it shall be deemed 
sufficient if notice has been mailed to the last known address of the 
lessee or his local or resident representatives, and time shall begin to 
run with the day next ensuing after the mailing, or from date of 
delivery of personal notice.



Sec. 215.3  Manner and time of royalty payments.

    All royalties belonging to the lessor shall be paid to the 
superintendent of the Quapaw Agency at Miami, Okla., or such other 
official as the Secretary of the Interior may designate, for the benefit 
of the lessor, not later than 15 days from the 1st of each month for ore 
and concentrates sold during the preceding month.



Sec. 215.4  Leases to be sold at public auction.

    Except as otherwise provided in the regulations in this part, no 
lead and zinc mining lease under this part of restricted or trust 
allotted and inherited Indian lands within and under the Quapaw Indian 
Agency shall be made except to the highest responsible bidder at public 
auction.



Sec. 215.5  Royalty rates.

    (a) In leases offered for sale at public auction under the 
regulations in this part the royalty to be paid by the lessee shall be 
stipulated at a fixed percent of the gross proceeds of all lead and zinc 
ores and concentrates extracted from the leased premises, the royalty to 
be computed and based upon each sale of ore or concentrates separately, 
the rate of royalty to be determined and fixed by the Secretary of the 
Interior in the case of each lease prior to the offering of such lease 
for sale. Subject to the right of the Secretary of the Interior to 
reject any and all bids, leases offered for sale at public auction shall 
be awarded in each case to the responsible bidder submitting the highest 
bonus offer.
    (b) In leases not offered for sale at public auction but otherwise 
made and entered into under the provisions of the regulations in this 
part the royalty stipulated and fixed therein shall be such as may be 
determined by the Secretary of the Interior or as may be agreed upon in 
each case, subject to the approval of the Secretary of the Interior.
    (c) It shall be further provided, however, that said sale-price 
basis for the determination of the rates and amount of royalty shall not 
be less than the highest and best obtainable market price of the lead 
and zinc ores and concentrates at the usual and customary place of 
disposing of such ores and concentrates at the time of sale: Provided, 
however, That the right is reserved to the Secretary of the Interior to 
determine and declare such market price if it is deemed necessary for 
him to do so for the protection of the interests of the Indian lessor: 
And provided further, That the right is reserved to the Secretary of the 
Interior on behalf of the Indian lessors to reserve at any time it shall 
be deemed to be to the best interests of the Indian lessors and upon due 
notice to the lessee, the royalty share of the gross production of the 
ore and concentrates and upon such notice that the royalty share of such 
production shall be stored and not sold, the lessee shall be required to 
store, free of charge to the Indian lessors in the ore bins of said 
lessee, said royalty shares of the gross production of ore and 
concentrates, provided that the lessee may not be required to store ore 
or concentrates for the lessor in amounts

[[Page 551]]

greater than one-third of his bin capacity or for a period longer than 6 
months.



Sec. 215.6  Applications for leases; consent of Indian owners.

    (a) Applications or requests by the Indian owners of restricted or 
trust land, or by others, that such land be leased or offered for lease 
for lead and zinc mining purposes should be addressed to the Secretary 
of the Interior and submitted through the superintendent of the Quapaw 
Indian Agency. Upon receipt of such applications or requests, the 
superintendent shall give consideration thereto and forward the same to 
the Commissioner of Indian Affairs with his report and recommendation.
    (b) In no instance will a new lease be executed and delivered (or 
advertised for sale to the highest bidder) unless the Indian owner 
thereof, if an adult who has not been specifically found by the 
Secretary of the Interior to be personally incompetent to transact 
ordinary business affairs, has agreed to the terms of said lease or the 
terms under which said lease is advertised for lease, except in cases 
where the land is owned by several co-tenants, and, in such cases, no 
such lease shall be given or advertised for sale unless the co-owners or 
a majority in interest, if adults, and not specifically declared 
incompetent, have first consented thereto: Provided, That in the event 
the majority in interest is owned by minors, or adults specifically 
found to be incompetent, then and in that event, the Secretary of the 
Interior reserves the right to lease the entire tract if, in his 
opinion, such leasing will inure to the best interest of the restricted 
Indian owners.



Sec. 215.7  Advertisement of sale of leases.

    Upon authority being granted by the Secretary of the Interior to the 
superintendent to offer for sale at public auction a lead and zinc 
mining lease of any tract or tracts of restricted or trust allotted and 
inherited Indian lands, the superintendent shall cause a notice to be 
published once a week for at least 4 weeks in some designated newspaper 
of general circulation in the county in which the land is located, 
setting forth that upon a certain day, which shall be not less than 30 
days from the first publication of such notice and at a place to be 
named in the notice, the superintendent or other duly authorized 
representatives of the Secretary of the Interior will offer for sale at 
public auction a lead and zinc mining lease of such lands to the highest 
and best bidder, subject to the rules and regulations prescribed by the 
Secretary of the Interior, notice to be in such form as may be 
prescribed by the Secretary of the Interior.



Sec. 215.8  Submission of bids.

    At the time of public auction bidders may submit their bids in 
person or by authorized agents, but in the latter case the bids must be 
accompanied by power of attorney duly executed by the real party or 
person in interest. Sealed bids may be submitted by mail or otherwise to 
the superintendent at his office at Miami, Okla., or delivered to him at 
the place set for the sale at any time prior to the hour fixed for 
offering the lease for sale. At the time and place of the public auction 
and before receiving the public bids the officer in charge shall 
announce the amounts and terms of all sealed bids received by him and 
the names of the bidders. The persons present, including those, if any, 
who may have theretofore submitted sealed bids, shall then be allowed to 
offer public bids. Bids must contain the offer of the stipulated and 
fixed royalty (see Sec. 215.5 as to royalty) and, in addition thereto, 
the offer of a bonus payable as follows: 25 percent at time of sale and 
the balance before or at time of execution of the lease contract. 
Bidders shall be required to submit with their bids a draft or certified 
check payable to the order of the superintendent covering the advance 
rental for the first year on the proposed leasehold and 25 percent of 
the amount of the bonus offered. The superintendent shall, in each case, 
determine the highest and best bid, said determination, however, to be 
subject to the approval of the Secretary of the Interior. Upon approval 
by the Secretary of the Interior of the award, the successful bidder 
shall, within 30 days from notice thereof, enter into and execute the 
lease contract in accordance with said bid and the regulations in this 
part. The

[[Page 552]]

lease so executed shall be subject to the approval of the Secretary of 
the Interior and may be accepted or rejected by him when submitted for 
his approval. The right is reserved to the Secretary of the Interior, in 
the event of the rejection of such lease, to authorize and instruct the 
superintendent to accept the offer of some competitive bidder or to 
readvertise the land for lease. The report of the superintendent to the 
Commissioner of Indian Affairs relative to the auction sale shall 
contain full information as to all bids received for the lease rights on 
the land. If any person or party fails or refuses to execute a lease 
after being declared the highest bidder or after being awarded such 
lease, the amount tendered with his bid shall be forfeited to the 
superintendent for the benefit of the owner of the land.



Sec. 215.9  Execution of leases.

    Whenever a lease award to a proposed lessee has been approved by the 
Secretary of the Interior, as provided in Secs. 215.7 and 215.8, the 
lease contract shall be executed by the Indian owner of the land, if he 
be an adult and not incompetent as defined in Sec. 215.0(c). Before any 
lease is entered into by the Indian owners or is approved by the 
Secretary of the Interior, all the adult and competent owners or co-
owners of the tract of land which it is proposed to lease, shall be 
furnished by the Bureau such geological reports as may be available or 
that can be secured from the representative of the Geological Survey 
showing the estimated mineral reserves on said property, the estimated 
reasonable value of such property for mining purposes, and such other 
data as might reasonably be necessary to fully advise the owners of said 
property of the then present status and mining value of their lands. If 
the Quapaw or other Indian owner of the land is a minor, or is otherwise 
an incompetent as defined in the regulations in this part, the lease 
contract shall be executed by the superintendent for and on behalf of 
such minor or such incompetent. The leases executed, either by the 
Indian owner of the land or by the superintendent in his behalf, shall 
be subject to the approval of the Secretary of the Interior and shall be 
effective only upon such approval.

[22 FR 10608, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 215.10  Renewal of leases on developed lands.

    (a) In cases where the lands have heretofore been leased, and lead 
and zinc ores have been discovered hereon, and it shall appear to the 
Secretary of the Interior to be advisable and to the best interests of 
the Indian owners of the lands that the terms of the existing lease or 
leases be extended or that a new lease or leases for an additional 
period of time, or that a new lease or leases to take effect upon the 
expiration of present valid leases, should, upon application therefor, 
be granted to either the present lessees or to parties holding under 
assignments, subleases, or mining contracts, from such present lessees, 
or to parties who have expended capital in lead and zinc mining 
operation and development of the land under such leases, assignments, 
subleases, or mining contracts, a new lease or leases or contract of 
extension or existing lease or leases as may be authorized by the 
Secretary of the Interior may be entered into with the proper party or 
parties as may be determined by said Secretary of the Interior, and such 
new lease or leases or contract of extension of existing lease or leases 
shall be executed subject to the regulations in this part by and between 
the Indian owner of the land, if an adult and not incompetent as defined 
in Sec. 215.0 (c), and said proper party or parties. If the Quapaw or 
other Indian owner of the land is a minor or an otherwise incompetent as 
defined in Sec. 215.0 (c), the superintendent shall execute the new 
lease or leases or contract of extension of existing lease or leases for 
and on behalf of said Indian minor or incompetent. Said new leases or 
contracts of extension of old leases, whether executed by the Indian 
owner of the land or by the superintendent for and in his behalf, shall 
be subject to the approval of the Secretary of the Interior and shall 
become effective only upon such approval. No offering for sale at public 
auction or advertisement of sale

[[Page 553]]

will be necessary in reference to contracts of extension of leases, or 
to leases entered into under this section, as above provided, but such 
lease or contract shall be upon such terms as to bonus and royalty as 
may be determined and fixed in each case by the Secretary of the 
Interior under the provisions of Sec. 215.5. The approval by the 
Secretary of the Interior of new leases or of the contracts of extension 
of old leases shall be conclusive as to the validity of said leases, or 
contracts of extension of leases, the manner and method of negotiating 
the same, and the execution thereof. If, however, in any case where 
lands have heretofore been leased and lead and zinc ores have been 
discovered thereon, it shall appear to the Secretary of the Interior 
that the extension of the existing lease or leases or the granting of 
new leases to the present lessees, or to the persons or parties holding 
under said lessees by assignment, sublease, or mining contract, would 
not be to the best interests of the Indian owners of the land, the 
Secretary of the Interior may, at the expiration, cancellation, or 
forfeiture of the existing lease, cause the mining lease rights on said 
land to be offered for sale at public auction to the highest bidder. If 
the lead and zinc mining lease on said land be offered for sale at 
public auction, the same procedure shall be followed as provided in 
Secs. 215.7 through 215.9.
    (b) Applications under the provision of this section for a lease or 
extension of lease or for the approval of such lease or extension of 
lease will not be received or considered prior to the period of 1 year 
next preceding the date of the expiration of such valid existing lease 
or leases as may be on the land covered by such application.
    (c) Applications under the provisions of this section for a lease or 
extension of lease or for the approval of such lease or extension of 
lease shall be filed with the superintendent of the Quapaw Agency at any 
time within the period of 1 year next preceding the date of the 
expiration of such valid existing lease or leases as may be on the land 
covered by such application, and if the records of or papers in the 
office of said superintendent or the records of the county court of 
Ottawa County, Okla., indicate that there are any prior existing leases, 
subleases, assignments of leases or mining contracts covering any of the 
land applied for, the superintendent shall notify all persons having or 
claiming any rights or interest in or under said prior existing leases, 
subleases, assignments of leases, or mining contract concerning said 
application for lease or extension of lease, and that they will be 
allowed 10 days in which to file with the superintendent any objection 
they may have to the allowance of the application or to the approval of 
the new lease or extension of existing lease. If objection or protest is 
made by any owner of the land or by any person claiming rights or 
interests in or under existing lease, sublease, assignment of lease, or 
mining contract, a reasonable time, not exceeding 20 days, shall be 
allowed them in which to file their statement or brief in support of 
their protest or objection, and a reasonable further time not exceeding 
10 days shall be allowed the applicant for new lease or for extension of 
existing lease to reply in support of the application. In case of 
contest, hearings may be had if deemed necessary by the Secretary of the 
Interior or his representative. The application and papers in each case 
shall be forwarded by the superintendent of the Quapaw Indian Agency to 
the Commissioner of Indian Affairs with his report and recommendation in 
regard thereto.



Sec. 215.11  New leases where prior leases have been forfeited or abandoned.

    In cases where the lands have heretofore been leased and lead and 
zinc ores have been discovered but the mines and mining operations have 
been abandoned and the leases have been canceled or forfeited or have 
expired, special arrangements in the matter of the leasing and mining of 
said lands may be made provided the consent thereto of the Secretary of 
the Interior be first obtained. Applications containing special offers 
as to the terms and conditions may be considered by the Secretary of the 
Interior and the leasing of said lands may be made upon such special 
terms and conditions as the Secretary of the Interior may in each case 
deem to be for the best interests of the Indian owners of the land.

[[Page 554]]

If, however, in any case, it shall appear to the Secretary of the 
Interior that the granting of such lease would not be to the best 
interest of the Indian owners of the land, the Secretary of the Interior 
may cause the mining lease rights on said land to be offered for sale at 
public auction to the highest bidder. If the lead and zinc mining lease 
on said land be offered for sale at public auction, the same procedure 
shall be followed as provided in Secs. 215.7 through 215.9.



Sec. 215.12  Advertising costs.

    All advertising costs, publication fees, expenses incurred for 
abstracts of lease title, and other expenses incurred in connection with 
the advertising and sale of leases and in connection with the execution 
of lease contracts shall be borne by the lessee. In the event a lease of 
the land is offered to the highest bidder and he fails or refuses to 
execute such lease when duly notified and as required by or under the 
regulations in this part, and no other bid is accepted, such costs, 
fees, and expenses shall be paid from such money as he may have paid 
with his bid. If no bid is tendered after a tract is advertised, or if 
all bids are refused, said items of expenses shall be charged to the 
Indian owner of the land and be paid by him or be paid by the 
superintendent from any funds held by such superintendent to the credit 
of such Indian owner of the land.



Sec. 215.13  Bond.

    Every mineral lease made and entered into under the regulations in 
this part, by an Indian or by the superintendent as his representative 
or in his behalf, must be accompanied by a surety bond, executed by the 
lessee and by a responsible surety company or two or more satisfactory 
sureties, guaranteeing the payment of all deferred installments of bonus 
and the payment of all specified royalties and rentals and the 
performance of all covenants and agreements undertaken by the lessee. 
Such bonds, unless authorized by the Secretary of the Interior or his 
authorized representative, with the consent of the Indian landowner, 
shall be not less than the following amounts:

For less than 80 acres--$2,500
For 80 acres and less than 120 acres--3,500
For 120 acres or more--5,000

    Provided, however, That the lessee may, in lieu of such surety bond 
and upon execution of a proper penal bond to the United States in the 
sum prescribed and a proper power of attorney to the Secretary of the 
Interior, submit therewith United States bonds or notes in the aggregate 
sum prescribed as security for the carrying out of the terms, 
conditions, and provisions of the lease: Provided further, That a lessee 
may file in lieu of such individual lease bonds, one bond in a sum to be 
fixed by the Secretary of the Interior covering all leases to which he 
is or may become a party. The right is specifically reserved to the 
Secretary of the Interior to require an increase of the amount of any 
bond above the sum named in any particular case where he deems it 
necessary to require such increased bond.

[26 FR 164, Jan. 10, 1961. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 215.14  Payments to be made to superintendent.

    No bonus, rents, royalties, nor other payments accruing under any 
mineral lease executed in accordance with or subject to the regulations 
in this part and approved by the Secretary of the Interior shall be paid 
direct to the Indian lessor; but all such bonus, rents, royalties, and 
other payments accruing under any such lease shall be paid to the 
superintendent for the benefit of the Indian lessors, to be deposited by 
that officer to the credit of the superintendent in some bank designated 
for the deposit of individual Indian moneys.



Sec. 215.15  Leases to be accompanied by Form D.

    Lead and zinc leases should be accompanied, when filed, with 
application for approval (Form D) \1\ made under oath, and said 
application shall set forth the information therein required.
---------------------------------------------------------------------------

    \1\ For further information concerning forms, see Sec. 215.19.

---------------------------------------------------------------------------

[[Page 555]]



Sec. 215.16  Requirements of corporate lessees.

    (a) When the lessee is a corporation, its first application must be 
accompanied by a sworn statement of its proper officers showing:
    (1) The total number of shares of the capital stock actually issued 
and, specifically, the amount of cash paid into the treasury on each 
share sold; or, if paid in property, state kind, quantity, and value of 
the same paid per share.
    (2) Of the stock sold how much per share remains unpaid and subject 
to assessment.
    (3) How much cash the company has in its treasury and elsewhere and 
from what source it was received.
    (4) What property, exclusive of cash, is owned by the company and 
its value.
    (5) What the total indebtedness of the company is, and, 
specifically, the nature of its obligations.
    (b) Subsequent applications of the corporation should show briefly 
the aggregate amounts of assets and liabilities.



Sec. 215.17  Additional information required.

    Corporations, with their first application, must file one certified 
copy of articles of incorporation and, if a foreign corporation, 
evidence showing compliance with local corporation laws; also a list 
showing officers and stockholders, with post-office addresses and number 
of shares held by each. Statements of any changes of officers or any 
changes or additions of stockholders must be furnished to the Indian 
superintendent on January 1 of each year and at any time when requested. 
The right is reserved to the Secretary of the Interior to require of 
individual stockholders affidavits setting forth in what companies or 
with what persons or firms they are interested in lead and zinc mining 
leases, or land under the jurisdiction of the Quapaw Indian Agency, and 
whether they hold such stock for themselves or in trust. Evidence must 
also be given in a single affidavit (Form I) by the Secretary of the 
company or by the president of said company, showing authority of the 
officers of the company to execute the lease, bond, and other papers.



Sec. 215.18  Term of leases.

    The term of lead and zinc mining leases executed pursuant to acts of 
Congress and under the regulations in this part shall be for such period 
of time as may be determined in each case by the Secretary of the 
Interior, but in no case shall a lease be made to extend beyond the 
restriction or trust period on the lands covered by such lease.



Sec. 215.19  Forms.\2\

    Application, leases, and other papers must be upon forms prescribed 
by the Secretary of the Interior. Except as may be otherwise provided 
and required by the Secretary of the Interior, the leases and other 
papers required under the regulations in this part shall be in 
conformity with the forms designated, respectively, as follows:
---------------------------------------------------------------------------

    \2\ Forms may be obtained from the Commissioner of Indian Affairs, 
Washington, D.C.

    Form A. Lease of Quapaw Indian land.
    Form B. For lease of Indian land other than Quapaw.
    Form C. Application by Indian.
    Form D. Application for approval of lease.
    Form E. Affidavit of lessor (or of superintendent acting for him) 
and affidavit of lessee.
    Form F. Surety bond.
    Form G. Affidavit of surety on personal bond.
    Form H. Certificate as to sufficiency of surety on personal bond.
    Form I. Affidavit as to authority of officers of corporation to 
execute lease and other papers.
    Form J. Penal bond (in lieu of surety bond), and accompanying power 
of attorney.
    Form K. Assignment of lead and zinc lease.



Sec. 215.20  Assignment.

    Leases granted or approved under the regulations in this part may be 
assigned and the leased premises may be subleased or sublet, but only 
with the consent and authority of the Secretary of the Interior and 
subject to his approval as to the terms and conditions of such 
assignments, sublease, and subletting contracts and not otherwise, and 
provided also that the proposed assignees, sublessee, or sublettee shall 
be qualified to hold such lease under the regulations in this part and 
shall furnish such bond as may be required by

[[Page 556]]

the Secretary of the Interior, such bond to be with responsible surety 
to the satisfaction of the Secretary of the Interior and conditioned for 
the faithful performance of the covenants and conditions of the lease. 
Upon the filing with the Indian agent of such assignment, financial 
statement, and bond, the said agent shall at once give notice in writing 
to all restricted Indian owners of said land, advising them of said 
proposed assignment, and that if they have any bona fide objections to 
same, such objections must be filed in writing within 10 days from the 
date of said notice.



Sec. 215.21  Payment of gross production tax on lead and zinc.

    The superintendent of the Quapaw Indian Agency is hereby authorized 
and directed to pay at the appropriate times, from the respective 
individual Indian funds held under his supervision, such gross 
production tax due the State on production of lead and zinc from 
restricted lands under his jurisdiction as may be properly assessed 
under provisions of law against the royalty interests of the respective 
Indian owners in the mineral produced from their lands.



Sec. 215.22  Operations.

    (a) All shafts shall be securely cribbed to a point at least 8 
inches above the immediate surrounding surface and cribbing shall be 
maintained in good condition during the life of the mining lease: 
Provided, however, That at any time shafts may be permanently sealed by 
a reinforced concrete slab after first obtaining the written approval of 
the duly authorized representative of the Department of the Interior. 
The slab shall be so placed as to prevent caving of the ground around 
the shaft collar.
    (b) All shafts, prior to the expiration, surrender, or upon 
cancellation of the mining lease or abandonment of the property, shall 
be permanently sealed so as to prevent the caving of the ground around 
the shaft collar: Provided, however, That this requirement may be waived 
after first obtaining the written consent of the duly authorized 
representative of the Department of the Interior.
    (c) All shaft entrances not permanently sealed shall be so fenced, 
boxed, or covered as to prevent persons or animals from falling into the 
mine when the shaft is not in actual use, and such fencing, boxing, or 
covering shall be maintained in good condition during the life of the 
mining lease.
    (d) All shafts where hoisting is done shall be boxed or fenced on 
three sides and the fourth side equipped with a gate which shall be kept 
closed when access to the shaft is not necessary.
    (e) All churn drill holes shall be securely plugged to the surface 
unless used for ventilation or other mining purposes, in which case they 
shall be cased or otherwise prevented from caving or becoming a hazard 
to persons or animals. If cased, the casing shall extend 4 feet above 
the collar of the hole.



Sec. 215.23  Cooperation between superintendent and district mining supervisor.

    (a) The district mining supervisor of the Miami field office, 
Geological Survey, directly or through his assistants, shall receive 
from lessees for the superintendent, all notices, reports, drill logs, 
maps, and records, and all other information relating to mining 
operations required by said regulations to be submitted by lessees, and 
shall maintain a file thereof for the superintendent.
    (b) The files of the Geological Survey supervisor relating to lead 
and zinc leases of Quapaw Indian lands shall be at all times available 
for inspection and use by authorized employees of the Bureau of Indian 
Affairs, and the employees of the Geological Survey assigned to work 
relating to Indian lands shall furnish to authorized employees of the 
Bureau of Indian Affairs such information and technical advice as may be 
necessary or appropriate to the most efficient cooperation in the 
conduct of the work assigned to the two bureaus. Likewise, similar 
facilities and service shall be provided for the benefit of the 
authorized employees of the Geological Survey by the Bureau of Indian 
Affairs.
    (c) No orders of any kind will be issued by Geological Survey 
representatives to any Indian, but such representatives shall have full 
authority to issue

[[Page 557]]

and amend orders to operators relative to production and operations: 
i.e., the supervision of all operations, including safety and 
efficiency, health and sanitation, and prevention of material or 
economic waste, such orders to be prepared with the advice of the local 
representative of the Bureau of Indian Affairs.

    Cross Reference: For regulations of the Geological Survey, see 30 
CFR chapter II.



Sec. 215.23a  Suspension of operations and production on leases for minerals other than oil and gas.

    The provisions of Sec. 212.15a of this subchapter are applicable to 
leases under this part.

[24 FR 9511, Nov. 26, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 215.24  Books and accounts.

    (a) The lessee shall maintain books in which shall be kept a correct 
account of all ore and rock mined on the tract, of all ore put through 
the mill, of all lead and zinc concentrates produced, and of all ore and 
concentrates sold and to whom sold, the weight, assay value, moisture 
content, base price, dates, penalties, and price received, and the 
percentage of lead and zinc recovered. A correct statement of the same 
for each month shall be furnished the office of the district mining 
supervisor pursuant to Sec. 215.23 not later than 15 days after the 
first of each month for the preceding month, together with a certificate 
from the smelter showing the unit price paid for the mineral purchased 
and the amount of ore and concentrates purchased during the month from 
said land.
    (b) An audit of the lessee's accounts and books shall be made 
semiannually, or at such other times as may be directed by the Secretary 
of the Interior, by certified public accountants, approved by the 
Secretary, and at the expense of the lessee. The lessee shall furnish 
free of cost a copy of such semiannual or other audit, through the 
office of the district mining supervisor pursuant to Sec. 215.23, within 
30 days after the completion of each auditing.



Sec. 215.25  Other minerals and deep-lying lead and zinc minerals.

    Except as provided in Sec. 215.6(b), leases on Quapaw Indian lands, 
for mining minerals other than lead and zinc and for lead and zinc and 
associated minerals below the horizon of the rock stratum known as the 
Reed Springs Formation, shall be made pursuant to the provisions of part 
212 of this subchapter.

[26 FR 1910, Mar. 4, 1961. Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 216--SURFACE EXPLORATION, MINING, AND RECLAMATION OF LANDS--Table of Contents




                      Subpart A--General Provisions

Sec.
216.1  Purpose.
216.2  Scope.
216.3  Definitions.
216.4  Technical examination of prospective surface exploration and 
          mining operations.
216.5  Basis for denial of a permit or lease.
216.6  Approval of exploration plan.
216.7  Approval of mining plan.
216.8  Performance bond.
216.9  Reports.
216.10  Inspection: Notice of noncompliance: Revocation.
216.11  Appeals.
216.12  Consultation.
    Authority: 34 Stat. 539, 35 Stat. 312; 25 U.S.C. 355 NT; 35 Stat 
781; 25 U.S.C. 396; sec. 1, 49 Stat. 1250; 25 U.S.C. 473a; 49 Stat. 
1967, 25 U.S.C. 501, 502; 52 Stat. 347, 25 U.S.C. 396a-f; 5 U.S.C. 301.



                      Subpart A--General Provisions

    Source: 34 FR 813, Jan. 18, 1969, unless otherwise noted. 
Redesignated at 42 FR 63394, Dec. 16, 1977; and further redesignated at 
47 FR 13327, Mar. 30, 1982.



Sec. 216.1  Purpose.

    It is the policy of this Department to encourage the development of 
the mineral resources underlying Indian lands where mining is 
authorized. However, interest of the Indian owners and the public at 
large requires that, with respect to the exploration for, and the

[[Page 558]]

surface mining of, such minerals, adequate measures be taken to avoid, 
minimize, or correct damage to the environment--land, water, and air--
and to avoid, minimize, or correct hazards to the public health and 
safety. The regulations in this part prescribe procedures to that end.



Sec. 216.2  Scope.

    (a) Except as provided in paragraph (b) of this section, the 
regulations in this part provide for the protection and conservation of 
nonmineral resources during operations for the discovery, development, 
surface mining, and onsite processing of minerals under permits or 
leases issued pursuant to statutes pertaining to Indian lands including 
but not limited to the following statutes or amendments thereto:

    The Act of June 28, 1906 (34 Stat. 539);
    The Act of May 27, 1908 (35 Stat. 312);
    The Act of March 3, 1909 (35 Stat. 781, 25 U.S.C. 396);
    The Act of May 1, 1936 (49 Stat. 1250);
    The Act of June 26, 1936 (49 Stat. 1967);
    The Act of May 11, 1939 (52 Stat. 347, 25 U.S.C. 396a-f, and 5 
U.S.C. 301).

    (b) The regulations in this part do not cover the exploration for 
oil and gas or the issuance of leases, or operations thereunder, nor 
minerals underlying lands, the surface of which is not owned by the 
owner of the minerals.
    (c) The regulations in this part shall apply only to permits or 
leases issued subsequent to the date on which these regulations become 
effective and which are subject to the approval of the Secretary of the 
Interior or his designated representative.



Sec. 216.3  Definitions.

    As used in the regulations in the part:
    (a) ``Superintendent'' means the superintendent or other officer of 
the Bureau of Indian Affairs having jurisdiction under delegated 
authority, over the lands involved.
    (b) ``Mining supervisor'' means the Regional Mining Supervisor, or 
his authorized representative, of the Geological Survey authorized as 
provided in 30 CFR 211.3 and 231.2 to supervise operations on the land 
covered by a permit or lease.
    (c) ``Overburden'' means all the earth and other materials which lie 
above a natural deposit of minerals and such earth and other materials 
after removal from their natural state in the process of mining.
    (d) ``Area of land to be affected'' or ``area of land affected'' 
means the area of land from which overburden is to be or has been 
removed and upon which the overburden or waste is to be or has been 
deposited, and includes all lands affected by the construction of new 
roads or the improvement or use of existing roads to gain access to an 
operation and for haulage.
    (e) ``Operation'' means all of the premises, facilities, roads, and 
equipment used in the process of determining the location, composition 
or quality of a mineral deposit, or in developing, extracting, or onsite 
processing of a mineral deposit in a designated area.
    (f) ``Method of operation'' means the method or manner by which a 
cut or open pit is made, the overburden is placed or handled, water is 
controlled or affected and other acts performed by the operator in the 
process of exploring or uncovering and removing or onsite processing of 
a mineral deposit.
    (g) ``Holder'' or ``operator'' means the permittee or lessee 
designated in a permit or lease.
    (h) ``Reclamation'' means measures undertaken to bring about the 
necessary reconditioning or restoration of land or water that has been 
affected by exploration or mineral development, mining or onsite 
processing operations, and waste disposal, in ways which will prevent or 
control onsite and offsite damage to the environment.



Sec. 216.4  Technical examination of prospective surface exploration and mining operations.

    (a)(1) In connection with an application for a permit or lease, the 
superintendent shall make, or cause to be made, a technical examination 
of the prospective effects of the proposed exploration or surface mining 
operations upon the environment. The technical examination shall take 
into consideration the need for the preservation and protection of other 
resources, including cultural, recreational, scenic, historic, and 
ecological values; and control of

[[Page 559]]

erosion, flooding, and pollution of water; the isolation of toxic 
materials; the prevention of air pollution; the reclamation by 
revegetation, replacement of soil or by other means, of lands affected 
by the exploration or mining operations; the prevention of slides; the 
protection of fish and wildlife and their habitat; and the prevention of 
hazards to public health and safety.
    (2) A technical examination of an area should be made with the 
recognition that actual potential mining sites and mining operations 
vary widely with respect to topography, climate, surrounding land uses, 
proximity to densely used areas, and other environmental influences and 
that mining and reclamation requirements should provide sufficient 
flexibility to permit adjustment to local conditions.
    (b) Based upon the technical examination, the superintendent shall 
formulate the general requirements which the applicant must meet for the 
protection of nonmineral resources during the conduct of exploration or 
mining operations and for the reclamation of lands or waters affected by 
exploration or mining operations. The general requirements shall be made 
known in writing to the applicant before the issuance of a permit or 
lease and upon acceptance thereof by the applicant, shall be 
incorporated in the permit or lease.
    (c) In each instance in which an application is made the mining 
supervisor shall participate in the technical examination and in the 
formulation of the general requirements.
    (d) The superintendent may prohibit or otherwise restrict operations 
on any part of an area whenever it is determined that such part of the 
area described in an application for a permit or lease is such that 
previous experience under similar conditions has shown that operations 
cannot feasibly be conducted by any known methods or measures to avoid--
    (1) Rock or landslides which would be a hazard to human lives or 
endanger or destroy private or public property; or
    (2) Substantial deposition of sediment and silt into streams, lakes, 
reservoirs; or
    (3) A lowering of water quality below standards established by the 
appropriate State water pollution control agency, or by the Secretary of 
the Interior, or his authorized representative; or
    (4) A lowering of the quality of waters whose quality exceeds that 
required by the established standards--unless and until it has been 
affirmatively demonstrated to the Secretary of the Interior, or his 
authorized representative, that such lowering of quality is necessary to 
economic and social development and will not preclude any assigned uses 
made of such waters; or
    (5) The destruction of key wildlife habitat or important scenic, 
historical, or other natural or cultural features.
    (e) If, on the basis of a technical examination, the superintendent 
determines that there is a likelihood that there will be a lowering of 
water quality as described in paragraphs (d) (3) and (4) of this section 
caused by the operation, no lease or permit shall be issued until after 
consultation with the Federal Water Pollution Control Administration and 
a finding by the Administration that the proposed operation would not be 
in violation of the Federal Water Pollution Control Act, as amended (33 
U.S.C. 466 et seq.), or of Executive Order No. 11288 (31 FR 9261). Where 
a permit or lease is involved the Superintendent's determination shall 
be made in consultation with the mining supervisor.



Sec. 216.5  Basis for denial of a permit or lease.

    An application for a permit or lease to conduct exploratory or 
mining operations may be denied any applicant who has forfeited a 
required bond because of failure to comply with a mining plan. However, 
a permit or lease may not be denied an applicant because of the 
forfeiture of a bond if the lands disturbed under his previous permit or 
lease have subsequently been reclaimed without cost to the lessor or the 
United States.



Sec. 216.6  Approval of exploration plan.

    (a) Before commencing any surface disturbing operations to explore, 
test or prospect for minerals, the operator shall file with the mining 
supervisor a plan for the proposed exploration operations. The mining 
supervisor shall

[[Page 560]]

consult with the superintendent with respect to the surface protection 
and reclamation aspects before approving said plan.
    (b) Depending upon the size and nature of the operation and the 
requirements established pursuant to Sec. 216.4 the mining supervisor 
may require that the exploration plan submitted by the operator include 
any or all of the following:
    (1) A description of the area within which exploration is to be 
conducted;
    (2) Two copies of a suitable map or aerial photograph showing 
topographic, cultural and drainage features;
    (3) A statement of proposed exploration methods; i.e., drilling, 
trenching, etc., and the location of primary support roads and 
facilities;
    (4) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife or other natural resources, and hazards to public 
health and safety both during and upon abandonment of exploration 
activities.
    (c) The mining supervisor shall promptly review the exploration plan 
submitted to him by the operator and shall indicate to the operator any 
changes, additions, or amendments necessary to meet the requirements 
formulated pursuant to Sec. 216.4, the provisions of these regulations, 
and the terms of the permit.
    (d) The operator shall comply with the provisions of an approved 
exploration plan. The mining supervisor may, with respect to such a 
plan, exercise the authority provided by paragraphs (f) and (g) of 
Sec. 216.7 respecting a mining plan.



Sec. 216.7  Approval of mining plan.

    (a) Before surface mining operations may commence under any permit 
or lease, the operator must file a mining plan with the mining 
supervisor and obtain his approval of the plan. The mining supervisor 
shall consult with the superintendent with respect to the surface 
protection and reclamation aspects before approving said plan.
    (b) Depending on the size and nature of the operation and the 
requirements established pursuant to Sec. 216.4 the mining supervisor 
may require that the mining plan submitted by the operator include any 
or all of the following:
    (1) A description of the location and area to be affected by the 
operations;
    (2) Two copies of a suitable map, or aerial photograph showing the 
topography, the area covered by the permit or lease, the name and 
location of major topographic and cultural features, and the drainage 
plan away from the area affected;
    (3) A statement of proposed methods of operating, including a 
description of proposed roads or vehicular trails; the size and location 
of structures and facilities to be built;
    (4) An estimate of the quantity of water to be used and pollutants 
that are expected to enter any receiving waters;
    (5) A design for the necessary impoundment, treatment or control of 
all runoff water and drainage from workings so as to reduce soil erosion 
and sedimentation and to prevent the pollution of receiving waters;
    (6) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife, and hazards to public health and safety; and
    (7) A statement of the proposed manner and time of performance of 
work to reclaim areas disturbed by the holder's operation.
    (c) In those instances in which the permit or lease requires the 
revegetation of an area of land to be affected, the mining plan shall 
show:
    (1) Proposed methods of preparation and fertilizing the soil prior 
to replanting;
    (2) Types and mixtures of shrubs, trees, or tree seedlings, grasses 
or legumes to be planted; and
    (3) Types and methods of planting, including the amount of grasses 
or legumes per acre, or the number and spacing of trees, or tree 
seedlings, or combinations of grasses and trees.
    (d) In those instances in which the permit or lease requires 
regrading and backfilling, the mining plan shall show the proposed 
methods and the timing of grading and backfilling of areas of land to be 
affected by the operation.

[[Page 561]]

    (e) The mining supervisor shall review the mining plan submitted to 
him by the operator and shall promptly indicate to the operator any 
changes, additions, or amendments necessary to meet the requirements 
formulated pursuant to Sec. 216.4, the provisions of these regulations 
and the terms of the permit or lease. The operator shall comply with the 
provisions of an approved mining plan.
    (f) A mining plan may be changed by mutual consent of the mining 
supervisor and the operator at any time to adjust to changed conditions 
or to correct any oversight. To obtain approval of a change or 
supplemental plan, the operator shall submit a written statement of the 
proposed changes or supplement and the justification for the changes 
proposed. The mining supervisor shall promptly notify the operator that 
he consents to the proposed changes or supplement, or in the event he 
does not consent, he shall specify the modifications thereto under which 
the proposed changes or supplement would be acceptable. After mutual 
acceptance of a change of a plan, the operator shall not depart 
therefrom without further approval.
    (g) If circumstances warrant or if development of a mining plan for 
the entire operation is dependent upon unknown factors which cannot or 
will not be determined except during the progress of the operations, a 
partial plan may be approved and supplemented from time to time. The 
operator shall not, however, perform any operation except under an 
approved plan.



Sec. 216.8  Performance bond.

    (a) Upon approval of an exploration plan or mining plan, the 
operator shall be required to file a suitable performance bond of not 
less than $2,000 with satisfactory surety, payable to the Secretary of 
the Interior, and the bond shall be conditioned upon the faithful 
compliance with applicable regulations, the terms and conditions of the 
permit, lease, or contract, and the exploration or mining plan as 
approved, amended or supplemented. The bond shall be in an amount 
sufficient to satisfy the reclamation requirements established pursuant 
to an approved exploration or mining plan, or an approved partial or 
supplemental plan. In determining the amount of the bond consideration 
shall be given to the character and nature of the reclamation 
requirements and the estimated costs of reclamation in the event that 
the operator forfeits his performance bond. In lieu of a surety bond an 
operator may elect to deposit cash or negotiable bonds of the U.S. 
government. The cash deposit or the market value of such securities 
shall be equal at least to the required sum of the bond.
    (b) In a particular instance where the circumstances are such as to 
warrant an exception, the amount of the bond for a particular operation 
may be reduced to less than the required minimum of $2,000.
    (c) The superintendent shall set the amount of a bond and take the 
necessary action for an increase or for a complete or partial release of 
a bond. He shall take action with respect to bonds for leases or permits 
only after consultation with the mining supervisor.



Sec. 216.9  Reports.

    (a) Within 30 days after the end of each calendar year, or if 
operations cease before the end of a calendar year, within 30 days after 
the cessation of operations, the operator shall submit an operations 
report to the mining supervisor containing the following information:
    (1) An identification of the permit or lease and the location of the 
operation.
    (2) A description of the operations performed during the period of 
time for which the report is filed.
    (3) An identification of the area of land affected by the operations 
and a description of the manner in which the land has been affected.
    (4) A statement as to the number of acres disturbed by the 
operations and the number of acres which were reclaimed during the 
period of time.
    (5) A description of the method utilized for reclamation and the 
results thereof.
    (6) A statement and description of reclamation work remaining to be 
done.
    (b) Upon completion of such grading and backfilling as may be 
required by an approved exploration or mining

[[Page 562]]

plan, the operator shall make a report thereon to the mining supervisor 
and request inspection for approval. Whenever it is determined by such 
inspection that backfilling and grading have been carried out in 
accordance with the established requirements and approved exploration or 
mining plan, the superintendent shall issue a release of an appropriate 
amount of the performance bond for the area graded and backfilled. 
Appropriate amounts of the bond shall be retained to assure that 
satisfactory planting, if required, is carried out.
    (c)(1) Whenever planting is required by an approved exploration or 
mining plan, the operator shall file a report with the superintendent 
whenever such planting is completed. The report shall--
    (i) Identify the permit or lease;
    (ii) Show the type of planting or seeding, including mixtures and 
amounts;
    (iii) Show the date of planting or seeding;
    (iv) Identify or describe the areas of the lands which have been 
planted;
    (v) Contain such other information as may be relevant.
    (2) The superintendent, as soon as possible after the completion of 
the first full growing season, shall make an inspection and evaluation 
of the vegetative cover and planting to determine if a satisfactory 
growth has been established.
    (3) If it is determined that a satisfactory vegetative cover has 
been established and is likely to continue to grow, any remaining 
portion of the surety bond may be released if all requirements have been 
met by the operator.
    (d)(1) Not less than 30 days prior to cessation or abandonment of 
operations, the operator shall report to the mining supervisor his 
intention to cease or abandon operations, together with a statement of 
the exact number of acres of land affected by his operations, the extent 
of reclamation accomplished and other relevant information.
    (2) Upon receipt of such report an inspection shall be made to 
determine whether operations have been carried out in accordance with 
the approved exploration or mining plan.



Sec. 216.10  Inspection: Notice of noncompliance: Revocation.

    (a) The mining supervisor and superintendent shall have the right to 
enter upon the lands under a permit or lease, at any reasonable time, 
for the purpose of inspection or investigation to determine whether the 
terms and conditions of the permit or lease and the requirements of the 
exploration or mining plan have been complied with.
    (b) If the mining supervisor determines that an operator has failed 
to comply with the terms and conditions of a permit or lease, or with 
the requirements of an exploration or mining plan, or with the 
provisions of applicable regulations, the superintendent shall serve a 
notice of noncompliance upon the operator by delivery in person to him 
or his agent or by certified or registered mail addressed to the 
operator at his last known address.
    (c) A notice of noncompliance shall specify in what respects the 
operator has failed to comply with the terms and conditions of a permit 
or lease or the requirements of an exploration or mining plan, or the 
provisions of applicable regulations, and shall specify the action which 
must be taken to correct the noncompliance and the time limits within 
which such action must be taken.
    (d) Failure of the operator to take action in accordance with the 
notice of noncompliance shall be grounds for suspension by the mining 
supervisor of operations or for the initiation of action for the 
cancellation of the permit or lease and for forfeiture of the surety 
bond required under Sec. 216.8.



Sec. 216.11  Appeals.

    An applicant, permittee, lessee, or lessor aggrieved by a decision 
or order of a mining supervisor or superintendent may appeal such 
decision or order. An appeal from a decision or order of a 
superintendent shall be made pursuant to 25 CFR part 2. An appeal from a 
decision or order of a mining supervisor shall be made pursuant to 30 
CFR parts 211 and 231.



Sec. 216.12  Consultation.

    A superintendent shall consult with the Indian landowner with 
respect to

[[Page 563]]

actions he proposes to take under Secs. 216.4, 216.6, 216.7, 216.9, and 
216.10.



PART 217--MANAGEMENT OF TRIBAL ASSETS OF UTE INDIAN TRIBE, UINTAH AND OURAY RESERVATION, UTAH, BY THE TRIBE AND THE UTE DISTRIBUTION CORP.--Table of Contents




Sec.
217.1  Definitions.
217.2  Authority and purpose.
217.3  Referral of questions by superintendent.
217.4  Referral of questions by the joint managers.
217.5  Management decisions.
217.6  Method of casting votes.
217.7  Implementation of decision.

    Authority: Secs. 27 and 28 of the Act of August 27, 1954, 68 Stat. 
868 (25 U.S.C. 677-677aa); 5 U.S.C. 301; secs. 463, 465 of the Revised 
Statutes (25 U.S.C. 2 and 9) and 230 DM 1 and 2.

    Source: 43 FR 40458, Sept. 12, 1978, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 217.1  Definitions.

    As used in this part:
    ``Assets'' means all unadjudicated or unliquidated claims against 
the United States, all gas, oil, and mineral rights of every kind, and 
all other assets of the Ute Tribe of Uintah and Ouray Reservation as 
constituted on August 27, 1954, not distributed in accordance with the 
terms of the Ute Partition Act.
    ``Business Committee'' means the Uintah and Ouray Tribal Business 
Committee, created pursuant to the provisions of the constitution and 
bylaws of the Ute Indian Tribe of the Uintah and Ouray Reservation.
    ``Board of directors'' means the board of directors of the Ute 
Distribution Corp., a corporation organized and existing under the laws 
of the State of Utah.
    ``Joint manager'' or ``joint managers'' means the business committee 
and the board of directors, or either of them, as is appropriate, within 
the context where one of those terms is used.
    ``Superintendent'' means the superintendent of the Uintah and Ouray 
Agency, Bureau of Indian Affairs.
    ``Secretary'' means the secretary of the Interior or a subordinate 
official acting pursuant to authority delegated by said Secretary.



Sec. 217.2  Authority and purpose.

    In accordance with the Ute Partition Act approved August 27, 1954 
(68 Stat. 868; 25 U.S.C. 677-677aa), as amended by the Act of August 2, 
1956 (70 Stat. 936), and the Act of September 25, 1962 (76 Stat. 597), 
assets shall be managed jointly by the business committee and the board 
of directors. These regulations set out the procedures for exercising 
such joint management.



Sec. 217.3  Referral of questions by superintendent.

    The superintendent shall refer all questions and problems related to 
the management of the assets as they come to his attention, together 
with his analysis of alternative solutions to each question or problem, 
to the business committee and to the board of directors for resolution. 
Such referrals shall be in writing and shall be addressed to the joint 
managers at such addresses as they furnish to the superintendent and to 
each other from time to time.



Sec. 217.4  Referral of questions by the joint managers.

    The business committee and the board of directors must refer to each 
other for resolution any questions or problems related to joint 
management of the assets which they from time to time determine need to 
be resolved together with the submitting party's proposal, if any, for 
solution. Such referrals shall be in writing, addressed to the other 
joint manager at the address furnished in accordance with Sec. 217.3 of 
this part. Copies of all such referrals shall also be furnished to the 
superintendent. Either of the parties may request an analysis of 
alternative solutions of each question or problem referred pursuant to 
this section, and the superintendent will furnish such analysis within 
ten working days, or within such longer period as he may notify the 
parties is required to prepare such analysis.



Sec. 217.5  Management decisions.

    In arriving at management decisions concerning the assets, the 
business

[[Page 564]]

committee shall be entitled to cast 72.83814 votes and the board of 
directors shall be entitled to cast 27.16186 votes. Any total number of 
votes cast exceeding 50 shall be sufficient to determine an issue 
submitted to the joint managers for resolution. A majority of votes cast 
will decide an issue.



Sec. 217.6  Method of casting votes.

    Within 30 days after an issue and any analysis provided for in 
Secs. 217.4 and 217.5 have been submitted to the joint managers for 
resolution, they shall each notify the superintendent in writing of the 
number of votes cast for and against the proposed or alternative 
solutions. If either of the joint managers fails or refuses to cast his 
votes and to notify the superintendent thereof within the time 
specified, the superintendent may conclude that such joint managers' 
votes have been cast against the proposed solution or solutions; or, if 
no solutions have been proposed, for the maintenance of the status quo. 
At the time they notify the superintendent of the votes cast on an 
issue, each joint manager shall furnish to the superintendent a 
certified copy of a resolution of the business committee or the board of 
directors, as the case may be, authorizing such vote.



Sec. 217.7  Implementation of decision.

    The Secretary shall issue such documents as are necessary or 
expendient to implement the decisions of the joint managers, insofar as 
such issuance is authorized by law, and he shall execute and/or approve 
such documents for and on behalf of the joint managers, or either of 
them, and on behalf of the United States, as necessary. If it becomes 
necessary for the Secretary to execute an instrument on behalf of one or 
both of the joint managers and to approve the same instrument as 
trustee, two different officials having delegated authority from the 
Secretary shall serve as executing and approving officers, respectively.



PART 225--OIL AND GAS, GEOTHERMAL, AND SOLID MINERALS AGREEMENTS--Table of Contents




                           Subpart A--General

Sec.
225.1  Purpose and scope.
225.2  Information collection.
225.3  Definitions.
225.4  Authority and responsibility of the Bureau of Land Management 
          (BLM).
225.5  Authority and responsibility of the Office of Surface Mining 
          Reclamation and Enforcement (OSMRE).
225.6  Authority and responsibility of the Minerals Management Service 
          (MMS).

                     Subpart B--Minerals Agreements

225.20  Authority to contract.
225.21  Negotiation procedures.
225.22  Approval of minerals agreements.
225.23  Economic assessments.
225.24  Environmental studies.
225.25  Resolution of disputes.
225.26  Auditing and accounting.
225.27  Forms and reports.
225.28  Approval of amendments to minerals agreements.
225.29  Corporate qualifications and requests for information.
225.30  Bonds.
225.31  Manner of payments.
225.32  Permission to start operations.
225.33  Assignment of minerals agreements.
225.34  [Reserved]
225.35  Inspection of premises; books and accounts.
225.36  Minerals agreement cancellation; Bureau of Indian Affairs notice 
          of noncompliance.
225.37  Penalties.
225.38  Appeals.
225.39  Fees.
225.40  Government employees cannot acquire minerals agreements.

    Authority: Indian Mineral Development Act of 1982, 25 U.S.C. 2101-
2108; and 25 U.S.C. 2 and 9.

    Source: 59 FR 14971, Mar. 30, 1994, unless otherwise noted.



                           Subpart A--General



Sec. 225.1  Purpose and scope.

    (a) The regulations in this part, administered by the Bureau of 
Indian Affairs under the direction of the Secretary of the Interior, 
govern minerals

[[Page 565]]

agreements for the development of Indian-owned minerals entered into 
pursuant to the Indian Mineral Development Act of 1982, 25 U.S.C. 2101-
2108 (IMDA). These regulations are applicable to the lands or interests 
in lands of any Indian tribe, individual Indian or Alaska native the 
title to which is held in trust by the United States or is subject to a 
restriction against alienation imposed by the United States. These 
regulations are intended to ensure that Indian mineral owners are 
permitted to enter into minerals agreements that will allow the Indian 
mineral owners to have more responsibility in overseeing and greater 
flexibility in disposing of their mineral resources, and to allow 
development in the manner which the Indian mineral owners believe will 
maximize their best economic interest and minimize any adverse 
environmental or cultural impact resulting from such development. 
Pursuant to section 4 of the IMDA (25 U.S.C. 2103(e)), as part of this 
greater flexibility, where the Secretary has approved a minerals 
agreement in compliance with the provisions of 25 U.S.C. chap. 23 and 
any other applicable provision of law, the United States shall not be 
liable for losses sustained by a tribe or individual Indian under such 
minerals agreement. However, as further stated in the IMDA, the 
Secretary continues to have a trust obligation to ensure that the rights 
of a tribe or individual Indian are protected in the event of a 
violation of the terms of any minerals agreement, and to uphold the 
duties of the United States as derived from the trust relationship and 
from any treaties, executive orders, or agreements between the United 
States and any Indian tribe.
    (b) The regulations in this part shall become effective and in full 
force on April 29, 1994, and shall be subject to amendment at any time 
by the Secretary; Provided, that no such regulation that becomes 
effective after the date of approval of any minerals agreement shall 
operate to affect the duration of the minerals agreement, the rate of 
royalty or financial consideration, rental, or acreage unless agreed to 
by all parties to the minerals agreement.
    (c) The regulations of the Bureau of Land Management, the Office of 
Surface Mining Reclamation and Enforcement, and the Minerals Management 
Service that are referenced in Secs. 225.4, 225.5, and 225.6 are 
supplemental to these regulations, and apply to minerals agreements for 
development of Indian mineral resources unless specifically stated 
otherwise in this part or in other Federal regulations. To the extent 
the parties to a minerals agreement are able to provide reasonable 
provisions satisfactorily addressing the issues of valuation, method of 
payment, accounting, and auditing, governed by the Minerals Management 
Service regulations, the Secretary may approve alternate provisions in a 
minerals agreement.
    (d) Nothing in these regulations is intended to prevent Indian 
tribes from exercising their lawful governmental authority to regulate 
the conduct of persons, businesses, or minerals operations within their 
territorial jurisdiction.



Sec. 225.2  Information collection.

    It has been determined by the Office of Management and Budget that 
the Information Collection Requirements contained in part 225 do not 
require review under the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).



Sec. 225.3  Definitions.

    As used in this part, the following terms have the specified meaning 
except where otherwise indicated.
    Area Director means the Bureau of Indian Affairs Official in charge 
of an Area Office.
    Assistant Secretary--Indian Affairs means the Assistant Secretary--
Indian Affairs of the Department of the Interior, a designee of the 
Secretary of the Interior who may be specifically authorized by the 
Secretary to disapprove minerals agreements (25 U.S.C. 2103(d)) and to 
issue orders of cessation and/or minerals agreement cancellations as 
final orders of the Department.
    Authorized Officer means any employee of the Bureau of Land 
Management authorized by law or by lawful delegation of authority to 
perform the duties described herein and in 43 CFR parts 3160, 3180, 
3260, 3280, 3480 and 3590.

[[Page 566]]

    Director's Representative means the Office of Surface Mining 
Reclamation and Enforcement Director's Representative authorized by law 
or by lawful delegation of authority to perform the duties described in 
30 CFR part 750 and 25 CFR part 216.
    Gas means any fluid, either combustible or noncombustible, that is 
produced in a natural state from the earth and that maintains a gaseous 
or rarefied state at ordinary temperature and pressure conditions.
    Geothermal resources means: (1) All products of geothermal 
processes, including indigenous steam, hot water, and hot brines;
    (2) Steam and other gases, hot water, and hot brines, resulting from 
water, gas, or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any by-product derived therefrom.
    In the best interest of the Indian mineral owner refers to the 
standards to be applied by the Secretary in considering whether to take 
administrative action affecting the interests of an Indian mineral 
owner. In considering whether it is ``in the best interest of the Indian 
mineral owner'' to take a certain action (such as approval of a minerals 
agreement or a unitization or communitization agreement) the Secretary 
shall consider any relevant factor, including, but not limited to: 
economic considerations, such as date of lease or minerals agreement 
expiration; probable financial effects on the Indian mineral owner; need 
for change in the terms of the existing minerals agreement; 
marketability of mineral products; and potential environmental, social 
and cultural effects.
    Indian lands means any lands or interests in lands owned by any 
individual Indian or Alaska Native, Indian tribe, band, nation, pueblo, 
community, rancheria, colony, or other group, the title to which is held 
in trust by the United States or is subject to a restriction against 
alienation imposed by the United States.
    Indian mineral owner means any individual Indian or Alaska Native, 
or Indian tribe, band, nation, pueblo, community, rancheria, colony, or 
other group that owns a mineral interest in oil and gas, geothermal 
resources or solid minerals, title to which is held in trust by the 
United States or is subject to a restriction against alienation imposed 
by the United States.
    Indian surface owner means any individual Indian or Alaska Native, 
or Indian tribe, band, nation, pueblo, community, rancheria, colony, or 
other group that owns the surface estate in land the title to which is 
held in trust by the United States or is subject to a restriction 
against alienation imposed by the United States.
    Indian tribe means any Indian tribe, band, nation, pueblo, 
community, rancheria, colony, or other group that owns land or interests 
in land the title to which is held in trust by the United States or is 
subject to a restriction against alienation imposed by the United 
States.
    Individual Indian means any individual Indian or Alaska Native who 
owns land or interests in land the title to which is held in trust by 
the United States or is subject to a restriction against alienation 
imposed by the United States.
    Minerals includes both metalliferous and non-metalliferous minerals; 
all hydrocarbons, including oil and gas, coal and lignite of all ranks; 
geothermal resources; and includes but is not limited to sand, gravel, 
pumice, cinders, granite, building stone, limestone, clay, silt, or any 
other energy or non-energy mineral.
    Minerals agreement means any joint venture, operating, production 
sharing, service, managerial, lease (other than a lease entered into 
pursuant to the Act of May 11, 1938, or the Act of March 3, 1909), 
contract, or other minerals agreement; or any amendment, supplement or 
other modification of such minerals agreement, providing for the 
exploration for, or extraction, processing, or other development of 
minerals in which an Indian mineral owner owns a beneficial or 
restricted interest, or providing for the sale or other disposition of 
the production or products of such minerals.
    Minerals Management Service official means any employee of the 
Minerals Management Service authorized by law or by lawful delegation of 
authority to

[[Page 567]]

perform the duties described in 30 CFR chapter II, subchapters A and C.
    Mining means the science, technique, and business of mineral 
development, including, but not limited to: opencast work, underground 
work, in-situ leaching, or other methods directed to severance and 
treatment of minerals; however, when sand, gravel, pumice, cinders, 
granite, building stone, limestone, clay or silt is the subject mineral, 
an enterprise is considered ``mining'' only if the extraction of such a 
mineral exceeds 5,000 cubic yards in any given year.
    Oil means all non-gaseous hydrocarbon substances other than coal, 
oil shale, or gilsonite (including all vein-type solid hydrocarbons). 
Oil includes liquefiable hydrocarbon substances such as drip gasoline 
and other natural condensates recovered or recoverable in a liquid state 
from produced gas without resorting to a manufacturing process.
    Operator means a person, proprietorship, partnership, corporation, 
or other business entity that has entered into an approved minerals 
agreement under the authority of the Indian Mineral Development Act of 
1982, or who has been assigned an obligation to make royalty or other 
payments required by the minerals agreement.
    Secretary means the Secretary of the Interior or an authorized 
representative, except that as used in Sec. 225.22 (e) and (f) the 
authorized representative may only be the Assistant Secretary for Indian 
Affairs (25 U.S.C. 2103(d)).
    Solid minerals means all minerals excluding oil, gas, and geothermal 
resources.
    Superintendent means the Bureau of Indian Affairs official in charge 
of an agency office.



Sec. 225.4  Authority and responsibility of the Bureau of Land Management (BLM).

    The functions of the Bureau of Land Management are found in 43 CFR 
Part 3160--Onshore Oil and Gas Operations, 43 CFR Part 3180--Onshore Oil 
and Gas Unit Agreements: Unproven Areas, 43 CFR Part 3260--Geothermal 
Resources Operations, 43 CFR Part 3280--Geothermal Resources Unit 
Agreements: Unproven Areas, 43 CFR Part 3480--Coal Exploration and 
Mining Operations, and 43 CFR Part 3590--Solid Minerals (Other Than 
Coal) Exploration and Mining Operations. These functions include, but 
are not limited to, resource evaluation, approval of drilling permits, 
approval of mining, reclamation, and production plans, mineral 
appraisals, inspection and enforcement, and production verification. 
These regulations, as amended, apply to minerals agreements approved 
under this part.



Sec. 225.5  Authority and responsibility of the Office of Surface Mining Reclamation and Enforcement (OSMRE).

    The OSMRE is the regulatory authority for surface coal mining and 
reclamation operations on Indian lands pursuant to the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). The 
relevant regulations for surface mining and reclamation operations are 
found in 30 CFR part 750 and 25 CFR part 216. These regulations, as 
amended, apply to minerals agreements approved under this part.



Sec. 225.6  Authority and responsibility of the Minerals Management Service (MMS).

    The functions of the MMS for reporting, accounting, and auditing are 
found in 30 CFR chapter II, subchapters A and C. These regulations, 
unless specifically stated otherwise in this part or in other 
regulations, apply to all minerals agreements approved under this part. 
To the extent the parties to a minerals agreement are able to provide 
reasonable provisions satisfactorily addressing the issues or functions 
governed by the MMS regulations relating to valuation of mineral 
product, method of payment, accounting procedures, and auditing 
procedures, the Secretary may approve alternate provisions in a minerals 
agreement.



                     Subpart B--Minerals Agreements



Sec. 225.20  Authority to contract.

    (a) Any Indian tribe, subject to the approval of the Secretary and 
any limitation or provision contained in its constitution or charter, 
may enter into

[[Page 568]]

a minerals agreement with respect to mineral resources in which the 
tribe owns a beneficial or restricted interest.
    (b) Any individual Indian owning a beneficial or restricted interest 
in mineral resources may include those resources in a tribal minerals 
agreement subject to the concurrence of the parties and a finding by the 
Secretary that inclusion of the resources is in the best interest of the 
individual Indian mineral owner.



Sec. 225.21  Negotiation procedures.

    (a) An Indian mineral owner that wishes to enter into a minerals 
agreement may ask the Secretary for advice, assistance, and information 
during the negotiation process. The Secretary shall provide advice, 
assistance, and information to the extent allowed by available 
resources.
    (b) No particular form of minerals agreement is prescribed. In 
preparing the minerals agreement the Indian mineral owner shall, if 
applicable, address provisions including, but not limited to, the 
following:
    (1) A general statement identifying the parties to the minerals 
agreement, the legal description of the lands, including, if applicable, 
rock intervals or thicknesses subject to the minerals agreement, and the 
purposes of the minerals agreement;
    (2) A statement setting forth the duration of the minerals 
agreement;
    (3) A statement providing indemnification to the Indian mineral 
owner(s) and the United States from all claims, liabilities and causes 
of action that may be made by persons not a party to the minerals 
agreement;
    (4) Provisions setting forth the obligations of the contracting 
parties;
    (5) Provisions describing the methods of disposition of production;
    (6) Provisions outlining the method of payment and amount of 
compensation to be paid;
    (7) Provisions establishing accounting and mineral valuation 
procedures;
    (8) Provisions establishing operating and management procedures;
    (9) Provisions establishing any limitations on assignment of 
interests, including any right of first refusal by the Indian mineral 
owner in the event of a proposed assignment;
    (10) Bond requirements;
    (11) Insurance requirements;
    (12) Provisions establishing audit procedures;
    (13) Provisions for resolving disputes;
    (14) A force majeure provision;
    (15) Provisions describing the rights of the parties to terminate or 
suspend the minerals agreement, and the procedures to be followed in the 
event of termination or suspension;
    (16) Provisions describing the nature and schedule of the activities 
to be conducted by the parties;
    (17) Provisions describing the proposed manner and time of 
performance of future abandonment, reclamation and restoration 
activities;
    (18) Provisions for reporting production and sales;
    (19) Provisions for unitizing or communitizing of lands included in 
a minerals agreement for the purpose of promoting conservation and 
efficient utilization of natural resources;
    (20) Provisions for protection of the minerals agreement lands from 
drainage and/or unauthorized taking of mineral resources; and
    (21) Provisions for record keeping.
    (c) In order to avoid delays in obtaining approval, the Indian 
mineral owner is encouraged to confer with the Secretary prior to 
formally executing the minerals agreement, and seek advice as to whether 
the minerals agreement appears to satisfy the requirements of 
Sec. 225.22, or whether additions or corrections may be required in 
order to obtain Secretarial approval.
    (d) The executed minerals agreement, together with a copy of a 
tribal resolution authorizing tribal officers to enter into the minerals 
agreement, shall be forwarded by the tribal representative to the 
appropriate Superintendent, or in the absence of a Superintendent to the 
Area Director, for approval.



Sec. 225.22  Approval of minerals agreements.

    (a) A minerals agreement submitted for approval pursuant to 
Sec. 225.21(d) shall be approved or disapproved within:
    (1) One hundred and eighty (180) days after submission, or
    (2) Sixty (60) days after compliance, if required, with section 
102(2)(C) of the

[[Page 569]]

National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) or any 
other requirement of Federal law, whichever is later.
    (b) At least thirty (30) days prior to approval or disapproval of 
any minerals agreement, the affected Indian mineral owners shall be 
provided with written findings forming the basis of the Secretary's 
intent to approve or disapprove the minerals agreement.
    (1) The written findings shall include an environmental study which 
meets the requirements of Sec. 225.24 and an economic assessment, as 
described in Sec. 225.23.
    (2) The Secretary shall include in the written findings any 
recommendations for changes to the minerals agreement needed to qualify 
it for approval.
    (3) The 30-day period shall commence to run as of the date the 
written findings are received by the Indian mineral owner.
    (4) Notwithstanding any other law, such findings and all 
projections, studies, data or other information (other than the 
environmental study required by Sec. 225.24) possessed by the Department 
of the Interior regarding the terms and conditions of the minerals 
agreement; the financial return to the Indian parties thereto; the 
extent, nature, value or disposition of the mineral resources; or the 
production, products or proceeds thereof, shall be held by the 
Department of the Interior as privileged and proprietary information of 
the affected Indian mineral owners. The letter containing the written 
findings should be headed with: PRIVILEGED PROPRIETARY INFORMATION OF 
THE (names of Indian mineral owners).
    (c) A minerals agreement shall be approved if, at the Secretary's 
discretion, it is determined that the following conditions are met:
    (1) The minerals agreement is in the best interest of the Indian 
mineral owner;
    (2) The minerals agreement does not have adverse cultural, social, 
or environmental impacts sufficient to outweigh its expected benefits to 
the Indian mineral owners; and,
    (3) The minerals agreement complies with the requirements of this 
part and all other applicable regulations and the provisions of 
applicable Federal law.
    (d) The determinations required by paragraph (c) of this section 
shall be based on the written findings required by paragraph (b) and 
paragraphs (b)(1) through (b)(4), inclusive, of this section. The 
question of ``best interest'' within the meaning of paragraph (c)(1) of 
this section shall be determined by the Secretary based on information 
obtained from the parties, and any other information considered relevant 
by the Secretary, including, but not limited to, a review of comparable 
contemporary contractual arrangements or offers for the development of 
similar mineral resources received by Indian mineral owners, by non-
Indian mineral owners, or by the Federal Government, insofar as that 
information is readily available.
    (e) If a Superintendent or Area Director believes that a minerals 
agreement should not be approved, a written statement of the reasons why 
the minerals agreement should not be approved shall be prepared and 
forwarded, together with the minerals agreement, the written findings 
required by paragraph (b) and subparagraphs (b)(1) through (b)(4), 
inclusive, of this section, and all other pertinent documents, to the 
Secretary for a decision with a copy to the affected Indian mineral 
owner.
    (f) The Secretary shall review any minerals agreement referred with 
a recommendation that it be disapproved, and the Secretary's decision to 
disapprove a minerals agreement shall be deemed a final Federal agency 
action (25 U.S.C. 2103(d)).



Sec. 225.23  Economic assessments.

    The Secretary shall prepare or cause to be prepared an economic 
assessment that shall address, among other things:
    (a) Whether there are assurances in the minerals agreement that 
operations shall be conducted with appropriate diligence;
    (b) Whether the production royalties or other form of return on 
mineral resources is adequate; and
    (c) Whether the minerals agreement is likely to provide the Indian 
mineral owner with a return on the production comparable to what the 
owner might

[[Page 570]]

otherwise obtain through competitive bidding, when such a comparison can 
reasonably be made.



Sec. 225.24  Environmental studies.

    (a) The Secretary shall ensure that all environmental studies are 
prepared as required by the National Environmental Policy Act of 1969 
(NEPA) and the regulations promulgated by the Council on Environmental 
Quality (CEQ) found at 40 CFR parts 1500-1508.
    (b) The Secretary shall ensure that all necessary surveys are 
performed and clearances obtained in accordance with 36 CFR parts 60, 
63, and 800 and with the requirements of the Archaeological and Historic 
Preservation Act (16 U.S.C. 469 et seq.), the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), the American Indian Religious 
Freedom Act (42 U.S.C. 1996), and Executive Order 11593 (3 CFR 1971-1975 
Comp., p. 559, May 13, 1971). If these surveys indicate that a mineral 
development will have an adverse effect on a property listed on or 
eligible for listing on the National Register of Historic Places, the 
Secretary shall:
    (1) Seek the comments of the Advisory Council on Historic 
Preservation, in accordance with 36 CFR part 800;
    (2) Ensure that the property is avoided, that the adverse effect is 
mitigated, or that appropriate excavations or other related research is 
conducted; and
    (3) Ensure that complete data describing the historic property is 
preserved.



Sec. 225.25  Resolution of disputes.

    A minerals agreement shall contain provisions for resolving disputes 
that may arise between the parties. However, no such provision shall 
limit the Secretary's authority or ability to ensure that the rights of 
an Indian mineral owner are protected in the event of a violation of the 
provisions of the minerals agreement by any other party to the minerals 
agreement.



Sec. 225.26  Auditing and accounting.

    The Secretary may conduct audits relating to the scope, nature and 
extent of compliance with the minerals agreement and with applicable 
regulations and orders to lessees, operators, revenue payors, and other 
persons with rental, royalty, net profit share and other payment 
requirements arising from the provisions of a minerals agreement. 
Procedures and standards used for accounting and auditing of minerals 
agreements will be in accordance with audit standards established by the 
Comptroller General of the United States, in ``Standards for Auditing of 
Governmental Organizations, Programs, Activities, and Functions, 1981,'' 
and standards established by the American Institute of Certified Public 
Accountants.



Sec. 225.27  Forms and reports.

    Any forms required to be filed pursuant to a minerals agreement may 
be obtained from the Superintendent or Area Director. Prescribed forms 
for filing geothermal production reports required by the BLM (43 CFR 
part 3260, Secs. 3264.1, 3264.2-4 and 3264.2-5) may be obtained from the 
Superintendent, Area Director, or the Authorized Officer. Applicable 
reports required by the MMS shall be filed using the forms prescribed in 
30 CFR part 210, which are available from MMS. Guidance on how to 
prepare and submit required information, collection reports, and forms 
to MMS is available from: Minerals Management Service, Attention: Lessee 
(or Reporter) Contact Branch, P.O. Box 5760, Denver, Colorado 80217. 
Additional reporting requirements may be required by the Secretary.



Sec. 225.28  Approval of amendments to minerals agreements.

    An amendment, modification or supplement to a minerals agreement 
entered into pursuant to the regulations in this part, whether the 
minerals agreement was approved before or after the effective date of 
these regulations, must be approved in writing by all parties before 
being submitted to the Secretary for approval. The provisions of 
Sec. 225.22 apply to approvals of amendments, modifications, or 
supplements to minerals agreements entered into under the regulations in 
this part. However, amendments, modifications, or supplements that do 
not substantially alter or affect the factors listed

[[Page 571]]

in Sec. 225.22(c), may be approved by referencing materials previously 
submitted for the initial review and approval of the minerals agreement. 
The Secretary may approve an amendment, modification, or supplement if 
it is determined that the underlying minerals agreement, as amended, 
modified, or supplemented meets the criteria for approval set forth in 
Sec. 225.22(c).



Sec. 225.29  Corporate qualifications and requests for information.

    (a) The signing in a representative capacity of minerals agreements 
or assignments, bonds, or other instruments required by a minerals 
agreement or these regulations, constitutes certification that the 
individual signing (except a surety agent) is authorized to act in such 
a capacity. An agent for a surety shall furnish a power of attorney.
    (b) A prospective corporate operator proposing to acquire an 
interest in a minerals agreement shall have on file with the 
Superintendent a statement showing:
    (1) The State(s) in which the corporation is incorporated, and a 
notarized statement that the corporation is authorized to hold such 
interests in the State where the land described in the minerals 
agreement is situated; and
    (2) A notarized statement that it has power to conduct all business 
and operations as described in the minerals agreement.
    (c) The Secretary may, either before or after the approval of a 
minerals agreement, assignment, or bond, call for any reasonable 
additional information necessary to carry out the regulations in this 
part, or other applicable laws and regulations.



Sec. 225.30  Bonds.

    (a) Bonds required by provisions of a minerals agreement should be 
in an amount sufficient to ensure compliance with all of the 
requirements of the minerals agreement and the statutes and regulations 
applicable to the minerals agreement. Surety bonds shall be issued by a 
qualified company approved by the Department of the Treasury (see 
Department of the Treasury Circular No. 570).
    (b) An operator may file a $75,000 bond for all geothermal, mining, 
or oil and gas minerals agreements in any one State, which may also 
include areas on that part of an Indian reservation extending into any 
contiguous State. Statewide bonds shall be filed for approval with the 
Secretary.
    (c) An operator may file a $150,000 bond for full nationwide 
coverage to cover all geothermal or oil and gas minerals agreements 
without geographic or acreage limitation to which the operator is or may 
become a party. Nationwide bonds shall be filed for approval with the 
Secretary.
    (d) Personal bonds shall be accompanied by:
    (1) Certificate of deposit issued by a financial institution, the 
deposits of which are Federally insured, explicitly granting the 
Secretary full authority to demand immediate payment in case of default 
in the performance of the provisions and conditions of the minerals 
agreement. The certificate shall explicitly indicate on its face that 
Secretarial approval is required prior to redemption of the certificate 
of deposit by any party;
    (2) Cashier's check;
    (3) Certified check;
    (4) Negotiable Treasury securities of the United States of a value 
equal to the amount specified in the bond. Negotiable Treasury 
securities shall be accompanied by a proper conveyance to the Secretary 
of full authority to sell such securities in case of default in the 
performance of the provisions and conditions of a minerals agreement; or
    (5) Letter of credit issued by a financial institution authorized to 
do business in the United States and whose deposits are Federally 
insured, and identifying the Secretary as sole payee with full authority 
to demand immediate payment in the case of default in the performance of 
the provisions and conditions of a minerals agreement.
    (i) The letter of credit shall be irrevocable during its term.
    (ii) The letter of credit shall be payable to the Bureau of Indian 
Affairs on demand, in part or in full, upon receipt from the Secretary 
of a notice of attachment stating the basis thereof (e.g., default in 
compliance with the minerals agreement provisions and

[[Page 572]]

conditions or failure to file a replacement in accordance with 
subparagraph (d)(5)(v) of this section).
    (iii) The initial expiration date of the letter of credit shall be 
at least one (1) year following the date it is filed in the proper 
Bureau of Indian Affairs office.
    (iv) The letter of credit shall contain a provision for automatic 
renewal for periods of not less than one (1) year in the absence of 
notice to the proper Bureau of Indian Affairs office at least ninety 
(90) days prior to the originally stated or any extended expiration 
date.
    (v) A letter of credit used as security for any minerals agreement 
upon which operations have taken place and final approval for 
abandonment has not been given, or as security for a statewide or 
nationwide bond, shall be forfeited and shall be collected by the 
Secretary if not replaced by other suitable bond or letter of credit at 
least thirty (30) days before its expiration date.
    (e) The required amount of a bond may be increased in any particular 
case at the discretion of the Secretary.

[59 FR 14971, Mar. 30, 1994; 60 FR 10474, Feb. 24, 1995]



Sec. 225.31  Manner of payments.

    Unless specified otherwise in the minerals agreement, after 
production has been established, all payments due for royalties, 
bonuses, rentals and other payments under a minerals agreement shall be 
made to the Secretary or such other party as may be designated, and 
shall be made at such time as provided in 30 CFR chapter II, subchapters 
A and C. Prior to production, all bonus and rental payments, shall be 
made to the Superintendent or Area Director.



Sec. 225.32  Permission to start operations.

    (a) No exploration, drilling, or mining operations are permitted on 
any Indian lands before the Secretary has granted written approval of 
the minerals agreement pursuant to the regulations. After a minerals 
agreement is approved, written permission to start operations must be 
secured by applying for the permits referred to in paragraph (b) of this 
section.
    (b) Applicable permits in accordance with rules and regulations in 
30 CFR part 750, 43 CFR parts 3160, 3260, 3480, 3590, and Orders or 
Notices to Lessees (NTL) issued thereunder shall be required before 
actual operations are conducted on the minerals agreement acreage.



Sec. 225.33  Assignment of minerals agreements.

    An assignment of a minerals agreement, or any interest therein, 
shall not be valid without the approval of the Secretary and, if 
required in the minerals agreement, the Indian mineral owner. The 
assignee must be qualified to hold the minerals agreement and shall 
furnish a satisfactory bond conditioned on the faithful performance of 
the covenants and conditions thereof as stipulated in the minerals 
agreement. A fully executed copy of the assignment shall be filed with 
the Secretary within five (5) working days after execution by all 
parties. The Secretary may permit the release of any bonds executed by 
the assignor upon submission of satisfactory bonds to the Bureau of 
Indian Affairs by the assignee, and a determination that the assignor 
has satisfied all accrued obligations.
Sec. 225.34  [Reserved]



Sec. 225.35  Inspection of premises; books and accounts.

    (a) Operators shall allow Indian mineral owners, their authorized 
representatives, or any authorized representatives of the Secretary to 
enter all parts of the minerals agreement area for the purpose of 
inspection. Operators shall keep a full and correct account of all 
operations and submit all related reports required by the minerals 
agreement and applicable regulations. Books and records shall be 
available for inspection during regular business hours.
    (b) Operators shall provide records to the Minerals Management 
Service (MMS) in accordance with MMS regulations and guidelines. All 
records pertaining to a minerals agreement shall be maintained by an 
operator in accordance with 30 CFR part 212.

[[Page 573]]

    (c) Operators shall provide records to the Authorized Officer in 
accordance with BLM regulations and guidelines.
    (d) Operators shall provide records to the Director's Representative 
in accordance with OSMRE regulations and guidelines.



Sec. 225.36  Minerals agreement cancellation; Bureau of Indian Affairs notice of noncompliance.

    (a) If the Secretary determines that an operator has failed to 
comply with the regulations in this part; other applicable laws or 
regulations; the terms of the minerals agreement; the requirements of an 
approved exploration, drilling or mining plan; Secretarial orders; or 
the orders of the Authorized Officer, the Director's Representative, or 
the MMS Official, the Secretary may:
    (1) Serve a notice of noncompliance; or
    (2) Serve a notice of proposed cancellation.
    (b) The notice of noncompliance shall specify in what respect the 
operator has failed to comply with the requirements referenced in 
paragraph (a), and shall specify what actions, if any, must be taken to 
correct the noncompliance.
    (c) The notice of proposed cancellation shall set forth the reasons 
why cancellation is proposed.
    (d) The notice of proposed cancellation or noncompliance shall be 
served upon the operator by delivery in person or by certified mail to 
the operator at the operator's last known address. When certified mail 
is used, the date of service shall be deemed to be when received or five 
(5) working days after the date it is mailed, whichever is earlier.
    (e) The operator shall have thirty (30) days (or such longer time as 
specified in the notice) from the date that the Bureau of Indian Affairs 
notice of proposed cancellation or noncompliance is served to respond, 
in writing, to the Superintendent or Area Director actually issuing the 
notice.
    (f) If an operator fails to take any action that may be prescribed 
in the notice of proposed cancellation, fails to file a timely written 
response to the notice, or files a written response that does not, in 
the discretion of the Secretary, adequately justify the operator's 
failure to comply, then the Secretary may cancel the minerals agreement, 
specifying the basis for the cancellation. Cancellation of a minerals 
agreement shall not relieve the operator of any continuing obligation 
under the minerals agreement.
    (g) If an operator fails to take corrective action or to file a 
timely written response adequately justifying the operator's actions 
pursuant to a notice of noncompliance, the Secretary may issue an order 
of cessation. If the operator fails to comply with the order of 
cessation, or fails to timely file an appeal of the order of cessation 
pursuant to paragraph (k) of this section, the Secretary may issue an 
order of minerals agreement cancellation.
    (h) This section does not limit any other remedies of the Indian 
mineral owner as set forth in the minerals agreement.
    (i) Nothing in this section is intended to limit the authority of 
the Authorized Officer, the Director's Representative, or the MMS 
Official to take any enforcement action authorized pursuant to statute 
or regulation.
    (j) The Authorized Officer, the Director's Representative, the MMS 
Official, and the Superintendent or Area Director should consult with 
one another before taking any enforcement actions.
    (k) If orders of cessation or minerals agreement cancellation issued 
pursuant to this section are issued by a designee of the Secretary other 
than the Assistant Secretary for Indian Affairs, the orders may be 
appealed under 25 CFR part 2. If the orders are issued by the Secretary 
or the Assistant Secretary for Indian Affairs, and not one of their 
delegates or subordinates, the orders are the final orders of the 
Department.



Sec. 225.37  Penalties.

    (a) In addition to or in lieu of cancellation under Sec. 225.36, 
violations of the terms and conditions of any minerals agreement, the 
regulations in this part, other applicable laws or regulations, or 
failure to comply with a notice of noncompliance or a cessation order 
issued by the Secretary may subject an operator to a penalty of not more 
than $1,000 per day for each day

[[Page 574]]

that such a violation or noncompliance continues beyond the time limits 
prescribed for corrective action.
    (b) A notice of a proposed penalty shall be served on the operator 
either personally or by certified mail to the operator at the operator's 
last known address. The date of service by certified mail shall be 
deemed to be the date received or five (5) working days after the date 
mailed, whichever is earlier.
    (c) The notice shall specify the nature of the violation and the 
proposed penalty, and shall specifically advise the operator of the 
operator's right to either request a hearing within thirty (30) days of 
receipt of the notice or pay the proposed penalty. Hearings shall be 
held before the Superintendent or Area Director whose findings shall be 
conclusive, unless an appeal is taken pursuant to 25 CFR part 2. If 
within thirty (30) days of receipt of the notice of proposed penalty the 
operator has not requested a hearing or paid the amount of the proposed 
penalty, a final notice of penalty shall be served.
    (d) If the person served with a notice of proposed penalty requests 
a hearing, penalties shall accrue each day the violations or 
noncompliance set forth in the notice continue beyond the time limits 
presented for corrective action. The Secretary may issue a written 
suspension of the requirement to correct the violations pending 
completion of the hearings provided by this section only upon a 
determination, at the discretion of the Secretary, that such a 
suspension will not be detrimental to the Indian mineral owner and upon 
submission and acceptance of a bond deemed adequate to indemnify the 
Indian mineral owner from loss or damage. The amount of the bond must be 
sufficient to cover the cost of correcting the violations set forth in 
the notice or any disputed amounts plus accrued penalties and interest.
    (e) Payment of penalties in full more than ten (10) days after a 
final decision imposing a penalty shall subject the operator to late 
payment charges. Late payment charges shall be calculated on the basis 
of a percentage assessment rate of the amount unpaid per month for each 
month or fraction thereof until payment is received by the Secretary. In 
the absence of a specific minerals agreement provision prescribing a 
different rate, the interest rate on late payments and underpayments 
shall be a rate applicable under section 6621(a)(2) of the Internal 
Revenue Code of 1954. Interest shall be charged only on the amount of 
payment not received and only for the number of days the payment is 
late.
    (f) None of the provisions of this section shall be interpreted as:
    (1) Replacing or superseding the independent authority of the 
Authorized Officer, the Director's Representative, or the MMS Official 
to impose penalties under applicable statutory or regulatory 
authorities;
    (2) Replacing, superseding, or replicating any penalty provision in 
the terms and conditions of a minerals agreement approved by the 
Secretary pursuant to this part; or
    (3) Authorizing the imposition of a penalty for violations of 
minerals agreement provisions for which the Authorized Officer, 
Director's Representative, or MMS Official has either statutory or 
regulatory authority to assess a penalty.



Sec. 225.38  Appeals.

    Appeals from decisions of Officials of the Bureau of Indian Affairs 
under this part may be taken pursuant to 25 CFR part 2.



Sec. 225.39  Fees.

    (a) Unless otherwise authorized by the Secretary, each minerals 
agreement or assignment thereof, shall be accompanied by a filing fee of 
$75.00 at the time of filing.
    (b) An Indian mineral owner shall not be required to pay a filing 
fee if the Indian mineral owner, pursuant to a provision in the existing 
minerals agreement, acquires an additional interest in that minerals 
agreement.



Sec. 225.40  Government employees cannot acquire minerals agreements.

    U.S. Government employees are prevented from acquiring any 
interest(s) in minerals agreements by the provisions of 25 CFR part 140 
and 43 CFR part 20 pertaining to conflicts of interest and ownership of 
an interest in trust land.

[[Page 575]]



PART 226--LEASING OF OSAGE RESERVATION LANDS FOR OIL AND GAS MINING--Table of Contents




Sec.
226.1  Definitions.

                  Leasing Procedure, Rental and Royalty

226.2  Sale of leases.
226.3  Surrender of lease.
226.4  Form of payment.
226.5  Leases subject to current regulations.
226.6  Bonds.
226.7  Provisions of forms made a part of the regulations.
226.8  Corporation and corporate information.
226.9  Rental and drilling obligations.
226.10  Term of lease.
226.11  Royalty payments.
226.12  Government reserves right to purchase oil.
226.13  Time of royalty payments and reports.
226.14  Contracts and division orders.
226.15  Unit leases, assignments and related instruments.

                               Operations

226.16  Commencement of operations.
226.17  How to acquire permission to begin operations on a restricted 
          homestead allotment.
226.18  Information to be given surface owners prior to commencement of 
          drilling operations.
226.19  Use of surface of land.
226.20  Settlement of damages claimed.
226.21  Procedure for settlement of damages claimed.
226.22  Prohibition of pollution.
226.23  Easements for wells off leased premises.
226.24  Lessee's use of water.
226.25  Gas well drilled by oil lessees and vice versa.
226.26  Determining cost of well.
226.27  Gas for operating purposes and tribal use.

                         Cessation of Operations

226.28  Shutdown, abandonment, and plugging of wells.
226.29  Disposition of casings and other improvements.

                         Requirements of Lessees

226.30  Lessees subject to Superintendent's orders; books and records 
          open to inspection.
226.31  Lessee's process agents.
226.32  Well records and reports.
226.33  Line drilling.
226.34  Wells and tank batteries to be marked.
226.35  Formations to be protected.
226.36  Control devices.
226.37  Waste of oil and gas.
226.38  Measuring and storing oil.
226.39  Measurement of gas.
226.40  Use of gas for lifting oil.
226.41  Accidents to be reported.

                                Penalties

226.42  Penalty for violation of lease terms.
226.43  Penalties for violation of certain operating regulations.

                           Appeals and Notices

226.44  Appeals.
226.45  Notices.
226.46  Information collection.

    Authority: Sec. 3, 34 Stat. 543; secs. 1, 2, 45 Stat. 1478; sec. 3, 
52 Stat. 1034, 1035; sec. 2(a), 92 Stat. 1660.

    Source: 39 FR 22254, June 21, 1974, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 226.1  Definitions.

    As used in this part 226, terms shall have the meanings set forth in 
this section.
    (a) Secretary means the Secretary of the Interior or his authorized 
representative acting under delegated authority.
    (b) Osage Tribal Council means the duly elected governing body of 
the Osage Nation or Tribe of Indians of Oklahoma vested with authority 
to lease or take other actions on oil and gas mining pertaining to the 
Osage Mineral Estate.
    (c) Superintendent means the Superintendent of the Osage Agency, 
Pawhuska, Oklahoma, or his authorized representative acting under 
delegated authority.
    (d) Oil lessee means any person, firm, or corporation to whom an oil 
mining lease is made under the regulations in this part.
    (e) Gas lessee means any person, firm, or corporation to whom a gas 
mining lease is made under the regulations in this part.
    (f) Oil and gas lessee means any person, firm, or corporation to 
whom an oil and gas mining lease is made under the regulations in this 
part.
    (g) Primary term means the basic period of time for which a lease is 
issued during which the lease contract may be kept in force by payment 
of rentals.

[[Page 576]]

    (h) Major purchaser means any one of the minimum number of 
purchasers taking 95 percent of the oil in Osage County, Oklahoma. Any 
oil purchased by a purchaser from itself, its subsidiaries, 
partnerships, associations, or other corporations in which it has a 
financial or management interest shall be excluded from the 
determination of a major purchaser.
    (i) Casinghead gas means gas produced from an oil well as a 
consequence of oil production from the same formation.
    (j) Natural gas means any fluid, either combustible or 
noncombustible, recovered at the surface in the gaseous phase and/or 
hydrocarbons recovered at the surface as liquids which are the result of 
condensation caused by reduction of pressure and temperature of 
hydrocarbons originally existing in a reservoir in the gaseous phase.
    (k) Authorized representative of an oil lessee, gas lessee, or oil 
and gas lessee means any person, group, or groups of persons, 
partnership, association, company, corporation, organization or agent 
employed by or contracted with a lessee or any subcontractor to conduct 
oil and gas operations or provide facilities to market oil and gas.
    (l) Oil well means any well which produces one (1) barrel or more of 
crude petroleum oil for each 15,000 standard cubic feet of natural gas.
    (m) Gas well means any well which:
    (1) Produces natural gas not associated with crude petroleum oil at 
the time of production or
    (2) Produces more than 15,000 standard cubic feet of natural gas to 
each barrel of crude petroleum oil from the same producing formation.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50648, Nov. 17, 1976; 
43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33114, Aug. 14, 1990]

                  Leasing Procedure, Rental and Royalty



Sec. 226.2  Sale of leases.

    (a) Written application, together with any nomination fee, for 
tracts to be offered for lease shall be filed with the Superintendent.
    (b) The Superintendent, with the consent of the Osage Tribal 
Council, shall publish notices for the sale of oil leases, gas leases, 
and oil and gas leases to the highest responsible bidder on specific 
tracts of the unleased Osage Mineral Estate. The Superintendent may 
require any bidder to submit satisfactory evidence of his good faith and 
ability to comply with all provisions of the notice of sale. Successful 
bidders must deposit with the Superintendent on day of sale a check or 
cash in an amount not less than 25 percent of the cash bonus offered as 
a guaranty of good faith. Any and all bids shall be subject to the 
acceptance of the Osage Tribal Council and approval of the 
Superintendent. Within 20 days after notification of being the 
successful bidder, and said bidder must submit to the Superintendent the 
balance of the cash bonus, a $10 filing fee, and the lease in completed 
form. The Superintendent may extend the time for the completion and 
submission of the lease form, but no extension shall be granted for 
remitting the balance of moneys due. If the bidder fails to pay the full 
cash consideration within said period or fails to file the completed 
lease within said period or extention thereof, or if the lease is 
rejected through no fault of the Osage Tribal Council or the 
Superintendent, 25 percent of the cash bonus bid will be forfeited for 
the use and benefits of the Osage Tribe. The Superintendent may reject a 
lease made on an accepted bid, upon evidence satisfactory to him of 
collusion, fraud, or other irregularity in connection with the notice of 
sale. The Superintendent may approve oil leases, gas leases, and oil and 
gas leases made by the Osage Tribal Council in conformity with the 
notice of sale, regulations in this part, bonds, and other instruments 
required.
    (c) Each oil and/or gas lease and activities and installations 
associated therewith subject to these regulations shall be assessed and 
evaluated for its environmental impact prior to its approval by the 
Superintendent.
    (d) Lessee shall accept a lease with the understanding that a 
mineral not covered by his lease may be leased separately.
    (e) No lease, assignment thereof, or interest therein will be 
approved to any employee or employees of the Government and no such 
employee shall be

[[Page 577]]

permitted to acquire any interest in leases covering the Osage Mineral 
Estate by ownership of stock in corporations having leases or in any 
other manner.
    (f) The Osage Tribal Council may utilize the following procedures 
among others, in entering into a mining lease. A contract may be entered 
into through competitive bidding as outlined in Sec. 226.2(b), 
negotiation, or a combination of both. The Osage Tribal Council may also 
request the Superintendent to undertake the preparation, advertisement 
and negotiation. The Superintendent may approve any such contract made 
by the Osage Tribal Council.

[39 FR 22254, June 21, 1974, as amended at 43 FR 8135, Feb. 28, 1978. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.3  Surrender of lease.

    Lessee may, with the approval of the Superintendent and payment of a 
$10 filing fee, surrender all or any portion of any lease, have the 
lease cancelled as to the portion surrendered and be relieved from all 
subsequent obligations and liabilities. If the lease, or portion being 
surrendered, is owned in undivided interests by more than one party, 
then all parties shall join in the application for cancellation: 
Provided, That if this lease has been recorded, Lessee shall execute a 
release and record the same in the proper office. Such surrender shall 
not entitle Lessee to a refund of the unused portion of rental paid in 
lieu of development, nor shall it relieve Lessee and his sureties of any 
obligation and liability incurred prior to such surrender: Provided 
further, That when there is a partial surrender of any lease and the 
acreage to be retained is less than 160 acres or there is a surrender of 
a separate horizon, such surrender shall become effective only with the 
consent of the Osage Tribal Council and approval of the Superintendent.

[43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.4  Form of payment.

    Sums due under a lease contract and/or the regulations in this part 
shall be paid by cash or check made payable to the Bureau of Indian 
Affairs and delivered to the Osage Agency, Pawhuska, Oklahoma 74056. 
Such sums shall be a prior lien on all equipment and unsold oil on the 
leased premises.



Sec. 226.5  Leases subject to current regulations.

    Leases issued pursuant to this part shall be subject to the current 
regulations of the Secretary, all of which are made a part of such 
leases: Provided, That no amendment or change of such regulations made 
after the approval of any lease shall operate to affect the term of the 
lease, rate of royalty, rental, or acreage unless agreed to by both 
parties and approved by the Superintendent.



Sec. 226.6  Bonds.

    Lessees shall furnish with each lease a corporate surety bond 
acceptable to the Superintendent as follows:
    (a) A bond on Form D shall be filed with each lease submitted for 
approval. Such bond shall be in an amount of not less than $5,000 for 
each quarter section or fractional quarter section covered by said 
lease: Provided, however, That one bond in the penal sum or not less 
than $50,000 may be filed on Form G covering all oil, gas and 
combination oil and gas leases not in excess of 10,240 acres to which 
Lessee is or may become a party.
    (b) In lieu of the bonds required under paragraph (a) of this 
section, a bond in the penal sum of $150,000 may be filed on Form 5-5438 
for full nationwide coverage of all leases, without geographic or 
acreage limitation, to which the Lessee is or may become a party.
    (c) A bond on Form H shall be filed in an amount of not less than 
$5,000 covering a lease acquired through assignment where the assignee 
does not have a collective bond on form G or nationwide bond, or the 
corporate surety does not execute its consent to remain bound under the 
original bond given to secure the faithful performance of the terms and 
conditions of the lease.
    (d) The right is specifically reserved to increase the amount of 
bonds prescribed in paragraphs (a) and (c) of this section in any 
particular case when the Superintendent deems it proper. The

[[Page 578]]

nationwide bond may be increased at any time in the discretion of the 
Secretary.

[39 FR 22254, June 21, 1974, as amended at 43 FR 8135, Feb. 28, 1978; 43 
FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as 
amended at 55 FR 33114, Aug. 14, 1990]



Sec. 226.7  Provisions of forms made a part of the regulations.

    Leases, assignments, and supporting instruments shall be in the form 
prescribed by the Secretary, and such forms are hereby made a part of 
the regulations.



Sec. 226.8  Corporation and corporate information.

    (a) If the applicant for a lease is a corporation, it shall file 
evidence of authority of its officers to execute papers; and with its 
first application it shall also file a certified copy of its Articles of 
Incorporation and, if foreign to the State of Oklahoma, evidence showing 
compliance with the corporation laws thereof.
    (b) Whenever deemed advisable the Superintendent may require a 
corporation to file any additional information necessary to carry out 
the purpose and intent of the regulations in this part, and such 
information shall be furnished within a reasonable time.



Sec. 226.9  Rental and drilling obligations.

    (a) Oil leases, gas leases, and combination oil and gas leases. 
Unless Lessee shall complete and place on production a well producing 
and selling oil and/or gas in paying quantities on the land embraced 
within the lease within 12 months from the date of approval of the 
lease, or as otherwise provided in the lease terms, or 12 months from 
the date the Superintendent consents to drilling on any restricted 
homestead selection, the lease shall terminate unless rental at the rate 
of not less than $1 per acre for an oil or gas lease, or not less than 
$2.00 per acre for a combination oil and gas lease, shall be paid before 
the end of the first year of the lease. The lease may also be held for 
the remainder of its primary term without drilling upon payment of the 
specified rental annually in advance, commencing with the second lease 
year. The lease shall terminate as of the due date of the rental unless 
such rental shall be received by the Superintendent, or shall have been 
mailed as indicated by postmark on or before said date. The completion 
of a well producing in paying quantities shall, for so long as such 
production continues, relieve Lessee from any further payment of rental, 
except that should such production cease during the primary term the 
lease may be continued only during the remaining primary term of the 
lease by payment of advance rental which shall commence on the next 
anniversary date of the lease. Rental shall be paid on the basis of a 
full year and no refund will be made of advance rental paid in 
compliance with the regulations in this part: Provided, That the 
Superintendent in his discretion may order further development of any 
leased acreage or separate horizon if, in his opinion, a prudent 
operator would conduct further development. If Lessee refuses to comply, 
the refusal will be considered a violation of the lease terms and said 
lease shall be subject to cancellation as to the acreage or horizon the 
further development of which was ordered: Provided further, That the 
Superintendent may impose restrictions as to time of drilling and rate 
of production from any well or wells when in his judgment, such action 
may be necessary or proper for the protection of the natural resources 
of the leased land and the interests of the Osage Tribe. The 
superintendent may consider, among other things, Federal and Oklahoma 
laws regulating either drilling or production. If a lessee holds both an 
oil lease and a gas lease covering the same acreage, such lessee is 
subject to the provisions of this section as to both the oil lease and 
the gas lease.
    (b) The Superintendent may, with the consent of and under terms 
approved by the Osage Tribal Council, grant an extension of the primary 
term of a lease on which the actual drilling of a well shall have 
commenced within the term thereof or for the purpose of enabling Lessee 
to obtain a market for his oil and/or gas production.

[43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 579]]



Sec. 226.10  Term of lease.

    Leases issued hereunder shall be for a primary term as established 
by the Osage Tribal Council, approved by the Superintendent, and so 
stated in the notice of sale of such leases and so long thereafter as 
the minerals specified are produced in paying quantities.

[43 FR 8136, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.11  Royalty payments.

    (a) Royalty on oil--(1) Royalty rate. Lessee shall pay or cause to 
be paid to the Superintendent, as royalty, the sum of not less than 
16\2/3\ percent of the gross proceeds from sales after deducting the oil 
used by Lessee for development and operation purposes on the lease: 
Provided, That when the quantity of oil taken from all the producing 
wells on any quarter-section or fraction thereof, according to the 
public survey, during any calendar month is sufficient to average one 
hundred or more barrels per active producing well per day the royalty on 
such oil shall be not less than 20 percent. The Osage Tribal Council 
may, upon presentation of justifiable economic evidence by Lessee, agree 
to a revised royalty rate subject to approval by the Superintendent, 
applicable to additional oil produced from a lease or leases by enhanced 
recovery methods, which rate shall not be less than 12\1/2\ percent of 
the gross proceeds from sale of oil produced by enhanced recovery 
processes, other than gas injection, after deducting the oil used by 
Lessee for development and operating purposes on the lease or leases.
    (2) Unless the Osage Tribal Council, with approval of the Secretary, 
shall elect to take the royalty in kind, payment is owing at the time of 
sale or removal of the oil, except where payments are made on division 
orders, and settlement shall be based on the actual selling price, but 
at not less than the highest posted price by a major purchaser (as 
defined in Sec. 226.1(h)) in Osage County, Oklahoma, who purchases 
production from Osage oil leases.
    (3) Royalty in kind. Should Lessor, with approval of the Secretary, 
elect to take the royalty in kind, Lessee shall furnish free storage for 
royalty oil for a period not to exceed 60 days from date of production 
after notice of such election.
    (b) Royalty on gas--(1) Oil lease. All casinghead gas shall belong 
to the oil Lessee subject to any rights under existing gas leases. All 
casinghead gas removed from the lease from which it is produced shall be 
metered unless otherwise approved by the Superintendent and be subject 
to a royalty of not less than 16\2/3\ percent of the market value of the 
gas and all products extracted therefrom, less a reasonable allowance 
for manufacture or processing. If an oil Lessee supplies casinghead gas 
produced from one lease for operation and/or development of other 
leases, either his/hers or others, a royalty of not less than 16\2/3\ 
percent shall be paid on the market value of all casinghead gas so used. 
All casinghead gas not utilized by the oil Lessee may, with the approval 
of the Superintendent, be utilized or sold by the gas Lessee, subject to 
the prescribed royalty of not less than 16\2/3\ percent of the market 
value.
    (2) Gas lease. Lessee shall pay a royalty of not less than 16\2/3\ 
percent of the market value value of all natural gas and products 
extracted therefrom produced and sold from his lease. Natural gas used 
in the reasonable and prudent operation and development of said lease 
shall be exempted from royalty payment.
    (3) Combination oil and gas lease. Lessee shall pay royalty as 
provided in paragraphs (b)(1) and (2) of this section.
    (c) Minimum royalty. In no event shall the royalty paid from 
producing leases during any year be less than an amount equal to the 
annual rental specified for the lease. Any underpayment of minimum 
royalty shall be due and payable within 45 days following the end of the 
lease year. After the primary term, Lessee shall submit with his payment 
evidence that the lease is producing in paying quantities. The 
Superintendent is authorized to determine whether the lease is actually 
producing in paying quantities or has terminated for lack of such 
production. Payment for any underpayment not made within the time 
specified shall be subject to a late charge at the rate of not less than 
1\1/2\

[[Page 580]]

percent per month for each month or fraction thereof until paid.

[39 FR 22254, June 21, 1974, as amended at 43 FR 8136, Feb. 28, 1978; 43 
FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as 
amended at 55 FR 33114, Aug. 14, 1990; 59 FR 22104, Apr. 28, 1994]



Sec. 226.12  Government reserves right to purchase oil.

    Any of the executive departments of the U.S. Government shall have 
the option to purchase all or any part of the oil produced from any 
lease at not less than the highest posted price as defined in 
Sec. 226.11.



Sec. 226.13  Time of royalty payments and reports.

    (a) Royalty payments due may be paid by either purchaser or Lessee. 
Unless otherwise provided by the Osage Tribal Council and approved by 
the Superintendent, all payments shall be due by the 25th day of each 
month and shall cover the sales of the preceding month. Failure to make 
such payments shall subject Lessee or purchaser, whoever is responsible 
for royalty payment, to a late charge at the rate of not less than 1\1/
2\ percent for each month or fraction thereof until paid. The Osage 
Tribal Council, subject to the approval of the Superintendent, may waive 
the late charges.
    (b) Lessee shall furnish certified monthly reports by the 25th of 
each following month covering all operations, whether there has been 
production or not, indicating therein the total amount of oil, natural 
gas, casinghead gas, and other products subject to royalty payment.
    (c) Failure to remit payments or reports shall subject Lessee to 
further penalties as provided in Secs. 226.42 and 226.43 and shall 
subject the division order to cancellation.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33114, Aug. 14, 1990]



Sec. 226.14  Contracts and division orders.

    (a) Lessee may enter into division orders or contracts with the 
purchasers of oil, gas, or derivatives therefrom which will provide for 
the purchaser to make payment of royalty in accordance with his lease: 
Provided, That such division orders or contracts shall not relieve 
Lessee from responsibility for the payment of the royalty should the 
purchaser fail to pay. No production shall be removed from the leased 
premises until a division order and/or contract and its terms are 
approved by the Superintendent: Provided further, That the 
Superintendent may grant temporary permission to run oil or gas from a 
lease pending the approval of a division order or contract. Lessee shall 
file a certified monthly report and pay royalty on the value of all oil 
and gas used off the premises for development and operating purposes. 
Lessee shall be responsible for the correct measurement and reporting of 
all oil and/or gas taken from the leased premises.
    (b) Lessee shall require the purchaser of oil and/or gas from his/
her lease or leases to furnish the Superintendent, no later than the 
25th day of each month, a statement reporting the gross barrels of oil 
and/or gross Mcf of gas sold during the preceding month. The 
Superintendent may authorize an extension of time, not to exceed 10 
days, for furnishing this statement.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33114, Aug. 14, 1990]



Sec. 226.15  Unit leases, assignments and related instruments.

    (a) Unitization of leases. The Osage Tribal Council and Lessee or 
Lessees, may, with the approval of the Superintendent, unitize or merge, 
two or more oil or oil and gas leases into a unit or cooperative 
operating plan to promote the greatest ultimate recovery of oil and gas 
from a common source of supply or portion thereof embracing the lands 
covered by such lease or leases. The cooperative or unit agreement shall 
be subject to the regulations in this part and applicable laws governing 
the leasing of the Osage Mineral Estate. Any agreement between the 
parties in interest to terminate a unit or cooperative agreement as to 
all or any portion of the lands included shall be submitted to the 
Superintendent for his approval. Upon approval the leases included 
thereunder shall be restored to their original terms: Provided, That for 
the purpose of preventing

[[Page 581]]

waste and to promote the greatest ultimate recovery of oil and gas from 
a common source of supply or portion thereof, all oil leases, oil and 
gas leases, and gas leases issued heretofore and hereafter under the 
provisions of the regulations in this part shall be subject to any unit 
development plan affecting the leased lands that may be required by the 
Superintendent with the consent of the Osage Tribal Council, and which 
plan shall adequately protect the rights of all parties in interest 
including the Osage Mineral Estate.
    (b) Assignments. Approved leases or any interest therein may be 
assigned or transferred only with the approval of the Superintendent. 
The assignee must be qualified to hold such lease under existing rules 
and regulations and shall furnish a satisfactory bond conditioned for 
the faithful performance of the covenants and conditions thereof. Lessee 
must assign either his entire interest in a lease or legal subdivision 
thereof, or an undivided interest in the whole lease: Provided, That 
when an assignment covers only a portion of a lease or covers interests 
in separate horizons such assignment shall be subject to both the 
consent of the Osage Tribal Council and approval of the Superintendent. 
If a lease is divided by the assignment of an entire interest in any 
part, each part shall be considered a separate lease and the assignee 
shall be bound to comply with all the terms and conditions of the 
original lease. A fully executed copy of the assignment shall be filed 
with the Superintendent within 30 days after the date of execution by 
all parties. If requested within the 30-day period, the Superintendent 
may grant an extension of 15 days. A filing fee of $10 shall accompany 
each assignment.
    (c) Overriding royalty. Agreements creating overriding royalties or 
payments out of production shall not be considered as an interest in a 
lease as such term is used in paragraph (b) of this section. Agreements 
creating overriding royalties or payments out of production are hereby 
authorized and the approval of the Department of the Interior or any 
agency thereof shall not be required with respect thereto, but such 
agreements shall be subject to the condition that nothing in any such 
agreement shall be construed as modifying any of the obligations of 
Lessee under his lease and the regulations in this part. All such 
obligations are to remain in full force and effect, the same as if free 
of any such royalties or payments. The existence of agreements creating 
overriding royalties or payments out of production, whether or not 
acutally paid, shall not be considered in justifying the shutdown or 
abandonment of any well. Agreements creating overriding royalties or 
payments out of production need not be filed with the Superintendent 
unless incorporated in assignments or instruments required to be filed 
pursuant to paragraph (b) of this section. An agreement creating 
overriding royalties or payment out of production shall be suspended 
when the working interest income per active producing well is equal to 
or less than the operational cost of the well, as determined by the 
Superintendent.
    (d) Drilling contracts. The Superintendent is authorized to approve 
drilling contracts with a stipulation that such approval does not in any 
way bind the Department to approve subsequent assignments that may be 
provided for in said contracts. Approval merely authorizes entry on the 
lease for the purpose of development work.
    (e) Combining leases. The lessee owning both an oil lease and gas 
lease covering the same acreage is authorized to convert such leases to 
a combination oil and gas lease.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]

                               Operations



Sec. 226.16  Commencement of operations.

    (a) No operations shall be permitted upon any tract of land until a 
lease covering such tract shall have been approved by the 
Superintendent: Provided, That the Superintendent may grant authority to 
any party under such rules, consistent with the regulations in this part 
that he deems proper, to conduct geophysical and geological exploration 
work.

[[Page 582]]

    (b) Lessee shall submit applications on forms to be furnished by the 
Superintendent and secure his approval before:
    (1) Well drilling, treating, or workover operations are started on 
the leased premises.
    (2) Removing casing from any well.
    (c) Lessee shall notify the Superintendent a reasonable time in 
advance of starting work, of intention to drill, redrill, deepen, plug, 
or abandon a well.



Sec. 226.17  How to acquire permission to begin operations on a restricted homestead allotment.

    (a) Lessee may conduct operations within or upon a restricted 
homestead selection only with the written consent of the Superintendent.
    (b) If the allottee is unwilling to permit operations on his 
homestead, the Superintendent will cause an examination of the premises 
to be made with the allottee and lessee or his representative. Upon 
finding that the interests of the Osage Tribe require that the tract be 
developed, the Superintendent will endeavor to have the parties agree 
upon the terms under which operations on the homestead may be conducted.
    (c) In the event the allottee and lessee cannot reach an agreement, 
the matter shall be presented by all parties before the Osage Tribal 
Council, and the Council shall make its recommendations. Such 
recommendations shall be considered as final and binding upon the 
allottee and lessee. A guardian may represent the allottee. Where no one 
is authorized or where no person is deemed by the Superintendent to be a 
proper party to speak for a person of unsound mind or feeble 
understanding, the Principal Chief of the Osage Tribe shall represent 
him.
    (d) If the allottee or his representative does not appear before the 
Osage Tribal Council when notified by the Superintendent, or if the 
Council fails to act within 10 days after the matter is referred to it, 
the Superintendent may authorize lessee to proceed with operations in 
conformity with the provisions of his lease and the regulations in this 
part.



Sec. 226.18  Information to be given surface owners prior to commencement of drilling operations.

    Except for the surveying and staking of a well, no operations of any 
kind shall commence until the lessee or his/her authorized 
representative shall meet with the surface owner or his/her 
representative, if a resident of and present in Osage County, Oklahoma. 
Unless waived by the Superintendent or otherwise agreed to between the 
lessee and surface owner, such meeting shall be held at least 10 days 
prior to the commencement or any operations, except for the surveying 
and staking of the well. At such meeting lessee or his/her authorized 
representative shall comply with the following requirements:
    (a) Indicate the location of the well or wells to be drilled.
    (b) Arrange for route of ingress and egress. Upon failure to agree 
on route ingress and egress, said route shall be set by the 
Superintendent.
    (c) Impart to said surface owners the name and address of the party 
or representative upon whom the surface owner shall serve any claim for 
damages which he may sustain from mineral development or operations, and 
as to the procedure for settlement thereof as provided in Sec. 226.21
    (d) Where the drilling is to be on restricted land, lessee or his 
authorized representative in the manner provided above shall meet with 
the Superintendent.
    (e) When the surface owner or his/her representative is not a 
resident of, or is not physically present in, Osage County, Oklahoma, or 
cannot be contacted at the last known address, the Superintendent may 
authorize lessee to proceed with operations.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50648, Nov. 17, 1976; 
43 FR 8136, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.19  Use of surface of land.

    (a) Lessee or his/her authorized representative shall have the right 
to use so much of the surface of the land within the Osage Mineral 
Estate as may be reasonable for operations and marketing. This includes 
but is not

[[Page 583]]

limited to the right to lay and maintain pipelines, electric lines, pull 
rods, other appliances necessary for operations and marketing, and the 
right-of-way for ingress and egress to any point of operations. If 
Lessee and surface owner are unable to agree as to the routing of 
pipelines, electric lines, etc., said routing shall be set by the 
Superintendent. The right to use water for lease operations is 
established by Sec. 226.24. Lessee shall conduct his/her operations in a 
workmanlike manner, commit no waste and allow none to be committed upon 
the land, nor permit any unavoidable nuisance to be maintained on the 
premises under his/her control.
    (b) Before commencing a drilling operation, Lessee shall pay or 
tender to the surface owner commencement money in the amount of $25 per 
seismic shot hole and commencement money in the amount of $300 for each 
well, after which Lessee shall be entitled to immediate possession of 
the drilling site. Commencement money will not be required for the 
redrilling of a well which was originally drilled under the currently 
lease. A drilling site shall be held to the minimum area essential for 
operations and shall not exceed one and one-half acres in area unless 
authorized by the Superintendent. Commencement money shall be a credit 
toward the settlement of the total damages. Acceptance of commencement 
money by the surface owner does not affect his/her right to compensation 
for damages as described in Sec. 226.20, occasioned by the drilling and 
completion of the well for which it was paid. Since actual damage to the 
surface from operations cannot necessarily be ascertained prior to the 
completion of a well as a serviceable well or dry hole, a damage 
settlement covering the drilling operation need not be made until after 
completion of drilling operations.
    (c) Where the surface is restricted land, commencement money shall 
be paid to the Superintendent for the landowner. All other surface 
owners shall be paid or tendered such commencement money direct. Where 
such surface owners are not residents of Osage County nor have a 
representative located therein, such payment shall be made or tendered 
to the last known address of the surface owner at least 5 days before 
commencing drilling operation on any well: Provided, That should lessee 
be unable to reach the owner of the surface of the land for the purpose 
of tendering the commencement money or if the owner of the surface of 
the land shall refuse to accept the same, lessee shall deposit such 
amount with the Superintendent by check payable to the Bureau of Indian 
Affairs. The superintendent shall thereupon advise the owner of the 
surface of the land by mail at his last known address that the 
commencement money is being held for payment to him upon his written 
request.
    (d) Lessee shall also pay fees for tank sites not exceeding 50 feet 
square at the rate of $100 per tank site or other vessel: Provided, That 
no payment shall be due for a tank temporarily set on a well location 
site for drilling, completing, or testing. The sum to be paid for a tank 
occupying more than 50 feet square shall be agreed upon between the 
surface owner and lessee or, on failure to agree, the same shall be 
determined by arbitration as provided by Sec. 226.21.

[39 FR 22254, June 22, 1974, as amended at 43 FR 8136, Feb. 28, 1978; 43 
FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982, as 
amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.20  Settlement of damages claimed.

    (a) Lessee or his authorized representative or geophysical permittee 
shall pay for all damages to growing crops, any improvements on the 
lands, and all other surface damages as may be occasioned by operations. 
Commencement money shall be a credit toward the settlement of the total 
damages occasioned by the drilling and completion of the well for which 
it was paid. Such damages shall be paid to the owner of the surface and 
by him apportioned among the parties interested in the surface, whether 
as owner, surface lessee, or otherwise, as the parties may mutually 
agree or as their interests may appear. If lessee or his authorized 
representative and surface owner are unable to agree concerning damages, 
the same shall be determined by arbitration. Nothing herein contained 
shall

[[Page 584]]

be construed to deny any party the right to file an action in a court of 
competent jurisdiction if he is dissatisfied with the amount of the 
award.
    (b) Surface owners shall notify their lessees or tenants of the 
regulations in this part and of the necessary procedure to follow in all 
cases of alleged damages. If so authorized in writing, surface lessees 
or tenants may represent the surface owners.
    (c) In settlement of damages on restricted land all sums due and 
payable shall be paid to the Superintendent for credit to the account of 
the Indian entitled thereto. The Superintendent will make the 
apportionment between the Indian landowner or owners and surface Lessee 
of record.
    (d) Any person claiming an interest in any leased tract or in 
damages thereto, must furnish to the Superintendent a statement in 
writing showing said claimed interest. Failure to furnish such statement 
shall constitute a waiver of notice and estop said person from claiming 
any part of such damages after the same shall have been disbursed.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50649, Nov. 17, 1976; 
43 FR 8137, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 226.21  Procedure for settlement of damages claimed.

    Where the surface owner or his lessee suffers damage due to the oil 
and gas operations and/or marketing of oil or gas by lessee or his 
authorized representative, the procedure for recovery shall be as 
follows:
    (a) The party or parties aggrieved shall, as soon as possible after 
the discovery of any damages, serve written notice to Lessee or his 
authorized representative as provided by Sec. 226.18. Written notice 
shall contain the nature and location of the alleged damages, the date 
of occurrence, the names of the party or parties causing said damages, 
and the amount of damages. It is not intended by this requirement to 
limit the time within which action may be brought in the courts to less 
than the 90-day period allowed by section 2 of the Act of March 2, 1929 
(45 Stat. 1478, 1479).
    (b) If the alleged damages are not adjusted at the time of such 
notice, Lessee or his authorized representative shall try to adjust the 
claim with the party or parties aggrieved within 20 days from receipt of 
the notice. If the claimant is the owner of restricted property and a 
settlement results, a copy of the settlement agreement shall be filed 
with the Superintendent. If the settlement agreement is approved by the 
Superintendent, payment shall be made to the Superintendent for the 
benefit of said claimant.
    (c) If the parties fail to adjust the claim within the 20 days 
specified, then within 10 days thereafter each of the interested parties 
shall appoint an arbitrator who immediately upon their appointment shall 
agree upon a third arbitrator. If the two arbitrators shall fail to 
agree upon a third arbitrator within 10 days, they shall immediately 
notify the parties in interest. If said parties cannot agree upon a 
third arbitrator within 5 days after receipt of such notice, the 
Superintendent shall appoint the third arbitrator.
    (d) As soon as the third arbitrator is appointed, the arbitrators 
shall meet; hear the evidence and arguments of the parties; and examine 
the lands, crops, improvements, or other property alleged to have been 
injured. Within 10 days they shall render their decision as to the 
amount of the damage due. The arbitrators shall be disinterested 
persons. The fees and expenses of the third arbitrator shall be borne 
equally by the claimant and Lessee or his authorized representative. 
Each Lessee or his authorized representative and claimant shall pay the 
fee and expenses for the arbitrator appointed by him.
    (e) When an act of an oil or gas lessee or his authorized 
representative results in injury to both the surface owner and his 
lessee, the parties aggrieved shall join in the appointment of an 
arbitrator. Where the injury complained of is chargeable to one or more 
oil or gas Lessee, or his authorized representative, such lessee or said 
representative shall join in the appointment of an arbitrator.
    (f) Any two of the arbitrators may make a decision as to the amount 
of damage due. The decision shall be in writing and forthwith shall be 
served

[[Page 585]]

upon the parties in interest. Each party shall have 90 days from the 
date the decision is served in which to file an action in a court of 
competent jurisdiction. If no such action is filed within said time and 
the award is against Lessee or his/her authorized representative, he/she 
shall pay the same, together with interest at an annual rate established 
for the Internal Revenue Service from date of award, within 10 days 
after the expiration of said period for filing an action.
    (g) Lessee or his authorized representative shall file with the 
Superintendent a report on each settlement agreement, setting out the 
nature and location of the damage, date, and amount of the settlement, 
and any other pertinent information.

[39 FR 22254, June 21, 1974, as amended at 41 FR 50649, Nov. 17, 1976. 
Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 55 FR 33115, 
Aug. 14, 1990]

    Editorial Note: At 55 FR 33115, Aug. 14, 1990, the Bureau of Indian 
Affairs published a document amending Sec. 226.21(f) by removing the 
word ``forthwith'' from the first sentence and adding the word 
``forthwith'' to follow directly after the word ``served''; however, 
because these terms do not exist in the first sentence, this amendment 
could not be incorporated.



Sec. 226.22  Prohibition of pollution.

    (a) All operators, contractors, drillers, service companies, pipe 
pulling and salvaging contractors, or other persons, shall at all times 
conduct their operations and drill, equip, operate, produce, plug and 
abandon all wells drilled for oil or gas, service wells or exploratory 
wells (including seismic, core and stratigraphic holes) in a manner that 
will prevent pollution and the migration of oil, gas, salt water or 
other substance from one stratum into another, including any fresh water 
bearing formation.
    (b) Pits for drilling mud or deleterious substance used in the 
drilling, completion, recompletion, or workover of any well shall be 
constructed and maintained to prevent pollution of surface and 
subsurface fresh water. These pits shall be enclosed with a fence of at 
least four strands of barbed wire, or an approved substitute, stretched 
taut to adequately braced corner posts, unless the surface owner, user, 
or the Superintendent gives consent to the contrary. Immediately after 
completion of operations, pits shall be emptied and leveled unless 
otherwise requested by surface owner or user.
    (c) Drilling pits shall be adequate to contain mud and other 
material extracted from wells and shall have adequate storage to 
maintain a supply of mud for use in emergencies.
    (d) No earthen pit, except those used in the drilling, completion, 
recompletion or workover of a well, shall be constructed, enlarged, 
reconstructed or used without approval of the Superintendent. Unlined 
earthen pits shall not be used for the continued storage of salt water 
or other deleterious substances.
    (e) Deleterious fluids other than fresh water drilling fluids used 
in drilling or workover operations, which are displaced or produced in 
well completion or stimulation procedures, including but not limited to 
fracturing, acidizing, swabbing, and drill stem tests, shall be 
collected into a pit lined with plastic of at least 30 mil or a metal 
tank and maintained separately from above-mentioned drilling fluids to 
allow for separate disposal.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.23  Easements for wells off leased premises.

    The Superintendent, with the consent of the Osage Tribal Council, 
may grant commercial and noncommercial easements for wells off the 
leased premises to be used for purposes associated with oil and gas 
production. Rental payable to the Osage Tribe for such easements shall 
be an amount agreed to by Grantee and the Osage Tribal Council subject 
to the approval of the Superintendent. Grantee shall be responsible for 
all damages resulting from the use of such wells and settlement therefor 
shall be made as provided in Sec. 226.21.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.24  Lessee's use of water.

    Lessee or his contractor may, with the approval of the 
Superintendent, use

[[Page 586]]

water from streams and natural water courses to the extent that same 
does not diminish the supply below the requirements of the surface owner 
from whose land the water is taken. Similarly, Lessee or his contractor 
may use water from reservoirs formed by the impoundment of water from 
such streams and natural water courses, provided such use does not 
exceed the quantity to which they originally would have been entitled 
had the reservoirs not been constructed. Lessee or his contractor may 
install necessary lines and other equipment within the Osage Mineral 
Estate to obtain such water. Any damage resulting from such installation 
shall be settled as provided in Sec. 226.21.



Sec. 226.25  Gas well drilled by oil lessees and vice versa.

    Prior to drilling, the oil or gas lessee shall notify the other 
lessees of his/her intent to drill. When an oil lessee in drilling a 
well encounters a formation or zone having indications of possible gas 
production, or the gas lessee in drilling a well encounters a formation 
or zone having indication of possible oil production, he/she shall 
immediately notify the other lessee and the Superintendent. Lessee 
drilling the well shall obtain all information which a prudent operator 
utilizes to evaluate the productive capability of such formation or 
zone.
    (a) Gas well to be turned over to gas lessee. If the oil lessee 
drills a gas well, he/she shall, without removing from the well any of 
the casing or other equipment, immediately shut the well in and notify 
the gas lessee and the Superintendent. If the gas lessee does not, 
within 45 days after receiving notice and cost of drilling, elect to 
take over such well and reimburse the oil lessee the cost of drilling, 
including all damages paid and the cost in-place of casing, tubing, and 
other equipment, the oil lessee shall immediately confine the gas to the 
original stratum. The disposition of such well and the production 
therefrom shall then be subject to the approval of the Superintendent. 
In the event the oil lessee and gas lessee cannot agree on the cost of 
the well, such cost shall be apportioned between the oil and gas lessee 
by the Superintendent. If such apportionment is not accepted, the well 
shall be plugged by the oil and gas lessee who drilled the well.
    (b) Oil well to be turned over to oil lessee. If the gas lessee 
drills an oil well, he/she shall immediately, without removing from the 
well any of the casing or other equipment, notify the oil lessee and the 
Superintendent. If the oil lessee does not, within 45 days after receipt 
of notice and cost of drilling, elect to take over the well, he/she 
shall immediately notify the gas lessee, and the disposition of such 
well and the production therefrom shall be subject to the approval of 
the Superintendent. Should the oil lessee elect to take over the well, 
he/she shall pay the gas lessee the cost of drilling the same, including 
all damages paid and cost inplace of casing and other equipment. In the 
event the oil lessee and gas lessee cannot agree on the cost of the 
well, such cost shall be apportioned between the oil and gas lessee by 
the Superintendent. If such apportionment is not accepted, the well 
shall be plugged by the oil and gas lessee who drilled the well.
    (c) Lands not leased. If the gas lessee shall drill an oil well upon 
lands not leased for oil purposes or vice versa, the Superintendent may, 
until such time as said lands are leased, permit the lessee who drilled 
the well to operate and market the production therefrom. When said lands 
are leased, the lessee who drilled and completed the well shall be 
reimbursed by the oil or gas lessee, for the cost of drilling said well, 
including all damages paid and the cost in-place of casing, tubing, and 
other equipment. If the lessee does not elect to take over said well as 
provided above, the disposition of such well and the production 
therefrom shall be determined by the Superintendent. In the event the 
oil lessee and gas lessee cannot agree on the cost of the well, such 
cost shall be apportioned between the oil and gas lessee by the 
Superintendent. If such apportionment is not accepted, the well shall be 
plugged by the oil and gas lessee who drilled the well.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]

    Editorial Note: At 55 FR 33115, Aug. 14, 1990, the Bureau of Indian 
Affairs published a

[[Page 587]]

document amending Sec. 226.25(b) by removing in the third sentence the 
word ``the'' before the word ``receipt'', removing the word ``such'' 
before the word ``notice'', removing the words ``notice of the,'' and in 
the fourth sentence inserting the word ``casing'' preceding and followed 
by commas after the word ``tubing''; however, because these terms do not 
exist in the third and fourth sentences, this amendment could not be 
incorporated.



Sec. 226.26  Determining cost of well.

    The term ``cost of drilling'' as applied where one lessee takes over 
a well drilled by another, shall include all reasonable, usual, 
necessary, and proper expenditures. A list of expenses mentioned in this 
section shall be presented to proposed purchasing lessee within 10 days 
after the completion of the well. In the event of a disagreement between 
the parties as to the charges assessed against the well that is to be 
taken over, such charges shall be determined by the Superintendent.



Sec. 226.27  Gas for operating purposes and tribal use.

    (a) Gas to be furnished oil lessee. Lessee of a producing gas lease 
shall furnish the oil lessee sufficient gas for operating purposes at a 
rate to be agreed upon, or on failure to agree the rate shall be 
determined by the Superintendent: Provided, That the oil lessee shall at 
his own expense and risk, furnish and install the necessary connections 
to the gas lessee's well or pipeline. All such connections shall be 
reported in writing to the Superintendent.
    (b) Use of gas by Osage Tribe. (1) Gas from any well or wells shall 
be furnished any Tribal-owned building or enterprise at a rate not to 
exceed the price less royalty being received or offered by a gas 
purchaser: Provided, That such requirement shall be subject to the 
determination by the Superintendent that gas in sufficient quantities is 
available above that needed for lease operation and that no waste would 
result. In the absence of a gas purchaser the rate to be paid by the 
Osage Tribe shall be determined by the Superintendent based on prices 
being paid by purchasers in the Osage Mineral Estate. The Osage Tribe is 
to furnish all necessary material and labor for such connection with 
Lessee's gas system. The use of such gas shall be at the risk of the 
Osage Tribe at all times.
    (2) Any member of the Osage Tribe residing in Osage County and 
outside a corporate city is entitled to the use at his own expense of 
not to exceed 400,000 cubic feet of gas per calendar year for his 
principal residence at a rate not to exceed the amount paid by a gas 
purchaser plus 10 percent: Provided, That such requirement shall be 
subject to the determination by the Superintendent that gas in 
sufficient quantities is available above that needed for lease operation 
and that no waste would result. In the absence of a gas purchaser the 
amount to be paid by the Tribal member shall be determined by the 
Superintendent. Gas to Tribal members is not royalty free. The Tribal 
member is to furnish all necessary material and labor for such 
connection to Lessee's gas system, and shall maintain his own lines. The 
use of such gas shall be at the risk of the Tribal member at all times.
    (3) Gas furnished by Lessee under paragraphs (b) (1) and (2) of this 
section may be terminated only with the approval of the Superintendent. 
Written application for termination must be made to the Superintendent 
showing justification.

                         Cessation of Operations



Sec. 226.28  Shutdown, abandonment, and plugging of wells.

    No productive well shall be abandoned until its lack for further 
profitable production of oil and/or gas has been demonstrated to the 
satisfaction of the Superintendent. Lessee shall not shut down, abandon, 
or otherwise discontinue the operation or use of any well for any 
purpose without the written approval of the Superintendent. All 
applications for such approval shall be submitted to the Superintendent 
on forms furnished by him/her.
    (a) Application for authority to permanently shut down or 
discontinue use or operation of a well shall set forth justification, 
probable duration the means by which the well bore is to be protected, 
and the contemplated eventual disposition of the well. The method of 
conditioning such well shall be

[[Page 588]]

subject to the approval of the Superintendent.
    (b) Prior to permanent abandonment of any well, the oil lessee or 
the gas lessee, as the case may be, shall offer the well to the other 
for his recompletion or use under such terms as may be mutually agreed 
upon but not in conflict with the regulations. Failure of the Lessee 
receiving the offer to reply within 10 days after receipt thereof shall 
be deemed as rejection of the offer. If, after indicating acceptance, 
the two parties cannot agree on the terms of the offer within 30 days, 
the disposition of such well shall be determined by the Superintendent.
    (c) The Superintendent is authorized to shut in a lease when the 
lessee fails to comply with the terms of the lease, the regulations, 
and/or orders of the Superintendent.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]



Sec. 226.29  Disposition of casings and other improvements.

    (a) Upon termination of lease, permanent improvements, unless 
otherwise provided by written agreement with the surface owner and filed 
with the Superintendent, shall remain a part of said land and become the 
property of the surface owner upon termination of the lease, other than 
by cancellation. Exceptions include personal property not limited to 
tools, tanks, pipelines, pumping and drilling equipment, derricks, 
engines, machinery, tubing, and the casings of all wells: Provided, That 
when any lease terminates, all such personal property shall be removed 
the word ``terminates''; and in the last sentence of the paragraph, 
within 90 days or such reasonable extension of time as may be granted by 
the Superintendent. Otherwise, the ownership of all casings shall revert 
to Lessor and all other personal property and permanent improvements to 
the surface owner. Nothing herein shall be construed to relieve lessee 
of responsibility for removing any such personal property or permanent 
improvements from the premises if required by the Superintendent and 
restoring the premises as nearly as practicable to the original state.
    (b) Upon cancellation of lease. When there has been a cancellation 
for cause, Lessor shall be entitled and authorized to take immediate 
possession of the lease premises and all permanent improvements and all 
other equipment necessary for the operation of the lease.
    (c) Wells to be abandoned shall be promptly plugged as prescribed by 
the Superintendent. Applications to plug shall include a statement 
affirming compliance with Sec. 226.28(b) and shall set forth reasons for 
plugging, a detailed statement of the proposed work including kind, 
location, and length of plugs (by depth), plans for mudding and 
cementing, testing, parting and removing casing, and any other pertinent 
information: Provided, That the Superintendent may give oral permission 
and instructions pending receipt of a written application to plug a 
newly drilled hole. Lessee shall remit a fee of $15 with each written 
application for authority to plug a well. This fee will be refunded if 
permission is not granted.
    (d) Lessee shall plug and fill all dry or abandoned wells in a 
manner to confine the fluid in each formation bearing fresh water, oil, 
gas, salt water, and other minerals, and to protect it against invasion 
of fluids from other sources. Mud-laden fluid, cement, and other plugs 
shall be used to fill the hole from bottom to top: Provided, That if a 
satisfactory agreement is reached between Lessee and the surface owner, 
subject to the approval of the Superintendent, Lessee may condition the 
well for use as a fresh water well and shall so indicate on the plugging 
record. The manner in which plugging material shall be introduced and 
the type of material so used shall be subject to the approval of the 
Superintendent. Within 10 days after plugging, Lessee shall file with 
the Superintendent a complete report of the plugging of each well. When 
any well is plugged and abandoned, Lessee shall, within 90 days, clean 
up the premises around such well to the satisfaction of the 
Superintendent.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33115, Aug. 14, 1990]

[[Page 589]]

                         Requirements of Lessees



Sec. 226.30  Lessees subject to Superintendent's orders; books and records open to inspection.

    Lessee shall comply with all orders or instructions issued by the 
Superintendent. The Superintendent or his representative may enter upon 
the leased premises for the purpose of inspection. Lessee shall keep a 
full and correct account of all operations, receipts, and disbursements 
and make reports thereof, as required. Lessee's books and records shall 
be available to the Superintendent for inspection.



Sec. 226.31  Lessee's process agents.

    (a) Before actual drilling or development operations are commenced 
on leased lands, Lessee or Assignee, if not a resident of the State of 
Oklahoma, shall appoint a local or resident representative within the 
State of Oklahoma on whom the Superintendent may serve notice or 
otherwise communicate in securing compliance with the regulations in 
this part, and shall notify the Superintendent of the name and post 
office address of the representative appointed.
    (b) Where several parties own a lease jointly, one representative or 
agent shall be designated whose duties shall be to act for all parties 
concerned. Designation of such representative should be made by the 
party in charge of operations.
    (c) In the event of the incapacity or absence from the State of 
Oklahoma of such designated local or resident representative, Lessee 
shall appoint a substitute to serve in his stead. In the absence of such 
representative or appointed substitute, any employee of Lessee upon the 
leased premises or person in charge of drilling or related operations 
thereon shall be considered the representative of Lessee for the purpose 
of service of orders or notices as herein provided.



Sec. 226.32  Well records and reports.

    (a) Lessee shall keep accurate and complete records of the drilling, 
redrilling, deepening, repairing, treating, plugging, or abandonment of 
all wells. These records shall show all the formations penetrated, the 
content and character of oil, gas, or water in each formation, and the 
kind, weight, size, landed depth and cement record of casing used in 
drilling each well; the record of drill-stem and other bottom hole 
pressure or fluid sample surveys, temperature surveys, directional 
surveys, and the like; the materials and procedure used in the treating 
or plugging of wells or in preparing them for temporary abandonment; and 
any other information obtained in the course of well operation.
    (b) Lessee shall take such samples and make such tests and surveys 
as may be required by the Superintendent to determine conditions in the 
well or producing reservoir and to obtain information concerning 
formations drilled, and shall furnish reports thereof as required by the 
Superintendent.
    (c) Within 10 days after completion of operations on any well, 
Lessee shall transmit to the Superintendent the applicable information 
on forms furnished by the Superintendent; a copy of electrical, 
mechanical or radioactive log, or other types of survey of the well 
bore; and core analysis obtained from the well. Lessee shall also submit 
other reports and records of operations as may be required and in the 
manner and form prescribed by the Superintendent.
    (d) Lessee shall measure production of oil, gas, and water from 
individual wells at reasonably frequent intervals to the satisfaction of 
the Superintendent.
    (e) Upon request and in the manner and form prescribed by the 
Superintendent, Lessee shall furnish a plat showing the location, 
designation, and status of all wells on the leased lands, together with 
such other pertinent information as the Superintendent may require.



Sec. 226.33  Line drilling.

    Lessee shall not drill within 300 feet of boundary line of leased 
lands, nor locate any well or tank within 200 feet of any public 
highway, any established watering place, or any building used as a 
dwelling, granary, or barn, except with the written permission of the 
Superintendent. Failure to obtain advance written permission from the 
Superintendent shall subject lessee to

[[Page 590]]

cancellation of his/her lease and/or plugging of the well.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33116, Aug. 14, 1990]



Sec. 226.34  Wells and tank batteries to be marked.

    Lessee shall clearly and permanently mark all wells and tank 
batteries in a conspicuous place with number, legal description, 
operator, and telephone number, and shall take all necessary precautions 
to preserve these markings.

[55 FR 33116, Aug. 14, 1990]



Sec. 226.35  Formations to be protected.

    Lessee shall, to the satisfaction of the Superintendent, take all 
proper precautions and measures to prevent damage or pollution of oil, 
gas, fresh water, or other mineral bearing formations.



Sec. 226.36  Control devices.

    In drilling operations in fields where high pressures, lost 
circulation, or other conditions exist which could result in blowouts, 
lessee shall install an approved gate valve or other controlling device 
which is in proper working condition for use until the well is 
completed. At all times preventative measures must be taken in all well 
operations to maintain proper control of subsurface strata.

[55 FR 33116, Aug. 14, 1990]



Sec. 226.37  Waste of oil and gas.

    Lessee shall conduct all operations in a manner that will prevent 
waste of oil and gas and shall not wastefully utilize oil or gas. The 
Superintendent shall have the authority to impose such requirements as 
he deems necessary to prevent waste of oil and gas and to promote the 
greatest ultimate recovery of oil and gas. Waste as applied herein 
includes, but is not limited to, the inefficient excessive or improper 
use or dissipation of reservoir energy which would reasonably reduce or 
diminish the quantity of oil or gas that might ultimately be produced, 
or the unnecessary or excessive surface loss or destruction, without 
beneficial use, of oil and/or gas.



Sec. 226.38  Measuring and storing oil.

    All production run from the lease shall be measured according to 
methods and devices approved by the Superintendent. Facilities suitable 
for containing and measuring accurately all crude oil produced from the 
wells shall be provided by Lessee and shall be located on the leasehold 
unless otherwise approved by the Superintendent. Lessee shall furnish to 
the Superintendent a copy of 100-percent capacity tank table for each 
tank. Meters and installations for measuring oil must be approved, and 
tests of their accuracy shall be made when directed by the 
Superintendent.



Sec. 226.39  Measurement of gas.

    All gas, required to be measured, shall be measured by meter 
(preferably of the orifice meter type) unless otherwise agreed to by the 
Superintendent. All gas meters must be approved by the Superintendent 
and installed at the expense of Lessee or purchaser at such places as 
may be agreed to by the Superintendent. For computing the volume of all 
gas produced, sold or subject to royalty, the standard of pressure shall 
be 14.65 pounds to the square inch, and the standard of temperature 
shall be 60 degrees F. All measurements of gas shall be adjusted by 
computation to these standards, regardless of the pressure and 
temperature at which the gas was acutally measured, unless otherwise 
authorized in writing by the Superintendent.



Sec. 226.40  Use of gas for lifting oil.

    Lessee shall not use natural gas from a distinct or separate stratum 
for the purpose of flowing or lifting the oil, except where said Lessee 
has an approved right to both the oil and the gas, and then only with 
the approval of the Superintendent of such use and of the manner of its 
use.



Sec. 226.41  Accidents to be reported.

    Lessee shall make a complete report to the Superintendent of all 
accidents, fires, or acts of theft and vandalism occurring on the leased 
premises.

[[Page 591]]

                                Penalties



Sec. 226.42  Penalty for violation of lease terms.

    Violation of any of the terms or conditions of any lease or of the 
regulations in this part shall subject the lease to cancellation by the 
Superintendent, or Lessee to a fine of not more than $500 per day for 
each day of such violation or noncompliance with the orders of the 
Superintendent, or to both such fine and cancellation. Fines not 
received within 10 days after notice of the decision shall be subject to 
late charges at the rate of not less than 1\1/2\ percent per month for 
each month or fraction thereof until paid. The Osage Tribal Council, 
subject to the approval of the Superintendent, may waive the late 
charge.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33116, Aug. 14, 1990]



Sec. 226.43  Penalties for violation of certain operating regulations.

    In lieu of the penalties provided under Sec. 226.42, penalties may 
be imposed by the Superintendent for violation of certain sections of 
the regulations of this part as follows:
    (a) For failure to obtain permission to start operations required by 
Sec. 226.16(b), $50 per day until permission is obtained.
    (b) For failure to file records required by Sec. 226.32, $50 per day 
until compliance is met.
    (c) For failure to mark wells and tank batteries as required by 
Sec. 226.34, $50 for each well and tank battery.
    (d) For failure to construct and maintain pits as required by 
Sec. 226.22, $50 for each day after operations are commenced on any well 
until compliance is met.
    (e) For failure to comply with Sec. 226.36 regarding valve or other 
approved controlling device, $100.
    (f) For failure to notify Superintendent before drilling, 
redrilling, deepening, plugging, or abandoning any well, as required by 
Secs. 226.16(c) and 226.25, $200.
    (g) For failure to properly care for and dispose of deleterious 
fluids as provided in Sec. 226.22, $500 per day until compliance is met.
    (h) For failure to file plugging reports as required by Sec. 226.29 
and for failure to file reports as required by Sec. 226.13, $50 per day 
for each violation until compliance is met.
    (i) For failure to perform or start an operation within 5 days after 
ordered by the Superintendent in writing under authority provided in 
this part, if said operation is thereafter performed by or through the 
Superintendent, the actual cost of performance thereof, plus 25 percent.
    (j) Lessee or his/her authorized representative is hereby notified 
that criminal procedures are provided by 18 U.S.C. 1001 for knowingly 
filing fraudulent reports and information.

[39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30, 1982, 
as amended at 55 FR 33116, Aug. 14, 1990]

                           Appeals and Notices



Sec. 226.44  Appeals.

    Any person, firm or corporation aggrieved by any decision or order 
issued by or under the authority of the Superintendent, by virtue of the 
regulations in this part, may appeal pursuant to 25 CFR part 2.

[55 FR 33116, Aug. 14, 1990]



Sec. 226.45  Notices.

    Notices and orders issued by the Superintendent to the 
representative and/or operator shall be binding on the lessee. The 
Superintendent may in his/her discretion increase the time allowed in 
his/her orders and notices.

[55 FR 33116, Aug. 14, 1990]



Sec. 226.46  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in this part need not be 
submitted for clearance pursuant to 44 U.S.C. 3501 et seq.

[55 FR 33116, Aug. 14, 1990]

[[Page 592]]



PART 227--LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN RESERVATION, WYOMING, FOR OIL AND GAS MINING--Table of Contents




Sec.
227.1  Definitions.

                          How To Acquire Leases

227.2  Applications for leases.
227.3  Leases to citizens of the United States except Government 
          employees.
227.4  Sale of oil and gas leases.
227.5  Terms of leases, procedure for renewal and execution.
227.6  Corporations and corporate information.
227.7  Additional information from applicant.
227.8  Bonds.
227.9  Acreage limitation: Leases on noncontiguous tracts.
227.10  Minerals other than oil and gas.
227.11  Bureau of Land Management to be furnished copy of lease.
227.12  Mineral reserves in nonmineral entries.
227.13  Vested rights to be respected.
227.14  Government reserves right to purchase oil and gas.

                           Rents and Royalties

227.15  Manner of payment.
227.16  Crediting advance annual payments.
227.17  Rates of rents and royalties.
227.18  Free use of gas by lessor.
227.19  Division orders.

                               Operations

227.20  Permission to start operations.
227.21  Restrictions on operations.
227.22  Diligence and prevention of waste.
227.23  Wells.
227.24  Penalties.
227.25  Inspection of premises, books and accounts.
227.26  Assignments and overriding royalties.
227.27  Stipulations.
227.28  Cancellations.
227.29  Fees.
227.30  Forms.

    Authority: Sec. 1, 39 Stat. 519, unless otherwise noted.

    Source: 22 FR 10622, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 227.1  Definitions.

    (a) The term ``superintendent'' in this part refers to the 
superintendent or other officers of the Bureau of Indian Affairs or of 
the Government who may have jurisdiction over the Shoshone or Wind River 
Reservation.
    (b) The term ``supervisor'' in this part refers to a representative 
of the Secretary of the Interior, under direction of the Director of the 
U.S. Geological Survey, authorized and empowered to supervise and direct 
operations under oil and gas mining leases, to furnish scientific and 
technical information and advice, to ascertain and record the amount and 
value of production, and to determine and record rentals and royalties 
due and paid.

    Cross Reference: For rules and regulations of the Geological Survey, 
see 30 CFR chapter II.

                          How To Acquire Leases



Sec. 227.2  Applications for leases.

    Applications for leases should be made to the superintendent.



Sec. 227.3  Leases to citizens of the United States except Government employees.

    Leases will be made only to persons who are citizens of the United 
States or have declared their intention to become so, or corporations 
which are organized under the laws of the United States or one of the 
States or Territories: Provided, That no lease, assignment thereof, or 
interest therein will be approved to any employee or employees of the 
United States Government, whether connected with the Bureau or 
otherwise, and no employee of the Interior Department shall be permitted 
to acquire any interest in such leases by ownership of stock in 
corporations having leases or in any other manner.

(R.S. 2078; 25 U.S.C. 68)



Sec. 227.4  Sale of oil and gas leases.

    (a) At such times and in such manner as he may deem appropriate, 
after being authorized by the Joint Business Council of the Shoshone and 
Arapahoe Tribes or its authorized representative, the superintendent 
shall publish notices at least thirty days prior to the sale, unless a 
shorter period is authorized by the Secretary of the Interior or his 
authorized representative, that oil and gas leases on specific tracts, 
each

[[Page 593]]

of which shall be in a reasonably compact body, will be offered to the 
highest responsible bidder for a bonus consideration, in addition to 
stipulated rentals and royalties. Each bid must be accompanied by a 
cashier's check, certified check, or postal money order, payable to the 
payee designated in the invitation to bid, in an amount not less than 25 
percent of the bonus bid. Within 30 days after notification of being the 
successful bidder, said bidder must remit the balance of the bonus, the 
first year's rental, and his share of the advertising costs, and shall 
file with the superintendent the lease in completed form. The 
superintendent may for good and sufficient reasons, extend the time for 
completion and submission of the lease form, but no extension shall be 
granted for remitting the balance of monies due. If the successful 
bidder fails to pay the full consideration within said period, or fails 
to file the completed lease within said period or extension thereof, or 
if the lease is disapproved through no fault of the lessor or the 
Department of the Interior, 25 percent of the bonus bid will be 
forfeited for the use and benefit of the Shoshone and Arapahoe Tribes.
    (b) All notices or advertisements of sales of oil and gas leases 
shall reserve to the Secretary of the Interior the right to reject all 
bids when in his judgment the interests of the Indians will be best 
served by so doing, and that if no satisfactory bid is received, or if 
the accepted bidder fails to complete the lease, or if the Secretary of 
the Interior shall determine that it is unwise in the interests of the 
Indians to accept the highest bid, the Secretary may readvertise such 
lease for sale, or if deemed advisable, with the consent of the tribal 
council or other governing tribal authorities, a lease may be made by 
private negotiations. The successful bidder or bidders will be required 
to pay his or their share of the advertising costs. Amounts received 
from unsuccessful bidders will be returned; but when no bid is accepted 
on a tract, the costs of advertising will be assessed against the 
applicant who requested that said tract be advertised.

[22 FR 10622, Dec. 24, 1957, as amended at 25 FR 7185, July 29, 1960. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 227.5  Terms of leases, procedure for renewal and execution.

    (a) Leases shall be for a period of twenty years with the 
preferential right in the lessee to renew the same for successive 
periods of ten years each upon such reasonable terms and conditions as 
may be prescribed by the Secretary of the Interior or his authorized 
representative, unless otherwise provided by law at the expiration of 
any such period. Applications for renewal of leases shall be filed with 
the superintendent within ninety days prior to the date of expiration of 
the lease. One copy of the application for renewal shall be filed by the 
applicant with the Joint Business Council of the Shoshone and Arapahoe 
Tribes and no lease shall be renewed unless the Joint Business Council 
or its authorized representative is afforded an opportunity to present 
the Council's views to the Secretary of the Interior or his authorized 
representative.
    (b) The Secretary of the Interior or his authorized representative 
may execute oil and gas leases with the consent of the Joint Business 
Council or its authorized representative, and may execute renewals of 
leases after consultation with the Joint Business Council or its 
authorized representative.

[25 FR 7185, July 29, 1960. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 227.6  Corporations and corporate information.

    (a) If the applicant for a lease is a corporation, it shall file 
evidence of authority of its officers to execute papers; and with its 
first application it shall also file a certified copy of its articles of 
incorporation, and, if foreign to the state in which the lands are 
located, evidence showing compliance with the corporation laws thereof. 
Statements of changes in officers and stockholders shall be furnished by 
a corporation lessee to the superintendent January 1 of each year, and 
at such other times as may be requested.
    (b) Whenever deemed advisable in any case the superintendent may 
require a corporation applicant or lessee to file:
    (1) List of officers, principal stockholders, and directors, with 
post-office

[[Page 594]]

addresses and number of shares held by each.
    (2) A sworn statement of the proper officer showing:
    (i) The total number of shares of the capital stock actually issued 
and the amount of cash paid into the treasury on each share sold; or, if 
paid in property, the kind, quantity, and value of same paid per share.
    (ii) Of the stock sold, how much remains unpaid and subject to 
assessment.
    (iii) The amount of cash the company has in its treasury and 
elsewhere.
    (iv) The property, exclusive of cash owned by the company and its 
value.
    (v) The total indebtedness of the company and the nature of its 
obligations.
    (vi) Whether the applicant or any person controlling, controlled by 
or under common control with the applicant has filed any registration 
statement, application for registration, prospectus or offering sheet 
with the Securities and Exchange Commission pursuant to the Securities 
Act of 1933 or the Securities Exchange Act of 1934 or said Commission's 
rules and regulations under said acts; if so, under what provision of 
said acts or rules and regulations; and what disposition of any such 
statement, application, prospectus or offering sheet has been made.
    (c) Affidavits of individual stockholders, setting forth in what 
corporations, or with what persons, firms, or associations such 
individual stockholders are interested in mining leases on restricted 
lands within the state, and whether they hold such interest for 
themselves or in trust.

    Cross Reference: For rules and regulations of the Securities and 
Exchange Commission, see 17 CFR chapter II.



Sec. 227.7  Additional information from applicant.

    The superintendent may, either before or after approval of a lease, 
call for any additional information desired to carry out the regulations 
in this part. If a lessee shall fail to furnish the papers necessary to 
put his lease and bond in proper form for consideration, the 
superintendent shall forward such lease for disapproval.



Sec. 227.8  Bonds.

    The provisions of Sec. 211.6 of this chapter, or as hereafter 
amended, are applicable to leases under this part.



Sec. 227.9  Acreage limitation: Leases on noncontiguous tracts.

    No person, firm, or corporation will be allowed to lease for oil and 
gas more than 10,240 acres in the aggregate. The land contained in the 
lease shall be described by legal subdivisions, and leases may be 
executed to cover only adjoining or contiguous subdivisions. In case a 
lessee is a successful bidder for two or more tracts of land which are 
not contiguous, separate leases shall be executed.



Sec. 227.10  Minerals other than oil and gas.

    Unreserved, unwithdrawn, and unallotted lands which have not been 
leased for oil and gas under the act of August 21, 1916 (39 Stat. 519) 
and which are not chiefly valuable therefor, are subject to mineral 
application or mineral entry, for minerals other than oil and gas, under 
the supervision of the Bureau of Land Management.



Sec. 227.11  Bureau of Land Management to be furnished copy of lease.

    The Bureau of Land Management shall be furnished with a copy of each 
lease signed by the Secretary of the Interior.



Sec. 227.12  Mineral reserves in nonmineral entries.

    Where lands have been leased under authority of said act of August 
21, 1916 (39 Stat. 519), and nonmineral entry is subsequently lawfully 
made for such lands with a view to obtaining a restricted patent 
therefor, all such subsequently allowed nonmineral entries shall be with 
the mineral reservation prescribed by the act of July 17, 1914 (38 Stat. 
509).



Sec. 227.13  Vested rights to be respected.

    All drilling and other oil and natural gas developments and mining 
operations, work, and improvements, and all other acts and things 
necessary to be done, in connection with the exploration for mining and 
production of oil

[[Page 595]]

and natural gas from the leased premises, under the terms and conditions 
of a lease shall be performed with due regard to the rights, statutory 
and otherwise, of others, if any, who may have or who may acquire a 
lawful claim or estate to the leased premises, separate and distinct 
from the oil and gas or other mineral therein contained. See act of July 
17, 1914 (38 Stat. 509).



Sec. 227.14  Government reserves right to purchase oil and gas.

    In time of war or other public emergency any of the executive 
departments of the United States Government shall have the option to 
purchase at the posted market price on the date of sale all or any part 
of the minerals produced under any lease.

                           Rents and Royalties



Sec. 227.15  Manner of payment.

    All payments due the lessor shall be made to the superintendent for 
the benefit of the Shoshone Indian Tribe, in accordance with the act of 
August 21, 1916 (39 Stat. 519), and no credit will be given any lessee 
for payments made otherwise. Payments of rentals and royalties except 
the first year's rental, which shall be paid to the superintendent as 
prescribed in Sec. 227.4 shall be transmitted to the superintendent 
through the supervisor. All such payments shall be accompanied by a 
statement, in triplicate, by the lessee, showing the specific items of 
royalty or rental that the remittance is intended to cover, and payment 
of royalties on production shall be made not later than the last day of 
the calendar month following the production for which such payment is to 
be made.



Sec. 227.16  Crediting advance annual payments.

    In the event of discovery of minerals in paying quantities all 
advance rents and advance royalties shall be allowed as credit on 
stipulated royalties as they accrue for the year for which such advance 
payments have been made. No refund of any such advance payment made 
under any lease will be allowed in the event the royalty on production 
for the year is not sufficient to equal such advance payment; nor will 
any part of the moneys so paid be refunded to the lessee because of any 
subsequent surrender or cancellation of the lease.



Sec. 227.17  Rates of rents and royalties.

    (a) The lessee shall pay, beginning with the date of execution of 
leases by the Secretary of the Interior, a rental of $1.25 per acre per 
annum in advance during the continuance thereof, together with a royalty 
of 12\1/2\ percent of the value or amount of all oil, gas, and/or 
natural gasoline, and/or all other hydrocarbon substances produced and 
saved from the land leased, save and except oil and/or gas used by the 
lessee for development and operation purposes on the lease, which oil or 
gas shall be royalty free. A higher rate of royalty may be fixed by the 
Secretary of the Interior or his authorized representative, prior to the 
advertisement of land for oil and gas leases. During the period of 
supervision, ``value'' for the purposes of the lease may, in the 
discretion of the Secretary of the Interior, be calculated on the basis 
of the highest price paid or offered (whether calculated on the basis of 
short or actual volume) at the time of production for the major portion 
of the oil of the same gravity, and gas, and/or natural gasoline, and/or 
all other hydrocarbon substances produced and sold from the field where 
the leased lands are situated, and the actual volume of the marketable 
product less the content of foreign substances as determined by the 
supervisor. The actual amount realized by the lessee from the sale of 
said products may, in the discretion of the Secretary of the Interior, 
be deemed mere evidence of or conclusive evidence of such value. When 
paid in value, such royalties shall be due and payable monthly at such 
time as the lease provides; when royalty on oil produced is paid in 
kind, such royalty oil shall be delivered in tanks provided by the 
lessee on the premises where produced without cost to the lessor unless 
otherwise agreed to by the parties thereto, at such time as may be 
required by the lessor. The lessee shall not be required to hold such 
royalty oil in storage longer than 30 days after the end of the calendar 
month in which said oil is produced. The lessee shall be in no manner 
responsible or held liable

[[Page 596]]

for loss or destruction of such oil by causes beyond his control.
    (b) The proceeds from all leases shall be taken up in the accounts 
of the superintendent for appropriate deposit for the benefit of the 
Indians.



Sec. 227.18  Free use of gas by lessor.

    If the leased premises produce gas in excess of the lessee's 
requirements for the development and operation of said premises, then 
the lessor may use sufficient gas, free of charge, for any desired 
school or other buildings belonging to the tribe, by making his own 
connections to a regulator installed, connected to the well and 
maintained by the lessee, and the lessee shall not be required to pay 
royalty on gas so used. The use of such gas shall be at the lessor's 
risk at all times.



Sec. 227.19  Division orders.

    (a) Lessees may make arrangements with the purchasers of oil for the 
payment of the royalties on production to the superintendent by such 
purchasers, but such arrangements, if made, shall not operate to relieve 
a lessee from responsibility should the purchaser fail or refuse to pay 
such royalties when due. Where lessees avail themselves of this 
privilege, division orders permitting the pipeline companies or other 
purchasers of the oil to withhold the royalty interest shall be executed 
and forwarded to the supervisor for approval, as pipeline companies are 
not permitted to accept or run oil from leased Indian lands until after 
the approval of a division order showing that the lessee has a lease 
regularly approved and in effect. When the lessee company runs its own 
oil, it shall execute an intracompany division order and forward it to 
the supervisor for his consideration. The right is reserved for the 
supervisor to cancel a division order at any time or require the 
pipeline company to discontinue to run the oil of any lessee who fails 
to operate the lease properly or otherwise violates the provisions of 
the lease, of the regulations in this part, or of the operating 
regulations.
    (b) When oil is taken by authority of a division order, the lessee 
or his representatives shall be actually present when the oil is gaged 
and records are made of the temperature, gravity and impurities. The 
lessee will be held responsible for the correctness and the correct 
recording and reporting of all the foregoing measurements, which except 
lowest gage, shall be made at the time the oil is turned into the 
pipeline. Failure of the lessee to perform properly these duties will 
subject the division order to revocation.

    Cross Reference: For oil and gas operating regulations of the 
Geological Survey, see 30 CFR part 221.

                               Operations



Sec. 227.20  Permission to start operations.

    (a) No operations will be permitted on any lease before it is 
executed by the Secretary of the Interior.
    (b) Written permission must be secured from the supervisor or his 
representative before any operations are started on the leased premises. 
After such permission is secured the operations must be in accordance 
with the operating regulations promulgated by the Secretary of the 
Interior. Copies of the regulations in this part may be secured from 
either the supervisor or the superintendent, and no operations should be 
attempted without a study of the operating regulations.



Sec. 227.21  Restrictions on operations.

    (a) All leases issued under the provisions of the regulations in 
this part shall be subject to imposition by the Secretary of the 
Interior of such restrictions as to time or times for the drilling of 
wells and as to the production from any well or wells as in his judgment 
may be necessary or proper for the protection of the natural resources 
of the leased land and in the interest of the lessor. In the exercise of 
his judgment the Secretary of the Interior may take into consideration, 
among other things, the Federal laws, State laws, regulations by 
competent Federal or State authorities, lawful agreements among 
operators regulating either drilling or production, or both, and any 
regulatory action desired by tribal authorities.
    (b) All leases issued pursuant to the regulations in this part shall 
be subject to a co-operative or unit development

[[Page 597]]

plan affecting the leased lands if and when required by the Secretary of 
the Interior, but no lease shall participate in any cooperative or unit 
plan without prior approval of the Secretary of the Interior.



Sec. 227.22  Diligence and prevention of waste.

    The lessee shall exercise diligence in drilling and operating wells 
for oil and gas on the leased lands while such products can be secured 
in paying quantities; carry on all operations in a good and workmanlike 
manner in accordance with approved methods and practice, having due 
regard for the prevention of waste of oil or gas developed on the land, 
or the entrance of water through wells drilled by the lessee to the 
productive sands or oil or gas-bearing strata to the destruction or 
injury of the oil or gas deposits, the preservation and conservation of 
the property for future productive operations, and to the health and 
safety of workmen and employees; plug securely all wells before 
abandoning the same and to shut off effectually all water from the oil 
or gas-bearing strata; not drill any well within 200 feet of any house 
or barn on the premises without the lessor's written consent; carry out 
at his expense all reasonable orders and requirements of the supervisor 
relative to prevention of waste, and preservation of the property and 
the health and safety of workmen; bury all pipelines crossing tillable 
lands below plow depth unless other arrangements therefor are made with 
the superintendent; pay all damages to crops, buildings, and other 
improvements on the premises occasioned by the lessee's operations: 
Provided, That the lessee shall not be held responsible for delays or 
casualties occasioned by causes beyond his control.



Sec. 227.23  Wells.

    The lessee shall agree (a) to drill and produce all wells necessary 
to offset or protect the leased land from drainage by wells on adjoining 
lands not the property of the lessor, or in lieu thereof, compensate the 
lessor in full each month for the estimated loss of royalty through 
drainage: Provided, That during the period of supervision by the 
Secretary of the Interior, the necessity for offset wells shall be 
determined by the supervisor and payment in lieu of drilling and 
producing shall be with the consent of, and in an amount determined by 
the Secretary of the Interior; (b) at the election of the lessee to 
drill and produce other wells: Provided, That the right to drill and 
produce such other wells shall be subject to any system of well spacing 
or production allotments authorized and approved under the applicable 
law or regulations, approved by the Secretary of the Interior and 
affecting the field or area in which the leased lands are situated; and 
(c) if the lessee elects not to drill and produce such other wells for 
any period the Secretary of the Interior may, within 10 days after due 
notice in writing, either require the drilling and production of such 
wells to the number necessary, in his opinion, to insure reasonable 
diligence in the development and operation of the property, or may in 
lieu of such additional diligent drilling and production require the 
payment on and after the first anniversary date of the lease of not to 
exceed $1 per acre per annum, which sum shall be in addition to any 
rental or royalty herein specified.



Sec. 227.24  Penalties.

    Failure of the lessee to comply with any provisions of the lease, of 
the operating regulations, of the regulations in this part, orders of 
the superintendent or his representative, or of the orders of the 
supervisor or his representative, shall subject the lessee to a penalty 
of not more than $500 per day for each day the terms of the lease, the 
regulations, or such orders are violated: Provided, That the lessee 
shall be entitled to notice, and hearing within 30 days after such 
notice, with respect to the terms of the lease, regulations, or orders 
violated, which hearing shall be held by the supervisor, whose findings 
shall be conclusive unless an appeal be taken to the Secretary of the 
Interior within 30 days after notice of the supervisor's decision, and 
the decision of the Secretary of the Interior upon appeal shall be 
conclusive.

[[Page 598]]



Sec. 227.25  Inspection of premises, books and accounts.

    Lessee shall agree to allow the lessor and his agents or any 
authorized representative of the Interior Department to enter, from time 
to time, upon and into all parts of the leased premises for the purposes 
of inspection and shall further agree to keep a full and correct account 
of all operations and make reports thereof, as required by the 
applicable regulations of the Department; and their books and records, 
showing manner of operations and persons interested, shall be open at 
all times for examination of such officers of the Department as shall be 
instructed in writing by the Secretary of the Interior or authorized by 
regulations, to make such examination.



Sec. 227.26  Assignments and overriding royalties.

    (a) Leases, or any interest therein, may be assigned or transferred 
only with the approval of the Secretary of the Interior, and to procure 
such approval the assignee must be qualified to hold such lease under 
existing rules and regulations, and shall furnish a satisfactory bond 
for the faithful performance of the covenants and conditions thereof. No 
lease or any interest therein, or the use of such lease, shall be 
assigned, sublet, or transferred directly or indirectly, by working or 
drilling contract, or otherwise without the consent of the Secretary of 
the Interior. Assignments of leases shall be filed with the 
superintendent within 20 days after the date of execution.
    (b) An agreement creating overriding royalties or payments out of 
production under this part shall be subject to the provisions of 
Sec. 211.26(d) of this chapter, or as hereafter amended.

[22 FR 10622, Dec. 24, 1957, as amended at 23 FR 9759, Dec. 18, 1958. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 227.27  Stipulations.

    The lessee under any lease heretofore executed may be stipulation 
(Form 5-154i), with the consent of the lessor, make such lease subject 
to all the terms, conditions, and provisions contained in the lease form 
currently in use. Stipulations shall be filed with the superintendent 
within 20 days after the date of execution.



Sec. 227.28  Cancellations.

    Leases shall be irrevocable except for breach of the terms and 
conditions of the same and may be forfeited and cancelled by an 
appropriate proceeding in the U.S. District Court for the District of 
Wyoming whenever the lessee fails to comply with their terms and 
conditions; the lessee may, on approval of the Secretary of the 
Interior, surrender a lease or any part of it:
    (a) That he make application for cancellation to the superintendent 
having jurisdiction over the land.
    (b) That he pay a surrender fee of $1 at the time the application is 
made.
    (c) That he pay all royalties and rentals due to the date of such 
application.
    (d) That he make a satisfactory showing that full provision has been 
made for conservation and protection of the property and that all wells, 
drilled on the portion of the lease surrendered, have been properly 
abandoned.
    (e) If the lease has been recorded, that he file, with his 
application, a recorded release of the acreage covered by the 
application.
    (f) If the application is for the cancellation of the entire lease 
or the entire undivided portion, that he surrender the lease: Provided, 
That where the application is made by an assignee to whom no copy of the 
lease was delivered, he will be required to surrender only his copy of 
the assignment.
    (g) If the lease (or portion being surrendered or canceled) is owned 
in undivided interests by more than one party, then all parties shall 
join in the application for cancellation.
    (h) That all required fees and papers must be in the mail or 
received on or before the date upon which rents and royalties become 
due, in order for the lessee and his surety to be relieved from 
liability for the payment of such royalties and rentals.
    (i) In the event oil or gas is being drained from the leased 
premises by wells not covered by the lease; the lease, or any part of it 
may be surrendered, only on such terms and conditions as the Secretary 
of the Interior

[[Page 599]]

may determine to be reasonable and equitable.



Sec. 227.29  Fees.

    Unless otherwise authorized by the Secretary of the Interior or his 
authorized representative, each lease, sublease, or assignment shall be 
accompanied at the time of filing by a fee of $10.

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

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 227.30  Forms.

    The provisions of Sec. 211.30 of this chapter, or as hereafter 
amended are applicable to this part.

[24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30, 1982]

[[Page 600]]



                     SUBCHAPTER J--FISH AND WILDLIFE





PART 241--INDIAN FISHING IN ALASKA--Table of Contents




Sec.
241.1  Purpose.
241.2  Annette Islands Reserve; definition; exclusive fishery; licenses.
241.3  Commercial fishing, Annette Islands Reserve.
241.4  Subsistence and sport fishing, Annette Islands Reserve.
241.5  Commercial fishing, Karluk Indian Reservation.
241.6  Enforcement; violation of regulations; corrective action; 
          penalties; closure of restrictions, Annette Islands Reserve.

    Authority: 25 U.S.C. 2, 9; 43 U.S.C. 1457; sec. 15, 26 Stat. 1101, 
48 U.S.C. 358; Presidential Proclamation, Apr. 28, 1916, 39 Stat. 1777; 
sec. 2, 49 Stat. 1250, 48 U.S.C. 358a; sec. 4, 72 Stat. 339, as amended 
73 Stat. 141.

    Source: 28 FR 7183, July 12, 1963, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 241.1  Purpose.

    The purpose of the regulations in this part is to regulate all 
fishing within the Annette Islands Reserve and to regulate Indian and 
other native commercial fishing in the Karluk Indian Reservation, but 
they shall not be construed to limit any rights of Indians or other 
natives of Alaska not specifically covered hereby.



Sec. 241.2  Annette Islands Reserve; definition; exclusive fishery; licenses.

    (a) Definition. The Annette Islands Reserve is defined as the 
Annette Islands in Alaska, as set apart as a reservation by section 15 
of the Act of March 3, 1891 (26 Stat. 1101, 48 U.S.C. sec. 358), and 
including the area identified in the Presidential Proclamation of April 
28, 1916 (39 Stat. 1777), as the waters within three thousand feet from 
the shore lines at mean low tide of Annette Island, Ham Island, Walker 
Island, Lewis Island, Spire Island, Hemlock Island, and adjacent rocks 
and islets, located within the broken line upon the diagram attached to 
and made a part of said Proclamation; and also the bays of said islands, 
rocks, and islets.
    (b) Exclusive fishery. The Annette Islands Reserve is declared to be 
exclusively reserved for fishing by the members of the Metlakatla Indian 
Community and such other Alaskan Natives as have joined or may join them 
in residence on the aforementioned islands, and any other person fishing 
therein without authority or permission of the Metlakatla Indian 
Community shall be subject to prosecution under the provisions of 
section 2 of the Act of July 2, 1960 (74 Stat. 469, 18 U.S.C. sec. 
1165).
    (c) Licenses. Members of the Metlakatla Indian Community, and such 
other Alaskan Natives as have joined them or may join them in residence 
on the aforementioned islands, shall not be required to obtain a license 
or permit from the State of Alaska to engage in fishing in the waters of 
the Annette Islands Reserve.



Sec. 241.3  Commercial fishing, Annette Islands Reserve.

    (a) Definition. Commercial fishing is the taking, fishing for, or 
possession of fish, shellfish, or other fishery resources with the 
intent of disposing of such fish, shellfish, or other fishery resources 
or parts thereof for profit, or by sale, barter, trade, or in commercial 
channels.
    (b) Trap fishing sites; number and location. During 1963, and until 
the Secretary of the Interior or his duly authorized representative 
determines otherwise, the Metlakatla Indian Community is permitted to 
operate not more than one trap per site for salmon fishing at any four 
of the following sites in the Annette Islands Reserve, Alaska:
    (1) Annette Island at 55 degrees 15 minutes 09 seconds north 
latitude, 131 degrees 36 minutes 00 seconds west longitude.
    (2) Annette Island at 55 degrees 12 minutes 52 seconds north 
latitude, 131 degrees 36 minutes 10 seconds west longitude.
    (3) Annette Island at 55 degrees 02 minutes 47 seconds north 
latitude, 131 degrees 38 minutes 53 seconds west longitude.

[[Page 601]]

    (4) Annette Island at 55 degrees 05 minutes 41 seconds north 
latitude, 131 degrees 36 minutes 39 seconds west longitude.
    (5) Annette Island at 55 degrees 01 minute 54 seconds north 
latitude, 131 degrees 38 minutes 36 seconds west longitude.
    (6) Annette Island at 55 degrees 00 minutes 45 seconds north 
latitude, 131 degrees 38 minutes 30 seconds west longitude.
    (7) Annette Island at 54 degrees 59 minutes 41 seconds north 
latitude, 131 degrees 36 minutes 48 seconds west longitude.
    (8) Ham Island at 55 degrees 10 minutes 13 seconds north latitude, 
131 degrees 19 minutes 31 seconds west longitude.
    (c) Trap fishing season. Fishing for salmon with traps operated by 
the Metlakatla Indian Community is permitted only at such times as 
commercial salmon fishing with purse seines is permitted by order or 
regulation of the Alaska Board of Fish and Game for Commercial Fishing 
in any part of the following area: from the point at which meridian 
132 deg.17'30'', thence due east along said parallel to 
longitude 130 deg.49'15'', then due south along said meridian 
to the point at which it intersects with the United States-Canadian 
boundary, thence due west along said boundary to the point of beginning, 
provided, however, that the Secretary or his duly authorized 
representative may upon request by the Metlakatla Indian Community, 
authorize fishing for salmon with traps, at such other times as he shall 
prescribe, which authorization shall be based upon the following 
criteria:
    (1) Number of fish required for spawning escapement and any other 
requirements reasonable and necessary for conservation;
    (2) Fair and equitable sharing of the salmon resource with other 
user groups fishing in State waters under State law and within the State 
fisheries management system; and
    (3) The federal purpose in the establishment and maintenance of the 
Metlakatla Indian Reservation.
    (d) Size, construction and closure of fish traps--(1) Size. When any 
part of a trap is in a greater depth of water than 100 feet, the trap as 
measured from shore at mean high tide to the outer face of the pot shall 
not extend beyond 900 feet.
    (2) Construction. Poles shall be permanently secured to the webbing 
at each side of the mouth of the pot tunnel and shall extend from the 
tunnel floor to a height at least four feet above the water. A draw line 
shall be reeved through the lower end of both poles and the upper end of 
one.
    (3) Method of closing. The tunnel walls shall be overlapped as far 
as possible across the pot gap and the draw line shall be pulled tight 
and both secured so as to completely close the tunnel. In addition, 25 
feet of the webbing of the heart on each side next to the pot shall be 
lifted or lowered in such manner as to permit the free passage of fish.
    (e) Other forms of commercial fishing. All commercial fishing, other 
than with traps, shall be in accordance with the season and gear 
restrictions established by rule or regulation by the Alaska Board of 
Fish and Game for Commercial Fishing in any part of the previously 
defined area; provided, however, that the Secretary or his duly 
authorized representative may, upon request by the Metlakatla Indian 
Community authorize such other commercial fishing at such times as he 
shall prescribe, which authorization shall be based upon the following 
criteria:
    (1) Number of fish required for spawning escapement and any other 
requirements reasonable and necessary for conservation;
    (2) Fair and equitable sharing of the fishery resource with other 
user groups fishing in State waters under State law and within the State 
fisheries management system; and
    (3) The Federal purpose in the establishment and maintenance of the 
Metlakatla Indian Reservation.

[28 FR 7183, July 12, 1963; 28 FR 12273, Nov. 20, 1963, as amended at 40 
FR 24184, June 5, 1975. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 241.4  Subsistence and sport fishing, Annette Islands Reserve.

    (a) Definitions. (1) Subsistence fishing is the taking or attempting 
to take any species of fish or shellfish for purposes other than sale or 
barter, except

[[Page 602]]

as provided for in paragraph (a)(2) of this section.
    (2) Sport fishing is the taking or attempting to take for personal 
use, and not for sale or barter, any fresh water, marine, or anadromous 
fish by hook and line or by such means as defined by regulation or 
statute of the State of Alaska.
    (b) Restrictions. Subsistence fishing within the Annette Islands 
Reserve shall be in accordance with the season, gear and bag 
restrictions established by rule or regulation of the Alaska Board of 
Fish and Game for Commercial Fishing in Fishing District No. 1. Sport 
fishing within the Annette Islands Reserve shall be in accordance with 
the season, gear and bag restrictions established by rule or regulation 
for Southeastern Alaska by the Alaska Board of Fish and Game. Both 
subsistence and sport fishing shall also be in accordance with such 
ordinances as may be adopted by the Council of the Metlakatla Indian 
Community and approved by the Secretary of the Interior.



Sec. 241.5  Commercial fishing, Karluk Indian Reservation.

    (a) Definition. The Karluk Indian Reservation includes all waters 
extending 3,000 feet from the shore at mean low tide on Kodiak Island 
beginning at the end of a point of land on the shore of Shelikof Strait 
about 1\1/4\ miles east of Rocky Point and in approximate latitude 57 
degrees 39 minutes 40 seconds N., longitude 154 degrees 12 minutes 20 
seconds W.; thence south approximately 8 miles to latitude 57 degrees 32 
minutes 30 seconds N.; thence west approximately 12\1/2\ miles to the 
confluence of the north shore of Sturgeon River with the east shore of 
Shelikof Strait; thence northeasterly following the easterly shore of 
Shelikof Strait to the place of beginning, containing approximately 
35,200 acres.
    (b) Who may fish; licenses. The waters of the Karluk Indian 
Reservation shall be open to commercial fishing by bona fide native 
inhabitants of the native village of Karluk and vicinity, and to other 
persons insofar as the fishing activities of the latter do not restrict 
or interfere with fishing by such natives. Such natives shall not be 
required to obtain a license to engage in commercial fishing in the 
waters of the Karluk Indian Reservation.
    (c) Salmon fishing; restrictions. Commercial fishing for salmon by 
native inhabitants of the native village of Karluk and vicinity in the 
waters of the Karluk Indian Reservation shall be in accordance with the 
seasonal and gear restrictions of the rules and regulations of the 
Alaska Board of Fish and Game for Commercial Fishing in the fishing 
district embracing the Karluk Indian Reservation except that:
    (1) Beach seines up to 250 fathoms in length may be used northeast 
of Cape Karluk; and
    (2) Prior to July 1, fishing shall be permitted to within 100 yards 
of the Karluk River where it breaks through the Karluk Spit into 
Shelikof Strait.



Sec. 241.6  Enforcement; violation of regulations; corrective action; penalties; closure of restrictions, Annette Islands Reserve.

    (a) Enforcement. The regulations in this part shall be enforced by 
any duly authorized representative of the Secretary of the Interior. Any 
fish trap, vessel, gear, processing establishment or other operation or 
equipment subject to the regulations of this part shall be available for 
inspection at all times by such representative.
    (b) Violation of regulations. Whenever any duly authorized 
enforcement representative of the Secretary of the Interior has 
reasonable cause to believe any violation of the regulations of this 
part relating to fish traps has occurred, he shall direct immediate 
closure of the trap involved and shall affix an appropriate seal thereto 
to prevent further fishing. The matter shall be reported without delay 
to the Area Director, Bureau of Indian Affairs, who shall thereupon 
report and recommend to the Secretary of the Interior appropriate 
corrective action.
    (c) Corrective action. Any violation of the regulations of this part 
relating to fish traps shall be ground for the temporary or permanent 
closure, as the Secretary of the Interior may determine, of any or all 
traps authorized by Sec. 241.3(a), or the withdrawal and rescission of 
the right to fish for salmon with traps at any or all sites authorized 
thereby.

[[Page 603]]

    (d) Penalties. Any person who violates any of the regulations of 
this part shall be subject to prosecution under section 2 of the Act of 
July 12, 1960 (74 Stat. 469, 18 U.S.C. sec. 1165), which provides as 
follows:

    Whoever, without lawful authority or permission, willfully and 
knowingly goes upon any land that belongs to any Indian or Indian tribe, 
band, or group and either are held by the United States in trust or are 
subject to a restriction against alienation imposed by the United 
States, or upon any lands of the United States that are reserved for 
Indian use, for the purpose of hunting, trapping, or fishing thereon, or 
for the removal of game, peltries, or fish therefrom, shall be fined not 
more than $200 or imprisoned not more than ninety days, or both, and all 
game, fish, and peltries in his possession shall be forfeited.

    (e) Closure or restriction, Annette Islands Reserve. The 
Commissioner of Indian Affairs, after consultation with officials of the 
Metlakatla Indian Community, is authorized and directed, upon a 
determination of the necessity to promote sound conversation practices, 
to restrict or close to commercial, subsistence or sport fishing any 
portion of the Annette Islands Reserve by notice given appropriate local 
publicity.

[28 FR 7183, July 12, 1963, as amended at 30 FR 5742, Apr. 23, 1965. 
Redesignated at 47 FR 13327, Mar. 30, 1982]



PART 242--COMMERCIAL FISHING ON RED LAKE INDIAN RESERVATION--Table of Contents




Sec.
242.1  Definitions.
242.2  Authority to engage in commercial fishing.
242.3  Authority to operate.
242.4  Fishing.
242.5  Disposition of unmarketable fish.
242.6  Spawning season.
242.7  Suspension.
242.8  Penalty.
242.9  Quotas.
242.10  Fishing equipment limitations.
242.11  Royalty.
242.12  Authority to lease.

    Authority: 25 U.S.C. 2; 5 U.S.C. 301.

    Source: 25 FR 7784, Aug. 16, 1960, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 242.1  Definitions.

    As used in this part:
    (a) ``Secretary'' means the Secretary of the Interior or his 
authorized representative.
    (b) ``Council'' means the General Council of the Red Lake Band of 
the Chippewa Indians as recognized by the Secretary of the Interior.
    (c) ``Association'' means the Red Lake Fisheries Association, 
incorporated under the laws of the State of Minnesota, and whose 
articles of incorporation and bylaws and any amendments thereto have 
been approved by the Council and the Secretary of the Interior.
    (d) ``Member of Association'' means as defined in the Association 
by-laws.
    (e) ``Commercial fishing'' means the catching of any fish for sale 
directly or indirectly to others than Indians on the reservations or 
licensed traders on the reservation for resale to Indians.



Sec. 242.2  Authority to engage in commercial fishing.

    No person shall engage in commercial fishing in the waters of the 
Red Lakes on the Red Lake Indian Reservation in the State of Minnesota 
except the Red Lake Fisheries Association, a corporation organized and 
incorporated under the laws of Minnesota, and its members, and then only 
in accordance with the regulations in this part. The authority hereby 
granted to the Association and its members to engage in commercial 
fishing may, at any time, be canceled and withdrawn and these 
regulations may be modified and amended.



Sec. 242.3  Authority to operate.

    The association may conduct commercial fishing operations on the 
reservation under authority of its articles of incorporation and by-laws 
only in accordance with the regulations in this part.



Sec. 242.4  Fishing.

    (a) Enrolled members of the Red Lake Band of Chippewa Indians may 
take fish at any time except as prohibited by Sec. 242.6 from waters of 
the Red Lakes on the Red Lake Indian Reservation for their own use and 
for sale to:

[[Page 604]]

    (1) Other Indians on the reservation and
    (2) Licensed traders on the reservation for resale to Indians.
    (b) Fish may be taken for commercial purposes only by the 
Association through members of the Association in residence on the 
reservation during the fishing season which shall be May 15 to November 
15 inclusive. All fish taken for such purposes shall be marketed through 
the Association.
    (c) In connection with commercial fishing, Association members 
fishermen may be assisted only by Indians who are members of the Red 
Lake Band.



Sec. 242.5  Disposition of unmarketable fish.

    All unmarketable live fish taken under authority of these 
regulations must be returned to the water, and all unmarketable dead 
fish taken must be buried by the person taking the same.



Sec. 242.6  Spawning season.

    Walleye and northern pike (or pickerel) shall not be taken during 
their spawning season except for propagation purposes.



Sec. 242.7  Suspension.

    All commercial fishing operations may be suspended by order of the 
Secretary at any time.



Sec. 242.8  Penalty.

    Any Indian violating the provisions of Secs. 242.4 and 242.6 shall 
forfeit his right to take fish for any purpose for a period of three 
months.



Sec. 242.9  Quotas.

    The Secretary may set such commercial quotas as he may find 
desirable, based on available biological and other information, on the 
amount of fish which may be taken under authority of the regulations in 
this part in any one season. Until otherwise determined by the 
Secretary, not more than 650,000 pounds of walleyes may be taken in any 
one fishing season.



Sec. 242.10  Fishing equipment limitations.

    (a) Any variety of fish may be taken by enrolled members of the Band 
from any waters on the reservation by hook and line, and from Upper and 
Lower Red Lakes by gill net or entrapment gear for noncommercial use 
only.
    (b) For commercial fishing each member of the Association shall be 
limited to eight gill nets of 300 feet in length and six feet in depth, 
of which not to exceed six of such nets may be of nylon and other 
synthetic material.
    (c) Gill nets for taking pike shall have a mesh of not less that 
3\1/2\ inches extension measure.
    (d) Gill nets for taking whitefish shall have a mesh of not less 
than 5\1/2\ inches extension measure.
    (e) Entrapment gear may only be used by members of the Association 
for taking fish of any variety for commercial purposes or propagation, 
in accordance with such specifications and directions as the manager of 
the Association may provide.
    (f) All nets used in Red Lake Reservation waters must be marked with 
appropriate tags to be furnished by the Association.



Sec. 242.11  Royalty.

    The Association shall pay five percent of the gross receipts from 
the sale of fish by the Association to the designated collection officer 
of the Bureau of Indian Affairs, which shall be deposited to the credit 
of the Band in the Treasury of the United States.



Sec. 242.12  Authority to lease.

    The Band, with the approval of the Secretary, may execute a lease or 
permit on its fisheries plant and hatchery at Redby, Minnesota, to the 
Association.



PART 243--REINDEER IN ALASKA--Table of Contents




                        Declarations of Ownership

Sec.
243.1  Agent.
243.2  Filing of form.
243.3  Receipt of form.

    Authority: Sec. 12, 50 Stat. 902; 48 U.S.C. 250k. Interpret or apply 
sec. 3, 50 Stat. 900; 48 U.S.C. 250b.

    Source: 22 FR 10543, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.

[[Page 605]]

                        Declarations of Ownership



Sec. 243.1  Agent.

    The General Reindeer Supervisor at Nome, Alaska, is hereby 
designated as the duly authorized agent of the Secretary of the 
Interior, with whom all declarations of reindeer ownership required by 
the act of September 1, 1937 (50 Stat. 900; 48 U.S.C. 250-250p), must be 
filed within the time limits specified in the act.



Sec. 243.2  Filing of form.

    Pursuant to the provisions of section 3 of the act, declarations of 
ownership of reindeer in Alaska should be made by claimants upon the 
prescribed form. This form should be executed in quadruplicate. All four 
copies should be submitted in person or by mail to the General Reindeer 
Supervisor, Nome, Alaska, who has been designated as the duly authorized 
agent of the Secretary of the Interior pursuant to section 3 of the 
aforementioned act. Envelopes contining declarations of ownership of 
reindeer which are mailed to said agent must bear postmarks not later 
than midnight of September 1, 1938, in order to meet the requirements of 
the law. All declarations submitted in person by the owner, or his 
representative, must be filed with said agent at his office at Nome, 
Alaska, on or before 5 o'clock p.m., September 1, 1938.

    Note: Copies of the form mentioned may be obtained from the General 
Reindeer Supervisor, Nome, Alaska.



Sec. 243.3  Receipt of form.

    Upon receipt of each person's declaration of ownership of reindeer 
in Alaska, the General Reindeer Supervisor shall sign the receipt 
thereof in the proper place in the form, and shall submit two copies of 
the declaration to the Commissioner of Indian Affairs, retain one copy 
in his record, and return one copy to the claimant. All declarations of 
ownership of reindeer in Alaska which are included in the records of the 
office of the General Reindeer Supervisor shall be kept open to public 
inspection in Alaska in accordance with section 3 of said act.



PART 248--USE OF COLUMBIA RIVER INDIAN IN-LIEU FISHING SITES--Table of Contents




Sec.
248.1  Fishing sites subject to regulation.
248.2  Persons eligible to use sites.
248.3  Identification of eligible users.
248.4  Applicability of laws and regulations.
248.5  Damage to Government-owned property.
248.6  Structures.
248.7  Liability for condition and use of structures.
248.8  Abandoned property.
248.9  Camping and use restrictions.
248.10  Appeals from administrative actions.

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.

    Source: 32 FR 3945, Mar. 10, 1967, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



Sec. 248.1  Fishing sites subject to regulation.

    Use of any of the lands acquired by the Secretary of War and 
transferred to the Secretary of the Interior pursuant to the Act of 
March 2, 1945 (59 Stat. 22), as amended (hereinafter called ``in lieu 
fishing sites'' or ``sites'') to replace Indian fishing grounds 
submerged or destroyed as a result of the construction of the Bonneville 
Dam shall be subject to the following rules and regulations. The Area 
Director, Portland Area Office, Bureau of Indian Affairs (hereinafter 
called ``Area Director''), may suspend or withdraw the privileges of 
access to or use of any or all the sites for any violation of the 
regulations in this part or of any rules issued pursuant to the 
regulations in this part.



Sec. 248.2  Persons eligible to use sites.

    The in-lieu fishing sites are for the benefit of the Yakima, 
Umatilla, and Warm Springs Indian Tribes, and such other Columbia River 
Indians, if any, who had treaty fishing rights at locations inundated or 
destroyed by Bonneville Dam, to be used is accordance with treaty 
rights. The use of the sites is restricted to such Indians; however, 
this shall not preclude the use of camping areas on the sites by the 
families of such Indians.



Sec. 248.3  Identification of eligible users.

    For the purpose of identification of the persons entitled to use the 
sites,

[[Page 606]]

each eligible Indian shall, when using said sites, have in his 
possession an identification card issued by his tribe identifying him as 
a member of that tribe. The Area Director shall issue identification 
cards to such other Columbia River Indians, if any, as may be eligible 
to use the sites. Any individual using the sites shall exhibit the 
identification upon request of authorized Federal, State or local 
officials.



Sec. 248.4  Applicability of laws and regulations.

    No Indian shall use any of the sites for any activity that is 
contrary to the provisions of any applicable law or regulation of his 
tribe or contrary to any applicable State or Federal law or regulation. 
The Area Director may in his discretion suspend or withdraw privileges 
for future access to or use of the sites for violation of such laws and 
regulations: Provided, That, nothing contained in the regulations in 
this part is intended or shall be construed as limiting or affecting any 
treaty rights of any tribe nor as subjecting any Indian properly 
exercising tribal treaty rights to State fishing laws or regulations 
which are not compatible with such rights.



Sec. 248.5  Damage to Government-owned property.

    Anyone committing any act of depredation, destruction, theft, or 
misuse of the land, buildings, fences, signs, or other structures which 
are the property of the United States shall be subject to prosecution 
under applicable Federal or State law.



Sec. 248.6  Structures.

    Dwellings, camping facilities, and other structures such as fish 
drying facilities and fishing platforms may be erected, placed, or 
maintained on the sites for use in the conduct of treaty fishing and 
related activities. Sites must be used in a manner that conforms to the 
health, sanitation, and safety requirements of the State or local law, 
or, in the absence of appropriate State or local laws, to the health, 
sanitation, and safety recommendations of the U.S. Public Health 
Service. The privileges or right of access to or use of the sites of any 
individual may be suspended or withdrawn, in the discretion of the Area 
Director, when such individual having violated such health, sanitation, 
and safety requirements repeats such violation after having been given 
notice to cease and desist therefrom.

[59 FR 16757, Apr. 7, 1994]



Sec. 248.7  Liability for condition and use of structures.

    Any private structures including drying sheds, tents, tepees, or 
fishing platforms erected, placed, or maintained on the sites are the 
sole responsibility of their owners, and all use of such structures 
shall be at the user's or owner's sole responsibility and risk. Neither 
the United States nor any officer or employee thereof warrants, makes 
any representation, or is responsible for the safety or condition of any 
such structure.

[34 FR 2248, Feb. 15, 1969. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 248.8  Abandoned property.

    No vehicle, trailer, boat, or other personal property shall be 
abandoned on the sites. Property abandoned in violation of the 
regulations in this part may be removed without prior notice to the 
owner and may be disposed of at the owner's expense as determined by the 
Area Director.



Sec. 248.9  Camping and use restrictions.

    All camping, picnicking, use of alcoholic beverages, setting or use 
of fires, use of the sites for cleaning of fish, the deposit of any 
garbage, paper, cans, bottles, or rubbish of any kind, or use of the 
sites for any commercial activity (including commercial purchase of 
fish) shall be subject to such prohibitions, restrictions, or other 
regulations as the Area Director may prescribe and cause to be posted on 
the site or sites to which said regulations are applicable; provided 
that no fee may be charged to any Indian or member of his family for any 
such use.



Sec. 248.10  Appeals from administrative actions.

    Any decision made by the Area Director under this part 248 shall be 
subject to appeal to the Commissioner of

[[Page 607]]

Indian Affairs, and any decision on the Commissioner of Indian Affairs 
on such an appeal may be appealed to the Secretary of the Interior in 
accordance with part 2 of this chapter.



PART 249--OFF-RESERVATION TREATY FISHING--Table of Contents




                      Subpart A--General Provisions

Sec.
249.1  Purpose.
249.2  Area regulations.
249.3  Identification cards.
249.4  Identification of fishing equipment.
249.5  Use of unauthorized helpers or agents.
249.6  Enforcement and penalties.
249.7  Savings provisions.

    Authority: 25 U.S.C. 2 and 9; 5 U.S.C. 301, unless otherwise noted.

    Source: 32 FR 10434, July 15, 1967, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



                      Subpart A--General Provisions



Sec. 249.1  Purpose.

    (a) The purposes of these regulations (part 249) are:
    (1) To assist in protecting the off-reservation nonexclusive fishing 
rights which are secured to certain Indian tribes by their treaties with 
the United States;
    (2) To promote the proper management, conservation and protection of 
fisheries resources which are subject to such treaties of the United 
States;
    (3) To provide for determination of restrictions on the manner of 
exercising nonexclusive fishing privileges under rights secured to 
Indian tribes by such treaties of the United States necessary for 
conservation of the fisheries resources;
    (4) To assist in the orderly administration of Indian Affairs;
    (5) To encourage consultation and cooperation between the states and 
Indian tribes in the management and improvement of fisheries resources 
affected by such treaties;
    (6) To assist the states in enforcing their laws and regulations for 
the management and conservation of fisheries resources in a manner 
compatible with the treaties of the United States which are applicable 
to such resources.
    (b) The conservation regulations of this part 249 are found to be 
necessary to assure that the nonexclusive rights secured to certain 
Indian tribes by treaties of the United States to fish at usual and 
accustomed places outside the boundaries of an Indian reservation shall 
be protected and preserved for the benefit of present and future members 
of such tribes in a manner consistent with the nonexclusive character of 
such rights. Any exercise of an Indian off-reservation treaty fishing 
right shall be in accordance with this part and any applicable area 
regulations issued hereunder.

[32 FR 10434, July 15, 1967. Redesignated at 47 FR 13327, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]



Sec. 249.2  Area regulations.

    (a) The Secretary of the Interior may upon request of an Indian 
tribe, request of a State Governor, or upon his own motion, and upon 
finding that Federal regulation of Indian fishing in any waters in which 
Indians have a treaty-secured nonexclusive fishing right is necessary to 
assure the conservation and wise utilization of the fishery resources 
for the present and future use and enjoyment of the Indians and other 
persons entitled thereto, promulgate regulations to govern the exercise 
of such treaty-secured fishing right in such waters for the purpose of 
preventing, in conjunction with appropriate State conservation laws and 
regulations governing fishing by persons not fishing under treaty 
rights, the deterioration of the fishery resources.
    (b) In formulating such regulations the Secretary of the Interior 
may incorporate such State laws or regulations, or such tribal 
regulations as have been approved by the Commissioner of Indian Affairs, 
as he finds to be consistent with the Indians' rights under the Treaty 
and the conservation of the fishery resources.
    (c) Before promulgating such regulations the Secretary of the 
Interior will seek the views of the affected Indian tribes, of the fish 
or game management agency or agencies of any affected State, and of 
other interested persons. Except in emergencies where the Secretary 
finds that the exigencies require the promulgation of regulations to be

[[Page 608]]

effective immediately, a notice of proposed rule making will be 
published in the Federal Register in accordance with 5 U.S.C. 553 to 
afford an opportunity to submit comments and information, at such times 
and in such manner as may be specified in the notice. In the event of 
the emergency promulgation of regulations, interested persons will be 
afforded, as soon as possible, an opportunity to request amendment or 
revocation thereof.
    (d) Any regulations issued pursuant to this section shall contain 
provisions for invoking emergency closures or restrictions or the 
relaxation thereof at the field level when necessary or appropriate to 
meet conditions not foreseeable at the time the regulations were issued.
    (e) Regulations issued pursuant to this Sec. 249.2 may include such 
requirements for recording and reporting catch statistics as the 
appropriate state fish and game agencies or the Secretary of the 
Interior deem necessary for effective fishery management.



Sec. 249.3  Identification cards.

    (a) The Commissioner of Indian Affairs shall arrange for the 
issuance of an appropriate identification card to any Indian entitled 
thereto as prima facie evidence that the authorized holder thereof is 
entitled to exercise the fishing rights secured by the treaty designated 
thereon. The Commissioner may cause a federal card to be issued for this 
purpose or may authorize the issuance of cards by proper tribal 
authorities: Provided, That any such tribal cards shall be countersigned 
by an authorized officer of the Bureau of Indian Affairs certifying that 
the person named on the card is a member of the tribe issuing such card 
and that said tribe is recognized by the Bureau of Indian Affairs as 
having fishing rights under the treaty specified on such card. Copies of 
the form of any identification card authorized pursuant to this section 
and a list of the authorized Bureau of Indian Affairs issuing or 
countersigning officials shall be furnished to the fisheries management 
and enforcement agencies of any State in which such fishing rights may 
be exercised.
    (b) No such card shall be issued to any Indian who is not on the 
official membership roll of the tribe which has been approved by the 
Secretary of the Interior. Provided, That until further notice, a 
temporary card may be issued to any member of a tribe not having an 
approved current membership roll who submits evidence of his/her 
entitlement thereto satisfactory to the issuing officer and, in the case 
of a tribally issued card, to the countersigning officer. Any Indian 
claiming to have been wrongfully denied a card may appeal the decision 
in accordance with part 2 of this chapter.
    (c) No person shall be issued an identification card on the basis of 
membership in more than one tribe at any one time.
    (d) Each card shall state the name, address, tribal affiliation and 
enrollment number (if any) of the holder, identify the treaty under 
which the holder is entitled to fishing rights, contain such additional 
personal identification data as is required on fishing licenses issued 
under the law of the State or States within which it is used, and be 
signed by the issuing officer and by the holder.
    (e) No charge or fee of any kind shall be imposed by the 
Commissioner of Indian Affairs for the issuance of an identification 
card hereunder: Provided, That this shall not prevent any Indian tribe 
from imposing any fee or tax which it may otherwise be authorized to 
impose upon the exercise of any tribal fishing right.
    (f) All cards issued by the Commisssioner of Indian Affairs pursuant 
to this part 249 shall be and remain the property of the United States 
and may be retaken by any Federal, State, or tribal enforcement officer 
from any unauthorized holder. Any card so retaken shall be immediately 
forwarded to the officer who issued it.
    (g) The failure of any person who claims to be entitled to the 
benefits of a treaty fishing right to have such a card in his immediate 
personal possession while fishing or engaging in other activity in the 
claimed exercise of such right to display it upon request to any 
Federal, State, or tribal enforcement officer shall be prima facie 
evidence

[[Page 609]]

that the person is not entitled to exercise an Indian fishing right 
under a treaty of the United States.
    (h) No person shall allow any use of his identification card by any 
other person.

(5 U.S.C. 301; R.S. 463 and 465)

[32 FR 10434, July 15, 1967, as amended at 46 FR 4873, Jan. 19, 1981. 
Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 48 FR 1052, 
Jan. 10, 1983]



Sec. 249.4  Identification of fishing equipment.

    All fishing gear or other equipment used in the exercise of any off-
reservation treaty fishing right shall be marked in such manner as shall 
be prescribed in regulations issued pursuant to Sec. 249.2 hereof to 
disclose the identity of its owner or user. In the absence of proof to 
the contrary, any fishing gear which is not so marked or labeled shall 
be presumed not to be used in the exercise of an off-reservation treaty 
fishing right and shall be subject to control or seizure under State 
law.



Sec. 249.5  Use of unauthorized helpers or agents.

    No Indian shall, while exercising off-reservations treaty-secured 
fishing rights, permit any person 12 years of age or older other than 
the authorized holder of a currently valid identification card issued 
pursuant to this part 249 to fish for him, assist him in fishing, or use 
any gear of fishing location identified as his gear or location pursuant 
to this part 249.



Sec. 249.6  Enforcement and penalties.

    (a) Any Indian tribe with a tribal court may confer jurisdiction 
upon such court to punish violations by its members of this part 249 or 
of the area regulations issued pursuant thereto. Jurisdiction is hereby 
conferred upon each Court of Indian Offenses established pursuant to 
part 11 of this chapter to punish such violations by members of tribes 
whose reservations are under the jurisdiction of such court. Courts of 
Indian Fishing Offenses may be created pursuant to part 11 of this 
chapter to punish such violations by members of any tribe or group of 
tribes for which there is otherwise no Court of Indian Offenses or 
tribal court with jurisdiction to enforce this part 249. The provisions 
of part 11 of this chapter shall apply to any such court with respect to 
the exercise of its jurisdiction to enforce this part 249. All 
jurisdiction conferred by this section shall apply without regard to any 
territorial limitations otherwise applicable to the jurisdiction of such 
court.
    (b) Acceptance or use of an identification card issued pursuant to 
this part 249 or use of any fishing gear marked or identified pursuant 
thereto shall constitute an acknowledgment that the fishing done under 
such card or with such gear is in the claimed exercise of a tribal 
fishing right and is subject to the jurisdiction of the tribal court, 
Court of Indian Offenses, or Court of Indian Fishing Offenses. Except as 
may be otherwise provided by tribal regulations approved by or on behalf 
of the Secretary of the Interior, any person claiming to be exercising 
such tribal right and fishing in violation of the regulations contained 
in or issued under this part 249 may be punished by a fine of not to 
exceed $500, imprisonment of not to exceed 6 months, or both, and shall 
have his tribal fishing privileges suspended for not less than 5 days 
for any violation of this part 249 or of any area regulation issued 
pursuant thereto. The court shall impound the fishing rights 
identification card of any person for the period which the fishing 
privileges are suspended.



Sec. 249.7  Savings provisions.

    Nothing in this part 249 shall be deemed to:
    (a) Prohibit or restrict any persons from engaging in any fishing 
activity in any manner which is permitted under state law;
    (b) Deprive any Indian tribe, band, or group of any right which may 
be secured it by any treaty or other law of the United States;
    (c) Permit any Indian to exercise any tribal fishing right in any 
manner prohibited by any ordinance or regulation of his tribe;
    (d) Enlarge the right, privilege, or immunity of any person to 
engage in any fishing activity beyond that granted or reserved by treaty 
with the United States;

[[Page 610]]

    (e) Exempt any person or any fishing gear, equipment, boat, vehicle, 
fish or fish products, or other property from the requirements of any 
law or regulation pertaining to safety, obstruction of navigable waters, 
national defense, security of public property, pollution, health and 
sanitation, or registration of boats or vehicles;
    (f) Abrogate or modify the effect of any agreement affecting fishing 
practices entered into between any Indian tribe and the United States or 
any State or agency of either.

[[Page 611]]



                          SUBCHAPTER K--HOUSING





PART 256--HOUSING IMPROVEMENT PROGRAM--Table of Contents




Sec.
256.1  Purpose.
256.2  Definitions.
256.3  Policy.
256.4  Program categories.
256.5  HIP application.
256.6  Eligibility.
256.7  HIP selection criteria.
256.8  Program implementation.
256.9  Inspections.
256.10  Appeals.
256.11  Flood disaster protection.
256.12  Information collection.

Appendix A to Part 256--Summary of Selection Criteria--Point Schedule
Appendix B to Part 256--HIP Selection Criteria

    Authority: 42 Stat. 208. (25 U.S.C. 13).

    Source: 57 FR 3105, Jan. 27, 1992, unless otherwise noted.



Sec. 256.1  Purpose.

    The purpose of this part is to prescribe the terms and conditions 
under which assistance is given to Indians under the Housing Improvement 
Program (HIP).



Sec. 256.2  Definitions.

    As used in this part 256:
    Area Director means the Officer in charge of one of the Bureau of 
Indian Affairs Area Offices, or his/her authorized delegate.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
or his/her authorized representative.
    Dilapidated means a state of disrepair.
    Family means one or more persons maintaining a household.
    Handicapped means legally blind; legally deaf; lack of or inability 
to use one or more limbs; chair or bed bedbound; inability to walk 
without crutches or walker; mental disability in an adult of a severity 
that requires a companion to aid in basic needs, such as dressing, 
preparing food, etc., or severe heart and/or respiratory problems 
preventing even minor exertion.
    Indian means any person who is a member of any of those tribes 
listed in the Federal Register pursuant to 25 CFR part 83 as recognized 
by and receiving services from the Bureau of Indian Affairs.
    Nonmember Indian means any person who is a member of a Federally 
recognized tribe living in another tribe's approved service area.
    Ownership means having fee title, trust title, leasehold interest, 
use permit, indefinite assignment or other exclusive possessory 
interest. In the case of Alaska, the term also includes one who the 
Superintendent determines has a reasonable prospect of becoming an 
owner, in accordance with the provisions of the Alaska Native Claims 
Settlement Act (85 Stat. 688).
    Secretary means the Secretary of the Interior.
    Service area means reservations (former reservations in Oklahoma), 
and allotments, restricted lands, Indian-owned fee lands (including 
lands owned by Corporations established pursuant to the Alaska Native 
Claims Settlement Act) within a geographical area designated by the 
tribe, and approved by the Area Director to which equitable services can 
be delivered.
    Standard housing means a dwelling in a condition which is decent, 
safe, and sanitary so that it meets the following minimum standards;
    (a) General construction conforms to applicable tribal, county, 
state or national codes and to appropriate building standards for the 
region.
    (b) The heating system has the capacity to maintain a minimum 
temperature of 70 degrees in the dwelling during the coldest weather in 
the area. It must be safe to operate and maintain and deliver a uniform 
distribution of heat.
    (c) The plumbing system includes a properly installed system of 
piping and fixtures.
    (d) The electrical system includes wiring and equipment properly 
installed to safely supply electrical energy for lighting and for the 
operation of appliances.
    (e) Occupants per dwelling do not exceed these limits:

[[Page 612]]

    (1) Two-bedroom dwelling: Up to four persons;
    (2) Three-bedroom dwelling: Up to seven persons;
    (3) Four-bedroom dwelling: Adequate for all but the very largest 
families.
    (f) Bedroom size: The first bedroom must have at least 120 sq. ft. 
of floor space, additional bedrooms must have a minimum of 100 sq. ft. 
of floor space each.
    (g) Two exceptions to standard housing will be permitted:
    (1) Where one or more of the utilities are not available and there 
is no prospect of the utilities becoming available; and
    (2) In areas of severe climate, house size may be reduced to meet 
applicable building standards of the region.
    (g) The house site must be chosen so that access to utilities is 
most economical, the ingress and egress are adequate and aesthetics and 
proximity to school bus routes are considered.
    Superintendent means the Officer in charge of the Agency or other 
local office of the Bureau of Indian Affairs.
    Tribe means any Indian tribe, band, nation, rancheria, pueblo, 
colony, or community, including any Alaska Native village which is 
federally recognized as eligible by the United States Government for the 
special programs and services provided by the Secretary to Indian tribes 
because of their status as Indians.



Sec. 256.3  Policy.

    (a) The Bureau of Indian Affairs' housing policy is consistent with 
the specific objectives of the national housing policy which declares 
that every American family should have the opportunity for a decent home 
and suitable living environment. To the maximum extent possible, tribes 
will be involved in the administration of the program.
    (b) Every Indian, as defined in Sec. 256.2 and eligible pursuant to 
Sec. 256.6, is entitled to participate in this program irrespective of 
tribal affiliation, provided equitable services can be delivered to the 
geographic area within which they reside.
    (c) The general distribution of HIP funds among tribes is based on a 
consistent, valid, and certified inventory of tribal housing needs, a 
viable work plan, and the tribe being in compliance with the intent of 
the program. Every effort will be made to use HIP funds in conjunction 
with other programs so that the result will be a greater amount of 
housing improvements than would otherwise be possible with the HIP funds 
alone. An example of this is the agreement with the Indian Health 
Services to provide water and sanitation facilities for HIP houses. In 
cases where training programs are used in conjunction with the HIP, 
funds are to be limited to the purchase of materials, and to the 
provision of inspection and skilled labor which are otherwise not 
available.
    (d) Tribal allocation levels are determined on the basis of the 
HIP's responsibility of the total housing needs derived from the tribal 
inventories of need. The emphasis of the HIP will be on repair and 
renovation of existing housing while other federally-assisted programs 
are responsible for the bulk of the new house building effort. As such, 
the BIA's funding calculations are based on 90% of the repair need and 
up to 10% of the new construction need indicated by tribal housing 
inventories. (The exception is Alaska, where the percentage is 95% of 
repairs and 35% of new construction). The HIP may provide a grant for 
the financing of the construction of a limited amount of new standard 
housing when it is established that the applicant has been denied 
housing assistance from sources other than the HIP. Thus, each fiscal 
year, the BIA will allocate funds appropriated for HIP in proportion to 
the identified housing needs.



Sec. 256.4  Program categories.

    The HIP will provide assistance in the following categories:
    (a) Repairs that will remain nonstandard. Under this category:
    (1) Financial assistance will be granted to finance repairs and 
additions to existing substandard housing needing replacement so that it 
is safe, more sanitary, and livable until such time as standard housing 
is available.
    (2) The standard to be applied in deciding whether to provide 
assistance is improvement in the condition of the

[[Page 613]]

house, i.e., improved livability or reduced health and safety hazards, 
even though it may be obvious that such an undertaking will not improve 
the house to the extent that it will meet the standard of decent, safe, 
and sanitary. Examples of the improvement that may be undertaken are: 
Weather tightening and the repair of doors, windows, roof, electrical 
wiring, plumbing, and chimney.
    (3) The cumulative total expenditure of the HIP funds shall not 
exceed $2,500 for any one dwelling.
    (4) The funds shall be granted and no restrictions on the use of the 
home may be imposed.
    (b) Repairs to housing that will become standard. Under this 
category:
    (1) Financial assistance will be granted to finance repairs, 
renovation and/or enlargement of existing structurally sound, but 
deteriorated dwellings which can economically be placed in a standard 
condition.
    (2) Upon completion of work, the dwelling shall fit the definition 
of standard housing as defined in Sec. 256.2.
    (3) The total expenditure of the HIP Program Funds shall not exceed 
$20,000 for any one dwelling. (In the case of Alaska, reasonable, 
substantiated freight costs in accordance with Federal Property 
Management Regulation (FPMR) 101-40, not to exceed 100% of the material 
cost, may be added).
    (4) Undertakings under this category are for applicants who are 
living in their own homes.
    (5) The applicant must sign a written agreement that if he/she sells 
the house within five years following the date of completion of the 
repairs, the grant will be voided and the grantee will repay the full 
amount of the grant at the time of settlement to the Bureau of Indian 
Affairs.
    (c) Down payments. Under this category:
    (1) The HIP provides grants in order to make the applicant eligible 
to receive housing loans from tribal, Federal or other sources of 
credit. The applicant must establish that he/she has an inadequate 
income of limited financial resources to meet the full cost of the loan. 
Grants are only for standard housing.
    (2) The grant shall not exceed the amount necessary to secure the 
loan plus the closing costs or ten percent (10%) of the purchase price 
of the house plus the closing costs or $5,000, whichever is less. (In 
the case of Alaska, the grant amount shall not exceed $6,000).
    (3) The method of advancing the grant must ensure that the funds are 
used for the purpose intended. The applicant must sign a written 
agreement that if he/she sells the house within five years following the 
date of purchase, the grant is voided and the amount of the grant will 
be fully repaid by the grantee to the Bureau of Indian Affairs at time 
of settlement.
    (d) New housing. Under this category:
    (1) The HIP may provide a grant for the financing of the 
construction of a limited amount of new standard housing, either site-
built or factory-built, when it is established that the applicant has 
been denied housing assistance from sources other than the HIP.
    (2) The housing provided under this category must meet the housing 
standards of this part. Mobile units with an integral frame are 
specifically excluded.
    (3) The total expenditure of HIP funds shall not exceed $45,000 for 
a dwelling and equipment. (In the case of Alaska, the total expenditure 
of funds shall not exceed $55,000, plus reasonable, substantiated 
freight costs in accordance with FPMR 101-40, not to exceed 100% of the 
materials cost). The occupant will be responsible for all maintenance of 
the completed dwelling and all utility fees, deposits or costs required 
for service.
    (4) The applicant must have ownership of the land on which the house 
is located. In the case of a leasehold interest, it must be for not less 
than 25 years. The applicant must sign a written agreement that if he/
she sells the house within the first ten years from the date of 
ownership, the grant is voided and the full amount of the HIP grant will 
be repaid by the grantee to the Bureau of Indian Affairs at time of 
settlement. Subsequent to the first ten years, if the grantee sells the 
house, he/she may retain 10% of the original grant amount per year 
beginning in the eleventh year, with the remaining amount to be repaid 
to the Bureau of

[[Page 614]]

Indian Affairs. If the sale occurs twenty years or more after the date 
of ownership, no repayment of any part of the grant will be due the 
Bureau of Indian Affairs.
    (5) Adequate fire insurance, where determined feasible, must be 
carried.



Sec. 256.5  HIP application.

    Individuals wishing to participate in the Housing Improvement 
Program must fill out BIA Form 6407. Application forms may be obtained 
from tribes or the nearest Bureau of Indian Affairs Office. Completed 
applications should be submitted to tribes or the nearest BIA office, 
where applicable. Each application for assistance should be approved by 
the tribe. Nonmember Indians apply for assistance through the tribe in 
whose jurisdiction they reside.



Sec. 256.6  Eligibility.

    (a) To establish eligibility for selection to receive a grant under 
Sec. 256.7, an applicant must show that:
    (1) The applicant is an Indian.
    (2) The present housing of the applicant is substandard or 
inadequate in terms of capacity to meet the physical needs of the 
family.
    (3) The applicant has been denied, or is ineligible for, housing 
assistance from sources other than the HIP.
    (4) The economic resources of the applicant are inadequate or 
factors exist which make the applicant unable to obtain housing from 
other local, state or Federal sources. Applicants whose annual income 
exceeds the Department of Health and Human Services Poverty Income 
Guidelines by 225% or more shall be ineligible for HIP assistance on the 
basis of need. Determination of eligibility will be made on a case-by-
case basis.
    (5) The applicant for assistance under one of the categories in 
Sec. 256.4 meets the ownership requirements given under that category.
    (b) After October 1, 1986, an applicant may only receive assistance 
once under categories given in paragraph (b), (c), or (d) of Sec. 256.4.
    (c) The Department of Housing and Urban Development (HUD) financed 
houses under the administration of an Indian Housing Authority (IHA) 
will not be eligible for assistance until the end of the entire project 
indebtedness to the Federal Government.



Sec. 256.7  HIP selection criteria.

    Once the eligibility requirements of Sec. 256.6 are satisfied, 
development of priority lists of eligible applicants shall be 
accomplished by a ranking system based on six basic factors of need: 
Annual income, family size, overcrowded living conditions, age, handicap 
or disability, and HUD-IHA financed housing. Eligible applicants may 
receive points for any or all of these six factors. Priority will be 
given relative to the number of points received. Appendix A to this 
provides a summary of selection criteria.
    (a) Factor No. 1--Annual Household Income (Up to 40 points 
available).
    (1) The eligible applicant's total annual household income and other 
resources, if any, must be evaluated in order to determine priority in 
terms of degree of poverty. If an individual is counted as a family 
member for the purpose of determining Family Size (Factor No. 2), the 
annual income of that person must be included in the total annual 
household income on the HIP application. Examples of income which must 
be included are royalties and onetime income. A specific definition of 
the type of resources which must be included is set forth in 25 CFR part 
20.
    (2) In order to determine whether or not the applicant is entitled 
to points under Factor No. 1, it is necessary to compare the total 
combined annual household income against the Federal Poverty Income 
Guidelines which are published annually by the Department of Health and 
Human Services. The most current issue of the Guidelines published in 
the Federal Register by Health and Human Services (HHS) will be used 
during the selection process. A yardstick for determining applicant 
income priority is provided based upon 125% of the Poverty Income 
Guidelines. In addition, even greater point values are available for 
applicants whose annual income falls substantially (25% or more) below 
the poverty level. In order to facilitate calculations, a chart of the 
various income levels is provided

[[Page 615]]

to each tribe annually upon publication of new revised Poverty 
Guidelines by HHS each year.
    (b) Factor No. 2--Family Size (5 points per dependent child). A 
dependent child for purposes of this subsection is a person meeting the 
definition of ``child'' in 25 CFR part 20.
    (c) Factor No. 3--Overcrowded Living Conditions (Up to 10 points 
possible).
    (1) The definition of ``standard housing'' identifies the acceptable 
limits for family size per dwelling (see Sec. 256.2). In order to earn 
points under Factor No. 3, the applicant family must exceed the limits 
for its dwelling established in Sec. 256.2. A family is overcrowded if:
    (i) Three or more persons occupy a one-bedroom dwelling.
    (ii) Five or more persons occupy a two-bedroom dwelling.
    (iii) Eight or more persons occupy a three-bedroom dwelling.
    (2) Depending upon the circumstances and the degree of overcrowding, 
as well as the family structure, the committee reviewing HIP 
applications can award as little as 1 point, or as many as 10 points, 
for the overcrowding factor.
    (3) The preceding overcrowded living description is not feasible in 
Alaska where, because of the unique climatic conditions, a dwelling is 
frequently not divided into the conventional room arrangement customary 
in the contiguous 48 states. Recommended guidelines for Alaska only are 
therefore based upon gross square feet per occupant, ranging from 2 to 
10 points for Factor No. 3. (See appendix A to this part.)
    (d) Factor No. 4--Age--(1) Elderly couple. (Up to 21 points per 
individual available.) Points are awarded based upon age, beginning at 
age 55, with a maximum of 21 points per elderly person available. 
Appendix B to this part is a schedule, by age, of the number of points 
to be awarded in this category. If an applicant family has an elderly 
relative who is a permanent household member, points are added to the 
application for this person.
    (2) Single, Elderly, Living Alone (Up to 32 points). Special 
priority amounting to 150% of the Factor No. 4 standard schedule, as 
identified in paragraph (d)(1) of this section, is provided only for an 
elderly individual living alone and applying for a grant from HIP. An 
elderly widower/widow, age 70, living by him/herself plus 50% (8 points) 
adds up to a total of 24 points. In calculating allowable points using 
the schedule shown in appendix B, decimals should be eliminated by 
rounding to the next higher whole number.
    (e) Factor No. 5--Handicap or Disability (Up to 20 points available 
per application).
    (1) The many and varied degrees and types of disability present a 
complex ranking situation. A general definition of handicapped is 
provided as a guide. The selection committee evaluating HIP applications 
shall determine the number of points, up to the maximum of 20, merited 
by the applicant (or family member) based upon the degree of disability.
    (2) Applicants should provide as much documentation as possible 
concerning the disabled person's condition. This could include a 
doctor's certification, Veteran's Administration determination, Social 
Security determination of degree of disability, or similar information 
which would assist the HIP committee in its point calculation.
    (f) Factor No. 6--HUD/IHA Financed Houses (Deduct 30 points). A 
deduction of 30 points shall be applied to applicants who own HUD-IHA 
houses after the project indebtedness ends, as described in 
Sec. 256.6(c). These houses represent new standard housing obtained with 
Federal housing assistance.
    (g) Tie Breaker. If two applications are assigned the same number of 
points, two considerations will determine which application has 
priority.
    (1) Tie Breaker No. 1--The applicant living in the most dilapidated 
conditions will receive priority.
    (2) Tie Breaker No. 2--The family with the lower income will be 
served first.



Sec. 256.8  Program implementation.

    The HIP will be implemented either by means of Pub. L. 93-638 
contracts with the tribes, or administered directly by BIA, according to 
the HIP plans and priority of the tribe served. The HIP consists of two 
parts: Receipt, review, and screening of applications

[[Page 616]]

submitted by Indians for housing assistance, determination of 
eligibility, and development of applicant priority lists; and design, 
construction, and repair/renovation of dwelling units. The 
implementation of HIP will be accomplished as follows:
    (a) Develop and maintain a consistent and valid tribal inventory of 
needs.
    (b) Select families and/or individuals for assistance. To accomplish 
this task:
    (1) A current inventory of HIP applicants shall be developed.
    (2) All HIP applications shall be received, reviewed, and screened.
    (3) The BIA will ensure that HIP applications contain adequate 
information to determine eligibility. At a minimum, each application 
must include the information required in Sec. 256.6, i.e., name, family 
size, income, and financial status, condition of present housing, the 
type of housing assistance requested (Category A, B, C or D).
    (4) A determination shall be made as to which HIP applicants are 
eligible to receive assistance and a priority list of applicants 
developed in accordance with the HIP Selection Criteria under 
Sec. 256.7.
    (5) The type of assistance to be provided each selected applicant, 
the estimated cost, and construction schedule thereof shall be 
determined.
    (c) Applicant case file. A case file shall be kept on each approved 
applicant. The case file shall contain at a minimum:
    (1) Tribal enrollment information.
    (2) The condition of existing housing.
    (3) Family size and composition.
    (4) Income.
    (5) Evidence of the inability of the applicant to secure housing 
from other sources.
    (6) Evidence that the applicant has not received HIP assistance 
after October 1, 1986.

The case file shall become a part of the record and must be retained for 
at least three years after the completion of the project.
    (d) Construction work plan--Repair and renovation of existing 
housing or construction of new housing. A work plan shall be prepared 
specifying, by HIP Categories, the number of housing units to be 
repaired, renovated or built new. The repair, renovation, and new 
housing construction work shown on the plan must be consistent with the 
housing assistance work specified on the priority list for each 
applicant. The plan shall include the following:
    (1) Category A Nonstandard Repairs. This category shall include a 
description of each repair to be performed, the cost estimate for each 
repair, the location of each unit to be repaired, a schedule, and the 
name of each applicant that is receiving this assistance.
    (2) Category B Standard Repairs and Category D New Housing. This 
category shall include location of each unit to be repaired or built 
new, and the names of applicants to receive these units. In addition, 
for Category B repairs and Category D new housing, the plan shall also 
include preliminary drawings, specifications, cost estimates, and a 
phased construction schedule for each unit to be repaired, renovated, or 
built new. Drawings should fix and illustrate what is required to repair 
or build new houses by providing, when applicable: A design, elevations, 
unit and room total square feet, general construction, placement of 
heating mechanical, electrical, and utility systems, site layout for 
grading and utility distribution. Specifications should describe clearly 
the scope of work to repair or build a new house, the workmanship 
involved, and a statement describing the quality of materials.
    (3) Category C Down Payments. This category shall include a 
description and location of the house to be purchased, verification of 
the applicant's intent to purchase a standard house, the sale price of 
the house, and a verification by the lender as to the amount of down 
payment and closing costs required for the applicant to qualify for the 
loan.
    (e) Construction start and completion dates. An anticipated 
construction start and completion date for each repair and new 
construction project to be performed shall be established. The 
construction start time should consider such factors as weather, 
location, family participation, availability of materials, and site 
preparation. All HIP recipients listed on the priority list must be 
notified of the work to be performed.

[[Page 617]]

    (f) Applicable codes. Depending upon the type of construction 
involved, the appropriate local codes will be followed. If local codes 
are not available, applicable State or National codes will be followed.
    (g) Reporting requirements. Quarterly reports shall be prepared on 
construction work undertaken and expenditures related to that 
construction work. The quarterly reports are due on the 15th day after 
the end of each calendar quarter, and shall contain for each HIP grant, 
at a minimum:
    (1) Name of grantee.
    (2) Date of construction start.
    (3) Date of completion.
    (4) Cost.
    (h) The HIP will serve those eligible applicants on an approved 
priority list. Design, construction, and repair of dwelling units may be 
accomplished through:
    (1) Direct grants to individual applicants.
    (2) Contracts or grant agreements with Indian tribes.
    (3) Contracts with private Indian or non-Indian contracting firms in 
accordance with normal BIA contract procedures; or
    (4) Programs administered directly by the BIA.



Sec. 256.9  Inspections.

    (a) The BIA is responsible for inspection or the assurance that 
there is adequate provision for inspection by BIA employees, 
contractors, or subcontractors during the course of construction. The 
BIA shall have access at all reasonable times to work under contract for 
monitoring and inspection.
    (b) Final payment for work performed will not be made until a final 
inspection is conducted by the BIA, and a determination is made that the 
work complies with all contract requirements.



Sec. 256.10  Appeals.

    Actions taken by BIA officials may be appealed pursuant to part 2 of 
this chapter.



Sec. 256.11  Flood disaster protection.

    No HIP funds, under Categories in paragraphs (b), (c), and (d) of 
Sec. 256.4, will be expended in areas designated as having special flood 
hazards under the Flood Disaster Protection Act of 1973 (Pub. L. 93-234, 
87 Stat. 977), unless the requirements for suitable flood insurance are 
met.



Sec. 256.12  Information collection.

    The information collection requirements contained in Sec. 256.5 have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. and assigned clearance number 1076-0084. The information 
will be used to determine eligibility to participate in the HIP. 
Individuals who wish to participate in the HIP must contact the tribe in 
whose jurisdiction they reside, or the BIA office closest to their 
residence. Eligibility is determined based upon the criteria listed in 
Sec. 256.6. Response is required to obtain a benefit. Public reporting 
burden for this form is estimated to average thirty minutes per 
response, including the time for reviewing instructions, gathering and 
maintaining data, and completing and reviewing the form.

  Appendix A to Part 256--Summary of Selection Criteria--Point Schedule 
------------------------------------------------------------------------
                      If applicant is                            Add    
------------------------------------------------------------------------
Factor No. 1: Income (Up to 40 points):                                 
  At or below 125% of Poverty Income Guidelines............           10
  Between 100% and 76% of Poverty Income Guidelines........           20
  Between 75% and 51% of Poverty Income Guidelines.........           30
  At or below 50% of Poverty Income Guidelines.............           40
                                                                        
------------------------------------------------------------------------
                      If applicant is                           Deduct  
                                                                        
------------------------------------------------------------------------
Deduction Schedule for Income in Excess of Poverty Income               
 Guidelines (Maximum deduction of 40 points):                           
  Over 125% of Poverty Income Guidelines...................            0
  At or over 150% of Poverty Income Guidelines.............          -10
  At or over 175% of Poverty Income Guidelines.............          -20
  At or over 200% of Poverty Income Guidelines.............          -30
  201% to 224% of Poverty Income Guidelines................          -40
                                                                        
------------------------------------------------------------------------
                                                                 Add    
                                                                        
------------------------------------------------------------------------
Factor No. 2: Family Size (5 points per dependent child):               
  Single applicant, no children............................            0
  Single applicant, one child..............................            5
  Married couple, no children..............................            0
  Married couple, one child................................            5
  Married or single, each additional child.................            5

[[Page 618]]

                                                                        
Factor No. 3: Overcrowded Conditions (Add up to 10 Points):             
  Contiguous 48 States--Depending upon the circumstances                
   and the degree of overcrowding, as well as the family                
   structure, the committee reviewing HIP applications can              
   award as little as 1 point, or as many as 10 points, for             
   overcrowding.                                                        
                                                                        
------------------------------------------------------------------------
          Alternative Point System for Alaska only               Add    
                                                                        
------------------------------------------------------------------------
0-50 square feet per person................................           10
51-100 square feet per person..............................            8
101-150 square feet per person.............................            6
151-200 square feet per person.............................            4
201-300 square feet per person.............................            2
                                                                        
Factor No. 4: Age (Add up to 21 points) (See Appendix B):               
    Age 55 and older, one point per year up to 75 years.                
    Single Elderly, living alone = 150% of Elderly                      
     schedule.                                                          
Factor No. 5: Handicapped and Disabled (Add up to 20                    
 points):                                                               
    Points will be awarded based upon extent of disability.             
Factor No. 6: HUD/IHA Financed Houses (Deduct 30 Points).               
------------------------------------------------------------------------


             Appendix B to Part 256--HIP Selection Criteria             
                           [Factor No. 4--Age]                          
------------------------------------------------------------------------
                                          Family member-- Living alone--
                   Age                       100%; Add       150%; Add  
                                              points          points    
------------------------------------------------------------------------
55......................................               1               2
56......................................               2               3
57......................................               3               5
58......................................               4               6
59......................................               5               8
60......................................               6               9
61......................................               7              11
62......................................               8              12
63......................................               9              14
64......................................              10              15
65......................................              11              17
66......................................              12              18
67......................................              13              20
68......................................              14              21
69......................................              15              23
70......................................              16              24
71......................................              17              26
72......................................              18              27
73......................................              19              29
74......................................              20              30
75 & Over...............................              21              32
------------------------------------------------------------------------


[[Page 619]]



                   SUBCHAPTER L--HERITAGE PRESERVATION





PART 262--PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents




Sec.
262.1  Purpose, scope and information collection.
262.2  Definitions.
262.3  Consultation to determine need for a permit.
262.4  Activities by Indian tribes or individuals that require a permit.
262.5  Application for permits.
262.6  Landowner consent by the Secretary.
262.7  Notice to Indian tribes of possible harm to cultural or religious 
          sites.
262.8  Custody of archaeological resources.

    Authority: 16 U.S.C. 470aa-11.

    Cross Reference: For uniform regulations issued by the Departments 
of Agriculture, Defense, and the Interior and the Tennessee Valley 
Authority pertaining to the protection of archaeological resources, and 
for supplemental regulations issued by the Department of the Interior 
pertaining to the same, see 43 CFR part 7, subparts A and B.

    Source: 58 FR 65249, Dec. 13, 1993, unless otherwise noted.



Sec. 262.1  Purpose, scope and information collection.

    (a) Purpose and scope. The purpose of this part is to implement 
certain provisions of the Archaeological Resources Protection Act (Act) 
of 1979 (16 U.S.C. 470aa-11), in accordance with section 10(b) and 
consistent with uniform regulations promulgated under section 10(a) by 
the Secretaries of the Interior, Agriculture, and Defense and the 
Chairman of the Board of the Tennessee Valley Authority (43 CFR part 7, 
36 CFR part 296, 32 CFR parts 229 and 1312) on February 6, 1984. This 
part shall provide guidance to officials of the Bureau of Indian Affairs 
(BIA) on the implementation of the Act as it pertains to this agency.
    (b) Information collection. The information collection requirements 
contained in Sec. 262.5 do not require approval by the Office of 
Management and Budget under 44 U.S.C. 3501 et seq.



Sec. 262.2  Definitions.

    As used for purposes of this part:
    (a) Funerary objects means objects that, as a part of the death rite 
or ceremony of a culture, are reasonably believed to have been placed 
with human remains of Indians either at the time of death or later, or 
to have been made exclusively for burial purposes or to contain such 
remains.
    (b) Sacred objects means specific ceremonial objects that are needed 
by traditional Indian religious leaders for the practice of traditional 
Indian religions by their present day adherents.
    (c) Object of cultural patrimony means an object having ongoing 
historical, traditional, or cultural importance central to an Indian 
tribe itself and that shall have been considered inalienable by the 
tribe at the time the object was separated therefrom.
    (d) Indian individual means:
    (1) Any person who is an enrolled member of a Federally recognized 
Indian tribe;
    (2) Any person who is a descendent of such a member and was, on June 
1, 1934, physically residing within the present boundaries of any Indian 
reservation; or
    (3) Any other person of one-half or more Indian blood of tribes 
indigenous to the United States.
    (e) Lands of Indian tribes means land or any interest therein:
    (1) The title to which is held in trust by the United States for an 
Indian tribe; or
    (2) The title to which is held by an Indian tribe, but which cannot 
be alienated or encumbered by the owner without the approval of the 
Secretary because of limitations contained in the conveyance instrument 
pursuant to Federal law or because of a Federal law directly imposing 
such restrictions.
    (f) Lands of Indian individuals means land or any interest therein:
    (1) The title to which is held in trust by the United States for the 
benefit of Indian individuals; or
    (2) The title to which is held by Indian individuals, but which 
cannot be alienated or encumbered by the owner without the approval of 
the Secretary because of limitations contained in the conveyance 
instrument pursuant to Federal law or because of a Federal law directly 
imposing such restrictions.

[[Page 620]]



Sec. 262.3  Consultation to determine need for a permit.

    (a) Any person, except as provided in the uniform regulations at 43 
CFR 7.5(b) through (d), who proposes to excavate or remove 
archaeological resources on Indian lands or on properties owned or 
administered by the BIA must first apply for and secure a permit under 
the Act. Procedures relating thereto are set forth in Sec. 262.5 of this 
part.
    (b) No permit under the Act, nor any other Federally issued license 
or authorization, is required for archaeological investigations that do 
not involve the excavation or removal of archaeological resources on 
these lands, except for BIA consent on properties that it owns or 
administers. Notwithstanding, persons other than those covered under 43 
CFR 7.5(b) through (d) shall, before engaging in such investigations:
    (1) Write to the head of each tribal government having jurisdiction 
over the lands where investigations are to be conducted and request that 
he or she provide, within 30 days, written information on any permit, 
license or other form of authorization the tribe might require for the 
work proposed; and
    (2) Provide the BIA Area Director with a copy of the tribe's written 
response (or a copy of the request to the tribe if 30 days have elapsed 
without any response) plus a brief but clear written description of the 
proposed work and obtain his or her written determination as to whether 
or not a permit under the Act is required. Area Directors shall provide 
determinations within 10 working days after receiving such 
documentation.



Sec. 262.4  Activities by Indian tribes or individuals that require a permit.

    (a) No Indian tribe may, without a permit under the Act, excavate or 
remove archaeological resources on:
    (1) Lands of another Indian tribe; or
    (2) Lands of Indian individuals, except those on which the law of 
that tribe regulates such activity.
    (b) No individual Indian may, without a permit under the Act, 
excavate or remove archaeological resources on any Indian lands 
(including his or her own) other than those on which the law of the 
tribe of which he or she is a member regulates such activity.
    (c) No person, as an employee, consultant, advisor or in any other 
capacity as an agent for any Indian tribe, shall be exempt from the 
permit requirements of the Act, except in the cases listed below:
    (1) No permit shall be required if a person is a member of the tribe 
having jurisdiction over the resources in question and the law of that 
tribe regulates the excavation or removal of archaeological resources on 
its lands.
    (2) Tribal employees need not submit permit applications to the BIA 
if:
    (i) The proposed excavation or removal of archaeological resources 
is within the normal scope of their duties or otherwise carried out by 
direction of the tribal government;
    (ii) The work is on Indian lands of the tribe or on which the law of 
that tribe regulates the excavation or removal of archaeological 
resources;
    (iii) The tribe ensures that the provisions for permit issuance in 
this part and at 43 CFR part 7 have been met by other documented means; 
and
    (iv) Before beginning the work, the tribe notifies the Area Director 
about the nature and location of the proposed work and allows 10 working 
days after mailing a notification or 5 working days after an oral 
notification (provided this is documented) for the Area Director to 
respond. The Area Director need only respond when action is required 
under Sec. 262.7 of this part, and may do so either in writing or, if 
documented, orally.
    (3) Consultants, advisors, and others serving by contractual 
agreement as agents for Indian tribes may use the provisions in 
Sec. 262.5(f) of this part to expedite the process of obtaining a 
permit.
    (4) Persons serving as agents for Indian tribes as employees or by 
contractual agreement may abbreviate the consultation required in 
Sec. 262.3(b) of this part by disregarding the requirement to consult 
first with the tribe and, provided the communication is documented, by 
consulting with the Area Director orally. In these cases, the Area 
Director need only respond when a permit is deemed necessary and may do 
so either orally or in writing. If

[[Page 621]]

a response is not received within 3 working days after an oral 
description of the proposed work is made or within 7 working days after 
a written description is mailed to the Area Director, the work may 
proceed.



Sec. 262.5  Application for permits.

    (a) Permits from the BIA shall be issued when an applicant meets the 
requirements set out in 43 CFR 7.8, and may be conditioned, modified, 
suspended, or revoked by the Area Director. Area Directors may delegate 
this authority to Agency Superintendents, but only on a permit-by-permit 
basis and only to those who have adequate professional support 
available.
    (b) Prospective applicants may obtain details on how to apply for a 
permit by contacting the Area Director, at BIA Area Offices in: 
Aberdeen, SD; Albuquerque, NM; Anadarko, OK; Arlington, VA; Billings, 
MT; Gallup, NM; Juneau, AK; Minneapolis, MN; Muskogee, OK; Phoenix, AZ; 
Portland, OR; or Sacramento, CA; or by writing to the Deputy 
Commissioner of Indian Affairs, Department of the Interior, Washington, 
DC 20240.
    (c) Permit applications proposing the excavation or removal of 
archaeological resources on Indian lands shall include the following 
consent documents:
    (1) Written permission from the Indian landowner and from the tribe, 
if any, having jurisdiction over those lands. This must contain such 
terms and conditions as the landowner or tribe may request be included 
in the permit. Where the permission is from a tribe, it should either 
state that no religious or cultural site will be harmed or destroyed by 
the proposed work or specify terms and conditions that the permit must 
include in order to safeguard against such harm or destruction.
    (i) For lands of Indian tribes, permission must be granted by the 
tribe.
    (ii) For lands of Indian individuals not under tribal jurisdiction, 
permission must be granted by the owner(s), except as provided in 
Sec. 262.6.
    (iii) For lands of Indian individuals under tribal jurisdiction, 
permission must be granted by both the owner(s), except as provided in 
Sec. 262.6, and the tribe having such jurisdiction. Where an applicant 
is the owner, consent must still be obtained from the tribe.
    (iv) Where the ownership of lands of Indian individuals is multiple, 
permission must be granted by the owners of a majority of interests, 
except as provided in Sec. 262.6. The same shall apply where the 
applicant is one of the owners.
    (v) Where the terms and conditions a tribe or landowner requests be 
included in a permit are in conflict with the provisions of this or any 
other Act, with Federal regulations, or with each other, the Area 
Director may negotiate with the requestor to eliminate the conflict. If 
the conflict remains, the permit may not be issued.
    (2) Copies of any permits required by tribal law for archaeological 
work on lands under tribal jurisdiction. This may serve as written 
consent from the tribe for the purposes of Sec. 262.5(c)(1).
    (3) Written agreement by the Indian landowner(s) to release 
archaeological resources for curation or study, as specified in 
Sec. 262.8(b).
    (d) Permits issued by the BIA shall include the following or similar 
condition: ``Human remains of Indians, funerary objects, sacred objects, 
and objects of cultural patrimony may not be excavated or removed unless 
the permittee has obtained the written consent of the Area Director. In 
order to obtain consent, the permittee shall present to the Area 
Director written evidence of prior consultation with the appropriate 
Indian tribe. If the lands containing the remains or objects are tribal 
lands, the permittee shall first obtain the written consent of the tribe 
having jurisdiction over the lands.'' Determination as to which tribe is 
the appropriate tribe shall be made in accordance with Sec. 262.8(a). 
Area Director consent shall be based on the scientific appropriateness 
of the research objectives and provisions for recovery, recording, and 
analysis and may, if documented, be oral. This condition may be omitted 
from the permit when such excavation or removal is proposed, and the 
requirements of the condition are met, in the permit application.
    (e) Information and assistance in contacting Indian tribes and 
individual Indian landowners for the purpose of

[[Page 622]]

requesting the consent documents listed under paragraph (c) of this 
section or of seeking the consultation and consent required under 
paragraph (d) of this section may be obtained from the BIA office to 
which the permit application is submitted.
    (f) Contractual agreements with the BIA or Indian tribes and permits 
issued by Indian tribes may be accepted as support documents for permit 
applications. They may also double as permit documents, if they 
demonstrate that the provisions for permit issuance in this part and at 
43 CFR part 7 have been met and they are attached to a Department of the 
Interior permit form. This form must be signed by the Area Director, but 
need only contain the following or similar statement: ``This permit is 
issued to the person(s) named, and in accordance with the terms and 
conditions in the attached (contractual agreement/tribal permit).''
    (g) Area Directors shall respond to permit applications within 15 
working days of receipt.



Sec. 262.6  Landowner consent by the Secretary.

    The Secretary of the Interior, or delegate thereof, may, on behalf 
of the owner(s) of lands of Indian individuals, grant consent for the 
purposes in Sec. 262.5(c)(1) and (3) when the Secretary or his or her 
delegate finds that such consent will not result in any injury to the 
land or owner(s) and when one or more of the following conditions exist:
    (a) The owner is a minor or a person non compos mentis;
    (b) The heirs or devisees of a deceased owner have not been 
determined;
    (c) The whereabouts of the owner are unknown;
    (d) Multiple owners are so numerous that the Secretary or his or her 
delegate finds, after documenting his or her efforts to do so, that it 
would be impractical to obtain their consent, as prescribed in 
Sec. 262.5(c)(1)(iv) and provided the Secretary or his or her delegate 
also notifies, in writing, the tribe, if any, having jurisdiction over 
the land and allows 15 working days from the date of mailing date for 
response; or
    (e) The owner has given the Secretary or his or her delegate written 
authority to grant such consent on his or her behalf.



Sec. 262.7  Notice to Indian tribes of possible harm to cultural or religious sites.

    When consent by an Indian tribe to proposed excavation or removal of 
archaeological resources from Indian lands it owns or over which it has 
jurisdiction contains all of the information written as prescribed and 
advised in Sec. 262.5(c)(1), it may be taken to mean that subject to 
such terms and conditions as the tribe might specify, issuance of a 
permit for the proposed work will not result in harm to, or destruction 
of, any site of religious or cultural importance. No further 
notification is necessary, unless the Area Director has reason to 
believe that the proposed work might harm or destroy a site of religious 
or cultural importance to another tribe or Native American group. He or 
she shall then follow the notification procedures at 43 CFR 7.7. Those 
procedures must also be followed when proposed work might affect lands 
of Indian individuals over which there is no tribal jurisdiction or 
public lands owned or administered by the BIA.



Sec. 262.8  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from Indian lands, 
except for human remains of Indians, funerary objects, sacred objects 
and objects of cultural patrimony, remain the property of the Indian 
tribe or individual(s) having rights of ownership over such lands. 
Ownership and right of control over the disposition of the excepted 
items shall be in accordance with the order of priority provided in the 
Native American Graves Protection and Repatriation Act (Pub. L. 101-
601), adapted for the purpose of this rule as follows:
    (1) In the case of human remains of Indians and funerary objects, in 
the lineal descendants of the Indian; or
    (2) In any case in which such lineal descendants cannot be 
ascertained, and in the case of sacred objects and objects of cultural 
patrimony:

[[Page 623]]

    (i) In the Indian tribe on whose tribal lands, or on the individual 
Indian lands of whose members, such remains or objects are discovered;
    (ii) In the Indian tribe recognized as aboriginally occupying the 
public lands owned or administered by the BIA on which such remains or 
objects are discovered, if upon notice, that tribe states a claim for 
those remains or objects; or
    (iii) Where it can be so demonstrated by a preponderance of 
evidence, in the tribe other than that in paragraph (a)(2)(i) or (ii) of 
this section having the strongest cultural relationship with such 
remains or objects, if, upon notice, that tribe states a claim for those 
remains or objects.
    (iv) The Area Director shall provide the required notice to any 
Indian tribe identified under paragraph (a)(2)(ii) or (iii) of this 
section, in writing, within 5 working days after such identification has 
been documented and confirmed, and shall at the same time submit a copy 
of the notice for publication in the Federal Register. This notice shall 
include a description of the remains or objects; of where, how, and why 
they were excavated or removed; and of the evidence used to identify the 
tribe being notified. The remains or objects in question shall be 
considered the property of the pertinent tribe under paragraph (a)(2)(i) 
of this section or, in the case of paragraph (a)(2)(ii) of this section, 
held and administered by the BIA until or unless a claim is stated.
    (b) No permit for the excavation or removal of archaeological 
resources on Indian lands may be issued without the written consent of 
the Indian landowner(s) either to grant custody of the resources 
recovered (other than human remains of Indians, funerary objects, sacred 
objects or objects of cultural patrimony) to a curatorial facility that 
meets the requirements of 36 CFR part 79 or to allow the permittee a 
reasonable period of time to hold or have ready access to them at an 
appropriate location for study. The excepted remains and objects are 
covered under Sec. 262.5(d) of this part which, in general, permits 
their excavation or removal only when the research objectives and 
provisions for recovery, recording, and analysis are scientifically 
appropriate. Written consent to custody by a curatorial facility may 
include terms and conditions regarding curation (e.g., cleaning, 
viewing, loaning, studying, etc.), provided these are consistent with 36 
CFR part 79.
    (1) On lands of Indian tribes, consent must be obtained from the 
tribe.
    (2) On lands of Indian individuals, consent must be obtained from 
the owner of the land or the owners of a majority of interests therein, 
except as provided in Sec. 262.6.
    (3) Where consent is by the owners of a majority of interests, it 
must, if the archaeological resources are to be retained by or returned 
after study to the interest holders, designate a representative to 
receive those resources. Whether and how these are subsequently 
distributed among themselves is a matter for the interest holders to 
decide.
    (c) The Area Director may, after notifying the tribe (if any) having 
jurisdiction over such lands and allowing 15 working days for response, 
decline to issue a permit for lands of Indian individuals if he or she 
has any verifiable reason to believe that archaeological resources 
retained by the landowner(s) after being studied will be sold or 
exchanged other than to the tribe having jurisdiction or to a curatorial 
facility that meets the requirements of 36 CFR part 79. The basis for 
decline shall be that excavation or removal of resources under such 
circumstances would not be in the public interest and would thus be 
contrary to the purposes of the Act.
    (d) The landowner(s) alone may grant custody of archaeological 
resources (except for human remains, funerary objects, sacred objects 
and objects of cultural patrimony, which are subject to the provisions 
of paragraph (a) of this section) excavated or removed from lands of 
Indian individuals that are under tribal jurisdiction to a curatorial 
facility that meets the requirements of 36 CFR part 79. When, however, 
such consignment constitutes the ultimate disposition of these 
resources, the tribe having jurisdiction must also grant its consent. 
Any subsequent exchange or disposition by the facility

[[Page 624]]

must have the consent of both the landowner(s) and the tribe.



PART 265--ESTABLISHMENT OF ROADLESS AND WILD AREAS ON INDIAN RESERVATIONS--Table of Contents




Sec.
265.1  Definition of roadless area.
265.3  Roads prohibited.

    Cross Reference: For general regulations pertaining to the 
construction of roads, see part 170 of this chapter.



Sec. 265.1  Definition of roadless area.

    A roadless area has been defined as one which contains no provision 
for the passage of motorized transportation and which is at least 
100,000 acres in extent. Under this definition the Secretary of the 
Interior ordered (3 FR 609, Mar. 22, 1938) certain roadless areas 
established on Indian reservations. The following is the only presently 
existing roadless area:

Name of area--Wind River Reserve.
Reservation--Shoshone.
State--Wyoming.
Approximate acreage--180,387

    (a) The boundaries of the Wind River Reserve roadless area are as 
follows:

                        Wind River Meridian, Wyo.

    Starting at the SW corner of sec. 22, T. 2 S., R. 3 W., on the south 
boundary of the Wind River Indian Reservation, thence north six (6) 
miles to the NE corner of sec. 28, T. 1 S., R. 3 W., thence west three 
(3) miles to the SW corner of sec. 19, T. 1 S., R. 3 W., thence north 
four (4) miles along range line to the Wind River Base Line, thence west 
one (1) mile along Wind River Base Line to the SW corner of Sec. 36, T. 
1 N., R. 4 W., thence north six (6) miles to the NW corner of sec. 1, T. 
1 N., R. 4 W., thence west five (5) miles along township line to the NE 
corner of sec. 1, T. 1 N., R. 5 W., thence north four and one-half (4\1/
2\) miles along range line to the NE corner of the SE \1/4\ of sec. 12, 
T. 2 N., R. 5 W., thence west one and one-half (1\1/2\) miles to the 
center of sec. 11, T. 2 N., R. 5 W., thence on a straight line in a 
northwesterly direction to the top of Bold Mountain, thence on a 
straight line to the SE corner of sec. 35, T. 4 N., R. 6 W., thence west 
one (1) mile along township line to the SW corner of sec. 35, T. 4 N., 
R. 6 W., thence north two (2) miles to the NW corner of sec. 26, T. 4 
N., R. 6 W., thence on a straight line in a northwesterly direction to 
the point where the north line of sec. 15, T. 4 N., R. 6 W. intersects 
the west boundary of the reservation, thence south, southeasterly and 
east along the reservation boundary to point of beginning.

(5 U.S.C. 301)

[30 FR 9813, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]



Sec. 265.3  Roads prohibited.

    (a) Within the boundaries of this officially designated roadless 
area it will be the policy of the Interior Department to refuse consent 
to the construction or establishment of any routes passable to motor 
transportation, including in this restriction highways, roads, truck 
trails, work roads, and all other types of ways constructed to make 
possible the passage of motor vehicles either for transportation of 
people or for the hauling of supplies and equipment, unless the 
requirements of fire protection, commercial use for the Indians' benefit 
or actual needs of the Indians clearly demand otherwise.
    (b) Foot trails and horse trails are not barred. The Superintendent 
of the Wind River Reservation on which this roadless area has been 
established will be held strictly accountable for seeing that the area 
is maintained in a roadless condition. Elimination of this area or any 
part thereof from the restriction of this order will be made only upon a 
written showing of an actual and controlling need.

(5 U.S.C. 301)

[30 FR 9814, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30, 1982]

    Cross Reference: For rights-of-way for highways over Indian lands, 
see part 169 of this chapter.

[[Page 625]]



  SUBCHAPTER M--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT 
                                 PROGRAM





PART 273--EDUCATION CONTRACTS UNDER JOHNSON-O'MALLEY ACT--Table of Contents




                      Subpart A--General Provisions

Sec.
273.1  Purpose and scope.
273.2  Definitions.
273.3  Revision or amendment of regulations.
273.4  Policy of maximum Indian participation.

                     Subpart B--Application Process

273.11  Eligible applicants.
273.12  Eligible students.
273.13  Proposals eligible for contracts.
273.14  Preparing the education plan.
273.15  Establishment of Indian Education Committee.
273.16  Powers and duties of Indian Education Committee.
273.17  Programs approved by Indian Education Committee.
273.18  Additional requirements for education plan.
273.19  Obtaining application forms.
273.20  Content of application to contract.
273.21  Tribal request for contract.
273.22  Application approval officials.
273.23  Submitting application to Area Office.
273.24  Area Office review and decision.
273.25  Deadline for Area Office action.
273.26  Submitting application to Central Office.
273.27  Central Office review and decision.
273.28  Deadline for Central Office action.
273.29  Negotiating the contract.

                      Subpart C--Funding Provisions

273.31  Distribution formula.
273.32  Pro rata requirement.
273.33  Use of funds for operational support.
273.34  Use of other Federal, State and local funds.
273.35  Capital outlay or debt retirement.
273.36  Eligible subcontractors.
273.37  Use of funds outside of schools.
273.38  Equal quality and standard of education.

                Subpart D--General Contract Requirements

273.41  Special program provisions to be included in contract.
273.42  Civil Rights Act violations.
273.43  Advance payments.
273.44  Use and transfer of Government property.
273.45  Indian preference.
273.46  Liability and motor vehicle insurance.
273.47  Recordkeeping.
273.48  Audit and inspection.
273.49  Freedom of information.
273.50  Annual reporting.
273.51  Penalties.
273.52  State school laws.
273.53  Applicable procurement regulations.
273.54  Privacy Act requirements.

              Subpart E--Contract Revision or Cancellation

273.61  Contract revision or amendment.
273.62  Cancelling a contract for cause.

                           Subpart F--Appeals

273.71  Contract appeal.
273.72  Appeal from decision to cancel contract for cause.
273.73  Other appeals.

    Authority: Secs. 201-203, Pub. L. 93-638, 88 Stat. 2203, 2213-2214 
(25 U.S.C. 455-457), unless otherwise noted.

    Source: 40 FR 51303, Nov. 4, 1975, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 273.1  Purpose and scope.

    (a) The purpose of the regulations in this part is to set forth the 
application and approval process for education contracts under the 
Johnson-O'Malley Act. Such contracts shall be for the purpose of 
financially assisting those efforts designed to meet the specialized and 
unique educational needs of eligible Indian students, including programs 
supplemental to the regular school program and school operational 
support, where such support is necessary to maintain established State 
educational standards.
    (b) The application and approval process in this part applies 
specifically to contracts with a State, school district, or Indian 
corporation.
    (c) Contracts with tribal organizations for supplemental and 
operational support will be entered into only upon the request of an 
Indian tribe(s), and

[[Page 626]]

shall be subject to the provisions of part 271 of this chapter and 41 
CFR part 14H-70, except as provided in Sec. 273.11.
    (d) Nothing in these regulations shall be construed as:
    (1) Affecting, modifying, diminishing, or otherwise impairing the 
sovereign immunity from suit enjoyed by an Indian tribe;
    (2) Authorizing or requiring the terminiation of any existing trust 
responsibility of the United States with respect to the Indian people; 
or,
    (3) Permitting significant reduction in services to Indian people as 
a result of this part.
    (e) Nothing in these regulations shall be construed to mandate an 
Indian tribe to request a contract or contracts. Such requests are 
strictly voluntary.



Sec. 273.2  Definitions.

    As used in this part:
    (a) ``Area Director'' means the official in charge of a Bureau of 
Indian Affairs Area Office.
    (b) ``Bureau'' means the Bureau of Indian Affairs.
    (c) ``Commissioner'' means the Commissioner of Indian Affairs, under 
the direction and supervision of the Assistant Secretary--Indian 
Affairs, who is responsible for the direction of day-to-day operations 
of the Bureau of Indian Affairs.
    (d) ``Days'' means calendar days.
    (e) ``Economic enterprise'' means any commercial, industrial, 
agricultural, or business activity that is at least 51 percent Indian 
owned, established or organized for the purpose of profit.
    (f) ``Education plan'' means a comprehensive plan for the 
programmatic and fiscal services of and accountability by a contractor 
for the education of eligible Indian students under this part.
    (g) ``Indian tribe'' means any Indian tribe, band, nation, 
rancheria, pueblo, colony or community, including any Alaska Native 
village or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which 
is federally recognized as eligible by the U.S. Government through the 
Secretary for the special programs and services provided by the 
Secretary to Indians because of their status as Indians.
    (h) ``Indian corporation'' means a legally established organization 
of Indians chartered under State or Federal law and which is not 
included within the definition of ``tribal organization'' given in 
paragraph (v) of this section.
    (i) ``Indian Education Committee'' means one of the entities 
specified by Sec. 273.15.
    (j) ``Indian'' means a person who is a member of an Indian tribe.
    (k) ``Johnson-O'Malley Act'' means the Act of April 16, 1934 (48 
Stat. 596), as amended by the Act of June 4, 1936 (49 Stat. 1458, 25 
U.S.C. 452-456), and further amended by the Act of January 4, 1975 (88 
Stat. 2203).
    (l) ``Operational support'' means those expenditures for school 
operational costs in order to meet established State educational 
standards or State-wide requirements.
    (m) ``Pub. L. 93-638'' means the Indian Self-Determination and 
Education Assistance Act (Pub. L. 93-638; 88 Stat. 2203).
    (n) ``Previously private school'' means a school (other than a 
Federal school formerly operated by the Bureau) that is operated 
primarily for Indian students from age 3 years through grades 12; and, 
which at the time of application is controlled, sanctioned, or chartered 
by the government body(s) of an Indian tribe(s).
    (o) ``Reservation'' or ``Indian reservation'' means any Indian 
tribe's reservation, pueblo, colony, or rancheria, including former 
reservations in Oklahoma, Alaska Natives regions established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688), and Indian 
allotments.
    (p) ``School district'' or ``local education agency'' means that 
subdivision of the State which contains the public elementary and 
secondary educational institutions providing educational services and is 
controlled by a duly elected board, commission, or similarly constituted 
assembly.
    (q) ``Secretary'' means the Secretary of the Interior.
    (r) ``State'' means a State of the United States of America or any 
political subdivision of a State.

[[Page 627]]

    (s) ``Superintendent'' means the official in charge of a Bureau of 
Indian Affairs Agency Office.
    (t) ``Supplemental programs'' means those programs designed to meet 
the specialized and unique educational needs of eligible Indian students 
which may have resulted from socio-economic conditions of the parents, 
from cultural or language differences or other factors, and as provided 
by Sec. 273.34(b).
    (u) ``Tribal government,'' ``tribal governing body'' and ``tribal 
Council'' means the recognized governing body of an Indian tribe.
    (v) ``Tribal organization,'' means the recognized governing body of 
any Indian tribe or any legally established organization of Indians or 
tribes which is controlled, sanctioned, or chartered by such governing 
body or bodies, or which is democratically elected by the adult members 
of the Indian community to be served by such organization and which 
includes the maximum participation of Indians in all phases of its 
activities; Provided, That a request for a contract must be made by the 
Indian tribe that will receive services under the contract; Provided 
further, That in any case where a contract is let to an organization to 
perform services benefiting more than one Indian tribe, the approval of 
each such Indian tribe shall be a prerequisite to the letting of such 
contract.
    (w) ``Assistant Secretary--Indian Affairs'' means the Assistant 
Secretary--Indian Affairs who discharges the responsibility of the 
Secretary for activities pertaining to Indians and Indian Affairs.

[40 FR 51303, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976; 43 
FR 37445, Aug. 23, 1978; 45 FR 13451, Feb. 29, 1980]



Sec. 273.3  Revision or amendment of regulations.

    In order to make any substantive revision or amendments to 
regulations in this part, the Secretary shall take the following 
actions:
    (a) Consult with Indian tribes and national and regional Indian 
organizations to the extent practicable about the need for revision or 
amendment and consider their views in preparing the proposed revision or 
amendment.
    (b) Publish the proposed revisions or amendments in the Federal 
Register as proposed rulemaking to provide adequate notice to, and 
receive comments from, all interested parties.
    (c) After consideration of all comments received, publish the 
regulations in the Federal Register in final form not less than 30 days 
before the date they are made effective.
    (d) Annually consult with Indian tribes and national and regional 
Indian organizations about the need for revision or amendment, and 
consider their views in preparing the revision or amendment.
    (e) Nothing in this section shall preclude Indian tribes or national 
or regional Indian organizations from initiating request for revisions 
or amendments subject to paragraphs (a), (b), and (c) of this section.



Sec. 273.4  Policy of maximum Indian participation.

    The meaningful participation in all aspects of educational program 
development and implementation by those affected by such programs is an 
essential requisite for success. Such participation not only enhances 
program responsiveness to the needs of those served, but also provides 
them with the opportunity to determine and affect the desired level of 
educational achievement and satisfaction which education can and should 
provide. Consistent with this concept, maximum Indian participation in 
the development, approval and implementation of all programs contracted 
under this part shall be required.



                     Subpart B--Application Process



Sec. 273.11  Eligible applicants.

    (a) Any State, school district, tribal organization or Indian 
corporation is eligible to apply for contracts for supplemental or 
operational support programs. For the purposes of this part, previously 
private schools as defined in Sec. 273.2(n) are considered tribal 
organizations.
    (b) States, school districts, or Indian corporations shall apply for 
contracts for supplemental or operational support programs as required 
in this part.

[[Page 628]]

    (c) Tribal organizations must comply with the following requirements 
to obtain contracts for supplemental programs or operational support:
    (1) The application submitted by the tribal organization shall meet 
the requirements in Sec. 273.20 in addition to those in Sec. 271.14 of 
this chapter.
    (2) The requirements in Secs. 271.1 through 271.27, 271.41 through 
271.52, 271.54, 271.61 through 271.66, and 271.81 through 271.84 shall 
apply to such contracts with tribal organizations.
    (3) The provisions in Secs. 271.71 through 271.77 of this chapter 
concerning retrocession and reassumption of programs do not apply to a 
tribal organization retroceding a contract for supplemental programs or 
operational support as the Bureau does not operate education programs 
authorized to be contracted under the Johnson-O'Malley Act. However, the 
tribal organization may retrocede such a contract and the Bureau will 
then contract with a State, school district, or Indian corporation under 
this part for the supplemental programs or operational support.
    (4) The requirements in Secs. 273.12 through 273.18, 273.20, 273.21, 
273.31 through 273.38, 273.41, 273.51 and 273.52 shall apply to such 
contracts with tribal organizations.
    (5) The requirements in 41 CFR part 14H-70 shall apply to such 
contracts with tribal organizations.

[40 FR 51303, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976]



Sec. 273.12  Eligible students.

    Indian students, from age 3 years through grade(s) 12, except those 
who are enrolled in Bureau or sectarian operated schools, shall be 
eligible for benefits provided by a contract pursuant to this part if 
they are \1/4\ or more degree Indian blood and recognized by the 
Secretary as being eligible for Bureau services. Priority shall be given 
to contracts (a) which would serve Indian students on or near 
reservations and (b) where a majority of such Indian students will be 
members of the tribe(s) of such reservations (as defined in 
Sec. 273.2(o)).



Sec. 273.13  Proposals eligible for contracts.

    (a) Any proposal to contract for funding a program which meets the 
definition of a supplemental program given in Sec. 273.2(t) will be 
considered an eligible proposal under this part.
    (b)(1) To contract for operational support, a public school district 
shall be required to establish as part of the proposal that:
    (i) It cannot meet the applicable minimum State standards or 
requirements without such funds.
    (ii) It has made a reasonable tax effort with a mill levy at least 
equal to the State average in support of educational programs.
    (iii) It has fully utilized all other sources of financial aid, 
including all forms of State aid and Pub. L. 874 payments. The State aid 
contribution per pupil must be at least equal to the State average.
    (iv) There is at least 70 percent eligible Indian enrollment within 
the school district.
    (v) It shall clearly identify the educational needs of the students 
intended to benefit from the contract.
    (vi) It has made a good faith effort in computing State and local 
contributions without regard to contract funds pursuant to this part.
    (vii) It shall not budget or project a deficit by using contract 
funds pursuant to this part.
    (2) The requirements given in paragraph (b)(1) of this section do 
not apply to previously private schools.
    (c) At his discretion, the Commissioner may consider as eligible a 
proposal to contract under which a school district will be reimbursed 
for the full per capita costs of educating Indian students who meet all 
of the following:
    (1) Are members of recognized Indian tribes.
    (2) Do not normally reside in the State in which the school district 
is located.
    (3) Are residing in Federal boarding facilities for the purpose of 
attending public schools within the school district.

[[Page 629]]



Sec. 273.14  Preparing the education plan.

    A prospective contractor in consultation with its Indian Education 
Committee(s) shall formulate an education plan and submit it to the 
appropriate Area Director as a part of the application to contract 
required by Sec. 273.20. Such plan shall become a part of any contract 
awarded. The education plan shall contain:
    (a) The education programs approved by the Indian Education 
Committee(s) as required in Sec. 273.17.
    (b) Other requirements for the education plan given in Sec. 273.18.



Sec. 273.15  Establishment of Indian Education Committee.

    (a) When a school district to be affected by a contract(s) for the 
education of Indians pursuant to this part has a local school board not 
composed of a majority of Indians, the tribal governing body(s) of the 
Indian tribe(s) affected by the contract(s) under this part shall 
specify one of the following entities to serve as the Indian Education 
Committee for the purpose of this part:
    (1) An Indian Education committee to be elected from among the 
parents (including persons acting in loco parentis except school 
administrators or officials) of eligible Indian students enrolled in the 
school(s) affected by a contract(s) under this part; or
    (2) A local Indian committee established pursuant to section 
305(b)(2)(B)(ii) of the Act of January 23, 1972 (86 Stat. 235) and 
existing prior to January 4, 1975; or
    (3) An Indian advisory school board or Indian Education Committee 
established pursuant to the Johnson-O'Malley Act and existing prior to 
January 4, 1975.
    (b) When the local school board is not composed of a majority of 
Indians and the tribal governing body(s) of the Indian tribe(s) affected 
by a contract(s) under this part determine which of the entities 
provided for in paragraph (a) of this section is to serve as the Indian 
Education Committee for the purpose of this part, it shall notify the 
Area Director of such determination by January 15 preceding the school 
year for which the contract will be let.
    (c) The Indian Education Committee established under paragraph (a) 
of this section and its members shall establish procedures under which 
the Committee shall serve. Such procedures shall be set forth in the 
Committee's organizational documents and by-laws. Each Committee shall 
file a copy of its organizational documents and by-laws with the 
appropriate Area Director, together with a list of its officers and 
members as soon as practicable after the Committee is organized.
    (d) The existence of an Indian Education Committee shall not limit 
the continuing participation of the rest of the Indian community in all 
aspects of programs contracted under this part.



Sec. 273.16  Powers and duties of Indian Education Committee.

    (a) Consistent with the purpose of the Indian Education Committee, 
each such Committee shall be vested with the authority to:
    (1) Participate fully in the planning, development, implementation, 
and evaluation of all programs, including both supplemental and 
operational support, conducted under a contract or contracts pursuant to 
this part. Such participation shall include further authority to:
    (i) Recommend curricula, including texts, materials, and teaching 
methods to be used in the contracted program or programs.
    (ii) Approve budget preparation and execution.
    (iii) Recommend criteria for employment in the program.
    (iv) Nominate a reasonable number of qualified prospective 
educational programmatic staff members from which the contractor would 
be required to select.
    (v) Evaluate staff performance and program results and recommend 
appropriate action to the contractor.
    (2) Approve and disapprove all programs to be contracted under this 
part. All programs contracted pursuant to this part shall require the 
prior approval of the appropriate Indian Education Committee.
    (3) Secure a copy of the negotiated contract(s) which include the 
program(s) approved by the Indian Education Committee.

[[Page 630]]

    (4) Recommend to the Commissioner through the appropriate Bureau 
contracting officer cancellation or suspension of a contract(s) which 
contains the program(s) approved by the Indian Education Committee if 
the contractor fails to permit such Committee to exercise its powers and 
duties as specified by this section.
    (b) The organizational papers and by-laws of the Indian Education 
Committee may include additional powers and duties which would permit 
the Committee to:
    (1) Participate in negotiations concerning all contracts under this 
part.
    (2) Make an annual assessment of the learning needs of Indian 
children in the community affected.
    (3) Have access to all reports, evaluations, surveys, and other 
program and budget related documents determined necessary by the 
Committee to carry out its responsibilities, subject only to the 
provisions of Sec. 273.49.
    (4) Request periodic reports and evaluations regarding the Indian 
education program.
    (5) Hear grievances related to programs in the education plan.
    (6) Meet regularly with the professional staff serving Indian 
children and with the local education agency.
    (7) Hold committee meetings on a regular basis which are open to the 
public.
    (8) Have such additional powers as are consistent with these 
regulations.



Sec. 273.17  Programs approved by Indian Education Committee.

    (a) All programs contracted under this part shall:
    (1) Be developed and approved in full compliance with the powers and 
duties of the Indian Education Committee as set out in Sec. 273.16 and 
as may be contained in the Committee's organizational documents and by-
laws.
    (2) Be included as a part of the education plan provided for in 
Sec. 273.14.
    (b) No program contracted pursuant to this part shall be changed 
from the time of its original approval by the Indian Education Committee 
to the end of the contract period without the prior approval, in 
writing, of the Committee.
    (c) Programs developed or approved by the Indian Education Committee 
pursuant to this part may, at the option of such Committee, include 
funds for the performance of Committee duties, including the following:
    (1) Members' attendance at regular and special meetings, workshops 
and training sessions, as the Committee deems appropriate.
    (2) Such other reasonable expenses incurred by the Committee in 
performing its primary duties, including the planning, development, 
implementation and evaluation of the program.



Sec. 273.18  Additional requirements for education plan.

    In addition to incorporating the programs approved by the Indian 
Education Committee(s) as required by Sec. 273.14(a), the education plan 
prepared by the prospective contractor shall:
    (a) Contain educational goals and objectives which adequately 
address the educational needs of the Indian students to be served by the 
contract.
    (b) Incorporate the program or programs developed and approved by 
the Indian Education Committee(s). As provided in Sec. 273.17(b), 
changes in such programs must have prior written approval of the Indian 
Education Committee(s).
    (c) Contain procedures for hearing grievances from Indian students, 
parents, community members, and tribal representatives relating to the 
program(s) contracted under this part. Such procedures shall provide for 
adequate advance notice of the hearing.
    (d) Identify established State standards and requirements which 
shall be maintained in operating programs and services contracted under 
this part.
    (e) Describe how the State standards and requirements will be 
maintained.
    (f) Provide that the contractor shall comply in full with the 
requirements concerning meaningful participation by the Indian Education 
Committee as required by Sec. 273.4.
    (g) Provide that education facilities receiving funds shall be open 
to visits

[[Page 631]]

and consultations by the Indian Education Committee(s), tribal 
representatives, Indian parents in the community, and by duly authorized 
representatives of the Federal and State Governments.
    (h) Outline procedures of administrative and fiscal management to be 
used by the contractor.
    (i) Contain justification for requesting funds for operational 
support. The public school district must establish in its justification 
that it meets the requirements given in Sec. 273.13(b). The information 
given should include records of receipt of local, State, and Federal 
funds.
    (j) Include budget estimates and financial information needed to 
determine program costs to contract for services. This includes, but is 
not limited to, the following:
    (1) State and district average operational cost per pupil.
    (2) Other sources of Federal funding the applicant is receiving, the 
amount received from each, the programs being funded, and the number of 
eligible Indian students served by such funding.
    (3) Administrative costs involved, total number of employees, and 
total number of Indian employees.
    (4) Costs which parents normally are expected to pay for each 
school.
    (5) Supplemental and operational funds outlined in a separate 
budget, by line item, to facilitate accountability.
    (6) Total number of employees for each special program and number of 
Indian employees for that program.
    (k) State the total enrollment of school or district, by age and 
grade level.
    (l) State the eligible Indian enrollment--total and classification 
by tribal affiliation(s) and by age and grade level.
    (m) State the total number of school board members and number of 
Indian school board members.
    (n) List Government equipment needed to carry out the contract.
    (o) State the period of contract term requested.
    (p) Include the signature of the authorized representative of 
applicant.
    (q) Provide written information regarding:
    (1) Program goals and objectives related to the learning needs of 
potential target students.
    (2) Procedures and methods to be used in achieving program 
objectives, including ways whereby parents, students and communities 
have been involved in determining needs and priorities.
    (3) Overall program implementation including staffing practices, 
parental and community involvement, evaluation of program results, and 
dissemination thereof.
    (4) Determination of staff and program effectiveness in meeting the 
stated needs of target students.



Sec. 273.19  Obtaining application forms.

    Application forms, instructions, and related application materials 
are available from Agency Superintendents, Area Directors and the 
Commissioner. Use of standard application forms will facilitate 
processing of applications. However, they are not required if the 
information required by Sec. 273.20 is given in the application to 
contract.



Sec. 273.20  Content of application to contract.

    An application for a contract under this part shall be in writing 
and shall contain the following:
    (a) Name, address, and telephone number of the proposed contractor.
    (b) Name, address, and telephone number of the tribe(s) to be served 
by the contract.
    (c) Descriptive narrative of the contract proposal.
    (d) The education plan required by Sec. 273.14.
    (e) A separate budget outlining the Johnson-O'Malley funds for 
operational support and/or supplemental programs, by line item, to 
facilitate accountability.
    (f) A clear identification of what educational needs the Johnson-
O'Malley funds requested for operational support will address.
    (g) Documentation of the requirements for operational support in 
Sec. 273.13(b)(1).



Sec. 273.21  Tribal request for contract.

    (a) An Indian tribal governing body(s) that desires that a contract 
be

[[Page 632]]

entered into with a tribal organization must so notify the Area Director 
no later than February 1 preceding the school year for which the 
contract will be let.
    (b) If the tribal governing body's notice is not received by the 
date given in paragraph (a) of this section, the Area Director may 
contract with the State, school district, or Indian corporation under 
this part.



Sec. 273.22  Application approval officials.

    (a) Each Area Director is authorized to approve the contract(s) 
submitted by the State, school district, or Indian corporation under 
this part which will provide services to Indian children within the 
jurisdiction of that Area Office.
    (b) When a proposed contract(s) will provide services to Indian 
children within the jurisdiction of more than one Area Office, the 
contract must be approved by the Commissioner.



Sec. 273.23  Submitting application to Area Office.

    When services under the proposed contract will be provided to Indian 
children within the jurisdiction of a single Area Office, the completed 
application shall be submitted to the Area Director of that Area Office.



Sec. 273.24  Area Office review and decision.

    Upon receiving a contract application, the Area Director shall:
    (a) Notify the applicant in writing that the application has been 
received. This notice shall be made within fourteen (14) days after the 
Area Office receives the application.
    (b) Review the application for completeness and request within 20 
days any additional information from the applicant which will be needed 
to reach a decision.
    (c) On receiving an application for operational support, make formal 
written determination and findings supporting the need for such funds. 
In arriving at such a determination, the Area Director must be assured 
that each local education agency has made a good faith effort in 
computing State and local contributions without regard to funds 
requested pursuant to this part.
    (d) Assess the completed application to determine if the contract 
proposal is feasible and if the proposal and the application comply with 
the appropriate requirements of the Johnson-O'Malley Act and of the 
regulations in this part.
    (e) Approve or disapprove the application after fully reviewing and 
assessing the application and any additional information submitted by 
the applicant.
    (f) Promptly notify the applicant in writing of the decision to 
approve or disapprove the application. If the application is 
disapproved, the notice will give the reasons for disapproval and the 
applicant's right to appeal pursuant to part 2 of this chapter.



Sec. 273.25  Deadline for Area Office action.

    (a) The Area Director shall approve or disapprove an application for 
a contract within sixty (60) days after the Area Office receives the 
application and any additional information requested in Sec. 273.24(b). 
The sixty (60) day deadline can be extended after obtaining the written 
consent of the applicant.
    (b) An application under this part cannot be approved before 
February 1 preceding the school year for which the contract will be let.



Sec. 273.26  Submitting application to Central Office.

    When services under the proposed contract will be provided to Indian 
children within the jurisdiction of two or more Area Offices, the 
completed application shall be submitted to the Commissioner through the 
respective Area Offices.



Sec. 273.27  Central Office review and decision.

    Upon receiving a contract application, the Commissioner shall:
    (a) Notify the applicant in writing that the application has been 
received. This notice shall be made within fourteen (14) days after the 
Central Office receives the application.
    (b) Review the application for completeness and request within 20 
days any additional information from the

[[Page 633]]

applicant which will be needed to reach a decision.
    (c) On receiving an application for operational support, make formal 
written determination and findings supporting the need for such funds. 
In arriving at such a determination, the Commissioner must be assured 
that each local education agency has made a good faith effort in 
computing State and local contributions without regard to funds 
requested pursuant to this part.
    (d) Assess the completed application to determine if the contract 
proposal is feasible and if the proposal and the application comply with 
the appropriate requirements of the Johnson-O'Malley Act and of the 
regulations in this part.
    (e) Approve or disapprove the application after fully reviewing and 
assessing the application and any additional information submitted by 
the applicant.
    (f) Promptly notify the applicant in writing of the decision to 
approve or disapprove the application. If the application is 
disapproved, the notice will give the reasons for disapproval and the 
applicant's right to appeal pursuant to part 2 of this chapter.



Sec. 273.28  Deadline for Central Office action.

    (a) The Commissioner shall approve or disapprove an application for 
a contract within sixty (60) days after the Central Office receives the 
application, and any additional Information requested in Sec. 273.27(b). 
The sixty (60) day deadline can be extended after obtaining the written 
consent of the applicant.
    (b) An application under this part cannot be approved before 
February 1 preceding the school year for which the contract will be let.



Sec. 273.29  Negotiating the contract.

    After the proposal for a contract has been approved by the Area 
Director or Commissioner as provided in Sec. 273.22, the contract will 
be negotiated by a Bureau contracting officer assisted by Bureau 
education personnel.



                      Subpart C--Funding Provisions



Sec. 273.31  Distribution formula.

    (a) Funds shall be distributed to eligible contractors based upon 
the number of eligible Indian students to be served times twenty-five 
(25%) percent of the higher of the State or national average per pupil 
operating cost. Notwithstanding any other provisions of the law, Federal 
funds appropriated for the purpose shall be allotted pro rata in 
accordance with the distribution method outlined in this formula.
    (b) The Assistant Secretary may make exceptions to the provisions of 
paragraph (a) of this section based on the special cultural, linguistic, 
social or educational needs of the communities involved including the 
actual cost of education in the community only after consultation with 
all tribes who may be affected by such exceptions.

(25 U.S.C. 452-456; sec. 202, Pub. L. 93-638, 88 Stat. 2203, and Pub. L. 
95-561, sec. 1102 (a) and (b))

[45 FR 9241, Feb. 11, 1980]



Sec. 273.32  Pro rata requirement.

    All monies provided by a contract pursuant to this part, shall be 
expended only for the benefit of eligible Indian students. Where 
students other than eligible Indian students participate in programs 
contracted under this part, money expended under such contract shall be 
prorated to cover the participation of only the eligible Indian 
students, except where the participation of non-eligible students is so 
incidental as to be de minimus. Such de minimus participation must be 
approved by the Indian Education Committee.



Sec. 273.33  Use of funds for operational support.

    All funds for school operational support shall be used to meet 
established State educational standards or State-wide requirements.



Sec. 273.34  Use of other Federal, State and local funds.

    (a) Contract funds under this part shall supplement, and not 
supplant,

[[Page 634]]

Federal, State and local funds. Each contract shall require that the use 
of these contract funds will not result in a decrease in State, local, 
or Federal funds which would be made available for Indian students if 
there were no funds under this part.
    (b) State, local and other Federal funds must be used to provide 
comparable services to non-Indian and Indian students prior to the use 
of contract funds.
    (c) Except as hereinafter provided, the school lunch program of the 
United States Department of Agriculture (USDA) shall constitute the only 
federally-funded school lunch program for Indian students in public 
schools. Where Indian students do not qualify to receive free lunches 
under the National School Lunch Program of USDA because such students 
are non-needy and do not meet the family size and income guidelines for 
free USDA lunches, plans prepared pursuant to Sec. 273.18 may provide, 
to the extent of funding available for Johnson-O'Malley programs, for 
free school lunches for those students who do not qualify for free USDA 
lunches but who are eligible students under Sec. 273.12.

[47 FR 57275, Dec. 23, 1982]



Sec. 273.35  Capital outlay or debt retirement.

    In no instance shall contract funds provided under this part be used 
as payment for capital outlay or debt retirement expenses; except that, 
such costs are allowable if they are considered to be a part of the full 
per capita cost of educating eligible Indian students who reside in 
Federal boarding facilities for the purpose of attending public schools.



Sec. 273.36  Eligible subcontractors.

    No contract funds under the Johnson-O'Malley Act shall be made 
available by the Bureau directly to other than tribal organizations, 
States, school districts and Indian corporations. However, tribal 
organizations, States, school districts, and Indian corporations 
receiving funds under this part may use the funds to subcontract for 
necessary services with any appropriate individual, organization or 
corporation.



Sec. 273.37  Use of funds outside of schools.

    Nothing in these regulations shall prevent the Commissioner from 
contracting with Indian corporations who will expend all or part of the 
funds in places other than the public or private schools in the 
community affected.



Sec. 273.38  Equal quality and standard of education.

    Contracts with State education agencies or school districts 
receiving funds under the provisions of this part shall provide 
educational opportunities to all Indian children within that school 
district on the same terms and under the same conditions that apply to 
all other students provided that it will not affect the rights of 
eligible Indian children to receive benefits from the supplemental 
programs as provided for in this part. School districts receiving funds 
under this part must insure that Indian children receive all aid from 
the State, and other proper sources other than this contract, which 
other schools in the district and other school districts similarly 
situated in the State are entitled to receive. In no instance shall 
there be discrimination against Indians or schools enrolling such 
Indians.



                Subpart D--General Contract Requirements



Sec. 273.41  Special program provisions to be included in contract.

    All contracts under this part shall contain the following:
    (a) The education plan required by Secs. 273.14 and 273.18 and, as 
part of the education plan, the education programs approved by the 
Indian Education Committee(s) under Sec. 273.17.
    (b) Any formal written determination and findings made by the Area 
Director or Commissioner supporting the need for operational support as 
required by Secs. 273.24(c) and 273.27(c).
    (c) The provision that State, local, and other Federal Funds shall 
be used to provide comparable services to non-Indian and Indian students 
prior to the use of Johnson-O'Malley funds for the provision of 
supplementary program services to Indian children, as required in 
Sec. 273.34(b).

[[Page 635]]



Sec. 273.42  Civil Rights Act violations.

    In no instance shall there be discrimination against Indians or 
schools enrolling such Indians. When informed by a complainant or 
through its own discovery that possible violation of title VI of the 
Civil Rights Act of 1964 exists within a State school district receiving 
funds under this part, the Department of the Interior shall, in 
accordance with Federal requirements, notify the Department of Health, 
Education, and Welfare of the possible violation of title VI. The 
Department of Health, Education, and Welfare will conduct an 
investigation into the matters alleged, pursuant to a Memorandum of 
Understanding between the Department of the Interior and the Department 
of Health, Education, and Welfare. If the report of the investigation 
conducted by the Department of Health, Education, and Welfare discloses 
a failure or threatened failure to comply with this part, and if the 
non-compliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to contract or to continue financial assistance under the Johnson-
O'Malley Act or by any other means authorized by law. As delineated in 
43 CFR 17.1, 17.8, and 17.9, such other means may include reference to 
the Department of Justice with a recommendation that appropriate legal 
proceedings be brought by the United States to secure compliance or by 
formal hearing before the Commissioner or, at his discretion, before an 
administrative law judge designated in accordance with section 11 of the 
Administrative Procedure Act. The Secretary, may, by agreement with one 
or more other Federal departments, provide for the conduct of 
consolidated or joint hearings as prescribed in 43 CFR 17.8(e).



Sec. 273.43  Advance payments.

    Advance payments to States, school districts and Indian corporations 
will be made in accordance with the applicable provisions of 41 CFR part 
1 as supplemented by 41 CFR part 14 and 41 CFR part 14H except 41 CFR 
part 14H-70.



Sec. 273.44  Use and transfer of Government property.

    (a) The use of Government-owned facilities for school purposes may 
be authorized when not needed for Government activities. Transfer of 
title to such facilities (except land) may be arranged under the 
provisions of the Act of June 4, 1953 (67 Stat. 41) subject to the 
approval of the tribal government if such property is located on a 
reservation.
    (b) In carrying out a contract made under this part, the Area 
Director or Commissioner may, with the approval of the tribal 
government, permit a contractor to use existing buildings, facilities, 
and related equipment and other personal property owned by the Bureau 
within his jurisdiction under terms and conditions agreed upon for their 
use and maintenance. The property at the time of transfer must conform 
to the minimum standards established by the Occupational Safety and 
Health Act of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651). Use of 
Government property is subject to the following conditions:
    (1) When nonexpendable Government property is turned over to public 
school authorities or Indian corporations under a use permit, the 
permittee shall insure such property against damage by flood, fire, rain 
windstorm, vandalism, snow, and tornado in amounts and with companies 
satisfactory to the Federal officer in charge of the property. In case 
of damage or destruction of the property by flood, fire, rain, 
windstorm, vandalism, snow or tornado, the insurance money collected 
shall be expended only for repair or replacement of property. Otherwise, 
insurance proceeds shall be paid to the Bureau.
    (2) If the public school authority is self-insured and can present 
evidence of that fact to the Area Director or Commissioner, insurance 
for lost or damaged property will not be required. However, the public 
school authority will be responsible for replacement of such lost or 
damaged property at no cost to the Government or for paying the 
Government enough to replace the property.
    (3) The permittee shall maintain the property in a reasonable state 
of repair

[[Page 636]]

consistent with the intended use and educational purposes.
    (c) The contractor may have access to existing Bureau records needed 
to carry out a contract under this part, as follows:
    (1) The Bureau will make the records available subject to the 
provisions of the Freedom of Information Act (5 U.S.C. 552), as amended 
by the Act of November 21, 1974 (Pub. L. 93-502, 88 Stat. 1561).
    (2) The contractor may have access to needed Bureau records at the 
appropriate Bureau office for review and making copies of selected 
records.
    (3) If the contractor needs a small volume of identifiable Bureau 
records, the Bureau will furnish the copies to the contractor.



Sec. 273.45  Indian preference.

    (a) Any contract made by the Bureau with a State, school district or 
Indian corporation shall provide that the contractor shall, to the 
greatest extent feasible, give preference in and opportunities for 
employment and training to Indians.
    (b) Any contract made by the Bureau with a State, school district or 
Indian corporation shall provide that the contractor shall, to the 
greatest extent feasible, give preference in the award of subcontracts 
to Indian organizations and Indian-owned economic enterprises.
    (c) All subcontractors employed by the contractor shall, to the 
extent possible, give preference to Indians for employment and training 
and shall be required to include in their bid submission a plan to 
achieve maximum use of Indian personnel.
    (d) In the performance of contracts under this part 273 and subject 
to the provisions of part 14H of title 41, a tribal governing body may 
develop its own Indian preference requirements to the extent that such 
requirements are not inconsistent with the purpose and intent of 
paragraphs (a), (b) and (c) of this section.



Sec. 273.46  Liability and motor vehicle insurance.

    (a) States, school districts and Indian corporations shall obtain 
public liability insurance under contracts entered into with the Bureau 
under this part. However, where the Bureau contracting officer 
determines that the risk of death, personal injury or property damage 
under the contract is small and that the time and cost of procuring the 
insurance is great in relation to the risk, the contractor may be 
exempted from this requirement.
    (b) Notwithstanding paragraph (a) of this section, any contract 
which requires or authorizes, either expressly or by implication, the 
use of motor vehicles must contain a provision requiring the State, 
school district, or Indian corporation to provide liability insurance, 
regardless of now small the risk.
    (c) If the public school authority is self-insured and can present 
evidence of that fact to the Area Director or Commissioner, liability 
and motor vehicle insurance will not be required.



Sec. 273.47  Recordkeeping.

    A contractor will be required to maintain a recordkeeping system 
which will allow the Bureau to meet its legal records program 
requirements under the Federal Records Act (44 U.S.C. 3101 et seq.). 
Such a record system shall:
    (a) Fully reflect all financial transactions involving the receipt 
and expenditure of funds provided under the contract in a manner which 
will provide accurate, current and complete disclosure of finanical 
status; correlation with budget or allowable cost schedules; and clear 
audit facilitating data.
    (b) Reflect the amounts and sources of funds other than Bureau 
contract funds which may be included in the operation of the contract.
    (c) Provide for the creation, maintenance and safeguarding of 
records of lasting value, including those involving individual rights, 
such as permanent records and transcripts.
    (d) Provide for the orderly retirement of permanent records in 
accordance with General Records Schedules and the Bureau Records Control 
Schedule, when there is no established system set up by the State, 
school district, or Indian corporation.

[[Page 637]]



Sec. 273.48  Audit and inspection.

    (a) During the term of a contract under this part and for three 
years after the project or undertaking is completed, the Comptroller 
General and the Secretary, or any of their duly authorized 
representatives, shall have access, for audit and examination purposes, 
to any of the contractor's books, documents, papers, and records which, 
in their opinion, may be related or pertinent to the contract or any 
subcontract.
    (b) The contractor will be responsible for maintaining all documents 
such as invoices, purchase orders, canceled checks, balance sheets and 
all other records relating to financial transactions in a manner which 
will facilitate auditing. The contractor will be responsible for 
maintaining files of correspondence and other documents relating to the 
administration of the contract properly separated from general records 
or cross-referenced to general files.
    (c) The contractor receiving funds under this part shall be 
responsible for contract compliance.
    (d) The records involved in any claim or expenditure that has been 
questioned shall be further maintained until final determination has 
been made on the questioned expenditures.
    (e) All contracts, non-confidential records concerning all students 
served by the program, reports, budgets, budget estimates, plans, and 
other documents pertaining to preceding and current year administration 
of the contract program shall be made available by the contractor and 
local school officials to each member of the Indian Education Committee 
and to members of the public upon request. The contractor or local 
school official shall provide, free of charge, single copies of such 
documents upon request.



Sec. 273.49  Freedom of information.

    (a) Unless otherwise required by law, the Bureau shall not place 
restrictions on contractors which will limit public access to the 
contractor's records except when records must remain confidential.
    (b) A contractor under this part shall make all reports and 
information concerning the contract available to the Indian people which 
the contract affects. Reports and information may be withheld from 
disclosure only when both of the following conditions exist:
    (1) The reports and information fall within one of the following 
exempt categories:
    (i) Specifically required by statute or Executive Order to be kept 
secret.
    (ii) Commercial or financial information obtained from a person or 
firm on a privileged or confidential basis.
    (iii) Personnel, medical, social, psychological, academic 
achievement and similar files where disclosure would be a clearly 
unwarranted invasion of personal privacy.
    (2) Disclosure is prohibited by statue or Executive Order or sound 
grounds exist for using the exemption given in paragraph (b)(1) of this 
section.
    (c) A request to inspect or copy reports and information shall be in 
writing and must reasonably describe the reports and information 
requested. The request may be delivered or mailed to the contractor. 
Within ten (10) working days after receiving the request, the contractor 
shall determine whether to grant or deny the request. The requester 
shall be notified immediately of the determination.
    (d) The time limit for making a determination may be extended up to 
an additional ten (10) working days for good reason. The requester shall 
be notified in writing of the extension, reasons for the extension, and 
date on which the determination is expected to be made.



Sec. 273.50  Annual reporting.

    (a) A contractor under this part shall make a detailed annual report 
to the approving official before September 15 of each year and covering 
the previous school year. The report shall include, but not be limited 
to, an accounting of the amounts and purposes for which the contract 
funds were expended, information on the conduct of the program, a 
quantitative evaluation of the effectiveness of the contract program in 
meeting the stated objectives contained in the applicant's educational 
plans, and a complete accounting of actual receipts at the end of the 
contract period.

[[Page 638]]

    (b) In addition to the yearly reporting requirement given in 
paragraph (a) of this section, the contractor shall furnish other 
contracted-related reports when and as required by the Area Director or 
Commissioner.
    (c) A contractor under this part shall send copies of the reports 
required by paragraphs (a) and (b) of this section to the Indian 
Education Committee(s) and to the tribe(s) under the contract at the 
same time as the reports are sent to the Bureau.



Sec. 273.51  Penalties.

    If any officer, director, agent, or employee of, or connected with, 
any contractor or subcontractor under this part embezzles, willfully 
misapplies, steals, or obtains by fraud any of the funds or property 
connected with the contract or subcontract, he shall be subject to the 
following penalties:
    (a) If the amount involved does not exceed $100, he shall be fined 
not more than $1,000 or imprisoned not more than one year, or both.
    (b) If the amount involved exceeds $100, he shall be fined not more 
than $10,000 or imprisoned for not more than two years, or both.



Sec. 273.52  State school laws.

    In those States where Pub. L. 83-280, 18 U.S.C. 1162 and 28 U.S.C. 
1360 do not confer civil jurisdiction, State employees may be permitted 
to enter upon Indian tribal lands, reservations, or allotments if the 
duly-constituted governing body of the tribe adopts a resolution of 
consent for the following purposes:
    (a) Inspecting school conditions in the public schools located on 
Indian tribal lands, reservations, or allotments.
    (b) Enforcing State compulsory school attendance laws against Indian 
children, parents or persons standing in loco parentis.



Sec. 273.53  Applicable procurement regulations.

    States, school districts, or Indian corporations wanting to contract 
with the Bureau under this part must comply with the applicable 
requirements in the Federal Procurement Regulations (41 CFR part 1), as 
supplemented by the Interior Procurement Regulations (41 CFR part 14), 
and the Bureau of Indian Affairs Procurement Regulations (41 CFR part 
14H), except 41 CFR part 14H-70.



Sec. 273.54  Privacy Act requirements.

    (a) When a contractor operates a system of records to accomplish a 
Bureau function, the contractor shall comply with subpart D of 43 CFR 
part 2 which implements the Privacy Act (5 U.S.C. 552a). Examples of the 
contractor's responsibilities are:
    (1) To continue maintaining those systems of records declared by the 
Bureau to be subject to the Privacy Act as published in the Federal 
Register.
    (2) To make such records available to individuals involved.
    (3) To disclose an individual's record to third parties only after 
receiving permission from the individual to whom the record pertains. 43 
CFR 2.56 lists exceptions to this procedure.
    (4) To establish a procedure to account for access, disclosures, 
denials, and amendments to records.
    (5) To provide safeguards for the protection of the records.
    (b) The contractor may not:
    (1) Discontinue or alter any established systems of records without 
prior approval of the appropriate Bureau systems manager.
    (2) Deny requests for notification or access of records without 
prior approval of the appropriate Bureau systems manager.
    (3) Approve or deny requests for amendments of records without prior 
approval of the appropriate Bureau systems manager.
    (4) Establish a new system of records without prior approval of the 
Department of Interior and the Office of Management and Budget.
    (5) Collect information about an individual unless it is relevant or 
necessary to accomplish a purpose of the Bureau as required by statue or 
Executive Order.
    (c) The contractor is subject to the penalties provided in section 
(i) of 5 U.S.C. 552a.

[[Page 639]]



              Subpart E--Contract Revision or Cancellation



Sec. 273.61  Contract revision or amendment.

    Any contract made under this part may be revised or amended as 
deemed necessary to carry out the purposes of the program being 
contracted. A contractor may make a written request for a revision or 
amendment of a contract to the Bureau contracting officer. However, no 
program approved by the Indian Education Committee shall be altered from 
the time of its original approval to the end of the contract period 
without the written approval of the Committee.



Sec. 273.62  Cancelling a contract for cause.

    (a) Any contract entered into under this part may be cancelled for 
cause when the contractor fails to perform the work called for under the 
contract or fails to permit an Indian Education Committee to perform its 
duties pursuant to this part.
    (b) Before cancelling the contract, the Bureau will advise the 
contractor in writing of the following:
    (1) The reasons why the Bureau is considering cancelling the 
contract.
    (2) The contractor will be given an opportunity to bring its work up 
to an acceptable level.
    (c) If the contractor does not overcome the deficiencies in its 
contract performance, the Bureau shall cancel the contract for cause. 
The Bureau will notify the contractor, in writing, of the cancellation. 
The notice shall give the reasons for the cancellation and the right of 
the contractor to appeal under subpart C of 43 CFR part 4.
    (d) When a contract is cancelled for cause, the Bureau will attempt 
to perform the work by another contract.
    (e) Any contractor that has a contract cancelled for cause must 
demonstrate that the cause(s) which led to the cancellation have been 
remedied before it will be considered for another contract.



                           Subpart F--Appeals



Sec. 273.71  Contract appeal.

    A contractor may appeal an adverse decision or action of a Bureau 
contracting officer regarding a contract under this part as provided in 
subpart C of 43 CFR part 4.



Sec. 273.72  Appeal from decision to cancel contract for cause.

    A contractor may appeal the decision of a Bureau official to cancel 
a contract under this part for cause. The appeal shall be made as 
provided in subpart C of 43 CFR part 4.



Sec. 273.73  Other appeals.

    Any decision or action taken by a Bureau official under this part, 
other than those given in Secs. 273.71 and 273.72, may be appealed as 
provided in part 2 of this chapter.



PART 275--STAFFING--Table of Contents




Sec.
275.1  Purpose and scope.
275.2  Definitions.
275.3  Methods for staffing.
275.4  Implementing regulations.

    Authority: Sec. 502, Pub. L. 91-648, 84 Stat. 1909, 1925 (42 U.S.C. 
4762); Sec. 105, Pub. L. 93-638, 88 Stat. 2203, 2208-2210 (25 U.S.C. 
450i); 26 U.S.C. 48.

    Source: 40 FR 51316, Nov. 4, 1975, unless otherwise noted.



Sec. 275.1  Purpose and scope.

    The purpose of this part is to outline methods available to tribes 
for utilizing the services of Bureau employees. These regulations are 
not intended to prevent an Indian tribe or tribal organization from 
staffing their programs by other methods they feel appropriate. However, 
when an Indian tribe or tribal organization decides to provide Bureau 
employees certain Federal benefits, Civil Service Commission regulations 
must be adhered to.



Sec. 275.2  Definitions.

    As used in this part:
    (a) ``Act'' means the Indian Self-Determination and Education 
Assistance Act (Pub. L. 93-638, 88 Stat. 2203).

[[Page 640]]

    (b) ``Area Director'' means the official in charge of a Bureau of 
Indian Affairs Area Office.
    (c) ``Bureau'' means the Bureau of Indian Affairs.
    (d) ``Commissioner,'' means the Commissioner of Indian Affairs, 
under the direction and supervision of the Assistant Secretary--Indian 
Affairs, who is responsible for the direction of the day-to-day 
operations of the Bureau of Indian Affairs.
    (e) ``Days'' means calendar days.
    (f) ``Indian tribe'' means any Indian tribe, band, nation, 
rancheria, pueblo, colony, or community, including any Alaska Native 
village or regional or village corporation as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which 
is federally recognized as eligible by the U.S. Government through the 
Secretary for the special programs and services provided by the 
Secretary to Indians because of their status as Indians.
    (g) ``Indian'' means a person who is a member of an Indian tribe.
    (h) ``Superintendent'' means the official in charge of a Bureau of 
Indian Affairs Agency Office.
    (i) ``Tribal Chairman'' means tribal chairman, governor, chief or 
other person recognized by the tribal government as its chief executive 
officer.
    (j) ``Tribal government'' ``tribal governing body,'' and ``tribal 
council'' means the recognized governing body of any Indian tribe.
    (k) ``Tribal organization'' means the recognized governing body of 
any Indian tribe; or any legally established organization of Indians or 
tribes which is controlled, sanctioned, or chartered by such governing 
body or bodies or which is democratically elected by the adult members 
of the Indian community to be served by such organization and which 
includes the maximum participation of Indians in all phases of its 
activities.
    (l) ``Assistant Secretary--Indian Affairs'' means the Assistant 
Secretary--Indian Affairs who discharges the authority and 
responsibility of the Secretary for activities pertaining to Indians and 
Indian affairs.

[40 FR 51316, Nov. 4, 1975, as amended at 43 FR 37446, Aug. 23, 1978; 45 
FR 13452, Feb. 29, 1980]



Sec. 275.3  Methods for staffing.

    (a) An Indian tribal organization may use any of the following three 
methods to employ or obtain the services of Bureau employees:
    (1) Agreement in accordance with the Intergovernmental Personnel Act 
of 1970 (5 U.S.C. 3371-3376). The agreement may be arranged between the 
tribal organization, the employee, and the Area Director or 
Commissioner. Assistance will be provided by the Area Personnel Office 
in complying with Civil Service instructions (Federal Personnel Manual 
Chapter 334) for completing an agreement.
    (2) Employment of Bureau employees on or before December 31, 1985, 
when serving under an appointment not limited to one year or less. A 
mutual agreement will be made between a tribal organization and the 
employee before leaving Federal employment to retain coverage for any of 
the following Federal benefits:
    (i) Compensation for work injuries.
    (ii) Retirement.
    (iii) Health insurance.
    (iv) Life insurance.
    (3) An agreement by an Indian tribe in accordance with the 1834 Act 
(25 U.S.C. 48) may be made in connection with contracts under section 
102 of the Act.
    (i) The agreement may provide for the tribal government to direct 
the day-to-day activities of Bureau employees. Tribal government 
direction of Bureau employees means the tribal chairman or other tribal 
official, as designated by the tribal governing body, is responsible for 
the planning, coordination, and completion of the daily on-the-job 
assignments of Bureau employees. The daily assignments of each such 
Bureau employee are limited to those that fall within the general range 
of duties prescribed in the employee's Bureau position.
    (ii) The agreement to direct day-to-day activities of Bureau 
employees shall include all employees:

[[Page 641]]

    (A) Whose positions are in the program or portion of the program to 
be contracted; or
    (B) In a portion of the program to continue under Bureau operation 
in connection with a contract for other portions of the program.
    (iii) The proposed agreement will be worked out between the tribe, 
the Superintendent, and the Area Director and forwarded to the 
Commissioner for final approval.
    (b) When a contract application under part 271 of this chapter does 
not include a proposed agreement for direction of Bureau employees, the 
application must be submitted at least 120 days in advance of the 
proposed effective date of the contract to allow time for placement of 
affected employees.

[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976]



Sec. 275.4  Implementing regulations.

    Regulations to implement section 105 of the Act will be issued by 
the Civil Service Commission. The regulations will cover the situations 
described in paragraphs (a)(1) and (a)(2) of Sec. 275.3.



PART 276--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS--Table of Contents




Sec.
276.1  Purpose and scope.
276.2  Definitions.
276.3  Cash depositories.
276.4  Bondings and insurance.
276.5  Recordkeeping.
276.6  Program income.
276.7  Standards for grantee financial management system.
276.8  Financial reporting requirements.
276.9  Monitoring and reporting program performances.
276.10  Grant payment requirements.
276.11  Property management standards.
276.12  Procurement standards.
276.13  Indian preference in grant administration.
276.14  Budget revision.
276.15  Grant closeout.
276.16  Subgrants and subcontracts to nonprofit organizations.
276.17  Printing.

Appendix A to Part 276--Principles for Determining Costs Applicable to 
          Grants
Appendix B to Part 276--Financial Reporting Requirements

    Authority: 34 CFR 256; Sec. 104, Pub. L. 93-638, 88 Stat. 2203, 2207 
(25 U.S.C. 450h).

    Source: 40 FR 51316, Nov. 4, 1975, unless otherwise noted.



Sec. 276.1  Purpose and scope.

    (a) The purpose of the regulations in this part is to give the 
uniform administrative requirements for grants awarded by the Bureau of 
Indian Affairs.
    (b) The regulations in this part shall apply to all grants awarded 
by the Bureau of Indian Affairs unless the part which gives the 
application process and special requirements for the specific type of 
grant states otherwise.



Sec. 276.2  Definitions.

    As used in this part:
    (a) ``Advance by Treasury check'' means a payment made by a Treasury 
check to a grantee upon its request or through the use of predetermined 
payment schedules before payments are made by the grantee.
    (b) ``Date of completion'' means the date when all work under a 
grant is completed or the date in the grant award document, or any 
supplement or amendment thereto, on which Federal assistance ends.
    (c) ``Disallowed costs'' means those charges to a grant which the 
Bureau or its representative determines to be unallowable.
    (d) ``Economic enterprise'' means any commercial, industrial, 
agricultural or business activity that is at least 51 percent Indian 
owned, established or organized for the purpose of profit.
    (e) ``Excess property'' means property under the control of the 
Bureau which, as determined by the Commissioner, is no longer required 
for its needs.
    (f) ``Expendable personal property'' means all tangible personal 
property other than nonexpendable property.
    (g) ``Grant closeout'' means the process by which the Bureau 
determines that all applicable administrative actions and all required 
work of the grant have been completed by the grantee and the Bureau.
    (h) ``Grantee'' means the entity which is responsible for 
administration of the grant.
    (i) ``Indian tribe'' means any Indian tribe, band, nation, 
rancheria, pueblo, colony or community, including any

[[Page 642]]

Alaska Native village or regional or village corporation as defined in 
or established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688) which is federally recognized as eligible by the United 
States Government through the Secretary for the special programs and 
services provided by the Secretary to Indians because of their status as 
Indians.
    (j) ``Letter of credit'' means an instrument certified by an 
authorized official of the Bureau which authorizes a grantee to draw 
funds when needed from the Treasury, through a Regional Disbursing 
Office, in accordance with the provisions of Treasury Circular No. 1075 
as modified and supplemented by a memorandum of understanding between 
the Bureau of Government Financial Operation, Department of the Treasury 
and the Department of the Interior.
    (k) ``Nonexpendable personal property'' means tangible personal 
property having useful life of more than one year and an acquisition 
cost of $300 or more per unit. A grantee may use its own definition of 
nonexpendable personal property provided that such definition would at 
least include all tangible personal property as defined above.
    (l) ``Personal property'' means property of any kind except real 
property. It may be tangible--having physical existence, or intangible--
having no physical existence, such as patents, inventions, and 
copyrights.
    (m) ``Real property'' means land, land improvements, structures and 
appurtenances thereto, excluding removable personal property, machinery 
and equipment.
    (n) ``Reimbursement by Treasury check'' means a payment made to a 
grantee with a Treasury check upon request for reimbursement from the 
grantee.
    (o) ``Suspension of a grant'' means an action by the Bureau which 
temporarily suspends assistance under the grant pending corrective 
action by the grantee or pending decision to terminate the grant by the 
Bureau.
    (p) ``Termination of a grant'' means the cancellation of Federal 
assistance, in whole or in part, under a grant at any time prior to the 
date of completion.
    (q) ``Tribal government'', ``tribal governing body'' and ``tribal 
council'' means the recognized governing body of an Indian tribe.
    (r) ``Tribal organization'' means the recognized governing body of 
any Indian tribe or any legally established organization of Indians 
which is controlled, sanctioned, or chartered by such governing body or 
bodies of which is democratically elected by the adult members of the 
Indian community to be served by such organization and which includes 
the maximum participation of Indians in all phases of its activities.



Sec. 276.3  Cash depositories.

    (a) Except for situations described in paragraphs (b) and (c) of 
this section, the Bureau will not:
    (1) Require physical segregation of cash depositories for Bureau 
grant funds provided to a grantee.
    (2) Establish any eligibility requirements for cash depositories in 
which Bureau grant funds are deposited by grantees or their subgrantees.
    (b) A separate bank account shall be used when payments under letter 
of credit are made on a ``check-paid'' basis in accordance with 
agreements entered into by a grantee, the Bureau, and the banking 
institutions involved. A check-paid basis letter of credit is one under 
which funds are not drawn from the Treasury until the grantee's checks 
have been presented to its bank for payment.
    (c) Consistent with the national goal of expanding the opportunities 
for minority business enterprises, grantees are encouraged to use 
minority banks.



Sec. 276.4  Bondings and insurance.

    In administering Bureau grants, grantees shall observe their regular 
requirements and practices with respect to bonding and insurance. The 
Bureau will not impose additional bonding and insurance requirements, 
including fidelity bonds, except as provided in paragraphs (a) and (b) 
of this section.

[[Page 643]]

    (a) The recipient of a Bureau grant which requires contracting for 
construction or facility improvement (including any Bureau grant which 
provides for alterations or renovations of real property) shall follow 
its own requirements and practices relating to bid guarantees, 
performance bonds, and payment bonds except for contracts exceeding 
$100,000. For contracts exceeding $100,000, the minimum requirements 
shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The bid guarantee shall consist of a firm commitment such 
as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A performance bond is one executed in connection 
with a contract to secure fulfillment of all the contractor's 
obligations under the contract.
    (3) A payment bond on the part of the contractor for 100 per cent of 
the contract price. A payment bond is one executed in connection with a 
contract to assure payment as required by law of all persons supplying 
labor and material in the execution of the work provided for in the 
contract.
    (b) Where, in connection with a Bureau grant, the Bureau also 
guarantees the payment of money borrowed by the grantee, the Bureau may 
at its discretion require adequate bonding and insurance if the bonding 
and insurance requirements of the grantee are not deemed to be 
sufficient to protect adequately the interests of the Federal 
Government.



Sec. 276.5  Recordkeeping.

    (a) The Bureau shall not impose record retention requirements over 
and above those established by the grantee except that financial 
records, supporting documents, statistical records, and all other 
records pertinent to a Bureau grant, or to any subgrant (or negotiated 
contract exceeding $2500) under a grant, shall be retained for a period 
of three years, with the following qualifications:
    (1) The records shall be retained beyond the three-year period if 
audit findings have not been resolved.
    (2) Records for nonexpendable property which was acquired with 
Bureau grant funds shall be retained for three years after its final 
disposition.
    (3) When grant records are transferred to or maintained by the 
Bureau, the three-year retention requirement is not applicable to the 
grantee.
    (b) The retention period starts from the date of submission of the 
final expenditure report or, for grants which are renewed annually, from 
the date of the submission of the annual expenditure report.
    (c) Grantees are authorized, if they desire, to substitute microfilm 
copies in lieu of original records.
    (d) The Bureau shall request transfer of certain records to its 
custody from grantees when it determines that the records possess long-
term retention value. However, in order to avoid duplicate recordkeeping 
the Bureau may make arrangements with the grantee for the grantee to 
retain any records which are continuously needed for joint use.
    (e) The Secretary of the Interior and the Comptroller General of the 
United States, or any of their duly authorized representatives shall 
have access to any books, documents, papers, and records of the grantees 
and their subgrantees which are pertinent to a specific grant program 
for the purpose of making audit, examination, excerpts, transcripts and 
copies at government expense.
    (f) Unless otherwise required by law, the Bureau shall not place 
restrictions on grantees which will limit public access to the grantee's 
records created as part of the grant except when records must remain 
confidential. Following are some of the reasons for withholding records:
    (1) Prevent a clearly unwarranted invasion of personal privacy;
    (2) Specifically required by statute or Executive Order to be kept 
secret;
    (3) Commercial or financial information obtained from a person or 
firm on a privileged or confidential basis.

[[Page 644]]



Sec. 276.6  Program income.

    (a) No grantee receiving a grant shall be held accountable for 
interest earned on grant funds, pending their disbursement for program 
purposes.
    (b) Proceeds from the sale of real or personal property, either 
provided by the Federal Government or purchased in whole or in part with 
Federal funds, shall be handled in accordance with Sec. 276.11.
    (c) Royalties received from copyrights and patents produced under 
the grant during the grant period shall be retained by the grantee and, 
in accordance with the grant agreement, be either added to the funds 
already committed to the program or deducted from total allowable 
project costs for the purpose of determining the net costs on which the 
Bureau share of costs will be based. After termination or completion of 
the grant, the Bureau share of royalties in excess of $200 received 
annually shall be returned to the Bureau in the absence of other 
specific agreements between the Bureau and the grantee. The Bureau share 
of royalties shall be computed on the same ratio basis as the Bureau 
share of the total project cost.
    (d) All other program income earned during the grant period shall be 
retained by the grantee and, in accordance with the grant agreement, 
shall be either:
    (1) Added to funds committed to the project by the Bureau and the 
grantee and be used to further eligible program objectives, or
    (2) Deducted from the total project costs for the purpose of 
determining the net costs on which the Bureau share of costs will be 
based.
    (e) Grantees shall record the receipt and expenditures of revenues 
(such as taxes, special assessments, levies, fines, etc.) as a part of 
grant project transactions when such revenues are specifically earmarked 
for a grant project in accordance with grant agreements.



Sec. 276.7  Standards for grantee financial management systems.

    (a) Grantee financial management systems for grants and subgrantee 
financial management systems for subgrants shall provide for:
    (1) Accurate, current, and complete disclosure of the financial 
results of each grant program in accordance with Federal reporting 
requirements and for each subgrant in accordance with the grantees' 
requirements. Except when specifically required by law, the Bureau wll 
not require financial reporting on the accrual basis from tribal 
organizations whose records are not maintained on that basis. However, 
when accrual reporting is required by law, tribal organizations whose 
records are not maintained on that basis will not be required to convert 
their accounting systems to the accrual basis; they may develop the 
accrual information through an analysis of the documentation on hand or 
on the basis of best estimates.
    (2) Records which identify adequately the source and application of 
funds for grant--or subgrant--supported activities. These records shall 
contain information pertaining to grant or subgrant awards and 
authorizations, obligations, unobligated balances, assets, liabilities, 
outlays, and income.
    (3) Effective control over and accountability for all grant or 
subgrant funds, and real and personal property acquired with grant or 
subgrant funds. Grantees and subgrantees shall adequately safeguard all 
such property and shall assure that it is used solely for authorized 
purposes.
    (4) Comparison of actual with budgeted amounts for each grant or 
subgrant, and, when specifically required by the performance reporting 
requirements of the grant or subgrant, relation of financial information 
with performance or productivity data, including the production of unit 
cost information.
    (5) Procedures to minimize the time elapsing between the transfer of 
funds from the U.S. Treasury and the disbursement by the grantee, 
whenever funds are advanced by the Federal Government. When advances are 
made by a letter-of-credit method, the grantees shall make drawdowns 
from the U.S. Treasury as close as possible to the time of making the 
disbursements. Subgrantees shall institute similar procedures when funds 
are advanced by the grantee.

[[Page 645]]

    (6) Procedures for determining the allowability and allocability of 
costs shall be in accordance with the applicable cost principles 
prescribed in appendix A of this part.
    (7) Accounting records which are supported by source documentation.
    (8) A systematic method to assure timely and appropriate resolution 
of audit findings and recommendations.
    (b) Grantees shall require subgrantees (recipients of grants which 
are passed through by the grantee) to adopt all of the standards in 
paragraph (a) of this section.



Sec. 276.8  Financial reporting requirements.

    Requirements for grantees to report financial information to the 
Bureau, and to request advances and reimbursment when a letter of credit 
method is not used, are prescribed in appendix B of this part.



Sec. 276.9  Monitoring and reporting program performances.

    (a) Grantees shall constantly monitor the performance under grant-
supported activities to assure that adequate progress is being made 
toward achieving the goals of the grant. This review shall be made for 
each program, function, or activity of each grant as set forth in the 
approved grant application.
    (b) Grantees shall submit a performance report for each grant which 
briefly presents the following for each program, function, or activity 
involved:
    (1) A comparison of actual accomplishments to the goals established 
for the period. Where the output of grant programs can be readily 
quantified, such quantitative data should be related to cost data for 
computation of unit costs.
    (2) Reasons for slippage in those cases were established goals were 
not met.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (c) Grantees shall submit the performance reports to the Bureau with 
the Financial Status Reports (prescribed in appendix B of this part) in 
the frequency established by appendix B. The Bureau shall prescribe the 
frequency with which the performance reports will be submitted with the 
Request for Advance or Reimbursement (prescribed in appendix B) when 
that form is used in lieu of the Financial Status Report. In no case 
shall the performance reports be required more frequently than quarterly 
or less frequently than annually.
    (d) Between the required performance reporting dates, events may 
occur which have significant impact upon the project or program. In such 
cases, the grantee shall inform the Bureau as soon as the following 
types of conditions become known:
    (1) Problems, delays, or adverse conditions which will materially 
affect the ability to attain program objectives, prevent the meeting of 
time schedules and goals, or preclude the attainment of project work 
units by established time periods. This disclosure shall be accomplished 
by a statement of the action taken, or contemplated, and any Bureau 
assistance needed to resolve the situation.
    (2) Favorable developments or events which enable meeting time 
schedules and goals sooner than anticipated or producing more work units 
than originally projected.
    (e) If any performance review conducted by the grantee discloses the 
need for change in the budget estimates in accordance with the criteria 
established in Sec. 276.14, the grantee shall submit a request for 
budget revision.
    (f) The bureau shall make site visits as frequently as practicable 
to:
    (1) Review program accomplishments and management control systems.
    (2) Provide such technical assistance as may be required, or 
requested.



Sec. 276.10  Grant payment requirements.

    (a) Except for construction grants for which the letter-of-credit 
method is optional, the letter-of-credit funding method shall be used by 
the Bureau where all of the following conditions exist:
    (1) When there is or will be a continuing relationship between a 
grantee and the Bureau for at least a 12-month period and the total 
amount of advances to be received within that period from

[[Page 646]]

the Bureau is $120,000, or more, as prescribed by Treasury Circular No. 
1075.
    (2) When the grantee has established or demonstrated to the Bureau 
the willingness and ability to establish procedures that will minimize 
the time elapsing between the transfer of funds and their disbursement 
by the grantee.
    (3) When the grantee's financial management system meets the 
standards for fund control and accountability prescribed in Sec. 276.7.
    (b) The method of advancing funds by Treasury check shall be used, 
in accordance with the provisions of Treasury Circular No. 1075, when 
the grantee meets all of the requirements specified in paragraphs (a)(2) 
and (3) of this section.
    (c) The reimbursement by Treasury check method shall be the 
preferred method when the grantee does not meet the requirements 
specified in either paragraph (a)(2) or (a)(3), or both. This method may 
also be used when the major portion of the program is accomplished 
through private market financing or Federal loans, and when the Bureau 
grant assistance constitutes a minor portion of the program.
    (d) Unless otherwise required by law, the Bureau shall not withhold 
payments for proper charges made by grantees at any time during the 
grant period unless:
    (1) A grantee has failed to comply with the program objectives, 
grant award conditions, or Bureau reporting requirements; or
    (2) The grantee is indebted to the United States and collection of 
the indebtedness will not impair accomplishment of the objectives of any 
grant program sponsored by the United States. Under such conditions, the 
Bureau may, upon reasonable notice, inform the grantee that payments 
will not be made for obligations incurred after a specified date until 
the conditions are corrected or the indebtedness to the Federal 
Government is liquidated.
    (e) Appendix B of this part provides the procedures for requesting 
advances or reimbursements.

[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5099, Feb. 4, 1976]



Sec. 276.11  Property management standards.

    (a) Grantees may follow their own property management policies and 
procedures if they observe the requirements of this section. With 
respect to property covered by this section, the Bureau may not impose 
on grantees any requirements (including property reporting 
requirements)--not authorized by this part unless specifically required 
by Federal law.
    (b) Title to real property to be acquired in whole or in part from a 
Bureau grant under part 272 of this chapter shall vest in one of the 
following manners:
    (1) Title may be taken by the United States in trust for the Indian 
tribe upon the request of the tribe and when the real property to be 
acquired is within the reservation boundaries or adjoins on at least two 
sides other trust or restricted lands as prescribed in part 272 of this 
chapter.
    (2) Fee title to the acquired real property shall vest in the Indian 
tribe whenever the acquisition does not meet the criteria in paragraph 
(b)(1) of this section, unless for other reasons a tribe requests title 
to be taken in the name of the United States. In the absence of 
applicable statutory authority governing the disposition of real 
property acquired by a tribe, the tribe shall use the real property for 
the authorized purposes and in accordance with any other requirements 
imposed by the terms and conditions of the original grant. Changes in 
use compatible to other tribal programs may be authorized by the Bureau. 
When no longer needed for the authorized purposes, the real property 
shall be used in accordance with the standards set forth in 
Sec. 276.11(d)(1) for non-expendable personal property. Accordingly, the 
following priority order for use of such property shall be:
    (i) Other grants from the Bureau.
    (ii) Grants from other Federal agencies.
    (iii) Tribal purposes consistent with those authorized for support 
by Bureau grants.
    (iv) Tribal official activities.
    (3) In those instances where the Indian tribe requests, title may be 
acquired by the United States. Use of

[[Page 647]]

these acquired real property interests will be subject to the authorized 
purposes and in accordance with the provisions of the original grant. 
Upon a determination that the real property is no longer needed for the 
authorized purposes, disposition may be made by declaring it excess 
under provisions of the Act of January 2, 1975 (88 Stat. 1954) and title 
transferred to the Secretary to be held by the United States in trust 
for the tribe. Where real property does not meet the requirements under 
the Act of January 2, 1975 (88 Stat. 1954), the tribe may elect to 
acquire title under applicable enabling statutory authorities, or in the 
absence of statutory authority, request withholding disposition in aid 
of legislation, or authorize disposal under the General Services 
Administration procedures.
    (c) The provisions of paragraphs (b)(2) and (3) of this section 
shall also apply when real property is acquired in whole or in part by a 
Bureau grant other than that provided under part 272 of this chapter. 
However, when such property is acquired by a grantee other than an 
Indian tribe, or a tribal governing body, fee simple title to the 
property shall vest in the grantee upon acquisition. In the absence of 
applicable statutory provisions governing the use or disposition of such 
property, it shall be subject to the following requirments, in addition 
to any other requirements imposed by the terms and conditions of the 
grant:
    (1) The grantee shall use the real property for the authorized 
purpose of the original grant as long as needed.
    (2) The grantee shall obtain approval by the Bureau for the use of 
the real property in other projects when the grantee determines that the 
property is no longer needed for the original grant purposes. Use in 
other projects shall be limited to those under other Federal grant 
programs, or programs that have purposes consistent with those 
authorized for support by the grantor.
    (3) When the real property is no longer needed as provided in 
paragraphs (c)(1) and (2) of this section, the grantee shall return all 
real property furnished or purchased wholly with Bureau grant funds to 
the control of the Bureau. In the case of property purchased in part 
with Bureau grant funds, the grantee may be permitted to take title to 
the Federal interest therein upon compensating the Federal Government 
for its fair share of the property. The Federal share of the property 
shall be the amount computed by applying the percentage of the Federal 
participation in the total cost of the grant program for which the 
property was acquired to the current fair market value of the property.
    (d) Standards and procedures governing ownership, use, and 
disposition of nonexpendable personal property furnished by the Bureau 
or acquired with Bureau funds are set forth below:
    (1) Nonexpendable personal property acquired with Bureau funds. When 
nonexpendable personal property is acquired by a grantee wholly or in 
part with Bureau funds, title will not be taken by the Bureau except as 
provided in paragraph (d)(1)(iv) of this section but shall be vested in 
the grantee subject to the following restrictions on use and disposition 
of the property:
    (i) The grantee shall retain the property acquired with Bureau funds 
in the grant program as long as there is a need for the property to 
accomplish the purpose of the grant program whether or not the program 
continues to be supported by Bureau funds. When there is no longer a 
need for the property to accomplish the purpose of the grant program, 
the grantee shall use the property in connection with the other Federal 
grants it has received in the following order of priority:
    (A) Other grants from the Bureau needing the property.
    (B) Grants of other Federal agencies needing the property.
    (ii) When the grantee no longer has need for the property in any of 
its Federal grant programs, or programs that have purposes consistent 
with those authorized for support by the grantor, the property may be 
used for its own official activities in accordance with the following 
standards:
    (A) Nonexpendable property with an acquisition cost of less than 
$500 and used four years or more. The grantee may use the property for 
its own official activities without reimbursement to the Federal 
government or sell the property and retain the proceeds.

[[Page 648]]

    (B) All other nonexpendable property. The grantee may retain the 
property for its own use if a fair compensation is made to the Bureau 
for the latter's share of the property. The amount of compensation shall 
be computed by applying the percentage of Bureau participation in the 
grant program to the current fair market value of the property.
    (iii) If the grantee has no need for the property, disposition of 
the property shall be made as follows:
    (A) Nonexpendable property with an acquisition cost of $1,000 or 
less. Except for that property which meets the criteria of paragraph 
(d)(1)(ii)(A) of this section, the grantee shall sell the property and 
reimburse the Bureau an amount which is computed in accordance with 
paragraph (d)(1)(iii) of this section.
    (B) Nonexpendable property with an acquisition cost of over $1,000. 
The grantee shall request disposition instructions from the Bureau. The 
Bureau shall determine whether the property can be used to meet the 
Bureau's requirement. If no requirement exists within the Bureau, the 
availability of the property shall be reported to the General Services 
Administration (GSA) by the Bureau to determine whether a requirement 
for the property exists in other Federal agencies. The Bureau shall 
issue instructions to the grantee within 120 days and the following 
procedures shall govern:
    (1) If the grantee is instructed to ship the property elsewhere, the 
grantee shall be reimbursed by the benefiting Federal agency with an 
amount which is computed by applying the percentage of the grantee's 
participation in the grant program to the current fair market value of 
the property, plus any shipping or interim storage costs incurred.
    (2) If the grantee is instructed to otherwise dispose of the 
property, he shall be reimbursed by the Bureau of such costs incurred in 
its disposition.
    (3) If disposition instructions are not issued within 120 days after 
reporting, the grantee shall sell the property and reimburse the Bureau 
and amount which is computed by applying the percentage of Bureau 
participation in the grant program to the sales proceeds. Further, the 
grantee shall be permitted to retain $100 or 10 percent of the proceeds, 
whichever is greater, for the grantee's selling and handling expenses.
    (iv) Where the Bureau determines that property with an acquisition 
cost of $1,000 or more and financed solely with Bureau funds is unique, 
different, or costly to replace, it may reserve title to such property, 
subject to the following provisions:
    (A) The property shall be appropriately identified in the grant 
agreement or otherwise made known to the grantee.
    (B) The Bureau shall issue disposition instructions within 120 days 
after the completion of the need for the property under the grant for 
which it was acquired. If the Bureau fails to issue disposition 
instructions within 120 days, the grantee shall apply the standards of 
paragraphs (d)(1)(i), (d)(1)(ii)(B), and (d)(1)(iii)(B) of this section.
    (2) Federally owned nonexpendable personal property. Unless 
statutory authority to transfer title has been granted to an agency, 
title to Federally owned property (property to which the Federal 
Government retains title including excess property made available by the 
Bureau to grantees) remains vested by law in the Federal Government. 
Upon termination of the grant or need for the property, such property 
shall be reported to the Bureau for further Bureau use or, if 
appropriate, for reporting to the General Services Administration for 
other Federal agency use. Appropriate disposition instructions will be 
issued to the grantee after completion of Bureau review.
    (e) The grantee's property management standards for nonexpendable 
personal property shall also include the following procedural 
requirements:
    (1) Property records shall be maintained accurately and provide for 
a description of the property; manufacturer's serial number or other 
identification number; acquisition date and cost; source of the 
property; percentage of Federal funds used in the purchase of property; 
location, use, and condition of the property; and ultimate disposition 
data including sales price or the

[[Page 649]]

method used to determine current fair market value if the grantee 
reimburses the bureau for its share.
    (2) A physical inventory of property shall be taken and the results 
reconciled with the property records at least once every two years to 
verify the existence, current use, and continued need for the property.
    (3) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft to the property. Any loss, 
damage, or theft of nonexpendable property shall be investigated and 
fully documented.
    (4) Adequate maintenance procedures shall be implemented to keep the 
property in good condition.
    (5) Proper sales procedures shall be established for unneeded 
property which would provide for competition to the extent practicable 
and result in the highest possible return.
    (f) When the total inventory value of any unused expendable personal 
property exceeds $500 at the expiration of need for any grant purposes, 
the grantee may retain the property or sell the property as long as he 
compensates the Bureau for its share in the cost. The amount of 
compensation shall be computed in accordance with paragraph 
(d)(1)(ii)(B) of this section.
    (g) Specific standards for control of intangible property are 
provided as follows:
    (1) If any program produces patentable items, patent rights, 
processes, or inventions, in the course of work aided by a Bureau grant, 
such fact shall be promptly and fully reported to the Bureau. Unless 
there is prior agreement between the grantee and Bureau on disposition 
of such items, the Bureau shall determine whether protection on such 
invention or discovery shall be sought and how the rights in the 
invention or discovery--including rights under any patent issued on it--
shall be allocated and administered in order to protect the public 
interest consistent with ``Government Patent Policy'' (President's 
memorandum for heads of executive departments and agencies), dated 
August 23, 1971, and Statement of Government Patent Policy as printed in 
36 FR 16889.
    (2) Where the grant results in a book or other copyrightable 
material, the author or grantee is eligible to copyright the work if it 
is found that (i) the retention of the copyright is not precluded by 
statute and (ii) equity or the public interest is best served by doing 
so, by reason of special circumstances. If it is found that the public 
interest is best served by limiting the term of any copyright to be 
obtained, such limits shall be set forth in the grant agreement. 
``Developmental'' copyrights may be requested during the development, 
testing, or evaluation of copyrightable materials in order to prevent 
them from prematurely falling into the public domain. The copyright will 
be in accordance with copyright laws. However, the Government shall 
receive a royalty-free, nonexclusive and irrevocable license to 
reproduce, publish, or otherwise use, and to authorize others to use the 
work for Government purposes. A copy of any copyright obtained by a 
grantee shall be provided to the Bureau. Program income received as 
royalties from copyrights on materials produced under grants is retained 
by the grantee during the grant period and is to be used according to 
the provisions of Sec. 276.6(c). Specific agreements between the Bureau 
and the grantee shall be entered into before the grant is awarded to 
determine the uses of the royalty income after the grant is completed or 
terminated.
    (h) The use of Bureau-owned facilities under the jurisdiction of the 
Commissioner by a grantee for purposes of carrying out a grant may be 
authorized when the facilities are not needed for Bureau purposes.

[40 FR 51316, Nov. 4, 1975, as amended at 43 FR 37446, Aug. 23, 1978]



Sec. 276.12  Procurement standards.

    (a) The standards contained in this section do not relieve the 
grantee of the contractual responsibilities arising under its contracts. 
The grantee is the responsible authority, without recourse to the Bureau 
regarding the settlement and satisfaction of all contractual and 
administrative issues arising out of procurements entered into, in 
support of a grant. This includes but is not limited to: disputes, 
claims, protests of award, source evaluation or other matters of a 
contractual nature. Matters concerning violation of law are

[[Page 650]]

to be referred to the tribal, Federal or other authority which has 
proper jurisdiction.
    (b) Grantees may use their own procurement regulations provided that 
procurements made with Bureau grant funds adhere to the standards set 
forth as follows:
    (1) The grantee shall maintain a code or standards of conduct which 
shall govern the performance of its officers, employees, or agents in 
contracting with and expending Bureau grant funds. Grantee's officers, 
employees or agents, shall neither solicit nor accept gratuities, 
favors, or anything of monetary value from contractors or potential 
contractors. To the extent permissible by law, rules or regulations, 
such standards shall provide for penalties, sanctions, or other 
disciplinary actions to be applied for violations of such standards by 
either the grantee officers, employees, or agents, or by contractors or 
their agents.
    (2) All procurement transactions regardless of whether negotiated or 
advertised and without regard to dollar value shall be conducted in a 
manner so as to provide maximum open and free competition. The grantee 
should be alert to organizational conflicts of interest or non-
competitive practices among contractors which may restrict or eliminate 
competition or otherwise restrain trade. However, this provision will 
apply only after the Indian preference requirements prescribed in 
Sec. 276.13 have been met.
    (3) The grantee shall establish procurement procedures which provide 
for, as a minimum, the following procedural requirements:
    (i) Proposed procurement actions shall be reviewed by grantee 
official to avoid purchasing unnecessary or duplicative items. Where 
appropriate, an analysis shall be made of lease and purchase 
alternatives to determine which would be the most economical, practical 
procurement.
    (ii) Invitations for bids or requests for proposals shall be based 
upon a clear and accurate description of the technical requirements for 
the material, product, or service to be procured. In competitive 
procurements, such description shall not contain features which unduly 
restrict competition. ``Brand name or equal'' description may be used as 
a means to define the performance or other salient requirements of a 
procurement. When so used, the specific features of the named brand 
which must be met by offerors should be clearly specified.
    (iii) Positive efforts shall be made by the grantees to use small 
business and minority-owned business sources of supplies and services. 
Such efforts should allow these sources the maximum feasible opportunity 
to compete for contracts to be performed using Bureau grant funds. 
However, this provision will apply only after the Indian preference 
requirements prescribed in Sec. 276.13 have been met.
    (iv) The type of procuring instruments used (i.e., fixed price 
contracts, cost reimbursable contracts, etc.) shall be appropriate for 
the particular procurement and for promoting the best interest of the 
grant program involved. The ``cost-plus-a-percentage-of-cost'' method of 
contracting shall not be used.
    (v) Formal advertising, with adequate purchase description, sealed 
bids, and public openings shall be the required method of procurement 
unless negotiation pursuant to paragraph (b)(3)(vi) of this section is 
necessary to accomplish sound procurement. However, procurement of 
$10,000 or less need not be so advertised. Where such advertised bids 
are obtained the awards shall be made to the responsible bidder whose 
bid is responsive to the invitation and is most advantageous to the 
grantee, price and other factors considered. (Factors such as discounts, 
transportation costs, taxes may be considered in determining the lowest 
bid.) Invitations for bids shall clearly set forth all requirements 
which the bidder must fulfill in order for his bid to be evaluated by 
the grantee. Any or all bids may be rejected when it is in the grantee's 
interest to do so.
    (vi) Procurements may be negotiated if it is impractical and 
unfeasible to use formal advertising. Generally, procurements may be 
negotiated by the grantee if:
    (A) The public exigency will not permit the delay incident to 
advertising;
    (B) The material or service to be procured is available from only 
one person

[[Page 651]]

or firm; (all contemplated sole source procurements where the aggregate 
expenditure is expected to exceed $5,000 shall be referred to the Bureau 
for prior approval).
    (C) The total amount involved does not exceed $10,000;
    (D) The contract is for personal or professional services, or for 
any service to be rendered by a university, college, or other 
educational institutions;
    (E) No acceptable bids have been received after formal advertising;
    (F) The purchases are for highly perishable materials or medical 
supplies; for material or services where the prices are established by 
law; for technical items or equipment requiring standardization and 
interchangeability of parts with existing equipment; for experimental, 
developmental or research work; for supplies purchased for authorized 
resale; and for technical or specialized supplies requiring substantial 
initial investment for manufacture;
    (G) Otherwise authorized by law, rules or regulations. 
Notwithstanding the existence of circumstances justifying negotiation, 
competition shall be obtained to the maximum extent practicable.
    (vii) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of a proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources, or accessibility to other necessary 
resources.
    (viii) Procurement records or files for purchases in amounts over 
$10,000 shall provide at least the following pertinent information: 
Justification for the use of negotiation in lieu of advertising, 
contractor selection, and the basis for the cost or price negotiation.
    (ix) A system for contract administration shall be maintained to 
assure contractor conformance with terms, conditions, and specifications 
of the contract or order, and to assure adequate and timely followup of 
all purchases.
    (c) In addition to provisions to define a sound and complete 
agreement, the grantee shall include the following provisions in all 
contracts and subgrants:
    (1) Contracts shall contain such contractual provisions or 
conditions which will allow for administrative, contractual, or legal 
remedies in instances where contractors violate or breach contract 
terms, and provide for such sanctions and penalties as may be 
appropriate.
    (2) All contracts, amounts for which are over $10,000 shall contain 
suitable provisions for termination by the grantee including the manner 
by which it will be effected and the basis for settlement. In addition, 
such contracts shall describe conditions where the contract may be 
terminated for default as well as conditions where the contract may be 
terminated because of circumstances beyond the control of the 
contractor.
    (3) In all contracts for construction or facility improvement 
awarded over $100,000, grantees shall observe the bonding requirements 
provided in Sec. 276.4.
    (4) All construction contracts awarded by recipients and their 
contractors or subgrantees having a value of more than $10,000, shall 
contain a provision requiring compliance with Executive Order 11246, 
entitled ``Equal Employment Opportunity,'' as amended by Labor 
Regulations (41 CFR part 87). However, this Equal Employment Opportunity 
provision will apply only after the Indian preference requirements 
prescribed in Sec. 276.13 have been met.
    (5) All contracts and subgrants for construction or repair shall 
include a provision for compliance with the Copeland ``Anti-Kick Back'' 
Act (18 U.S.C. 874) as supplemented in Department of Labor regulations 
(29 CFR part 3). This Act provides that each contractor or subgrantee 
shall be prohibited from inducing, by any means, any person employed in 
the construction, completion, or repair of public work, to give up any 
part of the compensation to which he is otherwise entitled. The grantee 
shall report all suspected or reported violations to the Bureau.

[[Page 652]]

    (6) When required by the Federal grant program legislation, all 
construction contracts awarded by grantees and subgrantees over $2,000 
shall include a provision for compliance with the Davis-Bacon Act (40 
U.S.C. 276a to a-7) and as supplemented by Department of Labor 
regulations (29 CFR part 5). Under this Act, contractors shall be 
required to pay wages to laborers and mechanics at a rate not less than 
the minimum wages specified in a wage determination made by the 
Secretary of Labor. In addition, contractors shall be required to pay 
wages not less often than once a week. The grantee shall place a copy of 
the current prevailing wage determination issued by the Department of 
Labor in each solicitation and the award of a contract shall be 
conditioned upon the acceptance of the wage determination. The grantee 
shall report all suspected or reported violations to the Bureau.
    (7) Where applicable, all contracts awarded by grantees and 
subgrantees over $2,000 for construction contracts and over $2,500 for 
other contracts which involve the employment of mechanics or laborers 
shall include a provision for compliance with sections 103 and 107 of 
the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
Section 103 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work day 
of 8 hours and a standard work week of 40 hours. Work in excess of the 
standard workday or workweek is permissible if the worker is compensated 
at a rate of not less than 1\1/2\ times the basic rate of pay for all 
hours worked over 8 hours in any calendar day or 40 hours in the work 
week. Section 107 of the Act applies to construction work and provides 
that no laborer or mechanic shall be required to work in surroundings or 
under working conditions which are unsanitary, hazardous, or dangerous 
to his health and safety as determined under construction, safety, and 
health standards promulgated by the Secretary of Labor. These 
requirements do not apply to the purchases of supplies or materials or 
articles ordinarily available on the open market, or contracts for 
transportation or transmission of intelligence.
    (8) Contracts or agreements, the principal purpose of which is to 
create, develop, or improve products, processes or methods; or for 
exploration into fields which directly concern public health, safety, or 
welfare; or constraints in the field of science or technology in which 
there has been little significant experience outside of work funded by 
Federal assistance, shall contain a notice to the effect that matters 
regarding rights to inventions, and materials generated under the 
contract or agreement are subject to the regulations issued by the 
Bureau. The contractor shall be advised as to the source of additional 
information regarding these matters.
    (9) All negotiated contracts (except those of $10,000 or less) 
awarded by grantees shall include a provision to the effect that the 
grantee, the Bureau, the Comptroller General of the United States, or 
any of their duly authorized representatives, shall have access to any 
books, documents, papers, and records of the contractor which are 
directly pertinent to a specific grant program for the purpose of making 
audit, examination, excerpts, and transcriptions.
    (10) Contracts and subgrants of amounts over $100,000 shall contain 
a provision which requires the recipient to agree to comply with all 
applicable standards, orders, or regulations issued pursuant to the 
Clean Air Act of 1970 (42 U.S.C. 1251 et seq.) as amended. Violations 
shall be reported to the Bureau and the Regional Office of the 
Environmental Protection Agency.



Sec. 276.13  Indian preference in grant administration.

    Any grant or subgrant shall require that to the greatest extent 
feasible:
    (a) Preferences and opportunities for training and employment in 
connection with the administration of such a grant or subgrant shall be 
given to Indians.
    (b) Preference in the award of a subgrant, contract or subcontract 
in connection with administration of a grant shall be given to Indian 
organizations and economic enterprises.

[[Page 653]]

    (c) A tribal governing body may develop its own Indian preference 
requirements to the extent that such requirements are not inconsistent 
with the purpose and intent of paragraphs (a) and (b) of this section 
for grants executed under this part.



Sec. 276.14  Budget revision.

    Criteria and procedures to be followed by grantees in reporting 
deviations from grant budgets and requesting approval for budget 
revisions are as follows:
    (a) For nonconstruction grants, grantees shall request prior 
approvals promptly from the Bureau for budget revisions whenever:
    (1) The revision results from changes in the scope or the objective 
of the grant-supported program.
    (2) The revision indicates the need for additional Bureau funding.
    (3) The grant budget is over $100,000 and the cumulative amount of 
transfers among direct cost object class budget categories exceeds or is 
expected to exceed $10,000, or five percent of the grant budget, 
whichever is greater. The same criteria apply to cumulative amount of 
transfers among programs, functions, and activities when budgeted 
separately for a grant, except that the Bureau shall permit no transfer 
which would cause any Federal appropriation, or part thereof, to be used 
for purposes other than those intended.
    (4) The grant budget is $100,000, or less, and the cumulative amount 
of transfers among direct cost object class budget categories exceeds or 
is expected to exceed five percent of the grant budget. The same 
criteria apply to the cumulative amount of transfers among programs, 
functions, and activities when budgeted separately for a grant, except 
that the Bureau shall permit no transfer which would cause any Federal 
appropriation, or part thereof, to be used for purposes other than those 
intended.
    (5) The revisions involve the transfer of amounts budgeted for 
indirect costs to absorb increases in direct costs.
    (6) The revisions pertain to the addition of items requiring 
approval in accordance with the provisions of appendix A of this part.
    (b) All other changes to nonconstruction grant budgets, except for 
the changes described in paragraph (d) of this section do not require 
approval. These changes include:
    (1) The use of grantee funds in furtherance of program objectives 
over and above the grantee minimum share included in the approved grant 
budget and
    (2) The transfer of amounts budgeted for direct costs to absorb 
authorized increases in indirect costs.
    (c) For construction grants, grantees shall request prior approval 
promptly from the Bureau for budget revisions whenever:
    (1) The revision results from changes in the scope or the objective 
of the grant-supported programs.
    (2) The revision increases the budgeted amounts of Bureau funds 
needed to complete the project.
    (d) When the Bureau awards a grant which provides support for both 
construction and nonconstruction work, the Bureau may require, in the 
grant agreement, the grantee to request prior approval before making any 
fund or budget transfers between the two types of work supported.
    (e) For both construction and nonconstruction grants, the Bureau 
shall require tribal grantees to notify the Bureau promptly whenever the 
amount of Bureau authorized funds is expected to exceed the needs of the 
grantee by more than $5,000 or 5 percent of the Bureau grant, whichever 
is greater. This notification will not be required when applications for 
additional funding are submitted for continuing grants.
    (f) When requesting approval for budget revisions, grantees shall 
use the budget forms which were used in the grant application. However, 
grantees may request by letter the approvals required by the provisions 
of appendix A of this part.
    (g) Within 30 days from the date of receipt of the request for 
budget revisions, the Bureau shall review the request and notify the 
grantee whether or not the budget revisions have been approved. If the 
Bureau does not reach a decision prior to the end of the 30-day period 
or should the grantee not be notified of the Bureau's decision by the 
end of the 30-day period the grantee

[[Page 654]]

may appeal directly to the Commissioner.



Sec. 276.15  Grant closeout.

    (a) In closing out Bureau grants, the following shall be observed:
    (1) Upon request, the Bureau shall make prompt payments to a grantee 
for allowable reimbursable costs under the grant being closed out.
    (2) The grantee shall immediately refund to the Bureau any 
unencumbered balance of cash advanced to the grantee.
    (3) The Bureau shall obtain from the grantee within 90 days after 
the date of completion of the grant all financial, peformance, and other 
reports required as a condition of the grant. The Bureau may grant 
extensions when requested by the grantee.
    (4) The Bureau shall make a settlement for any upward or downward 
adjustments to the Federal share of costs after these reports are 
received.
    (5) The grantee shall account for any property acquired with grant 
funds, or received from the Government in accordance with the provisions 
of Sec. 276.11.
    (6) If a final audit has not been performed before the closeout of 
the grant, the Bureau shall retain the right to recover an appropriate 
amount after fully considering the recommendations on disallowed costs 
resulting from the final audit.
    (b) Suspension. When a grantee has materially failed to comply with 
the terms and conditions of a grant, the Bureau may after reasonable 
notice to the grantee, suspend the grant. The notice preceding 
suspension shall include the effective date of the suspension, the 
reasons for the suspension, the corrective measures necessary for 
reinstatement of the grant, and, if there is no immediate threat to 
safety, a reasonable time frame for corrective action prior to actual 
suspension. No obligations incurred by the grantee during the period of 
suspension shall be allowable under the suspended grant, except that the 
Bureau may at its discretion allow necessary and proper costs which the 
grantee could not reasonably avoid during the period of suspensions if 
such costs would otherwise be allowable under the applicable cost 
principles specified in appendix A of this part. Appropriate adjustments 
to the payments under the suspended grant will be made, either by 
withholding the payments or by not allowing the grantee credit for 
disbursements which he may make in liquidation of unauthorized 
obligations he incurs during the period of suspension. Suspensions shall 
remain in effect until the grantee has taken corrective action to the 
satisfaction of the Bureau or given assurances satisfactory to the 
Bureau that corrective action will be taken, or until the Bureau cancels 
the grant.
    (c)(1) Cancellation for cause. The Bureau may cancel any grant in 
whole, or in part, at any time before the date of completion, whenever 
it is determined that the grantee has:
    (i) Materially failed to comply with the terms and conditions of the 
grant;
    (ii) Violated the rights or endangered the health, safety, or 
welfare of any persons;
    (iii) Been grossly negligent in or has mismanaged the handling or 
use of funds provided under the grant.
    (2) When it appears that cancellation of a grant shall become 
necessary, the Bureau shall promptly notify the grantee in writing of 
this possibility. This written notice shall advise the grantee of the 
reason for the possible cancellation and the corrective action necessary 
to avoid cancellation. The Bureau shall also offer, and provide if 
requested by the grantee, any technical assistance which may be required 
to effect the corrective action. The grantee shall have 60 days in which 
to effect this corrective action before the Bureau provides notice of 
intent to cancel the grant as provided in paragraph (c)(3) of this 
section.
    (3) Upon deciding to cancel for cause, the Bureau shall promptly 
notify the grantee in writing of that decision, the reasons for the 
cancellation, and the effective date. The Bureau shall also provide a 
hearing for the grantee before cancellation, as provided in Sec. 272.51. 
However, the Bureau may immediately cancel the grant, upon notice to the 
grantee, if the Bureau determines that continuance of the grant poses an 
immediate threat to safety. In this event, the Bureau shall provide a 
hearing for the grantee within ten (10) days of cancellation.

[[Page 655]]

    (4) Payments made to grantees or recoveries by the Bureau under 
grants cancelled for cause shall be in accordance with the legal rights 
and obligations of the parties.
    (d)(1) Cancellation on other grounds. Except as provided in 
paragraph (c) of this section, grants may be cancelled in whole or in 
part only as follows:
    (i) By the Bureau with the consent of the grantee, in which case the 
two parties shall agree upon the cancellation conditions, including the 
effective date, and in the case of partial cancellation, the portion to 
be cancelled; or
    (ii) By the grantee, upon written notice to the Bureau, setting 
forth the reasons for the cancellation, the effective date, and, in the 
case of partial cancellation, the portion to be cancelled.
    (2) When a grant is cancelled in accordance with paragraph (d) of 
this section, the grantee shall not incur new obligations for the 
cancelled portion after the effective date, and shall cancel as many 
outstanding obligations as possible. The Bureau shall allow full credit 
to the grantee for the Bureau share of the noncancellable obligations 
properly incurred by the grantee before cancellation.

[40 FR 51316, Nov. 4, 1975, as amended at 45 FR 13452, Feb. 29, 1980]



Sec. 276.16  Subgrants and subcontracts to non-profit organizations.

    The uniform administrative requirements in this part, including the 
cost principles in appendix A, to this part, are applicable to all 
subgrants or subcontracts made by a grantee in accordance with the 
provisions of this chapter. However, these requirements and cost 
principles are applicable as minimum standards for subgrants or 
subcontracts made to nonprofit organizations. Accordingly, the grantee 
may prescribe additional or more stringent requirements with regard to 
subgrants or subcontracts made to non-profit organizations.



Sec. 276.17  Printing.

    As permitted by paragraph 36-2(c) in the Government Printing and 
Binding Regulations (October 1974, No. 23), published by the Joint 
Committee on Printing (JCP), printing required by a grantee in 
performing work under a grant is considered ``incidental printing'' 
(e.g., material which the grantee needs to use to respond to the terms 
of the grant). Whenever the incidental printing is likely to exceed the 
exclusions in paragraphs 36-3 and 36-4 of the Joint Committee on 
Printing (JCP) Printing and Binding Regulations, specific provisions on 
printing as may be required shall be included in the grant agreement. 
Grantees shall be given the option of using sources other than the 
Government Printing Office for incidental printing.

[43 FR 37446, Aug. 23, 1978]

 Appendix A to Part 276--Principles for Determining Costs Applicable to 
                                 Grants

                             part i--general

    A. Purpose and scope. 1. Objectives. This attachment sets forth 
principles for determining the allowable costs of programs administered 
by grantees under grants from the Bureau. The principles are for the 
purpose of cost determination and are not intended to identify the 
circumstances or dictate the extent of Bureau and tribal participation 
in the financing of a particular grant. They are designed to provide 
that Bureau assisted programs bear their fair share of costs recognized 
under these principles, except where restricted or prohibited by law. No 
provision for profit or other increment above cost is intended.
    2. Policy guides. The application of these principles is based on 
the fundamental premises that:
    a. Grantees are responsible for the efficient and effective 
administration of grant programs through the application of sound 
management practices.
    b. The grantee assumes the responsibility for seeing that Bureau 
assisted program funds have been expended and accounted for consistent 
with underlying agreements and program objectives.
    c. Each grantee organization, in recognition of its own unique 
combination of staff facilities and experience, will have the primary 
responsibility for employing whatever form of organization and 
management techniques may be necessary to assure proper and efficient 
administration.
    3. Application. These principles will be applied by the Bureau in 
determining costs incurred by grantees under Bureau grants (including 
subgrants, contracts by grantees and subcontracts).

[[Page 656]]

    B. Definitions. 1. Approval or authorization of the Bureau  means 
documentation evidencing consent prior to incurring specific cost.
    2. Cost allocation plan means the documentation identifying, 
accumulating, and distrtibuting allowable costs under grants and 
contracts together with the allocation methods used.
    3. Cost, as used herein, means cost as determined on a cash, 
accrual, or other basis acceptable to the Bureau as a discharge of the 
grantee's accountability for Bureau funds.
    4. Cost objective means a pool, center, or area established for the 
accumulation of cost. Such areas include organizational units, 
functions, objects or items of expense as well as ultimate cost 
objectives including specific grants, projects, contracts, and other 
activities.
    5. Federal agency means any department, agency, commission, or 
instrumentality in the executive branch of the Federal Government which 
makes grants to grantees.
    6. Grant means an agreement between the Bureau and a grantee whereby 
the Bureau provides funds or aid in kind to carry out specified 
programs, services, or activities. The principles and policies stated in 
this Appendix as applicable to grants in general also apply to any 
Federally sponsored cost reimbursement type of agreement performed by a 
grantee, including contracts, subcontracts and subgrants.
    7. Grant program means those activities and operations of the 
grantee which are necessary to carry out the purposes of the grant, 
including any portion of the program financed by the grantee.
    8. Grantee means the entity which is responsible for administration 
of the grant.
    9. Services, as used herein, means goods and facilities, as well as 
services.
    10. Supporting services means auxiliary functions necessary to 
sustain the direct effort involved in administering a grant program or 
an activity providing service to the grant program. These services may 
be centralized in the grantee department or in some other agency, and 
include procurement, payroll, personnel functions, maintenance and 
operation of space, data processing, accounting, budgeting, auditing, 
mail and messenger service, and the like.
    C. Basic guidelines. 1. Factors affecting allowability of costs. To 
be allowable under a grant program, costs must meet the following 
general criteria:
    a. Be necessary and reasonable for proper and efficient 
administration of the grant program, be allocable thereto under these 
principles, and, except as specifically provided herein, not be a 
general expense required to carry out the overall responsibilities of a 
grantee.
    b. Be authorized or not prohibited under applicable laws or 
regulations.
    c. Conform to any limitations or exclusions set forth in these 
principles, Federal laws, or other governing limitations as to types or 
amounts of cost items.
    d. Be consistent with policies, regulations, and procedures that 
apply uniformly to both Federally assisted and other activities of which 
the grantee is a part.
    e. Be accorded consistent treatment through application of generally 
accepted accounting principles appropriate to the circumstances.
    f. Not be allocable to or included as a cost of any other Federally 
financed program in either the current or a prior period.
    g. Be net of all applicable credits.
    2. Allocable costs. a. A cost is allocable to a particular cost 
objective to the extent of benefits received by such objective.
    b. Any cost allocable to a particular grant or cost objective under 
the principles provided for in this Appendix may not be shifted to other 
Federal grant programs to overcome funds deficiencies, avoid 
restrictions imposed by law or grant agreements, or for other reasons.
    c. Where an allocation of joint cost will ultimately result in 
charges to a grant program, an allocation plan will be required as 
prescribed in Section I.
    3. Applicable credits. a. Applicable credits refer to those receipts 
or reduction of expenditure-type transactions which offset or reduce 
expense items allocable to grants as direct or indirect costs. Examples 
of such transactions are: purchase discounts; rebates or allowances; 
recoveries or indemnities on losses; sale of publications, equipment, 
and scrap; income from personal or incidental services; and adjustments 
of overpayments or erroneous charges.
    b. Applicable credits may also arise when Bureau funds are received 
or are available from sources other than the grant program involved to 
finance operations or capital items of the grantee. This includes costs 
arising from the use of depreciation of items donated or financed by the 
Bureau to fulfill matching requirements under another grant program. 
These types of credits should likewise be used to reduce related 
expenditures in determining the rates or amounts applicable to a given 
grant.
    D. Composition of cost. 1. Total cost. The total cost of a grant 
program is comprised of allowable direct cost incident to its 
performance, plus its allocable portion of allowable indirect costs, 
less applicable credits.
    2. Classification of costs. There is no universal rule for 
classifying certain costs as either direct or indirect under every 
accounting system. A cost may be direct with respect to some specific 
service or function, but indirect with respect to the grant or other 
ultimate cost objective. It is essential, therefore, that each item of 
cost be treated consistently either as a direct or an indirect

[[Page 657]]

cost. Specific guides for determining direct and indirect costs 
allocable under grant programs are provided in the sections which 
follow.
    E. Direct costs. 1. General. Direct costs are those that can be 
identified specifically with a particular cost objective. These costs 
may be charged directly to grants, contracts, or to other programs 
against which costs are finally lodged. Direct costs may also be charged 
to cost objectives used for the other ultimate cost objective.
    2. Application. Typical direct costs chargeable to grant programs 
are:
    a. Compensation of employees for the time and effort devoted 
specifically to the execution of grant programs.
    b. Cost of materials acquired, consumed, or expended specifically 
for the purpose of the grant.
    c. Equipment and other approved capital expenditures.
    d. Other items of expense incurred specifically to carry out the 
grant agreement.
    e. Services furnished specifically for the grant program by other 
agencies, provided such charges are consistent with criteria outlined in 
Section G of these principles.
    F. Indirect costs. 1. General. Indirect costs are those (a) incurred 
for a common or joint purpose benefiting more than one cost objective, 
and (b) not readily assignable to the cost objectives specifically 
benefited, without effort disproportionate to the results achieved. The 
term ``indirect costs,'' as used herein, applies to costs of this type 
originating in the grantee department, as well as those incurred by 
other departments in supplying goods, services, and facilities, to the 
grantee department. To facilitate equitable distribution of indirect 
expenses to the cost objectives served, it may be necessary to establish 
a number of pools of indirect cost within a grantee department or in 
other agencies providing services to a grantee department. Indirect cost 
pools should be distributed to benefiting cost objectives on bases which 
will produce an equitable result in consideration or relative benefits 
derived.
    2. Grantee departmental indirect costs. All grantee departmental 
indirect costs, including the various levels of supervision, are 
eligible for allocation to grant programs provided they meet the 
conditions set forth in this Part. In lieu of determining the actual 
amount of grantee departmental indirect cost allocable to a grant 
program, the following methods may be used:
    a. Predetermined fixed rates for indirect costs. A predetermined 
fixed rate for computing indirect costs applicable to a grant may be 
negotiated annually in situations where the cost experience and other 
pertinent facts available are deemed sufficient to enable the 
contracting parties to reach an informed judgment (1) as to the probable 
level of indirect costs in the grantee department during the period to 
be covered by the negotiated rate, and (2) that the amount allowable 
under the predetermined rate would not exceed actual indirect cost.
    b. Negotiated lump sum for overhead. A negotiated fixed amount in 
lieu of indirect costs may be appropriate under circumstances where the 
benefits derived from a grantee department's indirect services cannot be 
readily determined as in the case of small, self-contained or isolated 
activity. When this method is used, a determination should be made that 
the amount negotiated will be approximately the same as the actual 
indirect cost that may be incurred. Such amounts negotiated in lieu of 
indirect costs will be treated as an offset to total indirect expenses 
of the grantee department before allocation to remaining activities. The 
base on which such remaining expenses are allocated should be 
appropriately adjusted.
    3. Limitation on indirect costs. a. Bureau grants may be subject to 
laws that limit the amount of indirect costs that may be allowed. In 
this event, the Bureau will establish procedures which will assure that 
the amount actually allowed for indirect costs under each such grant 
does not exceed the maximum allowable under the statutory limitation or 
the amount otherwise allowable under this Appendix, whichever is the 
smaller.
    b. When the amount allowable under a statutory limitation is less 
than the amount otherwise allocable as indirect costs under this 
Appendix the amount not recoverable as indirect costs under a grant may 
not be shifted to another Federally sponsored grant program or contract.
    G. Cost incurred by organizations other than the grantee. 1. 
General. The cost of service provided by other organizations may only 
include allowable direct costs of the service plus a prorata share of 
allowable supporting costs and supervision directly required in 
performing the service, but not supervision of a general nature such as 
that provided by the head of an organization and his staff assistants 
not directly involved in operations. However, supervision by the head of 
an organization whose sole function is providing the service furnished 
would be an eligible cost. Supporting costs include those furnished by 
other units of the supplying organizations.
    2. Alternative methods of determining indirect cost. In lieu of 
determining actual indirect cost related to a particular service 
furnished by another organization, either of the following alternative 
methods may be used provided only one method is used for a specific 
service during the fiscal year involved.
    a. Standard indirect rate. An amount equal to ten percent of direct 
labor cost in providing the service performed by another organization 
(excluding overtime, shift, or holiday

[[Page 658]]

premiums and fringe benefits) may be allowed in lieu of actual allowable 
indirect cost for that service.
    b. Predetermined fixed rate. A predetermined fixed rate for indirect 
cost of the unit or activity providing service may be negotiated as set 
forth in Section F.2.a.
    H. Cost incurred by grantee for others. 1. General. The principles 
provided in Section G will also be used in determining the cost of 
services provided by the grantee to another agency.
    I. Cost allocation plan. 1. General. A plan for allocation of costs 
will be required to support the distribution of any joint costs related 
to the grant program. All costs included in the plan will be supported 
by formal accounting records which will substantiate the propriety of 
eventual charges.
    2. Requirements. The allocation plan of the grantee should cover all 
joint costs of the grantees as well as costs to be allocated under plans 
of other agencies or organizational units which are to be included in 
the costs of federally sponsored programs. The cost allocation plans of 
all the agencies rendering services to the grantee, to the extent 
feasible, should be presented in a single document. The allocation plan 
should contain, but not neessarily be limited to, the following:
    a. The nature and extent of services provided and their relevance to 
the federally sponsored programs.
    b. The items of expense to be included.
    c. The methods to be used in distributing cost.
    3. Instructions for preparation of cost allocation plans. The 
Bureau, in consultation with the other Federal agencies concerned, will 
be responsible for developing and issuing the instructions for use by 
grantees in preparation of cost allocation plans.
    4. Submission of indirect cost proposal and negotiation of indirect 
cost rates.
    a. A grantee should submit its indirect cost proposal to the Federal 
agency which provides the largest dollar volume of contracts and grants. 
However, once a Federal agency has handled an indirect cost proposal, 
that same Federal agency should continue to act upon the proposal even 
though the preponderance of financial interest may have shifted to 
another Federal agency, and grantee shall not resubmit its indirect cost 
proposal to a second Federal agency.
    b. Where the grantee submits its proposal to the Department of 
Interior, the proposal should be sent by the Bureau of Indian Affairs to 
the cognizant Regional Office of the Department's Office of Audit and 
Investigation. The Office of Audit and Investigation is responsible for 
the audit and review of the proposals and negotiation of the indirect 
cost rates.
    c. Grant administrators officers will usually, but are not required 
to, accept indirect cost rates negotiated by other Federal agencies.
    d. The Bureau of Indian Affairs will provide technical assistance in 
developing indirect cost proposals, if needed.

              Part II--Standards for Selected Items of Cost

    A. Purpose and applicability. 1. Objective. This attachment provides 
standards for determining the allowability of selected items of cost.
    2. Application. These standards will apply irrespective of whether a 
particular item of cost is treated as direct or indirect cost. Failure 
to mention a particular item of cost in the standards is not intended to 
imply that it is either allowable or unallowable, rather determination 
of allowability in each case should be based on the treatment of 
standards provided for similar or related items of cost. The 
allowability of the selected items of cost is subject to the general 
policies and principles stated in Part I of this Appendix.
    B. Allowable costs. 1. Accounting. The cost of establishing and 
maintaining accounting and other information systems required for the 
management of grant programs is allowable. This includes cost incurred 
by central service agencies for these purposes. The cost of maintaining 
central accounting records required for overall tribal government 
purposes, such as appropriation and fund accounts by the Treasurer, 
Comptroller, or similar officials, is considered to be a general expense 
of government and is not allowable.
    2. Advertising. Advertising media includes newspapers, magazines, 
radio and television programs, direct mail, trade papers, and the like. 
The advertising costs allowable are those which are solely for:
    a. Recruitment of personnel required for the grant program.
    b. Solicitation of bids for the procurement of goods and services 
required.
    c. Disposal of scrap or surplus materials acquired in the 
performance of the grant agreement.
    d. Other purposes specifically provided for in the grant agreement.
    3. Advisory councils. Costs incurred by grantee advisory councils or 
committees established pursuant to Bureau requirements to carry out 
grant programs are allowable. The cost of like organizations is 
allowable when provided for in the grant agreement.
    4. Audit service. The cost of audits necessary for the 
administration and management of functions related to grant programs is 
allowable.
    5. Bonding. Costs of premiums on bonds covering employees who handle 
grantee funds are allowable.

[[Page 659]]

    6. Budgeting. Costs incurred for the development, preparation, 
presentation, and execution of budgets are allowable. Costs for services 
of a central budget office are generally not allowable since these are 
costs of general government. However, where employees of the central 
budget office activity participate in the grantee budget process, the 
cost of identifiable services is allowable.
    7. Building lease management. The administrative cost for lease 
management which includes review of lease proposals, maintenance of a 
list of available property for lease, and related activities is 
allowable.
    8. Central stores. The cost of maintaining and operating a central 
store's organization for supplies, equipment, and materials used either 
directly or indirectly for grant programs is allowable.
    9. Communications. Communication costs incurred for telephone calls 
or service, telegraph, teletype service, wide area telephone service 
(WATS), centrex, telpak (tie lines), postage, messenger service and 
similar expenses are allowable.
    10. Compensation for personal services. a. General. Compensation for 
personal services includes all remuneration, paid currently or accrued, 
for services rendered during the period of performance under the grant 
agreement, including but not necessarily limited to wages, salaries, and 
supplementary compensation and benefits. The costs of such compensation 
are allowable to the extent that total compensation for individual 
employees: (1) Is responsible for the services rendered, (2) follows an 
appointment made in accordance with tribal government ordinances and 
rules and which meets Federal merit system or other requirements, where 
applicable; and (3) is determined and supported as provided in b., 
below. Compensation for employees engaged in federally assisted 
actvities will be considered reasonable to the extent that it is 
consistent with that paid for similar work in other activities of the 
tribal government. In cases where the kinds of employees required for 
the federally assisted activities are not found in the other activities 
of the tribal government, compensation will be considered reasonable to 
the extent that it is comparable to that paid for similar work in the 
labor market in which the employing government competes for the kind of 
employees involved. Compensation surveys providing data representative 
of the labor market involved will be an acceptable basis for evaluating 
reasonableness.
    b. Payroll and distribution of time. Amounts charged to grant 
programs for personal services, regardless of whether treated as direct 
or indirect costs, will be based on payrolls documented and approved in 
accordance with generally accepted practice of the tribal government. 
Payrolls must be supported by time and attendance or equivalent records 
for individual employees. Salaries and wages of employees chargeable to 
more than one grant program or other cost objective will be supported by 
appropriate time distribution records. The method used should produce an 
equitable distribution of time and effort.
    11. Depreciation and use allowance. a. Grantees may be compensated 
for the use of their own buildings, capital improvements, and equipment 
through use allowances or depreciation. Use allowances are the means of 
providing compensation in lieu of depreciation or other equivalent 
costs. However, a combination of the two methods may not be used in 
connection with a single class of fixed assets.
    b. The computation of depreciation or use allowance will be based on 
acquisition cost. Where actual cost records have not been maintained, a 
reasonable estimate of the original acquisition cost may be used in the 
computation. The computation will exclude the cost or any portion of the 
cost of buildings and equipment donated or borne directly or indirectly 
by the Federal Government through charges to Federal grant programs or 
otherwise, irrespective of whether title was originally vested or where 
it presently resides. In addition, the computation will also exclude the 
cost of land. Depreciation or a use allowance on idle or excess 
facilities is not allowable, except when specifically authorized by the 
grantor Federal agency.
    c. Where the depreciation method is followed, adequate property 
records must be maintained, and any generally accepted method of 
computing depreciation must be consistently applied for any specific 
asset or class of assets for all affected Federally sponsored programs 
and must result in equitable charges considering the extent of the use 
of the assets for benefit of such programs.
    d. In lieu of depreciation, a use allowance for buildings and 
improvements may be computed at an annual rate not exceeding two percent 
of acquisition cost. The use allowance for equipment (excluding items 
properly capitalized as building cost) will be computed at an annual 
rate not exceeding six and two-thirds percent of acquisition cost of 
usable equipment.
    e. No depreciation or use charge may be allowed on any assets that 
would be considered as fully depreciated, provided, however, that 
reasonable use charges may be negotitated for any such assets if 
warranted after taking into consideration the cost of the facility or 
item involved, the estimated useful life remaining at time of 
negotiation, the effect of any increased maintenance charges or 
decreased efficiency due to age, and any other factors pertinent to 
utilization of the facility or item for the purpose contemplated.
    12. Disbursing service. The cost of disbursing grant program funds 
by the Treasurer or

[[Page 660]]

other designated officer is allowable. Disbursing services cover the 
processing of checks or warrants, from preparation to redemption, 
including the necessary records of accountability and reconciliation of 
such records with related cash accounts.
    13. Employee fringe benefits. Costs identified under a. and b. below 
are allowable to the extent that total compensation for employees is 
reasonable as defined in Section B.10.
    a. Employee benefits in the form of regular compensation paid to 
employees during periods of authorized absences from the job, such as 
for annual leave, sick leave, court leave, military leave, and the like, 
if they are: (1) Provided pursuant to an approved leave system, and (2) 
the cost thereof is equitably allocated to all related activities, 
including grant programs.
    b. Employee benefits in the form of employers' contribution or 
expenses for social security, employees' life and health insurance 
plans, unemployment insurance coverage, workmen's compensation 
insurance, pension plans, severance pay, and the like, provided such 
benefits are granted under approved plans and are distributed equitably 
to grant programs and in other activities.
    14. Employee morale, health and welfare costs. The costs of health 
or first-aid clinics and/or infirmaries, recreational facilities, 
employees' counseling services, employee information publications, and 
any related expenses incurred, are allowable. Income generated from any 
of these activities will be offset against expenses.
    15. Exhibits. Costs of exhibits relating specifically to the grant 
programs are allowable.
    16. Legal expenses. The cost of legal expenses required in the 
administration of grant programs is allowable. Legal services furnished 
by the chief legal officer of a tribal government or his staff solely 
for the purpose of discharging his general responsibilities as legal 
officer are unallowable. Legal expenses for the prosecution of claims 
against the Federal Government are unallowable.
    17. Maintenance and repair. Costs incurred for necessary 
maintenance, repair, or upkeep of property which neither add to the 
permanent value of the property nor appreciably prolong its intended 
life, but keep it in an efficient operating condition, are allowable.
    18. Materials and supplies. The cost of materials and supplies 
necessary to carry out the grant programs is allowable. Purchases made 
specifically for the grant program should be charged thereto at their 
actual prices after deducting all cash discounts, trade discounts, 
rebates, and allowances received by the grantee. Withdrawals from 
general stores or stockrooms should be charged at cost under any 
recognized method of pricing consistently applied. Incoming 
transportation charges are a proper part of material cost.
    19. Memberships, subscriptions and professional activities. a. 
Memberships. The cost of membership in civic, business, technical and 
professional organizations is allowable provided: (1) The benefit from 
the membership is related to the grant program, (2) the expenditure is 
for agency membership, (3) the cost of the membership is reasonably 
related to the value of the services or benefits received, and (4) the 
expenditure is not for membership in an organization which devotes a 
substantial part of its activities to influencing legislation.
    b. Reference material. The cost of books, and subscriptions to 
civic, business, professional, and technical periodicals is allowable 
when related to the grant program.
    c. Meetings and conferences. Costs are allowable when the purpose of 
the meeting is the dissemination of technical information relating to 
the grant program and they are consistent with regular practices 
followed for other activities of the grantee.
    20. Motor pools. The costs of a service organization which provides 
automobiles to grantees at a mileage or fixed rate and/or provides 
vehicle maintenance, inspection and repair services are allowable.
    21. Payroll preparation. The cost of preparing payrolls and 
maintaining necessary related wage records is allowable.
    22. Personnel administration. Costs for the recruitment, 
examination, certification, classification, training, establishment of 
pay standards, and related activities for grant programs, are allowable.
    23. Printing and reproduction. Cost for printing and reproduction 
services necessary for grant administration, including but not limited 
to forms, reports, manuals, and informational literature, are allowable. 
Publication costs of reports or other media relating to grant program 
accomplishments or results are allowable when provided for in the grant 
agreement.
    24. Procurement service. The cost of procurement service, including 
solicitation of bids, preparation and award of contracts, and all phases 
of contract administration in providing goods, facilities and services 
for grant programs, is allowable.
    25. Taxes. In general, taxes or payments in lieu of taxes which the 
grantee is legally required to pay are allowable.
    26. Training and education. The cost of in-service training, 
customarily provided for employee development which directly or 
indirectly benefits grant programs is allowable. Out-of-service training 
involving extended periods of time is allowable only when specifically 
authorized by the Bureau.
    27. Transportation. Costs incurred for freight, cartage, express, 
postage and other transportation costs relating either to goods 
purchased, delivered, or moved from one location to another are 
allowable.

[[Page 661]]

    28. Travel. Travel costs are allowable for expenses for 
transportation, lodging, subsistence, and related items incurred by 
employees who are in travel status on official business incident to a 
grant program. Such costs may be charged on an actual basis, on a per 
diem or mileage basis in lieu of actual costs incurred, or on a 
combination of the two, provided the method used is applied to an entire 
trip, and results in charges consistent with those normally allowed in 
like circumstances in non-Federally sponsored activities. The difference 
in cost between first-class air accommodations and less-than-first-class 
air accommodations is unallowable except when less-than-first-class air 
accommodations are not reasonably available.
    C. Costs allowable with approval of the Bureau. 1. Automatic data 
processing. The cost of data processing services to grant programs is 
allowable. This cost may include rental of equipment or depreciation on 
grantee-owned equipment. The acquisition of equipment, whether by 
outright purchase, rental-purchase agreement or other method of 
purchase, is allowable only upon specific prior approval of the Bureau 
as provided under the selected item for capital expenditures. The Bureau 
must obtain required Departmental clearances before such approval can be 
given.
    2. Building space and related facilities. The cost of space in 
privately or publicly owned buildings used for the benefit of the grant 
program is allowable subject to the conditions stated below. The total 
cost of space, whether in a privately or publicly owned building, may 
not exceed the rental cost of comparable space and facilities in a 
privately owned building in the same locality. The cost of space 
procured for grant program usage may not be charged to the program for 
periods of nonoccupancy, without authorization of the Bureau.
    a. Rental cost. The rental cost of space in a privately owned 
building is allowable.
    b. Maintenance and operation. The cost of utilities, insurance, 
security, janitorial services, elevator service, upkeep of grounds, 
normal repairs and alterations and the like, are allowable to the extent 
they are not otherwise included in rental or other charges for space.
    c. Rearrangements and alterations. Cost incurred for rearrangement 
and alteration of facilities required specifically for the grant program 
or those that materially increase the value or useful life of the 
facilities (Section C.3.) are allowable when specifically approved by 
the Bureau.
    d. Depreciation and use allowances on publicly owned buildings. 
These costs are allowable as provided in Section B.11.
    e. Occupancy of space under rental-purchase or a lease with option-
to-purchase agreement. The cost of space procured under such 
arrangements is allowable when specifically approved by the Bureau.
    3. Capital expenditures. The cost of facilities, equipment, other 
capital assets, and repairs which materially increase the value or 
useful life of capital assets is allowable when such procurement is 
specifically approved by the Bureau. When assets acquired with Bureau 
grant funds are (a) sold, (b) no longer available for use in a Federally 
sponsored program or (c) used for purposes not authorized by the Bureau, 
the Bureau's equity in the asset will be refunded in the same proportion 
as Bureau participation in its cost. In case any assets are traded on 
new items, only the net cost of the newly acquired assets is allowable.
    4. Insurance and indemnification. a. Costs of insurance required, or 
approved and maintained pursuant to the grant agreement, is allowable.
    b. Costs of other insurance in connection with the general conduct 
of activities is allowable subject to the following limitations:
    (1) Types and extent and cost of coverage will be in accordance with 
sound business practice.
    (2) Costs of insurance or of contributions to any reserve covering 
the risk of loss of, or damage to, Federal Government property is 
unallowable except to the extent that the Bureau has specifically 
required or approved such costs.
    c. Contributions to a reserve for a self-insurance program approved 
by the Bureau are allowable to the extent that the type of coverage, 
extent of coverage, and the rates and premiums would have been allowed 
had insurance been purchased to cover the risks.
    d. Actual losses which could have been covered by permissible 
insurance (through an approved self-insurance program or otherwise) are 
unallowable unless expressly provided for in the grant agreement. 
However, costs incurred because of losses not covered under nominal 
deductible insurance coverage provided in keeping with sound management 
practice, and minor losses not covered by insurance, such as spoilage, 
breakage and disappearance of small hand tools which occur in the 
ordinary course of operations, are available.
    e. Indemnification includes securing the grantee against liabilities 
to third persons and other losses not compensated by insurance or 
otherwise. The Bureau is obligated to indemnify the grantee only to the 
extent expressly provided for in the grant agreement, except as provided 
in d. above.
    5. Management studies. The cost of management studies to improve the 
effectiveness and efficiency of grant management for ongoing programs is 
allowable except that the cost of studies performed by agencies other 
than the grantee or outside consultants is allowable only when 
authorized by the Bureau.
    6. Preagreement costs. Costs incurred prior to the effective date of 
the grant, whether or

[[Page 662]]

not they would have been allowable thereunder if incurred after such 
date, are allowable when specifically provided for in the grant 
agreement.
    7. Professional services. Cost of professional services rendered by 
individuals or organizations not a part of the grantee is allowable 
subject to such prior authorization as may be required by the Bureau.
    8. Proposal costs. Costs of preparing proposals on potential Federal 
Government grant agreements are allowable when specifically provided for 
in the grant agreement.
    9. Tribal government officer salaries and expenses. Identifiable 
salary and expense costs incurred as a direct result of a tribal 
government officer's service to a grant program provided under this 
chapter are allowable subject to advance agreement with an approval by 
the Bureau. A general limitation in this regard is prescribed in section 
D.6.
    D. Unallowable costs. 1. Bad debts. Any losses arising from 
uncollectible accounts and other claims, and related costs, are 
unallowable.
    2. Contingencies. Contributions to a contingency reserve or any 
similar provision for unforeseen events are unallowable.
    3. Contributions and donations. Unallowable.
    4. Entertainments. Costs of amusements, social activities, and 
incidental costs relating thereto, such as meals, beverages, lodgings, 
rentals, transportation, and gratuities, are unallowable.
    5. Fines and penalties. Costs resulting from violations of, or 
failure to comply with Federal, State and local laws and regulations are 
unallowable.
    6. Tribal officer salaries and expenses. The salaries and expenses 
of tribal government officers are considered a cost of general tribal 
government and are unallowable except as prescribed in Section C.9.
    7. Interest and other financial costs. Interest on borrowing 
(however requested), bond discounts, cost of financing and refinancing 
operations, and legal and professional fees paid in connection 
therewith, are unallowable except when authorized by Federal 
legislation.
    8. Underrecovery of costs under grant agreements. Any excess of cost 
over the Federal contribution under one grant agreement is unallowable 
under other grant agreements.

        Appendix B to Part 276--Financial Reporting Requirements

    A. Purpose and scope. This appendix prescribes requirements for 
grantee to report financial information to the Bureau and to request 
advances and reimbursement when a letter-of-credit method is not used.
    B. Definitions. 1. Accrued expenditures. Accrued expenditures are 
the charges incurred by the grantee during a given period requiring the 
provision of funds for: (1) Goods and other tangible property received; 
(2) services performed by employes, contractors, subgrantees, and other 
payees; and (3) amounts becoming owed under programs for which no 
current services or performed are required.
    2. Accrued income. Accrued income is the earnings during a given 
period which is a source of funds resulting from: (1) Services performed 
by the grantee; (2) goods and other tangible property delivered to 
purchasers; and (3) amounts becoming owed to the grantee for which no 
current services or performance are required by the grantee.
    3. Disbursements. Disbursements are payments in cash or by check.
    4. Bureau funds authorized. Funds authorized represent the total 
amount of the Bureau funds authorized for obligations and establish the 
ceilings for obligation of Bureau funds. This amount may include any 
authorized carryover of unobligated funds from prior fiscal years.
    5. Obligations. Obligations are the amounts of orders placed, 
contracts and grants awarded, services received, and similar 
transactions during a given period, which will require payment during 
the same or a future period.
    6. Outlays. Outlays represent charges made to the grant project or 
program. Outlays can be reported on a cash or accrued expenditure basis.
    7. Program income. Program income represents earnings by the grantee 
realized from the grant-supported activities. Such earnings exclude 
interest income and may include, but will not be limited to, income from 
service fees, sale of commodities, usage or rental fees, sale of assets 
purchased with grant funds, and royalties on patents and copy-rights. 
Program income can be reported on a cash or accrued income basis.
    8. Unobligated balance. The unobligated balance is the portion of 
the funds authorized by the Bureau which has not been obligated by the 
grantee and is determined by deducting the cumulative obligations from 
the funds authorized.
    9. Unpaid obligations. Unpaid obligations represent the amout of 
obligations incurred by the grantee which have not been paid.
    C. Standard forms. 1. Only the following forms will be authorized 
for obtaining financial information from grantees for grant programs:
    a. Financial Status Report. (1) The Bureau shall require grantees to 
use a standard Financial Status Report to report the status of funds for 
all nonconstruction grant programs. The Bureau may, however, have the 
option of not requiring a Federal Status Report when a request for 
advance or reimbursement (paragraph 2a) is determined to provide 
adequate information to meet their needs, except that a final Financial 
Status Report shall be required at the completion of the grant when the 
Request for Advance or

[[Page 663]]

Reimbursement form is used only for advances.
    (2) The Bureau shall prescribe whether the report shall be on a cash 
or accrual basis. If the Bureau requires accrual information and the 
grantee's accouting records are not normally kept on the accrual basis, 
the grantee should develop such information through an analysis of the 
documentation on hand or on the basis of best estimates.
    (3) The grant agreement shall determine the frequency of the 
Financial Status Report for each grant program considering the size and 
complexity of the particular program. However, the report shall not be 
required more frequently than quarterly or less frequently than 
annually. Also, a final report shall be required at the completion of 
the grant.
    (4) The original and two copies of the Financial Status Report shall 
be submitted 30 days after the end of each specified reporting period. 
In addition, final reports shall be submitted 90 days after the end of 
the grant period or the completion of the project or program. Extensions 
to reporting due dates may be approved when requested by the grantee.
    b. Report of federal cash transactions. (1) When funds are advanced 
to grantees through letters of credit or with Treasury checks, each 
grantee shall submit a report of Federal Cash Transactions. The Bureau 
shall use this report to monitor cash advanced to grantees and to obtain 
disbursement or outlay information for each grant or project from the 
grantees.
    (2) The grant agreement may require forecasts of Federal cash 
requirement in the Remarks section of the report.
    (3) When practical and deemed necessary, the Bureau may require 
grantees to report in the Remarks section the amount of cash in excess 
of three days' requirements in the hands of subgrantees or other 
secondary recipients and to provide short narrative explanations of 
actions taken by the grantees to reduce the excess balances.
    (4) The Bureau shall accept the identical information from the 
grantees in a machine-usable format in lieu of the Report of Federal 
Cash Transactions.
    (5) Grantees shall submit the original and two copies of the Report 
of Federal Cash Transactions no later than 15 working days following the 
end of each quarter. For those grantees receiving annual grants 
totalling one million dollars or more, the Bureau shall require a 
monthly report.
    (6) The Bureau shall waive the requirement for submission of a 
Report of Federal Cash Transactions when monthly advances do not exceed 
$10,000 per grantee provided that such advances are monitored through 
other forms contained in this Appendix or the grantee's accounting 
controls are adequate to minimize excessive Federal advances.
    2. Except as noted below, only the following forms will be 
authorized for the grantees in requesting advances and reimbursements.
    a. Request for advance or reimbursement. (1) The ``Request for 
Advance or Reimbursement'' form is the standard form for all 
nonconstruction grant programs when letters of credit or predetermined 
automatic advance methods are not used. The Bureau, however, has the 
option of using this form for construction programs in lieu of an 
``Outlay Report and Request for Reimbursement for Construction 
Programs'' (paragraph 2b) and shall specify in the grant agreement.
    (2) Grantees shall be authorized to submit requests for advances or 
reimbursement at least monthly when letters of credit are not used. 
Grantees shall submit the original and two copies of a Request for 
Advance or Reimbursement.
    b. Outlay Report and Request for Reimbursement for Construction 
Program. (1) The ``Outlay Report and Request for Reimbursement for 
Construction Programs'' form is the standard format to be used for 
requesting reimbursement for construction programs. The Bureau may, 
however, have the option of substituting a ``Request for Advance or 
Reimbursement'' form (paragraph 2a) in lieu of this form when the Bureau 
determines that the former provides adequate information to meet its 
needs as stated in the grant agreement.
    (2) Grantees shall be authorized to submit requests for 
reimbursement at least monthly when letters of credit are not used. 
Grantees shall submit the original and two copies of an ``Outlay Report 
and Request for Reimbursement for Construction Programs'' form.
    3. When the Bureau needs additional information in using these 
forms, the following shall be observed:
    a. When necessary to comply with future legislative requirements, 
the Bureau shall issue instructions to require grantees to submit such 
information under the Remarks section of the reports.
    b. When necessary to meet specific program needs, the Bureau shall 
submit the proposed reporting requirements to the General Services 
Administration for approval under the exception provision of this 
Appendix.
    c. The Bureau, in obtaining information as in paragraphs a and b 
above, must also comply with report clearance requirements of the Office 
of Management and Budget Circular No. A-40, as revised.

[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5099, Feb. 4, 1976; 43 
FR 37447, Aug. 23, 1978]

[[Page 664]]



                   SUBCHAPTER N--ECONOMIC ENTERPRISES





PART 286--INDIAN BUSINESS DEVELOPMENT PROGRAM--Table of Contents




Sec.
286.1  Definitions.
286.2  Purpose.
286.3  Eligible applicants.
286.4  Eligible economic enterprises.
286.5  Information collection.
286.6  [Reserved]
286.7  Location of enterprise.
286.8  Priority criteria.
286.9  Environmental and flood disaster protection.
286.10  Preservation of historical and archeological data.
286.11  Management and technical assistance.
286.12  Content of application.
286.13--286.14  [Reserved]
286.15  Application procedures.
286.16  Grant approval authority.
286.17  Grant limitations and requirements.
286.18  Written notice.
286.19  [Reserved]
286.20  Disbursement of grant funds.
286.21  Return of unused funds.
286.22  Reports.

    Authority: 25 U.S.C. 1524.

    Source: 39 FR 44748, Dec. 27, 1974, unless otherwise noted. 
Redesignated at 47 FR 13328, Mar. 30, 1982.

    Editorial Note: Nomenclature changes to part 286 appear at 55 FR 
36273, Sept. 5, 1990.



Sec. 286.1  Definitions.

    As used in this part 286:
    Area Director means the Bureau of Indian Affairs official in charge 
of an area office or his authorized representative.
    Assistant Secretary means the Assistant Secretary--Indian Affairs of 
the United States Department of the Interior or the official in the 
Bureau of Indian Affairs to whom the Assistant Secretary has delegated 
authority to act on behalf of the Assistant Secretary.
    Cooperative Association means an association of individuals 
organized pursuant to state, Federal, or tribal law, for the purpose of 
owning and operating an economic enterprise for profit with profits 
distributed or allocated to patrons who are members of the organization.
    Corporation means an entity organized pursuant to state, Federal, or 
tribal law, with or without stock, for the purpose of owning and 
operating an economic enterprise.
    Economic enterprise means any Indian-owned, commercial, industrial, 
agricultural, or business activity established or organized for the 
purpose of profit, provided that eligible Indian ownership constitutes 
not less than 51 per centum of the enterprise.
    Grantee(s) means the recipient(s) of a nonreimburseable grant under 
this part.
    Indian means a person who is a member of an Indian tribe or a person 
of Alaska Native descent who is a shareholder in a corporation organized 
under the Alaska Native Claims Settlement Act (85 Stat. 688), as 
amended.
    Partnership means a form of business organization in which two or 
more legal persons are associated as co-owners for the purposes of 
business or professional activities for private pecuniary gain.
    Profits means the net income earned after deducting operating 
expenses from operating revenues.
    Reservation means Indian reservation, California rancheria, public 
domain Indian allotment, former Indian reservation in Oklahoma, and land 
held by Alaska Native groups incorporated under the provisions of the 
Alaska Native Claims Settlement Act (85 Stat. 688), as amended.
    Secretary means the Secretary of the Interior.
    Superintendent means the Bureau official in charge of a Bureau 
agency office or other local office reporting to an Area Director.
    Tribe means any Indian tribe, band, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or any 
regional, village, urban or group corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act (85

[[Page 665]]

Stat. 688) as amended, which is recognized by the Federal Government as 
eligible for services from the Bureau of Indian Affairs.

[55 FR 36273, Sept. 5, 1990]



Sec. 286.2  Purpose.

    The purpose of this part 286 is to prescribe the regulations and 
procedures under which non-reimbursable grants may be made to eligible 
applicants to stimulate and increase Indian entrepreneurship and 
employment through establishment, acquisition or expansion of profit-
making Indian-owned economic enterprises which will contribute to the 
economy of a reservation.



Sec. 286.3  Eligible applicants.

    Applications for grants may be accepted only from individual 
Indians, Indian tribes, Indian partnerships, corporations or cooperative 
associations authorized to do business under State, Federal, or Tribal 
law. These applicants must have a form of organization acceptable to the 
Assistant Secretary and unable to meet their total financing needs from 
their own resources and by loans from other sources such as banks, 
Farmers Home Administration, Small Business Administration, Production 
Credit Associations, and Federal Land Banks. Associations, corporations 
or partnerships shall be at least fifty-one percent owned by eligible 
Indians or an eligible Indian tribe. This Indian ownership must actively 
participate in the management and operation of the economic enterprise 
by representation on the board of directors of a corporation or 
cooperative association proportionate to the Indian ownership which will 
enable the Indian owner(s) to control management decisions. The legal 
organization documents will provide for the number of Indians which are 
to be on the board of directors, how they along with other directors 
will be elected or appointed and qualifications required as a condition 
for becoming a member of the board of directors. The legal organization 
documents shall provide safeguards which will prevent Indian ownership 
and control from decreasing below fifty-one percent. Evidence of Indian 
ownership in a cooperative association or corporation will be evidenced 
by stock ownership, if stock is or has been issued, or by other evidence 
satisfactory to the Assistant Secretary. Partnerships will be evidenced 
by written partnership agreements which show the percentage of Indian 
ownership, role and authority in making management decisions in 
controlling the operation of the economic enterprise.



Sec. 286.4  Eligible economic enterprises.

    An economic enterprise as defined in Sec. 286.1(k) is eligible to 
receive equity capital through non-reimbursable grants if it is or will 
be self-sustaining and profit-oriented and will create employment for 
Indians. In the case of Indian-owned cooperative associations, they must 
distribute or allocate profits for later distribution, to members who 
are patrons, unless prohibited from doing so by law.



Sec. 286.5  Information collection.

    (a) The collections of information contained in Secs. 286.12 and 
286.22 have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned clearance number 1076-0093. The 
information will be used to rate applicants in accordance with the 
priority criteria listed at 25 CFR 286.8. Response to this request is 
required to obtain a benefit in accordance with 25 U.S.C. 1521.
    (b) Public reporting for this information is estimated to average 45 
minutes per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding this burden estimate or any other aspect of this 
collection of information, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer, Bureau of 
Indian Affairs, Mailstop 337-SIB, 18th and C Streets, NW., Washington, 
DC 20240; and the Office of Management and Budget, Paperwork Reduction 
Project (1076-0093), Washington, DC 20503.

[55 FR 36273, Sept. 5, 1990]

[[Page 666]]

Sec. 286.6  [Reserved]



Sec. 286.7  Location of enterprise.

    To be eligible for a grant an economic enterprise must be located on 
an Indian reservation or located where it makes or will make an economic 
contribution to a nearby reservation by providing employment to tribal 
members residing thereon or by expending a portion of its income for 
materials or services on the reservation. Economic enterprises which are 
or will be operated on a reservation must comply with the requirements 
of applicable rules, resolutions or ordinances adopted by the governing 
body of the tribe, if applicable.



Sec. 286.8  Priority criteria.

    The following priority will be used in selecting economic 
enterprises for grant funding:
    (a) First priority. First priority will be given to economic 
enterprises located on a reservation that will:
    (1) Utilize Indian resources, both natural and human.
    (2) Create the highest ratio of Indian jobs to the total amount of 
dollars to be invested, including market value of materials and 
equipment contributed to the project.
    (3) Create the highest ratio of income to a tribe or its members in 
relation to the total amount of dollars to be invested, including market 
value of materials or equipment contributed to the project.
    (4) Generate the most non-Bureau financing.
    (b) Second priority. Second priority will be given to projects 
located in the immediate vicinity of a reservation that will:
    (1) Utilize Indian resources, both natural and human.
    (2) Create the highest ratio of Indian jobs to the total amount of 
dollars to be invested, including market value of materials and 
equipment contributed to the project.
    (3) Generate the most non-Bureau financing.



Sec. 286.9  Environmental and flood disaster protection.

    Grant funds will not be advanced until there is assurance of 
compliance with any applicable provisions of the Flood Disaster 
Protection Act of 1973 (Pub. L. 93-234), the National Environmental 
Policy Act (Pub. L. 91-190), 42 U.S.C. 4321 and Executive Order 11514.



Sec. 286.10  Preservation of historical and archeological data.

    The Assistant Secretary before approving a grant where the grant 
funds and/or the loan funds will be used to finance activities involving 
excavations, road construction, and land development or involving the 
disturbance of land on known or reported historical or archeological 
sites, will take appropriate action to assure compliance with applicable 
provisions of the Act of June 27, 1960 (74 Stat. 220 (16 U.S.C. 469)), 
as amended by the Act of May 24, 1974 (Pub. L. 93-291, 88 Stat. 174), 
relating to the preservation of historical and archeological data.



Sec. 286.11  Management and technical assistance.

    (a) Prior to and concurrent with the making of a grant to finance an 
Indian economic enterprise, the Assistant Secretary--Indian Affairs will 
insure that competent management and technical assistance is available 
to the grantee in the preparation of the application for a grant and/or 
administration of the funds granted, consistent with the grantee's 
knowledge and experience and the nature and complexity of the economic 
enterprise being financed. The competence of the management and 
technical assistance provided will be determined by the local agency 
superintendent after consultation with the applicant concerning his 
business needs.
    (b) The lender providing the loan funds under Sec. 286.17(b) to 
finance an economic enterprise will include with the grantee's 
application the need for equity capital, the lender's evaluation of the 
applicant's need for management and technical assistance, specific areas 
of need and whether the lender will provide such assistance to the 
applicant.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982, 
as amended at 55 FR 36274, Sept. 5, 1990]

[[Page 667]]



Sec. 286.12  Content of application.

    Applications shall be on a form prescribed by the Assistant 
Secretary which shall at the minimum include:
    (a) Total capital requirement, including operating capital required 
until such time as the cash generated from operations will be sufficient 
to make the enterprise self-sustaining.
    (b) Amount of total financing required as well as what is obtainable 
from other sources, including the applicant's personal resources, and a 
statement of terms and conditions under which any borrowed portion is 
obtainable.
    (c) Capital deficiency, which will be the basis for the amount of 
grant requested.
    (d) Pro forma balance sheets and operating statements showing 
estimated expenses, income and net profit from operations for three 
years following receipt of the requested grant.
    (e) Annual operating statements and balance sheets, audited if 
available, for the prior two years or applicable years for enterprises 
already in operation.
    (f) Current financial statements, consisting of a balance sheet and 
operating statement.
    (g) A plan of operation which shall be acceptable to the lender 
making the loan and the Assistant Secretary.
Secs. 286.13--286.14  [Reserved]



Sec. 286.15  Application procedures.

    Applications are to be submitted to the Superintendent having 
administrative jurisdiction over the reservation on which an enterprise 
will be or is located. If the enterprise site is near two or more 
reservations, application is to be made to the Superintendent having 
administrative jurisdiction over the reservation nearest to the location 
of the enterprise which the enterprise will benefit economically.



Sec. 286.16  Grant approval authority.

    Applications for grants require approval by the Assistant Secretary.



Sec. 286.17  Grant limitations and requirements.

    (a) Grants will be made to assist in establishing new economic 
enterprises, or in purchasing or expanding established ones. However, a 
grant may be made only when in the opinion of the Assistant Secretary 
the applicant is unable to obtain adequate financing from other sources. 
Prior to making any grant, the Assistant Secretary shall assure that, to 
the extent practical, the applicant's own resources have been invested 
in the proposed project. The applicant shall not be required to invest 
own resources to the extent that they are already committed to endeavors 
deemed by the Assistant Secretary to be essential to the welfare of the 
applicant. If the information in an application, which must include 
personal financial statements, indicates that it may be possible for the 
applicant to obtain financing without a grant, the Assistant Secretary 
will require the applicant to furnish letters from two customary lenders 
in the area, if available, who are making loans for similar purpose, 
showing whether or not they will make a loan to the applicant for the 
total financing needed without a grant.
    (b) A grant may be made only to an applicant who is able to obtain 
at least 75 percent of the necessary financing from other sources.
    (c) No grant in excess of $250,000 may be made to an Indian tribe or 
in excess of $100,000 to an Indian individual, partnership, corporation, 
or cooperative association.
    (d) Revolving loan funds as prescribed in title I of the Indian 
Financing Act of 1974 and guaranteed or insured loans as prescribed in 
title II of said Act may not be used as the sources of the loan portion 
of the total financing requirement if financing from other governmental 
or institutional lenders is available on reasonable terms and 
conditions. If a loan is not available from other sources, guaranteed or 
insured loans under the provisions of title II of said Act may then be 
considered. If a guaranteed or insured loan is not available loans under 
the provisions of title I of said Act may then be considered. Applicants 
for a loan from either source must meet the eligibility requirements for 
such loans.
    (e) A grant will not be approved unless there is assurance the 
applicant can and will be provided with needed competent technical and 
management

[[Page 668]]

assistance commensurate with the nature of the enterprise to be funded 
and the knowledge and management skills of the applicant.
    (f) Grant funds may not be used for refinancing or debt 
consolidation unless approval is justified and required due to the 
applicant's financial position and is clearly to the advantage of the 
grant applicant.
    (g) Ordinarily, not more than one grant will be made for a project. 
Nevertheless, in certain circumstances a second grant may be made to 
applicants for a new project or expansion of the original project. An 
additional grant will not be approved for an economic enterprise 
previously funded under the provisions of title IV of the Indian 
Financing Act of 1974 except for expanding a successful enterprise, 
provided the total of grants made shall not exceed $250,000 to an Indian 
tribe and $100,000 to an Indian individual, partnership, corporation, or 
cooperative association.
    (h) An application for a second grant will not be approved if the 
applicant:
    (1) Has not complied with the reporting requirements in connection 
with the first grant, or
    (2) Has not followed the plan of operation, if any, developed for 
the management and operation of the economic enterprise, or
    (3) Did not follow and use the management and technical assistance 
furnished, or
    (4) Is in violation of one or more provisions of the loan agreement 
entered into between the applicant and the lender who furnished the loan 
portion of the financing in connection with the first grant.
    (i) An applicant for an expansion grant must meet the same 
eligibility requirements as an original applicant.
    (j) A grantee will be required to return all or a portion of the 
grant if the business or enterprise for which the grant was utilized is 
sold within three years of the date on which the grant was disbursed to 
the grantee, unless the proceeds from the sale are re-invested in a new 
business or business expansion which will benefit the Indian reservation 
economy. Such sale and re-investment must have the prior approval of the 
local agency superintendent. The grantee shall refund the lessor of the 
grant amount or a pro rata portion of sales proceeds. The pro rata 
portion of sales proceeds shall be based on the ratio of grant amount to 
its corresponding matching financing. The new business or business 
expansion utilizing such sale proceeds must meet the same criteria for 
eligibility as an original grant.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982, 
as amended at 55 FR 36274, Sept. 5, 1990; 56 FR 12436, Mar. 25, 1991]



Sec. 286.18  Written notice.

    The applicant for a grant which is disapproved will be notified by 
letter, stating the reasons for disapproval and the right of appeal 
pursuant to 25 CFR 2. A copy of the letter will be sent to the 
prospective lender.

[39 FR 44748, Dec. 27, 1974. Redesignated at 47 FR 13328, Mar. 30, 1982; 
48 FR 13414, Mar. 31, 1983]
Sec. 286.19  [Reserved]



Sec. 286.20  Disbursement of grant funds.

    Unless otherwise provided by an agreement between a lender and the 
grantee, the Assistant Secretary may in his discretion advance grant 
funds directly to a grantee. He may require the funds to be deposited in 
a special account at the appropriate Agency headquarters office or 
deposited in a joint account in a bank and disbursed as needed by the 
grantee. The terms of a lender's loan agreement may require the lender's 
approval before disbursement of the funds. Grant funds will not be 
disbursed to a grantee until the Assistant Secretary has been informed 
by the lender that a loan has been approved for the grantee in the 
amount of the loan financing needed.



Sec. 286.21  Return of unused funds.

    Grantees will be required to return unused grant funds to the 
Assistant Secretary if the economic enterprise for which the grant was 
approved is not initiated, i.e., lease obtained, if needed, construction 
started, equipment purchased or other, within the time stated in the 
grant agreement. The Assistant Secretary may, if warranted by 
circumstances beyond the control of the grantee, extend the time to 
allow for

[[Page 669]]

initiation of the enterprise, provided there is assurance the enterprise 
will be initiated forthwith within the extended time period. The 
Assistant Secretary will notify the lender in writing of a proposed 
action to require the return of grant funds or of a proposal to extend 
the time.



Sec. 286.22  Reports.

    (a) Grantees are required to furnish the Assistant Secretary 
comparative balance sheets and profit and loss statements semi-annually 
for the first two years of operation following receipt of the grant, and 
annually thereafter for the succeeding three years. These may be copied 
of financial statements required by and furnished to the lender which 
provided the loan portion of the total financing required. If the lender 
does not require financial statements, the grantee must prepare and 
furnish copies of comparative balance sheets and profit and loss 
statements to the Assistant Secretary.
    (b) The Assistant Secretary will establish accounting and reporting 
systems which will appropriately show the status of the Indian Business 
Development Program at all times.

[[Page 670]]



                 SUBCHAPTER O--MISCELLANEOUS [RESERVED]



 Appendix to Chapter I--Extension of the Trust or Restricted Status of 
                          Certain Indian Lands

    This appendix contains citations of Executive orders and acts of 
Congress continuing the trust or restricted period of Indian land, which 
would have expired otherwise, within the several Indian reservations in 
the States named. The asterisk to the left of the name of a reservation 
indicates that the reservation is subject to the benefits of the Indian 
Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), 
as amended, and as therein provided the trust or restricted period of 
the land is extended indefinitely. Where the name of a reservation is 
not preceded by an asterisk, such reservation is not subject to the 
Reorganization Act and is not subject to the benefits of such indefinite 
trust or restricted period extension, but such reservation is dependent 
upon acts of Congress or Executive orders for extension of the trust or 
restricted period of the land.
    For the purpose of insuring the continuation of the trust or 
restricted status of Indian allotments within Indian reservations not 
subject to the Reorganization Act, Congress by the act of June 15, 1935 
(49 Stat. 378) reimposed such restrictions as may have been expired 
between the dates of June 18, 1934, and December 31, 1936.

----------------------------------------------------------------------------------------------------------------
                                                             E. O.                                              
               State                     Reservation          No.             Date           Period of extension
----------------------------------------------------------------------------------------------------------------
Arizona...........................  *Papago..............      2066  Oct. 27,1914.........  10 years.           
    Do............................  ......do.............      4464  June 28, 1926........      Do.             
California........................  Agua Caliente........      3446  Apr. 30, 1921........      Do.             
    Do............................  ......do.............      5580  Mar. 16, 1931........      Do.             
    Do............................  Cabazon and Twenty-        3302  July 7, 1920.........  5 years.            
                                     nine Palms.                                                                
    Do............................  ......do.............      4159  Feb. 19, 1925........  10 years.           
    Do............................  *Capitan Grande......      3048  Feb. 27, 1919........  5 years.            
    Do............................  ......do.............            Act of Feb. 8, 1927    10 years.           
                                                                      (44 Stat. 1061).                          
    Do............................  Hoopa Valley (Klamath      2943  Aug. 23, 1918........  1 year.             
                                     River).                                                                    
    Do............................  ......do.............            Sept. 23, 1919.......      Do.             
    Do............................  ......do.............      3304  July 10, 1920........  10 years.           
    Do............................  ......do.............      3980  Mar. 26, 1924........  15 years.           
    Do............................  ......do.............      5416  Aug. 4, 1930.........  10 years.           
                                    Mission Bands:.......                                                       
    Do............................    Augustine..........      2795  Jan. 26, 1918........      Do.             
    Do............................    Campo..............      2795  ......do.............      Do.             
    Do............................    *Cuyapipe..........      2795  ......do.............      Do.             
    Do............................    Inaja..............      2795  ......do.............      Do.             
    Do............................    *Laguna............      2795  ......do.............      Do.             
    Do............................    *La Posta..........      2795  ......do.............      Do.             
    Do............................    *Manzanita.........      2795  ......do.............      Do.             
    Do............................    Mesa Grande........      2795  ......do.............      Do.             
    Do............................    Pala...............      2795  ......do.............      Do.             
    Do............................      Ramona...........      2795  ......do.............      Do.             
    Do............................    Santa Ysabel.......      2795  ......do.............      Do.             
    Do............................    Sycuan.............      2795  ......do.............      Do.             
    Do............................  ......do.............      3383  Jan. 7, 1921.........  25 years.           
    Do............................    San Manuel.........      2795  Jan. 26, 1918........  10 years.           
    Do............................    Temecula...........      2795  ............do.......      Do.             
    Do............................  All of above Mission       4765  Nov. 23, 1927........      Do.             
                                     Bands.                                                                     
    Do............................  Morongo..............      6341  Oct. 17, 1933........      Do.             
    Do............................  Pala.................      3383  Jan. 7, 1921.........  25 years.           
    Do............................  ......do.............            Act of Feb. 11, 1936   10 years.           
                                                                      (49 Stat. 1106).                          
    Do............................  Potrero and Rincon...      2684  Aug. 16, 1917........      Do.             
    Do............................  ......do.............      4687  July 11, 1927........      Do.             
    Do............................  *Round Valley........      3223  Feb. 5, 1920.........  3 years.            
    Do............................  ......do.............      3805  Mar. 5, 1923.........  10 years.           
    Do............................  ......do.............      3995  Apr. 19, 1924........      Do.             
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
    Do............................  Temecula.............      3699  June 27, 1922........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  Torres-Martinez......      7009  Apr. 10, 1935........      Do.             
Idaho.............................  Nez Perce............      3250  Mar. 24, 1920........      Do.             
Idaho.............................  Nez Perce............      4694  July 22, 1927........  10 years.           
    Do............................  ......do.............      5305  Mar. 18, 1930........      Do.             
Kansas and Nebraska...............  *Iowa................      2966  Sept. 23, 1918.......      Do.             
    Do............................  ......do.............      5023  Jan. 10, 1929........      Do.             

[[Page 671]]

                                                                                                                
    Do............................  *Sac and Fox.........      2607  May 4, 1917..........      Do.             
    Do............................  ......do.............      4571  Jan. 24, 1927........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  Kickapoo.............      3301  July 3, 1920.........  1 year.             
    Do............................  ......do.............      3447  May 2, 1921..........  10 years.           
    Do............................  ......do.............      5415  Aug. 4, 1930.........      Do.             
    Do............................  ......do.............      5626  May 18, 1931.........      Do.             
    Do............................  *Potawatomi..........      2747  Nov. 2, 1917.........      Do.             
    Do............................  ......do.............      2927  July 30, 1918........      Do.             
    Do............................  ......do.............      3312  July 21, 1920........      Do.             
    Do............................  ......do.............      4688  July 11, 1927........      Do.             
    Do............................  ......do.............      4858  Apr. 16, 1928........      Do.             
    Do............................  ......do.............      5299  Mar. 10, 1930........      Do.             
    Do............................  ......do.............      5356  May 28, 1930.........      Do.             
    Do............................  ......do.............      5556  Feb. 11, 1931........      Do.             
Minnesota.........................  *Fond du Lac.........      3445  Apr. 30, 1921........      Do.             
    Do............................  ......do.............      5575  Mar. 12, 1931........      Do.             
    Do............................  *Grand Portage.......      3613  Jan. 12, 1922........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  *Winnibigoshish......      3614  Jan. 12, 1922........      Do.             
    Do............................  ......do.............      5466  Oct. 22, 1930........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  *Deer Creek..........      4154  Feb. 10, 1925........      Do.             
    Do............................  *Bois Fort...........      4233  May 26, 1925.........      Do.             
    Do............................  *Leech Lake, Cass          4298  Aug. 29, 1925........      Do.             
                                     Lake, and White Oak                                                        
                                     Point.                                                                     
    Do............................  ......do.............      5466  Oct. 22, 1930........      Do.             
    Do............................  *White Earth.........      4642  May 5, 1927..........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
    Do............................  *Red Lake............      5383  June 26, 1930........      Do.             
Montana...........................  Crow.................      5301  Mar. 12, 1930........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  ......do.............      7001  Apr. 5, 1935.........      Do.             
    Do............................  ......do.............            Act of April 1940 (54  To May 23, 1940.    
                                                                      Stat. 106).                               
    Do............................  *Flathead............      5953  Nov. 23, 1932........      Do.             
Nebraska..........................  *Omaha...............            July 3, 1909.........      Do.             
    Do............................  ......do.............      3111  July 10, 1919........      Do.             
    Do............................  ......do.............      4145  Jan. 28, 1925........      Do.             
    Do............................  ......do.............      4548  Dec. 4, 1926.........      Do.             
    Do............................  ......do.............      5148  July 3, 1929.........      Do.             
    Do............................  ......do.............      5253  Dec. 31, 1929........      Do.             
    Do............................  *Ponca...............      2374  Apr. 29, 1916........      Do.             
    Do............................  ......do.............      4407  Mar. 30, 1926........      Do.             
    Do............................  *Santee..............            Dec. 12, 1910........      Do.             
    Do............................  ......do.............      3348  Nov. 5, 1920.........      Do.             
    Do............................  ......do.............      3722  Aug. 12, 1922........      Do.             
    Do............................  *Santee Sarah Jones        4075  Sept. 17, 1924.......      Do.             
                                     allotment.                                                                 
    Do............................  *Santee..............      5474  Oct. 31, 1930........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
    Do............................  *Winnebago...........      2965  Sept. 20, 1918.......      Do.             
    Do............................  ......do.............      4548  Dec. 4, 1926.........      Do.             
    Do............................  ......do.............      4979  Oct. 16, 1928........      Do.             
    Do............................  ......do.............      4994  Nov. 14, 1928........      Do.             
    Do............................  *Sac and Fox, William      3878  July 27, 1923........  1 year.             
                                     Banks allotment.                                                           
Nevada............................  *Walker River........      5730  Oct. 8, 1931.........  10 years.           
North Dakota......................  Devils Lake..........      2804  Feb. 11, 1918........      Do.             
    Do............................  ......do.............      3853  May 23, 1923.........      Do.             
    Do............................  ......do.............      4775  Nov. 30, 1927........      Do.             
    Do............................  ......do.............      5303  Mar. 12, 1930........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
    Do............................  *Fort Berthold.......      4293  Aug. 25, 1925........      Do.             
    Do............................  *Standing Rock.......      5768  Dec. 30, 1931........      Do.             
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
Oklahoma..........................  Absentee Shawnee and       2494  Nov. 24, 1916........      Do.             
                                     Citizen Potawatomi.                                                        
    Do............................  ......do.............      2512  Jan. 15, 1917........      Do.             
    Do............................  ......do.............      4557  Dec. 23, 1926........      Do.             

[[Page 672]]

                                                                                                                
    Do............................  Cheyenne and Arapaho.      2580  Apr. 4, 1917.........      Do.             
    Do............................  ......do.............      4587  Feb. 17, 1927........      Do.             
    Do............................  Eastern Shawnee......      2317  Feb. 15, 1916........      Do.             
    Do............................  ......do.............      4384  Feb. 20, 1926........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  Mexican Kickapoo.....      3047  Feb. 27, 1919........  5 years.            
    Do............................  ......do.............      4029  June 19, 1924........  10 years.           
    Do............................  ......do.............            Act of Feb. 17, 1933       Do.             
                                                                      (47 Stat. 819).                           
    Do............................  Modoc................      2453  Sept. 14, 1916.......      Do.             
    Do............................  ......do.............      4470  July 1, 1926.........      Do.             
    Do............................  Ottawa, Seneca and         2591  Apr. 11, 1917........      Do.             
                                     Wyandotte.                                                                 
    Do............................  ......do.............      4588  Feb. 17, 1927........      Do.             
    Do............................  Pawnee...............      2816  Mar. 2, 1918.........      Do.             
    Do............................  ......do.............      4898  May 29, 1928.........      Do.             
    Do............................  Ponca................      3327  Sept. 19, 1920.......  1 year.             
    Do............................  ......do.............      3363  Dec. 1, 1920.........  25 years.           
    Do............................  ......do.............      5539  Jan. 23, 1931........  10 years.           
    Do............................  Sac and Fox, and Iowa            Mar. 27, 1896........      Do.             
    Do............................  ......do.............            July 23, 1906........      Do.             
    Do............................  ......do.............            Aug. 28, 1906........      Do.             
    Do............................  ......do.............      2432  Aug. 1, 1916.........      Do.             
    Do............................  ......do.............      4435  Apr. 29, 1926........      Do.             
    Do............................  Tonkawa..............      2866  May 25, 1918.........      Do.             
    Do............................  Tonkawa (Oakland)....      4816  Feb. 25, 1928........      Do.             
    Do............................  Kaw..................            Act of March 1923 (42  25 years.           
                                                                      Stat. 1561).                              
    Do............................  ......do.............            Act of May 27, 1924    20 years.           
                                                                      (43 Stat. 176).                           
    Do............................  Otoe and Missouri....      4281  Aug. 11, 1925........  10 years.           
    Do............................  ......do.............      5728  Sept. 29, 1931.......      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  Kiowa, Comanche,           4398  Mar. 18, 1926........      Do.             
                                     Apache, and Wichita.                                                       
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
    Do............................  ......do.............      5955  Nov. 30, 1932              Do.             
                                                                      (Gertrude Lamb).                          
    Do............................  Seneca...............      5306  Mar. 18, 1930........      Do.             
    Do............................  Quapaw...............            Act of Mar. 3, 1921    25 years.           
                                                                      (41 Stat. 1248) as                        
                                                                      amended Nov. 18,                          
                                                                      1921 (42 Stat. 1570).                     
    Do............................  ......do.............            As supplemented or         Do.             
                                                                      amended by the act                        
                                                                      of July 27, 1939 (53                      
                                                                      Stat. 1127).                              
Oregon............................  *Grande Ronde........      2376  Apr. 29, 1916........  10 years.           
    Do............................  ......do.............      4408  Mar. 30, 1926........      Do.             
    Do............................  Siletz...............      3110  July 10, 1919........      Do.             
    Do............................  Siletz (cont.).......      5087  Apr. 1, 1929.........      Do.             
    Do............................  *Warm Springs........      3586  Dec. 7, 1921.........      Do.             
    Do............................  ......do.............      5734  Oct. 17, 1931........      Do.             
    Do............................  Umatilla.............      4024  June 10, 1924........      Do.             
    Do............................  ......do.............      5516  Dec. 17, 1930........      Do.             
    Do............................  Klamath..............      6961  Feb. 4, 1935.........      Do.             
    Do............................  ......do.............            Act of Dec. 24, 1942   25 years.           
                                                                      (56 Stat. 1081).                          
South Dakota......................  Crow Creek...........      3362  Nov. 30, 1920........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........  10 years.           
    Do............................  ......do.............      6968  Feb. 9, 1935.........      Do.             
    Do............................  *Rosebud.............      4417  Apr. 14, 1926........      Do.             
    Do............................  ......do.............      5028  Jan. 16, 1929........      Do.             
    Do............................  ......do.............      5302  Mar. 12, 1930........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  Sisseton and Wahpeton      1916  Apr. 16, 1914........      Do.             
    Do............................  ......do.............      3994  Apr. 19, 1924........  15 years.           
    Do............................  *Yankton Sioux.......      2363  Apr. 20, 1916........  10 years.           
    Do............................  ......do.............      4406  Mar. 30, 1926........      Do.             
South Dakota......................  Crow Creek...........      5173  Aug. 9, 1929.........  10 years.           
    Do............................  *Lower Brule.........      4981  Oct. 20, 1923........      Do.             
    Do............................  *Pine Ridge..........      5557  Feb. 13, 1931........      Do.             
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
    Do............................  *Cheyenne River......      5546  Jan. 31, 1931........      Do.             

[[Page 673]]

                                                                                                                
    Do............................  ......do.............      5768  Dec. 30, 1931........      Do.             
Utah..............................  *Uncompahgre, Uintah       5357  May 29, 1930.........      Do.             
                                     and White River                                                            
                                     Bands of Utes.                                                             
Washington........................  Chief Moses Band.....      2109  Dec. 23, 1914........      Do.             
    Do............................  ......do.............      4382  Feb. 10, 1926........  10 years from Mar.  
                                                                                             8, 1926.           
    Do............................  Colville.............      4157  Feb. 17, 1925........  10 years.           
    Do............................  ......do.............      6962  Feb. 4, 1935.........      Do.             
    Do............................  *Quinaielt...........      5768  Dec. 30, 1931........      Do.             
    Do............................  Spokane..............      6939  Jan. 7, 1935.........  10 years.           
    Do............................  Yakima...............      3630  Feb. 3, 1922.........      Do.             
    Do............................  ......do.............      4168  Mar. 11, 1925........      Do.             
    Do............................  ......do.............      5746  Nov. 10, 1931........      Do.             
    Do............................  ......do.............      7036  May 8, 1935..........      Do.             
    Do............................  ......do.............            Act of May 27, 1937    To July 9, 1942.    
                                                                      (50 Stat. 210).                           
Wisconsin.........................  *Oneida..............      2623  May 19, 1917.........  1 year.             
    Do............................  ......do.............      2856  May 4, 1918..........  9 years.            
    Do............................  ......do.............      4600  Mar. 1, 1927.........  10 years.           
Wyoming...........................  Wind River...........      5768  Dec. 30, 1931........      Do.             
    Do............................  ......do.............      5953  Nov. 23, 1932........      Do.             
----------------------------------------------------------------------------------------------------------------

    Pursuant to act of June 21, 1906 (34 Stat. 325) extending trust or 
other period of restriction contained in patents issued to Indians for 
land on the public domain, the following orders have been promulgated:

------------------------------------------------------------------------
 E. O.                                                                  
  No.                 Date                      Period of extension     
------------------------------------------------------------------------
2133..  Feb. 3, 1915....................  1 year.                       
2326..  Feb. 23, 1916...................      Do.                       
2505..  Jan. 3, 1917....................      Do.                       
2778..  Dec. 31, 1917...................      Do.                       
3024..  Jan. 11, 1919...................      Do.                       
3204..  Dec. 23, 1919...................      Do.                       
3365..  Dec. 7, 1920....................  25 years.                     
------------------------------------------------------------------------

    No further separate orders covering extension of trust periods on 
public domain allotments were issued subsequent to Executive Order 3365 
of December 7, 1920. The trust or other periods of restriction contained 
in patents issued to Indians for land on the public domain have 
thereafter been extended by the terms of the general Executive orders.

                             General Orders                             
------------------------------------------------------------------------
 E. O.                                                                  
  No.                 Date                      Period of extension     
------------------------------------------------------------------------
6498..  Dec. 15, 1933...................  10 years.                     
6926..  Dec. 20, 1934 (Oklahoma only)...      Do.                       
7206..  Oct. 14, 1935 (Oklahoma only)...      Do.                       
7464..  Sept. 30, 1936..................  25 years.                     
7716..  Sept. 29, 1937..................      Do.                       
7984..  Oct. 7, 1938....................  25 years.                     
8276..  Oct. 28, 1939...................      Do.                       
8580..  Oct. 29, 1940...................      Do.                       
8965..  Dec. 10, 1941...................      Do.                       
9272..  Nov. 17, 1942...................      Do.                       
9398..  Nov. 25, 1943...................      Do.                       
9500..  Nov. 14, 1944...................      Do.                       
9659..  Nov. 21, 1945...................      Do.                       
9811..  Dec. 17, 1946...................      Do.                       
9920..  Jan. 8, 1948, effective Jan. 1,       Do.                       
         1948.                                                          
10027.  Jan. 6, 1949....................      Do.                       
10091.  Dec. 11, 1949...................      Do.                       
10191.  Dec. 13, 1950...................      Do.                       
------------------------------------------------------------------------

    Beginning with Executive Order 6498, issued December 15, 1933, 
regardless of the location of the allotments, all trust or restrictive 
periods on allotments expiring on a given date have been extended by one 
general Executive order issued annually.

                             General Orders                             
------------------------------------------------------------------------
     Order               Date         Per. of exten.      FR citation   
------------------------------------------------------------------------
Sec. Int.......  Dec. 29, 1951......  1 year........  17 FR 799.        
  Do...........  Dec. 29, 1952......  ...do.........  18 FR 106.        
  Do...........  Dec. 28, 1953......  ...do.........  18 FR 8897.       
  Do...........  Dec. 17, 1954......  ...do.........  19 FR 8658.       
  Do...........  Nov. 17, 1955......  ...do.........  20 FR 8519.       
  Do...........  Dec. 6, 1956.......  ...do.........  21 FR 9644.       
  Do...........  Jan. 7, 1958.......  ...do.........  23 FR 112.        
  Do...........  Jan. 7, 1959.......  5 yrs.........  24 FR 127.        
  Do...........  Dec. 8, 1959.......  ...do.........  24 FR 9847.       
  Do...........  Dec. 24, 1960......  ...do.........  25 FR 13688.      
  Do...........  Dec. 28, 1961......  ...do.........  26 FR 12569.      
Sec. Int.......  Jan. 4, 1963.......  ...do.........  28 FR 122.        
  Do...........  Oct. 31, 1963......  ...do.........  28 FR 11630.      
  Do...........  Oct. 9, 1968.......  ...do.........  33 FR 15067.      
Dep. Ass.......  Dec. 14, 1973......  ...do.........  38 FR 33463.      
Sec. Int.......  Dec. 14, 1978......  ...do.........  43 FR 58369.      
  Do...........  July 27, 1983......  ...do.........  48 FR 34026       
Sec. Int.......  Aug. 15, 1988......  5 yrs.........  53 FR 30674.      
------------------------------------------------------------------------

    Note: Executive orders and orders of the Secretary of the Interior 
(17 FR 799, Jan. 26, 1952; 18 FR 106, Jan. 6, 1953; 18 FR 8897, Dec. 31, 
1953; 19 FR 8658, Dec. 17, 1954; 20 FR 8519, Nov. 11, 1955; 21 FR 9644, 
Dec. 6, 1956; 23 FR 112, Jan. 7, 1958; 24 FR 127, Jan. 7, 1959; 24 FR

[[Page 674]]

9847, Dec. 8, 1959; 25 FR 13688, Dec. 24, 1960; 26 FR 12569, Dec. 28, 
1961; 28 FR 122, Jan. 4, 1963; 28 FR 11630, Oct. 31, 1963; 33 FR 15067, 
Oct. 9, 1968; 38 FR 34463, Dec. 14, 1973; 43 FR 58369, Dec. 14, 1978; 48 
FR 34026, July 27, 1983); 53 FR 30674, Aug. 15, 1988, extended the trust 
periods on Indian lands expiring during the calendar years of 1949, 
1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, 1961, 
1962, 1963, 1964-1968, 1969-1973, 1974-1978, 1979-1983, 1984-1988, 1989-
1993 respectively.

[[Page 675]]



                       CHAPTER II--INDIAN ARTS AND






                CRAFTS BOARD, DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
301             Navajo, Pueblo, and Hopi silver and 
                    turquoise products; standards...........         676
304             Navajo, Pueblo, and Hopi silver, use of 
                    Government mark.........................         676
307             Navajo all-wool woven fabrics; use of 
                    Government certificate of genuineness...         677
308             Regulations for use of certificates of the 
                    Indian Arts and Crafts Board to be 
                    attached to their trade-marks by Indian 
                    enterprises concerned with the 
                    production and sale of genuine 
                    handicrafts.............................         679
309             Protection of Indian arts and crafts 
                    products................................         680
310             Use of Government marks of genuineness for 
                    Alaskan Indian and Alaskan Eskimo hand-
                    made products...........................         682

[[Page 676]]



PART 301--NAVAJO, PUEBLO, AND HOPI SILVER AND TURQUOISE PRODUCTS; STANDARDS--Table of Contents




Sec.
301.1  Eligibility for use of Government stamp.
301.2  Specifications of material.
301.3  Specifications of dies.
301.4  Application of dies.
301.5  Applique elements in design.
301.6  Stone for ornamentation.
301.7  Stonecutting.
301.8  Finish.

    Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply 
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.

    Source: The provisions of this part 301 contained in standards for 
Navajo, Pueblo, and Hopi silver and turquoise products, Mar. 9, 1937, 
unless otherwise noted.



Sec. 301.1  Eligibility for use of Government stamp.

    Subect to the detailed requirements that follow, the Government 
stamp shall be affixed only to work individually produced and to work 
entirely hand-made. No object produced under conditions resembling a 
bench work system, and no object in whose manufacture any power-driven 
machinery has been used, shall be eligible for the use of the Government 
stamp.



Sec. 301.2  Specifications of material.

    Silver slugs of 1 ounce weight or other silver objects may be used, 
provided their fineness is at least 900, and provided further that no 
silver sheet shall be used. Unless cast, the slug or other object is to 
be hand hammered to thickness and shape desired. The only exceptions 
here are pins on brooches or similar objects; ear screws for earrings; 
backs for tie clasps and chains which may be of silver of different 
fineness and mechanically made.



Sec. 301.3  Specifications of dies.

    Dies used are to be entirely hand-made, with no tools more 
mechanical than hand tools and vise. Dies shall contain only a single 
element of the design.



Sec. 301.4  Application of dies.

    Dies are to be applied to the object with the aid of nothing except 
hand tools.



Sec. 301.5  Applique elements in design.

    All such parts of the ornament are to be hand-made. If wire is used, 
it is to be hand-made with no tool other than a hand-made draw plate. 
These requirements apply to the boxes for stone used in the design.



Sec. 301.6  Stone for ornamentation.

    In addition to turquoise, the use of other local stone is permitted. 
Turquoise, if used, must be genuine stone, uncolored by any artificial 
means.



Sec. 301.7  Stonecutting.

    All stone used, including turquoise, is to be hand-cut and polished. 
This permits the use of hand- or foot-driven wheels.



Sec. 301.8  Finish.

    All silver is to be hand polished.



PART 304--NAVAJO, PUEBLO, AND HOPI SILVER, USE OF GOVERNMENT MARK--Table of Contents




Sec.
304.1  Penalties for imitation or unauthorized use.
304.2  Marking and ownership of dies.
304.3  Classifying and marking of silver.
304.4  Standards and additional requirements.
304.5  Dies to identify tribe.
304.6  Responsibility of dealer.
304.7  Eligibility of silver meeting standards.
304.8  Use of label by dealer.
304.9  Placards; display of regulations.

    Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply 
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.

    Source: The provisions of this part 304 contained in regulations 
governing use of Government mark on Navajo, Pueblo, and Hopi silver, 
April 2, 1937, unless otherwise noted.



Sec. 304.1  Penalties for imitation or unauthorized use.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is

[[Page 677]]

subject to the criminal penalties imposed by section 5 of the said act 
(49 Stat. 892; 25 U.S.C. 305d).



Sec. 304.2  Marking and ownership of dies.

    All dies used to mark silver will be provided by and owned by the 
Indian Arts and Crafts Board.



Sec. 304.3  Classifying and marking of silver.

    For the present the Indian Arts and Crafts Board reserves to itself 
the sole right to judge what silver complying with its standards shall 
bear the Government mark. All such marking of silver shall, for the 
present, be done by an agent of the Indian Arts and Crafts Board.



Sec. 304.4  Standards and additional requirements.

    No piece of silver, though made in compliance with the standards set 
forth by the Indian Arts and Crafts Board, shall bear the Government 
mark unless:
    (a) Its weight is substantially in accord with Indian usage and 
custom.
    (b) Its design elements are substantially in accord with Indian 
usage and tradition.
    (c) Its workmanship is substantially that expected in good hand 
craftsmanship.



Sec. 304.5  Dies to identify tribe.

    Dies are marked with name of tribe. A Navajo stamp will be used 
where the marker is a Navajo Indian; similarly, for Zuni, Hopi, and Rio 
Grande Pueblo.



Sec. 304.6  Responsibility of dealer.

    All dies will be numbered, and each wholesaler or dealer will be 
held responsible for any violation of standards in silver that bears his 
mark. Until such time as the Board relinquishes its sole right to mark 
silver, the responsibility of the dealer for whom silver is marked will 
be confined to misrepresentations as to quality of silver and of stones 
used for ornament and to methods of production.



Sec. 304.7  Eligibility of silver meeting standards.

    In addition to silver currently made in compliance with the 
standards of the Indian Arts and Crafts Board, other silver products 
made prior to the promulgation of the regulations in this part may be 
stamped, provided the maker thereof is known to be an Indian, and the 
product satisfies the requirements in Sec. 304.4.



Sec. 304.8  Use of label by dealer.

    Any dealer offering for sale silver bearing the Government mark may, 
if he wishes, attach to silver so marked a label or ticket calling 
attention to the Government mark.



Sec. 304.9  Placards; display of regulations.

    Every dealer offering for sale silver bearing the Government mark 
may display in a prominent place a placard setting forth the standards 
and the regulations in this part, such placard to be furnished by the 
Indian Arts and Crafts Board.

[Regs., Apr. 2, 1937, as amended Feb. 21, 1938]



PART 307--NAVAJO ALL-WOOL WOVEN FABRICS; USE OF GOVERNMENT CERTIFICATE OF GENUINENESS--Table of Contents




Sec.
307.1  Penalties.
307.2  Certificates of genuineness; by whom affixed.
307.3  Granting of licenses, contract, and bond requirements.
307.4  Standards for fabrics.
307.5  Hand seal press and certificates to be furnished.
307.6  Fees.
307.7  Suspension of license.
307.8  Revocation of license.
307.9  Surrender of license.
307.10  Period of license.
307.11  Certificates fastened to fabrics.
307.12  Certificates, dating, and signing thereof.
307.13  Licensee's responsibility.

    Authority: Sec. 3, 49 Stat. 892 (25 U.S.C. 305b). Interpret or apply 
sec. 2, 49 Stat. 891, as amended (25 U.S.C. 305a).

    Source: The provisions of this part 307 contained in regulations 
governing the use of Government certificate of genuineness for Navajo 
all-wool woven fabrics, Oct. 20, 1937, unless otherwise noted.

[[Page 678]]



Sec. 307.1  Penalties.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is subject to the criminal penalties 
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C. 305d), 
which provides:

    Any person who shall counterfeit or colorably imitate any Government 
trade-mark used or devised by the Board as provided in section 305a of 
this chapter, or shall, except as authorized by the Board, affix any 
such Government trade-mark, or shall knowingly, willfully, and corruptly 
affix any reproduction, counterfeit, copy, or colorable imitation 
thereof upon any products, Indian or otherwise, or to any labels, signs, 
prints, packages, wrappers, or receptacles intended to be used upon or 
in connection with the sale of such products, or any person who shall 
knowingly make any false statement for the purpose of obtaining the use 
of any such Government trade-mark shall be guilty of a misdemeanor, and 
upon conviction thereof shall be enjoined from further carrying on the 
act or acts complained of and shall be subject to a fine not exceeding 
$20,000, or imprisonment not exceeding six months, or both such fine and 
imprisonment.



Sec. 307.2  Certificates of genuineness; by whom affixed.

    Government certificates of genuineness for Navajo all-wool woven 
fabrics may be affixed to fabrics meeting the conditions specified in 
Sec. 307.4 by persons duly authorized to affix such certificates, under 
license issued by the Indian Arts and Crafts Board.



Sec. 307.3  Granting of licenses, contract, and bond requirements.

    A license may be granted to any person desiring to use the 
Government certificate of genuineness for Navajo all-wool woven fabrics 
who shall make application therefor and shall execute a contract 
acceptable to the Indian Arts and Crafts Board providing for the use of 
such certificates in conformity with the regulations in this part, which 
contract shall be accompanied by an indemnity bond acceptable to the 
Indian Arts and Crafts Board, in the amount of $500, conditioned upon 
faithful performance of such contract.



Sec. 307.4  Standards for fabrics.

    No fabric may carry the Government certificate of genuineness for 
Navajo all-wool woven fabric unless all of the following conditions are 
met:
    (a) The fabric is made entirely of local wool that is locally hand-
spun and is entirely woven on a native Navajo loom;
    (b) The fabric is made by a member of the Navajo Tribe working under 
conditions not resembling a workshop or factory system;
    (c) The size of the fabric is indicated in the certificate;
    (d) The licensee signs the certificate.

[Regs., Oct. 20, 1937, as amended at 4 FR 2436, June 17, 1939]



Sec. 307.5  Hand seal press and certificates to be furnished.

    Each licensee will be furnished, upon payment of the registration 
and license fees specified in Sec. 307.6 one hand seal press and a 
supply of blank Government certificates, which shall be used only in 
accordance with this license, and shall remain at all times the property 
of the Board.



Sec. 307.6  Fees.

    Each licensee shall pay a registration fee of $2, together with a 
license fee which shall be determined on the basis of $1 for each 40 
Government certificates ordered by the licensee from the Board.



Sec. 307.7  Suspension of license.

    In the event that complaint is made to the Board that any provision 
of any license or of the regulations in this part has been violated by 
any licensee, the Board may suspend the license and all authority 
conferred thereby, in its discretion, for a period of 30 days, by 
notifying the licensee of such suspension, by mail, by telegraph, or in 
any other manner.



Sec. 307.8  Revocation of license.

    In the event that the Board, after giving a licensee written notice 
of charges and affording an opportunity to reply to such charges, orally 
or in writing, is satisfied that any provision of any license or of the 
regulations in this part has been violated by any licensee, the Board 
may revoke the license by notifying the licensee of such revocation, by 
mail, by telegraph, or in any other manner. Upon notice of such

[[Page 679]]

revocation all authority conferred by the license so revoked shall 
forthwith terminate, but the validity of actions taken while the license 
was in force shall not be affected.



Sec. 307.9  Surrender of license.

    Any license may be surrendered by the licensee at any time by 
surrendering to the Board the Government hand seal press and unused 
certificates of genuineness entrusted to the licensee, accompanied by a 
copy of the license marked ``surrendered'' and signed by the licensee. 
Such surrender shall take effect as of the time that such property and 
document have been received by the Board.



Sec. 307.10  Period of license.

    Each license shall be in effect from the date of execution thereof 
and until 1 year thereafter, unless sooner surrendered or canceled in 
accordance with the foregoing provisions.



Sec. 307.11  Certificates fastened to fabrics.

    Certificates shall be fastened to the woven fabric by wire caught in 
a lead seal disc that shall be impressed and made fast with the hand 
seal press furnished by the Indian Arts and Crafts Board.



Sec. 307.12  Certificates, dating, and signing thereof.

    When the certificate is first affixed the lower of the two spaces 
provided for the purpose shall be signed by the licensee. In the event 
the ultimate retailer of any fabric so marked is not the person who 
originally attached the certificate, that ultimate retailer may sign the 
upper of the two spaces provided for the purpose and detach the original 
signature.

[4 FR 2436, June 17, 1939]



Sec. 307.13  Licensee's responsibility.

    Certificates may be attached only to products which are in the 
ownership or possession of the licensee. Certificates will be 
consecutively numbered and records of the allocation of such 
certificates will be maintained by the Indian Arts and Crafts Board. 
Each licensee will be held responsible for the proper use of such 
certificates and of the Government hand seal press furnished to such 
licensee.



 PART 308--REGULATIONS FOR USE OF CERTIFICATES OF THE INDIAN ARTS AND CRAFTS BOARD TO BE ATTACHED TO THEIR TRADE-MARKS BY INDIAN ENTERPRISES CONCERNED WITH THE 
PRO
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--Table of Contents





Sec.
308.1  Penalties.
308.2  Certificates of genuineness to be attached to trade-marks.
308.3  Conditions of eligibility to attach certificates.
308.4  Revocation of privilege of attaching certificates.

    Authority: Sec. 3, 49 Stat. 892 (25 U.S.C. 305b). Interpret or apply 
sec. 2, 49 Stat. 891, as amended (25 U.S.C. 305a).

    Source: 8 FR 8736, June 26, 1943, unless otherwise noted.



Sec. 308.1  Penalties.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is subject to the criminal penalties 
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C. 305d), 
which provides:

    Any person who shall counterfeit or colorably imitate any Government 
trade-mark used or devised by the Board as provided in section 305a of 
this chapter, or shall, except as authorized by the Board, affix any 
such Government trade-mark, or shall knowingly, willfully, and corruptly 
affix any reproduction, counterfeit, copy, or colorable imitation 
thereof upon any products Indian or otherwise, or to any labels, signs, 
prints, packages, wrappers, or receptacles intended to be used upon or 
in connection with the sale of such products, or any person who shall 
knowingly make any false statement for the purpose of obtaining the use 
of any such Government trade-mark, shall be guilty of a misdemeanor, and 
upon conviction thereof shall be enjoined from further carrying on the 
act or acts complained of and shall be subject to a fine not exceeding 
$2,000, or imprisonment not exceeding six months, or both such fine and 
imprisonment.

[[Page 680]]



Sec. 308.2  Certificates of genuineness to be attached to trade-marks.

    (a) To insure the widest distribution of genuine Indian handicraft 
products, and to protect the various enterprises organized by individual 
Indian craftsmen, or by groups of Indian craftsmen, for the purpose of 
the production and sale of such handicraft products, the Indian Arts and 
Crafts Board offers each such enterprise the privilege of attaching to 
its trademark a certificate declaring that it is recognized by the 
Indian Arts and Crafts Board as an Indian enterprise dealing in genuine 
Indian-made handicraft products, and that its trade-mark has the 
approval of the Board.
    (b) The certificate shall consist of a border around the trade-mark 
bearing the words ``Certified Indian Enterprise Genuine Handicrafts, 
U.S. Indian Arts and Crafts Board, Department of the Interior,'' and 
these words may be used wherever the trade-mark appears.



Sec. 308.3  Conditions of eligibility to attach certificates.

    To be eligible to attach the certificate, an enterprise must meet 
the following conditions:
    (a) It must offer for sale only Indian-made genuine handicraft 
products, i.e., objects produced by Indian craftsmen with the help of 
only such devices as allow the manual skill of the maker to condition 
the shape and design of each individual product.
    (b) It must be entirely Indian owned and organized either by 
individual Indians or by groups of Indians.
    (c) It must agree to apply certificates of genuineness only to such 
products as meet the standards of quality prescribed by the Indian Arts 
and Crafts Board at the time of the application of the enterprise for 
the privilege of attaching the certificate.
    (d) It must agree to obtain the approval of the Indian Arts and 
Crafts Board as to the manner of production of the certificates.



Sec. 308.4  Revocation of privilege of attaching certificates.

    If an enterprise, after securing the privilege of attaching the 
certificates, should fail to meet the above-named conditions, the Board 
reserves the right to revoke the privilege.



PART 309--PROTECTION OF INDIAN ARTS AND CRAFTS PRODUCTS--Table of Contents




Sec.
309.1  How do the regulations in this part carry out the Indian Arts and 
          Crafts Act of 1990?
309.2  What are the key definitions for purposes of the Act?
309.3  How will statements about Indian origin of art or craft products 
          be interpreted?
309.4  How can an individual be certified as an Indian artisan?
309.5  What penalties apply?
309.6  How are complaints filed?

    Authority: 18 U.S.C. 1159, 25 U.S.C. 305 et seq.

    Source: 61 FR 54555, Oct. 21, 1996, unless otherwise noted.



Sec. 309.1  How do the regulations in this part carry out the Indian Arts and Crafts Act of 1990?

    These regulations define the nature and Indian origin of products 
protected by the Indian Arts and Crafts Act of 1990 (18 U.S.C. 1159, 25 
U.S.C. 305 et seq.) from false representations, and specify how the 
Indian Arts and Crafts Board will interpret certain conduct for 
enforcement purposes. The Act makes it unlawful to offer or display for 
sale or sell any good in a manner that falsely suggests it is Indian 
produced, an Indian product, or the product of a particular Indian, or 
Indian tribe, or Indian arts and crafts organization resident within the 
United States.



Sec. 309.2  What are the key definitions for purposes of the Act?

    (a) Indian as applied to an individual means a person who is a 
member of an Indian tribe or for purposes of this part is certified by 
an Indian tribe as a non-member Indian artisan (in accordance with the 
provisions of Sec. 309.4).
    (b) Indian artisan means an individual who is certified by an Indian 
tribe as a non-member Indian artisan.
    (c) Indian arts and crafts organization means any legally 
established arts and crafts marketing organization composed of members 
of Indian tribes.

[[Page 681]]

    (d) Indian product--(1) In general. Indian product means any art or 
craft product made by an Indian.
    (2) Illustrations. The term ``Indian product'' includes, but is not 
limited to:
    (i) Art works that are in a traditional or non-traditional Indian 
style or medium;
    (ii) Crafts that are in a traditional or non-traditional Indian 
style or medium;
    (iii) Handcrafts, i.e. objects created with the help of only such 
devices as allow the manual skill of the maker to condition the shape 
and design of each individual product.
    (3) Exclusion for products made before 1935. The provisions of this 
part shall not apply to any art or craft products made before 1935.
    (e) Indian tribe means--
    (1) Any Indian tribe, band, nation, Alaska Native village, or any 
organized group or community which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; or
    (2) Any Indian group that has been formally recognized as an Indian 
tribe by a State legislature or by a State commission or similar 
organization legislatively vested with State tribal recognition 
authority.
    (f) Product of a particular Indian tribe or Indian arts and crafts 
organization means that the origin of a product is identified as a named 
Indian tribe or named Indian arts and crafts organization.

[61 FR 54555, Oct. 21, 1996; 61 FR 57002, Nov. 5, 1996]



Sec. 309.3  How will statements about Indian origin of art or craft products be interpreted?

    (a) In general. The unqualified use of the term ``Indian'' or of the 
term ``Native American'' or the unqualified use of the name of an Indian 
tribe, in connection with an art or craft product, is interpreted to 
mean for purposes of this part that--
    (1) The maker is a member of an Indian tribe, is certified by an 
Indian tribe as a non-member Indian artisan, or is a member of the 
particular Indian tribe named; and
    (2) The art or craft product is an Indian product.
    (b) Products of Indians of foreign tribes--(1) In general. The 
unqualified use of the term ``Indian'' or of the term ``Native 
American'' or the unqualified use of the name of a foreign tribe, in 
connection with an art or craft product, regardless of where it is 
produced and regardless of any country-of-origin marking on the product, 
is interpreted to mean for purposes of this part that--
    (i) The maker is a member of an Indian tribe, is certified by an 
Indian tribe as a non-member Indian artisan, or is a member of the 
particular Indian tribe named;
    (ii) The tribe is resident in the United States; and
    (iii) The art or craft product is an Indian product.
    (2) Exception where country of origin is disclosed. Paragraph (b) of 
this section does not apply to any art or craft for which the name of 
the foreign country of tribal ancestry is clearly disclosed in 
conjunction with marketing of the product.
    (c) Example. X is a lineal descendant of a member of Indian Tribe A. 
However, X is not a member of Indian Tribe A, nor is X certified by 
Indian Tribe A as a non-member Indian artisan. X may not be described in 
connection with the marketing of an art or craft product made by X as an 
Indian, a Native American, a member of an Indian tribe, a member of 
Tribe A, or as a non-member Indian artisan of an Indian tribe. However, 
the true statement may be used that X is of Indian descent, Native 
American descent, or Tribe A descent.

[61 FR 54555, Oct. 21, 1996; 61 FR 57002, Nov. 5, 1996]



Sec. 309.4  How can an individual be certified as an Indian artisan?

    (a) In order for an individual to be certified by an Indian tribe as 
a non-member Indian artisan for purposes of this part--
    (1) The individual must be of Indian lineage of one or more members 
of such Indian tribe; and
    (2) The certification must be documented in writing by the governing 
body of an Indian tribe or by a certifying body delegated this function 
by the governing body of the Indian tribe.

[[Page 682]]

    (b) As provided in section 107 of the Indian Arts and Crafts Act of 
1990, Public Law 101-644, a tribe may not impose a fee for certifying an 
Indian artisan.



Sec. 309.5  What penalties apply?

    A person who offers or displays for sale or sells a good, with or 
without a Government trademark, in a manner that falsely suggests it is 
Indian produced, an Indian product, or the product of a particular 
Indian or Indian tribe or Indian arts and crafts organization, resident 
within the United States:
    (a) Is subject to the criminal penalties specified in section 1159, 
title 18, United States Code; and
    (b) Is subject to the civil penalties specified in section 305e, 
title 25, United States Code.



Sec. 309.6  How are complaints filed?

    Complaints about protected products alleged to be offered or 
displayed for sale or sold in a manner that falsely suggests they are 
Indian products should be made in writing and addressed to the Director, 
Indian Arts and Crafts Board, Room 4004-MIB, U.S. Department of the 
Interior, 1849 C Street, NW, Washington, DC 20240.



PART 310--USE OF GOVERNMENT MARKS OF GENUINENESS FOR ALASKAN INDIAN AND ALASKAN ESKIMO HAND-MADE PRODUCTS--Table of Contents




Sec.
310.1  Penalties.

                             Alaskan Indian

310.2  Certificates of genuineness, authority to affix.
310.3  Conditions.
310.4  Application of mark.

                             Alaskan Eskimo

310.5  Certificates of genuineness, authority to affix.
310.6  Conditions.
310.7  Application of mark.

    Authority: Sec. 3, 49 Stat. 892; 25 U.S.C. 305b. Interpret or apply 
sec. 2, 49 Stat. 891, as amended; 25 U.S.C. 305a.

    Source: 4 FR 515, Feb. 4, 1939, unless otherwise noted.



Sec. 310.1  Penalties.

    The use of Government trade-marks in an unauthorized manner, or the 
colorable imitation of such marks, is subject to the criminal penalties 
imposed by section 5 of the said act (49 Stat. 892; 25 U.S.C., 305d), 
which provides:

    Any person who shall counterfeit or colorably imitate any Government 
trade-mark used or devised by the Board as provided in section 305a of 
this chapter, or shall, except as authorized by the Board, affix any 
such Government trade-mark, or shall knowingly, willfully, and corruptly 
affix any reproduction, counterfeit, copy, or colorable imitation 
thereof upon any products, Indian or otherwise, or to any labels, signs, 
prints, packages, wrappers, or receptacles intended to be used upon or 
in connection with the sale of such products, or any person who shall 
knowingly make any false statement for the purpose of obtaining the use 
of any such Government trade-mark, shall be guilty of a misdeameanor, 
and upon conviction thereof shall be enjoined from further carrying on 
the act or acts complained of and shall be subject to a fine not 
exceeding $2,000 or imprisonment not exceeding six months or both such 
fine and imprisonment.

                             Alaskan Indian



Sec. 310.2  Certificates of genuineness, authority to affix.

    Government marks of genuineness for Alaskan Indian hand-made 
products may be affixed to articles meeting the conditions specified in 
Sec. 310.3 by persons duly authorized by the Indian Arts and Crafts 
Board to affix such marks.



Sec. 310.3  Conditions.

    No article may carry the Government mark of genuineness for Alaskan 
Indian hand-made products unless all of the following conditions are 
met:
    (a) The article is hand-made by an Alaskan Indian.
    (b) The article is hand-made under conditions not resembling a 
workshop or factory system.
    (c) All raw materials used in carving, basketry and mat making, and 
all furs and hides used in the manufacture of hand-made artifacts, must 
be of native origin.

[[Page 683]]



Sec. 310.4  Application of mark.

    All marks shall be applied to the article with a rubber stamp to be 
furnished by the Indian Arts and Crafts Board. Each stamp shall bear a 
distinctive letter and may be used only by the person to whom it has 
been issued. With the addition of the distinctive letter, each stamp 
shall read:

                                   ( )

                                Hand-Made

                             Alaskan Indian

                                   U S

                       Indian Arts & Crafts Board

                                   I D

or, in the case of articles too small to carry this stamp:

                                   ( )

                                 U S I D

                             Alaskan Indian

    On baskets and fabrics which offer no surface for the application of 
such a rubber stamp, the stamp shall be placed on a paper tag attached 
to the article by a wire caught in a lead seal disc that shall be 
impressed and made fast with a hand seal press furnished by the Indian 
Arts and Crafts Board.

                             Alaskan Eskimo



Sec. 310.5  Certificates of genuineness, authority to affix.

    Government marks of genuineness for Alaskan Eskimo hand-made 
products may be affixed to articles meeting the conditions specified in 
Sec. 310.6 by persons duly authorized by the Indian Arts and Crafts 
Board to affix such marks.



Sec. 310.6  Conditions.

    No article may carry the Government mark of genuineness for Alaskan 
Eskimo hand-made products unless all of the following conditions are 
met:
    (a) The article is hand-made by an Alaskan Eskimo.
    (b) The article is hand-made under conditions not resembling a 
workshop or factory system.
    (c) All raw materials used in the making of the articles are of 
native origin except:
    (1) Commercial fasteners.
    (2) Calfskin trimmings for decorative borders on parkas and mukluks.
    (3) Tops for mukluks made of commercial fabric.
    (4) Commercially made draw-cords for mukluks.
    (5) Commercial fabrics for parka linings.
    (6) Sewing thread and glass beads.



Sec. 310.7  Application of mark.

    All marks shall be applied to the article with a rubber stamp to be 
furnished by the Indian Arts and Crafts Board. Each stamp shall bear a 
distinctive letter and may be used only by the person to whom it has 
been issued. With the addition of the distinctive letter, each stamp 
shall read:

                                   ( )

                                Hand-Made

                             Alaskan Eskimo

                                   U S

                       Indian Arts & Crafts Board

                                   I D

or, in the case of articles too small to carry this stamp:

                                   ( )

                                 U S I D

                             Alaskan Eskimo

    On baskets and fabrics which offer no surface for the application of 
such a rubber stamp, the stamp shall be placed on a paper tag attached 
to the article by a wire caught in a lead seal disc that shall be 
impressed and made fast with a hand seal press furnished by the Indian 
Arts and Crafts Board.

[[Page 685]]



   CHAPTER III--NATIONAL INDIAN GAMING COMMISSION, DEPARTMENT OF THE 
                                INTERIOR




  --------------------------------------------------------------------

                    SUBCHAPTER A--GENERAL PROVISIONS
Part                                                                Page
501             Purpose and scope of this chapter...........         687
502             Definitions of this chapter.................         687
503             Commission information collection 
                    requirements under the Paperwork 
                    Reduction Act: OMB control numbers and 
                    expiration dates........................         690
504-513   [Reserved]
514             Fees........................................         691
515             Privacy Act procedures......................         693
516       [Reserved]
517             Freedom of Information Act procedures.......         697
518       [Reserved]
519             Service.....................................         704
    SUBCHAPTER B--APPROVAL OF CLASS II AND CLASS III ORDINANCES AND 
                               RESOLUTIONS
520-521   [Reserved]
522             Submission of gaming ordinance or resolution         706
523             Review and approval of existing ordinances 
                    or resolutions..........................         708
524             Appeals.....................................         709
525-529   [Reserved]
              SUBCHAPTER C--MANAGEMENT CONTRACT PROVISIONS
530       [Reserved]
531             Content of management contracts.............         711
532       [Reserved]
533             Approval of management contracts............         712
534       [Reserved]
535             Post-approval procedures....................         714
536       [Reserved]
537             Background investigations for persons or 
                    entities with a financial interest in, 
                    or having management responsibility for, 
                    a management contract...................         716
538       [Reserved]

[[Page 686]]

539             Appeals.....................................         719

                        SUBCHAPTER D--[RESERVED]
540-549   [Reserved]

  SUBCHAPTER E--GAMING LICENSES AND BACKGROUND INVESTIGATIONS FOR KEY 
               EMPLOYEES AND PRIMARY MANAGEMENT OFFICIALS

550-555   [Reserved]
556             Background investigations for primary 
                    management officials and key employees..         720
557       [Reserved]
558             Gaming licenses for key employees and 
                    primary management officials............         722
559       [Reserved]
                        SUBCHAPTER F--[RESERVED]
560-569   [Reserved]
           SUBCHAPTER G--COMPLIANCE AND ENFORCEMENT PROVISIONS
570       [Reserved]
571             Monitoring and investigations...............         724
572       [Reserved]
573             Enforcement.................................         726
574       [Reserved]
575             Civil fines.................................         728
576       [Reserved]
577             Appeals before the Commission...............         729
578-579   [Reserved]
                        SUBCHAPTER H--[RESERVED]
580-589   [Reserved]
                        SUBCHAPTER I--[RESERVED]
590-599   [Reserved]

[[Page 687]]



                    SUBCHAPTER A--GENERAL PROVISIONS





PART 501--PURPOSE AND SCOPE OF THIS CHAPTER--Table of Contents




Sec.
501.1  Purpose.
501.2  Scope.

    Authority: 25 U.S.C. 2706, 2710.

    Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.



Sec. 501.1  Purpose.

    This chapter implements the Indian Gaming Regulatory Act (Pub. L. 
100-497, 102 Stat. 2467).



Sec. 501.2  Scope.

    (a) Tribes and other operators of class II and class III gaming 
operations on Indian lands shall conduct gaming operations according to 
the requirements of the Indian Gaming Regulatory Act, the regulations of 
this chapter, tribal law and, where applicable, the requirements of a 
compact or procedures prescribed by the Secretary under 25 U.S.C. 
2710(d).
    (b) Class I gaming on Indian lands is within the exclusive 
jurisdiction of the Indian tribes and shall not be subject to the 
provisions of the Indian Gaming Regulatory Act or this chapter.
    (c) Class II gaming on Indian lands shall continue to be within the 
jurisdiction of an Indian tribe, but shall be subject to the provisions 
of the Indian Gaming Regulatory Act and this Chapter.
    (d) Nothing in the Indian Gaming Regulatory Act or this Chapter 
shall impair the right of an Indian tribe to regulate class III gaming 
on its Indian lands concurrently with a State, except to the extent that 
such regulation is inconsistent with, or less stringent than, the State 
laws and regulations made applicable by a Tribal-State compact that is 
entered into by an Indian tribe under the Indian Gaming Regulatory Act 
and that is in effect.



PART 502--DEFINITIONS OF THIS CHAPTER--Table of Contents




Sec.
502.1  Chairman.
502.2  Class I gaming.
502.3  Class II gaming.
502.4  Class III gaming.
502.5  Collateral agreement.
502.6  Commission.
502.7  Electronic, computer or other technologic aid.
502.8  Electronic or electromechanical facsimile.
502.9  Game similar to bingo.
502.10  Gaming operation.
502.11  House banking game.
502.12  Indian lands.
502.13  Indian tribe.
502.14  Key employee.
502.15  Management contract.
502.16  Net revenues.
502.17  Person having a direct or indirect financial interest in a 
          management contract.
502.18  Person having management responsibility for a management 
          contract.
502.19  Primary management official.
502.20  Secretary.
502.21  Tribal-state compact.

    Authority: 25 U.S.C. 2701 et seq.

    Source: 57 FR 12392, Apr. 9, 1992, unless otherwise noted.



Sec. 502.1  Chairman.

    Chairman means the Chairman of the National Indian Gaming Commission 
or his or her designee.



Sec. 502.2  Class I gaming.

    Class I gaming means:
    (a) Social games played solely for prizes of minimal value; or
    (b) Traditional forms of Indian gaming when played by individuals in 
connection with tribal ceremonies or celebrations.



Sec. 502.3  Class II gaming.

    Class II gaming means:
    (a) Bingo or lotto (whether or not electronic, computer, or other 
technologic aids are used) when players:
    (1) Play for prizes with cards bearing numbers or other 
designations;
    (2) Cover numbers or designations when object, similarly numbered or 
designated, are drawn or electronically determined; and
    (3) Win the game by being the first person to cover a designated 
pattern on such cards;

[[Page 688]]

    (b) If played in the same location as bingo or lotto, pull-tabs, 
punch boards, tip jars, instant bingo, and other games similar to bingo;
    (c) Nonbanking card games that:
    (1) State law explicitly authorizes, or does not explicitly 
prohibit, and are played legally anywhere in the state; and
    (2) Players play in conformity with state laws and regulations 
concerning hours, periods of operation, and limitations on wagers and 
pot sizes;
    (d) Card games played in the states of Michigan, North Dakota, South 
Dakota, or Washington if:
    (1) An Indian tribe actually operates the same card games as played 
on or before May 1, 1988, as determined by the Chairman; and
    (2) The pot and wager limits remain the same as on or before May 1, 
1988, as determined by the Chariman;
    (e) Individually owned class II gaming operations--
    (1) That were operating on September 1, 1986;
    (2) That meet the requirements of 25 U.S.C. 2710(b)(4)(B);
    (3) Where the nature and scope of the game remains as it was on 
October 17, 1988; and
    (4) Where the ownership interest or interests are the same as on 
October 17, 1988.



Sec. 502.4  Class III gaming.

    Class III gaming means all forms of gaming that are not class I 
gaming or class II gaming, including but not limited to:
    (a) Any house banking game, including but not limited to--
    (1) Card games such as baccarat, chemin de fer, blackjack (21), and 
pai gow (if played as house banking games);
    (2) Casino games such as roulette, craps, and keno;
    (b) Any slot machines as defined in 15 U.S.C. 1171(a)(1) and 
electronic or electromechanical facsimiles of any game of chance;
    (c) Any sports betting and parimutuel wagering including but not 
limited to wagering on horse racing, dog racing or jai alai; or
    (d) Lotteries.



Sec. 502.5  Collateral agreement.

    Collateral agreement means any contract, whether or not in writing, 
that is related, either directly or indirectly, to a management 
contract, or to any rights, duties or obligations created between a 
tribe (or any of its members, entities, or organizations) and a 
management contractor or subcontractor (or any person or entity related 
to a management contractor or subcontractor).



Sec. 502.6  Commission.

    Commission means the National Indian Gaming Commission.



Sec. 502.7  Electronic, computer or other technologic aid.

    Electronic, computer or other technologic aid means a device such as 
a computer, telephone, cable, television, satellite or bingo blower and 
that when used--
    (a) Is not a game of chance but merely assists a player or the 
playing of a game;
    (b) Is readily distinguishable from the playing of a game of chance 
on an electronic or electromechanical facsimile; and
    (c) Is operated according to applicable Federal communications law.



Sec. 502.8  Electronic or electromechanical facsimile.

    Electronic or electromechanical facsimile means any gambling device 
as defined in 15 U.S.C. 1171(a) (2) or (3).



Sec. 502.9  Game similar to bingo.

    Game similar to bingo means any game that meets the requirements for 
bingo under Sec. 502.3(a) of this part and that is not a house banking 
game under Sec. 502.11 of this part.



Sec. 502.10  Gaming operation.

    Gaming operation means each economic entity that is licensed by a 
tribe, operates the games, receives the revenues, issues the prizes, and 
pays the expenses. A gaming operation may be operated by a tribe 
directly; by a management contractor; or, under certain conditions, by 
another person or other entity.

[[Page 689]]



Sec. 502.11  House banking game.

    House banking game means any game of chance that is played with the 
house as a participant in the game, where the house takes on all 
players, collects from all losers, and pays all winners, and the house 
can win.



Sec. 502.12  Indian lands.

    Indian lands means:
    (a) Land within the limits of an Indian reservation; or
    (b) Land over which an Indian tribe exercises governmental power and 
that is either--
    (1) Held in trust by the United States for the benefit of any Indian 
tribe or individual; or
    (2) Held by an Indian tribe or individual subject to restriction by 
the United States against alienation.



Sec. 502.13  Indian tribe.

    Indian tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians that the Secretary recognizes 
as--
    (a) Eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians; and
    (b) Having powers of self-government.



Sec. 502.14  Key employee.

    Key employee means:
    (a) A person who performs one or more of the following functions:
    (1) Bingo caller;
    (2) Counting room supervisor;
    (3) Chief of security;
    (4) Custodian of gaming supplies or cash;
    (5) Floor manager;
    (6) Pit boss;
    (7) Dealer;
    (8) Croupier;
    (9) Approver of credit; or
    (10) Custodian of gambling devices including persons with access to 
cash and accounting records within such devices;
    (b) If not otherwise included, any other person whose total cash 
compensation is in excess of $50,000 per year; or,
    (c) If not otherwise included, the four most highly compensated 
persons in the gaming operation.



Sec. 502.15  Management contract.

    Management contract means any contract, subcontract, or collateral 
agreement between an Indian tribe and a contractor or between a 
contractor and a subcontractor if such contract or agreement provides 
for the management of all or part of a gaming operation.



Sec. 502.16  Net revenues.

    Net revenues means gross gaming revenues of an Indian gaming 
operation less--
    (a) Amounts paid out as, or paid for, prizes; and
    (b) Total gaming-related operating expenses, excluding management 
fees.



Sec. 502.17  Person having a direct or indirect financial interest in a management contract.

    Person having a direct or indirect financial interest in a 
management contract means:
    (a) When a person is a party to a management contract, any person 
having a direct financial interest in such management contract;
    (b) When a trust is a party to a management contract, any 
beneficiary or trustee;
    (c) When a partnership is a party to a management contract, any 
partner;
    (d) When a corporation is a party to a management contract, any 
person who is a director or who holds at least 10% of the issued and 
outstanding stock alone or in combination with another stockholder who 
is a spouse, parent, child or sibling; or
    (e) When an entity other than a natural person has an interest in a 
trust, partnership or corporation that has an interest in a management 
contract, all parties of that entity are deemed to be persons having a 
direct financial interest in a management contract.



Sec. 502.18  Person having management responsibility for a management contract.

    Person having management responsibility for a management contract 
means the person designated by the management contract as having 
management responsibility for the gaming operation, or a portion 
thereof.

[[Page 690]]



Sec. 502.19  Primary management official.

    Primary management official means:
    (a) The person having management responsibility for a management 
contract;
    (b) Any person who has authority:
    (1) To hire and fire employees; or
    (2) To set up working policy for the gaming operation; or
    (c) The chief financial officer or other person who has financial 
management responsibility.



Sec. 502.20  Secretary.

    Secretary means the Secretary of the Interior.



Sec. 502.21  Tribal-State compact.

    Tribal-State compact means an agreement between a tribe and a state 
about class III gaming under 25 U.S.C. 2710(d).



PART 503--COMMISSION INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS AND EXPIRATION DATES--Table of Contents




Sec.
503.1  Purpose of this part.
503.2  Display of control numbers and expiration dates.

    Authority: 44 U.S.C. 3501 et seq.
    Source: 58 FR 16495, Mar. 29, 1993, unless otherwise noted.



Sec. 503.1  Purpose of this part.

    This part displays the control numbers and expiration dates assigned 
to information collection requirements of the National Indian Gaming 
Commission (NIGC, or the Commission) assigned by the Director of the 
Office of Management and Budget (OMB) pursuant to the Paperwork 
Reduction Act of 1980, 44 U.S.C. 3501 et seq.



Sec. 503.2  Display of control numbers and expiration dates.

------------------------------------------------------------------------
                                             Currently                  
                                           assigned OMB     Expiration  
 Part or section number of title 25 CFR       control          date     
                                              numbers                   
------------------------------------------------------------------------
Sec.  514.1 (submission of fee reports).       3141-0007         6/30/94
Sec.  515.3 (request for access to                                      
 records)...............................       3141-0002        10/31/95
Sec.  515.5 (request for amendment to                                   
 records)...............................       3141-0002        10/31/95
Sec.  515.7 (appeals)...................       3141-0002        10/31/95
Part 519 (designation of agent for                                      
 service)...............................       3141-0003        10/31/95
Sec.  522.2 (submission and approval of                                 
 new ordinances)........................       3141-0003        10/31/95
Sec.  522.3 (amendment).................       3141-0003        10/31/95
Sec.  522.12 (revocation of class III                                   
 gaming)................................       3141-0003        10/31/95
Sec.  523.2 (submission and approval of                                 
 existing ordinances)...................       3141-0003        10/31/95
Sec.  523.4 (amendment).................       3141-0003        10/31/95
Part 524 (appeals)......................       3141-0003        10/31/95
Sec.  533.3 (approval of management                                     
 contracts).............................       3141-0004        10/31/95
Sec.  533.5 (modifications).............       3141-0004        10/31/95
Sec.  535.1 (post-approval procedures)..       3141-0004        10/31/95
Part 537 (background investigations)....       3141-0004        10/31/95
Part 539 (appeals)......................       3141-0004        10/31/95
Sec.  556.4 (background investigations                                  
 for class II gaming)...................       3141-0003        10/31/95
Sec.  556.5 (background investigations).       3141-0003        10/31/95
Part 558 (gaming licenses)..............       3141-0003        10/31/95
Sec.  571.7 (maintenance of records)....       3141-0001         7/31/95
Sec.  571.12 (audits)...................       3141-0001         7/31/95
Sec.  571.13 (audits)...................       3141-0001         7/31/95
Sec.  571.14 (audit reconciliation).....       3141-0001         7/31/95
Sec.  575.5 (information to Chairman)...       3141-0001         7/31/95
Sec.  575.6 (penalty reduction).........       3141-0001         7/31/95
Sec.  577.3 (notice of appeal)..........       3141-0001         7/31/95
Sec.  577.8 (confidentiality)...........       3141-0001         7/31/95
Sec.  577.12 (intervention).............       3141-0001         7/31/95

[[Page 691]]

                                                                        
Sec.  577.14 (objections)...............       3141-0001         7/31/95
------------------------------------------------------------------------




PARTS 504--513--[RESERVED]






PART 514--FEES--Table of Contents




    Authority: 25 U.S.C. 2706, 2708, 2710, 2717, 2717a.



Sec. 514.1  Annual fees.

    (a) Each class II gaming operation under the jurisdiction of the 
Commission shall pay to the Commission annual fees as established by the 
Commission. The Commission, by a vote of not less than two of its 
members, shall adopt the rates of fees to be paid.
    (1) The Commission shall adopt preliminary rates for each calendar 
year during the first quarter of that year (or as soon thereafter as 
possible), and, if considered necessary, shall modify those rates during 
the second and third quarters of the calendar year.
    (2) The Commission shall adopt final rates of fees for each calendar 
year during the fourth quarter of that year.
    (3) The Commission shall publish the rates of fees in a notice in 
the Federal Register.
    (4) The rates of fees imposed shall be--
    (i) No less than 0.5 percent nor more than 2.5 percent of the first 
$1,500,000 (1st tier), and
    (ii) No more than 5 percent of amounts in excess of the first 
$1,500,000 (2nd tier) of the assessable gross revenues from each class 
II gaming operation regulated by the Commission.
    (5) If a tribe has a certificate of self-regulation, the rate of 
fees imposed shall be no more than .25 percent of assessable gross 
revenues from self-regulated class II gaming operations.
    (b) For purposes of computing fees, assessable gross revenues for 
each gaming operation are the annual total amount of money wagered in 
class II gaming, admission fees (including table or card fees), less any 
amounts paid out as prizes or paid for prizes awarded, and less an 
allowance for amortization of capital expenditures for structures.
    (1) Unless otherwise provided by the regulations, generally accepted 
accounting principles shall be used.
    (2) The allowance for amortization of capital expenditures for 
structures shall not exceed 5% of the cost of structures in use 
throughout the year and 2\1/2\% of the cost of structures in use during 
only a part of the year.

    (3) Example:

Gross gaming revenues:                                                  
  Money wagered.................................  .........   $1,000,000
  Admission fees................................      5,000             
                                                                        
                                                 -----------------------
                                                               1,005,000
Less:                                                                   
  Prizes paid in cash...........................   $500,000             
  Cost of other prizes awarded..................     10,000      510,000
                                                                        
                                                 -----------------------
    Gross gaming profit.........................  .........      495,000
  Less allowance for amortization of............                        
    capital expenditures for structures:........                        
  Capital expenditures for structures made in--                         
    Prior years.................................    750,000             
    Current year................................     50,000             
                                                                        
                                                 -----------            
                                                    800,000             
                                                                        
                                                 -----------            
  Maximum allowance:                                                    
    $750,000 x .05 =............................     37,500             
    50,000 x .025 =.............................      1,250       38,750
                                                                        
                                                 -----------------------
Assessable gross revenues.......................  .........     $456,250
                                                                        
                                                            ------------
                                                                        
                                                                        

    (4) All revenues from gaming operations determined by the licensing 
tribe to be class II are to be included.
    (c) Each Class II gaming operation regulated by the Commission shall 
file with the Commission quarterly a statement showing its assessable 
gross revenues for the previous calendar year.

[[Page 692]]

    (1) These quarterly statements shall show the amounts derived from 
each class II type of game, the amounts deducted for prizes, and the 
amounts deducted for the amortization of structures;
    (2) These quarterly statements shall be filed no later than--March 
31, June 30, September 30, and December 31, of each calendar year the 
Class II gaming operation is subject to the jurisdiction of the 
Commission, beginning in September 1991. Any changes or adjustments to 
the previous year's assessable gross revenue amounts from one quarter to 
the next shall be explained.
    (3) The quarterly statements shall identify an individual or 
individuals to be contacted should the Commission need to communicate 
further with the gaming operation. The telephone numbers of the 
individual(s) shall be included.
    (4) The quarterly statements shall be transmitted to the Commission 
to arrive no later than the due date.
    (5) Each Class II gaming operation shall determine the amount of 
fees to be paid and remit them with the statement required in paragraph 
(c) of this section. The fees payable shall be computed using--
    (i) The most recent rates of fees adopted by the Commission pursuant 
to paragraph (a)(1) or (a)(2) of this section,
    (ii) The assessable gross revenues for the previous calendar year as 
reported pursuant to this paragraph, and
    (iii) The amounts paid and credits received during previous 
quarters.
    (6) Each quarterly statement shall include the computation of the 
fees payable, showing all amounts used in the calculations. The required 
calculations are as follows:
    (i) Multiply the previous calendar year's 1st tier assessable gross 
revenues by the rate for those revenues adopted by the Commission.
    (ii) Multiply the previous calendar year's 2nd tier assessable gross 
revenues by the rate for those revenues adopted by the Commission.
    (iii) Add (total) the results (products) obtained in paragraphs 
(c)(6) (i) and (ii) of this section.
    (iv) Multiply the total obtained in paragraph (c)(6)(iii) of this 
section by the fraction representing the quarter for which the 
computation is being made: 1st quarter--\1/4\; 2nd quarter--\1/2\ (\2/
4\); 3rd quarter--\3/4\; and 4th quarter--1 (\4/4\). For the purpose of 
making these computations in 1991 only, the third calendar quarter is 
the first quarter and the fourth calendar quarter is the second quarter. 
There will be no third or fourth quarter in 1991.
    (v) Subtract the amounts already remitted by the operation for the 
current year and credits, if any, which are due for any previous year's 
overpayment from the amount determined in paragraph (c)(6)(iv) of this 
section.
    (vi) The amount computed in paragraph (c)(6)(v) of this section is 
the amount to be remitted.
    (7) Examples of fee computations follow:

    (i) Example 1: Where a filing is made for the first quarter of the 
calendar year, the previous year's assessable gross revenues are 
$2,000,000, the fee rates adopted by the Commission are 2% on the first 
$1,500,000 and 4% on the remainder, and a credit of $2,000 is due from 
the previous year, the amounts to be used and the computations to be 
made are as follows:

1st tier revenues--$1,500,000 x 2%=...........................   $30,000
2nd tier revenues-- 500,000 x 4%=.............................    20,000
                                                                        
                                                               ---------
  Annual fees.................................................    50,000
Multiply for fraction of year--\1/4\ or.......................       .25
                                                                        
                                                               ---------
  Fees for first quarter......................................    12,500
Deduct credit due.............................................     2,000
                                                                        
                                                               ---------
  Amount to be remitted.......................................   $10,500
                                                                        
                                                               ---------
                                                                        

    (ii) Example 2: Where a filing is being made for the third quarter, 
the previous year's assessable gross revenues are $5,000,000, the fee 
rates adopted by the Commission are 1% on the first $1,500,000 and 1.5% 
on the remainder, and $35,000 has already been remitted, the amounts to 
be used and the computations to be made are as follows:

1st tier revenues--$1,500,000 x 1%=...........................   $15,000
2nd tier revenues--3,500,000 x 1.5%=..........................    52,500
  Annual fees.................................................    67,500
Multiply for fraction of year--\3/4\ or.......................       .75
                                                                        
                                                               ---------
  Fees for first three quarters...............................    50,625
Deduct amounts already remitted...............................  \1\ 35.0
                                                                      00
                                                                        
                                                               ---------

[[Page 693]]

                                                                        
  Amount to be remitted.......................................   $15,625
                                                                        
                                                               ---------
                                                                        
                                                                        
\1\ This amount may be other than $33,750 ($67,500 x .50) because the   
  assessable gross revenues may have been adjusted, the fee rate may    
  have changed, a credit for the previous year's overpayment may have   
  been received, or a clerical error may have been discovered.          

    (iii) Example 3: Where a filing is being made for the third quarter 
of 1991, the previous year's assessable gross revenues are $5,000,000, 
the fee rates adopted by the Commission are 1% on the first $1,500,000 
and 1% on the remainder, and nothing has already been remitted, the 
amounts to be used and the computations to be made are as follows:

1st tier revenues--$1,500,000 x 1%=...........................   $15,000
2nd tier revenues--3,500,000 x 1%=............................    35,000
                                                                        
                                                               ---------
      Annual fees.............................................    50,000
Multiply for fraction of year--1/4 or.........................       .25
                                                                        
                                                               ---------
      Fees for first quarter..................................    12,500
Deduct amounts already remitted...............................       -0-
                                                                        
                                                               ---------
      Amount to be remitted...................................   $12,500
                                                                        


    (8) Quarterly statements, remittances and communications about fees 
shall be transmitted to the Commission at the following address: Office 
of Finance, National Indian Gaming Commission, 1850 M Street, NW., suite 
250, Washington, DC 20036-5803. Checks should be made payable to the 
National Indian Gaming Commission (do not remit cash).
    (9) The Commission may assess a penalty for failure to file timely a 
quarterly statement.
    (10) Interest shall be assessed at rates established from time to 
time by the Secretary of the Treasury on amounts remaining unpaid after 
their due date (31 U.S.C. 3717).
    (d) The total amount of all fees imposed during any fiscal year 
shall not exceed $1,500,000. The Commission shall credit pro-rata any 
fees collected in excess of this amount against amounts otherwise due at 
the end of the quarter following the quarter during which the Commission 
makes such determination.
    (1) The Commission will notify each gaming operation as to the 
amount of overpayment, if any, and therefore the amount of credit to be 
taken against the next quarterly payment otherwise due.
    (2) The notification required in paragraph (d)(1) of this section 
shall be made in writing addressed to the gaming operation.
    (e) Failure to pay fees, any applicable penalties, and interest 
related thereto may be grounds for:
    (1) Closure, or
    (2) Disapproving or revoking the approval of the Chairman of any 
license, ordinance, or resolution required under this Act for the 
operation of gaming.
    (f) To the extent that revenue derived from fees imposed under the 
schedule established under this paragraph are not expended or committed 
at the close of any fiscal year, such funds shall remain available until 
expended (Pub. L. 101-121; 103 Stat. 718; 25 U.S.C. 2717a) to defray the 
costs of operations of the Commission.
    (g) The information collection requirements contained in paragraph 
(c) of this section have been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 3200-
0011. The information is being collected to determine the assessable 
gross revenues of each gaming operation and the aggregate assessable 
gross revenues of all gaming operations. The information will be used to 
set and adjust fee rates and to verify the computations of fees paid by 
each class II gaming operation. Response is mandatory.

[56 FR 40709, Aug. 15, 1991; 56 FR 57373, Nov. 8, 1991]



PART 515--PRIVACY ACT PROCEDURES--Table of Contents




Sec.
515.1  Purpose and scope.
515.2  Definitions.
515.3  Identification of individuals making requests.
515.4  Procedures for requests and disclosures.
515.5  Request for amendment to record.
515.6  Review of request for amendment of record by the Records Manager.
515.7  Appeal to the Commission of initial adverse agency determination 
          on access or amendment to records.
515.8  Disclosure of record to a person other than the individual to 
          whom it pertains.
515.9  Fees.

[[Page 694]]

515.10  Penalties.
515.11  General exemptions. [Reserved]
515.12  Specific exemptions.

    Authority: 5 U.S.C. 552a.

    Source: 58 FR 5815, Jan. 22, 1993, unless otherwise noted.



Sec. 515.1  Purpose and scope.

    (a) The purpose of this part is to inform the public of records 
maintained by the Commission about identifiable individuals and to 
inform those individuals how they may gain access to and amend records 
concerning themselves.
    (b) This part carries out the requirements of the Privacy Act of 
1974 (Pub. L. 93-579) codified at 5 U.S.C. 552a.
    (c) The regulation applies only to records disclosed or requested 
under the Privacy Act of 1974, and not to requests for information made 
pursuant to 5 U.S.C. 552, the Freedom of Information Act.



Sec. 515.2  Definitions.

    As defined in the Privacy Act of 1974 and for the purposes of this 
part, unless otherwise required by the context, the following terms 
shall have these meanings:
    (a) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (b) Maintain means maintain, collect, use, or disseminate.
    (c) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Commission, including 
education, financial transactions, medical history, and criminal or 
employment history, and that contains the individual's name, or the 
identifying number, symbol, or other identifier assigned to the 
individual, such as social security number, finger or voice print, or a 
photograph.
    (d) System of records means a group of any records under the control 
of the Commission from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifier 
assigned to the individual.
    (e) Routine use means, with respect to the disclosure of a record, 
the use of such record for a purpose that is compatible with the purpose 
for which it was collected.



Sec. 515.3  Identification of individuals making requests.

    (a) Any individual may request that the Commission inform him or her 
whether a particular record system named by the individual contains a 
record pertaining to him or her and the contents of such record. Such 
requests shall conform to the requirements of Sec. 515.4 of this part. 
The request may be made in person or in writing at the NIGC, suite 250, 
1850 M Street, NW., Washington, DC 20036-5803 during the hours of 9 a.m. 
to 12 noon and 2 p.m. to 5 p.m. Monday through Friday.
    (b)(1) Requests made in writing shall include a statement, signed by 
the individual and either notarized or witnessed by two persons 
(including witnesses' addresses). If the individual appears before a 
notary, the individual shall submit adequate proof of identity in the 
form of a driver's license, birth certificate, passport, or other 
identification acceptable to the notary. If the statement is witnessed, 
it shall include a statement above the witnesses' signatures that they 
personally know the individual or that the individual has submitted 
proof of his or her identity to their satisfaction. In any case in 
which, because of the extreme sensitivity of the record sought to be 
seen or copied, the Commission determines that the identification is not 
adequate, it may request the individual to submit additional proof of 
identity.
    (2) If the request is made in person, the requester shall submit 
proof of identity similar to that described in paragraph (b)(1) of this 
section, and that is acceptable to the Commission. The individual may 
have a person of his or her own choosing accompany him or her when the 
record is disclosed.
    (c) Requests made by an agent, parent, or guardian shall be in 
accordance with the procedures described in paragraph (b) of this 
section.



Sec. 515.4  Procedures for requests and disclosures.

    (a) Requests for a determination under Sec. 515.3(a) of this part 
shall be acknowledged by the Commission within

[[Page 695]]

ten (10) days (excluding Saturdays, Sundays and Federal holidays) after 
the date on which the Commission receives the request. If the Commission 
is unable to locate the information requested, it shall so notify the 
individual within ten (10) days (excluding Saturdays, Sundays and 
Federal holidays) after receipt of the request, Such acknowledgement may 
request additional information to assist the Commission in locating the 
record, or it may advise the individual that no record exists about that 
individual.
    (b)(1) Upon submission of proof of identity as required by 
Sec. 515.3(b)(1) or (2) of this part, the Commission shall respond 
within ten (10) days (excluding Saturdays, Sundays and Federal 
holidays). The Commission shall decide whether to make a record 
available to the record subject and shall immediately convey its 
determination to the requester. If the individual asks to see the 
record, the Commission may make the record available at the location 
where the record is maintained.
    (2) The Commission shall furnish each record requested by an 
individual under this section in a form intelligible to that individual.
    (3) If the Commission denies access to a record to an individual, 
that person shall be advised of the reason for the denial and of the 
appeal procedures provided in Sec. 515.7 of this part.
    (4) Upon request, an individual shall be provided access to the 
accounting of disclosures from his or her record under the same 
procedures as provided above and in Sec. 515.3 of this part.



Sec. 515.5  Request for amendment to record.

    (a) Any individual who has reviewed a record pertaining to him or 
her that was furnished under this part, may request that the Commission 
amend all or any part of that record.
    (b) Each individual requesting an amendment shall send the request 
to the Records Manager.
    (c) Each request for an amendment of a record shall contain the 
following information:
    (1) The name of the individual requesting the amendment;
    (2) The name of the system of records in which the record sought to 
be amended is maintained;
    (3) The location of the system of records from which the individual 
record was obtained;
    (4) A copy of the record sought to be amended or a sufficiently 
detailed description of that record:
    (5) A statement of the material in the record that the individual 
desires to amend;
    (6) A statement of the basis for the requested amendment, including 
any material that the individual can furnish to substantiate the reasons 
for the amendment sought.



Sec. 515.6  Review of request for amendment of record by the Records Manager.

    (a) The Records Manager shall, not later than ten (10) days 
(excluding Saturdays, Sundays and Federal holidays) after the receipt of 
a request for an amendment of a record under Sec. 515.5 of this part, 
acknowledge receipt of the request and inform the individual whether 
more information is required before the amendment can be considered.
    (b) If more information is not required, within ten (10) days after 
receipt of the request (excluding Saturdays, Sundays and Federal 
holidays), the Records Manager shall either make the requested amendment 
or notify the individual of the Commission's refusal to do so, including 
in the notification the reasons for the refusal, and the appeal 
procedures provided in Sec. 515.7 of this part.
    (c) The Records Manager shall make each requested amendment to a 
record if such amendment will tend to negate inaccurate, irrelevant, 
untimely, or incomplete material in the record.
    (d) The Records Manager shall inform prior recipients of any 
amendment or notation of dispute of such individual's record. The 
individual may request a list of prior recipients if there exists an 
accounting of the disclosures.

[[Page 696]]



Sec. 515.7  Appeal to the Commission of initial adverse agency determination on access or amendment to records.

    (a) Any individual whose request for access or an amendment has been 
denied in whole or in part, may appeal the decision to the Commission no 
later than one hundred eighty (180) days after the adverse decision is 
rendered.
    (b) The appeal shall be in writing and shall contain all of the 
following information:
    (1) The name of the individual making the appeal;
    (2) Identification of the record sought to be amended;
    (3) The record system in which such record is contained;
    (4) A short statement describing the amendment sought; and
    (5) The name and location of the agency official who initially 
denied the amendment.
    (c) Not later than thirty (30) days (excluding Saturdays, Sundays 
and Federal holidays) after the date on which the Commission receives 
the appeal, the Commission shall complete its review of the appeal and 
make a final decision thereon. For good cause shown, however, the 
Commission may extend such thirty (30) day period. If the Commission 
extends the period, the individual requesting the review shall be 
promptly notified of the extension and the anticipated date of a 
decision.
    (d) After review of an appeal, the Commission shall send a written 
notice to the requester containing the following information:
    (1) The decision and, if the denial is upheld, the reasons for the 
decision;
    (2) The right of the requester to file with the Commission a concise 
statement setting forth the reasons for his or her disagreement with the 
Commission's denial of access or amendment. The Commission shall make 
this statement available to any person to whom the record is later 
disclosed, together with a brief statement, if appropriate, of the 
Commission's reasons for denying requested access or amendment. The 
Commission shall also send a copy of the statement to prior recipients 
of the individual's record; and
    (3) The right of the requester to institute a civil action in a 
Federal district court for judicial review of the decision.



Sec. 515.8  Disclosure of record to a person other than the individual to whom it pertains.

    (a) Any individual who desires to have a record covered by this part 
disclosed to or mailed to another person may designate such person and 
authorize such person to act as his or her agent for that specific 
purpose. The authorization shall be in writing, signed by the 
individual, and notarized or witnessed as provided in Sec. 515.3 of this 
part.
    (b) The parent of any minor individual or the legal guardian of any 
individual who has been declared by a court of competent jurisdiction to 
be incompetent, due to physical or mental incapacity or age, may act on 
behalf of that individual in any matter covered by this section. A 
parent or guardian who desires to act on behalf of such an individual 
shall present suitable evidence of parentage or guardianship, by birth 
certificate, certified copy of court order, or similar documents, and 
proof of the individual's identity in a form that complies with 
Sec. 515.3(b) of this part.
    (c) An individual to whom a record is to be disclosed in person, 
pursuant to this section, may have a person of his or her own choosing 
accompany him or her when the record is disclosed.



Sec. 515.9  Fees.

    The Commission shall not charge an individual for the costs of 
making a search for a record or the costs of reviewing the record. When 
the Commission makes a copy of a record as a necessary part of reviewing 
the record, the Commission shall not charge the individual for the cost 
of making that copy. Otherwise, the Commission may charge a fee 
sufficient to cover the cost of duplication.



Sec. 515.10  Penalties.

    Any person who makes a false statement in connection with any 
request for a record, or an amendment thereto,

[[Page 697]]

under this part, is subject to the penalties prescribed in 18 U.S.C. 494 
and 495.
Sec. 515.11  General exemptions. [Reserved]



Sec. 515.12  Specific exemptions.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d), (e)(1) and (f):

                Indian Gaming Individuals Records System

    (b) The exemptions under paragraph (a) of this section apply only to 
the extent that information in this system is subject to exemption under 
5 U.S.C. 552a(k)(2). When compliance would not appear to interfere with 
or adversely affect the overall responsibilities of the Commission with 
respect to licensing of key employees and primary management officials 
for employment in an Indian gaming operation, the applicable exemption 
may be waived by the Commission.
    (c) Exemptions from the particular sections are justified for the 
following reasons:
    (1) From 5 U.S.C. 552a(c)(3), because making available the 
accounting of disclosures to an individual who is the subject of a 
record could reveal investigative interest. This would permit the 
individual to take measures to destroy evidence, intimidate potential 
witnesses, or flee the area to avoid the investigation.
    (2) From 5 U.S.C. 552a(d), (e)(1), and (f) concerning individual 
access to records, when such access could compromise classified 
information related to national security, interfere with a pending 
investigation or internal inquiry, constitute an unwarranted invasion of 
privacy, reveal a sensitive investigative technique, or pose a potential 
threat to the Commission or its employees or to law enforcement 
personnel. Additionally, access could reveal the identity of a source 
who provided information under an express promise of confidentiality.
    (3) From 5 U.S.C. 552a(d)(2), because to require the Commission to 
amend information thought to be incorrect, irrelevant, or untimely, 
because of the nature of the information collected and the length of 
time it is maintained, would create an impossible administrative and 
investigative burden by continually forcing the Commission to resolve 
questions of accuracy, relevance, timeliness, and completeness.
    (4) From 5 U.S.C. 552a(e)(1) because:
    (i) It is not always possible to determine relevance or necessity of 
specific information in the early stages of an investigation.
    (ii) Relevance and necessity are matters of judgment and timing in 
that what appears relevant and necessary when collected may be deemed 
unnecessary later. Only after information is assessed can its relevance 
and necessity be established.
    (iii) In any investigation the Commission may receive information 
concerning violations of law under the jurisdiction of another agency. 
In the interest of effective law enforcement and under 25 U.S.C. 
2716(b), the information could be relevant to an investigation by the 
Commission.
    (iv) In the interviewing of individuals or obtaining evidence in 
other ways during an investigation, the Commission could obtain 
information that may or may not appear relevant at any given time; 
however, the information could be relevant to another investigation by 
the Commission.



PART 516--[RESERVED]






PART 517--FREEDOM OF INFORMATION ACT PROCEDURES--Table of Contents




Sec.
517.1  Purpose and scope.
517.2  Definitions.
517.3  Requests for records.
517.4  Disclosure of requested records.
517.5  Confidential commercial information.
517.6  Response to requests for records.
517.7  Appeals.
517.8  Fees.

    Authority: 5 U.S.C. 552.

    Source: 58 FR 44448, Aug. 23, 1993, unless otherwise noted.



Sec. 517.1  Purpose and scope.

    This part contains the regulations of the National Indian Gaming 
Commission implementing the Freedom of Information Act (FOIA). These 
regulations provide procedures by which

[[Page 698]]

members of the public may obtain access to records compiled, created, 
and maintained by the Commission, along with procedures the Commission 
must follow in response to such requests for records.



Sec. 517.2  Definitions.

    (a) Commercial-use requester means requesters seeking information 
for a use or purpose that furthers the commercial, trade, or profit 
interests of the requester or the person on whose behalf the request is 
made. In determining whether a requester properly belongs in this 
category, the Commission shall determine the use to which a requester 
will put the documents requested. Where the Commission has reasonable 
cause to doubt the use to which a requester will put the records sought, 
or where that use is not clear from the request itself, the Commission 
shall seek additional clarification before assigning the request to a 
specific category.
    (b) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt from 
disclosure under Exemption 4 of the FOIA, because disclosure could 
reasonably be expected to cause substantial competitive harm.
    (c) Direct costs means those expenditures by the Commission actually 
incurred in searching for and duplicating records to respond to a FOIA 
request. Direct costs include the salary of the employee or employees 
performing the work (the basic rate of pay for the employee plus a 
percentage of that rate to cover benefits) and the cost of operating 
duplicating machinery. Direct costs do not include overhead expenses, 
such as the cost of and heating or lighting of the facility in which the 
records are stored.
    (d) Duplication refers to the process of making a copy of a document 
necessary to fulfill a FOIA request. Such copies can take the form of, 
among other things, paper copy, microform, audio-visual materials, or 
machine-readable documentation. The copies provided shall be in a form 
that is reasonably usable by requesters.
    (e) Educational institution refers to a preschool, a public or 
private elementary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, and an institution of vocational education, 
which operates a program of scholarly research.
    (f) Freedom of Information Act Officer means the person designated 
by the Chairman to administer the FOIA.
    (g) Non-commercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis as that term is used in 
Sec. 517.2(a), commercial-use requester, and which is operated solely 
for the purpose of conducting scientific research the results of which 
are not intended to promote any particular product or industry.
    (h) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that would be of current interest to the 
public.
    (i) Requester means any person, including an individual, Indian 
tribe, partnership, corporation, association, or public or private 
organization other than a Federal agency, that requests access to 
records in the possession of the Commission.
    (j) Review refers to the process of examining a record, in response 
to a FOIA request, to determine whether any portion of that record may 
be withheld under one or more of the FOIA Exemptions. It also includes 
processing of any record for disclosure, for example, redacting 
information that is exempt from disclosure under the FOIA. Review does 
not include time spent resolving general legal or policy issues 
regarding the use of FOIA Exemptions.
    (k) Search refers to the time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within a document. The Commission shall 
ensure that searches are conducted in the most efficient and least 
expensive manner reasonably possible.
    (l) Submitter means any person or entity who provides information 
directly or indirectly to the Commission. The term includes, but is not 
limited to,

[[Page 699]]

corporations, Indian tribal governments, state governments and foreign 
governments.
    (m) Working day means a federal workday that does not include 
Saturdays, Sundays or federal holidays.



Sec. 517.3  Requests for records.

    (a) Form of requests. Requests for records made pursuant to the FOIA 
may be in writing, specifically invoke the Act, and be addressed to the 
FOIA Officer, Suite 250, 1850 M St., NW., Washington, DC 20036-5803. 
Requests may also be made in person at the same address, where records 
will be available for inspection on the premises. Requests for records 
shall describe the records requested with enough specificity to enable 
Commission employees to locate the information requested with a 
reasonable amount of effort. Requests shall also include a statement of 
the maximum amount of fees the requester is willing to pay to obtain the 
requested information, or if a waiver or reduction of fees seems 
appropriate, the reasons for such waiver or reduction.
    (b) Types of records not available. The FOIA does not require the 
Commission to:
    (1) Compile or create records solely for the purpose of satisfying a 
request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requester that the requested records 
have been destroyed or disposed of.



Sec. 517.4  Disclosure of requested records.

    (a) The FOIA Officer shall make requested records available to the 
public to the greatest extent possible in keeping with the FOIA, except 
that the following records are exempt from the disclosure requirements:
    (1) Records specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and which are, in fact, properly classified pursuant to 
such Executive order;
    (2) Records related solely to the internal personnel rules and 
practices of the Commission;
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. Sec. 552(b)) provided that such statute requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue or that the statute establishes particular 
criteria for withholding information or refers to particular types of 
matters to be withheld;
    (4) Records containing trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the Commission;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and in the case of a recorded or information 
compiled by criminal law enforcement authority in the course of a 
criminal investigation or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement

[[Page 700]]

investigations or prosecutions if such disclosure could reasonably be 
expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Records contained in or related to examination, operating, or 
condition reports prepared by, or on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions;
    (9) Geological or geophysical information and data, including maps, 
concerning wells.
    (b) If a requested record contains exempted material along with 
nonexempted material, all reasonable segregable nonexempt material shall 
be disclosed.
    (c) The FOIA Officer may disclose requested information falling 
within the exemptions of paragraphs (a)(1)-(a)(3), (a)(5), (a)(6), 
(a)(8) and (a)(9) of this section, if to do so would further the 
purposes and policies of the FOIA and the IGRA. The FOIA Officer shall 
not disclose requested information falling within the exemptions of 
paragraphs (a)(4) and (a)(7) of this section.



Sec. 517.5  Confidential commercial information.

    (a) Notice to submitters. The Commission shall, to the extent 
permitted by law, provide a submitter who provides confidential 
commercial information to the Commission, with prompt notice of a FOIA 
request or administrative appeal encompassing the confidential 
commercial information if the Commission may be required to disclose the 
information under the FOIA. Such notice shall either describe the exact 
nature of the information requested or provide copies of the records or 
portions thereof containing the confidential commercial information. The 
Commission shall also notify the requester that notice and an 
opportunity to object has been given to the submitter.
    (b) When notice is required. Notice shall be given to a submitter 
when:
    (1) The information has been designated by the submitter as 
confidential commercial information protected from disclosure. 
Submitters of confidential commercial information shall use good faith 
efforts to designate, either at the time of submission or a reasonable 
time thereafter, those portions of their submissions they deem protected 
from disclosure under Exemption 4 of the FOIA because disclosure could 
reasonably be expected to cause substantial competitive harm. Such 
designation shall be deemed to have expired ten years after the date of 
submission, unless the requester provides reasonable justification for a 
designation period of greater duration; or
    (2) The FOIA Officer has reason to believe that the information may 
be protected from disclosure under Exemption 4 of the FOIA.
    (c) Opportunity to object to disclosure. The Commission shall afford 
a submitter a reasonable period of time to provide the Commission with a 
detailed written statement of any objection to disclosure. The statement 
shall specify all grounds for withholding any of the information under 
any exemption of the FOIA, and if Exemption 4 applies, shall demonstrate 
the reasons the submitter believes the information to be confidential 
commercial information that is exempt from disclosure. Whenever 
possible, the submitters claim of confidentiality shall be supported by 
a statement or certification by an officer or authorized representative 
of the submitter. Information provided by a submitter pursuant to this 
paragraph may itself be subject to disclosure under the FOIA.
    (d) Notice of intent to disclose. The FOIA Officer shall carefully 
consider a submitter's objections and specific grounds for nondisclosure 
prior to determining whether to disclose the information requested. 
Whenever the FOIA Officer determines that disclosure is appropriate, the 
FOIA Officer shall, within a reasonable number of days prior to 
disclosure, provide the submitter with written notice of the intent to 
disclose which shall include a statement of the reasons for which the 
submitter's objections were overruled, a description of the information 
to be disclosed, and a specified disclosure date. The FOIA Officer shall 
also notify the requester that the requested records will be made 
available.

[[Page 701]]

    (e) Notice of lawsuit. When a requester brings suit seeking to 
compel disclosure of confidential commercial information, the FOIA 
Officer shall promptly notify the submitter of this action.
    (f) Exceptions to the notice requirements under this section. The 
notice requirements under paragraphs (a) and (b) of this section shall 
not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than the 
FOIA);
    (4) The information requested is not designated by the submitter as 
exempt from disclosure in accordance with this part, when the submitter 
had the opportunity to do so at the time of submission of the 
information or within a reasonable time thereafter, unless the agency 
has substantial reason to believe that disclosure of the information 
would result in competitive harm; or
    (5) The designation made by the submitter in accordance with this 
part appears obviously frivolous. When the FOIA Officer determines that 
a submitter was frivolous in designating information as confidential, 
the FOIA Officer must provide the submitter with written notice of any 
final administrative disclosure determination within a reasonable number 
of days prior to the specified disclosure date, but no opportunity to 
object to disclosure will be offered.



Sec. 517.6  Response to requests for records.

    (a) Initial determinations. (1) The FOIA Officer shall make an 
initial determination regarding access to the requested information and 
shall so notify the requester within ten (10) working days after receipt 
of the request. This 10-day period may be extended ten (10) additional 
working days if unusual circumstances arise. If an extension is 
necessary, the FOIA Officer shall promptly notify the requester of the 
extension, briefly stating the reasons for the extension, and estimating 
when the FOIA Officer will respond. Unusual circumstances warranting 
extension are:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of records which are demanded in a single request; or
    (iii) The need for consultation with another agency having a 
substantial interest in the determination of the request, which 
consultation shall be conducted with all practicable speed.
    (2) If the FOIA Officer decides that an initial determination cannot 
be reached within the time limits specified in paragraph (a)(1) of this 
section, he or she shall notify the requester of the reasons for the 
delay and include an estimate of when a determination will be made.
    (3) If no initial determination has been made at the end of the 10-
day period provided in paragraph (a)(1) of this section, including any 
extension, the requester may appeal the action to the FOIA Appeals 
Officer.
    (4) If the FOIA Officer determines that another agency is 
responsible for responding to a request or part thereof, the FOIA 
Officer shall refer such request to the appropriate agency. The FOIA 
Officer shall inform the requester of the referral and of the name and 
address of the agency or agencies to which the request has been 
referred.
    (b) Granting of requests. When the FOIA Officer determines that the 
requested records shall be made available, he or she shall:
    (1) Provide copies of the requested records; or
    (2) Notify the requester of his or her decision, including a brief 
statement of when and how the records will be provided. Requested 
records shall then be promptly made available.
    (c) Denial of requests. When the FOIA Officer determines that access 
to requested records should be denied, he or she shall notify the 
requester of the denial, the grounds for withholding the records, and 
the procedures for appeal of the denial.

[[Page 702]]



Sec. 517.7  Appeals.

    (a) Right of appeal. A requester may appeal to the FOIA Appeals 
Officer any adverse determination.
    (b) Notice of appeal.
    (1) Time for appeal. An appeal must be received no later than thirty 
(30) working days after notification of denial of access or after the 
time limit for response by the FOIA Officer has expired.
    (2) Form of appeal. An appeal shall be initiated by filing a written 
notice of appeal. The notice shall be accompanied by copies of the 
original request and the initial denial. To expedite the appellate 
process and give the requester an opportunity to present his or her 
arguments, the notice should contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error. The 
appeal shall be addressed to the Freedom of Information Act Appeals 
Officer, National Indian Gaming Commission, 1850 M St., NW., suite 250, 
Washington, DC 20036.
    (c) Final agency determinations. The FOIA Appeals Officer shall 
issue a final written determination, stating the basis for its decision, 
within twenty (20) working days after receipt of a notice of appeal. If 
the determination is to provide access to the requested records, the 
FOIA Officer shall make those records immediately available to the 
requester. If the determination upholds the denial of access to the 
requested records, the FOIA Appeals Officer shall notify the requester 
of the determination and the right of the requester to obtain judicial 
review in the appropriate federal district court.



Sec. 517.8  Fees.

    (a) In general. Fees pursuant to the FOIA shall be assessed 
according to the schedule contained in paragraph (b) of this section for 
services rendered by the Commission in response to requests for records 
under this part. All fees shall be charged to the requester, except 
where the charging of fees is limited under paragraph (d) of this 
section or where a waiver or reduction of fees is granted under 
paragraph (c) of this section. Requesters shall pay fees by check or 
money order made payable to the Treasury of the United States.
    (b) Charges for responding to FOIA requests. The following fees 
shall be assessed in responding to requests for records submitted under 
this part, unless a waiver or reduction of fees has been granted 
pursuant to paragraph (c) of this section:
    (1) Copies. The Commission shall charge $0.10 per page for copies of 
documents up to 8\1/2\'' x 14''. For copies prepared by computer, the 
Commission will charge actual costs of production of the computer 
printouts, including operator time. For other methods of reproduction, 
the Commission shall charge the actual costs of producing the documents.
    (2) Searches. (i) Manual searches. Whenever feasible, the Commission 
will charge at the salary rate (basic pay plus a percent for benefits) 
of the employee or employees performing the search. However, where a 
homogenous class of personnel is used exclusively in a search (e.g. all 
administrative/clerical or all professional/executive), the Commission 
shall charge $12.50 per hour for clerical time and $30.00 per hour for 
professional time. Charges for search time less than a full hour will be 
in increments of quarter hours.
    (ii) Computer searches. The Commission will charge the actual direct 
costs of conducting computer searches. These direct costs shall include 
the cost of operating the central processing unit for that portion of 
operating time that is directly attributable to searching for requested 
records, as well as the costs of operator/programmer salary 
apportionable to the search. The Commission is not required to alter or 
develop programming to conduct searches.
    (3) Review fees. Review fees shall be assessed only with respect to 
those requesters who seek records for a commercial use under paragraph 
(d)(1) of this section. Review fees shall be assessed at the same rates 
as those listed under paragraph (b)(2)(i) of this section. Review fees 
shall be assessed only for the initial record review, for example, 
review undertaken when the Commission analyzes the applicability of a 
particular exemption to a particular record or portion thereof at the 
initial

[[Page 703]]

request level. No charge shall be assessed at the administrative appeal 
level of an exemption already applied.
    (c) Statutory waiver. Documents shall be furnished without charge or 
at a charge below that listed in paragraphs (b) of this section where it 
is determined, based upon information provided by a requester or 
otherwise made known to the FOIA Officer, that disclosure of the 
requested information is in the public interest. Disclosure is in the 
public interest if it is likely to contribute significantly to public 
understanding of government operations and is not primarily for 
commercial purposes. Requests for a waiver or reduction of fees shall be 
considered on a case by case basis. In order to determine whether the 
fee waiver requirement is met, the FOIA Officer shall consider the 
following six factors:
    (1) The subject of the request. Whether the subject of the requested 
records concerns the operations or activities of the government;
    (2) The informative value of the information to be disclosed. 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (3) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to public understanding;
    (4) The significance of the contribution to public understanding. 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities;
    (5) The existence and magnitude of commercial interest. Whether the 
requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (6) The primary interest in disclosure. Whether the magnitude of the 
identified commercial interest of the requester is sufficiently large, 
in comparison with the public interest in disclosure, that disclosure is 
primarily in the commercial interest of the requester.
    (d) Types of requesters. There are four categories of FOIA 
requesters: commercial use requesters, educational and non-commercial 
scientific institutional requesters, representatives of the news media, 
and all other requesters. These terms are defined in Sec. 517.2. 
Specific levels of fees are prescribed below for each of these 
categories.
    (1) Commercial-use requesters. The FOIA Officer shall charge 
commercial use requesters the full direct costs of searching for, 
reviewing, and duplicating requested records.
    (2) Educational and non-commercial scientific institution 
requesters. The FOIA Officer shall charge educational and non-commercial 
scientific institution requesters for document duplication only, except 
that the first 100 pages of copies shall be provided without charge.
    (3) News media requesters. The FOIA Officer shall charge news media 
requesters for document duplication costs only, except that the first 
100 pages of paper copies shall be provided without charge.
    (4) All other requesters. The FOIA Officer shall charge requesters 
who do not fall into any of the above categories fees which recover the 
full reasonable direct costs incurred for searching for and reproducing 
records if that total cost exceeds $15.00, except that the first 100 
pages and the first two hours of manual search time shall not be 
charged. To apply this term to computer searches, the FOIA Officer will 
determine the total hourly cost of operating the central processing unit 
and the operator's salary (plus 16 percent for benefits). When the cost 
of the search equals the equivalent dollar amount of two hours of the 
salary of the person performing the search, the FOIA Officer will begin 
assessing charges for the computer search.
    (e) Charges for unsuccessful searches. Ordinarily, no charge will be 
assessed when requested records are not found or when the records 
located are withheld as exempt. However, if the requester has been 
notified of the estimated cost of the search time and has been advised 
specifically that the requested records may not exist or may be withheld 
as exempt, fees may be charged.
    (f) Charges for interest. The FOIA Officer may assess interest 
charges on an unpaid bill, accrued under previous FOIA request(s), 
starting on the 31st

[[Page 704]]

day following the day on which the bill was sent to the requester. A fee 
received by the FOIA Officer, even if not processed, will result in a 
stay of the accrual of interest. The Commission shall follow the 
provisions of the Debt Collection Act of 1982 and the implementing 
procedures to recover any indebtedness owed to the Commission.
    (g) Aggregating requests. A requester or a group of requesters may 
not submit multiple requests at the same time, each seeking portions of 
a document or documents solely in order to avoid payment of fees. When 
the Commission reasonably believes that a requester is attempting to 
divide a request into a series of requests to evade an assessment of 
fees, the Commission may aggregate such request and charge accordingly.
    (h) Advance payment of fees. Fees may be paid upon provision of the 
requested records, except that payment may be required prior to that 
time if the requester has previously failed to pay fees or if the FOIA 
Officer determines the total fee will exceed $250. When payment is 
required in advance of the processing of a request, the time limits 
prescribed in Sec. 517.6 shall not be deemed to begin until the FOIA 
Officer has received payment of the assessed fee.
    (i) Payment of fees. Where it is anticipated that the cost of 
providing the requested record will exceed $25.00 after the free 
duplication and search time has been calculated, and the requester has 
not indicated in advance a willingness to pay a fee greater than $25.00, 
the FOIA Officer shall promptly notify the requester of the amount of 
the anticipated fee or a portion thereof, which can readily be 
estimated. The notification shall offer the requesting party an 
opportunity to confer with agency representatives for the purpose of 
reformulating the request so as to meet the requester's needs at a 
reduced cost.



PART 518--[RESERVED]






PART 519--SERVICE--Table of Contents




Sec.
519.1  Designation of an agent by a tribe.
519.2  Designation of an agent by a management contractor or a tribal 
          operator.
519.3  Methods of service.
519.4  Copy of any official determination, order, or notice of 
          violation.

    Authority: 25 U.S.C. 2706(b)(10).

    Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.



Sec. 519.1  Designation of an agent by a tribe.

    By written notification to the Commission, a tribe shall designate 
an agent for service of any official determination, order, or notice of 
violation.



Sec. 519.2  Designation of an agent by a management contractor or a tribal operator.

    By written notification to the Commission, a management contractor 
or a tribal operator shall designate an agent for service of any 
official determination, order, or notice of violation.



Sec. 519.3  Methods of service.

    (a) The Chairman shall serve any official determination, order, or 
notice of violation by:
    (1) Delivering a copy to a designated agent;
    (2) Delivering a copy to the person who is the subject of the 
official determination, order, or notice of violation;
    (3) Delivering a copy to the individual who, after reasonable 
inquiry, appears to be in charge of the gaming operation that is the 
subject of the official determination, order, or notice of violation;
    (4) Mailing to the person who is the subject of the official 
determination, order, or notice of violation or to his or her designated 
agent at the last known address. Service by mail is complete upon 
mailing; or
    (5) Transmitting a facsimile to the person who is the subject of the 
official determination, order, or notice of violation or to his or her 
designated agent at the last known facsimile number. Service by 
facsimile is complete upon transmission.
    (b) Delivery of a copy means: Handing it to the person or designated 
agent (or attorney for either); leaving a copy at the person's, agent's 
or attorney's office with a clerk or other person in charge thereof; if 
there is no one in charge, leaving it in a conspicuous place therein; 
or, if the office is closed

[[Page 705]]

or the person to be served has no office, leaving it at the person's 
dwelling house or usual place of abode with some person of suitable age 
and discretion then residing therein.
    (c) Service shall not be deemed incomplete because of refusal to 
accept.



Sec. 519.4  Copy of any official determination, order, or notice of violation.

    The Commission shall transmit a copy of any official determination, 
order, or notice of violation to the tribal chairman, the designated 
tribal agent under Sec. 519.1, and to the relevant tribal gaming 
authority. The Commission shall transmit such copy as expeditiously as 
possible. Service under Sec. 519.3 shall not depend on a copy being sent 
to the appropriate tribal chairman, the designated tribal agent or to 
the relevant tribal gaming authority.

[[Page 706]]



    SUBCHAPTER B--APPROVAL OF CLASS II AND CLASS III ORDINANCES AND 
                               RESOLUTIONS





PARTS 520--521--[RESERVED]






PART 522--SUBMISSION OF GAMING ORDINANCE OR RESOLUTION--Table of Contents




Sec.
522.1  Scope of this part.
522.2  Submission requirements.
522.3  Amendment.
522.4  Approval requirements for class II ordinances.
522.5  Disapproval of a class II ordinance.
522.6  Approval requirements for class III ordinances.
522.7  Disapproval of a class III ordinance.
522.8  Publication of class III ordinance and approval.
522.9  Substitute approval.
522.10  Individually owned class II and class III gaming operations 
          other than those operating on September 1, 1986.
522.11  Individually owned class II gaming operations operating on 
          September 1, 1986.
522.12  Revocation of class III gaming.

    Authority: 25 U.S.C. 2706, 2710, 2712

    Source: 58 FR 5810, Jan. 22, 1993, unless otherwise noted.



Sec. 522.1  Scope of this part.

    This part applies to any gaming ordinance or resolution adopted by a 
tribe after February 22, 1993. Part 523 of this chapter applies to all 
existing gaming ordinances or resolutions.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 522.2  Submission requirements.

    A tribe shall submit to the Chairman all of the following 
information with a request for approval of a class II or class III 
ordinance or resolution:
    (a) One copy on 8\1/2\'' x 11'' paper of an ordinance or resolution 
certified as authentic by an authorized tribal official and that meets 
the approval requirements in Sec. 522.4(b) or 522.6 of this part;
    (b) A description of procedures to conduct or cause to be conducted 
background investigations on key employees and primary management 
officials and to ensure that key employees and primary management 
officials are notified of their rights under the Privacy Act as 
specified in Sec. 556.2 of this chapter;
    (c) A description of procedures to issue tribal licenses to primary 
management officials and key employees;
    (d) Copies of all tribal gaming regulations;
    (e) When an ordinance or resolution concerns class III gaming, a 
copy of the tribal-state compact or procedures as prescribed by the 
Secretary;
    (f) A description of procedures for resolving disputes between the 
gaming public and the tribe or the management contractor;
    (g) Designation of an agent for service under Sec. 519.1 of this 
chapter; and
    (h) Identification of a law enforcement agency that will take 
fingerprints and a description of procedures for conducting a criminal 
history check by a law enforcement agency. Such a criminal history check 
shall include a check of criminal history records information maintained 
by the Federal Bureau of Investigation.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 522.3  Amendment.

    (a) Within 15 days after adoption, a tribe shall submit for the 
Chairman's approval any amendment to an ordinance or resolution.
    (b) A tribe shall submit for the Chairman's approval any amendment 
to the submissions made under Secs. 522.2(b) through (h) of this part 
within 15 days after adoption of such amendment.



Sec. 522.4  Approval requirements for class II ordinances.

    No later than 90 days after the submission to the Chairman under 
Sec. 522.2 of this part, the Chairman shall approve the class II 
ordinance or resolution if the Chairman finds that--
    (a) A tribe meets the submission requirements contained in 
Sec. 522.2 of this part; and
    (b) The class II ordinance or resolution provides that--

[[Page 707]]

    (1) The tribe shall have the sole proprietary interest in and 
responsibility for the conduct of any gaming operation unless it elects 
to allow individually owned gaming under either Sec. 522.10 or 
Sec. 522.11 of this part;
    (2) A tribe shall use net revenues from any tribal gaming or from 
any individually owned games only for one or more of the following 
purposes:
    (i) To fund tribal government operations or programs;
    (ii) To provide for the general welfare of the tribe and its members 
(if a tribe elects to make per capita distributions, the plan must be 
approved by the Secretary of the Interior under 25 U.S.C. 2710(b)(3));
    (iii) To promote tribal economic development;
    (iv) To donate to charitable organizations; or
    (v) To help fund operations of local government agencies;
    (3) A tribe shall cause to be conducted independent audits of gaming 
operations annually and shall submit the results of those audits to the 
Commission;
    (4) All gaming related contracts that result in purchases of 
supplies, services, or concessions for more than $25,000 in any year 
(except contracts for professional legal or accounting services) shall 
be specifically included within the scope of the audit conducted under 
paragraph (b)(3) of this section;
    (5) A tribe shall perform background investigations and issue 
licenses for key employees and primary management officials according to 
requirements that are at least as stringent as those in parts 556 and 
558 of this chapter;
    (6) A tribe shall issue a separate license to each place, facility, 
or location on Indian lands where a tribe elects to allow class II 
gaming; and
    (7) A tribe shall construct, maintain and operate a gaming facility 
in a manner that adequately protects the environment and the public 
health and safety.



Sec. 522.5  Disapproval of a class II ordinance.

    No later than 90 days after a tribe submits an ordinance for 
approval under Sec. 522.2 of this part, the Chairman may disapprove an 
ordinance if he or she determines that a tribe failed to comply with the 
requirements of Sec. 522.2 or Sec. 522.4(b) of this part. The Chairman 
shall notify a tribe of its right to appeal under part 524 of this 
chapter. A disapproval shall be effective immediately unless appealed 
under part 524 of this chapter.



Sec. 522.6  Approval requirements for class III ordinances.

    No later than 90 days after the submission to the Chairman under 
Sec. 522.2 of this part, the Chairman shall approve the class III 
ordinance or resolution if--
    (a) A tribe follows the submission requirements contained in 
Sec. 522.2 of this part;
    (b) The ordinance or resolution meets the requirements contained in 
Sec. 522.4(b) (2), (3), (4), (5), (6), and (7) of this part; and
    (c) The tribe shall have the sole proprietary interest in and 
responsibility for the conduct of any gaming operation unless it elects 
to allow individually owned gaming under Sec. 522.10 of this part.



Sec. 522.7  Disapproval of a class III ordinance.

    (a) Notwithstanding compliance with the requirements of Sec. 522.6 
of this part and no later than 90 days after a submission under 
Sec. 522.2 of this part, the Chairman shall disapprove an ordinance or 
resolution and notify a tribe of its right of appeal under part 524 of 
this chapter if the Chairman determines that--
    (1) A tribal governing body did not adopt the ordinance or 
resolution in compliance with the governing documents of a tribe; or
    (2) A tribal governing body was significantly and unduly influenced 
in the adoption of the ordinance or resolution by a person having a 
direct or indirect financial interest in a management contract, a person 
having management responsibility for a management contract, or their 
agents.
    (b) A disapproval shall be effective immediately unless appealed 
under part 524 of this chapter.

[[Page 708]]



Sec. 522.8  Publication of class III ordinance and approval.

    The Chairman shall publish a class III tribal gaming ordinance or 
resolution in the Federal Register along with the Chairman's approval 
thereof.



Sec. 522.9  Substitute approval.

    If the Chairman fails to approve or disapprove an ordinance or 
resolution submitted under Sec. 522.2 of this part within 90 days after 
the date of submission to the Chairman, a tribal ordinance or resolution 
shall be considered to have been approved by the Chairman but only to 
the extent that such ordinance or resolution is consistent with the 
provisions of the Act and this chapter.



Sec. 522.10  Individually owned class II and class III gaming operations other than those operating on September 1, 1986.

    For licensing of individually owned gaming operations other than 
those operating on September 1, 1986 (addressed under Sec. 522.11 of 
this part), a tribal ordinance shall require:
    (a) That the gaming operation be licensed and regulated under an 
ordinance or resolution approved by the Chairman;
    (b) That income to the tribe from an individually owned gaming 
operation be used only for the purposes listed in Sec. 522.4(b)(2) of 
this part;
    (c) That not less than 60 percent of the net revenues be income to 
the Tribe;
    (d) That the owner pay an assessment to the Commission under 
Sec. 514.1 of this chapter;
    (e) Licensing standards that are at least as restrictive as those 
established by State law governing similar gaming within the 
jurisdiction of the surrounding State; and
    (f) Denial of a license for any person or entity that would not be 
eligible to receive a State license to conduct the same activity within 
the jurisdiction of the surrounding State. State law standards shall 
apply with respect to purpose, entity, pot limits and hours of 
operation.



Sec. 522.11  Individually owned class II gaming operations operating on September 1, 1986.

    For licensing of individually owned gaming operations operating on 
September 1, 1986, under Sec. 502.3(e) of this chapter, a tribal 
ordinance shall contain the same requirements as those in 
Sec. 522.10(a)-(d) of this part.



Sec. 522.12  Revocation of class III gaming.

    A governing body of a tribe, in its sole discretion and without the 
approval of the Chairman, may adopt an ordinance or resolution revoking 
any prior ordinance or resolution that authorizes class III gaming.
    (a) A tribe shall submit to the Chairman on 8\1/2\'' x 11'' paper 
one copy of any revocation ordinance or resolution certified as 
authentic by an authorized tribal official.
    (b) The Chairman shall publish such ordinance or resolution in the 
Federal Register and the revocation provided by such ordinance or 
resolution shall take effect on the date of such publication.
    (c) Notwithstanding any other provision of this section, any person 
or entity operating a class III gaming operation on the date of 
publication in the Federal Register under paragraph (b) of this section 
may, during a one-year period beginning on the date of publication, 
continue to operate such operation in conformance with a tribal-state 
compact.
    (d) A revocation shall not affect--
    (1) Any civil action that arises during the one-year period 
following publication of the revocation; or
    (2) Any crime that is committed during the one-year period following 
publication of the revocation.



PART 523--REVIEW AND APPROVAL OF EXISTING ORDINANCES OR RESOLUTIONS--Table of Contents




Sec.
523.1  Scope of this part.
523.2  Submission requirements.
523.3  Review of an ordinance or resolution.
523.4  Review of an amendment.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5812, Jan. 22, 1993, unless otherwise noted.

[[Page 709]]



Sec. 523.1  Scope of this part.

    This part applies to a class II or a class III gaming ordinance or 
resolution enacted by a tribe prior to February 22, 1993, and that has 
not been submitted to the Chairman.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 523.2  Submission requirements.

    (a) Within 60 days after a request by the Chairman, a tribe shall:
    (1) Submit for review and approval all items required under 
Sec. 522.2 of this chapter; and
    (2) For each gaming operation submit the financial statements for 
the previous fiscal year and the most recent audit report and management 
letter.
    (b) If a tribe fails to submit all items under Sec. 522.2 of this 
chapter within 60 days, the Chairman shall deem the ordinance or 
resolution disapproved and shall notify the tribe of its right to appeal 
under part 524.



Sec. 523.3  Review of an ordinance or resolution.

    Within 90 days after receipt of a submission under Sec. 523.2 of 
this part, the Chairman shall subject the ordinance or resolution to the 
standards in part 522 of this chapter.
    (a) For class II and class III gaming, if the Chairman determines 
that an ordinance or resolution submitted under this part meets the 
approval and submission requirements of part 522 of this chapter and the 
Chairman finds the annual financial statements are included in the 
submission, the Chairman shall approve the ordinance or resolution.
    (b) If an ordinance or resolution fails to meet the requirements for 
review under part 522 of this chapter or if a tribe fails to submit the 
annual financial statement, the Chairman shall notify a tribe in writing 
of the specific areas of noncompliance.
    (c) The Chairman shall allow a tribe 120 days from receipt of such 
notice to bring the ordinance or resolution into compliance with the 
requirements of part 522 of this chapter or to submit an annual 
financial statement, or both.
    (d) At the end of the 120-day period provided under paragraph (c) of 
this section, or earlier if the tribe notifies the Chairman that it 
intends not to comply, the Chairman shall disapprove any ordinance or 
resolution if a tribe fails to amend according to the notification made 
under paragraph (b) of this section.



Sec. 523.4  Review of an amendment.

    Within 90 days after receipt of an amendment, the Chairman shall 
subject the amendment to the standards in part 522 of this chapter.
    (a) If the Chairman determines that an amendment meets the approval 
and submission requirements of part 522 of this chapter, the Chairman 
will approve the amendment.
    (b) If an amendment fails to meet the requirements for review under 
part 522 of this chapter, the Chairman shall notify the tribe in writing 
of the specific areas of noncompliance.
    (c) If the Chairman fails to disapprove a submission under paragraph 
(a) or (b) of this section within 90 days after the date of submission 
to the Chairman, a tribal amendment shall be considered to have been 
approved by the Chairman but only to the extent that such amendment is 
consistent with the provisions of the Act and this chapter.



PART 524--APPEALS--Table of Contents




Sec.
524.1  Appeals by a tribe.
524.2  Limited participation by an entity other than a tribe.
524.3  Decision on appeals.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5812, Jan. 22, 1993, unless otherwise noted.



Sec. 524.1  Appeal by a tribe.

    A tribe may appeal disapproval of a gaming ordinance, resolution or 
amendment under part 522 or 523 of this chapter. An appeal shall be 
filed with the Commission within 30 days after the Chairman serves his 
or her determination under part 519 of this chapter. Such an appeal 
shall state succinctly why the tribe believes the Chairman's 
determination to be erroneous, and shall include supporting 
documentation, if any. Failure to file an appeal within the time 
provided by

[[Page 710]]

this section shall result in a waiver of the opportunity for an appeal.



Sec. 524.2  Limited participation by an entity other than a tribe.

    (a) An entity other than a tribe may request to participate in an 
appeal of a disapproval under part 522 or part 523 of this chapter by 
filing a written submission. Such written submission shall:
    (1) State the property, financial, or other interest of the party in 
the appeal; and
    (2) The reasons why the action of the Chairman in disapproving an 
ordinance, resolution or amendment may be in error or the reasons why 
the Chairman's disapproval should be upheld by the Commission. The 
reasons shall address the approval requirements under Secs. 522.4, 
522.5, 522.6, 522.7, 523.2 of this chapter.
    (b) The Commission shall forward a copy of a request under paragraph 
(a) of this section to the party of record under Sec. 524.1 of this 
part.
    (c) The Commission shall review a request under this section and 
timely notify the requester of its determination. Such notification 
shall supply the reasons for the determination. The Commission shall 
also notify the party of record on appeal under Sec. 524.1 of its 
determination.
    (d) The Commission shall limit the extent of participation by an 
entity other than a tribe to one written submission as described under 
paragraph (a) of this section, unless the Commission determines further 
participation would substantially contribute to the record.



Sec. 524.3  Decisions on appeals.

    (a) Within 90 days after it receives the appeal, the Commission 
shall render its decision on the appeal.
    (b) The Commission shall notify the party of record under Sec. 524.1 
of this part and any limited participant under Sec. 524.2 of this part 
of its final decision and the reasons supporting it.



PARTS 525--529--[RESERVED]




[[Page 711]]



              SUBCHAPTER C--MANAGEMENT CONTRACT PROVISIONS





PART 530--[RESERVED]






PART 531--CONTENT OF MANAGEMENT CONTRACTS--Table of Contents




Sec.
531.1  Required provisions.
531.2  Prohibited provisions.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5828, Jan. 22, 1993, unless otherwise noted.



Sec. 531.1  Required provisions.

    A management contract previously approved by the Secretary of the 
Interior shall conform to the requirements contained in paragraphs (c), 
(d), (e), (f), (g), (h), (i), and (j) of this section and a management 
contract not previously approved by the Secretary shall conform to all 
of the requirements contained in this section in the manner indicated.
    (a) Governmental authority. Provide that all gaming covered by the 
contract will be conducted in accordance with the Indian Gaming 
Regulatory Act (IGRA, or the Act) and governing tribal ordinance(s).
    (b) Assignment of responsibilities. Enumerate the responsibilities 
of each of the parties for each identifiable function, including:
    (1) Maintaining and improving the gaming facility;
    (2) Providing operating capital;
    (3) Establishing operating days and hours;
    (4) Hiring, firing, training and promoting employees;
    (5) Maintaining the gaming operation's books and records;
    (6) Preparing the operation's financial statements and reports;
    (7) Paying for the services of the independent auditor engaged 
pursuant to Sec. 571.12 of this chapter;
    (8) Hiring and supervising security personnel;
    (9) Providing fire protection services;
    (10) Setting advertising budget and placing advertising;
    (11) Paying bills and expenses;
    (12) Establishing and administering employment practices;
    (13) Obtaining and maintaining insurance coverage, including 
coverage of public liability and property loss or damage;
    (14) Complying with all applicable provisions of the Internal 
Revenue Code;
    (15) Paying the cost of any increased public safety services; and
    (16) If applicable, supplying the National Indian Gaming Commission 
(NIGC, or the Commission) with all information necessary for the 
Commission to comply with the regulations of the Commission issued 
pursuant to the National Environmental Policy Act (NEPA).
    (c) Accounting. Provide for the establishment and maintenance of 
satisfactory accounting systems and procedures that shall, at a minimum:
    (1) Include an adequate system of internal accounting controls;
    (2) Permit the preparation of financial statements in accordance 
with generally accepted accounting principles;
    (3) Be susceptible to audit;
    (4) Allow a class II gaming operation, the tribe, and the Commission 
to calculate the annual fee under Sec. 514.1 of this chapter;
    (5) Permit the calculation and payment of the manager's fee; and
    (6) Provide for the allocation of operating expenses or overhead 
expenses among the tribe, the tribal gaming operation, the contractor, 
and any other user of shared facilities and services.
    (d) Reporting. Require the management contractor to provide the 
tribal governing body not less frequently than monthly with verifiable 
financial reports or all information necessary to prepare such reports.
    (e) Access. Require the management contractor to provide immediate 
access to the gaming operation, including its books and records, by 
appropriate tribal officials, who shall have:
    (1) The right to verify the daily gross revenues and income from the 
gaming operation; and

[[Page 712]]

    (2) Access to any other gaming-related information the tribe deems 
appropriate.
    (f) Guaranteed payment to tribe. Provide for a minimum guaranteed 
monthly payment to the tribe in a sum certain that has preference over 
the retirement of development and construction costs.
    (g) Development and construction costs. Provide an agreed upon 
maximum dollar amount for the recoupment of development and construction 
costs.
    (h) Term limits. Be for a term not to exceed five (5) years, except 
that upon the request of a tribe, the Chairman may authorize a contract 
term that does not exceed seven (7) years if the Chairman is satisfied 
that the capital investment required, and the income projections, for 
the particular gaming operation require the additional time. The time 
period shall begin running no later than the date when the gaming 
activities authorized by an approved management contract begin.
    (i) Compensation. Detail the method of compensating and reimbursing 
the management contractor. If a management contract provides for a 
percentage fee, such fee shall be either:
    (1) Not more than thirty (30) percent of the net revenues of the 
gaming operation if the Chairman determines that such percentage is 
reasonable considering the circumstances; or
    (2) Not more than forty (40) percent of the net revenues if the 
Chairman is satisfied that the capital investment required and income 
projections for the gaming operation require the additional fee.
    (j) Termination provisions. Provide the grounds and mechanisms for 
modifying or terminating the contract (termination of the contract shall 
not require the approval of the Chairman).
    (k) Dispute provisions. Contain a mechanism to resolve disputes 
between:
    (1) The management contractor and customers, consistent with the 
procedures in a tribal ordinance;
    (2) The management contractor and the tribe; and
    (3) The management contractor and the gaming operation employees.
    (l) Assignments and subcontracting. Indicate whether and to what 
extent contract assignments and subcontracting are permissible.
    (m) Ownership interests. Indicate whether and to what extent changes 
in the ownership interest in the management contract require advance 
approval by the tribe.
    (n) Effective date. State that the contract shall not be effective 
unless and until it is approved by the Chairman, date of signature of 
the parties notwithstanding.



Sec. 531.2  Prohibited provisions.

    A management contract shall not transfer or, in any other manner, 
convey any interest in land or other real property, unless specific 
statutory authority exists and unless clearly specified in writing in 
the contract.



PART 532--[RESERVED]






PART 533--APPROVAL OF MANAGEMENT CONTRACTS--Table of Contents




Sec.
533.1  Requirement for review and approval.
533.2  Time for submitting management contracts.
533.3  Submission of management contract for approval.
533.4  Action by the Chairman.
533.5  Notice of noncompliance.
533.6  Approval.
533.7  Void agreements.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5829, Jan. 22, 1993, unless otherwise noted.



Sec. 533.1  Requirement for review and approval.

    Subject to the Chairman's approval, an Indian tribe may enter into a 
management contract for the operation of a class II or class III gaming 
activity.
    (a) Such contract shall become effective upon approval by the 
Chairman.
    (b) Contract approval shall be evidenced by a Commission document 
dated and signed by the Chairman. No other means of approval shall be 
valid.
    (c) Contracts approved by the Secretary remain effective until 
approved or disapproved by the Chairman.

[[Page 713]]



Sec. 533.2  Time for submitting management contracts.

    A tribe or a management contractor shall submit a management 
contract to the Chairman for review as follows:
    (a) Contracts approved by the Secretary, within sixty (60) days 
after a request by the Chairman. If a tribe or a management contractor 
fail to submit all items under Sec. 533.3 of this part within 60 days, 
the Chairman may deem the contract disapproved and shall notify the 
parties of their rights to appeal under part 539 of this chapter.
    (b) All other contracts, upon execution.



Sec. 533.3  Submission of management contract for approval.

    A tribe shall include in any request for approval of a management 
contract under this part:
    (a) A contract containing:
    (1) Original signatures of an authorized official of the tribe and 
the management contractor;
    (2) A representation that the contract as submitted to the Chairman 
is the entirety of the agreement among the parties; and
    (3)(i) If the contract has been approved by the Secretary, terms 
that meet the requirements of Secs. 531.1(c), (d), (e), (f), (g), (h), 
(i), and (j) and Sec. 531.2 of this chapter; or
    (ii) Terms that meet the requirements of part 531 of this chapter.
    (b) A letter, signed by the tribal chairman, setting out the 
authority of an authorized tribal official to act for the tribe 
concerning the management contract.
    (c) Copies of documents evidencing the authority under paragraph (b) 
of this section.
    (d) A list of all persons and entities identified in Secs. 537.1(a) 
and 537.1(c)(1) of this chapter, and either:
    (1) The information required under Sec. 537.1(b)(1) of this chapter 
for Class II gaming contracts and Sec. 537.1(b)(1)(i) of this chapter 
for class III gaming contracts; or
    (2) The dates on which the information was previously submitted.
    (e)(1) For new contracts and new operations, a three (3)-year 
business plan which sets forth the parties' goals, objectives, budgets, 
financial plans, and related matters; or
    (2) For existing contracts, income statements and sources and uses 
of funds statements for the previous three (3) years; or
    (3) For new contracts for existing operations, a three (3) year 
business plan which sets forth the parties goals, objectives, budgets, 
financial plans, and related matters, and income statements and sources 
and uses of funds statements for the previous three (3) years.
    (f) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(h) of this chapter, for a term limit in excess of five (5) 
years, but not exceeding seven (7) years.
    (g) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(i) of this chapter, for a fee in excess of thirty (30) 
percent, but not exceeding forty (40) percent.



Sec. 533.4  Action by the Chairman.

    (a) The Chairman shall provide notice of noncompliance under 
Sec. 533.5 of this part, or shall approve or disapprove a management 
contract applying the standards contained in Sec. 533.6 of this part, 
within 180 days of the date on which the Chairman receives a complete 
submission under Sec. 533.3 of this part, unless the Chairman notifies 
the tribe and management contractor in writing of the need for an 
extension of up to ninety (90) days.
    (b) A tribe may bring an action in a U.S. district court to compel 
action by the Chairman:
    (1) After 180 days following the date on which the Chairman receives 
a complete submission if the Chairman does not provide notice of 
noncompliance or approve or disapprove the contract under this part; or
    (2) After 270 days following the Chairman's receipt of a complete 
submission if the Chairman has told the tribe and management contractor 
in writing of the need for an extension and has not provided notice of 
noncompliance or approved or disapproved the contract under this part.



Sec. 533.5  Notice of noncompliance.

    (a) If a management contract previously approved by the Secretary 
fails

[[Page 714]]

to meet the requirements of this part, the Chairman shall notify the 
tribe and management contractor, in writing, of the specific areas of 
noncompliance.
    (1) The Chairman shall allow the tribe and the management contractor 
120 days from receipt of such notice to modify the contract.
    (2) If the Secretary approved a management contract before October 
17, 1988, the Chairman shall allow the tribe and the management 
contractor 180 days from receipt of such notification to modify the 
contract.
    (b) If a tribe and a management contractor fail to modify a 
management contract within the time provided, the Chairman may:
    (1) Disapprove the management contract, or
    (2) Approve the management contract subject to the required 
modifications if:
    (i) All modifications benefit the tribe;
    (ii) The modifications are required to bring the contract into 
statutory compliance; and
    (iii) The modifications are all agreed to by the management 
contractor.



Sec. 533.6  Approval.

    (a) The Chairman may approve a management contract if it meets the 
standards of part 531 of this chapter and Sec. 533.3 of this part;
    (b) The Chairman shall disapprove a management contract for class II 
gaming if he or she determines that--
    (1) Any person with a direct or indirect financial interest in, or 
having management responsibility for, a management contract:
    (i) Is an elected member of the governing body of the tribe that is 
party to the management contract;
    (ii) Has been convicted of any felony or any misdemeanor gaming 
offense;
    (iii) Has knowingly and willfully provided materially false 
statements or information to the Commission or to a tribe;
    (iv) Has refused to respond to questions asked by the Chairman in 
accordance with his responsibilities under this part; or
    (v) Is determined by the Chairman to be a person whose prior 
activities, criminal record, if any, or reputation, habits, and 
associations pose a threat to the public interest or to the effective 
regulation and control of gaming, or create or enhance the dangers of 
unsuitable, unfair, or illegal practices, methods, and activities in the 
conduct of gaming or the carrying on of related business and financial 
arrangements;
    (2) The management contractor or its agents have unduly interfered 
with or influenced for advantage, or have tried to unduly interfere with 
or influence for advantage, any decision or process of tribal government 
relating to the gaming operation;
    (3) The management contractor or its agents has deliberately or 
substantially failed to follow the terms of the management contract or 
the tribal gaming ordinance or resolution adopted and approved pursuant 
to this Act; or
    (4) A trustee, exercising the skill and diligence to which a trustee 
is commonly held, would not approve the contract.
    (c) The Chairman may disapprove a management contract for class III 
gaming if he or she determines that a person with a financial interest 
in, or management responsibility for, a management contract is a person 
whose prior activities, criminal record, if any, or reputation, habits, 
and associations pose a threat to the public interest or to the 
effective regulation and control of gaming, or create or enhance the 
dangers of unsuitable, unfair, or illegal practices, methods, and 
activities in the conduct of gaming or the carrying on of related 
business and financial arrangements.



Sec. 533.7  Void agreements.

    Management contracts and changes in persons with a financial 
interest in or management responsibility for a management contract, that 
have not been approved by the Secretary of the Interior or the Chairman 
in accordance with the requirements of this part, are void.



PART 534--[RESERVED]






PART 535--POST-APPROVAL PROCEDURES--Table of Contents




Sec.
535.1  Modifications.

[[Page 715]]

535.2  Assignments.
535.3  Post-approval noncompliance.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5830, Jan. 22, 1993, unless otherwise noted.



Sec. 535.1  Modifications.

    (a) Subject to the Chairman's approval, a tribe may enter into a 
modification of a management contract for the operation of a class II or 
class III gaming activity.
    (b) A tribe shall submit a modification to the Chairman upon its 
execution.
    (c) A tribe shall include in any request for approval of a 
modification under this part:
    (1) A modification containing original signatures of an authorized 
official of the tribe and the management contractor and terms that meet 
the applicable requirements of part 531 of this chapter;
    (2) A letter, signed by the tribal chairman, setting out the 
authority of an authorized tribal official to act for the tribe 
concerning the modification;
    (3) Copies of documents evidencing the authority under paragraph 
(c)(2) of this section;
    (4) If the modification involves a change in person(s) having a 
direct or indirect financial interest in the management contract or 
having management responsibility for the management contract, a list of 
such person(s) and either:
    (i) The information required under Sec. 537.1(b)(1) of this chapter 
for class II gaming contracts or Sec. 537.1(b)(1)(i) of this chapter for 
class III gaming contracts; or
    (ii) The dates on which the information was previously submitted;
    (5) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(h) of this chapter, for a term limit in excess of five (5) 
years, but not exceeding seven (7) years; and
    (6) If applicable, a justification, consistent with the provisions 
of Sec. 531.1(i) of this chapter, for a management fee in excess of 
thirty (30) percent, but not exceeding forty (40) percent.
    (d) For modifications which do not require a background 
investigation under part 537 of this chapter, the Chairman shall have 
thirty (30) days from receipt to approve or disapprove a modification, 
or to notify the parties that an additional thirty (30) days is required 
to reach a decision.
    (1) When a modification requires a background investigation under 
part 537 of this chapter, the Chairman shall approve or disapprove such 
modification as soon as practicable but in no event later than 180 days 
after the Chairman receives it;
    (2) If the Chairman does not approve or disapprove, he shall respond 
in accordance with the service provisions of part 519 of this chapter 
noting that no action has been taken on the proposed modification. The 
request shall therefore be deemed disapproved and the parties shall have 
thirty (30) days to appeal the decision under part 539 of this chapter.
    (e) (1) The Chairman may approve a modification to a management 
contract if the modification meets the submission requirements of 
paragraph (c) of this section.
    (2) The Chairman shall disapprove a modification of a management 
contract for class II gaming if he or she determines that the conditions 
contained in Sec. 533.6(b) of this chapter apply.
    (3) The Chairman may disapprove a modification of a management 
contract for class III gaming if he or she determines that the 
conditions contained in Sec. 533.6(c) of this chapter apply.
    (f) Modifications that have not been approved by the Chairman in 
accordance with the requirements of this part are void.



Sec. 535.2  Assignments.

    Subject to the approval of the Chairman, a management contractor may 
assign its rights under a management contract to the extent permitted by 
the contract. A tribe or a management contractor shall submit such 
assignment to the Chairman upon execution. The Chairman shall approve or 
disapprove an assignment applying the standards of, and within the time 
provided by Secs. 535.1(d) and 535.1(e) of this part.

[[Page 716]]



Sec. 535.3  Post-approval noncompliance.

    If the Chairman learns of any action or condition that violates the 
standards contained in parts 531, 533, 535, and 537 of this chapter, the 
Chairman may require modifications of, or may void, a management 
contract approved by the Chairman under such sections, after providing 
the parties an opportunity for a hearing before the Chairman and a 
subsequent appeal to the Commission as set forth in part 577 of this 
chapter. The Chairman will initiate modification proceedings by serving 
the parties, specifying the grounds for modification. The parties will 
have thirty (30) days to request a hearing or respond with objections. 
Within thirty (30) days of receiving a request for a hearing, the 
Chairman will hold a hearing and receive oral presentations and written 
submissions. The Chairman will make his decision on the basis of the 
developed record and notify the parties of his/her decision and of their 
right to appeal.



PART 536--[RESERVED]






PART 537--BACKGROUND INVESTIGATIONS FOR PERSONS OR ENTITIES WITH A FINANCIAL INTEREST IN, OR HAVING MANAGEMENT RESPONSIBILITY FOR, A MANAGEMENT CONTRACT--Table of Contents




Sec.
537.1  Applications for approval.
537.2  Submission of background information.
537.3  Fees for background investigations.
537.4  Determinations.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5831, Jan. 22, 1993, unless otherwise noted.



Sec. 537.1  Applications for approval.

    (a) For each management contract for class II gaming, the Chairman 
shall conduct or cause to be conducted a background investigation of:
    (1) Each person with management responsibility for a management 
contract;
    (2) Each person who is a director of a corporation that is a party 
to a management contract;
    (3) The ten (10) persons who have the greatest direct or indirect 
financial interest in a management contract;
    (4) Any entity with a financial interest in a management contract 
(in the case of institutional investors, the Chairman may exercise 
discretion and reduce the scope of the information to be furnished and 
the background investigation to be conducted); and
    (5) Any other person with a direct or indirect financial interest in 
a management contract otherwise designated by the Commission.
    (b) For each natural person identified in paragraph (a) of this 
section, the management contractor shall provide to the Commission the 
following information:
    (1) Required information. (i) Full name, other names used (oral or 
written), social security number(s), birth date, place of birth, 
citizenship, and gender;
    (ii) A current photograph, driver's license number, and a list of 
all languages spoken or written;
    (iii) Business and employment positions held, and business and 
residence addresses currently and for the previous ten (10) years; the 
city, state and country of residence from age eighteen (18) to the 
present;
    (iv) The names and current addresses of at least three (3) personal 
references, including one personal reference who was acquainted with the 
person at each different residence location for the past five (5) years;
    (v) Current business and residence telephone numbers;
    (vi) A description of any existing and previous business 
relationships with Indian tribes, including ownership interests in those 
businesses;
    (vii) A description of any existing and previous business 
relationships with the gaming industry generally, including ownership 
interests in those businesses;
    (viii) The name and address of any licensing or regulatory agency 
with which the person has filed an application for a license or permit 
relating to gaming, whether or not such license or permit was granted;
    (ix) For each gaming offense and for each felony for which there is 
an ongoing prosecution or a conviction, the

[[Page 717]]

name and address of the court involved, the charge, and the dates of the 
charge and of the disposition;
    (x) For each misdemeanor conviction or ongoing misdemeanor 
prosecution (excluding minor traffic violations) within ten (10) years 
of the date of the application, the name and address of the court 
involved, and the dates of the prosecution and the disposition;
    (xi) A complete financial statement showing all sources of income 
for the previous three (3) years, and assets, liabilities, and net worth 
as of the date of the submission; and
    (xii) For each criminal charge (excluding minor traffic charges) 
regardless of whether or not it resulted in a conviction, if such 
criminal charge is within 10 years of the date of the application and is 
not otherwise listed pursuant to paragraphs (b)(1)(ix) or (b)(1)(x) of 
this section, the name and address of the court involved, the criminal 
charge, and the dates of the charge and the disposition.
    (2) Fingerprints. The management contractor shall arrange with an 
appropriate federal, state, or tribal law enforcement authority to 
supply the Commission with a completed form FD-258, Applicant 
Fingerprint Card, (provided by the Commission), for each person for whom 
background information is provided under this section.
    (3) Responses to questions. Each person with a direct or indirect 
financial interest in a management contract or management responsibility 
for a management contract shall respond within thirty (30) days to 
written or oral questions propounded by the Chairman.
    (4) Privacy notice. In compliance with the Privacy Act of 1974, each 
person required to submit information under this section shall sign and 
submit the following statement:

    Solicitation of the information in this section is authorized by 25 
U.S.C. 2701 et seq. The purpose of the requested information is to 
determine the suitability of individuals with a financial interest in, 
or having management responsibility for, a management contract. The 
information will be used by the National Indian Gaming Commission 
members and staff and Indian tribal officials who have need for the 
information in the performance of their official duties. The information 
may be disclosed to appropriate federal, tribal, state, or foreign law 
enforcement and regulatory agencies in connection with a background 
investigation or when relevant to civil, criminal or regulatory 
investigations or prosecutions or investigations of activities while 
associated with a gaming operation. Failure to consent to the 
disclosures indicated in this statement will mean that the Chairman of 
the National Indian Gaming Commission will be unable to approve the 
contract in which the person has a financial interest or management 
responsibility.
    The disclosure of a person's Social Security Number (SSN) is 
voluntary. However, failure to supply a SSN may result in errors in 
processing the information provided.

    (5) Notice regarding false statements. Each person required to 
submit information under this section shall sign and submit the 
following statement:

    A false statement knowingly and willfully provided in any of the 
information pursuant to this section may be grounds for not approving 
the contract in which I have a financial interest or management 
responsibility, or for disapproving or voiding such contract after it is 
approved by the Chairman of the National Indian Gaming Commission. Also, 
I may be punished by fine or imprisonment (U.S. Code, title 18, section 
1001).

    (c) For each entity identified in paragraph (a)(4) of this section, 
the management contractor shall provide to the Commission the following 
information:
    (1) List of individuals. (i) Each of the ten (10) largest 
beneficiaries and the trustees when the entity is a trust;
    (ii) Each of the ten (10) largest partners when the entity is a 
partnership; and
    (iii) Each person who is a director or who is one of the ten (10) 
largest holders of the issued and outstanding stock alone or in 
combination with another stockholder who is a spouse, parent, child or 
sibling when the entity is a corporation.
    (2) Required information. (i) The information required in paragraph 
(b)(1)(i) of this section for each individual identified in paragraph 
(c)(1) of this section;
    (ii) Copies of documents establishing the existence of the entity, 
such as the partnership agreement, the trust agreement, or the articles 
of incorporation;
    (iii) Copies of documents designating the person who is charged with 
acting on behalf of the entity;

[[Page 718]]

    (iv) Copies of bylaws or other documents that provide the day-to-day 
operating rules for the organization;
    (v) A description of any existing and previous business 
relationships with Indian tribes, including ownership interests in those 
businesses;
    (vi) A description of any existing and previous business 
relationships with the gaming industry generally, including ownership 
interest in those businesses;
    (vii) The name and address of any licensing or regulatory agency 
with which the entity has filed an application for a license or permit 
relating to gaming, whether or not such license or permit was granted;
    (viii) For each gaming offense and for each felony for which there 
is an ongoing prosecution or a conviction, the name and address of the 
court involved, the charge, and the dates of the charge and disposition;
    (ix) For each misdemeanor conviction or ongoing misdemeanor 
prosecution within ten (10) years of the date of the application, the 
name and address of the court involved, and the dates of the prosecution 
and disposition;
    (x) Complete financial statements for the previous three (3) fiscal 
years; and
    (xi) For each criminal charge (excluding minor traffic charges) 
whether or not there is a conviction, if such criminal charge is within 
10 years of the date of the application and is not otherwise listed 
pursuant to paragraph (c)(1)(viii) or (c)(1)(ix) of this section, the 
criminal charge, the name and address of the court involved and the 
dates of the charge and disposition.
    (3) Responses to questions. Each entity with a direct or indirect 
financial interest in a management contract shall respond within thirty 
(30) days to written or oral questions propounded by the Chairman.
    (4) Notice regarding false statements. Each entity required to 
submit information under this section shall sign and submit the 
following statement:

    A false statement knowingly and willfully provided in any of the 
information pursuant to this section may be grounds for not approving 
the contract in which we have a financial interest, or for disapproving 
or voiding such contract after it is approved by the Chairman of the 
National Indian Gaming Commission. Also, we may be punished by fine or 
imprisonment (U.S. Code, title 18, section 1001).

[58 FR 5831, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 537.2  Submission of background information.

    A management contractor shall submit the background information 
required in Sec. 537.1 of this part:
    (a) In sufficient time to permit the Commission to complete its 
background investigation by the time the individual is to assume 
management responsibility for, or the management contractor is to begin 
managing, the gaming operation; and
    (b) Within ten (10) days of any proposed change in financial 
interest.



Sec. 537.3  Fees for background investigations.

    (a) A management contractor shall pay to the Commission or the 
contractor(s) designated by the Commission the cost of all background 
investigations conducted under this part.
    (b) The management contractor shall post a bond, letter of credit, 
or deposit with the Commission to cover the cost of the background 
investigations as follows:
    (1) Management contractor (party to the contract)--$10,000
    (2) Each individual and entity with a financial interest in the 
contract--$5,000
    (c) The management contractor shall be billed for the costs of the 
investigation as it proceeds; the investigation shall be suspended if 
the unpaid costs exceed the amount of the bond, letter of credit, or 
deposit available.
    (1) An investigation will be terminated if any bills remain unpaid 
for more than thirty (30) days.
    (2) A terminated investigation will preclude the Chairman from 
making the necessary determinations and result in a disapproval of a 
management contract.
    (d) The bond, letter of credit or deposit will be returned to the 
management contractor when all bills have been paid and the 
investigations have been completed or terminated.

[[Page 719]]



Sec. 537.4  Determinations.

    The Chairman shall determine whether the results of a background 
investigation preclude the Chairman from approving a management contract 
because of the individual disqualifying factors contained in 
Sec. 533.6(b)(1) of this chapter. The Chairman shall promptly notify the 
tribe and management contractor if any findings preclude the Chairman 
from approving a management contract or a change in financial interest.



PART 538--[RESERVED]






PART 539--APPEALS--Table of Contents




Sec.
539.1  Scope of this part.
539.2  Appeals.

    Authority: 25 U.S.C. 81, 2706(b)(10), 2710(d)(9), 2711.

    Source: 58 FR 5832, Jan. 22, 1993, unless otherwise noted.



Sec. 539.1  Scope of this part.

    This part applies to appeals from the Chairman's decision to approve 
or disapprove a management contract under this subchapter, except that 
appeals from the Chairman's decision to require modification of or to 
void a management contract subsequent to his or her initial approval are 
addressed in part 577 of this chapter.

[58 FR 16494, Mar. 29, 1993]



Sec. 539.2  Appeals.

    A party may appeal the Chairman's disapproval of a management 
contract or modification under parts 533 or 535 of this chapter to the 
Commission. Such an appeal shall be filed with the Commission within 
thirty (30) days after the Chairman serves his or her determination 
pursuant to part 519 of this chapter. Failure to file an appeal within 
the time provided by this section shall result in a waiver of the 
opportunity for an appeal. An appeal under this section shall specify 
the reasons why the person believes the Chairman's determination to be 
erroneous, and shall include supporting documentation, if any. Within 
thirty (30) days after receipt of the appeal, the Commission shall 
render a decision unless the appellant elects to provide the Commission 
additional time, not to exceed an additional thirty (30) days, to render 
a decision. In the absence of a decision within the time provided, the 
Chairman's decision shall constitute the final decision of the 
Commission.

[[Page 720]]



                        SUBCHAPTER D--[RESERVED]





PARTS 540-549--[RESERVED]






  SUBCHAPTER E--GAMING LICENSES AND BACKGROUND INVESTIGATIONS FOR KEY 
               EMPLOYEES AND PRIMARY MANAGEMENT OFFICIALS





PARTS 550-555--[RESERVED]






PART 556--BACKGROUND INVESTIGATIONS FOR PRIMARY MANAGEMENT OFFICIALS AND KEY EMPLOYEES--Table of Contents




Sec.
556.1  Scope of this part.
556.2  Privacy notice.
556.3  Notice regarding false statements.
556.4  Background investigations.
556.5  Report to Commission.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5813, Jan. 22, 1993, unless otherwise noted.



Sec. 556.1  Scope of this part.

    Unless a tribal-state compact allocates sole jurisdiction to an 
entity other than a tribe with respect to background investigations, the 
requirements of this part apply to all class II and class III gaming.

[58 FR 5810, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 556.2  Privacy notice.

    (a) A tribe shall place the following notice on the application form 
for a key employee or a primary management official before that form is 
filled out by an applicant:

    In compliance with the Privacy Act of 1974, the following 
information is provided: Solicitation of the information on this form is 
authorized by 25 U.S.C. 2701 et seq. The purpose of the requested 
information is to determine the eligibility of individuals to be 
employed in a gaming operation. The information will be used by National 
Indian Gaming Commission members and staff who have need for the 
information in the performance of their official duties. The information 
may be disclosed to appropriate Federal, Tribal, State, local, or 
foreign law enforcement and regulatory agencies when relevant to civil, 
criminal or regulatory investigations or prosecutions or when pursuant 
to a requirement by a tribe or the National Indian Gaming Commission in 
connection with the hiring or firing of an employee, the issuance or 
revocation of a gaming license, or investigations of activities while 
associated with a tribe or a gaming operation. Failure to consent to the 
disclosures indicated in this notice will result in a tribe's being 
unable to hire you in a primary management official or key employee 
position.
    The disclosure of your Social Security Number (SSN) is voluntary. 
However, failure to supply a SSN may result in errors in processing your 
application.

    (b) A tribe shall notify in writing existing key employees and 
primary management officials that they shall either:
    (1) Complete a new application form that contains a Privacy Act 
notice; or
    (2) Sign a statement that contains the Privacy Act notice and 
consent to the routine uses described in that notice.



Sec. 556.3  Notice regarding false statements.

    (a) A tribe shall place the following notice on the application form 
for a key employee or a primary management official before that form is 
filled out by an applicant:

    A false statement on any part of your application may be grounds for 
not hiring you, or for firing you after you begin work. Also, you may be 
punished by fine or imprisonment (U.S. Code, title 18, section 1001)

    (b) A tribe shall notify in writing existing key employees and 
primary management officials that they shall either:
    (1) Complete a new application form that contains a notice regarding 
false statements; or

[[Page 721]]

    (2) Sign a statement that contains the notice regarding false 
statements.



Sec. 556.4  Background investigations.

    A tribe shall perform a background investigation for each primary 
management official and for each key employee of a gaming operation.
    (a) A tribe shall request from each primary management official and 
from each key employee all of the following information:
    (1) Full name, other names used (oral or written), social security 
number(s), birth date, place of birth, citizenship, gender, all 
languages (spoken or written);
    (2) Currently and for the previous 5 years: business and employment 
positions held, ownership interests in those businesses, business and 
residence addresses, and drivers license numbers;
    (3) The names and current addresses of at least three personal 
references, including one personal reference who was acquainted with the 
applicant during each period of residence listed under paragraph (a)(2) 
of this section;
    (4) Current business and residence telephone numbers;
    (5) A description of any existing and previous business 
relationships with Indian tribes, including ownership interests in those 
businesses;
    (6) A description of any existing and previous business 
relationships with the gaming industry generally, including ownership 
interests in those businesses;
    (7) The name and address of any licensing or regulatory agency with 
which the person has filed an application for a license or permit 
related to gaming, whether or not such license or permit was granted;
    (8) For each felony for which there is an ongoing prosecution or a 
conviction, the charge, the name and address of the court involved, and 
the date and disposition if any;
    (9) For each misdemeanor conviction or ongoing misdemeanor 
prosecution (excluding minor traffic violations) within 10 years of the 
date of the application, the name and address of the court involved and 
the date and disposition;
    (10) For each criminal charge (excluding minor traffic charges) 
whether or not there is a conviction, if such criminal charge is within 
10 years of the date of the application and is not otherwise listed 
pursuant to paragraph (a)(8) or (a)(9) of this section, the criminal 
charge, the name and address of the court involved and the date and 
disposition;
    (11) The name and address of any licensing or regulatory agency with 
which the person has filed an application for an occupational license or 
permit, whether or not such license or permit was granted;
    (12) A photograph;
    (13) Any other information a tribe deems relevant; and
    (14) Fingerprints consistent with procedures adopted by a tribe 
according to Sec. 522.2(h) of this chapter.
    (b) A tribe shall conduct an investigation sufficient to make a 
determination under Sec. 558.2 of this chapter. In conducting a 
background investigation, a tribe or its agents shall promise to keep 
confidential the identity of each person interviewed in the course of 
the investigation.
    (c) If the Commission has received an investigative report 
concerning an individual who another tribe wishes to employ as a key 
employee or primary management official and if the second tribe has 
access to the investigative materials held by the first tribe, the 
second tribe may update the investigation and update the investigative 
report under Sec. 556.5(b) of this part.



Sec. 556.5  Report to Commission.

    (a) When a tribe employs a primary management official or a key 
employee, the tribe shall forward to the Commission a completed 
application containing the information listed under Sec. 556.4(a)(1)-
(13) of this part.
    (b) Before issuing a license to a primary management official or to 
a key employee, a tribe shall forward to the Commission an investigative 
report on each background investigation. An investigative report shall 
include all of the following:
    (1) Steps taken in conducting a background investigation;
    (2) Results obtained;
    (3) Conclusions reached; and
    (4) The bases for those conclusions.

[[Page 722]]

    (c) When a tribe forwards its report to the Commission, it shall 
include a copy of the eligibility determination made under Sec. 558.2 of 
this chapter.
    (d) If a tribe does not license an applicant--
    (1) The tribe shall notify the Commission; and
    (2) May forward copies of its eligibility determination under 
Sec. 558.2 and investigative report (if any) under Sec. 556.5(b) to the 
Commission for inclusion in the Indian Gaming Individuals Record System.



PART 557--[RESERVED]






PART 558--GAMING LICENSES FOR KEY EMPLOYEES AND PRIMARY MANAGEMENT OFFICIALS--Table of Contents




Sec.
558.1  Scope of this part.
558.2  Eligibility determination for employment in a gaming operation.
558.3  Procedures for forwarding applications and reports for key 
          employees and primary management officials to the Commission.
558.4  Granting a gaming license.
558.5  License suspension.

    Authority: 25 U.S.C. 2706, 2710, 2712.

    Source: 58 FR 5814, Jan. 22, 1993, unless otherwise noted.



Sec. 558.1  Scope of this part.

    Unless a tribal-state compact allocates responsibility to an entity 
other than a tribe:
    (a) The licensing authority for class II or class III gaming is a 
tribal authority.
    (b) A tribe shall develop licensing procedures for all employees of 
a gaming operation. The procedures and standards of part 556 of this 
chapter and the procedures and standards of this part apply only to 
primary management officials and key employees.
    (c) For primary management officials or key employees, a tribe shall 
retain applications for employment and reports (if any) of background 
investigations for inspection by the Chairman or his or her designee for 
no less than three (3) years from the date of termination of employment.
    (d) A right to a hearing under Sec. 558.5 of this part shall vest 
only upon receipt of a license granted under an ordinance approved by 
the Chairman.

[58 FR 5814, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 558.2  Eligibility determination for employment in a gaming operation.

    An authorized tribal official shall review a person's prior 
activities, criminal record, if any, and reputation, habits and 
associations to make a finding concerning the eligibility of a key 
employee or a primary management official for employment in a gaming 
operation. If the authorized tribal official, in applying the standards 
adopted in a tribal ordinance, determines that employment of the person 
poses a threat to the public interest or to the effective regulation of 
gaming, or creates or enhances the dangers of unsuitable, unfair, or 
illegal practices and methods and activities in the conduct of gaming, a 
management contractor or a tribal gaming operation shall not employ that 
person in a key employee or primary management official position.

[58 FR 5814, Jan. 22, 1993, as amended at 58 FR 16494, Mar. 29, 1993]



Sec. 558.3  Procedures for forwarding applications and reports for key employees and primary management officials to the Commission.

    (a) When a key employee or a primary management official begins work 
at a gaming operation, a tribe shall:
    (1) Forward to the Commission a completed application for employment 
that contains the notices and information listed in Secs. 556.2, 556.3 
and 556.4 of this chapter; and
    (2) Conduct a background investigation under part 556 of this 
chapter to determine the eligibility of the key employee or primary 
management official for continued employment in a gaming operation.
    (b) Upon completion of a background investigation and a 
determination of eligibility for employment in a gaming operation under 
paragraph (a)(2) of this section, a tribe shall forward a report under 
Sec. 556.5(b) of this chapter to the Commission within 60 days after an 
employee begins work or within 60 days of the Chairman's approval of an 
ordinance under part 523. A gaming operation shall not employ a key 
employee

[[Page 723]]

or primary management official who does not have a license after 90 
days.
    (c) During a 30-day period beginning when the Commission receives a 
report submitted under paragraph (b) of this section, the Chairman may 
request additional information from a tribe concerning a key employee or 
a primary management official who is the subject of a report. Such a 
request shall suspend the 30-day period until the Chairman receives the 
additional information.



Sec. 558.4  Granting a gaming license.

    (a) If, within the 30-day period described in Sec. 558.3(c) of this 
part, the Commission notifies a tribe that it has no objection to the 
issuance of a license pursuant to a license application filed by a key 
employee or a primary management official for whom the tribe has 
provided an application and investigative report to the Commission 
pursuant to Sec. 558.3 (a) and (b) of this part, the tribe may go 
forward and issue a license to such applicant.
    (b) If, within the 30-day period described in Sec. 558.3(c) of this 
part, the Commission provides the tribe with a statement itemizing 
objections to the issuance of a license to a key employee or to a 
primary management official for whom the tribe has provided an 
application and investigative report to the Commission pursuant to 
Sec. 558.3 (a) and (b) of this part, the tribe shall reconsider the 
application, taking into account the objections itemized by the 
Commission. The tribe shall make the final decision whether to issue a 
license to such applicant.



Sec. 558.5  License suspension.

    (a) If, after the issuance of a gaming license, the Commission 
receives reliable information indicating that a key employee or a 
primary management official is not eligible for employment under 
Sec. 558.2 of this part, the Commission shall notify the tribe that 
issued a gaming license.
    (b) Upon receipt of such notification under paragraph (a) of this 
section, a tribe shall suspend such license and shall notify in writing 
the licensee of the suspension and the proposed revocation.
    (c) A tribe shall notify the licensee of a time and a place for a 
hearing on the proposed revocation of a license.
    (d) After a revocation hearing, a tribe shall decide to revoke or to 
reinstate a gaming license. A tribe shall notify the Commission of its 
decision.



PART 559--[RESERVED]




[[Page 724]]



                        SUBCHAPTER F--[RESERVED]





PARTS 560-569--[RESERVED]






           SUBCHAPTER G--COMPLIANCE AND ENFORCEMENT PROVISIONS





PART 570--[RESERVED]






PART 571--MONITORING AND INVESTIGATIONS--Table of Contents




                           Subpart A--General

Sec.
571.1  Scope.
571.2  Definitions.
571.3  Confidentiality.

               Subpart B--Inspection of Books and Records

571.5  Entry of premises.
571.6  Access to papers, books, and records.
571.7  Maintenance and preservation of papers and records.

                  Subpart C--Subpoenas and Depositions

571.8  Subpoena of witnesses.
571.9  Subpoena of documents and other items.
571.10  Geographical location.
571.11  Depositions.

                            Subpart D--Audits

571.12  Audit standards.
571.13  Copies of audit reports.
571.14  Relationship of audited financial statements to fee assessment 
          reports.

    Authority: 25 U.S.C. 2706(b), 2710(b)(2)(C), 2715, 2716.

    Source: 58 FR 5842, Jan. 22, 1993, unless otherwise noted.



                           Subpart A--General



Sec. 571.1  Scope.

    This part sets forth general procedures governing Commission 
monitoring and investigations of Indian gaming operations.



Sec. 571.2  Definitions.

    As used in this subchapter, the following terms have the specified 
meanings:
    Commission's authorized representative means any persons who is 
authorized to act on behalf of the Commission for the purpose of 
implementing the Act and this chapter.
    Day means calendar day unless otherwise specified.
    Hearing means that part of a proceeding that involves the submission 
of evidence to the presiding official, either by oral presentation or 
written submission.
    Party means the Chairman, the respondent(s), and any other person 
named or admitted as a party to a proceeding.
    Person means an individual, Indian tribe, corporation, partnership, 
or other organization or entity.
    Presiding official means a person designated by the Commission who 
is qualified to conduct an administrative hearing and authorized to 
administer oaths, and has had no previous role in the prosecution of a 
matter over which he or she will preside.
    Respondent means a person against whom the Commission is seeking 
civil penalties under section 2713 of the Act.
    Violation means a violation of applicable federal or tribal 
statutes, regulations, ordinances, or resolutions.

[58 FR 5842, Jan. 22, 1993; 58 FR 8449, Feb. 12, 1993, as amended at 58 
FR 16494, Mar. 29, 1993]



Sec. 571.3  Confidentiality.

    Unless confidentiality is waived, the Commission shall treat as 
confidential any and all information received under the Act that falls 
within the exemptions of 5 U.S.C. 552(b) (4) and (7); except that when 
such information indicates a violation of Federal, State, or tribal 
statutes, regulations, ordinances, or resolutions, the Commission shall 
provide such information to appropriate law enforcement officials. The 
confidentiality of documents submitted in

[[Page 725]]

a multiple-party proceeding under part 577 of this chapter is addressed 
in Sec. 577.8 of this chapter.



               Subpart B--Inspection of Books and Records



Sec. 571.5  Entry of premises.

    (a) The Commission's authorized representative may enter the 
premises of an Indian gaming operation to inspect, examine, photocopy, 
and audit all papers, books, and records (including computer records) 
concerning:
    (1) Gross revenues of class II gaming conducted on Indian lands; and
    (2) Any other matters necessary to carry out the duties of the 
Commission under the Act and this chapter.
    (b) The Commission's authorized representative shall present 
official identification upon entering a gaming operation for the purpose 
of enforcing the Act.



Sec. 571.6  Access to papers, books, and records.

    (a) Once the Commission's authorized representative presents proper 
identification, a gaming operation shall provide the authorized 
representative with access to all papers, books, and records (including 
computer records) concerning class II gaming or any other matters for 
which the Commission requires such access to carry out its duties under 
the Act.
    (b) If such papers, books, and records are not available at the 
location of the gaming operation, the gaming operation shall make them 
available at a time and place convenient to the Commission's authorized 
representative.
    (c) Upon the request of the Commission's authorized representative, 
the gaming operation shall photocopy, or allow the Commission's 
authorized representative to photocopy, any papers, books, and records 
that are requested by the Commission's authorized representative.



Sec. 571.7  Maintenance and preservation of papers and records.

    (a) A gaming operation shall keep permanent books of account or 
records, including inventory records of gaming supplies, sufficient to 
establish the amount of gross and net income, deductions and expenses, 
receipts and disbursements, and other information required in any 
financial statement, report, or other accounting prepared pursuant to 
the Act or this chapter.
    (b) The Commission may require a gaming operation to submit 
statements, reports, or accountings, or keep specific records, that will 
enable the Commission to determine whether or not such operation:
    (1) Is liable for fees payable to the Commission and in what amount; 
and
    (2) Has properly and completely accounted for all transactions and 
other matters monitored by the Commission.
    (c) Books or records required by this section shall be kept at all 
times available for inspection by the Commission's authorized 
representatives. They shall be retained for no less than five (5) years.
    (d) A gaming operation shall maintain copies of all enforcement 
actions that a tribe or a state has taken against the operation, noting 
the final disposition of each case.



                  Subpart C--Subpoenas and Depositions



Sec. 571.8  Subpoena of witnesses.

    By majority vote the Commission may authorize the Chairman to 
require by subpoena the attendance and testimony of witnesses relating 
to any matter under consideration or investigation by the Commission. 
Witnesses so summoned shall be paid the same fees and mileage that are 
paid to witnesses in the courts of the United States.



Sec. 571.9  Subpoena of documents and other items.

    By majority vote the Commission may authorize the Chairman to 
require by subpoena the production of certain documents and other items 
that are material and relevant to facts in issue in any matter under 
consideration or investigation by the Commission.



Sec. 571.10  Geographical location.

    The attendance of witnesses and the production of books, papers, and 
documents, may be required from any place in the United States at any 
designated place of hearing.

[[Page 726]]



Sec. 571.11  Depositions.

    (a) Any party wishing to depose a witness shall file a request with 
the Commission or, if a presiding official has been designated under 
part 577 of this chapter, to the presiding official. Such a request 
shall not be granted except for good cause shown. A Commissioner or a 
presiding official may order testimony to be taken by deposition in any 
proceeding or investigation pending before the Commission at any stage 
of such proceeding or investigation, except that Commission personnel 
may not be questioned by deposition for the purposes of discovery, but 
may be questioned by written interrogatories as authorized by the 
Commission or a presiding official. Commission records are not subject 
to discovery under this chapter. The inspection of Commission records is 
governed by Sec. 571.3 of this part and the Freedom of Information Act, 
5 U.S.C. 552. Depositions under this section may be taken before any 
person designated by the Commission or a presiding official, and who has 
the power to administer oaths.
    (b) A party or a Commissioner (or a person designated by a 
Commissioner under paragraph (a) of this section) proposing to take a 
deposition under this section shall give reasonable notice to the 
Commission and the parties, if any, of the taking of a deposition. 
Notice shall include the name of the witness and the time and place of 
the deposition.
    (c) Every person deposed under this part shall be notified of his or 
her right to be represented by counsel during the deposition, and shall 
be required to swear or affirm to testify to the whole truth. Testimony 
shall be reduced to writing and subscribed by the deponent. Depositions 
shall be filed promptly with the Commission or, if a presiding official 
has been designated, with the presiding official.
    (d) Witnesses whose depositions are taken as authorized in this 
section, and the persons taking the same, shall be severally entitled to 
the same fees as are paid for like services in the courts of the United 
States.



                            Subpart D--Audits



Sec. 571.12  Audit standards.

    A tribe shall engage an independent certified public accountant to 
provide an annual audit of the financial statements of each gaming 
operation on Indian lands. Such financial statements shall be prepared 
in accordance with generally accepted accounting principles and the 
audit(s) shall be conducted in accordance with generally accepted 
auditing standards. Audit(s) of the gaming operation required under this 
section may be conducted in conjunction with any other independent audit 
of the tribe, provided that the requirements of this chapter are met.



Sec. 571.13  Copies of audit reports.

    A tribe shall submit to the Commission a copy of the report(s) and 
management letter(s) setting forth the results of each annual audit 
within 120 days after the end of each fiscal year of the gaming 
operation.



Sec. 571.14  Relationship of audited financial statements to fee assessment reports.

    A tribe shall reconcile its quarterly fee assessment reports, 
submitted under 25 CFR part 514, with its audited financial statements 
and make available such reconciliation upon request by the Commission's 
authorized representative.



PART 572--[RESERVED]






PART 573--ENFORCEMENT--Table of Contents




Sec.
573.1  Scope.
573.3  Notice of violation.
573.6  Order of temporary closure.

    Authority: 25 U.S.C. 2705(a)(1), 2706, 2713, 2715.

    Source: 58 FR 5844, Jan. 22, 1993, unless otherwise noted.



Sec. 573.1  Scope.

    This part sets forth general rules governing the Commission's 
enforcement of the Act, this chapter, and tribal ordinances and 
resolutions approved by the Chairman under part 522 or 523

[[Page 727]]

of this chapter. Civil fines in connection with notice of violation 
issued under this part are addressed in part 575 of this chapter.



Sec. 573.3  Notice of violation.

    (a) The Chairman may issue a notice of violation to any person for 
violations of any provision of the Act or this chapter, or of any tribal 
ordinance or resolution approved by the Chairman under part 522 or 523 
of this chapter.
    (b) A notice of violation shall contain:
    (1) A citation to the federal or tribal requirement that has been or 
is being violated;
    (2) A description of the circumstances surrounding the violation, 
set forth in common and concise language;
    (3) Measures required to correct the violation;
    (4) A reasonable time for correction, if the respondent cannot take 
measures to correct the violation immediately; and
    (5) Notice of rights of appeal.



Sec. 573.6  Order of temporary closure.

    (a) When an order of temporary closure may issue. Simultaneously 
with or subsequently to the issuance of a notice of violation under 
Sec. 573.3 of this part, the Chairman may issue an order of temporary 
closure of all or part of an Indian gaming operation if one or more of 
the following substantial violations are present:
    (1) The respondent fails to correct violations within:
    (i) The time permitted in a notice of violation; or
    (ii) A reasonable time after a tribe provides notice of a violation.
    (2) A gaming operation fails to pay the annual fee required by 25 
CFR part 514.
    (3) A gaming operation operates for business without a tribal 
ordinance or resolution that the Chairman has approved under part 522 or 
523 of this chapter.
    (4) A gaming operation operates for business without a license from 
a tribe, in violation of part 558 of this chapter.
    (5) A gaming operation operates for business without either 
background investigations having been completed for, or tribal licenses 
granted to, all key employees and primary management officials, as 
provided in Sec. 558.3(b) of this chapter.
    (6) There is clear and convincing evidence that a gaming operation 
defrauds a tribe or a customer.
    (7) A management contractor operates for business without a contract 
that the Chairman has approved under part 533 of this chapter.
    (8) Any person knowingly submits false or misleading information to 
the Commission or a tribe in response to any provision of the Act, this 
chapter, or a tribal ordinance or resolution that the Chairman has 
approved under part 522 or 523 of this chapter.
    (9) A gaming operation refuses to allow an authorized representative 
of the Commission or an authorized tribal official to enter or inspect a 
gaming operation, in violation of Sec. 571.5 or Sec. 571.6 of this 
chapter, or of a tribal ordinance or resolution approved by the Chairman 
under part 522 or 523 of this chapter.
    (10) A tribe fails to suspend a license upon notification by the 
Commission that a primary management official or key employee does not 
meet the standards for employment contained in Sec. 558.2 of this 
chapter, in violation of Sec. 558.5 of this chapter.
    (11) A gaming operation operates class III games in the absence of a 
tribal-state compact that is in effect, in violation of 25 U.S.C. 
2710(d).
    (12) A gaming operation's facility is constructed, maintained, or 
operated in a manner that threatens the environment or the public health 
and safety, in violation of a tribal ordinance or resolution approved by 
the Chairman under part 522 or 523 of this chapter.
    (b) Order effective upon service. The operator of an Indian gaming 
operation shall close the operation upon service of an order of 
temporary closure, unless the order provides otherwise.
    (c) Informal expedited review. Within seven (7) days after service 
of an order of temporary closure, the respondent may request, orally or 
in writing, informal expedited review by the Chairman.
    (1) The Chairman shall complete the expedited review provided for by 
this

[[Page 728]]

paragraph within two (2) days after his or her receipt of a timely 
request.
    (2) The Chairman shall, within two (2) days after the expedited 
review provided for by this paragraph:
    (i) Decide whether to continue an order of temporary closure; and
    (ii) Provide the respondent with an explanation of the basis for the 
decision.
    (3) Whether or not a respondent seeks informal expedited review 
under this paragraph, within thirty (30) days after the Chairman serves 
an order of temporary closure the respondent may appeal the order to the 
Commission under part 577 of this chapter. Otherwise, the order shall 
remain in effect unless rescinded by the Chairman for good cause.



PART 574--[RESERVED]






PART 575--CIVIL FINES--Table of Contents




Sec.
575.1  Scope.
575.3  How assessments are made.
575.4  When civil fine will be assessed.
575.5  Procedures for assessment of civil fines.
575.6  Settlement, reduction, or waiver of civil fine.
575.9  Final assessment.

    Authority: 25 U.S.C. 2705(a), 2706, 2713, 2715.

    Source: 58 FR 5844, Jan. 22, 1993, unless otherwise noted.



Sec. 575.1  Scope.

    This part addresses the assessment of civil fines under section 
2713(a) of the Act with respect to notices of violation issued under 
Sec. 573.3 of this chapter.



Sec. 575.3  How assessments are made.

    The Chairman shall review each notice of violation and order of 
temporary closure in accordance with Sec. 575.4 of this part to 
determine whether a civil fine will be assessed, the amount of the fine, 
and, in the case of continuing violations, whether each daily illegal 
act or omission will be deemed a separate violation for purposes of the 
total civil fine assessed.



Sec. 575.4  When civil fine will be assessed.

    The Chairman may assess a civil fine, not to exceed $25,000 per 
violation, against a tribe, management contractor, or individual 
operating Indian gaming for each notice of violation issued under 
Sec. 573.3 of this chapter after considering the following factors:
    (a) Economic benefit of noncompliance. The Chairman shall consider 
the extent to which the respondent obtained an economic benefit from the 
noncompliance that gave rise to a notice of violation, as well as the 
likelihood of escaping detection.
    (1) The Chairman may consider the documented benefits derived from 
the noncompliance, or may rely on reasonable assumptions regarding such 
benefits.
    (2) If noncompliance continues for more than one day, the Chairman 
may treat each daily illegal act or omission as a separate violation.
    (b) Seriousness of the violation. The Chairman may adjust the amount 
of a civil fine to reflect the seriousness of the violation. In doing 
so, the Chairman shall consider the extent to which the violation 
threatens the integrity of Indian gaming.
    (c) History of violations. The Chairman may adjust a civil fine by 
an amount that reflects the respondent's history of violations over the 
preceding five (5) years.
    (1) A violation cited by the Chairman shall not be considered unless 
the associated notice of violation is the subject of a final order of 
the Commission and has not been vacated; and
    (2) Each violation shall be considered whether or not it led to a 
civil fine.
    (d) Negligence or willfulness. The Chairman may adjust the amount of 
a civil fine based on the degree of fault of the respondent in causing 
or failing to correct the violation, either through act or omission.
    (e) Good faith. The Chairman may reduce the amount of a civil fine 
based on the degree of good faith of the respondent in attempting to 
achieve rapid compliance after notification of the violation.

[[Page 729]]



Sec. 575.5  Procedures for assessment of civil fines.

    (a) Within 15 days after service of a notice of violation, or such 
longer period as the Chairman may grant for good cause, the respondent 
may submit written information about the violation to the Chairman. The 
Chairman shall consider any information so submitted in determining the 
facts surrounding the violation and the amount of the civil fine.
    (b) The Chairman shall serve a copy of the proposed assessment on 
the respondent within thirty (30) days after the notice of violation was 
issued, when practicable.
    (c) The Chairman may review and reassess any civil fine if necessary 
to consider facts that were not reasonably available on the date of 
issuance of the proposed assessment.



Sec. 575.6  Settlement, reduction, or waiver of civil fine.

    (a) Reduction or waiver. (1) Upon written request of a respondent 
received at any time prior to the filing of a notice of appeal under 
part 577 of this chapter, the Chairman may reduce or waive a civil fine 
if he or she determines that, taking into account exceptional factors 
present in a particular case, the fine is demonstrably unjust.
    (2) All petitions for reduction or waiver shall contain:
    (i) A detailed description of the violation that is the subject of 
the fine;
    (ii) A detailed recitation of the facts that support a finding that 
the fine is demonstrably unjust, accompanied by underlying 
documentation, if any; and
    (iii) A declaration, signed and dated by the respondent and his or 
her counsel or representative, if any, as follows: Under penalty of 
perjury, I declare that, to the best of my knowledge and belief, the 
representations made in this petition are true and correct.
    (3) The Chairman shall serve the respondent with written notice of 
his or her determination under paragraph (a) of this section, including 
a statement of the grounds for the Chairman's decision.
    (b) Settlement. At any time prior to the filing of a notice of 
appeal under part 577 of this chapter, the Chairman and the respondent 
may agree to settle an enforcement action, including the amount of the 
associated civil fine. In the event a settlement is reached, a 
settlement agreement shall be prepared and executed by the Chairman and 
the respondent. If a settlement agreement is executed, the respondent 
shall be deemed to have waived all rights to further review of the 
violation or civil fine in question, except as otherwise provided 
expressly in the settlement agreement. In the absence of a settlement of 
the issues under this paragraph, the respondent may contest the assessed 
civil fine before the Commission in accordance with part 577 of this 
chapter.



Sec. 575.9  Final assessment.

    (a) If the respondent fails to request a hearing as provided in part 
577 of this chapter, the proposed civil fine assessment shall become a 
final order of the Commission.
    (b) Civil fines assessed under this part shall be paid by the person 
assessed and shall not be treated as an operating expense of the 
operation.
    (c) The Commission shall transfer civil fines paid under this 
subchapter to the U.S. Treasury.

[58 FR 5844, Jan. 22, 1993, as amended at 58 FR 16495, Mar. 29, 1993]



PART 576--[RESERVED]






PART 577--APPEALS BEFORE THE COMMISSION--Table of Contents




Sec.
577.1  Scope.
577.3  Request for hearing.
577.4  Hearing deadline.
577.6  Service.
577.7  Conduct of hearing.
577.8  Request to limit disclosure of confidential information.
577.9  Consent order or settlement.
577.12  Intervention.
577.13  Transcript of hearing.
577.14  Recommended decision of presiding official.
577.15  Review by Commission.

    Authority: 25 U.S.C. 2706, 2713, 2715.

    Source: 58 FR 5845, Jan. 22, 1993, unless otherwise noted.

[[Page 730]]



Sec. 577.1  Scope.

    (a) This part provides procedures for appeals to the Commission 
regarding:
    (1) A violation alleged in a notice of violation;
    (2) Civil fines assessed by the Chairman;
    (3) Whether an order of temporary closure issued by the Chairman 
should be made permanent or be dissolved; and
    (4) The Chairman's decision to void or modify a management contract 
under part 535 of this chapter subsequent to initial approval.
    (b) Appeals from determinations of the Chairman under 25 U.S.C. 2710 
and 2711 (regarding management contracts) and 2710 (regarding tribal 
gaming ordinances) are addressed in parts 539 and 524 of this chapter 
respectively.



Sec. 577.3  Request for hearing.

    (a) A respondent may request a hearing to contest the matters listed 
in Sec. 577.1(a)(1)-(4) by submitting a notice of appeal to the 
Commission within thirty (30) days after service of:
    (1) A notice of violation;
    (2) A proposed civil fine assessment or reassessment;
    (3) An order of temporary closure; or
    (4) An order voiding or modifying a management contract subsequent 
to initial approval.
    (b) A notice of appeal shall reference the notice or order from 
which the appeal is taken.
    (c) Within ten (10) days after filing a notice of appeal, the 
respondent shall file with the Commission a supplemental statement that 
states with particularity the relief desired and the grounds therefor 
and that includes, when available, supporting evidence in the form of 
affidavits. If the respondent wishes to present oral testimony or 
witnesses at the hearing, the respondent shall include a request to do 
so with the supplemental statement. The request to present oral 
testimony or witnesses shall specify the names of proposed witnesses and 
the general nature of their expected testimony, and whether a closed 
hearing is requested and why. The respondent may waive in writing his or 
her right to an oral hearing and instead elect to have the matter 
determined by the Commission solely on the basis of written submissions.



Sec. 577.4  Hearing deadline.

    (a) The Commission shall designate a presiding official who shall 
commence a hearing within 30 days after the Commission receives a timely 
notice of appeal from the respondent. At the request of the respondent, 
the presiding official may order the hearing to commence at a time more 
than 30 days after the respondent files a notice of appeal. The 
Commission shall transmit the administrative record of the case to the 
presiding official upon designation.
    (b) If the subject of an appeal is whether an order of temporary 
closure should be made permanent or be dissolved, the hearing shall be 
concluded within 30 days after the Commission receives a timely notice 
of appeal, unless the respondent waives this requirement. 
Notwithstanding any other provision of this part, the presiding official 
shall conduct such a hearing in a manner that will enable him or her to 
conclude the hearing within the period required by this paragraph, while 
ensuring due process to all parties.



Sec. 577.6  Service.

    (a) A respondent who initiates an appeal under this part shall serve 
copies of the initiating documents on the Commission at the address 
indicated in the notice or order that is the subject of the appeal. All 
filings shall be made with the Commission until a presiding official is 
designated and the parties are so notified, after which all filings 
shall be made with the presiding official. Any party or other person who 
subsequently files any other document with the Commission or the 
presiding officer shall simultaneously serve copies of that document on 
any other parties to the proceeding, except to that extent Sec. 577.8 of 
this part may govern the disclosure of confidential information 
contained in a filing.
    (b) Copies of documents by which a proceeding is initiated shall be 
served on all known parties personally, by facsimile, or by registered 
or certified

[[Page 731]]

mail, return receipt requested. All subsequent documents shall be served 
personally, by facsimile, or by first class mail.
    (c) Service of copies of all documents is complete at the time of 
personal service or, if service is made by mail or facsimile, upon 
transmittal.
    (d) Whenever a representative (including an attorney) has entered an 
appearance for a party in a proceeding initiated under this part, 
service thereafter shall be made upon the representative.
    (e) In computing any period of time prescribed for filing and 
serving a document, the first day of the period so computed shall not be 
included. The last day shall be included unless it is a Saturday, 
Sunday, or federal legal holiday, in which case the period shall run 
until the end of the next business day.
    (f)(1) The presiding official may extend the time for filing or 
serving any document except a notice of appeal.
    (2) A request for an extension of time must be filed within the time 
originally allowed for filing.
    (3) For good cause the presiding official may grant an extension of 
time on his or her own initiative.



Sec. 577.7  Conduct of hearing.

    (a) Once designated by the Commission, the presiding official shall 
set the case for hearing. The respondent may appear at the hearing 
personally, through counsel, or personally with counsel. The respondent 
shall have the right to introduce relevant written materials and to 
present an oral argument. At the discretion of the presiding official, a 
hearing under this section may include an opportunity to submit oral and 
documentary evidence and cross-examine witnesses.
    (b) When holding a hearing under this part, the presiding official 
shall:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas authorized by the Commission;
    (3) Rule on offers of proof and receive relevant evidence;
    (4) Authorize exchanges of information (including depositions and 
interrogatories in accordance with 25 CFR part 571, subpart C) among the 
parties when to do so would expedite the proceeding;
    (5) Regulate the course of the hearing;
    (6) When appropriate, hold conferences for the settlement or 
simplification of the issues by consent of the parties;
    (7) At any conference held pursuant to paragraph (b)(6) of this 
section, require the attendance of at least one representative of each 
party who has authority to negotiate the resolution of issues in 
controversy;
    (8) Dispose of procedural requests or similar matters;
    (9) Recommend decisions in accordance with Sec. 577.14 of this part; 
and
    (10) Take other actions authorized by the Commission consistent with 
this part.
    (c) The presiding official may order the record to be kept open for 
a reasonable period following the hearing (normally five days), during 
which time the parties may make additional submissions to the record. 
Thereafter, the record shall be closed and the hearing shall be deemed 
concluded. Within 30 days after the record closes, the presiding 
official shall issue a recommended decision in accordance with 
Sec. 577.14 of this part.



Sec. 577.8  Request to limit disclosure of confidential information.

    (a) If any person submitting a document in a proceeding that 
involves more than two parties claims that some or all of the 
information contained in that document is exempt from the mandatory 
public disclosure requirements under the Freedom of Information Act (5 
U.S.C. 552), is information referred to in 18 U.S.C. 1905 (disclosure of 
confidential information), or is otherwise exempt by law from public 
disclosure, the person shall:
    (1) Indicate that the document in its entirety is exempt from 
disclosure or identify and segregate information within the document 
that is exempt from disclosure; and
    (2) Request that the presiding official not disclose such 
information to the parties to the proceeding (other than the Chairman, 
whose actions regarding

[[Page 732]]

the disclosure of confidential information are governed by Sec. 571.3 of 
this chapter) except pursuant to paragraph (b) of this section, and 
shall serve the request upon the parties to the proceeding. The request 
to the presiding official shall include:
    (i) A copy of the document, group of documents, or segregable 
portions of the documents marked ``Confidential Treatment Requested''; 
and
    (ii) A statement explaining why the information is confidential.
    (b) A party to a proceeding may request that the presiding official 
direct a person submitting information under paragraph (a) of this 
section to provide that information to the party. The presiding official 
shall so direct if the party requesting the information agrees under 
oath and in writing:
    (1) Not to use or disclose the information except directly in 
connection with the hearing; and
    (2) To return all copies of the information at the conclusion of the 
proceeding to the person submitting the information under paragraph (a) 
of this section.
    (c) If a person submitting documents in a proceeding under this part 
does not claim confidentiality under paragraph (a) of this section, the 
presiding official may assume that there is no objection to disclosure 
of the document in its entirety.
    (d) If the presiding official determines that confidential treatment 
is not warranted with respect to all or any part of the information in 
question, the presiding official shall so inform all parties by 
telephone, if possible, and by facsimile or express mail letter directed 
to the parties' last known addresses. The person requesting confidential 
treatment then shall be given an opportunity to withdraw the document 
before it is considered by the presiding official, or to disclose the 
information voluntarily to all parties.
    (e) If the presiding official determines that confidential treatment 
is warranted, the presiding official shall so inform all parties by 
facsimile or express mail directed to the parties' last known address.
    (f) When a decision by a presiding official is based in whole or in 
part on evidence not included in the public record, the decision shall 
so state, specifying the nature of the evidence and the provision of law 
under which disclosure was denied, and the evidence so considered shall 
be retained under seal as part of the official record.



Sec. 577.9  Consent order or settlement.

    (a) General. At any time after the commencement of a proceeding, but 
at least five (5) days before the date set for hearing under Sec. 577.7 
of this part, the parties jointly may move to defer the hearing for a 
reasonable time to permit negotiation of a settlement or an agreement 
containing findings and an order disposing of the whole or any part of 
the proceeding.
    (b) Content. Any agreement containing consent findings and an order 
disposing of the whole or any part of a proceeding shall also provide:
    (1) A waiver of any further procedural steps before the Commission;
    (2) A waiver of any right to challenge or contest the validity of 
the order and decision entered into in accordance with the agreement; 
and
    (3) That the presiding official's certification of the findings and 
agreement shall constitute dismissal of the appeal and final agency 
action.
    (c) Submission. Before the expiration of the time granted for 
negotiations, the parties or their authorized representatives may:
    (1) Submit to the presiding official a proposed agreement containing 
consent findings and an order;
    (2) Notify the presiding official that the parties have reached a 
full settlement and have agreed to dismissal of the action, subject to 
compliance with the terms of the settlement; or
    (3) Inform the presiding official that agreement cannot be reached.
    (d) Disposition. In the event a settlement agreement containing 
consent findings and an order is submitted within the time granted, the 
presiding official shall certify such findings and agreement within 
thirty (30) days after his or her receipt of the submission. Such 
certification shall constitute dismissal of the appeal and final agency 
action.

[[Page 733]]



Sec. 577.12  Intervention.

    (a) Persons other than the respondent may be permitted to 
participate as parties if the presiding official finds that:
    (1) The final decision could directly and adversely affect them or 
the class they represent;
    (2) They may contribute materially to the disposition of the 
proceedings;
    (3) Their interest is not adequately represented by existing 
parties; and
    (4) Intervention would not unfairly prejudice existing parties or 
delay resolution of the proceeding.
    (b) If a tribe has jurisdiction over lands on which there is a 
gaming operation that is the subject of a proceeding under this part, 
and the tribe is not already a named party, such tribe may intervene as 
a matter of right.
    (c) A person not named as a party and who wishes to participate as a 
party under this section shall submit a petition to the presiding 
official within ten (10) days after the person knew or should have known 
about the proceeding. The petition shall be filed with the presiding 
official and served on each person who has been made a part at the time 
of filing. The petition shall state concisely:
    (1) Petitioner's interest in the proceeding;
    (2) How his or her participation as a party will contribute 
materially to the disposition of the proceeding;
    (3) Who will appear for petitioner;
    (4) The issues on which petitioner wishes to participate; and
    (5) Whether petitioner wishes to present witnesses.
    (d) Objections to the petition may be filed by any party within ten 
(10) days after service of the petition.
    (e) When petitions to participate as parties are made by individuals 
or groups with common interests, the presiding official may request all 
such petitioners to designate a single representative, or he or she may 
recognize one or more petitioners.
    (f) The presiding official shall give each petitioner, as well as 
the parties, written notice of the presiding official's decision on the 
petition. For each petition granted, the presiding official shall 
provide a brief statement of the basis of the decision. If the petition 
is denied, the presiding official shall briefly state the grounds for 
denial and may then treat the petition as a request for participation as 
amicus curiae (that is, ``friend of the court'').



Sec. 577.13  Transcript of hearing.

    Hearings under this part that involve oral presentations shall be 
recorded verbatim and transcripts thereof shall be provided to parties 
upon request. Fees for transcripts shall be at the actual cost of 
duplication.



Sec. 577.14  Recommended decision of presiding official.

    (a) Recommended decision. Within thirty (30) days after the record 
closes, the presiding official shall render his or her recommended 
decision. The recommended decision of the presiding official shall be 
based upon the whole record and shall include findings of fact and 
conclusions of law upon each material issue of fact or law presented on 
the record.
    (b) Filing of objections. Within ten (10) days after the date of 
service of the presiding official's recommended decision, the parties 
may file with the Commission objections to any aspect of the decision, 
and the reasons therefor.



Sec. 577.15  Review by Commission.

    The Commission shall affirm or reverse, in whole or in part, the 
recommended decision of the presiding official by a majority vote within 
thirty (30) days after the date on which the presiding official issued 
the decision. The Commission shall provide a notice and order to all 
parties stating the reasons for its action. In the absence of a majority 
vote by the Commission within the time provided by this section, the 
recommended decision of the presiding official shall be deemed affirmed 
except that, if the subject of the appeal is an order of temporary 
closure issued under Sec. 573.6 of this chapter, the order of temporary 
closure shall be dissolved.



PARTS 578--579--[RESERVED]




[[Page 734]]



                        SUBCHAPTER H--[RESERVED]





PARTS 580-589--[RESERVED]






                        SUBCHAPTER I--[RESERVED]





PARTS 590-599--[RESERVED]




[[Page 735]]



            CHAPTER IV--THE OFFICE OF NAVAJO AND HOPI INDIAN






                               RELOCATION




  --------------------------------------------------------------------
Part                                                                Page
700             Commission operations and relocation 
                    procedures..............................         736
720             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Navajo and 
                    Hopi Indian Relocation Commission.......         813
721-899   [Reserved]

[[Page 736]]



PART 700--COMMISSION OPERATIONS AND RELOCATION PROCEDURES--Table of Contents




              Subpart A--General Policies and Instructions

Sec.
700.1  Purpose.
700.3  Assurances with respect to acquisition and displacement.
700.5  Supersedure of regulations.
700.11  Manner of notice.
700.13  Waiver of regulations.
700.15  Waiver of rights by owner.

                               Definitions

700.31  Applicability of definitions.
700.33  Act (The Act).
700.35  Applicant.
700.37  Application for relocation assistance benefits and agreement to 
          move.
700.39  Appraisal.
700.41  Appraiser.
700.43  Assistance payment.
700.45  Business.
700.47  Commission.
700.49  Certified eligible head of household.
700.51  Custodial parent.
700.53  Dwelling, replacement.
700.55  Decent, safe, and sanitary dwelling.
700.57  Dependent.
700.59  Displaced person.
700.61  Fair market value.
700.65  Farm operation.
700.67  Habitation.
700.69  Head of household.
700.71  Improvements.
700.77  Livestock.
700.79  Marriage.
700.81  Monthly housing cost.
700.83  Nonprofit organization.
700.85  Owner.
700.87  Person.
700.89  Relocation contract.
700.91  Relocation report.
700.93  Relocation plan.
700.95  Replacement housing funds.
700.97  Residence.
700.99  Salvage value.
700.101  Single person.
700.103  Uniform Act.
700.105  Utility charges.

 Subpart B--Acquisition and Disposal of Habitations and/or Improvements

700.111  Applicability of acquisition requirements.
700.113  Basic acquisition policies.
700.115  Preliminary acquisition notice.
700.117  Criteria for appraisals.
700.119  Establishment of fair market value.
700.121  Statement of the basis for the determination of fair market 
          value.
700.123  Expenses incidental to transfer of ownership to the Commission.
700.125  Disposal of property.
700.127  Payments for acquisition of improvements.

               Subpart C--General Relocation Requirements

700.131  Purpose and applicability.
700.133  Notice of displacement.
700.135  Relocation assistance advisory services.
700.137  Final date for voluntary relocation application.
700.138  Persons who have not applied for voluntary relocation by July 
          7, 1986.
700.139  Referral for action.
700.141  General requirements--claims for relocation payments.
700.143  Payments for divorced or separated relocatees.
700.145  Payments to estates.
700.147  Eligibility.

    Subpart D--Moving and Related Expenses, Temporary Emergency Moves

700.151  Eligibility.
700.153  Actual reasonable moving and related expenses--residential 
          moves.
700.155  Expenses in searching for replacement dwelling--residential 
          move.
700.157  Actual reasonable moving and related expenses--nonresidential 
          moves.
700.159  Payment for direct loss of personal property--nonresidential 
          moves.
700.161  Substitute personal property--nonresidential moves.
700.163  Expenses in searching for replacement locations--nonresidential 
          moves.
700.165  Ineligible moving and related expenses.
700.167  Moving and related expenses--fixed payment.
700.169  Fixed payment for moving expenses--residential moves.
700.171  Fixed payment for moving expenses--nonresidential moves.
700.173  Average net earnings of business or farm.
700.175  Temporary emergency moves.

                 Subpart E--Replacement Housing Payments

700.181  Eligibility.
700.183  Determination of replacement housing benefit.
700.187  Utilization of replacement home benefits.
700.189  Expenditure of replacement home benefits.

                     Subpart F--Incidental Expenses

700.195  General.

[[Page 737]]

700.197  Basic eligibility requirements.
700.199  Incidental expenses.

            Subpart G--Assistance Payments (Incentive Bonus)

700.205  Eligibility requirements.

               Subpart H--Last Resort Replacement Housing

700.209  Applicability.
700.211  Basic rights and rules.
700.213  Methods of providing last resort replacement housing.

                    Subpart I--Commission Operations

700.219  General.

                    Subpart J--Inspection of Records

700.235  Purpose and scope.
700.237  Definitions.
700.239  Records available.
700.241  Request for records.
700.243  Action on initial requests.
700.245  Time limits on processing of initial requests.
700.247  Appeals.
700.249  Action on appeals.
700.251  Fees.

                         Subpart K--Privacy Act

700.255  Purpose and scope.
700.257  Definitions.
700.259  Records subject to Privacy Act.
700.261  Standards for maintenance of records subject to the Act.
700.263  Assuring integrity of records.
700.265  Conduct of employees.
700.267  Disclosure of records.
700.269  Accounting for disclosures.
700.271  Requests for notification of existence of records: Submission.
700.273  Request for notification of existence of records: Action on.
700.275  Requests for access to records.
700.277  Requests for access to records: Submission.
700.279  Requests for access to records: Initial decision.
700.281  Requests for notification of existence of records and for 
          access to records: Appeals.
700.283  Requests for access to records: Special situations.
700.285  Amendment of records.
700.287  Petitions for amendment: Submission and form.
700.289  Petitions for amendment: Processing and initial decision.
700.291  Petitions for amendment: Time limits for processing.
700.293  Petitions for amendment: Appeals.
700.295  Petitions for amendment: Action on appeals.
700.297  Statements of disagreement.

  Subpart L--Determination of Eligibility, Hearing and Administrative 
                            Review (Appeals)

700.301  Definitions.
700.303  Initial Commission determinations.
700.305  Availability of hearings.
700.307  Request for hearings.
700.309  Presiding officers.
700.311  Hearing scheduling and documents.
700.313  Evidence and procedure.
700.315  Post-hearing briefs.
700.317  Presiding officer decisions.
700.319  Final agency action.
700.321  Direct appeal to Commissioners.

                      Subpart M--Life Estate Leases

700.331  Application for life estate leases.
700.333  Determination of disability.
700.335  Grouping and granting of applications for life estate leases.
700.337  Establishment of boundaries of life estate leases.
700.339  Residency on life estate leases.
700.341  Access to life estate leases.
700.343  Life estate leases.

                     Subpart N--Discretionary Funds

700.451  Purpose.
700.453  Definitions.
700.455  Financial assistance.
700.457  Assistance to match or pay 30% of grants, contracts or other 
          expenditures.
700.459  Assistance for demonstration projects and for provision of 
          related facilities and services.
700.461  Method for soliciting applications.
700.463  Requirements for applications.
700.465  Technical feasibility.
700.467  Construction costs.
700.469  Unallowable program and project costs.
700.471  Review and approval.
700.473  Administrative expenditures of the Commission.
700.475  Reports.
700.477  Administration of financial assistance and recordkeeping 
          requirements.
700.479  Administrative review.

             Subpart O--Employee Responsibility and Conduct

700.501  Statement of purpose.
700.503  Definitions.
700.505  Coverage.
700.507  Responsibilities.
700.509  Duties of the designated agency ethics official.
700.511  Statements of employment and financial interests.
700.513  Business dealings on behalf of the government.

[[Page 738]]

700.515  Conflicts of interest.
700.517  Affiliations and financial interests.
700.519  Gifts, entertainment and favors.
700.521  Outside work and interests.
700.523  Business relationships among employees.
700.525  Use of government information or expertise.
700.527  Endorsements.
700.529  Negotiations for employment.
700.531  Government property.
700.533  Restrictions affecting travel and travel expense reimbursement.
700.535  Nepotism.
700.537  Indebtedness.
700.539  Soliciting contributions.
700.541  Fraud or false statement in a Government matter.
700.543  Gambling.
700.545  Alcoholism and drug abuse.
700.547  Consuming intoxicants on Government premises or during duty 
          hours.
700.549  Employee organizations.
700.551  Franking privilege and official stationery.
700.553  Use of official titles.
700.555  Notary services.
700.557  Political activity.
700.559  Equal opportunity.
700.561  Sexual harassment.
700.563  Statutory restrictions from 18 U.S.C. 207, which are applicable 
          to former Government employees.
700.565  Miscellaneous statutory provisions.

                  Subpart P--Hopi Reservation Evictees

700.601  Definitions.
700.603  Eligibility.
700.605  Relocation assistance.
700.607  Dual eligibility.
700.609  Appeals.
700.611  Application deadline.

                      Subpart Q--New Lands Grazing

700.701  Definitions.
700.703  Authority.
700.705  Objectives.
700.707  Regulations; scope.
700.709  Grazing privileges.
700.711  Grazing permits.
700.713  Tenure of grazing permits.
700.715  Assignment, modification, and cancellation of grazing permits.
700.717  Stocking rate.
700.719  Establishment of grazing fees.
700.721  Range management plans.
700.722  Grazing associations.
700.723  Control of livestock disease and parasites.
700.725  Livestock trespass.
700.727  Impoundment and disposal of unauthorized livestock.
700.729  Amendments.
700.731  Appeals.

            Subpart R--Protection of Archaeological Resources

700.801  Purpose.
700.803  Authority.
700.805  Definitions.
700.807  Prohibited acts.
700.809  Permit requirements and exceptions.
700.811  Application for permits and information collection.
700.813  Notification to Indian Tribes of possible harm to, or 
          destruction of, sites on the New Lands having religious or 
          cultural importance.
700.815  Issuance of permits.
700.817  Terms and conditions of permits.
700.819  Suspension and revocation of permits.
700.821  Appeals relating to permits.
700.823  Relationship to section 106 of the National Historic 
          Preservation Act.
700.825  Custody of archaeological resources.
700.827  Determination of archaeological or commercial value and cost of 
          restoration and repair.
700.829  Assessment of civil penalties.
700.831  Civil penalty amounts.
700.833  Other penalties and rewards.
700.835  Confidentiality of archaeological resource information.
700.837  Report.
700.839  Permitting procedures for Navajo Nation lands.

    Authority: Pub. L. 99-590; Pub. L. 93-531, 88 Stat. 1712 as amended 
by Pub. L. 96-305, 94 Stat. 929, Pub. L. 100-666, 102 Stat. 3929 (25 
U.S.C. 640d).

    Source: 47 FR 2092, Jan. 14, 1982, unless otherwise noted.



              Subpart A--General Policies and Instructions



Sec. 700.1  Purpose.

    The purpose of this part is to implement provisions of the Act of 
December 22, 1974 (Pub. L. 93-531, 88 Stat. 1712 as amended by Pub. L. 
96-305, 94 Stat. 929), hereinafter referred to as the Act, in accordance 
with the following objectives--
    (a) To insure that persons displaced as a result of the Act are 
treated fairly, consistently, and equitably so that these persons will 
not suffer the disproportionate adverse, social, economic, cultural and 
other impacts of relocation.
    (b) To set forth the regulations and procedures by which the 
Commission shall operate; and implement the provisions of the Act.

[[Page 739]]

    (c) To establish standards consistent with those established in the 
implementation of the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 (84 Stat. 1894, 42 U.S.C. 4601 et. 
seq., Pub. L. 91-646), hereinafter referred to as the Uniform Act.
    (d) To insure that owners of habitations and other improvements to 
be acquired pursuant to the Act are treated fairly and consistently, to 
encourage and expedite acquisition by agreements with such owners, to 
minimize litigation, relieve congestion in the courts and to promote 
public confidence in the Commission's relocation program.
    (e) To facilitate development of a relocation plan according to the 
Act and carry out the directed relocation as promptly and fairly as 
possible, with a minimum of hardship and discomfort to the relocation, 
in accordance with the Act.



Sec. 700.3  Assurances with respect to acquisition and displacement.

    The Commission will not approve any programs or projects which may 
result in the acquisition of habitations and/or improvements, or in the 
displacement of any person, until such time as written assurances are 
submitted to the Commission that such projects or programs are in 
accordance with the Act. It will--
    (a) Assure that, within a reasonable period of time prior to 
displacement, adequate, decent, safe and sanitary replacement dwellings 
(defined at Sec. 700.55) will be available to all certified eligible 
heads of households.
    (b) Carry out relocation services in a manner that will promote 
maximum quality in housing.
    (c) Inform affected persons of their rights under the policies and 
procedures set forth under the regulations in this part.



Sec. 700.5  Supersedure of regulations.

    These regulations supersede the regulations formerly appearing in 
this part. However, any acquisition of property or displacement of a 
person occurring prior to the effective date of these regulations shall 
continue to be governed by the regulations at 25 CFR part 700 in effect 
at the time of the acquisition or displacement.



Sec. 700.11  Manner of notice.

    Each notice which the Commission is required to provide under these 
regulations shall be personally served, receipt documented, or sent by 
certified or registered first-class mail, return receipt requested. Each 
notice shall be written in plain understandable language. Recipients who 
notify the Commission that they are unable to read and understand the 
notice will be provided with appropriate translation and counseling. 
Each notice shall indicate the name and telephone number of a person who 
may be contacted for answers to questions or other needed help.



Sec. 700.13  Waiver of regulations.

    (a) Any time limit specified for the filing of a claim or an appeal 
under the regulations in this part may, on a case by case basis, be 
extended by the Commission.
    (b) The Commission may waive any requirement of these regulations in 
this part if such requirement is not required by law and if the 
Commission finds such waiver or exception to be in the best interest of 
individual Indian applicants, the Commission, and the United States. Any 
request for a Commission waiver shall be submitted in writing to the 
Commission and shall be justified on a case by case basis.



Sec. 700.15  Waiver of rights by owner.

    Nothing in these regulations shall prevent a fully informed 
applicant from voluntarily waiving any of his/her rights under the 
regulations in this part. A waiver of rights shall in no way constitute 
an exemption from the requirement to relocate pursuant to the Act.

                               Definitions



Sec. 700.31  Applicability of definitions.

    Except where otherwise noted, the definitions appearing in this 
subpart A apply to the regulations in this part.



Sec. 700.33  Act (The Act).

    (a) The Act. The Act is Pub. L. 93-531, (88 Stat. 1712, 25 U.S.C. 
640d.) as amended by Pub. L. 96-305 (94 Stat. 929).

[[Page 740]]



Sec. 700.35  Applicant.

    A person who applies for relocation assistance benefits and agrees 
to relocate as required by the Act.



Sec. 700.37  Application for relocation assistance benefits and agreement to move.

    The application for relocation assistance benefits and agreement to 
move is Commission Form 69-R0001, completion of which is used for 
establishing the date upon which a person shall be deemed to have a 
contract with the Commission to relocate pursuant to section 14(b) of 
the Act.



Sec. 700.39  Appraisal.

    The appraisal is an estimate of the fair market value which is 
placed on the habitation and other improvements owned by a relocatee.



Sec. 700.41  Appraiser.

    An appraiser is a person appointed or hired by the Commission to 
make an appraisal of the habitation and other improvements on the land 
owned by the relocatees. All compensation for the appraiser shall be 
paid by the Commission.



Sec. 700.43  Assistance payment.

    An assistance payment is the additional payment made to the 
certified eligible head of household pursuant to section 14(b) of the 
Act. This term is synonymous with ``incentive bonus''.



Sec. 700.45  Business.

    The term business means any lawful activity, except a nonprofit 
organization or a farm operation, that is--
    (a) Conducted primarily for the purchase, sale, lease and or rental 
of personal and/or real property, and/or for the manufacture, 
processing, and/or marketing of products, commodities, and/or any other 
personal property; or
    (b) Conducted primarily for the sale of services to the public; or
    (c) Solely for the purpose of Subpart D of this part, conducted 
primarily for outdoor advertising display purposes, when the display(s) 
must be moved as a result of the Act.



Sec. 700.47  Commission.

    The Navajo and Hopi Indian Relocation Commission is that entity 
established pursuant to 25 U.S.C. 640d-11 (Section 12(a) of the Act).



Sec. 700.49  Certified eligible head of household.

    A certified eligible head of household is a person who has received 
notice from the Commission that he/she has been certified as eligible to 
receive certain relocation assistance benefits.



Sec. 700.51  Custodial parent.

    A custodial parent is a person who has the immediate personal care, 
charge, and control of a minor child who resides in his/her household, 
or a person who fills the parental role but who is not necessarily 
blood-related.



Sec. 700.53  Dwelling, replacement.

    The term replacement dwelling means a dwelling selected by the head 
of a household as a replacement dwelling that meets the criteria of this 
section. A replacement dwelling is a dwelling that:
    (a) Is decent, safe, and sanitary as described in Sec. 700.55.
    (b) May include existing dwellings for resale, new construction, 
modular homes, mobile homes, mutual self-help housing or other federally 
assisted housing programs.
    (c) Is in an area not subjected to unreasonable adverse 
environmental conditions from either natural or man-made sources and in 
an area not generally less desirable than that of the acquired dwelling 
with respect to public utilities, public and commercial facilities, and 
schools.
    (d) Is available at a purchase price within the ability-to-pay of 
the displaced person. A replacement dwelling shall be considered within 
the ability-to-pay of the displaced person if, after he receives a 
replacement housing payment and any available housing assistance 
payments, his new monthly housing cost (defined at Sec. 700.81) for the 
replacement dwelling does not exceed twenty-five percent (25%) of the 
monthly gross income of all adult members of the household, including

[[Page 741]]

supplemental income payments received from public agencies. If the 
person's monthly income pattern is irregular, the Commission shall base 
its determination of average gross monthly income on the period of time, 
actual and/or projected, that most fairly and equitable represents the 
person's ability-to-pay.
    (e) Is actually available to the displaced person on the private 
market, other federally sponsored housing projects, tribal-sponsored 
housing projects and/or Commission-sponsored housing projects.



Sec. 700.55  Decent, safe, and sanitary dwelling.

    (a) General. The term decent, safe, and sanitary dwelling means a 
dwelling which--
    (1) Meets applicable federal, state and local housing and occupancy 
codes; including but not limited to the Uniform Building Code, National 
Electrical Code, ICBO Plumbing Code, the Uniform Mechanical Code, HUD 
Minimum Property Standards, and HUD Mobile Home Construction and Safety 
Standards (24 CFR part 4080).
    (2) Is structurally sound, clean, weathertight and in good repair 
and has adequate living space and number of rooms.
    (3) Has an adequate and safe electrical wiring system for lighting 
and other electrical services where economically feasible.
    (4) Meets the requirements of the HUD lead-based paint regulations 
(24 CFR part 42) issued under the Lead-Based Paint Poisoning Prevention 
Act (42 U.S.C. 4831 et seq.);
    (5) In the case of a physically handicapped person, is free of any 
architectural barriers. To the extent that standards prescribed by the 
American National Standards Institute, Inc., in publication ANSI A117.1-
1961 (R 1971), are pertinent, this provision will be considered met if 
it meets those standards;
    (6) Has heating as required by climatic conditions;
    (7) Has habitable sleeping area that is adequately ventilated and 
sufficient to accommodate the occupants;
    (8) Has a separate well-lighted and ventilated bathroom, affording 
privacy to the user, that contains a sink and bathtub or shower stall, 
properly connected to hot and cold water, and a flush toilet, all in 
good working order and properly connected to a sewage drainage system; 
and
    (9) In the case of new construction or modular housing, complies 
with the energy performance standards for new buildings set forth by the 
U.S. Department of Energy.
    (10) The Commission may waive paragraph (a)(3) or (8) of this 
section on a case-by-case basis if it is determined that it is in the 
best interest of the individual relocatee to do so.



Sec. 700.57  Dependent.

    A dependent is a person who either derives more than one-half of 
his/her support from another or is under the custody, control and care 
of another. In instances where there are conflicting claims for the 
dependent status of a person in more than one household, the household 
of the person having custody, control and care shall be determined to be 
the household wherein the person is a dependent.



Sec. 700.59  Displaced person.

    Displaced person means a member of the Hopi Tribe residing within 
the area partitioned to the Navajo Tribe or a member of the Navajo Tribe 
residing within the area partitioned to the Hopi Tribe who must be 
relocated pursuant to the Act. This term is synonymous with the term 
``relocatee''.



Sec. 700.61  Fair market value.

    Fair market value shall mean the value placed on the habitation and 
improvements owned by each head of household as determined pursuant to 
Secs. 700.117 through 700.121.



Sec. 700.65  Farm operation.

    Farm operation means any activity conducted for the production of 
one or more agricultural products or commodities including livestock, 
crops and timber for sale or home use, and customarily producing such 
products or commodities in sufficient quantity to be capable of 
contributing materially to the operator's support as determined in 
Sec. 700.171(b)(3).

[[Page 742]]



Sec. 700.67  Habitation.

    The term habitation means the dwelling(s) of each household required 
to relocate under the term of the Act.



Sec. 700.69  Head of household.

    (a) Household. A household is:
    (1) A group of two or more persons living together at a specific 
location who form a unit of permanent and domestic character.
    (2) A single person who at the time his/her residence on land 
partitioned to the Tribe of which he/she is not a member actually 
maintained and supported him/herself or was legally married and is now 
legally divorced.
    (b) Head of household. The head of household is that individual who 
speaks on behalf of the members of the household and who is designated 
by the household members to act as such.
    (c) In order to qualify as a head of household, the individual must 
have been a head of household as of the time he/she moved from the land 
partitioned to a tribe of which they were not a member.

[49 FR 22278, May 29, 1984]



Sec. 700.71  Improvements.

    Improvements are structures and attached fixtures to the land owned 
by a member of a household required to relocate under the terms of the 
Act, in addition to the habitation which improvements cannot readily be 
moved without substantial damage, or whose movement would require 
unreasonable cost.



Sec. 700.77  Livestock.

    The term livestock shall mean all domesticated animals of every type 
owned by the displaced person.



Sec. 700.79  Marriage.

    Marriage is a legally recorded marriage or a traditional commitment 
between a man or woman recognized by the law of the Hopi Tribe or the 
Navajo Tribe.



Sec. 700.81  Monthly housing cost.

    (a) General. The term monthly housing cost for a replacement 
dwelling purchased by a certified eligible head of household is the 
average monthly cost for all mortgage payments, real property taxes, 
reasonable utility charges, and insurance.
    (b) Computation of monthly housing cost for replacement dwelling. A 
person's monthly housing cost for a replacement dwelling shall be a 
projected amount that includes one-twelfth of the estimated reasonable 
annual cost for utility charges.



Sec. 700.83  Nonprofit organization.

    The term nonprofit organization means a corporation, individual, or 
other public or private entity that is engaged in a lawful business, 
professional, or instructional activity on a nonprofit basis and that 
has established its nonprofit status under applicable Federal, State, or 
Tribal law.



Sec. 700.85  Owner.

    The term owner means the person who holds any interest in 
habitations and improvements to be acquired by the Commission pursuant 
to section 15(a) of the Act, which the Commission determines warrants 
consideration of ownership.



Sec. 700.87  Person.

    The term person means any individual, partnership, corporation, or 
association.



Sec. 700.89  Relocation contract.

    The Relocation Contract is that contract signed by the head of 
household in which he/she agrees to purchase an existing house or to 
construct a new house, the owner of such existing house or the builder 
of the proposed new house agrees to sell or perform the construction, 
and the Commission agrees to make payments according to such agreement.

[47 FR 17988, Apr. 27, 1982]



Sec. 700.91  Relocation report.

    The relocation report shall be the report prepared by the Commission 
and submitted to Congress pursuant to section 13(a) of the Act.

[[Page 743]]



Sec. 700.93  Relocation plan.

    The relocation plan shall be the plan prepared by the Commission and 
submitted to Congress pursuant to section 13(c) of the Act.



Sec. 700.95  Replacement housing funds.

    Replacement housing funds means those funds authorized to be 
appropriated pursuant to section 25(a)(1) of the Act.



Sec. 700.97  Residence.

    (a) Residence is established by proving that the head of household 
and/or his/her immediate family were legal residents as of December 22, 
1974, of the lands partitioned to the Tribe of which they are not 
members.

[49 FR 22278, May 29, 1984]



Sec. 700.99  Salvage value.

    Salvage value means the probable sale price of an item, if offered 
for sale on the condition that it will be removed from the property at 
the buyer's expense, allowing a reasonable period of time to find a 
person buying with knowledge of the uses and purposes for which it is 
adaptable and capable of being used, including separate use of 
serviceable components and scrap when there is no reasonable prospect of 
sale except on that basis.



Sec. 700.101  Single person.

    A single person is a widow, widower, unmarried or divorced person.



Sec. 700.103  Uniform Act.

    The term Uniform Act means the Uniform Relocation Assistance and 
Real Property Acquisition Policies Act of 1970 (84 Stat. 1894; 42 U.S.C. 
4601 et seq.; Pub. L. 91-646).



Sec. 700.105  Utility charges.

    Utility charges means the cost for heat, lighting, hot water, 
electricity, natural gas, butane, propane, wood, coal or other fuels 
water, sewer and trash removal.



 Subpart B--Acquisition and Disposal of Habitations and/or Improvements



Sec. 700.111  Applicability of acquisition requirements.

    General. The requirements of this subpart B apply to all Commission 
acquisition of habitations and/or improvements that occur on or after 
the effective date of these regulations.



Sec. 700.113  Basic acquisition policies.

    (a) Appraisal and invitation to owner. Before the initiation of 
negotiations, the Commission shall have the habitations and/or 
improvements appraised to its satisfaction and will attempt to assure 
that the owner or his designated representative is contacted in advance 
of the appraisal(s) and given an opportunity to accompany each appraiser 
during the appraiser's inspection of the property.
    (b) Determination and offer of fair market value. Before the 
initiation of negotiations, the Commission shall establish an amount 
which it believes is fair market value for improvements. This amount 
shall be based on a current appraisal at the time negotations commence 
for the Relocation Contract between the NHIRC and the relocatee. The 
appraisal will be adjusted according to the Boeckh Building Cost 
Modifier for time or any physical changes in the improvements. If any 
changes are necessary the appraisal will be corrected to reflect a 
current dollar value. The amount of the current appraisal will be 
offered as just compensation for the improvements acquired, except as 
provided in paragraph (d) of this section. A copy of the initial 
appraisal will be sent to the owner as soon as possible after the 
appraisal program is completed.
    (c) Basic negotiation procedures. The Commission will attempt to 
meet with the owner or his/her representative to discuss its offer to 
purchase his/her property including the basis for the determination of 
fair market value and explain acquisition policies and procedures, 
including payment of incidental

[[Page 744]]

expenses. The owner shall be given reasonable opportunity to present 
material which he/she believes is relevant to determining the value of 
the property and to suggest modification in the proposed terms and 
conditions of the purchase. The Commission shall consider the owner's 
presentation.
    (d) If the condition of the property indicates the need for a new 
appraisal or if a significant delay has occurred since the time of the 
latest appraisal of the property, the Commission shall have the 
appraisal updated or obtain a new appraisal. If a new appraisal is for a 
lesser value than the previous appraisal and said lesser value is due to 
damage done to the property during the time between the two appraisals, 
and such damage was not caused by the owner of the improvement, the 
owner shall be entitled to the higher appraisal value.
    (e) [Reserved]
    (f) Objection to determination of fair market value. If the owner 
objects to the Commission's determination of fair market value, the 
owner may request a hearing pursuant to the Commission's Hearing and 
Administrative Review procedures;
    (g) Payment before taking possession. Before requiring an owner to 
surrender possession of his habitations and/or improvements, the 
Commission shall--
    (1) Apply the agreed purchase price towards the acquisition price of 
the replacement dwelling or;
    (2) Deposit with the court in an appropriate proceeding, such as 
divorce or probate, for the benefit of the owner, an amount not less 
than the Commission's determination of fair market value for the 
property or the court award of compensation for the property up to the 
maximum benefit allowed under the then existing replacement housing 
benefit.



Sec. 700.115  Preliminary acquisition notice.

    As soon as feasible in the acquisition process, the Commission shall 
issue a preliminary acquisition notice to the owner. The notice shall--
    (a) Inform the owner of the Commission's interest in acquiring his/
her habitations and/or improvements.
    (b) Explain that such preliminary acquisition notice is not a notice 
to vacate and that it does not establish eligibility for relocation 
payments or other relocation assistance under these regulations.



Sec. 700.117  Criteria for appraisals.

    (a) Appraisal standards. The Commission's appraisals shall be based 
upon nationally recognized appraisal standards and techniques to the 
extent that such principles are consistent with the concepts of value 
that the Commission may establish.
    (b) Documentation. Appraisal reports must contain sufficient 
documentation, including supporting valuation data and the appraiser's 
analyses of that data, to demonstrate the reasonableness of the 
appraiser's opinion(s) of value.
    (c) Conflict of interest. No appraiser shall have any interest, 
direct or indirect, in the habitations and/or improvements which he 
appraisers for the Commission that would in any way conflict with his 
performance of the appraisal.



Sec. 700.119  Establishment of fair market value.

    (a) General. The Commission shall establish the amount of fair 
market value to be offered to the owner for the habitations and/or 
improvements. Such amount shall not be less than--
    (1) The appraiser's recommendations as to the fair market value of 
the habitations and/or improvements; or
    (2) The fair market value estimate set forth in the agency's 
approved appraisal, if the property is valued at $2,000 or less.
    (b) Owner retention of improvements. If the owner of a habitation 
and/or improvement is permitted to retain it for removal off-site, the 
amount determined to be just compensation for the interest in 
habitations and/or improvements to be acquired from him shall not be 
less than the amount determined by subtracting the salvage value of the 
improvements he retains for off-site removal from the amount determined 
to be fair market value for his entire interest in the habitation and 
improvement. Retention of improvements by the owner shall not change, 
alter or abrogate the requirement of

[[Page 745]]

the Act that the owner must move from land partitioned to the tribe of 
which he/she is not a member.



Sec. 700.121  Statement of the basis for the determination of fair market value.

    At the time of the initiation of negotiations to acquire the 
habitations and/or improvements, the Commission shall furnish the owner, 
along with the initial written purchase offer, a written statement of 
the basis for the determination of fair market value. To the extent 
permitted by the Commission, the statement shall include the following--
    (a) A description and location identification of the habitations 
and/or improvements to be acquired.
    (b) An inventory identifying the buildings, structures, fixtures, 
and other improvements, including appurtenant removable building 
equipment, which are considered to be part of the habitations and/or 
improvements for which the offer of fair market value is made.
    (c) A recital of the amount of the offer and a declaration that such 
amount--
    (1) Is the full amount believed by the Commission to be just 
compensation for the property and is not less than the fair market value 
of the property as determined on the basis of the appraisal(s);
    (2) Does not reflect any relocation payments or other relocation 
assistance which the owner is entitled to receive.
    (d) If only a portion of a habitation and/or improvement is to be 
acquired, an apportionment of the total estimated just compensation for 
the partial acquisition will be made. In the event that the Commission 
determines that partial acquisitions are necessary, all portions so 
acquired will be acquired simultaneously.



Sec. 700.123  Expenses incidental to transfer of ownership to the Commission.

    Eligible costs. The Commission shall reimburse the owner for 
reasonable expenses he/she necessarily incurred incidental to the 
transfer of habitations and/or improvements to the Commission. The 
Commission is not required to pay costs solely required to perfect the 
owner's interest in the habitations and/or improvements.



Sec. 700.125  Disposal of property.

    Property acquired by the Commission pursuant to the Act shall be 
disposed of in one of the following manners:
    (a) If the Commission determines that the property acquired 
constitutes a substantial risk to public health and safety, the 
Commission may remove or destroy the property.
    (b) The Commission may transfer the property acquired by gratuitous 
conveyance to the tribe exercising jurisdiction over the area. Notice of 
such transfer shall be in writing and shall be completed within sixty 
(60) days from the finalization of all property acquisition procedures, 
unless the tribe notifies the Commission in writing within that time 
that the property transfer is refused. In the event of a refusal by the 
tribe, the Commission shall remove the property.



Sec. 700.127  Payments for acquisition of improvements.

    Payments for acquisition of improvements shall be made in the 
following situations:
    (a) To individuals who have been denied benefits under these rules 
and who can prove ownership of habitations and improvements on land 
partitioned to the tribe of which they are not members. If the owner is 
deceased the payment shall be made to his or her estate. Payments under 
this subsection are further limited by 25 U.S.C. 640d-14(c), Pub. L. 93-
531, sec. 15(c).
    (b) To individuals who have been certified as eligible for 
relocation benefits but who at the time of certification, own a decent, 
safe and sanitary dwelling as determined by the Commission pursuant to 
Sec. 700.187 and who own habitation and improvements on land partitioned 
to the tribe of which they are not members.

Ownership shall be determined on the basis of Commission appraisal 
records at the time of the initial eligibility determination.

(25 U.S.C. 640d, Pub. L. 93-531, 25 U.S.C. 640d-14, Pub. L. 96-305)

[49 FR 35379, Sept. 7, 1984]

[[Page 746]]



               Subpart C--General Relocation Requirements



Sec. 700.131  Purpose and applicability.

    This subpart prescribes general requirements governing the provision 
of relocation payments and other relocation assistance under the 
regulations in this part. The relocation requirements of the regulations 
in this part apply to the relocation of any displaced person.



Sec. 700.133  Notice of displacement.

    After the Commission's Relocation Report and Plan is in effect 
pursuant to the Act, the Commission shall issue a preliminary relocation 
notice to each person identified by the Commission as potentially 
subject to relocation. This notice shall--
    (a) Be published in a newspaper of general circulation in the area 
of the former Joint Use Area at least two times, and shall be sent to 
each Chapter House on the former Joint Use Area for posting.
    (b) Inform the person that he/she will be required to relocate 
permanently in the future unless the person has applied for and is 
determined to be eligible for a Life Estate.
    (c) Generally describe the relocation assistance program for which 
the person may become eligible, including the maximum allowable dollar 
amounts and basic conditions of eligibility for the payments.



Sec. 700.135  Relocation assistance advisory services.

    (a) General. The Commission may carry out a relocation assistance 
advisory program which offers the services described in paragraph (b) of 
this section. If the Commission determines that a person occupying 
habitations and/or improvements adjacent to the habitations and/or 
improvements acquired pursuant to the Act is caused substantial social, 
economic cultural or other injury because of such acquisition, it may 
offer such services to such person.
    (b) Services to be provided. The advisory program will include such 
measures, facilities, and services as may be necessary or appropriate in 
order to--
    (1) Personally interview where possible each certified eligible head 
of household to determine his/her relocation needs and preferences, and 
explain to him/her the relocation payments and other assistance for 
which he/she may be eligible, the related eligibility requirements, and 
the procedures for obtaining such payments and assistance;
    (2) Provide current and continuing information on the availability, 
purchase prices, and rental costs of replacement dwellings and 
commercial and farm properties and locations, as the case may be.
    (3) Assure that replacement dwellings are available to all certified 
eligible heads of households.
    (4) Assist any persons displaced from a business or farm operation 
to obtain and become established in a suitable replacement location;
    (5) Supply persons to be displaced with appropriate information 
concerning Tribal, Federal, State or local housing programs, disaster 
loans and other programs administered by the Small Business 
Administration, and other Federal or State programs offering assistance 
to persons to be displaced;
    (6) Endeavor to minimize the adverse social, economic, cultural and 
other hardships and impacts of relocation on persons involved in 
adjusting to such relocation.
    (c) Coordination of relocation activities. The Commission shall, to 
the maximum extent feasible, coordinate its relocation assistance 
advisory services activities with existing local, state, federal and 
Tribal agencies to the extent necessary to enable it to carry out its 
program. Referrals of displaced persons for services to existing 
services providers will be utilized whenever possible.
    (d) Policy. The Commission shall continue to provide assistance to a 
family, individual, business concern, non-profit organization, or farm 
operation until relocation has been achieved unless section Sec. 700.139 
becomes applicable.
    (e) Reasons for terminating assistance. In general, the 
circumstances under which the Commission's relocation obligations cease 
are the following:

[[Page 747]]

    (1) Two years have elapsed since the family or individual has moved 
to a decent, safe and sanitary replacement dwelling and has received all 
assistance payments to which entitled.
    (2) All reasonable efforts to trace a family or individual have 
failed.
    (3) The family or individual on his/her own initiative moves to 
substandard housing and has refused reasonable offers of additional 
assistance in moving to a decent, safe and sanitary replacement 
dwelling.
    (4) The business concern, farm operation, or non-profit organization 
has received all assistance and payments to which it is entitled, and 
has either been successfully relocated or ceased operations.
    (5) Other relevant reasons as determined by the Commission.



Sec. 700.137  Final date for voluntary relocation application.

    (a) In order to be considered for voluntary relocation assistance 
benefits, an applicant must have filed a completed application form with 
the Commission by the close of business on July 7, 1986.
    (b) To qualify for relocation assistance, individuals must meet the 
eligibility requirements as of July 7, 1986.

[51 FR 19170, May 28, 1986]



Sec. 700.138  Persons who have not applied for voluntary relocation by July 7, 1986.

    (a) Pursuant to 25 U.S.C. 640d-14 (d)(3) heads-of-household who do 
not make timely arrangements for relocation by filing an application by 
July 7, 1986, shall be provided a replacement home by the Commission. To 
be eligible for benefits (Housing and Moving Expenses), such persons 
must be, as of July 7, 1986, physically residing full time on land 
partitioned to a tribe of which they are not members and they must also 
otherwise meet all other current eligibility criteria.
    (b) The Commission shall utilize amounts payable with respect to 
such households pursuant to 25 U.S.C. 640d-14(b)(2) and 25 U.S.C. 640d-
34(a) for the construction or acquisition of a home and related 
facilities for such households.
    (c) Persons identified by the Commission as potentially subject to 
relocation who have not applied for relocation assistance shall be 
contacted by the Commission as soon as practicable after July 7, 1986. 
At such time, the Commission shall--
    (1) Request that the head-of-household choose an available area for 
relocation, and contract with the Commission for relocation; and
    (2) Offer the relocatee suitable housing; and
    (3) Offer to purchase from the head-of-household the habitation and 
improvements; and
    (4) Offer provisions for the head-of-household and his family to be 
moved (e.g., moving expenses, etc.).
    (d) If a person so identified fails to agree to move after the 
actions outlined in this section are taken by the Commission and 
suitable housing is available (or sufficient funds are available to 
assure the relocation assistance to which the relocatee may be 
entitled), the Commission will issue a ninety-day notice stating the 
date by which the person will be required to vacate the area partitioned 
to the Tribe of which he is not a member.

[51 FR 19170, May 28, 1986]



Sec. 700.139  Referral for action.

    Upon the expiration of all notice periods and upon the failure or 
refusal of any relocatees to make timely arrangements to move, the 
Commission shall forward the names and addresses of such relocatees to 
the Secretary of the Interior and to the U.S. Attorney for the District 
of Arizona for such action as they deem appropriate. The Commission will 
assure the availability of relocation assistance to which the relocatees 
may be entitled.



Sec. 700.141  General requirements--claims for relocation payments.

    (a) Documentation. Any claim for a relocation payment under subpart 
D, E, F, G, or H of this part shall be submitted to the Commission on 
the appropriate Commission form and supported by such documentation as 
may reasonably be required by the Commission to demonstrate expenses 
incurred, such as bills and receipts.

[[Page 748]]

    (b) Time for filing. All claims for a relocation payment shall be 
filed with the Commission within sixty (60) days after the family 
occupies the replacement home unless this time period is extended by the 
Commission.
    (c) Direct payment of claim. Relocation payments shall be made in 
accordance with the terms of the Relocation Contracts and are not 
subject to claims of creditors or assignments.



Sec. 700.143  Payments for divorced or separated relocatees.

    General. The following considerations apply to certified eligible 
heads of household who are legally separated or divorced and intend to 
establish separate eligibility.
    (a) Determination of benefits. Eligibility for relocation benefits 
is determined as of the time that the Relocation Contract is signed.
    (1) If the divorce or separation took place before benefits were 
first applied for, the spouse who vacated the habitation will not be 
eligibile for benefits and all relocation benefits will accrue to the 
spouse remaining in occupancy as head of the household remaining to be 
relocated.
    (2) If both husband and wife are in possession of the habitation at 
the time that benefits are first applied for, and are divorced or 
separated prior to signing of a Relocation Contract, both husband and 
wife may qualify separately for benefits if each meets the requirements 
of eligibility under these regulations.
    (3) If both husband and wife are in possession of the habitation at 
the time a Relocation Contract is signed but are divorced or separated 
prior to occupancy of the replacement dwelling, only one benefit will be 
paid to the household. Such benefits (including the assistance payment, 
moving expenses and replacement dwelling benefit) and the purchase price 
of the habitation and improvements may be prorated between husband and 
wife in such manner as they may agree in writing so long as such 
proration is consistent with the terms of the Relocation Contract. Such 
proration may also be made by a court of competent jurisdiction. In the 
absence of an agreement between the parties or a court order, any 
necessary prorations shall be made by the Commission.
    (b) For purposes of this section, a head of household shall be 
considered as married even though living apart from his or her spouse 
unless legally separated under a decree or separate maintenance.

[47 FR 17988, Apr. 27, 1982]



Sec. 700.145  Payments to estates.

    (a) Relocation benefits can be paid to the estate of a deceased 
Certified Eligible Head of Household under the following circumstances:
    (1) If there is no household requiring relocation pursuant to the 
Act surviving the deceased head of household:
    (i) Compensation for the habitation and other improvements owned by 
the deceased head of household and the cost of removing personal 
property from the acquired habitation and other improvements shall be 
paid to the estate of a deceased head of household, or as otherwise 
directed by a court of competent jurisdiction.
    (ii) No replacement housing benefit or assistance payment (bonus) 
shall be paid under this circumstance.
    (2) Replacement housing benefits may be paid to an estate only when 
a certified eligible head of household was qualified for such a housing 
payment pursuant to the Act and signed a Relocation Contract but died 
before the replacement housing was occupied. The estate of a certified 
eligible head of household who had not signed a Relocation Contract at 
the time of his/her death is not eligible for payment of a replacement 
housing benefit.
    (b) If one of a married couple who was a certified eligible head of 
household dies, the surviving spouse may be paid the same relocation 
assistance benefits, including replacement housing payments, which the 
couple would have received had death not occurred. If there is no 
surviving spouse, a court of competent jurisdiction may appoint a 
guardian to act for minor members of the household. The Commission shall 
deal with such guardian and any members of the household who have 
attained their majority in a manner to

[[Page 749]]

effect relocation of the remaining household under these regulations.

[47 FR 17988, Apr. 27, 1982]



Sec. 700.147  Eligibility.

    (a) To be eligible for services provided for under the Act, and 
these regulations, the head of household and/or immediate family must 
have been residents on December 22, 1974, of an area partitioned to the 
Tribe of which they were not members.
    (b) The burden of proving residence and head of household status is 
on the applicant.
    (c) Eligibility for benefits is further restricted by 25 U.S.C. 
640d-13(c) and 14(c).
    (d) Individuals are not entitled to receive separate benefits if it 
is determined that they are members of a household which has received 
benefits.
    (e) Relocation benefits are restricted to those who qualify as 
heads-of-household as of July 7, 1986.

[49 FR 22278, May 29, 1984, as amended at 51 FR 19170, May 28, 1986]



    Subpart D--Moving and Related Expenses, Temporary Emergency Moves



Sec. 700.151  Eligibility.

    (a) General. All certified eligible heads of household are eligible 
for moving and related expenses as prescribed in this subpart. A 
certified eligible head of household who lives on his/her business or 
farm property may be eligible for both a payment as a dwelling occupant 
and a payment with respect to the business or farm operation.
    (b) Least costly approach. The amount of payment for an eligible 
expense under this subpart shall not exceed the least costly method, as 
determined by the Commission, of accomplishing the objective of the 
payment without causing undue hardship to the certified eligible heads 
of household.
    (c) Prior approval. Written approval of the Commission must be 
obtained for all moving and search expenses in this subpart. Such 
approval shall be obtained by each certified eligible head of household 
prior to incurring any expense from the real estate specialist to whom 
the case is assigned. If prior approval and the amount thereof is not 
obtained from the Commission, the Commission thereafter will determine:
    (1) Whether the travel was required and the expenses reasonable and;
    (2) The amount of reimbursement to be paid, if any.



Sec. 700.153  Actual reasonable moving and related expenses--residential moves.

    Subject to the limitations contained in this subpart, a certified 
eligible head of household is entitled to actual reasonable expenses 
for--
    (a) Transportation computed at prevailing federal per diem and 
mileage allowance schedules, meals and lodging away from home required 
by the Commission.
    (b) Transportation computed at prevailing federal per diem and 
mileage allowance schedules of the household and personal property from 
the acquired site to the replacement site.
    (c) Packing, crating, unpacking and uncrating of the personal 
property.
    (d) Disconnecting, dismantling, removing, reassembling and 
reinstalling relocated household appliances, and other personal 
property;
    (e) Storage of the personal property, not to exceed one year unless 
extended by the Commission.
    (f) Insurance of the personal property in connection with the move 
and necessary storage; and
    (g) Other moving related expenses that are not listed as ineligible 
under Sec. 700.165, as the Commission determines to be reasonable and 
necessary.



Sec. 700.155  Expenses in searching for replacement dwelling--residential move.

    (a) A certified eligible head of household is entitled to actual 
reasonable expenses incurred in the search for a replacement dwelling.
    (b) Transportation, meals and lodging when required to be away from 
home by the Commission, computed at prevailing federal per diem and 
mileage allowance schedules.

[[Page 750]]



Sec. 700.157  Actual reasonable moving and related expenses--nonresidential moves.

    (a) Eligible costs. Subject to the limitations of Sec. 700.151(c) a 
certified eligible business, farm operation or nonprofit organization is 
entitled to payment for actual reasonable expenses for:
    (1) Transportation of personal property from the acquired site to 
the replacement site.
    (2) Packing, crating, unpacking, and uncrating the personal 
property.
    (3) Disconnecting, dismantling, removing, reassembling and 
installing relocated and substitute machinery, equipment, and other 
personal property. This includes connection to utilities available 
nearby and modifications necessary to adapt such property to the 
replacement structure or to the utilities or to adapt the utilities to 
the personal property;
    (4) Storage of the personal property;
    (5) Insurance of personal property in connection with the move and 
necessary storage;
    (6) Any license, permit or certification required by the displaced 
person, to the extent such cost is (i) necessary to its re-establishment 
at the replacement location and (ii) does not exceed either the cost for 
one year or for the remaining useful life of the existing license, 
permit, or certification, whichever is less;
    (7) Professional services, including architect's, attorney's and 
engineer's fees, and consultant's charges, necessary for (i) planning 
the move of the personal property, (ii) moving the personal property, or 
(iii) installing the relocation personal property at the replacement 
location.
    (8) Relettering signs and printing replacement stationery made 
obsolete as a result of the move;
    (9) Actual direct loss of personal property;
    (10) Purchase of substitute personal property;
    (11) Searching for a replacement location;
    (12) Other moving-related expenses that are not listed as ineligible 
under Sec. 700.165.
    (b) Self-move. If the displaced person self-moves his business, farm 
operation, or nonprofit organization, the Commission may approve a 
payment for his moving expenses in an amount not to exceed the lowest 
acceptable bid or estimate obtained by the Commission, without 
submission of documentation of moving expenses actually incurred.
    (c) Notification to Commission and inspection. To be eligible for a 
payment under this section, the displaced person shall permit the 
Commission to make reasonable and timely inspections of the personal 
property at the displacement and replacement sites.



Sec. 700.159  Payment for direct loss of personal property--nonresidential moves.

    (a) General. A certified eligible business is entitled to payment 
for actual direct loss of an item of tangible personal property incurred 
as a result of moving or discontinuing his business, farm operation, or 
nonprofit organization. The payment shall consist of the reasonable 
costs incurred in attempting to sell the item plus the less of--
    (1) The fair market value of the item for continued use at the 
acquired site, less the proceeds from its sale. (When payment for 
property loss is claimed for goods held for sale, the fair market value 
shall be based on the cost of the goods to the business, not the 
potential selling price); or
    (2) The estimated cost of moving the item, but with no allowance for 
storage. (If the business, farm operation or nonprofit organization is 
discontinued, the estimated cost shall be based on a moving distance of 
50 (fifty) miles.)
    (b) Advertising sign. The amount of a payment for direct loss of an 
advertising sign, which is personal property, shall be the lesser of--
    (1) The depreciated reproduction cost of the sign as determined by 
the Commission, less the proceeds from its sale; or
    (2) The estimated cost of moving the sign.
    (c) Sales effort. To be eligible for payment for direct loss of 
personal property, the claimant must make good faith effort to sell the 
personal property, unless the Commission determines that no such effort 
is necessary.

[[Page 751]]

    (d) Transfer of ownership. To be eligible for payment for direct 
loss of personal property, the claimant shall transfer to the Commission 
ownership of the unsold personal property.



Sec. 700.161  Substitute personal property--nonresidential moves.

    (a) General. If an item of personal property, which is used as part 
of a business, farm operation or nonprofit organization, is not moved 
but is promptly replaced with a comparable substitute item at the 
replacement site, the displaced person is entitled to payment of the 
lesser of--
    (1) The cost of the substitute item, including installation cost at 
the replacement site, minus any proceeds from the sale or trade-in of 
the replaced item, if any; or
    (2) The estimated cost of moving the replaced item, based on the 
lowest acceptable bid or estimate obtained by the Commission for 
eligible moving and related expenses, but with no allowance for storage.
    (b) Transfer of ownership. To be eligible for a payment under this 
section, the claimant shall transfer to the Commission ownership of the 
personal property that has not been sold or traded in.



Sec. 700.163  Expenses in searching for replacement location--nonresidential moves.

    A displaced business, farm or nonprofit organization is entitled to 
an amount not to exceed $500 (five-hundred dollars), as determined by 
the Commission, for actual reasonable expenses incurred in searching for 
a replacement location, including--
    (a) Transportation computed at prevailing federal per diem and 
mileage allowance schedules; meals and lodging away from home;
    (b) Time spent searching, based on reasonable earnings;
    (c) Fees paid to a real estate agent or broker to locate a 
replacement site.



Sec. 700.165  Ineligible moving and related expenses.

    A displaced person is not entitled to payment for--
    (a) The cost of moving any structure or other improvement in which 
the displaced person reserved ownership; or
    (b) Interest on a loan to cover moving expenses; or
    (c) Loss of goodwill; or
    (d) Loss of profits; or
    (e) Loss of trained employees; or
    (f) Physical changes at replacement location of business, farm or 
nonprofit organization, except as provided at Sec. 700.157; or
    (g) Any additional expense of a business, farm, or nonprofit 
organization incurred because of operating in a new location.



Sec. 700.167  Moving and related expenses--fixed payment.

    A displaced person (other than an outdoor advertising display 
business who is eligible for a payment for his actual moving and related 
expenses under subpart D of these regulations) is entitled to receive a 
fixed payment in lieu of a payment for such actual moving and related 
expenses.



Sec. 700.169  Fixed payment for moving expenses--residential moves.

    The fixed payment for moving and related expenses of a certified 
eligible head of household from a dwelling consists of--
    (a) A moving expense allowance not to exceed $300 (three hundred 
dollars).
    (b) A dislocation allowance of $200 (two hundred dollars).



Sec. 700.171  Fixed payment for moving expenses--nonresidential moves.

    (a) General. The fixed payment for moving and related expenses of a 
displaced business or farm operation that meets applicable requirements 
under this section is an amount equal to its average annual net earnings 
as computed in accordance with Sec. 700.173, but not less than $2,500 
nor more than $10,000. A nonprofit organization which meets the 
applicable requirements under this section is entitled to a payment of 
$2,500.
    (b) Business. A business qualifies for payment under this section if 
the Commission determines that--
    (1) The business cannot be relocated without a substantial loss of 
its existing patronage.

[[Page 752]]

    (2) The business is not part of a commercial enterprise having 
another establishment, which is not being acquired by the Commission, 
and which is under the same ownership and engaged in the same or similar 
business activities. For purposes of this rule, no remaining business 
facility which had average annual gross receipts of less than $1,000 and 
average annual net earnings of less than $500, during the two taxable 
years prior to displacement, shall be considered ``another 
establishment''; and
    (3) The business had (i) average annual gross receipts of at least 
$1,000 during the two taxable years prior to displacement, or (ii) 
average annual net earnings of at least $500 as determined in accordance 
with Sec. 700.173. However, the Commission may waive this test in any 
case in which it determines that its use would cause a substantial 
hardship.
    (c) Determining number of businesses acquired. In determining 
whether two or more legal entities, all of which have been acquired, 
constitute a single business, which is entitled to only one fixed 
payment, all pertinent factors shall be considered, including the extent 
to which--
    (1) The same premises and equipment are shared;
    (2) Substantially identical or interrelated business functions are 
carried out and business and financial affairs are commingled;
    (3) The entities are held out to the public, and to those 
customarily dealing with them, as one business, and
    (4) The same person or closely related persons own, control or 
manage the affairs of the entities.
    (d) Farm operation. A farm operation qualifies for a payment under 
this section if the Commission determines that it meets the criteria set 
forth in Sec. 700.171(b)(3). In the case of a partial acquisition, the 
fixed payment shall be made only if the Commission determines that--
    (1) The part acquired was a farm operation before the acquisition; 
or
    (2) The partial acquisition caused the operator to be displaced from 
the farm operation; or
    (3) The partial acquisition caused a substantial change in the 
nature of the farm operation.
    (e) Nonprofit organization. A nonprofit organization qualifies for a 
$2,500 payment under this section, if the Commission determines that 
it--
    (1) Cannot be relocated without a substantial loss of existing 
patronage (membership and clientele). A nonprofit organization is 
assumed to meet this test, unless the Commission demonstrates otherwise; 
and
    (2) Is not part of an enterprise having at least one other 
establishment engaged in the same or similar activity which is not being 
acquired by the Commission.



Sec. 700.173  Average net earnings of business or farm.

    (a) Computing net earnings. For purposes of this subpart, the 
average annual net earnings of a business or farm operation is one-half 
of its net earnings before Federal, State and local income taxes, during 
the two taxable years immediately prior to the taxable year in which it 
was displaced. However, if the business or farm was not in operation for 
the full two taxable years prior to displacement, net earnings shall be 
computed on the basis of the actual period of operation on the acquired 
site, projected to an annual rate. Also, average annual net earnings may 
be based upon a different period of time when the Commission determines 
it to be more equitable. Net earnings include any compensation obtained 
from the business or farm operation by its owner, his spouse, or 
dependents.
    (b) Documentation. A displaced person who elects to receive a fixed 
payment in lieu of actual expenses incurred in moving his business or 
farm shall furnish the Commission proof of his net earnings through 
income tax returns, certified financial statements or other reasonable 
evidence.



Sec. 700.175  Temporary emergency moves.

    (a) General. An eligible household may be granted temporary 
relocation resources, at the Commission's discretion, provided:

[[Page 753]]

    (1) That the move is for a limited time period not to exceed 12 
months unless extended by the Commission.
    (2) That permanent relocation resources are not available at the 
time of displacement.
    (3) Prior approval of the Commission is obtained.
    (4) That a Relocation Contract providing for permanent relocation 
has been executed.
    (5) The head of household actually remained domiciled on lands 
partitioned to the tribe of which he is not a member as of December 22, 
1974, and continuously thereafter.
    (6) The head of household shall vacate all improvements owned by him 
on lands partitioned to the tribe of which he is not a member and shall 
transfer title to said improvements to the Commission.

Temporary relocation shall in no way diminish the responsibility of the 
Commission to offer relocation assistance and services designed to 
achieve permanent and suitable facilities.
    (b) Conditions under which move to temporary housing accommodations 
may be approved. The move of a family or individual into temporary 
housing accommodations may be approved by the Commission only if the 
following conditions are met.
    (1) The move will be undertaken because:
    (i) It is necessary because of an emergency as determined by the 
Commission; or
    (ii) The individual or family is subject to conditions hazardous to 
his or his family's health or safety.
    (2) The temporary housing is decent, safe, and sanitary.
    (3) The Commission shall have determined that within twelve (12) 
months of the date of the temporary move, replacement housing meeting 
Commission-approved standards will be available for occupancy by the 
persons temporarily rehoused.
    (4) Prior to the move, the Commission shall provide in writing 
assurance to each head of household that:
    (i) Replacement housing will be available at the earliest possible 
time but in any event no later than twelve (12) months from the date of 
the move to temporary housing.
    (ii) Replacement housing will be made available on a priority basis, 
to the individual or family who has been temporarily rehoused.
    (iii) The move to temporary rehousing will not, in any way, affect a 
claimant's eligibility for a replacement housing payment nor deprive him 
of the same choice or replacement housing units that would have been 
made available had the temporary move not been made.
    (iv) The Commission will pay all costs in connection with the move 
to temporary housing, including any increased housing costs.
    (c) Agency documentation. To request Commission approval for a 
temporary move of a family, the following information shall be submitted 
to the Commission (additional information may be required on a case-by-
case basis):
    (1) An explanation of the necessity for the temporary move, based 
upon the criteria set forth by the Commission.
    (2) The estimated duration of the temporary occupancy.
    (3) In the case of the family or individual, (i) a copy of the 
written assurance which will be provided to the person explaining his 
rights and the continuing obligation of the agency to provide relocation 
assistance, and (ii) evidence that the family or individual agrees to 
make the temporary move.
    (d) Costs in connection with temporary move--(1) Costs included. 
Costs included in a temporary move may cover the following:
    (i) Actual reasonable moving costs and related expenses for the move 
to temporary accommodations.
    (ii) For the family or individual moved from a rental unit the 
difference, if any, between the rental cost of the dwelling vacated and 
the rental cost of the temporary unit.
    (iii) For a homeowner who retains ownership of his dwelling the 
reasonable cost of renting the temporary dwelling.
    (iv) For a homeowner whose dwelling has been acquired the 
difference, if any, between his housing costs for the acquired dwelling 
and the rental cost of the temporary unit.
    (2) Costs not a replacement home benefit. Costs in connection with a 
move to

[[Page 754]]

temporary accommodations are not to be considered as relocation payments 
under the Act. (See paragraph (e) of this section.)
    (e) Distinguishing between cost of temporary move and relocation 
payment. The costs of a temporary move, as decribed in the foregoing 
subparagraphs, are not to be considered as all or a part of the 
relocation payment to which a displaced person is entitled under the 
Act. Thus, when a family is moved to temporary accommodations, a 
relocation payment is not made and the election or choice of type of 
payments that would ordinarily be made upon displacement must be delayed 
until the final move is made. When the move out of temporary 
accommodations is made, the displaced person shall receive the full 
relocation payments to which he/she is entitled pursuant to Commission 
regulations.



                 Subpart E--Replacement Housing Payments



Sec. 700.181  Eligibility.

    (a) Basic eligibility requirements. A certified eligible head of 
household who established his/her residency requirements in the area 
partitioned to the tribe of which he/she is not a member, is eligible 
for the replacement housing payment specified at Sec. 700.183(a).
    (b) Other rules and requirements. A payment under this subpart E is 
subject to the other applicable rules and requirements of these 
regulations.



Sec. 700.183  Determination of replacement housing benefit.

    (a) Amount of benefit. The replacement housing benefit for a 
certified eligible head-of-household is an amount not to exceed fifty-
five thousand dollars ($55,000) for a household of three or less and not 
to exceed sixty-six thousand dollars ($66,000) for a household of four 
or more. Subject to such other requirements of these regulations as may 
apply, the replacement housing benefit shall be calculated as follows;
    (1) The amount of the fair market value of the habitation and 
improvements purchased from an eligible head-of-household pursuant to 
subpart B of this part shall be applied first toward the cost of a 
replacement dwelling.
    (2) An additional amount shall be added to the value of the 
habitation and improvements to equal the cost of a decent, safe, and 
sanitary replacement dwelling.
    (3) The total value of the replacement dwelling shall not exceed the 
amount of the replacement housing benefit specified in paragraph (a) of 
this section.
    (4) In the event the cost of providing a decent, safe, and sanitary 
replacement dwelling is less than the fair market value of the 
habitation and improvements purchased from an eligible head-of-household 
pursuant to subpart B of this part, the difference shall be paid to that 
head-of-household.
    (b) The Commission shall, on or before the first Friday in April of 
each fiscal year, after consultation with the Secretary of the 
Department of Housing and Urban Development, annually increase, decrease 
or leave unadjusted the above limitations on replacement housing 
benefits to reflect changes in housing or development and construction 
costs, other than costs of land, during the preceding year. In 
determining whether to increase or decrease the replacement housing 
benefit limitations set forth above, the Commission shall consider the 
following:
    (1) The most recent percentage rate of increase or decrease in 
single family housing construction costs reported by HUD. (General 
Prototype Housing Costs For One to Four Family Dwelling Units).
    (2) The most recent Boecht Building Cost Modifier.
    (3) The experience of relocatee families in obtaining replacement 
housing within the current benefits.
    (4) The cost of available replacement housing which meets Commission 
standards as set forth in these regulations.
    (5) Such other available information which the Commission deems 
appropriate and which is relevant to a determination of whether 
replacement housing benefits should be increased or decreased to reflect 
change in housing or development and construction costs during the 
preceding year.

[[Page 755]]

    (c) If the owner retains ownership of his dwelling, moves it from 
the acquired site, and reoccupies it on a replacement site, the purchase 
price of the replacement dwelling shall be considered to be the sum of--
    (1) The cost of the replacement site, if any; plus
    (2) The moving and restoration expenses; plus
    (3) The costs, if any, incurred to make the unit a decent, safe, and 
sanitary replacement dwelling; but not to exceed the above limitation on 
total replacement home benefits.

[47 FR 17988, Apr. 27, 1982, as amended at 52 FR 21951, June 10, 1987]



Sec. 700.187  Utilization of replacement home benefits.

    The Commission shall assure that all eligible heads of household 
receive a decent, safe and sanitary replacement dwelling in the 
following manner:
    (a) If the eligible head of household owns no dwelling other than 
that on the area from which he or she must move pursuant to the Act, the 
Commission will make funds available to the head of household as 
provided in these regulations for the acquisition of a replacement home 
in one of the following manners:
    (1) Purchase of an existing home, by the head of household,
    (2) Construction of a home by the head of household,
    (3) Participation or purchase by the head of household in a mutual 
help housing or other home ownership project under the U.S. Housing Act 
of 1937 (50 Stat. 888, as amended; 42 U.S.C. 1401) or in any other 
federally assisted housing program.
    (b) If the eligible head of household owns or is buying or building 
a home in an area other than the area from which he or she must move 
pursuant to the Act, the Commission will expend relocation benefits in 
one of the following manners:
    (1) If the home is decent, safe, and sanitary, but is encumbered by 
a mortgage, such mortgage existing as of the effective date of these 
regulations, the Commission will expend replacement housing benefits up 
to the maximum then existing benefit to accelerate to the maximum extent 
possible the achievement by that household of debt-free home ownership.
    (2) If the home is owned free and clear but does not meet Commission 
decent, safe, and sanitary standards, the Commission will, at its 
discretion, either:
    (i) Expend replacement home benefits for improvements to assure the 
home meets decent, safe, and sanitary standards, or
    (ii) Expend replacement home benefits for the acquisition of a 
replacement dwelling as if the eligible head of household or spouse did 
not own a home as in paragraph (a) of this section.
    (3) If the home is neither owned free and clear nor decent, safe, 
and sanitary, the Commission will, at its discretion, either:
    (i) Expend replacement home benefits for improvements to assure that 
the home meets decent, safe, and sanitary standards, and to accelerate 
to the maximium extent possible the achievement of debt-free home 
ownership, or
    (ii) Expend replacement home benefits for the acquisition of a 
replacement dwelling as if the eligible head of household or spouse did 
not own a home as in paragraph (a) of this section.
    (4) If the home is decent, safe, and sanitary, and is owned free and 
clear, no replacement home benefits will be paid.
    (c) Home improvements shall include the following: General repairs, 
painting and texturing, fencing--including corrals, landscaping, 
grading, room additions, re-modeling, roofing, insulating, repair or 
improvements to the water, sewerage, cooling, heating, or electrical 
systems, storage buildings, energy conservation measures, and other home 
improvements as determined and defined by the Commission.
    (d) In implementing these regulations the Commission will encourage 
the use of innovative energy or other technologies in order to achieve 
the minimum monthly housing cost feasible for each replacement house.

[[Page 756]]



Sec. 700.189  Expenditure of replacement home benefits.

    Replacement home benefits shall be expended or obligated in full at 
or before the time of original acquisition except as stated below. It is 
not anticipated that such exceptions would be common and each such 
instance shall be reviewed and a determination will be made by the 
Certification Officer.
    (a) Under unusual circumstances such as: Unknown (latent) defects in 
the replacement dwellings, significant change of circumstances and 
extreme hardship, benefits may be expended after the time of original 
acquisition up to the the existing maximum replacement home benefit.
    (b) All replacement home benefits shall be expended not later than 
one (1) year after the date of payment of the incentive bonus, except 
under unusual circumstances as stated above, up to the statutory 
maximum.
    (c) Replacement home benefits shall not be expended for maintenance 
except under unusual circumstances as stated above, up to the statutory 
maximum.
    (d) For purposes of this paragraph, the time of original acquisition 
shall be defined as the date of execution of the Commission's Relocation 
Contract.



                     Subpart F--Incidental Expenses



Sec. 700.195  General.

    Incidental expenses are those reasonable expenses, as determined by 
the Commission, to be incidental to the purchase of the replacement 
dwelling, but not prepaid.



Sec. 700.197  Basic eligibility requirements.

    A certified eligible head of household is eligible for reimbursement 
of expenses that are incidental to the purchase of a replacement 
dwelling, as provided in Sec. 700.199 hereof.



Sec. 700.199  Incidental expenses.

    (a) Eligible costs. Subject to the limitations in paragraphs (b) and 
(c) of this section, the incidental expenses to be paid are those 
actually incurred by the displaced person incident to the purchase of 
the replacement dwelling, including--
    (1) Legal, closing, and related costs, including those for title 
search, preparing conveyance instruments, notary fees, preparing plats, 
recording fees; and title insurance;
    (2) Lender, FHA or VA appraisal fees;
    (3) FHA or VA application fee;
    (4) Certification of structural soundness when required by the 
lender;
    (5) Credit report;
    (6) Owner's and mortgagee's evidence or assurance of title;
    (7) Escrow agent's fee;
    (8) State revenue or documentary stamps, sales or transfer taxes;
    (9) Such administrative costs as are necessary to secure and acquire 
homesite leases and/or allotments on tribal lands. These costs may 
include survey fees, appropriate tribal fees and other conveyance 
instruments as may be appropriate;
    (10) Costs, such as advertising charges, incurred incident to the 
purchase of the improvements owned by the head of household.
    (11) Cost related to fee inspector's inspections of the replacement 
dwelling.
    (12) Such other costs as the Commission determines to be incidental 
to the purchase.
    (b) Truth in lending charge. Any expense, which is determined to be 
part of the debt service or finance charge under 15 U.S.C. 131-1641 and 
Regulation Z (12 CFR Part 226) issued thereunder by the Board of 
Governors of the Federal Reserve System, is not eligible for 
reimbursement as an incidental expense.



            Subpart G--Assistance Payments (Incentive Bonus)



Sec. 700.205  Eligibility requirements.

    A certified eligible head of household is eligible for the 
assistance payment pursuant to section 14(b) of the Act.
    (a) Amount of payment. The amount of payment shall be computed in 
accordance with the schedule provided for in section 14(b) of the Act.
    (b) Date for determination of amount of assistance payment. The date 
of completion and filing with the Commission of the Application for 
Relocation Assistance and Agreement to Relocate shall

[[Page 757]]

be the date used for determination of the amount of the assistance 
payment.
    (c) Time of payment. Assistance payments provided for in this 
section shall only be paid upon actual occupancy of the replacement 
dwelling and vacation of the acquired habitation and/or improvement, if 
any, in the area partitioned to the Tribe of which he/she is not a 
member.



               Subpart H--Last Resort Replacement Housing



Sec. 700.209  Applicability.

    The provisions of this subpart apply only when the Commission 
determines that, unless it acts under the provisions of this subpart, 
there is a reasonable likelihood that replacement dwelling(s) will not 
be available on a timely basis to person(s) to be displaced.



Sec. 700.211  Basic rights and rules.

    The provisions of this subpart do not deprive any displaced person 
of any rights described elsewhere in these regulations. The Commission 
may meet its obligation to provide persons with reasonable opportunities 
to relocate to a replacement dwelling by offering such opportunities 
developed or to be developed under this subpart.



Sec. 700.213  Methods of providing last resort replacement housing.

    (a) General. The methods of providing last resort housing include, 
but are not limited to--
    (1) Rehabilitation of, and/or additions to, an existing replacement 
dwelling;
    (2) A replacement housing payment in excess of the limits set forth 
in subparts E and F of this part or the provision of direct Commission 
mortgage financing;
    (3) The construction of a new replacement dwelling;
    (4) The relocation and, if necessary, rehabilitation of a 
replacement dwelling;
    (5) The purchase of land and/or a replacement dwelling by the 
Commission and subsequent sale or lease to, or exchange with, a 
displaced person; and
    (6) The removal of barriers to the handicapped as may be necessary.



                    Subpart I--Commission Operations



Sec. 700.219  General.

    (a) The operation of the Commission shall be governed by a 
Management Manual passed, amended or repealed by a majority of the 
Commission at any regular or special meeting. The Management Manual is 
the prescribed medium for publication of policies, procedures and 
instructions which are necessary to facilitate the day-to-day operations 
and administration of the Commission.
    (b) Meetings. The Commission shall hold a regular monthly meeting on 
the first Friday of each month at a time and place designated by public 
notice unless said Friday falls on a legal holiday, in that event, the 
meeting shall begin on the next regular workday. The monthly meeting may 
continue for as many days thereafter as is necessary to complete the 
regular affairs of the Commission, and may be recessed from time to time 
and reconvened at times designated by the Chairperson.
    (c) Special public meetings. May be called by any Commissioner with 
ten (10) working days written notice given to the other Commissioners. 
Written notice may be waived by a release bearing the signatures of all 
three Commissioners.
    (d) Executive Session. During a regular or special meeting, any 
Commissioner may request an Executive Session for purposes of personnel 
and administrative matters.
    (e) Compliance with other laws and regulations. As a federal agency, 
the Commission will conduct its activities in conformance with 
applicable federal statutes and administrative procedures.



                    Subpart J--Inspection of Records



Sec. 700.235  Purpose and scope.

    (a) This subpart contains the regulations of the Commission 
implementing the requirement of subsection (a)(3) of the Freedom of 
Information Act, 5 U.S.C. 552(a)(3), which provides that the Commission 
``upon any request for records which (1) Reasonably describes

[[Page 758]]

such records and (2) is made in accordance with published rules stating 
the time, place, fees (if any), and procedures to be followed, shall 
make the records promptly available to any person.'' This subpart 
describes the procedures by which records may be obtained from the 
Commission. The procedures in this subpart are not applicable to 
requests for records published in the Federal Register or opinions in 
the adjudication of cases, statements of policy and interpretations and 
administrative staff manuals which have been published or made available 
under subpart A of this part.



Sec. 700.237  Definitions.

    Act. As used in this subpart, ``Act'' means the ``Freedom of 
Information Act,'' 5 U.S.C. 552.



Sec. 700.239  Records available.

    (a) Commission policy. It is the policy of the Commission to make 
the records of the Commission available to the public to the greatest 
extent possible, in keeping with the spirit of the Freedom of 
Information Act.
    (b) Statutory disclosure requirement. The Freedom of Information Act 
requires that the Commission, on a request from a member of the public 
to inspect or copy records made in accordance with the procedures in 
this subpart, shall promptly make the records available.
    (c) Statutory exemptions. The Act exempts nine categories of records 
from this disclosure requirement. The Act provides that disclosure is 
not required of matters that are:
    (1) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and in fact properly classified pursuant to such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempt from disclosure by statute;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Investigatory records compiled for law enforcement purposes, but 
only to the extent that production of such records would
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the indentity of a confidential source and, in the 
case of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Decisions on requests. It is the policy of the Commission to 
withhold information falling within an exemption only if (1) disclosure 
is prohibited by statute or Executive Order or (2) sound grounds exist 
for invocation of the exemption.
    (e) Deletion of portions of records. If a requested record contains 
material within an exemption together with material not within an 
exemption and it is determined under the regulations in this subpart to 
withhold the exempt material, any reasonably segregable nonexempt 
material shall be separated from the exempt material.
    (f) Creation of records. This subpart applies only to records which 
exist at the time a request for records is made. Records are not 
required to be created in response to a request by combining

[[Page 759]]

or compiling selected items from the files or by preparing a new 
computer program, nor are records required to be created to provide the 
requester with such data as proportions, percentages, frequency 
distributions, trends, or comparisons.
    (g) Records of concern to other departments and agencies. (1) If the 
release of a record would be of concern to both the Commission and 
another Federal agency, the record will be made available by the 
Commission only if the interest of the Commission is the primary 
interest. If the Commission's interest is not the primary interest, the 
requester shall be referred in writing to the agency having the primary 
interest. The Commission has the primary interest in a record if the 
record was developed pursuant to Commission regulations, directives, or 
request even though the record originated outside of the Commission.
    (2) If the release of a record in which the Commission has a primary 
interest would be of substantial concern to another agency, the official 
processing the request, should, if administratively feasible and 
appropriate, consult with that agency before releasing the record.
    (h) Records obtained from the public. If a requested record was 
obtained by the Commission from a person or entity outside of the 
Government, the official responsible for processing the request shall, 
when it is administratively feasible to do so, seek the views of that 
person or entity on whether the record should be released before making 
a decision on the request.



Sec. 700.241  Request for records.

    (a) Submission of requests. A request to inspect or copy records 
shall be made to the installation where the records are located. If the 
records are located at more than one installation or if the specific 
location of the records is not known to the person wishing to inspect or 
copy the records, he may direct his request to the head of the 
appropriate bureau, or the bureau's chief public information officer, if 
any.
    (b) Form of request. (1) Requests invoking the Freedom of 
Information Act shall be in writing.
    (2)(i) A request must reasonably describe the records requested. A 
request reasonably describes the records requested if it will enable an 
employee of the Commission familiar with the subject area of the request 
to locate the record with a reasonable amount of effort. If such 
information is available, the request should identify the subject matter 
of the record, the date when it was made, the place where it was made, 
and the person or office that made it, the present custodian of the 
record, and any other information which will assist in location of the 
requested records. If the request involves a matter known by the 
requester to be in litigation, the request should also state the case 
name and court hearing the case.
    (ii) If the description of a record sought is insufficient to allow 
identification and location of the record, the response denying the 
request on this ground shall so state and, to the extent possible, 
indicate what additional descriptive information, if any, would assist 
in location of the record.
    (3) A request shall state the maximum amount of fees which the 
requester is willing to pay. Requesters are notified that under 
Sec. 700.251, the failure to state willingness to pay fees as high as 
are anticipated by the Commission will delay running of the time limit 
and delay processing of the request, if the responsible official 
anticipates that the fees chargeable may exceed $25.00.
    (4)(i) To insure expeditious handling, requests shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``FREEDOM OF INFORMATION REQUEST.'' The failure of a request to 
bear such a legend will not disqualify a request from processing under 
the procedures in this subpart if the request otherwise meets the 
requirments of this section. A request not bearing the legend ``FREEDOM 
OF INFORMATION REQUEST'' will not, however, be deemed to have been 
received for purposes of the running of the time limit set out in 
Sec. 700.245 until it has been identified by bureau personnel as a 
Freedom of Information request and marked by them with this legend.

[[Page 760]]

    (ii) Commission personnel identifying a communication from the 
public not bearing the legend ``FREEDOM OF INFORMATION REQUEST'' as a 
request otherwise meeting the requirements of this section shall 
immediately (A) mark the communication with the legend ``FREEDOM OF 
INFORMATION REQUEST.'' (B) date the request to reflect the date on which 
it was identified, and (C) take steps to assure proper processing of the 
request under the procedures in this subpart.
    (d) Categorical requests. (1) A request for all records falling 
within a reasonably specific category shall be regarded as conforming to 
the statutory requirement that records be reasonably described if (i) it 
can be determined which particular records are covered by the request 
and (ii) the records can be searched for, collected and produced without 
unduly burdening or interfering with Commission operations because of 
the staff time consumed or the resulting disruption of the files.
    (2) If a categorical request is determined under paragraph (d)(1) of 
this section not to reasonably describe the records requested, the 
response denying the request on that ground shall specify the reasons 
why and shall extend to the requester an opportunity to confer with 
knowledgeable Commission personnel in an attempt to reduce the request 
to manageable proportions by reformulation and by agreeing on an orderly 
procedure for the production of the records.



Sec. 700.243  Action on initial requests.

    (a) Granting of requests. (1) A requested record shall be made 
available if (i) the record is not exempt from disclosure or (ii) the 
record is exempt from disclosure, but its withholding is neither 
required by statute or Executive order nor supported by sound grounds.
    (b) Form of grant. (1) When a requested record has been determined 
to be available, the official processing the request shall immediately 
notify the person requesting the record as to where and when the record 
is available for inspection or as the case may be, where and when copies 
will be available. If fees are due under Sec. 700.251, the responsible 
official shall also state the amount or, if the exact amount cannot be 
determined, the approximate amount of fees due.
    (2) If the record was obtained by the Commission from a person or 
entity outside of the Government, the responsible official shall, when 
it is administratively feasible to do so, notify that person or entity 
that the record has been made available.
    (c) Denial of requests. (1) A request for a record may be denied 
only if it is determined that (i) the record is exempt from disclosure 
and (ii) that withholding of the record is required by statute or 
Executive order or supported by sound grounds.
    (2) A request to inspect or copy a record shall be denied only by 
the Freedom of Information Act Officer or by an official whom the 
Executive Director has in writing designated.
    (d) Form of denial. A reply denying a request shall be in writing 
and shall include:
    (1) A reference to the specific exemption or exemptions under the 
Freedom of Information Act authorizing the withholding of the record;
    (2) The sound ground for withholding;
    (3) A listing of the names and titles or positions of each person 
responsible for the denial;
    (4) A statement that the denial may be appealed to the Commission 
pursuant to Sec. 700.247 and that such appeal must be in writing and be 
received by this official within twenty (20) days (Saturdays, Sundays, 
and public legal holidays excepted) after the date of the denial, in the 
case of the denial of an entire request, or within twenty (20) days 
(Saturdays, Sundays, and public legal holidays excepted) of records 
being made available, in the case of a partial denial, by writing to the 
Freedom of Information Act Officer, Navajo-Hopi Indian Relocation 
Commission, P.O. Box KK, Flagstaff, Arizona 86002.
    (e) Exception. The requirements of paragraphs (c), (d), and (e) of 
this section do not apply to requests denied under Sec. 2.14 on the 
ground that the request did not reasonably describe the records 
requested or to requests for records which do not exist.

[[Page 761]]

    (f) Filing of denials. Copies of all replies denying, in whole or 
part, a request for a record which are issued under this section of 
Sec. 700.243 shall be promptly submitted by the Freedom of Information 
Act Officer, denials to the Executive Director and the Commission's 
legal counsel.



Sec. 700.245  Time limits on processing of initial requests.

    (a) Basic limit. Requests for records shall be processed promptly. A 
determination whether to grant or deny a request shall be made within no 
more than ten (10) days (excepting Saturdays, Sundays, and legal public 
holidays) after receipt of a request. This determination shall be 
communicated immediately to the requester.
    (b) Running of basic time limit. For purposes of paragraph (a) of 
this section, the time limit commences to run when a request is received 
at the Commission's office in Flagstaff, Arizona.
    (c) Extensions of time. In the following unusual circumstances, the 
time limit for acting upon an initial request may be extended to the 
extent reasonably necessary to the proper processing of the particular 
request, but in no case may the time limit be extended for more than ten 
(10) working days:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.
    (d) Authority to make extensions. (1) An extension of time under 
paragraph (c) of this section may be made only by the Freedom of 
Information Act Officer or such higher authority as the Commission has 
in writing designated.
    (2) The person requesting the records shall be notified in writing 
of the extension. The written notice shall state the reason for the 
extension and the date on which a determination on the request is 
expected to be dispatched.
    (3) The Freedom of Information Act Officer shall be responsible for 
promptly furnishing copies of such notices to the Executive Director and 
the Commission's legal counsel.
    (e) Treatment of delay as denial. (1) If no determination has been 
reached at the end of the ten (10) day period for deciding an initial 
request, or the last extension thereof, the requester may deem his 
request denied and may exercise a right of appeal in accordance with the 
provisions of Sec. 700.247.
    (2) When no determination can be reached within the applicable time 
limit, the responsible official shall nevertheless continue to process 
the request. On expiration of the time limit, the responsible official 
shall inform the requester of the reason for the delay, of the date on 
which a determination may be expected to be dispatched, and of his right 
to treat the delay as a denial for purposes of appeal to the Commission 
in accordance with Sec. 700.247. The requester may be asked to consider 
delaying use of his right to appeal until the date on which the 
determination is expected to be dispatched. If the requester so agrees, 
he is deemed not to have treated the failure to respond within the 
applicable time limit as a denial for purposes of the running of the 
twenty (20) working-day appeal period set out in Sec. 700.247. If a 
determination of the request is not issued by the new agreed upon date, 
or if the request is denied in whole or part, the requester will have 
available his full right of appeal under Sec. 700.247, including the 
entire twenty (20) working-day period for filing of the appeal.



Sec. 700.247  Appeals.

    (a) Right of appeal. Where a request for records has been denied, in 
whole or part, the person submitting the request may appeal the denial 
to the Commission.
    (b) Time for appeal. An appeal must be received no later than twenty 
(20) days (Saturdays, Sundays, and public legal holidays excepted) after 
the date of the initial denial, in the case of a denial of an entire 
request, or twenty (20) days

[[Page 762]]

(Saturdays, Sundays, and public legal holidays excepted) after records 
have been made available, in the case of a partial denial.
    (c) Form of appeal. (1) An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and the initial denial and should, in order to 
expedite the appellate process and give the requester an opportunity to 
present his arguments, contain a brief statement of the reasons why the 
requester believes the initial denial to have been in error.
    (2) The appeal shall be addressed to Freedom of Information Act 
Officer, Navajo-Hopi Indian Relocation Commission, P.O. Box KK, 
Flagstaff, Arizona 86002.
    (3)(i) Both the envelope containing the notice of appeal and the 
face of the notice shall bear the legend ``FREEDOM OF INFORMATION 
APPEAL''. The failure of an appeal to bear such a legend will not 
disqualify an appeal from processing under Sec. 2.18 if the appeal 
otherwise meets the requirements of this section. An appeal not bearing 
the legend ``FREEDOM OF INFORMATION APPEAL'' will not, however, be 
deemed to have been received for purposes of the running of the time 
limit set out in Sec. 700.249 until it has been identified by Commission 
personnel as a Freedom of Information appeal and marked by them with 
this legend.
    (ii) Commission personnel identifying a communication from the 
public not bearing the legend ``FREEDOM OF INFORMATION APPEAL'' as an 
appeal otherwise meeting the requirements of this section shall 
immediately (A) mark the communication with the legend ``FREEDOM OF 
INFORMATION APPEAL,'' (B) date the appeal to reflect the date on which 
it was identified, and (C) take steps to assure proper processing of the 
appeal under the procedures in this subpart.
    (4) The Freedom of Information Act Officer shall be responsible for 
promptly furnishing copies of such notices to the Executive Director and 
the Commission's legal counsel.



Sec. 700.249  Action on appeals.

    (a) Authority. Appeals from initial denials of requests for records 
shall be decided for the Commission by the Executive Director after 
consultation with the Commission's legal counsel.
    (b) Time limit. A final determination on any appeal shall be made 
within twenty (20) days (excepting Saturdays, Sundays, and public legal 
holidays) after receipt of the appeal.
    (c) Extensions of time. (1) If the time limit for responding to the 
initial request for a record was not extended under the provisions of 
Sec. 700.245 or was extended for fewer than ten (10) working days, the 
time for processing of the appeal may be extended by the Executive 
Director to the extent reasonably necessary to the proper processing of 
the appeal, but in no event may the extension, when taken together with 
any extension made during processing of the initial request, result in 
an aggregate extension with respect to any one request of more than ten 
(10) working days. The time for processing of an appeal may be extended 
only if one or more of the unusual circumstances listed in 
Sec. 700.245(c) requires an extension.
    (2) The Executive Director shall, in writing, advise the appellant 
of the reasons for the extension and the date on which a final 
determination of the appeal is expected to be dispatched.
    (3) If no determination on the appeal has been reached at the end of 
the twenty (20) working-day period for deciding an appeal, or the last 
extension thereof, the requester is deemed to have exhausted his 
administrative remedies, giving rise to a right of review in a district 
court of the United States as specified in 5 U.S.C. 552(a)(4). When no 
determination can be reached within the applicable time limit, the 
appeal will nevertheless continue to be processed. On expiration of the 
time limit, the requester shall be informed of the reason for the delay, 
of the date on which a determination may be expected to be dispatched, 
and of his right to seek judicial review. The requester may be asked to 
consider delaying resort to his right to judicial review until the date 
on which the determination on his appeal is expected to be dispatched.

[[Page 763]]

    (d) Form of decision. The final determination on an appeal shall be 
in writing and shall state the basis for the determination. If the 
determination is to release the requested records or portions thereof, 
the Freedom of Information Act Officer shall immediately make the 
records available or instruct the appropriate bureau official to make 
them immediately available. If the determination upholds in whole or 
part the initial denial of a request for records, the determination 
shall advise the requester of his right to obtain judicial review in the 
U.S. District Court for the district in which the withheld records are 
located, or in which the requester resides or has his principal place of 
business or in the U.S. District Court for the District of Columbia, and 
shall set forth the names and titles or positions of each person 
responsible for the denial.
    (e) Distribution of copies. Copies of final determinations issued by 
the Commission shall be provided to the Commission's legal counsel.



Sec. 700.251  Fees.

    (a) Services for which fees may be charged. (1) Unless waived 
pursuant to the provisions of paragraph (c) of this section, user fees 
shall be charged for document search and duplication costs incurred in 
responding to requests for records. User fees also shall be charged for 
the formal certification of verification attached to authenticated 
copies of records under the seal of the Commission.
    (2) Unless waived or reduced pursuant to paragraph (c) of this 
section, user fees shall be charged in accordance with the schedule of 
charges contained in the Commission's Management Manual.
    (b) Services for which fees may not be charged. No fee may be 
charged for any services required by the Freedom of Information Act to 
be performed in responding to a request for records other than those 
services for which fees may be charged under paragraph (a) of this 
section. Services for which no fees may be charged include, but are not 
limited to,
    (1) Examining requested records to determine whether they are exempt 
from mandatory disclosure or whether, even if exempt, they should 
nevertheless be made available in whole or part,
    (2) Deleting exempt matter from records so that the remaining 
portions of the records may be made available,
    (3) Monitoring a requester's inspection of agency records made 
available to him for inspection, and
    (4) Resolving legal and policy issues affecting access to requested 
records.
    (c) Waiver or reduction of fees. (1) Fees otherwise chargeable for 
document search and duplication costs incurred in responding to requests 
for records may be waived or reduced, as appropriate, if the official 
making the records available determines that furnishing the records can 
be considered as primarily benefiting the public as opposed to the 
requester.
    (2) Fees otherwise applicable for document research and duplication 
costs incurred in responding to requests may be waived and not charged 
if the request involves:
    (i) Furnishing unauthenticated copies of any documents reproduced 
for gratuitous distribution;
    (ii) Furnishing one copy of a personal document (e.g., a birth 
certificate) to a person who has been required to furnish it for 
retention by the Commission;
    (iii) Furnishing one copy of the transcript of a hearing before a 
hearing officer in a grievance or similar proceeding to the employee for 
whom the hearing was held.
    (3) Fees otherwise chargeable for document search and duplication 
costs incurred in responding to requests may be waived or reduced if the 
cost of collecting the fee would exceed the amount of the fee or if the 
request involves:
    (i) Furnishing records to press, radio and television 
representatives for dissemination through the media to the general 
public;
    (ii) Furnishing records to donors with respect to their gifts;
    (iii) Furnishing records to individuals or private non-profit 
organizations having an official voluntary or cooperative relationship 
with the Commission to assist the individual or organization in its work 
with the Commission;
    (iv) Furnishing records to state, local and tribal governments and 
public

[[Page 764]]

international organizations when to do so without charge is an 
appropriate courtesy, or when the recipient is carrying on a function 
related to that of the Commission and to do so will help to accomplish 
the work of the Commission;
    (v) Furnishing records when to do so saves costs and yields income 
equal to the direct cost of providing the records (e.g., where the 
Commission's fee for the service would be included in a billing against 
the Commission);
    (vi) Furnishing records when to do so is in conformance with 
generally established business custom (e.g., furnishing personal 
reference data to prospective employers of former Commission employees);
    (vii) Furnishing one copy of a record in order to assist the 
requester to obtain financial benefits to which he is entitled (e.g., 
veterans or their dependents, employees with Government employee 
compensation claims or persons insured by the Government).
    (d) Notice of anticipated fees and prepayment. (1) Where it is 
anticipated that fees chargeable under this section may amount to more 
than $25.00 and the requester has not indicated in advance his 
willingness to pay fees as high as are anticipated, the request shall be 
deemed not to have been received for purposes of the time limits 
established by Sec. 700.245 until the requester is advised of the fees 
which are anticipated and has agreed to pay these fees. Advice to 
requesters with respect to anticipated fees shall be provided promptly.
    (2) The appropriate cases, advance payment of fees may be required 
before requested records are made available to the requester.
    (3) A notice of anticipated fees or notice of request for advance 
payment shall extend an offer to the requester to confer with 
appropriate personnel in an attempt to reformulate the request in a 
manner which will reduce the anticipated fees and meet the needs of the 
requester.
    (e) Form of payment. Payment of fees shall be made by check or money 
order payable to the Navajo-Hopi Indian Relocation Commission. The term 
United States or the initials ``U.S.'' shall not be included on the 
check or money order. Where appropriate, the official responsible for 
handling a request may require that payment by check be made in the form 
of a certified check.



                         Subpart K--Privacy Act



Sec. 700.255  Purpose and scope.

    This subpart contains the regulations of the Navajo and Hopi Indian 
Relocation Commission implementing section 3 of the Privacy Act.



Sec. 700.257  Definitions.

    (a) Act. As used in this subpart, ``Act'' means section 3 of the 
Privacy Act, 5 U.S.C. 552a.
    (b) Individual. As used in this subpart, ``individual'' means a 
citizen of the United States or an alien lawfully admitted for permanent 
residence.
    (c) Maintain. As used in this subpart, the term ``maintain'' 
includes maintain, collect, use or disseminate.
    (d) Record. As used in this subpart, ``record'' means any item, 
collection, or grouping of information about an individual that is 
maintained by the Commission including, but not limited to, education, 
financial transactions, medical history, and criminal or employment 
history and that contains the individual's name, or the identifying 
number, symbol, or other identifying particular assigned to the 
individual, such as a finger or voice print, or a photograph.
    (e) System of records. As used in this subpart, ``System of 
records'' means a group of any records under the control of the 
Commission from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.
    (f) Medical records. As used in this subpart, ``medical records'' 
means records which relate to the identification, prevention, cure or 
alleviation of any disease, illness or injury including psychological 
disorders, alcoholism and drug addiction.
    (g) Civil Service Commission personnel records. As used in this 
subpart, ``Civil Service Commission personnel records'' means records 
maintained for the Civil Service Commission by the Commission and used 
for personnel management programs or processes such as

[[Page 765]]

staffing, employee development, retirement, and grievances and appeals.
    (h) Statistical records. As used in this subpart, ``statistical 
records'' means records in a system of records maintained for 
statistical research or reporting purposes only and not used in whole or 
in part in making any determination about an identifiable individual.
    (i) Routine use. As used in this subpart, ``routine use'' means a 
use of a record for a purpose which is compatible with the purpose for 
which it was collected.
    (j) System notice. As used in this subpart, ``system notice'' means 
the notice describing a system of records required by 5 U.S.C. 
552a(e)(4) to be published annually in the Federal Register.
    (k) System manager. As used in this subpart, ``system manager'' 
means the official designated in a system notice as having 
administrative responsibility for a system of records.
    (l) Commission Privacy Act Officer. As used in the subpart, 
``Commission Privacy Act Officer'' means the official in the Commission 
charged with responsibility for assisting the Commission in carrying out 
the functions which he is assigned in this subpart and for coordinating 
the activities of the divisions of the Commission in carrying out the 
functions which they are assigned in this subpart.



Sec. 700.259  Records subject to Privacy Act.

    The Privacy Act applies to all ``records'' as that term is defined 
in Sec. 700.257(d), which the Commission maintains in a ``system of 
records,'' as that term is defined in Sec. 700.257(e).



Sec. 700.261  Standards for maintenance of records subject to the Act.

    (a) Content of records. Records subject to the Privacy Act shall 
contain only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required to be 
accomplished by statute or Executive Order of the President.
    (b) Standards of accuracy. Records subject to the Privacy Act which 
are used in making any determination about any individual shall be 
maintained with such accuracy, relevance, timeliness, and completeness 
as is reasonably necessary to assure fairness to the individual in 
making the determination.
    (c) Collection of information. (1) Information which may be used in 
making determination about an individual's rights, benefits, and 
privileges under Federal programs shall, to the greatest extent 
practicable, be collected directly from that individual.
    (2) In deciding whether collection of information from an 
individual, as opposed to a third party source, is practicable, the 
following factors, among others may be considered:
    (i) Whether the nature of the information sought is such that it can 
only be obtained from a third party;
    (ii) Whether the cost of collecting the information from the 
individual is unreasonable when compared with the cost of collecting it 
from a third party;
    (iii) Whether there is a risk that information collected from third 
parties if inaccurate, could result in an adverse determination to the 
individual concerned;
    (iv) Whether the information, if supplied by the individual, would 
have to be verified by a third party; or
    (v) Whether provisions can be made for verification, by the 
individual, of information collected from third parties.
    (d) Advice to individual concerning uses of information. (1) Each 
individual who is asked to supply information about himself which will 
be added to a system of records shall be informed of the basis for 
requesting the information, how it may be used, and what the 
consequences, if any, are of not supplying the information.
    (2) At a minimum, the notice to the individual must state;
    (i) The authority (whether granted by statute or Executive Order of 
the President) which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary;
    (ii) The principal purpose or purposes for which the information is 
intended to be used;
    (iii) The routine uses which may be made of the information; and

[[Page 766]]

    (iv) The effects on him, if any, of not providing all or any part of 
the requested information.
    (3)(i) When information is collected on a standard form, the notice 
to the individual shall be on the form or on a tear-off sheet attached 
to the form or on a separate sheet, whichever is most practical.
    (ii) When information is collected by an interviewer, the 
interviewer shall provide the individual with a written notice which the 
individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
that a copy be mailed to him.
    (iii) An individual may be asked to acknowledge, in writing, that he 
has been afforded the notice required by this section.
    (e) Records concerning activity protected by the First Amendment. No 
record may be maintained describing how any individual exercises rights 
guaranteed by the First Amendment to the Constitution unless (1) 
expressly authorized by statute or by the individual about whom the 
record is maintained or (2) pertinent to and within the scope of an 
authorized law enforcement activity.



Sec. 700.263  Assuring integrity of records.

    (a) Statutory requirement. The Privacy Act requires that records 
subject to the Act be maintained with appropriate administrative, 
technical and physical safeguards to insure the security and 
confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity which could result in 
substantial harm, embarassment, inconvenience, or unfairness to any 
individual on whom information is maintained, 5 U.S.C. 522a(e)(10).
    (b) Records maintained in manual form. When maintained in manual 
form, records subject to the Privacy Act shall be maintained, at a 
minimum, subject to the following safeguards, or safeguards affording 
comparable protection:
    (1) Areas in which the records are maintained or regularly used 
shall be posted with an appropriate warning stating that access to the 
records is limited to authorized persons. The warning shall also 
summarize the requirements of Sec. 700.265 and state that the Privacy 
Act contains a criminal penalty for the unauthorized disclosure of 
records to which it applies.
    (2) During working hours, (i) the area in which the records are 
maintained or regularly used shall be occupied by authorized personnel 
or (ii) access to the records shall be restricted by their storage in 
locked metal file cabinets or a locked room.
    (3) During non-working hours, access to the records shall be 
restricted by their storage in locked metal file cabinets or a locked 
room.
    (c) Records maintained in computerized form. When maintained in 
computerized form, records subject to the Privacy Act shall be 
maintained, at a minimum, subject to safeguards based on those 
recommended in the National Bureau of Standards booklet ``Computer 
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30, 
1975), and any supplements thereto, which are adequate and appropriate 
to assuring the integrity of records in the system.
    (d) Civil Service Commission personnel records. A system of records 
made up of Civil Service Commission personnel records shall be 
maintained under the security requirements set out in 5 CFR 293.108.



Sec. 700.265  Conduct of employees.

    (a) Handling of records subject to the Act. Employees whose duties 
require handling of records subject to the Privacy Act shall, at all 
times, take care to protect the integrity, security and confidentiality 
of these records.
    (b) Disclosure of records. No employee of the Commission may 
disclose records subject to the Privacy Act unless disclosure is 
permitted under Sec. 700.267 or is to the individual to whom the record 
pertains.
    (c) Alteration of records. No employee of the Commission may alter 
or destroy a record subject to the Privacy Act unless (1) such 
alteration or destruction is properly undertaken in the course of the 
employee's regular duties or (2) such alteration or destruction is 
required by a decision under Secs. 700.287-

[[Page 767]]

700.295 or the decision of a court of competent jurisdiction.



Sec. 700.267  Disclosure of records.

    (a) Prohibition of disclosure. No record contained in a system of 
records may be disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains.
    (b) General exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) To those officers or employees of the Commission who have a need 
for the record in the performance of their duties; or
    (2) Required by the Freedom of Information Act, 5 U.S.C. 522.
    (c) Specific exceptions. The prohibition contained in paragraph (a) 
does not apply where disclosure of the record would be:
    (1) For a routine use as defined in Sec. 700.257(i) which has been 
described in a systems notice published in the Federal Register;
    (2) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13 U.S. Code.
    (3) To a recipient who has provided the System Manager responsible 
for the system in which the record is maintained with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (4) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;
    (5) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Department specifying the particular portion 
desired and the law enforcement activity for which the record is sought;
    (6) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (7) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (8) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (9) Pursuant to the order of a court of competent jurisdiction.
    (d) Reviewing records prior to disclosure. (1) Prior to any 
disclosure of a record about an individual, unless disclosure is 
required by the Freedom of Information Act, reasonable efforts shall be 
made to assure that the records are accurate, complete, timely and 
relevant for agency purposes.
    (2) When a record is disclosed in connection with a Freedom of 
Information request made under subpart B of this part and it is 
appropriate and administratively feasible to do so, the requester shall 
be informed of any information known to the Commission indicating that 
the record may not be fully accurate, complete, or timely.



Sec. 700.269  Accounting for disclosures.

    (a) Maintenance of an accounting. (1) Where a record is disclosed to 
any person, or to another agency, under any of the specific exceptions 
provided by Sec. 700.267(c), an accounting shall be made.
    (2) The accounting shall record (i) the date, nature, and purpose of 
each disclosure of a record to any person or to another agency and (ii) 
the name and address of the person or agency to whom the disclosure was 
made.
    (3) Accountings prepared under this section shall be maintained for 
at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made.

[[Page 768]]

    (b) Access to accountings. (1) Except for accountings of disclosures 
made under Sec. 700.267(c)(5), accountings of all disclosures of a 
record shall be made available to the individual to whom the record 
relates at his request.
    (2) An individual desiring access to accountings of disclosures of a 
record pertaining to him shall submit his request by following the 
procedures of Sec. 700.277.
    (c) Notification of disclosure. When a record is disclosed pursuant 
to Sec. 700.267(c)(9) as the result of the order of a court of competent 
juridiction, reasonable efforts shall be made to notify the individual 
to whom the record pertains as soon as the order becomes a matter of 
public record.



Sec. 700.271  Requests for notification of existence of records: Submission.

    (a) Submission of requests. (1)(i) An individual desiring to 
determine under the Privacy Act whether a system of records contains 
records pertaining to him shall address his inquiry to the system 
manager having responsibility for the system unless the system notice 
describing the system prescribes or permits submission to some other 
official or officials.
    (ii) If a system notice describing a system requires that an 
individual contact more than two officials concerning the existence of 
records in the system, an individual desiring to determine whether the 
system contains records pertaining to him may contact the system manager 
for assistance in determining which official is most likely to be in 
possession of records pertaining to that individual.
    (2) If an individual desires to determine whether records pertaining 
to him are maintained in two or more systems, he shall make a separate 
inquiry concerning each system.
    (b) Form of request. (1) An inquiry to determine whether a system of 
records contains records pertaining to an individual shall be in 
writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``PRIVACY ACT INQUIRY.''
    (3) The request shall state that the individual is seeking 
information concerning records pertaining to himself and shall supply 
such additional identifying information, if any, as is called for in the 
system notice describing the system.
    (4) If an individual has reason to believe that information 
pertaining to him or her may be filed under a name other than the name 
he or she is currently using (e.g., a maiden name), he or she shall 
include this information in the request.



Sec. 700.273  Request for notification of existence of records: Action on.

    (a) Decisions on request. (1) An individual inquiring to determine 
whether a system of records contains records pertaining to him shall be 
advised within ten (10) days (excepting Saturdays, Sundays and legal 
public holidays) whether or not the system does contain records 
pertaining to him unless (i) the records were compiled in reasonable 
anticipation of a civil action or proceeding or (ii) the system of 
records is one which has been excepted from the notification provisions 
of the Privacy Act by rulemaking.
    (2) If the records were compiled in reasonable anticipation of a 
civil action or proceeding or the system of records is one which has 
been excepted from the notification provisions of the Privacy Act by 
rulemaking, the individual will be promptly notified that his is not 
entitled to notification of whether the system contains records 
pertaining to him.
    (b) Authority to deny requests. A decision to deny a request for 
notification of the existence of records shall be made by the Privacy 
Act Officer.
    (c) Form of decision. (1) No particular form is required for a 
decision informing an individual whether or not a system of records 
contains records pertaining to him.
    (2) A decision declining to inform an individual whether or not a 
system of records contains records pertaining to him shall be in writing 
and shall state the basis for denial of the request and shall advise the 
individual that he may appeal the declination to the Executive Director 
pursuant to Sec. 700.285 by writing to the Privacy Act Officer, Navajo 
and Hopi Indian Relocation Commission, P.O. Box KK, Flagstaff, Arizona

[[Page 769]]

86002, and that the appeal must be received by this official within 
twenty (20) days (Saturdays, Sundays and public legal holidays excepted) 
of the date of the decision.



Sec. 700.275  Requests for access to records.

    The Privacy Act permits an individual, upon his request, to gain 
access to his record or to any information pertaining to him which is 
contained in a system and to review the record and have a copy made of 
all or any portion thereof in a form comprehensive to him, 5 U.S.C. 
552a(d)(1). A request for access shall be submitted in accordance with 
the procedures in this subpart.



Sec. 700.277  Requests for access to records: Submission.

    (a) Submission of requests. (1) Requests for access to records shall 
be submitted to the system manager having responsibility for the system 
in which the records are maintained unless the system notice describing 
the system prescribes or permits submission to some other official or 
officials.
    (2) If an individual desires access to records maintained in two or 
more separate systems, he shall submit a separate request for access to 
the records in each system.
    (b) Form of request. (1) A request for access to records subject to 
the Privacy Act shall be in writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``PRIVACY ACT REQUEST FOR ACCESS.''
    (3) The request shall specify whether the requester seeks all of the 
records contained in the system which relate to him or only some portion 
thereof. If the requester seeks only a portion of the records which 
relate to him, the request shall reasonably describe the specific 
records sought.
    (4) If the requester seeks to have copies of the requested records 
made, the request shall state the maximum amount of copying fees which 
the requester is willing to pay. A request which does not state the 
amount of fees the requester is willing to pay will be treated as a 
request to inspect the requested records. Requesters are further 
notified that under Sec. 700.279(d) the failure to state willingness to 
pay fees as high as are anticipated by the Commission will delay 
processing of a request.
    (5) The request shall supply such identifying information, if any, 
as is called for in the system notice describing the system.
    (6) Requests failing to meet the requirements of this paragraph 
shall be returned to the requester with a written notice advising the 
request of the deficiency in the request.



Sec. 700.279  Requests for access to records: Initial decision.

    (a) Decisions on requests. A request made under this subpart for 
access to a record shall be granted promptly unless (1) the record was 
compiled in reasonable anticipation of a civil action or proceeding or 
(2) the record is contained in a system of records which has been 
excepted from the access provisions of the Privacy Act by rulemaking.
    (b) Authority to deny requests. A decision to deny a request for 
access under this subpart shall be made by the Privacy Act Officer.
    (c) Form of decision. (1) No particular form is required for a 
decision granting access to a record. The decision shall, however, 
advise the individual requesting the record as to where and when the 
record is available for inspection or, as the case may be, where and 
when copies will be available. If fees are due under Sec. 700.279(d), 
the individual requesting the record shall also be notified of the 
amount of fees due or, if the exact amount has not been determined, the 
approximate amount of fees due.
    (2) A decision denying a request for access, in whole or part, shall 
be in writing and shall state the basis for denial of the request. The 
decision shall also contain a statement that the denial may be appealed 
to the Executive Director pursuant to Sec. 700.281 by writing to Privacy 
Act Officer, Navajo and Hopi Indian Relocation Commission, P.O. Box KK, 
Flagstaff, Arizona 86002, and that the appeal must be received by this 
official within twenty (20) days (Saturdays, Sundays and public legal

[[Page 770]]

holidays excepted) of the date of the decision.
    (d) Fees. (1) No fees may be charged for the cost of searching for 
or reviewing a record in response to a request made under Sec. 700.271.
    (2) Fees for copying a record in response to a request made under 
Sec. 700.271 shall be charged in accordance with the schedule of charges 
contained in the Commission's Management Manual, unless the official 
responsible for processing the request determines that, in his/her 
opinion, reduction or waiver of fees is appropriate.
    (3) Where it is anticipated that fees chargeable in connection with 
a request will exceed the amount the person submitting the request has 
indicated he/she is willing to pay, the official processing the request 
shall notify the requester and shall not complete processing of the 
request until the requester has agreed, in writing, to pay fees as high 
as are anticipated.



Sec. 700.281  Requests for notification of existence of records and for access to records: Appeals.

    (a) Right of appeal. If an individual has been notified that he/she 
is not entitled to notification of whether a system of records contains 
records pertaining to him or has been denied access, in whole or part, 
to a requested record that individual may appeal to the Executive 
Director.
    (b) Time for appeal. (1) An appeal must be received by the Privacy 
Act Officer no later than twenty (20) days (Saturdays, Sundays and 
public legal holidays excepted) after the date of the initial decision 
on a request.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within twenty (20) days (Saturdays, Sundays and public 
legal holidays excepted) of the date of the initial decision of the 
request.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial request and the decision on the request.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the initial request to have been 
in error.
    (3) The appeal shall be addressed to Privacy Act Officer, Navajo and 
Hopi Indian Relocation Commission, Box KK, Flagstaff, Arizona 86002.
    (d) Action on appeals. (1) Appeals from decisions on initial 
requests made pursuant to Secs. 700.273 and 700.277 shall be decided for 
the Commission by the Executive Director after consultation with the 
Commission's legal counsel.
    (2) The decision on an appeal shall be in writing and shall state 
the basis for the decision.



Sec. 700.283  Requests for access to records: Special situations.

    (a) Medical records. (1) Medical records shall be disclosed to the 
individual to whom they pertain unless it is determined, in consultation 
with a medical doctor, that disclosure should be made to a medical 
doctor of the individual's choosing.
    (2) If it is determined that disclosure of medical records directly 
to the individual to whom they pertain could have an adverse effect on 
that individual, the individual may designate a medical doctor to 
receive the records and the records will be disclosed to that doctor.
    (b) Inspection in presence of third party. (1) An individual wishing 
to inspect records pertaining to him which have been opened for his 
inspection may, during the inspection, be accompanied by a person of his 
own choosing.
    (2) When such a procedure is deemed appropriate, the individual to 
whom the records pertain may be required to furnish a written statement 
authorizing discussion of his record in the accompanying person's 
presence.



Sec. 700.285  Amendment of records.

    The Privacy Act permits an individual to request amendment of a 
record pertaining to him if be believes the record is not accurate, 
relevant, timely or complete, 5 U.S.C. 552a(d)(2). A request for 
amendment of a record shall be submitted in accordance with the 
procedures in this subpart.



Sec. 700.287  Petitions for amendment: Submission and form.

    (a) Submission of petitions for amendment. (1) A request for 
amendment of a

[[Page 771]]

record shall be submitted to the system manager for the system of 
records containing the record unless the system notice describing the 
system prescribes or permits submission to a different official or 
officials. If an individual wishes to request amendment of records 
located in more than one system, a separate petition must be submitted 
to each system manager.
    (2) A petition for amendment of a record may be submitted only if 
the individual submitting the petition has previously requested and been 
granted access to the record and has inspected or been given a copy of 
the record.
    (b) Form of petition. (1) A petition for amendment shall be in 
writing and shall specifically identify the record whose amendment is 
sought.
    (2) The petition shall state, in detail, the reasons why the 
petitioner believes the record, or the portion thereof objectionable to 
him, is not accurate, relevant, timely or complete. Copies of documents 
or evidence relied upon in support of these reasons shall be submitted 
with the petition.
    (3) The petition shall state, specifically and in detail, the 
changes sought in the record. If the changes involve rewriting of the 
record or portions thereof or involve adding new language to the record, 
the petition shall propose specific language to implement the changes.



Sec. 700.289  Petitions for amendment: Processing and initial decision.

    (a) Decisions on petitions. In reviewing a record in response to a 
petition for amendment, the accuracy, relevance, timeliness and 
completeness of the record shall be assessed against the criteria set 
out in Sec. 700.261. In addition, personnel records shall be assessed 
against the criteria for determining record quality published in the 
Federal Personnel Manual and the Commission Manual addition thereto.
    (b) Authority to decide. An initial decision on a petition for 
amendment may be made only by the Privacy Act Officer.
    (c) Acknowledgement of receipt. Unless processing of a petition is 
completed within ten (10) days (Saturdays, Sundays and public legal 
holidays excepted), the receipt of the petition for amendment shall be 
acknowledged in writing by the system manager to whom it is directed.
    (d) Inadequate petitions. (1) If a petition does not meet the 
requirements of Sec. 700.287, the petitioner shall be so advised and 
shall be told what additional information must be submitted to meet the 
requirements of Sec. 700.287.
    (2) If the petitioner fails to submit the additional information 
within a reasonable time, his petition may be rejected. The rejection 
shall be in writing and shall meet the requirements of paragraph (e) of 
this section.
    (e) Form of decision. (1) A decision on a petition for amendment 
shall be in writing and shall state concisely the basis for the 
decision.
    (2) If the petitioned for amendment is rejected, in whole or part, 
the decision shall advise the petitioner that the rejection may be 
appealed to the Executive Director by writing to the Privacy Act 
Officer, Navajo and Hopi Indian Relocation Commission, Box KK, 
Flagstaff, Arizona 86002, and that the appeal must be received by this 
official within twenty (20) days (Saturdays, Sundays and public legal 
holidays excepted) of the date of the decision.
    (f) Implementation of initial decision. If a petitioned for 
amendment is accepted, in whole or part, the appropriate Commission 
Division maintaining the record shall:
    (1) Correct the record accordingly and,
    (2) Where an accounting of disclosures has been made pursuant to 
Sec. 700.269 advise all previous recipients of the record that the 
correction was made and the substance of the correction.



Sec. 700.291  Petitions for amendment: Time limits for processing.

    (a) Acknowledgement of receipt. The acknowledgement of receipt of a 
petition required by Sec. 700.289(c) shall be dispatched not later than 
ten (10) days (Saturdays, Sundays and public legal holidays excepted) 
after receipt of the petition by the system manager responsible for the 
system containing the challenged record, unless a decision on the 
petition has been previously dispatched.

[[Page 772]]

    (b) Decision on petition. A petition for amendment shall be 
processed promptly. A determination whether to accept or reject the 
petitioned for amendment shall be made within no more than thirty (30) 
days (Saturdays, Sundays, and public legal holidays excepted) after 
receipt of the petition by the system manager responsible for the system 
containing the challenged record.
    (c) Suspension of time limit. The thirty (30) day time limit for a 
decision on a petition shall be suspended if it is necessary to notify 
the petitioner, pursuant to Sec. 700.289(d) that additional information 
in support of the petition is required. Running of the thirty (30) day 
time limit shall resume on receipt of the additional information by the 
system manager responsible for the system containing the challenged 
record.
    (d) Extensions of time. (1) The thirty (30) day time limit for a 
decision on a petition may be extended if the official responsible for 
making a decision on the petition determines that an extension is 
necessary for one of the following reasons:
    (i) A decision on the petition requires analysis of voluminous 
record or records;
    (ii) Some or all of the challenged records must be collected from 
facilities other than the facility at which the official responsible for 
making the decision is located.
    (2) If the official responsible for making a decision on the 
petition determines that an extension is necessary, he shall promptly 
inform the petitioner of the extension and the date on which a decision 
is expected to be dispatched.



Sec. 700.293  Petitions for amendment: Appeals.

    (a) Right of appeal. Where a petitioned-for amendment has been 
rejected, in whole or part, the individual submitting the petition may 
appeal the denial to the Executive Director.
    (b) Time for appeal. (1) An appeal must be received no later than 
twenty (20) days (Saturdays, Sundays and public legal holidays excepted) 
after the date of the decision on a petition.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within twenty (20) days (Saturdays, Sundays and public 
legal holidays excepted) of the date of the decision on a petition.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial petition and the decision on that petition.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the petition to have been in 
error.
    (3) The appeal shall be addressed to Privacy Act Officer, Navajo and 
Hopi Indian Relocation Commission, Box KK, Flagstaff, Arizona 86002.



Sec. 700.295  Petitions for amendment: Action on appeals.

    (a) Authority. Appeals from decisions on initial petitions for 
amendment shall be decided for the Commission by the Executive Director 
after consultation with the Commission's legal counsel unless the record 
challenged by the initial petition is a Civil Service Commission 
personnel record maintained for the Commission by the Navajo and Hopi 
Indian Relocation Commission. Appeals from decisions on initial 
petitions requesting amendment of Civil Service Commission records 
maintained for the Commission by the Navajo and Hopi Indian Relocation 
Commission shall be transmitted by the Executive Director, for decision.
    (b) Time limit. (1) A final determination on any appeal shall be 
made within thirty (30) days (Saturdays, Sundays and legal public 
holidays excepted) after receipt of the appeal.
    (2) The thirty (30) day period for decision on an appeal may be 
extended, for good cause shown, by the Commission. If the thirty (30) 
day period is extended, the individual submitting the appeal shall be 
notified of the extension and of the date on which a determination on 
the appeal is expected to be dispatched.
    (c) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination.
    (2) If the determination upholds, in whole or part, the initial 
decision rejecting the petitioned for amendment, the determination shall 
also advise the individual submitting the appeal:

[[Page 773]]

    (i) Of his or her right to file a concise statement of the reasons 
for disagreeing with the decision of the agency;
    (ii) Of the procedure established by Sec. 700.297 for the filing of 
the statement of disagreement;
    (iii) That the statement which is filed will be made available to 
anyone to whom the record is subsequently disclosed together with, at 
the discretion of the Commission, a brief statement by the Commission 
summarizing its reasons for refusing to amend the record;
    (iv) That prior recipients of the challenged record will be provided 
a copy of any statement of dispute to the extent that an accounting of 
disclosure was maintained; and
    (v) Of his or her right to seek judicial review of the Commission's 
refusal to amend the record.
    (3) If the determination reverses, in whole or in part, the initial 
decision rejecting the petitioned for amendment, the system manager 
responsible for the system containing the challenged record shall be 
directed to:
    (i) Amend the challenged record accordingly; and
    (ii) If an accounting of disclosure has been made, advise all 
previous recipients of the record which was amended of the amendment and 
its substance.



Sec. 700.297  Statements of disagreement.

    (a) Filing of statements. If the determination of the Executive 
Director under Sec. 700.295 rejects in whole or part, a petitioned for 
amendment, the individual submitting the petition may file with the 
system manager for the system containing the challenged record, a 
concise written statement setting forth the reasons for his disagreement 
with the determination of the Department.
    (b) Disclosure of statements. In any disclosure of a record 
containing information about which an individual has filed a statement 
of disagreement under this section occurring after the filing of the 
statement, the disputed portion of the record will be clearly noted and 
the recipient shall be provided copies of the statement of disagreement. 
If appropriate, a concise statement of the reasons of the Commission for 
not making the requested amendments may also be provided to recipient.



  Subpart L--Determination of Eligibility, Hearing and Administrative 
                            Review (Appeals)

    Source: 46 FR 46801, Sept. 22, 1981; 47 FR 15774, Apr. 13, 1982, 
unless otherwise noted.



Sec. 700.301  Definitions.

    (a) Certifying Officer, as used in this subpart, means that member 
of the Commission staff who certifies eligibility for relocation 
assistance benefits and/or for life estate leases.
    (b) An aggrieved person, as used in this subpart, means a person who 
has been denied any relocation assistance benefits for which he/she has 
applied.



Sec. 700.303  Initial Commission determinations.

    (a) Initial Commission Determination concerning individual 
eligibility or benefits for any person who has filed a claim for 
benefits or for granting of life estate leases shall be made by the 
Certifying Officer. The Determination shall include the amount, if any, 
to which the individual is entitled, and shall state the reasons 
therefor. Such Determination shall be communicated to the Applicant by 
certified letter or in person by Commission staff. A record of personal 
notice shall be maintained by the Commission.
    (b) An explanatory conference shall be scheduled by and with the 
Certifying Officer, if requested by the Applicant or the Certifying 
Officer, within thirty days of the communication of the Determination; 
the right to a hearing is not dependent on the holding of such a 
conference. The Certifying Officer may reverse, amend, or leave standing 
the Initial Determination as a result of such conference: Provided, 
however, his/her decision shall be communicated in writing to the 
Applicant by certified letter or in person by Commission staff within 
five days after such conference.
    (c) Communications of Determinations to the Applicant as provided 
for in Sec. 700.303(a) shall include an explanation of the availability 
of grievance procedures, including hearings and representation of 
counsel and the fact

[[Page 774]]

that a hearing must be requested within 30 (thirty) days of receipt of 
the determination.
    (d) No decision which at the time of its rendition is subject to 
appeal to the Commission shall be considered final agency action subject 
to judicial review under 5 U.S.C. 704, Provided that in the event of a 
whole or partial denial, no benefits shall be paid unless and until said 
Determination is reversed or modified as provided for herein.



Sec. 700.305  Availability of hearings.

    All persons aggrieved by Initial Commission Determinations 
concerning eligibility, benefits, or for granting of life estate leases 
may have a Hearing to present evidence and argument concerning the 
Determination. Parties seeking such relief from the Commission's Initial 
Determination shall be known as ``Applicants.'' When multiple Applicants 
claim interest in one benefit, determination, or question of 
eligibility, their hearings may be consolidated at the Presiding 
Officer's discretion.



Sec. 700.307  Request for hearings.

    Hearing requests shall be made in person or by letter and must be 
received by the Commission within thirty days after the notice letter 
was received, the personal notice was given, or if an explanatory 
conference is held, after the decision of the Certifying Officer. The 
request shall also contain a specific statement indicating the basis for 
the request.



Sec. 700.309  Presiding officers.

    The hearing shall be presided over and conducted by one of the 
Commissioners appointed pursuant to 25 U.S.C. 640d-11(b) or by such 
other person as the Commission may designate.



Sec. 700.311  Hearing scheduling and documents.

    (a) Hearings shall be held as scheduled by the Presiding Officer.
    (b) Notice of the hearing shall be communicated in writing to the 
applicant at least thirty days prior to the hearing and shall include 
the time, date, place, and nature of the hearing.
    (c) Written notice of the Applicant's objections, if any, to the 
time, date, or place fixed for the hearing must be filed with the 
Presiding Officer at least five days before the date set for the 
hearing. Such notice of objections shall state the reasons therefor and 
suggested alternatives. Discretion as to any changes in the date, time, 
or place of the hearing lies entirely with the Presiding Officer, 
Provided, that the 30 (thirty) day notice period as provided in 
paragraph (b) of this section shall be observed unless waived in writing 
by the applicant or his representative.
    (d) All hearings shall be held within thirty days after Commission 
receipt of the applicant's request therefor unless this limit is 
extended by the Presiding Officer.
    (e) All hearings shall be conducted at the Commission office in 
Flagstaff, Arizona, unless otherwise designated by the Presiding 
Officer.
    (f) All time periods in this regulation include Saturdays, Sundays 
and holidays. If any time period would end on a Saturday, Sunday, or 
holiday, it will be extended to the next consecutive day which is not a 
Saturday, Sunday, or holiday.
    (g) A copy of each document filed in a proceeding under this section 
must be filed with the Commission and may be served by the filing party 
by mail on any other party or parties in the case. In all cases where a 
party is represented by an attorney or representative, such attorney or 
representative will be recognized as fully controlling the case on 
behalf of his client, and service of any document relating to the 
proceeding shall be made upon such attorney or representative, which 
service shall suffice as if made upon the Applicant. Where a party is 
represented by more than one attorney or representative, service upon 
one of the attorneys or representatives shall be sufficient.
    (h) Hearings will be recorded verbatim and transcripts thereof shall 
be made when requested by any parties; costs of transcripts shall be 
borne by the requesting parties unless waived according to 
Sec. 700.313(a)(5).
    (i) Applicants may be represented by a licensed attorney or by an 
advocate licensed to practice in any Hopi or Navajo Tribal Court.

[[Page 775]]



Sec. 700.313  Evidence and procedure.

    (a) At the hearing and taking of evidence the Applicant shall have 
an opportunity to:
    (1) Submit and have considered facts, witnesses, arguments, offers 
of settlement, or proposals of adjustment;
    (2) Be represented by a lawyer or other representative as provided 
herein;
    (3) Have produced Commission evidence relative to the determination, 
Provided, that the scope of pre-hearing discovery of evidence shall be 
limited to relevant matters as determined by the Presiding Officer;
    (4) Examine and cross-examine witnesses;
    (5) Receive a transcript of the hearing on request and upon payment 
of appropriate Commission fees as published by the Commission, which may 
be waived in cases of indigency.
    (b) The Presiding Officer is empowered to:
    (1) Administer oaths and afffirmations;
    (2) Rule on offers of proof;
    (3) Receive relevant evidence;
    (4) Take depositions or have depositions taken when the ends of 
justice would be served and to permit other pre-hearing discovery within 
his/her discretion;
    (5) Regulate the course and conduct of the hearings; including pre-
hearing procedures;
    (6) Hold pre-hearing or post-hearing conferences for the settlement 
or simplification of the issues;
    (7) Dispose of procedural requests or similar matters;
    (8) Make a record of the proceedings;
    (9) Hold the record open for submission of evidence no longer than 
fourteen days after completion of the hearings;
    (10) Make or recommend a decision in the case based upon evidence, 
testimony, and argument presented;
    (11) Enforce the provisions of 5 USCA section 557(d) in the event of 
a violation thereof;
    (12) Issue subpoenas authorized by law; and
    (13) Extend any time period of this subpart upon his/her own motion 
or upon motion of the applicant, for good cause shown.



Sec. 700.315  Post hearing briefs.

    Applicants may submit post-hearing briefs or written comments to the 
Presiding Officer within fourteen days after conclusion of the hearings. 
In the event of multiple applicants or parties to a hearing, such briefs 
shall be served on all such applicants by the applicant submitting the 
brief.



Sec. 700.317  Presiding officer decisions.

    (a) The Presiding Officer shall submit to the Commission a written 
decision based upon the evidence and argument presented, within sixty 
days, not including any period the record is held open, if any, after 
conclusion of the hearing, unless otherwise extended by the Presiding 
Officer.
    (b) Copies of the Presiding Officer's decision shall be mailed to 
the Applicant. The Applicant may submit briefs or other written argument 
to the Commission within fourteen days of the date the Presiding 
Officer's determination was mailed to the Applicant.



Sec. 700.319  Final agency action.

    Within 30 (thirty) days after receipt of the Presiding Officer's 
decision, the Commission shall affirm or reverse the decision and issue 
its final agency action upon the application in writing; Provided, that 
in the event one Commissioner sits as the Presiding Officer, the final 
agency action shall be determined by the remaining Commissioners and 
such other person as they may designate who did not so preside over the 
hearing. Such decisions shall be communicated in writing to the 
Applicant by certified mail.



Sec. 700.321  Direct appeal to Commissioners.

    Commission determinations concerning issues other than individual 
eligibility or benefits which do not require a hearing may be appealed 
directly to the Commission in writing. The Commission decision will 
constitute final agency action on such issues.



                      Subpart M--Life Estate Leases

    Authority: Sec. 30(b), Pub. L. 96-305, 94 Stat. 929 (25 U.S.C. 
640d).

    Source: 46 FR 27921, May 22, 1981; 47 FR 15774, Apr. 13, 1982, 
unless otherwise noted.

[[Page 776]]



Sec. 700.331  Application for life estate leases.

    The following standards and procedures shall govern the application 
for life estate leases:
    (a) Filing of application. Applications for life estate leases shall 
be filed at the Commission's office in Flagstaff, AZ, not later than 
July 1, 1981, unless extended for good cause. Application should be made 
on an approved Commission form known as ``Application for Life Estate 
Lease'' and should contain the following information:
    (1) Name, address, birthdate, social security number, census number, 
spouse, and date of marriage, if married. The head of household who 
applies for a life estate lease shall be known as the ``applicant''.
    (2) Applicant's Quad Map location in the Former Joint Use Area.
    (3) Information listing any other places of Applicant's residence 
since December 22, 1974.
    (4) Name, birthdate, census number, and social security number, if 
any, of the applicant's minor dependent children.
    (5) A statement by the applicant setting forth the nature of the 
applicant's disability, if any.
    (6) Applications should be accompanied, wherever possible, with 
documentation such as Birth Certificates, Baptismal Records, Tribal 
Records, Family Census Cards, Marriage Certificates, Tax Returns, and 
such other documentation required by the Commission.
    (b) Extensions of time for filing of applications for life estate 
leases. Extensions of time for filing of applications for life estate 
leases shall be governed by the following procedures:
    (1) The Commission shall, on a case-by-case basis, determine whether 
good cause exists to warrent a time extension for the receipt of 
applications.
    (2) Initial Commission determinations concerning the time extension 
for receipt of applications shall be made by the Certification Officer. 
Any extensions granted shall be in writing and shall state the length of 
the extensions and the reasons therefore.
    (3) In no event shall an extension be granted for more than eighty-
nine (89) days after July 1, 1981.
    (4) In the event an extension of time is denied or an application is 
refused for filing, the Certification Officer shall state the reasons 
therefore and such determination shall be communicated to the applicant 
by certified letter or in person by Commission staff.
    (5) All persons aggrieved by initial Commission determination may 
have a hearing to present evidence and argument concerning the 
determination. Such hearings shall be requested and governed by the 
Commission's Hearings and Administrative Review Procedures contained in 
Sec. 700.8 of the Commission's Operations and Relocation Procedures.
    (6) For purpose of this subsection, ``good cause'' shall be defined 
as follows:
    (i) Lack of actual notice.
    (ii) Lack of transportation or physical incapacity preventing timely 
filing.
    (iii) Acts of God.
    (iv) Such other facts or reasons deemed sufficient in the discretion 
of the Commission.



Sec. 700.333  Determination of disability.

    The Commission shall determine disability pursuant to the following:
    (a) An applicant shall be considered to be disabled if he/she is 
unable to engage in any substantial gainful activity by reason of any 
medically determined physical or mental impairment which can be expected 
to result in death or which has lasted or can be expected to last for a 
continuous period of not less than twelve months. A physical or mental 
impairment is an impairment that results from anatomical, physiological, 
or psychological abnormalities which are demonstrable by medically 
acceptable clinical and laboratory diagnostic techniques.
    (b) Each applicant who claims entitlement to a life estate lease by 
virture of a disability shall be examined by a physician selected by the 
Commission or one selected by the applicant and approved by the 
Commission. The reasonable costs of such examinations shall be paid by 
the Commission. The examining physician shall submit a report of his/her 
examination to the rating physician who shall be a physician

[[Page 777]]

selected by the Commission. The rating physician shall submit to the 
Commission a report stating his/her opinion as to whether or not the 
applicant is a least 50% (fifty percent) disabled and if so, the percent 
of disability. In addition, the rating physician shall state in his/her 
report the conditions or conditions of the applicant upon which the 
rating is based.
    (c) In performing examinations and in making ratings, the physician 
shall follow the procedures and adopt the standards set forth in Subpart 
I--Determination of Disability or Blindness, of the Social Security 
Administration, contained in title 20, Code of Federal Regulations, 
Secs. 416.901 through 416.985, including the appendices, etc., to the 
extent that such procedures and standards are appropriate to this 
examination and rating.
    (d) In making its determination as to the disability and the 
percentage thereof of an applicant who claims disability, the Commission 
shall consider the report of the rating physician and such other matters 
as the Commission deems relevant.



Sec. 700.335  Grouping and granting of applications for life estate leases.

    Upon receipt of applications filed pursuant to this section, the 
Commission shall group and award life estate leases in the following 
manner:
    (a) Applicants who are determined to be at least 50% (fifty percent) 
disabled as certified by a physician approved by the Commission. Such 
applicants shall be ranked in the order of the severity of their 
disability.
    (b) Applicants who are not at least 50% (fifty percent) disabled 
shall be ranked in order of their age with the oldest listed first and 
the youngest listed last; provided that, if any applicant physically 
resides in Quarter Quad Numbers 78 NW, 77NE, 55SW, or 54 SE, as 
designated on the Quarter Quad Maps of the Former Joint Use Area 
prepared by the Bureau of Indian Affairs Field Administrative Office, 
such applicant shall be given priority over another applicant of equal 
age.
    (c) Applicants who did not, as of December 22, 1974, and 
continuously thereafter, maintain a separate place of abode and actually 
remain domiciled on Hopi Partitioned Lands, and who, but for this 
subsection would be required to relocate, shall be rejected by the 
Commission.
    (d) Applicants who were not at least forty-nine (49) years of age on 
December 22, 1974, or are not at least 50% (fifty percent) disabled 
shall also be rejected by the Commission.
    (e) The Commission shall award life estate leases to not more than 
one hundred and twenty (120) Navajo applicants with first priority being 
given to applicants listed pursuant to Sec. 700.335(a) and the next 
priority being given to applicants listed pursuant to Sec. 700.335(b), 
in order of such listing.
    (f) The Commission shall award life estate leases to not more than 
ten (10) Hopi applicants with first priority being given to applicants 
listed pursuant to Sec. 700.335(a) and the next priority being given to 
applicants listed pursuant to Sec. 700.335(b) in order of such listing 
except that the portion of Sec. 700.335(b) concerning residency in 
Quarter Quad Numbers 78 NW, 77NE, 77NW, 55 SW, 54SE, etc., shall not 
apply to Hopi applicants.



Sec. 700.337  Establishment of boundaries of life estate leases.

    (a) Prior to the issuance of a life estate lease, the Commission 
shall, after consultation with the Tribe upon whose land the life estate 
lease will be located, establish the actual configuration, shape and 
boundaries of the land area of the life estate lease. The present 
residence of the life tenant shall be within the boundaries of the life 
estate lease and the area of the life estate lease shall not exceed 
ninety (90) acres.
    (b) The following factors will be considered in establishing the 
configuration, shape, and boundaries of a life estate lease:
    (1) The location of the present residence of the applicant and the 
traditional land use area associated with such residence.
    (2) The topography and soil conditions of the land in the immediate 
vicinity of the applicant's present residence.
    (3) The location of the nearest source of water.
    (4) The proximity of roads.

[[Page 778]]

    (5) Such other factors may be necessary or appropriate.



Sec. 700.339  Residency on life estate leases.

    (a) No person may reside on a life estate lease other than the life 
tenant, his or her spouse, and minor dependents and such persons who are 
necessarily present, as determined by the Commission, to provide for the 
care of the life tenant.
    (b) In determining who is necessarily present for the care of the 
life tenant, the Commission shall consider the following criteria:
    (1) The age of the life tenant.
    (2) The nature and extent of the life tenant's disability, if any.
    (3) The location of the life estate lease, including but not limited 
to, the following factors:
    (i) Topography,
    (ii) Proximity to water,
    (iii) Proximity to fuel,
    (iv) Proximity to shopping and medical services, and
    (v) Any other factors deemed relevant to the Commission.
    (4) The nature and extent of care to be provided to a disabled life 
tenant.
    (5) Any other factors deemed relevant by the Commission.
    (c) In the event it becomes necessary to change the identity of the 
person(s) or number of persons identified as necessarily present for the 
care of the life tenant, the life tenant shall make such request for 
change to the Commission. The Commission, upon review of the request, 
may grant an amended life estate lease to reflect the requested change.



Sec. 700.341  Access to life estate leases.

    (a) Family members and other persons may enter upon the life estate 
lease premises for the purpose of visiting the life estate lease 
residents so long as such visit does not exceed thirty (30) consecutive 
days in any one visit or ninety (90) days total of all visits within any 
lease year, except that grandchildren and their descendants who are not 
minor dependents of the life tenant and who have not attained the age of 
18 (eighteen) years may visit for ninety (90) consecutive days in any 
lease year, the first of which shall commence on the date of issuance of 
the life estate lease. There shall be no limitation on visits which do 
not extend overnight.
    (b) Visitors and residents shall use the existing road systems and 
access rights of way when traveling to and from life estate lease 
premises.



Sec. 700.343  Life estate leases.

    The Commission shall execute a life estate lease to each applicant 
to whom a life estate lease is granted, which lease shall contain the 
following:
    (a) The names of the persons entitled to reside on the life estate 
lease which shall be the life tenant, his or her spouse, and minor 
dependents and/or such persons who are necessarily present to provide 
for the care of life tenant.
    (b) A description of the exterior boundaries of the land included in 
said lease.
    (c) The term of the life estate lease which shall end either upon 
voluntary relinquishment or upon the death of the life tenant or his/her 
spouse, whichever occurs last.
    (d) That the life tenant may feed not to exceed twenty-five (25) 
sheep units per year or equivalent livestock on the life estate lease 
premises.
    (e) That no person may reside on a life estate lease other than the 
life tenant, his or her spouse, and minor dependents, and/or such 
persons who are necessarily present to provide for the care of the life 
tenant.
    (f) That the Secretary of Interior shall pay, pursuant to 25 U.S.C. 
640d-28(i), Pub. L. 96-305, section 30(i), on an annual basis, the fair 
market rental value of such life estate lease to the tribe to whom the 
lands leased were partitioned. Rental payments shall be made within 
thirty (30) days of the execution date of the life estate lease.
    (g) That the life tenant may make reasonable improvements on the 
life estate lease which are related to the residence and agricultural 
purposes of the life tenancy as determined by the Commission. Such 
improvements:
    (1) May include the renovation or replacement of existing dwelling 
structures and privies or outhouses so as to improve their utility, 
safety or level of modern utilities or amenities, but

[[Page 779]]

    (2) Shall not increase the number, size, or capacity of dwelling 
structures on the leased area except with the express written approval 
of the Commission based upon a showing of actual need, or to reasonably 
accommodate a resident care provider for whom there is not adequate 
existing residential capacity.
    (3) May include not more than one shed or barn to be used in 
connection with livestock and/or agricultural activities permitted.
    (4) May include one ceremonial hogan and one traditional ramada type 
structure.
    (5) May include a garden of reasonable size.
    (6) May include such other improvements as the Commission finds to 
be reasonable under the circumstances of each lease.
    (h) That no person may visit on a life estate lease for more than 
thirty (30) consecutive days in any one visit or ninety (90) days total 
of all visits within any lease year the first of which shall commence on 
the date of issuance of the life estate lease, except that grandchildren 
and their descendants who are not minor dependents of the life tenant 
and who have not attained the age of eighteen (18) years may visit for 
ninety (90) consecutive days in any lease year. There shall be no 
limitation on visits which do not extend overnight.
    (i) That said life tenant or his or her surviving spouse may 
relinquish said life estate lease at any time and may receive relocation 
benefits from the Secretary at the time of relinquishment as provided in 
25 U.S.C. 640d-28(h), (Pub. L. 96-305, section 30(h)).
    (j) The purposes for which the life estate lease may be used.
    (k) The life estate tenure shall end by voluntary relinquishment, or 
at the death of the life tenant or the death of his or her spouse, 
whichever occurs last, all as provided in 25 U.S.C. 640d-28(g) (Pub. L. 
96-305, section 30(g)).
    (l) No livestock shall be allowed in the lease area until the 
perimeter of the lease area is fenced.
    (m) Such other terms and conditions deemed necessary or appropriate 
by the Commission.



                     Subpart N--Discretionary Funds

    Source: 47 FR 57916, Dec 29, 1982, unless otherwise noted.



Sec. 700.451  Purpose.

    (a) The purpose of this subpart is to establish procedures for the 
submission, review and approval, and administration of applications for 
financial assistance from the discretionary fund established by Pub. L. 
93-531, as amended.
    (b) The purpose of the discretionary fund is to provide financial 
assistance to activities which will facilitate and expedite the 
relocation and resettlement of individuals under the Act and ease the 
hardship incurred by these individuals.



Sec. 700.453  Definitions.

    (a) Act means Pub. L. 93-531 (88 Stat. 1712, 25 U.S.C. 640d), as 
amended.
    (b) Applicant means with respect to this subpart, any applicant as 
defined under Sec. 700.457(c) or Sec. 700.459(b).
    (c) Business means any lawful activity, except a nonprofit 
organization, that is--
    (1) Conducted primarily for the purchase, sale, lease and/or rental 
of personal and/or real property, and/or for the manufacture, 
processing, and/or marketing of products, commodities, and/or any other 
personal property; or
    (2) Conducted primarily for the sale of services to the public.
    (d) Commissioners means the three Commissioners of the Navajo and 
Hopi Indian Relocation Commission.
    (e) In-kind contribution means a noncash contribution as described 
in attachment F of OMB Circular A-102.
    (f) Local government means a local unit of government including 
specifically a county, municipality, city, town, township, local public 
authority, special district, council of governments, and other regional 
or interstate entity, or any agency or instrumentality of a local 
government.
    (g) Nonprofit organization means a corporation, partnership, 
individual, or other public or private entity that is engaged in a 
lawful business, professional, or instructional activity on a

[[Page 780]]

nonprofit basis and that has established its nonprofit status under 
applicable Federal, State, or Tribal law.
    (h) Related facilities means any building or structure normally 
found in a community and includes but is not limited to water, sewer and 
electrical lines, community centers, health centers and clinics, roads, 
and business establishments.
    (i) Services means activities relating to human development 
including, but not limited to, educational and job training, mental 
health counseling, health care, and technical assistance in business 
administration, agriculture, and home economics.
    (j) Tribe means the Navajo Chapter or the Hopi Village.
    (k) Tribal subdivision means a Navajo Chapter or a Hopi Village.



Sec. 700.455  Financial assistance.

    (a) The Commission may provide financial assistance to applicants 
eligible under this subpart from funds available for any fiscal year.
    (b) To obtain financial assistance, an applicant shall submit an 
application in accordance with Sec. 700.463.
    (c) The Commission may make funding decisions throughout the year as 
applications are approved. The Commission shall, to the extent possible, 
make funds available throughout the year for approved applications. 
Based upon the merit of applications received under this subpart, the 
Commission shall determine how funds available under this subpart shall 
be apportioned among the activities described in Secs. 700.457 and 
700.459.



Sec. 700.457  Assistance to match or pay 30% of grants, contracts or other expenditures.

    (a) The purpose of applications for financial assistance under this 
section shall be to aid individuals subject to relocation under the Act 
and to assist the host communities, towns, cities, or other entities in 
adjusting to and meeting the needs of the relocatees. For this purpose, 
the discretionary fund may be used to match or pay not to exceed 30% 
(thirty percent) of any grant, contract, or other expenditure of the 
Federal Government, State or local government, tribal government or 
chapter, or private organization for the benefit of the Navajo or Hopi 
Tribe, if the Commission determines that such grant, contract, or 
expenditure would significantly assist the Commission in carrying out 
its responsibility or assist either tribe in meeting the burdens imposed 
by this Act.
    (b) An ``other expenditure'' under this subsection is defined as 
cooperative agreements, direct provision of services, or in-kind 
contributions. The Commission may match or pay not to exceed 30% (thirty 
percent) of another expenditure through a grant, contract, or 
cooperative agreement.
    (c) Eligible applicants under this section for a grant, contract, or 
cooperative agreement are defined as States, local government, the 
Navajo and Hopi Tribes, tribal chapters or villages and profit and 
nonprofit organizations.
    (d) Total Federal financial assistance under this section may reach 
100% (one hundred percent) if the applicant receives 70% (seventy 
percent) Federal funding from Federal agencies other than the 
Commission.
    (e) When another Federal agency is a primary source of financial 
assistance for an applicant, the Commission may, pursuant to an 
interagency agreement, transfer funds to the primary Federal agency 
providing financial assistance to the applicant.
    (f) The Commission may, pursuant to an interagency agreement, 
transfer not to exceed 10% (ten percent) of the funds available under 
this subpart to another Federal agency directly assisting relocatees if 
such agency's activities would accomplish the purpose of paragraph (a) 
of this section. Financial assistance transferred to accomplish an 
eligible activity under paragraph (a) of this section may not exceed the 
funding limitation of paragraph (a) of this section.
    (g) An applicant may apply for financial assistance under this 
section in accordance with the funding limitations described in 
paragraph (a) for the purpose of undertaking a technical feasibility 
study of a construction project or any major project with a total 
funding of over $200,000 (two hundred thousand dollars) or any dollar 
amount which the Commission may prescribe at some future time.

[[Page 781]]



Sec. 700.459  Assistance for demonstration projects and for provision of related facilities and services.

    (a) The purpose of applications for financial assistance under this 
section shall be to aid individuals subject to relocation under the Act. 
For this purpose, the discretionary fund may be used by the Commission 
to engage or participate either directly through Federal activities, or 
by cooperative agreement, grant, or contract in demonstration efforts to 
employ innovative energy or other technologies in providing housing and 
related facilities and services in the relocation and resettlement of 
individuals under this Act.
    (b) Applicants eligible under this section to receive grants, 
cooperative agreements or contracts are: states, local governments, the 
Navajo and Hopi Tribes, tribal chapters, profit and nonprofit 
organizations, and individuals.
    (c) Applicants for assistance under this section may receive up to 
100% (one hundred percent) project or program funding from the 
Commission, however, the Commission may specify whether applications for 
certain types of programs or projects under this section require 
matching funding from the applicant.
    (d) Activities described in Sec. 700.457(a) and paragraph (a) of 
this section may be provided by the Commission through in-house 
activities which receive financial assistance under this section.
    (e) The Commission may, pursuant to an interagency agreement, 
transfer not to exceed 10% (ten percent) of the funds available under 
this subpart to another Federal agency directly assisting relocatees if 
such agency's activities would accomplish the purpose of 
Secs. 700.457(a) and 700.459(a).
    (f) An applicant may apply for financial assistance under this 
section for the purpose of undertaking a technical feasibility study of 
a construction project, or any major project with a total planned 
funding of over $200,000, (two hundred thousand dollars) or any dollar 
amount which the Commission may prescribe at some future time.



Sec. 700.461  Method for soliciting applications.

    (a) The Commission shall utilize two methods to solicit applications 
for funding:
    (1) The Commission shall issue an annual announcement of the 
availability of funds for programs which will most effectively meet the 
purposes of Sec. 700.457(a) or 700.459(a). Applicants submitting 
applications under this announcement must demonstrate that the proposed 
project or program will effectively facilitate and expedite the 
relocation effort of the Commission.
    (2) As priority needs are identified by the Commission, calls shall 
be issued during the fiscal year for specific proposals. Requests for 
proposal shall define the need to be addressed and the scope of work 
required.
    (b) The annual announcements of the availability of funds and 
periodic requests for proposals shall be issued through the Commerce 
Business Daily and media which has regional and local circulation. The 
Commission may fund approved applications through grant, contract, or 
direct provision of services, pursuant to Pub. L. 93-531, as amended.



Sec. 700.463  Requirements for applications.

    (a) Applicants shall submit preapplications for funding assistance. 
The preapplication shall be due by the closing date published by the 
Commission, and shall consist of:
    (1) Standard Form 424;
    (2) A brief narrative not to exceed one page describing how the 
program or project will meet the priorities established by the 
Commission pursuant to Sec. 700.457 or Sec. 700.459.
    (b) The Commission shall respond to each preapplication, and shall 
request each person submitting an acceptable preapplication to submit an 
application.
    (c) Applications for financial assistance for a project or program 
may be submitted by the due date established by the Commission for a 
particular funding cycle. Applications received after the due date will 
be considered for the next funding cycle, although the Commission, at 
its discretion, may select such a project for funding under

[[Page 782]]

the current cycle. An original and 5 (five) copies of each application 
must be submitted to the Commission. Applications shall be submitted on 
such forms as the Commission may prescribe in conformity with OMB 
circulars A102 or A110.
    (d) Applications under Sec. 700.457 for matching financial 
assistance not to exceed 30% of another expenditure, shall include:
    (1) A detail sheet showing the sources of matching funds, including 
both cash and in-kind contributions, and documentation that the 
applicant has fulfilled all of the requirements of any Federal agency, 
state or local government or chapter, or private organization from which 
the financial assistance is also requested; and
    (2) A narrative statement which includes an explanation of how the 
application would aid relocatees and assist the host communities, towns, 
cities, or other entities in adjusting to and meeting the needs of 
relocatees.
    (e) Applications for financial assistance under Sec. 700.459 must 
justify the proposed project or program as a demonstration effort in 
order to be eligible for 100% funding.
    (f) Applications shall contain a statement of how the applicant 
plans to comply with the provisions of the Indian Self-Determination Act 
(25 U.S.C. 450e) and the Act of April 16, 1934 (48 Stat. 596) as amended 
(25 U.S.C. 452-457).



Sec. 700.465  Technical feasibility.

    Unless required by a non-Commission source of financial assistance, 
completed plans and specifications are not required at the time an 
application is submitted for construction, technology, or another 
engineering project, however, an application for a construction, 
technology or another engineering project shall:
    (a) Include sufficient information to determine the nature and scope 
of the project, its probable useful life, and a reasonable estimate of 
cost;
    (b) Fully show that the applicant will follow design and performance 
criteria which conform to professionally recognized standards and which 
adequately define the technical capability of the project to serve 
current and foreseeable needs; and
    (c) Justify any evidence or use of unorthodox design.
    (d) Show that the applicant has a management plan for the facility 
which identifies probable sources of operating funds.
    (e) An applicant who is awarded a grant under Sec. 700.465 is 
required to submit completed plans and specifications for the 
construction, technology, or other engineering project prior to 
construction. The Commission shall review the completed plans and 
specifications for technical adequacy as part of its oversight function.



Sec. 700.467  Construction costs.

    Construction costs and costs relating to construction such as 
machinery and equipment, architect/engineer services, and administrative 
services may be allowable as determined by the Commission.



Sec. 700.469  Unallowable program and project costs.

    Costs for program or project operating expenses are not allowable 
except in the following cases--
    (a) An application for an annual contract for services under 
Sec. 700.457 or 700.459 may include necessary operating expenses; and
    (b) An application for a demonstration effort under Sec. 700.459 may 
include costs relating to the operation of the demonstration.



Sec. 700.471  Review and approval.

    (a) Upon receipt of an application for financial assistance under 
this subpart, members of the Commission staff shall begin a preliminary 
review of the application with the intent of submitting a recommendation 
to the Commissioners of whether to accept or deny the application. The 
Commission staff may inform the applicant before its recommendation to 
the Commissioners, of any special problems or impediments which may 
result in a recommendation for disapproval; may offer any available 
technical assistance required to overcome such problems or impediments; 
and solicit the applicants written response.

[[Page 783]]

    (b) The Commission staff may solicit comments on an application from 
technical specialists, community groups and others, when such advice is 
needed to fully evaluate the application.
    (c) The Commission staff shall forward the application with their 
recommendation to the Commissioners. The Commissioners may approve 
applications if they determine that:
    (1) The application meets the requirements of this subpart;
    (2) The application meets the intent of the Act;
    (3) The application fully demonstrates that it will expedite the 
relocation and resettlement of individuals under the Act and ease the 
hardship incurred by these individuals or by the Tribes;
    (4) The application is compatible with priorities identified by the 
Commission;
    (5) The applicant can carry out the activities described in the 
application and can maintain proper financial controls on the activities 
for which financial assistance is requested;
    (6) The applicant can and will comply with requirements for Indian 
preference in employment and training in connection with the 
administration of the grant, and preference to Indian organizations and 
Indian owned economic enterprises in the award of subcontracts or 
subgrants; and
    (7) Funds are available.
    (d) All applicants shall be notified in writing of the Commission's 
approval or disapproval of the grant applications.



Sec. 700.473  Administrative expenditures of the Commission.

    The Commission may use funds in an amount not to exceed 5 percent of 
the funds authorized under this subpart for expenses relating to the 
administration of the discretionary fund including--
    (a) Personnel, whose time is expended directly in support of such 
administration;
    (b) Supplies which are expended directly in support of such 
administration;
    (c) Contracts, where the work performed is directly related to such 
administration;
    (d) Printing, directly in support of such administration; and
    (e) Travel, directly related to such administration.



Sec. 700.475  Reports.

    Reports shall be furnished by any recipient of financial assistance 
under this subpart, in such manner as may be required by the Commission.



Sec. 700.477  Administration of financial assistance and recordkeeping requirements.

    (a) A State or local government (except an institution of higher 
education or a hospital since they are governed by paragraph (b) of this 
section), or the Navajo or Hopi Tribe receiving a grant or cooperative 
agreement under this subpart shall comply with applicable law including 
the following requirements--
    (1) Office of Management and Budget Circular A-102, entitled 
``Uniform Administrative Requirements for Grants-in-Aid to State and 
Local Governments'' including attachment C describing recordkeeping 
requirements; and
    (2) Federal Management Circular 74-4 5 CFR part 1310, entitled 
``Cost Principles Applicable to Grants and Contracts with State and 
Local Governments.''
    (b) A nonprofit organization, institution of higher education, or 
hospital receiving a grant or cooperative agreement under this subpart 
shall comply with applicable law including the following requirements--
    (1) Office of Management and Budget Circular A-110, entitled 
``Grants and Agreements with Institutions of Higher Education, Hospitals 
and Other Nonprofit Organizations'' including attachment C describing 
recordkeeping requirements; and
    (2) Office of Management and Budget Circular A-122, entitled ``Cost 
Principles for Nonprofit Organizations.''
    (c) A profit organization receiving a grant or cooperative agreement 
under this subpart shall comply with applicable law including Federal 
Procurement Regulations (41 CFR subpart 1-15.2) for determining the 
reasonableness, allowability, and allocability of costs.

[[Page 784]]

    (d) A profit organization, tribal chapter, or individual receiving a 
grant or cooperative agreement under this subpart shall--
    (1) Follow sound and proper procedures for the administration of the 
financial assistance including any procedures established by the 
Commission; and
    (2) Retain records as required by the Commission.
    (e) A State, local government, the Navajo or Hopi Tribe, a tribal 
chapter or an individual receiving a contract under this subpart shall 
comply with applicable law including Federal Procurement Regulations (41 
CFR parts 1-1 through 1-30). Recordkeeping requirements for contracts 
are described in Secs. 1-3.814-2, 1-7.103-3, 1-7.103-18, 1-7.603-20, and 
1-7.603-7 of the Federal Procurement Regulations.
    (f) A State, local government, profit or nonprofit organization, or 
an individual residing off of the Navajo or Hopi reservation applying 
for a grant or cooperative agreement under this subpart shall comply 
with Office of Management and Budget Circular A-95, entitled 
``Evaluation, Review and Coordination of Federal and Federally Assisted 
Programs and Projects'' unless exempted under Part I, section 8.b. of 
this circular.
    (g) Recipients of financial assistance under this subpart shall 
comply with other procedures which the Commission may from time to time 
prescribe for the administration of financial assistance provided under 
this subpart.
    (h) A state or local government, nonprofit organization, institution 
of higher education, hospital, profit organization or individual 
receiving a grant, subgrant, contract or subcontract under this part 
shall comply with the provisions of the Indian Self-Determination Act 
(25 U.S.C. 450e) and the Act of April 16, 1934 (48 Stat. 596) as amended 
(25 U.S.C. 452-457) which require that to the greatest extent feasible:
    (1) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants shall be 
given to Indians; and
    (2) Preference in the award of subcontracts and subgrants in 
connection with the administration of such contracts or grants shall be 
given to Indian organization and to Indian owned economic enterprises as 
defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77) 
(25 U.S.C. 1452).



Sec. 700.479  Administrative review.

    (a) If the Commissioners determine that implementation of an 
application approved according to Sec. 700.471 fails to meet the 
requirements of this subpart, the Commissioners shall give notice to the 
recipient of their intent to terminate or suspend financial assistance 
to the recipient.
    (b) The Commission shall issue such notice in written form sent by 
registered mail, return receipt requested, which notice shall include a 
statement of the reasons for the findings referred to in paragraph (a) 
of this section, and an explanation whether any amendments or actions 
would result in compliance with grant terms and conditions.
    (c) Any person whose approved financial assistance is terminated or 
suspended under paragraph (b) of this section may request a review of 
such action by the Commission. Such request for review shall be in 
writing and must be mailed or delivered to the Commission not later than 
thirty (30) days after receipt of the notice from the Commission by the 
applicant. Such request for review shall state the reasons for the 
request and shall include any additional matters not before the 
Commission which the applicant deems appropriate. The Commission may 
grant or deny a review at its discretion and shall inform the applicant 
of its decision in writing.



             Subpart O--Employee Responsibility and Conduct

    Source: 47 FR 11858, Mar. 19, 1982, unless otherwise noted.



Sec. 700.501  Statement of purpose.

    This part prescribes appropriate standards of conduct and 
responsibilites, financial disclosure reports, and rules of ethics in 
the conduct of Government business that are mandatory for all who serve 
with the Navajo and Hopi Indian Relocation

[[Page 785]]

Commission, and in order to implement the requirements of law, Executive 
Order 11222 and 5 CFR part 905. The rules promulgated by the Commission 
as essential to agency operations are in addition to the criminal laws 
and other laws governing conduct of Federal employees. Like the laws, 
they will be strictly interpreted and firmly enforced. Ignorance of 
these rules or laxity in observance or enforcement of them will not be 
condoned. They are the prime responsibility of all Commission personnel.



Sec. 700.503  Definitions.

    (a) ``Special Government Employee'': An officer or employee who has 
been employed to perform temporary duties, with or without compensation, 
for not more than 130 days during any period of 365 consecutive days, 
either on a full-time or intermittent basis (18 U.S.C. 202(a)).
    (b) ``Employee'': Any officer or employee of the Commission who is 
not a special government employee.
    (c) ``Commission personnel'': All officers and employees of the 
Commission, including special Government employees.
    (d) ``Persons'': An individual, corporation, company, association, 
firm, partnership, society, joint stock company, or any other 
organization or institution.
    (e) ``Gratuity'': Any gift, honorarium, favor, entertainment, 
hospitality, transportation, loan, or any other tangible thing, and any 
other intangible benefit (i.e. discounts) given to or on behalf of 
Commission employees or their spouses or dependent children for which 
fair market value is not paid by the recipient or by the Government.



Sec. 700.505  Coverage.

    The regulations contained in this part apply to all Commission 
personnel. Exceptions applicable to special Government employees and 
members of the Senior Executive Service are noted in the body of this 
part.



Sec. 700.507  Responsibilities.

    (a) Office of the Commission and Office of Executive Direction. (1) 
The Chairman of the Commission shall prepare and submit to the Office of 
Personnel Management for approval, standards of employee conduct which 
implement requirements of law, Executive Order 11222 and provisions of 5 
CFR part 905; and prescribe additional standards of ethical and other 
conduct and reporting requirements that are appropriate to the agency. 
After OPM approval, the Chairman shall submit the agency's regulations 
to the Federal Register for publication. These requirements also apply 
to any amendments to agency regulations.
    (2) The Commissioners shall appoint a Designated Agency Ethics 
Official and Deputy Ethics Official in accordance with 5 CFR 738.202(b). 
Responsibilities of these officials are described below in Sec. 735.15.
    (3) The Executive Director shall ensure that the regulations 
published under this part are disseminated to all Commission personnel 
and that staff are familiar with and understand the standards of conduct 
and statutes governing conflicts of interest and post Federal employment 
restrictions.
    (4) The Executive Director shall ensure that disciplinary or 
remedial action is taken in the case of all agency personnel who violate 
these standards or related laws and regulations, and against supervisors 
who fail to carry out their responsibilities in taking disciplinary or 
remedial action in such cases.
    (b) Managers and supervisors. Managers and supervisors shall ensure 
that all Commission personnel under their supervision are familiar with 
and understand these regulations governing standards of conduct, 
conflict of interest, and referenced statutory restrictions, and adhere 
to them at all times. Issues and problems which cannot be resolved 
through the discussion process inherent in the supervisor-employee 
relationship shall be referred to the Designated Agency Ethics Official. 
Managers and supervisors shall ensure that disciplinary or remedial 
action is taken with all agency personnel who violate these regulations, 
and against subordinate supervisors who fail to carry out their 
responsibilities for effecting or recommending disciplinary or remedial 
action in these cases.

[[Page 786]]

    (c) Employees. All Commission personnel shall be familiar with the 
standards of conduct governed in this directive and the laws governing 
conflicts of interest and post employment restrictions, and shall comply 
with them. When in doubt as to the permissibility of an action under the 
terms of this directive, the employee shall not act without first 
consulting the immediate supervisor and as appropriate seeking the 
advice of the Designated Agency Ethics Official.
    (d) Office of Management Operations. (1) The Office of Management 
Operations shall give each employee a copy of these regulations and 
shall conduct an oral briefing on their contents, within 30 days of 
approval. New personnel shall receive a copy and oral briefing promptly 
upon assuming their duties. Additions and amendments shall be similarly 
communicated upon approval.
    (2) The Office shall conduct annual review sessions of these 
standards for all personnel.
    (3) The Office shall provide the Designated Agency Ethics Official 
with necessary administrative and clerical staff support.



Sec. 700.509  Duties of the designated agency ethics official.

    The Designated Agency Ethics Official shall coordinate and manage 
the agency's ethics program. The Deputy Ethics Official shall serve as 
alternate Agency Ethics Official in the absence of the Designated Agency 
Ethics Official, or upon his or her express delegation. Specific duties 
of the Officer include:
    (a) Liaison with Office of Government Ethics (OGE). The Designated 
Agency Ethics Official shall establish and maintain close working 
relations with the OGE, and shall coordinate communications between the 
Commission and OGE through the Agency Liaison Division and Office of 
Ethics of the General Services Administration. If the Designated Agency 
Ethics Official receives a request which he or she believes should be 
answered by the Office of Government Ethics, a referral procedure is 
available. Requests for advisory opinions shall be submitted as 
specified in 5 CFR 738.304. The Designated Agency Ethics Official shall 
provide the OGE with records, reports and any other information which 
may be required under the Ethics in Government Act (Pub. L. 95-521, as 
amended) or requested by the OGE.
    (b) Review of statements. The Designated Agency Ethics Official 
shall review the statements of employment and financial interest 
submitted by agency personnel assessing the application of conflict of 
interest laws and regulations to the information reported. When the 
review discloses a conflict, or the appearance of a conflict, between 
the private interests of an employee and the performance of his or her 
duties as a Commission employee, the Designated Agency Ethics Official 
shall bring the conflict to the attention of the employee, grant the 
individual an opportunity to explain the conflict, and attempt to 
resolve it. If the conflict is not resolved at this point, the 
Designated Agency Ethics Official shall forward a written report on the 
conflict to the Chairman of the Commission recommending appropriate 
action. In developing the recommendation the Designated Agency Ethics 
Official may consult, as appropriate, with the agency General Counsel 
and the GSA Ethics Office.
    (c) Education and counseling program. The Designated Agency Ethics 
Official shall design and conduct an education and counseling program 
for supervisors and employees on all ethics and standards of conduct 
matters, including post-employment matters. Records shall be kept as 
appropriate on the advice rendered.
    (d) Administrative systems review. The Designated Agency Ethics 
Official shall ensure that these regulations and implementing 
administrative systems are evaluated annually to determine their 
adequacy and effectiveness in relation to current agency 
responsibilities. Amendments shall be developed and approved pursuant to 
the results of systems review.



Sec. 700.511  Statements of employment and financial interests.

    (a) Employees required to file statements. (1) Members of the 
Commission shall submit Financial Disclosure Reports (SF-278) to the 
Deputy Ethics

[[Page 787]]

Counselor of the Department of Interior, according to instructions 
received from that office. Issues of real or apparent conflict of 
interest which involve employees of the Senior Executive Service shall 
be resolved by the Ethics Officer of the Department of the Interior.
    (2) The Designated Agency Ethics Official shall submit SF-278 to the 
Office of Government Ethics for review.
    (3) The employee appointed as Deputy Ethics Official and incumbents 
of the positions listed below shall file NHIRC form 738.1F with the 
Designated Agency Ethics Official:
    (i) Executive Director.
    (ii) General Counsel.
    (iii) Assistant Director for Management Operations.
    (iv) Assistant Director for Relocation Operations.
    (v) Chief, Technical Services Division.
    (vi) Chief, Realty Division.
    (vii) Chief, Advisory Services Division.
    (viii) Chief, Office of Research, Planning and Evaluation.
    (ix) Procurement/Fiscal Officer.
    (x) Realty Specialists.
    (xi) Construction Inspectors.
    (4) The Designated Agency Ethics Official may require Statements of 
Employment and Financial Interest from employees in other specified 
positions, if analysis of duties and responsibilities shows the 
positions meet the criteria listed in paragraph (b) of this section.
    (5) Special Government Employees shall file NHIRC form 738.2F with 
the Designated Agency Ethics Official prior to beginning employment or 
service with the Commission. The Designated Agency Ethics Official may 
waive this requirement if the duties of the position held by the special 
Government employee are of a nature or at such a level of responsibility 
that the submission of the statement by the incumbent is not necessary 
to protect the integrity of the Commission or the Government.
    (b) Criteria for selection of positions subject to filing 
requirements. The following criteria govern selection of employees who 
must also file statements of Employment and Financial Interest (NHIRC 
Form 738.1F) with the Designated Agency Ethics Official.
    (1) Statements of Employment and Financial Interest shall be 
required of employees holding positions which are responsible for:
    (i) Contracting or procurement.
    (ii) Administering or monitoring grants and subcontracts.
    (iii) Other activities where the decision or action has an economic 
impact on the interests of any person or non-Federal enterprise.
    (2) When a new position is established or the duties of an existing 
position are materially changed, the position shall be evaluated 
pursuant to the criteria of this section to determine whether or not it 
should be designated as one requiring the incumbent to submit a 
Statement of Employment and Financial Interests.
    (c) Interests of relatives. The interest of a spouse, minor child, 
or other member of an employee's immediate household is considered to be 
an interest of the employee. Reports must include but are not limited to 
identification of such an individual's employer, financial holdings and 
debts. These provisions also apply to special Government employees.
    (d) Employee complaint against filing requirements. An employee who 
believes that his or her position has been improperly included among 
those requiring the submission of a Statement of Employment and 
Financial Interests may obtain review through the Commission's 
administrative grievance procedure.
    (e) Procedures for obtaining statements. Following approval of these 
regulations, the Designated Agency Ethics Official shall give each 
employee and special Government employee required to file under this 
part, a copy of the appropriate NHIRC form. An enclosure with the form 
shall advise that:
    (1) The completed form shall be returned in a sealed envelope marked 
``personal-in confidence'' to the Designated Agency Ethics Official 
within 30 days.
    (2) The services of the Designated Agency Ethics Official are 
available to assist and advise in preparation of the statement.

[[Page 788]]

    (3) Any additions or deletions to the information furnished must be 
reported within 30 days of the time they occur, or in the case of a 
special Government employee, at the time the change occurs, and
    (4) No later than June 1 of each year all employees and special 
Government employees required to file under paragraph (a)(3) of this 
section shall file an annual supplementary statement to update the 
information previously filed.
    (5) New employees required to file under paragraph (a)(3) of this 
section shall submit a statement within 30 days of beginning employment 
with the Commission.
    (e) Confidentiality of statements. Statements of employment and 
financial interest shall be held in confidence. Access to information 
from the statements shall not be disclosed except to carry out the 
purpose of this directive.
    (f) Resolving conflicts of interest. When the Designated Agency 
Ethics Official determines from review of the statement that a conflict 
of interest may exist, the submitter shall have the opportunity to 
provide additional information, which shall become part of the record. 
The Designated Agency Ethics Official and the concerned employee shall 
make every effort to resolve the conflict in a manner that is mutually 
acceptable. If these efforts are not successful the Designated Agency 
Ethics Official shall forward a report and recommendation to the 
Chairman of the Commission for final action. Remedial action directed by 
the Chairman may include but is not limited to:
    (1) Disqualification for a particular assignment.
    (2) Change in assigned duties.
    (3) Divestment of the employee or special Government employee of the 
conflicting interests.
    (4) Disciplinary action, including removal.



Sec. 700.513  Business dealings on behalf of the government.

    (a) All employees shall conduct themselves on the job so as to 
efficiently discharge the work of the Commission. Employees shall 
observe courtesy, consideration and promptness in dealing with clients, 
other governmental agencies, and members of the public.
    (b) Commission personnel conducting business with contractors, 
realtors, vendors, service providers and other public and private 
agencies, organizations, business and individuals shall maintain strict 
impartiality in their business dealings. Commission employees shall not 
allow themselves to be placed in a position in which a conflict of 
interest might arise or might justifiably be suspected. Such a conflict 
may arise or appear to arise by the acceptance of gratuities or by any 
action which could reasonably be interpreted as influencing the strict 
impartiality that must prevail in all business relationships involving 
the Commission. However, this requirement of impartiality is not 
intended to prohibit advocacy of client interests, as is required as a 
stated duty of certain agency positions. Such advocacy may occur for 
example during warrantee representation or during technical 
representation with builders.



Sec. 700.515  Conflicts of interest.

    (a) A conflict of interest may exist when an employee uses, or 
appears to use, his or her official position to obtain benefits for 
himself or herself, close friends, relatives, or business associates. A 
conflict of interest may also exist if an employee's private activities 
interfere with the proper discharge of his or her official duties. If an 
employee has any doubt about whether or not a particular situation is, 
or gives the appearance of being a conflict of interest, the situation 
should be discussed with the immediate supervisor. Should further review 
be required, the Designated Agency Ethics Official shall be consulted.
    (b) Principal situations where conflict of interest may develop are 
regulated by the sections which follow. However, these regulations do 
not preclude other conflict of interest situations which may arise in 
connection with the work of the Commission.
    (c) These prohibitions apply to all Commission employees, whether or 
not they are required to file financial and employment disclosure 
statements.

[[Page 789]]



Sec. 700.517  Affiliations and financial interests.

    (a) Commission personnel shall not engage in any personal, business, 
or professional activity, or receive or retain any direct or indirect 
financial interest, which places them in a position of conflict or 
apparent conflict between their private interests and the public 
interests of the United States as related to the duties of their 
Commission positions.
    (b) Employees are prohibited from accepting money, goods or services 
other than official compensation for any act performed by the employee 
as part of his or her official duties.
    (c) Commission personnel shall not use, directly or indirectly, 
inside information for private gain for themselves, family members, or 
others if that information is not generally available to the public and 
was obtained as a result of Commission employment.
    (d) Commission personnel are prohibited from using their official 
positions to induce, coerce, or in any manner influence any person, 
including subordinates, to provide any improper benefit, financial or 
otherwise, to themselves or others.
    (e) Employees may not have any personal interest in transactions 
which are directed, regulated, or effected by the Commission pursuant to 
the authorities vested in the agency by Pub. L. 93-531 and Pub. L. 96-
395. Specifically:
    (1) No Commission employee shall have a personal interest in a 
contract, subcontract, memorandum of understanding or agreement, or 
other arrangement resulting in payment for the delivery of goods, 
services, or supplies to the Commission, to the Navajo or Hopi tribal 
governments, or to individual relocatees or groups of relocatees.
    (2) No Commission employee shall have or seek an interest in real or 
personal property acquired for transfer to the Navajo or Hopi Tribes.
    (3) No Commission employee shall have or seek an interest in any 
activity supported financially by the Commission through the award of 
Discretionary Funds.
    (4) During the process of acquiring replacement housing for 
relocatees no employee may have a personal interest in the activities of 
a contractor, realtor, or other business entity selected by the 
relocatee to furnish replacement housing; nor may the employee influence 
the relocatee to select any realtor, contractor or other business entity 
with which the employee has personal or business affiliations.
    (5) Nothing in this section shall restrict a relocatee's right to 
exercise free and independent judgment in selecting a realtor, 
contractor, or other vendor or service provider; regardless of any 
personal or business relationship of that entity to a Commission 
employee, provided the employee has not influenced the choice of the 
relocatee in any manner.
    (6) Nothing in this section shall restrict a Commission employee who 
is eligible for relocation benefits from applying for and obtaining such 
benefits according to published criteria; nor to prevent the Commission 
from employing a member of the Hopi or Navajo Tribe who has been, or is 
in the process, of being relocated pursuant to the law.
    (7) Commission employees shall disqualify themselves from 
investigating and preparing recommendations regarding eligibility 
determination for applicants to whom they are closely related by blood 
or marriage.



Sec. 700.519  Gifts, entertainment and favors.

    (a) Acceptance of gratuities, including gifts, entertainment and 
favors, (no matter how innocently tendered or received) from those who 
have or seek business dealings with the Commission, is prohibited as it 
may be a source of embarrassment to the recipient, and may impair public 
confidence in the integrity of the conduct of the Government's business. 
It is emphasized that prohibited conflicts and apparent conficts of 
interest can sometimes arise even from relationships and transactions 
that the persons concerned perceive as inconsequential.
    (b) Except as provided in paragraphs (c) and (d) of this section, 
Commission personnel and their spouses, minor children and members of 
their households shall not solicit nor accept, either directly or 
indirectly, any gift,

[[Page 790]]

gratuity, favor, entertainment loan or any other thing of monetary value 
from any person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relations with the Commission,
    (2) Conducts operations or activities that are regulated by the 
Commission or significantly affected by Commission decisions, or
    (3) Has interests that may be substantially affected by the 
performance or non-performance of the employee's official duty.
    (c) Employees are specifically prohibited from accepting gifts or 
favors from vendors, contractors, builders, realtors, tribal officials 
or other individuals with whom Commission employees do business. This 
prohibition extends to the acceptance of meals and refreshments offered 
by individuals conducting or seeking business with the Commission 
whether during duty or non-duty hours.
    (d) The following circumstances are excepted from the prohibitions 
listed above:
    (1) An employee may accept unsolicited advertising or promotional 
material with the name of the company imprinted, such as pencils, 
calendars and similar items of nominal intrinsic value.
    (2) An employee may accept transportation and meals provided by a 
contractor in connection with official business when arrangements for 
Government or commercial transportation or meals are clearly 
impracticable and the supervisor has granted prior approval.
    (3) An employee may accept an invitation extended by a relocatee to 
attend a housewarming, potluck, accept a meal and refreshments while 
traveling on the reservation, or similar social activity when 
circumstances would make it rude for the employee to refuse.
    (4) Other circumstances may arise in which it would be to the 
Commission's advantage for an employee to participate in activities 
ordinarily prohibited. In such cases, the employee shall consult with 
his or her supervisor about the course of action to be followed. If 
prior consultation is not possible, the employee shall exercise prudent 
judgement and promptly inform the supervisor of the activity.



Sec. 700.521  Outside work and interests.

    Commission employees may engage in outside work or other activity 
which does not create a conflict between the employee's private 
interests and official duties nor prevent employees from devoting their 
talents and energies to the Commission. An employee's outside work shall 
not reflect discredit upon the Commission.
    (a) Employees engaged in or considering outside employment shall 
inform their supervisor of the work, and supply such additional details 
as may be required to determine whether the employment is compatible 
with the full and proper discharge of the employee's official duties.
    (b) Similarly, employees shall inform the supervisor and request 
approval of other types of outside activities which may present an 
actual or apparent conflict of interest between the employees' official 
duties and their private lives. The supervisor shall determine if the 
outside employment or activity is prohibited by these regulations, and 
so inform the employee. The Designated Agency Ethics Official is 
available to assist supervisors in making such determinations.
    (c) Guidelines and limitations. Outside employment or other outside 
activity is incompatible with the full and proper discharge of an 
employee's duties and responsibilities and hence is prohibited if:
    (1) It would involve the violation of a Federal or State statute, a 
local ordinance, Executive Order, or regulation to which the employee is 
subject.
    (2) It would be of such extent or nature as to interfere with the 
efficient performance of the employee's Government duties, or impair the 
employee's mental or physical capacity to perform them in an acceptable 
manner.
    (3) It would tend to influence the exercise or impartial judgement 
on any matters coming before the employee in the course of his or her 
duties;
    (4) It would involve work for contractors, subcontractors, realtors, 
tribal offices, clients or other entities and individuals which have 
business with or receive services from the Commission or

[[Page 791]]

conduct activities which are regulated by the Commission.
    (5) Involves a person or enterprise that may be substantially 
affected by the performance or nonperformance of the employee's official 
duties.
    (6) It involves the use of the employee's time during official 
working hours.
    (7) It involves the receipt of salary or anything of monetary value 
from a private source as compensation for services to the Government.
    (8) It involves acceptance of a fee, compensation, gift, payment of 
expense, or any other thing of monetary value under circumstances in 
which acceptance might result in, or create the appearance of, a 
conflict of interest.
    (9) It would be of a nature which might be construed by the general 
public to be an official act of the Commission, or would give the 
impression that a business or product which is involved in the 
relocation project is officially endorsed or approved by the Commission.
    (10) It would involve use by the employee of official facilities, 
e.g., office space, office machines, or supplies, or the services of 
other employees during duty hours.
    (11) It might bring discredit upon, or cause unfavorable criticism 
of, the Government or the Commission or lead to relationships which 
might impair public confidence in the integrity of the Government or the 
Commission.
    (12) It would involve the use of information obtained as a result of 
Government employment that is not freely available to the general public 
in that it either has not been made available to the general public or 
would not be made available upon request.



Sec. 700.523  Business relationships among employees.

    Business relationships among Commission employees which take place 
after working hours and away from Commission premises are not matters 
for regulation, unless they violate the restrictions listed above.



Sec. 700.525  Use of government information or expertise.

    (a) Commission personnel may engage in teaching, lecturing and 
writing about the relocation program, provided the Information which 
they present is public knowledge or would be made available to the 
public upon request.
    (b) Employees shall inform their supervisors in advance of any 
teaching, writing, or lecturing activity which relates to the Commission 
operations. The Commissioners may at their discretion exercise the right 
of review and approval of materials to be presented.
    (c) Employees must obtain supervisory approval for release of 
information considered confidential, and release of information not 
previously published as public information.
    (d) Disclosure of information from records shall conform with the 
provisions of the Freedom of information and the Privacy Acts (5 U.S.C. 
552). An employee may not release confidential information maintained by 
the Commission and available to the employee because of his position as 
an employee of the Commission. Violation of this prohibition may result 
in prosecution under the terms of the Privacy Act in addition to any 
disciplinary penalties levied by the employee's supervisor.
    (e) Commission personnel may not accept compensation for an article, 
speech, consultant service, or other activity if it involves the use of 
information obtained as the result of Government employment which is not 
available to the general public as described in paragraph (a) of this 
section, or results in an actual or appearance of conflict of interest.
    (f) Unless there is a definite Commission position on a matter which 
is the subject of an employee's writing or speech, and the individual 
has been authorized by the Commissioners to present that position 
officially, the employee shall expressly present his or her views on the 
matter as his or her own and not as those of the Commission.
    (g) The right of an employee to express personal opinions is 
respected. However, once the Commission has established policy and 
procedure, every employee is obligated to carry out all lawful 
regulations, orders, and assignments, and to support the programs of the 
Commission as long as they are part of recognized public policy.
    (h) In dealing with the public and with relocatees, employees should

[[Page 792]]

avoid issuing opinions or decisions contrary to Commission policy which 
can be mistaken as official Commission policy.



Sec. 700.527  Endorsements.

    Employees are prohibited from endorsing in an official capacity 
business products or processes or the services of commercial firms for 
advertising publicity or sale purposes. Use of materials, products or 
services, by the Commission does not constitute official endorsement. 
Employees may not recommend for or against any particular builder, 
supplier, realtor, contractor or other person or business seeking to 
sell any product or service to relocatees.



Sec. 700.529  Negotiations for employment.

    An employee shall inform the supervisor and seek the advice of the 
Designated Agency Ethics Official if he or she wishes to negotiate for 
future non-Federal employment with persons or organizations having 
business with the Commission if the employee is involved in making 
recommendations or decisions affecting those persons or organizations.



Sec. 700.531   Government property.

    Employees shall be held accountable for Government property and 
monies entrusted to their individual use or in connection with their 
official duties. An employee has a positive duty to protect and conserve 
Government property and to use it economically and for official purposes 
only, for example:
    (a) Only official documents and materials may be reproduced on 
Government reproduction equipment.
    (b) Government vehicles may be used only on official business and 
may not be used for personal use or for travel to or from an employee's 
place of residence, unless specifically authorized or assigned by the 
supervisor.
    (c) An employee may not use FTS to make personal phone calls at 
Government expense.
    (d) An employee may not use Government purchase authority for 
personal acquisitions even though reimbursement is made.



Sec. 700.533  Restrictions affecting travel and travel expense reimbursement.

    (a) When an employee is on officially authorized travel his or her 
expenses are reimbursed by the Government. The employee may not request 
nor accept reimbursement in cash or kind for travel expenses from any 
other source, even when the employee's expenses exceed the maximum 
Government allowance.
    (b) An employee who is authorized to attend a convention, seminar, 
or similar meeting while on official duty, whose travel is being paid by 
the sponsoring association, may not also claim travel expenses from the 
Government.
    (c) An employee may accept accommodations and expense reimbursement 
for attending meetings, functions, etc. in his or her private capacity 
and on his or her own time, provided that such acceptance does not 
produce an actual or apparent conflict of interest. This restriction 
prohibits an employee from accepting accommodations or reimbursement 
from anyone having or seeking business with the Commission.
    (d) Commission employees traveling on official business, as well as 
employees traveling on personal business, may not accept the use of 
private airplanes, cars, or other means of transportation offered at no 
expense by individuals conducting or seeking business dealings with the 
Commission, nor from clients of the Commission.

    Exception: An employee may accept transportation and meals of modest 
value provided by a contractor or client in connection with official 
business when it is not practical to make arrangements for Government or 
commercial accommodations. The employee must receive prior approval of 
the supervisor in such case. This might occur, for example, if an 
employee were traveling to a remote area where no Government vehicle 
were available, or where there are no nearby restaurants or eating 
places. There is no prohibition against a contractor or private citizen 
traveling as a passenger in a Government vehicle driven by a Commission 
employee on official business, provided administrative procedures have 
been followed in making the travel arrangements.



Sec. 700.535  Nepotism.

    An employee may not appoint or advocate the appointment to any 
position under his or her control, any individual

[[Page 793]]

who is a relative of the employee. No employee shall supervise a member 
of his or her own family except in emergency situations.



Sec. 700.537  Indebtedness.

    (a) Commission personnel shall pay their just financial obligations 
in a timely manner, especially those imposed by law, such as Federal, 
state, or local taxes. For the purposes of this paragraph, ``just 
financial obligation'' means one acknowledged by the employee or reduced 
to judgment by a court.
    (b) Employees shall promptly refund any salary overpayments and 
excess travel advances.
    (c) An employee's debts to private creditors are his or her personal 
concern. Any complaints or questions concerning such obligations will be 
referred to the employee for handling. Creditors and collectors shall 
not have access to employees on Agency premises during duty hours.



Sec. 700.539  Soliciting contributions.

    (a) An employee shall not solicit a contribution from another 
employee for a gift to an official superior, make a donation as a gift 
to an official superior or accept a gift from an employee receiving less 
pay than himself or herself. (5 U.S.C. 7351) However, this paragraph 
does not preclude a voluntary gift of nominal value made on a special 
occasion.
    (b) If authorized by the supervisor, an employee may solicit 
contributions for charitable causes. He or she may also be permitted to 
collect small donations for gifts for fellow employees for special 
occasions during slack moments.



Sec. 700.541  Fraud or false statement in a Government matter.

    ``Whoever, in any matter within the jurisdiction of any department 
or agency of the United States, knowingly or wilfully falsifies, 
conceals or covers up by a trick, scheme or device a material fact, or 
makes or uses any false writing or document knowing the same to contain 
false, fictitious or fraudulent statement or entry, shall be fined not 
more than $10,000 or imprisoned not more than 5 years or both (18 U.S.C. 
1001).'' Special attention is required in the certification of time and 
attendance reports, applications for employment, personnel security 
forms, requests for travel reimbursement, client certification 
documents, and purchase orders and receiving forms.



Sec. 700.543  Gambling.

    An employee shall not sponsor or participate in any gambling 
activity during working hours on Government premises.



Sec. 700.545  Alcoholism and drug abuse.

    An employee who habitually uses intoxicants to excess is subject to 
removal (5 U.S.C. 7352). The Relocation Commission recognizes alcoholism 
and drug abuse as serious and treatable illnesses. Excessive absence and 
poor work performance are two of the specific problems resulting from 
excessive use of alcohol and drugs. The Commission management will 
assist any employee who has such a problem to obtain professional help 
and will make reasonable allowance as permitted by work schedules to 
allow an employee approved leave for professional treatment. Anyone who 
seeks such assistance will be guaranteed confidential handling of his or 
her case. Disciplinary action will be considered if an employee rejects 
or ignores treatment or other appropriate assistance.



Sec. 700.547  Consuming intoxicants on Government premises or during duty hours.

    Consuming alcohol or non-prescription drugs on agency premises, or 
while driving or riding in a Government vehicle, or during working hours 
are prohibited conduct and employees violating this regulation are 
subject to disciplinary acton, including discharge.



Sec. 700.549  Employee organizations.

    An employee may not knowingly be a member of an organization of 
Government employees that advocates the overthrow of the United States' 
constitutional form of government (5 U.S.C. 7311). Employees are also 
prohibited from striking against the Federal Government. With these 
restrictions, an employee has the right to form, join, or assist lawful 
employee organizations. Similarly, an employee has

[[Page 794]]

also the right to refrain from such activity. In either case, the 
employee may exercise his or her right freely and without fear of 
penalty or reprisal and shall be protected in the exercise of such 
rights.



Sec. 700.551  Franking privilege and official stationery.

    An employee is strictly prohibited from using Government franked 
envelopes with or without applied postage, or official letterhead 
stationery for personal business. (18 U.S.C. 1719)



Sec. 700.553  Use of official titles.

    Employees are prohibited from using their official titles in 
conducting private business or participation in private or public group 
activities not concerned with official duties. Use is strictly limited 
to those occasions and circumstances where representation is official.



Sec. 700.555  Notary services.

    An employee may not charge a fee for performing notarial services as 
part of his or her job duties (EO 977 Nov. 24, 1908).



Sec. 700.557  Political activity.

    (a) Regulations on the political activity of Federal employees can 
be found in 5 U.S.C. 73. In general, the law and the rules prohibit 
using official authority or influence for the purpose of interfering 
with an election or affecting its results, and taking an active part in 
partisan political management or partisan political campaigns.
    (b) Special Government employees of the Commission are subject to 
the political activity restrictions contained in 5 U.S.C. 73 and 18 
U.S.C. 602, 603, 607 and 608 while on an active duty status only.
    (c) Pursuant to provisions of the regulations cited, employees may 
take part in certain local elections. However, Commission employees are 
restricted from taking an active role in political elections of the 
Navajo and Hopi tribal governments, even though such elections are not 
partisan in the usual meaning of the word. With respect to tribal 
elections, employees may not:
    (1) Run for tribal elective office.
    (2) Organize, direct, nor actively participate in a tribal electoral 
campaign.
    (3) Solicit or attempt to coerce fellow employees to contribute 
anything of value to an individual or group engaged in tribal political 
activity.
    (4) Circulate petitions, posters, or other political materials 
during working hours or on Commission premises.
    (5) Engage in any other type of tribal political activity which 
produces a conflict of interest between the employee's job 
responsibilities and the political activity.



Sec. 700.559  Equal opportunity.

    Commission personnel shall scrupulously adhere to the Commission 
program of equal opportunity regardless of race, color, religion, sex, 
age, handicap, or national origin.



Sec. 700.561  Sexual harassment.

    (a) Sexual harassment is a form of employee misconduct which 
undermines the integrity of the employment relationship. All employees 
must be allowed to work in an environment free from unsolicited and 
unwelcome sexual overtures. Sexual harassment is defined by the Office 
of Personnel Management as ``deliberate or repeated unsolicited verbal 
comments, gestures, or physical contact of a sexual nature which are 
unwelcome.'' Sexual harassment does not refer to occasional compliments. 
It refers to behavior which is not welcome, which is personally 
offensive and debilitates morale, interfering with the work 
effectiveness of its victims and their co-workers.
    (b) Sexual harassment is a prohibited personnel practice when it 
results in discrimination for or against an employee on the basis of 
conduct not related to performance.

For example:
    --If submission to sexual advances is a condition of employment, 
whether expressed in explicit or implicit terms;
    --If employment decisions, such as promotion, training, salary 
increases, rewards, etc., are based on an employee's submission to or 
rejection of sexual advances;
    --If the sexual conduct substantially interferes with an affected 
person's work performance, or creates an intimidating, hostile or 
offensive work environment.


[[Page 795]]


    (c) Within the Federal Government, a supervisor who uses implicit or 
explicit coercive sexual behavior to control, influence, or affect the 
career, salary or job of an employee is engaging in sexual harassment. 
Similarly, an employee of an agency who behaves in this manner in the 
process of conducting agency business is engaging in sexual harassment. 
Finally, any employee who participates in deliberate or repeated 
unsolicited verbal comments, gestures, or physical contact of a sexual 
nature which are unwelcome and interfere with work productivity is also 
engaging in sexual harassment.
    (d) It is the policy of the Relocation Commission that sexual 
harassment is unacceptable conduct in the workplace and will not be 
condoned. An employee who believes that he or she is subject to sexual 
harassment may contact one or more of the following people within the 
Commission for assistance:
    (1) The immediate supervisor or second level supervisor.
    (2) The EEO Counselor.
    (3) The agency EEO Officer.
    (4) The EEO Counselor at the Agency Liaison Division of the General 
Services Administration.



Sec. 700.563  Statutory restrictions from 18 U.S.C. 207, which are applicable to former Government employees.

    (a) Restrictions applicable to all former officers and employees--
(1) Permanent bar. A former Government employee is permanently barred 
from serving as agent or attorney for anyone other than the United 
States before any Government office or agency on any particular matter 
involving specific parties in which the former officer or employee had 
participated personally and substantially while with the Government.
    (2) Two year bar. A restriction similar to the one summarized above 
prevents a former employee for two years from representational 
activities on all particular matters which were actually pending under 
the former employee's ``official responsibility'' during the one-year 
period prior to the termination of such responsibility.
    (b) Restrictions applicable only to ``senior employees.'' (1) 
Members of the Senior Executive Service are considered senior employees.
    (2) Two-year ban on assisting in representation by personal 
presence. A former senior employee may not assist in the representation 
of another person by personal presence at an appearance before the 
Government on any particular matter in which the former employee 
personally and substantially participated while with the Government.
    (3) One-year on attempt to influence former agency. A former senior 
employee may not represent another person or himself in attempting to 
influence his own former agency on a matter pending before, or of 
substantial interest to, such agency. Certain communications are 
exempted from this provision. These include communications by former 
senior employees who are employed by State or local governments or by 
certain educational or medical institutions, other exempt communications 
are those that are purely social or informational, communications on 
matters that are personal, including any expression of personal views 
where the former employee has no pecuniary interest, and response to a 
former agency's requests for information.
    (c) Implementing regulations. (1) Detailed regulations implementing 
this law have been published by the Director, Office of Government 
Ethics (see 5 CFR part 737). The Designated Agency Ethics Official 
should be consulted for any additional information.



Sec. 700.565  Miscellaneous statutory provisions.

    Commission personnel shall acquaint themselves with Federal statutes 
which relate to their ethical and other conducts as employees of the 
Commission and of the Government. The attention of Commission personnel 
is directed to the following statutory provisions:
    (a) House Concurrent Resolution 175, 85th Congress 2d Session, 72A 
Stat. B12, the ``Code of Ethics for Government Service.''
    (b) Chapter 11 of Title 18, United States Code, relating to bribery, 
graftm and conflicts of interest, as appropriate to the employees 
concerned.

[[Page 796]]

    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918).
    (e) The prohibition against the employment of a member of the 
Communist organization (50 U.S.C. 784).
    (f) The prohibitions against (1) the disclosures of classified 
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of 
confidential information (18 U.S.C. 1905).
    (g) The provision relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter.
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).
    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibitions against (1) embezzlement of Government money or 
property (18 U.S.C. 641); (2) failing to account for public money (18 
U.S.C. 643); and (3) embezzlement of the money or property of another 
person in the possession of an employee by reason of his employment (18 
U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285).
    (p) The prohibitions against political activities in subchapter III 
of chapter 73 of Title 5, United States Code and 18 U.S.C. 602, 603, 607 
and 608.
    (q) The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).



                  Subpart P--Hopi Reservation Evictees

    Source: 48 FR 51771, Nov. 14, 1983, unless otherwise noted.



Sec. 700.601  Definitions.

    (a) Hopi reservation evictees. Hopi reservation evictees are those 
members of the Navajo Tribe who were evicted from the Hopi Indian 
Reservation as a consequence of the decision in the case of United 
States v. Kabinto (456 F. 2d 1087) (1972).
    (b) Head of household. (1) A household is group of two or more 
persons who live together at a specific location, who form a unit of 
permanent and domestic character.
    (2) The head of household is the individual who speaks on behalf of 
the members of the household and who is determined by the Commission to 
represent the household.
    (3) In order to be eligible for benefits under this section, an 
individual must be a head of household as of the date of certification 
for benefits.
    (4) Those single individuals who actually maintain and support 
themselves as of the date of certification for benefits shall be 
considered a head of household.
    (c) Hopi reservation. For purposes of this subpart Hopi reservation 
shall mean the lands in Land Management District No. Six as defined in 
the September 28, 1962, Judgment in Healing v. Jones Civ. No. 579 pCT 
(d), Ariz., and shall not include the Hopi Partitioned Lands.
    (d) Equivalent assistance from federal agencies. Housing provided 
for Hopi reservation evictees shall be considered equivalent assistance 
if it meets the Commission's standards for a decent, safe and sanitary 
dwelling under Sec. 700.55 of these rules.



Sec. 700.603  Eligibility.

    (a) Those heads of household who were members of the Navajo Tribe 
and were evicted from the Hopi reservation as a consequence of the 
decision in the United States v. Kabinto shall be eligible to receive 
relocation assistance on a preference basis.
    (b) Proof of eviction shall be determined by one of the following 
criteria:

[[Page 797]]

    (1) Inclusion on the list of defendants in the case of United States 
v. Kabinto (456 F. 2d 1087) (1972);
    (2) Inclusion on the lists prepared by the BIA dated May 10, 1979, 
and May 21, 1979, as a result of having provided services to those heads 
of household.
    (3) Inclusion on a list prepared by the Navajo Tribe and submitted 
to the Commission on January 16, 1981;
    (4) Inclusion on a list prepared by the Navajo Legal Aid Service 
dated April 29, 1970;
    (5) Other evidence furnished by the applicant which is sufficient to 
prove their status as evictees from the Hopi reservation, as determined 
by the Commission.



Sec. 700.605  Relocation assistance.

    (a) Each eligible head of household of Hopi reservation evictees 
shall be entitled to receive the following assistance:
    (1) Relocation advisory services as provided in Sec. 700.135 of this 
part;
    (2) Moving and search expenses, as provided in Sec. 700.151 of this 
part;
    (3) Replacement housing payments as set forth below.
    (b)(1) If the head of household owns no dwelling, the Commission 
will make funds available to the head of household as provided in these 
regulations for the acquisition of a replacement home in one of the 
following manners:
    (i) Purchase of an existing home by the head of household,
    (ii) Contracting by the head of household for the construction of a 
home,
    (iii) Participation or purchase by the head of household in a mutual 
help housing or other home ownership project under the U.S. Housing Act 
of 1937 (50 Stat. 888, as amended; 42 U.S.C. 1401) or in any other 
federally assisted housing program.
    (2) If the eligible head of household owns or is buying or building 
a home, the Commission will expend relocation benefits in one of the 
following manners:
    (i) If the home is decent, safe and sanitary, but is encumbered by a 
mortgage, such mortgage existing as of the effective date of these 
regulations, the Commission may expend replacement housing benefits up 
to the maximum then existing replacement home benefit to accelerate to 
the maximum extent possible the achievement by that household of debt-
free home ownership.
    (ii) If the home is owned free and clear but does not meet 
Commission decent, safe and sanitary standards; or the home is neither 
owned free and clear, nor is decent, safe and sanitary, the Commission 
will, at its discretion either:
    (A) Expend replacement home benefits for improvements to assure the 
home meets the Commission's decent, safe and sanitary standards, or
    (B) Expend replacement home benefits for the acquisition of a 
replacement dwelling as if the eligible head of household or spouse did 
not own a home as in paragraph (b)(1) of this section.
    (3) If the home is decent, safe and sanitary, and is owned free and 
clear, no replacement housing benefits will be paid.
    (4) The amount of the replacement housing payment shall be 
calculated in accordance with Sec. 700.183 of these rules except that no 
compensation will be paid for habitation and improvements.
    (5) The determination of whether the head of household of Hopi 
reservation evictees currently occupies a decent, safe and sanitary 
dwelling shall be made in accordance with Sec. 700.55 of these rules.
    (C) If the head of household has received equivalent assistance from 
other federal agencies as defined in Sec. 700.601(d), they shall not be 
entitled to additional assistance from the Commission.



Sec. 700.607  Dual eligibility.

    Those individuals who moved from the Hopi reservation following 
eviction to the Hopi partitioned Lands and who are eligible to receive 
benefits under the general regulations shall not receive benefits under 
this subpart but shall receive benefits under the general regulations on 
a preferential basis.



Sec. 700.609  Appeals.

    Appeals of eligibility, hearings and administrative review (appeals) 
will be administered under subpart L of this part.

[[Page 798]]



Sec. 700.611  Application deadline.

    The deadline for receipt of applications for benefits under this 
subpart shall be 120 days following publication of these final rules.



                      Subpart Q--New Lands Grazing

    Source: 56 FR 13397, Apr. 2, 1991, unless otherwise noted.



Sec. 700.701  Definitions.

    (a) Act means Pub. L. 93-531 (88 Sat. 1712, 25 U.S.C. 640 et. seq.) 
as amended by Pub. L. 96-305 and Pub. L. 100-666.
    (b) New Lands means the land acquired for the use of relocatees 
under the authority of Pub. L. 96-305, 25 U.S.C. 640d-10. These lands 
include the 215,000 acres of lands acquired by the Navajo and Hopi 
Indian Relocation Commission and added to the Navajo Reservation and 
150,000 acres of private lands previously owned by the Navajo Nation in 
fee and taken in trust by the United States pursuant to 25 U.S.C. 640d-
10.
    (c) Commissioner means the Commissioner of The Office of Navajo and 
Hopi Indian Relocation in Flagstaff, Arizona. Reference to approval or 
other action by the Commissioner will also include approval or other 
action by another Federal officer under delegated authority from the 
Commissioner.
    (d) Tribe means the Navajo Nation.
    (e) Range unit means a tract of range land designated as a 
management unit for administration of grazing.
    (f) Range Management Plan means a land use plan for a specific range 
unit that will provide for a sustained forage production consistent with 
soil, watershed, wildlife, and other values.
    (g) Stocking rate means the authorized stocking rate by range unit 
as determined by the Commissioner. The stocking rate shall be based on 
forage production, range utilization, land management applications being 
applied, and range improvements in place to achieve uniformity of 
grazing under sustained yield management principles.
    (h) Grazing permit means a revocable privilege granted in writing 
limited to entering on and utilizing forage by domestic livestock on a 
specified tract of land. The term, as used herein, shall include written 
authorization issued to enable the crossing or trailing of domestic 
livestock across specified tracts or range.
    (i) Animal unit (AU) means one adult cow with unweaned calf by her 
side or equivalent thereof based on comparative forage consumption. 
Accepted conversion factors are: Sheep and Goats--one ewe, doe, buck, or 
ram equals 0.25 AU. Horses and Mules--one horse, mule, donkey or burro 
equals 1.25 AU.
    (j) Sheep unit means one ewe with lamb at side or a doe goat with 
kid.
    (k) SUYL means one sheep unit grazed yearlong.
    (l) HPL means the area partitioned to the Hopi Tribe pursuant to 
Pub. L. 93-531 known as the Hopi Partitioned Land.



Sec. 700.703  Authority.

    It is within the authority of the Commissioner on Navajo and Hopi 
Indian Relocation to administer the New Lands added to the Navajo 
Reservation pursuant to 25 U.S.C. 6-10(d)-10.



Sec. 700.705  Objectives.

    It is the purpose of the regulations in this part to aid the Navajo 
Indians in achievement of the following objectives:
    (a) The preservation of the forage, the land, and the water 
resources on the New Lands.
    (b) The resettlement of Navajo Indians physically residing on the 
HPL to the New Lands.



Sec. 700.707  Regulations; scope.

    The grazing regulations in this part apply to the New Lands within 
the boundaries of the Navajo Reservation held in trust by the United 
States for the Navajo Tribe which lands were added to the Navajo 
Reservation pursuant to 25 U.S.C. 640(d)-10; 25 CFR parts 166 and 167 
are not applicable to the New Lands.



Sec. 700.709  Grazing privileges.

    (a) A list of permittees eligible to receive grazing permits is kept 
at the Office of Navajo and Hopi Indian Relocation in Flagstaff, 
Arizona. This list is composed of individuals eligible for New Lands 
grazing permits who:

[[Page 799]]

    (1) Have a current HPL grazing permit, or have had an HPL permit 
issued since 1980, or are current HPL residents and can show 
documentation of a past grazing permit issued in their name for grazing 
on an area now on the HPL, and
    (2) Who have not received relocation benefits under Pub. L. 93-531, 
and who relocate from the HPL on to a New Lands range unit. Individuals 
on this list will receive a commitment that a permit will be issued to 
them.
    (b) If such persons cannot relocate immediately because their chosen 
relocation site is not ready for occupancy, the Office will issue a 
commitment to them that a grazing permit will be granted upon their 
relocation.
    (c) If such persons are notified by the Office that their relocation 
site is ready for occupancy and they fail or refuse to make timely 
arrangements to relocate when requested by the Office to do so, the 
commitment may be withdrawn.
    (d) Persons on this list must file an application for a New Lands 
Grazing Permit. The Commissioner will determine when the application 
period will close and will publish notice of that date. After the close 
of the period for application, the Commissioner, in his sole discretion, 
may issue permits to individuals if it is determined that to do so will 
facilitate relocation.
    (e) Initial determinations on eligibility for grazing permits will 
be made by the Range Supervisor.

[56 FR 13397, Apr. 2, 1991, as amended at 57 FR 24363, June 9, 1992]



Sec. 700.711  Grazing permits.

    (a) All livestock grazed on the New Lands must be covered by a 
grazing permit authorized and issued by the Commissioner on Navajo and 
Hopi Indian Relocation.
    (b) Permit holders must:
    (1) Be enrolled Navajo Tribal members,
    (2) Be over 18 years of age,
    (3) Maintain a permanent residency on the New Lands Range Unit of 
permit issue, and
    (4) Own livestock which graze on the range unit of permit issue.
    (c) Permits will be issued for a base of 80 SUYL (20 AU) and may not 
be divided or transferred for less than 80 SUYL.
    (d)(1) Temporary seasonal grazing permits for periods not to exceed 
one year may be issued to permittees:
    (i) To use extra forage made available under rotation grazing 
management as regulated by a range unit management plan,
    (ii) To use forage created by unusually favorable climatic 
conditions,
    (iii) To allow use of range while term permits are held in 
suspension under Sec. 700.715(d).
    (2) These temporary permits may be reissued prior to termination 
provided:
    (i) The permittee is managing grazing in compliance with grazing 
regulations,
    (ii) Livestock grazing is in compliance with the cooperative range 
unit range management plan, and
    (iii) Forage is available on the range to sustain the livestock 
authorized under the temporary permit.



Sec. 700.713  Tenure of grazing permits.

    (a) All active regular grazing permits shall be for five years and 
shall be automatically reissued for another five-year period provided 
the permittee is not in violation of Sec. 700.711 or 700.715 or 700.719 
or 700.723 or 700.725 of the regulations. Permits will initially be 
issued with an ending date of October 31 of the fifth year following the 
date of initial issuance.
    (b) Amendments to these regulations extending or limiting the tenure 
of grazing permits are applicable and become a condition of all 
previously granted permits.



Sec. 700.715  Assignment, modification, and cancellation of grazing permits.

    (a) Grazing permits may be assigned or transferred with the written 
consent of the contracting parties. The Commissioner will issue a new 
permit provided the transferee meets qualifications under 
Sec. 700.711(b).
    (b) Temporary permits issued under Sec. 700.711(d) are directly tied 
to the term permit and may be transferred with the term permit if the 
transferee signs the range unit management plan which provides the 
management for continuation of the temporary grazing permit.

[[Page 800]]

Temporary permits will not be transferred and shall be null and void if 
the term permit transferee does not sign the management plan agreeing to 
practice conservation management.
    (c) Grazing permits may be assigned for transfer through a notarized 
document to an heir who meets the qualifications for a grazing permit 
under Sec. 700.711.
    (d) Grazing permits must be transferred in whole to a single 
transferee--the transferor relinquishing all grazing privileges at the 
time of transfer.
    (e) The Commissioner may revoke or withdraw all or any part of a 
grazing permit by cancellation or modification on a 30 day written 
notice for violation of the permit or of the management plan, non-
payment of grazing fees, violation of these regulations, or because of 
the termination of the trust status of the permitted land.



Sec. 700.717  Stocking rate.

    The Commissioner will determine livestock carrying capacity for each 
range unit and set the stocking rate and adjust that rate as conditions 
warrant. The Commissioner may consult with the Tribe when making 
adjustments to the stocking rate.



Sec. 700.719  Establishment of grazing fees.

    The Commissioner may establish a minimum acceptable grazing fee per 
SUYL. The Commissioner may consult with the Tribe prior to establishing 
fees.



Sec. 700.721  Range management plans.

    The Commissioner (or his designee) and the permittees of each range 
unit will meet as a group and develop a Range Management Plan for the 
common use of the range unit. The plan will include but will not be 
limited to the following:
    (a) Goals for improving vegetative productivity.
    (b) Incentives for carrying out the goals.
    (c) Stocking rate.
    (d) Record of brands of livestock authorized to graze on the range 
unit.
    (e) Grazing plan and schedule.
    (f) Range monitoring schedule.
    (g) Wildlife management.
    (h) Needs assessment for range and livestock improvements.
    (i) Scheduling for operation and maintenance of existing range 
improvements.



Sec. 700.722  Grazing associations.

    (a) The Commissioner may recognize, cooperate with, and assist range 
unit livestock associations in the management of livestock and range 
resources.
    (b) These associations will provide the means for the members:
    (1) To jointly manage their permitted livestock and the range 
resources,
    (2) To meet jointly with the ONHIR range staff to discuss and 
formulate range management plans,
    (3) To express their wishes through designated officers or 
committees,
    (4) To share costs for handling livestock, construction of range 
improvements, fence and livestock facilities maintenance, and other land 
or livestock improvement projects agreed on, and
    (5) To formulate association special rules needed to assure 
cooperation and resource management.
    (c) The requirements for receiving recognition by the Commissioner 
are:
    (1) The members of the association must be grazing permittees and 
constitute a majority of the grazing permittees on the range unit 
involved.
    (2) The officers of the association must be elected by a majority of 
the association members or of a quorum as specified by the association's 
constitution and bylaws.
    (3) The officers other than secretary and treasurer must be grazing 
permittees on the range unit involved.
    (4) The association's activities must be governed by a constitution 
and bylaws acceptable to the Commissioner and signed by him.
    (5) The association's constitution and bylaws must recognize 
conservation management goals and the need to follow a range unit 
management plan.
    (d) The Commissioner may withdraw his recognition of the association 
whenever:
    (1) The majority of the grazing permittees request that the 
association be dissolved.
    (2) The association becomes inactive and does not meet in annual or 
special

[[Page 801]]

meetings during a consecutive two-year period.
    (e) A recognized association may hold a grazing permit to benefit 
its members according to the rules of the association constitution and 
bylaws. All of the association's livestock will be run under an 
association brand properly registered with the Navajo Tribe and the 
ONHIR.
    (f) Associations may acquire permits from consenting permittees on 
the range unit in accordance with Sec. 700.711 and may assign or 
transfer these permits in accordance with Sec. 700.715.



Sec. 700.723  Control of livestock disease and parasites.

    Whenever livestock within the New Lands become infected with 
contagious or infectious disease or parasites or have been exposed 
thereto, such livestock must be treated and the movement thereof 
restricted by the responsible permittee in accordance with applicable 
laws.



Sec. 700.725  Livestock trespass.

    The following acts are prohibited:
    (a) The grazing of livestock upon, or driving of livestock across, 
any of the New Lands without a current approved grazing or crossing 
permit.
    (b) The grazing of livestock upon an area specifically rested from 
the grazing of livestock according to the range unit Range Management 
Plan.
    (c) The grazing of livestock upon any land withdrawn from use for 
grazing to protect it from damage after receipt of appropriate notice 
from the Commissioner.
    (d) The grazing of livestock in excess of those numbers authorized 
on the livestock grazing permit approved by the Commissioner.
    (e) Grazing of livestock whose brand is not recorded in the range 
unit Range Management Plan.

The owner of any livestock grazing in trespass on the New Lands is 
liable to a civil penalty of $1 per head per day for each cow, bull, 
horse, mule or donkey and 25 cents per head per day for each sheep or 
goat in trespass and a reasonable value for damages to property injured 
or destroyed. The Commissioner may take appropriate action to collect 
all such penalties and damages and seek injunctive relief when 
appropriate. All payments for such penalties and damages shall be paid 
to the Commissioner for use as a range improvement fund.



Sec. 700.727  Impoundment and disposal of unauthorized livestock.

    Unauthorized livestock within any range unit of the New Lands which 
are not removed therefrom within the periods prescribed by the 
regulation will be impounded and disposed of by the Commissioner as 
provided herein.
    (a) When the Commissioner determines that unauthorized livestock use 
is occurring, and has definite knowledge of the kind of unauthorized 
livestock and knows the name and address of the owners, the owner shall 
be given written notice and a 10 day period shall be allowed for the 
permittee to solve the unauthorized use without penalty. If after this 
10 day period the unauthorized use is not resolved, such livestock may 
be impounded at any time after five days after written Notice of Intent 
to Impound Unauthorized Livestock is mailed by certified mail or 
personally delivered to such owners or their agent.
    (b) When the Commissioner determines that unauthorized livestock use 
is occurring, but does not have complete knowledge of the number and 
class of livestock, or if the name and address of the owner thereof are 
unknown, such livestock may be impounded at anytime after 15 days after 
the date a General Notice of Intent to Impound Unauthorized Livestock is 
first published in a local newspaper, posted at the nearest chapter 
house, and in one or more local trading posts.
    (c) Unauthorized livestock on the New Lands which are owned by 
persons given notice under paragraph (a) of this section and any 
unauthorized livestock in areas for which notice has been posted and 
published under paragraph (b) of this section, will be impounded without 
further notice anytime within the 12-month period immediately following 
the effective date of the notice.
    (d) Following the impoundment of unauthorized livestock, a notice of 
sale of impounded livestock or unauthorized livestock will be published 
in a local newspaper, posted at the nearest

[[Page 802]]

chapter house, and in one or more local trading posts. The notice will 
describe the livestock and specify the date, time, and place of sale. 
The date set shall be at least five days after the publication and 
posting of such notice.
    (e) The owners or their agent may redeem the livestock anytime 
before the time set for the sale by submitting proof of ownership and 
paying for all expenses incurred in gathering, impounding, and feeding 
or pasturing the livestock and any trespass fees and/or damages caused 
by the animals.
    (f) Livestock erroneously impounded shall be returned to the 
rightful owner, and all expenses accruing thereto shall be waived.
    (g) If the livestock are not redeemed before the time fixed for 
their sale, they shall be sold at public sale to the highest bidder. 
When livestock are sold pursuant to this regulation, the Commissioner 
shall furnish the buyer a bill of sale or other written instrument 
evidencing the sale.
    (h) The proceeds of any sale of impounded livestock shall be applied 
as follows:
    (1) To the payment of all expenses incurred by the United States in 
gathering, impounding, and feeding or pasturing the livestock.
    (2) Trespass penalties assessed pursuant to Sec. 700.725 shall be 
paid to a separate account to be administered by the Commissioner for 
use as a range improvement fund for the New Lands.
    (3) Any remaining amount shall be paid over to the owner of said 
livestock upon his submitting proof of ownership.

Any proceeds remaining after payment of the first and second items noted 
above, not claimed within one year from the date of sale, will be 
credited to the United States.



Sec. 700.729  Amendments.

    These regulations may be amended or superseded as needed.



Sec. 700.731  Appeals.

    Persons who have filed a claim for a grazing permit and whose claim 
has been denied by the Range Supervisor may appeal to the Commissioner. 
Appeals must be made in writing and must be received by the Office not 
more than 30 days after the date the claim was denied. The appeal shall 
state with specificity why the decision being appealed is in error and 
shall incorporate all supporting documents. The Commissioner will issue 
a decision affirming or reversing the decision of the Range Supervisor 
within 60 days of receipt of the appeal. Such decision will constitute 
final action by the Office and will be communicated to the appellant by 
certified mail.



            Subpart R--Protection of Archaeological Resources

    Source: 61 FR 35667, July 8, 1996, unless otherwise noted.



Sec. 700.801  Purpose.

    (a) The regulations in this subpart implement provisions of the 
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-11) by 
establishing the uniform definitions, standards, and procedures to be 
followed by the O.N.H.I.R. New Lands Manager in providing protection for 
archaeological resources, located on the New Lands. The regulations 
enable Federal land managers to protect archaeological resources, taking 
into consideration provisions of the American Indian Religious Freedom 
Act (92 Stat. 469: 43 U.S.C. 1996), through permits authorizing 
excavation and/or removal of archaeological resources, through civil 
penalties for unauthorized excavation and/or removal, through provisions 
for the preservation of archaeological resource collections and data, 
and through provisions for ensuring confidentiality of information about 
archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.



Sec. 700.803  Authority.

    The regulations in this part are promulgated pursuant to section 
10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii). Section 10(b) of the Act (16 U.S.C. 470ii)

[[Page 803]]

provides that each Federal land manager shall promulgate such rules and 
regulations, consistent with the uniform rules and regulations in this 
part, as may be necessary for carrying out the purposes of the Act.



Sec. 700.805  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location or context in 
which such evidence is situated.
    (3) The following classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section.
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars, or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits, or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons, 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked ground or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios, and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the material remains described in this paragraph (a);
    (ix) All portions of shipwrecks (including, but not limited to 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of material remains described in this 
paragraph (a).
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal Land Manager may determine that certain material 
remains, in specified areas under the Federal Land Manager's 
jurisdiction and under specified circumstances, are not or are no longer 
of archaeological interest and are not to be considered archaeological 
resources under this part. Any determination made pursuant to this 
paragraph (a)(5) shall be documented. Such determination shall in no way 
affect the Federal Land Manager's obligations under other applicable 
laws or regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Commissioner means the Commissioner of the Office of Navajo and 
Hopi Indian Relocation. Reference to approval of other action by the 
Commissioner will also include approval or other action by another 
Federal Officer

[[Page 804]]

under delegated authority from the Commissioner.
    (d) Federal Land Manager means, with respect to the New Lands, the 
Commissioner of Navajo and Hopi Indian Relocation, having primary 
management authority over such lands, including persons to whom such 
management authority has been officially delegated.
    (e) New Lands means the land acquired for the use of relocatees 
under the authority of Public Law 96-305, 25 U.S.C., 640(d)-10. These 
lands include the 250,000 acres of land acquired by the Navajo and Hopi 
Indian Relocation Commission and added to the Navajo Reservation, 
150,000 acres of private lands previously owned by the Navajo Nation in 
fee and taken in trust by the United States pursuant to 25 U.S.C. 640d-
10 and up to 35,000 acres of land in the State of New Mexico to be 
acquired and added to the Navajo Reservation.
    (f) Indian lands means lands of The Navajo Nation, which are either 
held in trust by the United States or subject to a restriction against 
alienation imposed by the United States, except for subsurface interests 
not owned or controlled by an Indian tribe or Indian individual.
    (g) Indian tribe or Tribe means The Navajo Nation.
    (h) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (i) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (j) Tribe means the Navajo Nation.
    (k) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470-aa11.)



Sec. 700.807  Prohibited acts.

    (a) No person may excavate, remove, damage or otherwise alter or 
deface any archaeological resource located on the New Lands or Indian 
lands unless such activity is pursuant to a permit issued under 
Sec. 700.815 or exempted by Sec. 700.809(b) of this part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.



Sec. 700.809  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from the New Lands or Indian lands, and to carry out 
activities associated with such excavation and/or removal, shall apply 
to the Federal Land Manager for a permit for the proposed work, and 
shall not begin the proposed work until a permit has been issued. The 
Federal Land Manager may issue a permit to any qualified person, subject 
to appropriate terms and conditions, provided that the person applying 
for a permit meets conditions in Sec. 700.815(a) of this part.
    (b) Exceptions: (1) No permit shall be required under this part for 
any person conducting activities on the New Lands under other permits, 
leases, licenses, or entitlements for use, when those activities are 
exclusively for purposes other than the excavation and/or removal of 
archaeological resources, even though those activities might 
incidentally result in the disturbance of archaeological resources. 
General earth-moving excavation conducted under a permit or other 
authorization shall not be construed to mean excavation and/or removed 
as used in this part. This exception does not, however, affect the 
Federal Land Manager's responsibility to comply with other authorities 
which protect archaeological resources prior to approving permits, 
leases, licenses or entitlements for use; any excavation and/or removal 
of archaeological resources required for compliance with those 
authorities shall be conducted in accordance with the permit 
requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not

[[Page 805]]

result in disturbance of any archaeological resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal of 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
Land Manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 700.811. However, the Federal Land Manager shall 
insure that provisions of Secs. 700.815 and 700.817 have been met by 
other documented means and that any official duties which might result 
in harm to or destruction of any Indian tribal religious or cultural 
site, as determined by the Federal Land Manager, have been the subject 
of consideration under Sec. 700.813.
    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal Land Manager 
shall issue a permit, subject to the provisions of Secs. 700.809(b)(5), 
700.813, 700.815(a) (3), (4), (5), (6), and (7), 700.817, 700.819, 
700.823, 700.825(a), to such Governor or to such designee as the 
Governor deems qualified to carry out the intent of the Act, for 
purposes of conducting archaeological research, excavating, and/or 
removing archaeological resources, and safeguarding and preserving any 
materials and data collected in a university, museum, or other 
scientific or educational institution approved by the Federal Land 
Manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of the New Lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on the New Lands or Indian lands any 
activity related to but believed to fall outside the scope of this part 
should consult with the Federal Land Manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 700.811  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal Land Manager for 
a permit to excavate and/or remove archaeological resources from the New 
Lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
location maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training and experience in accord with the 
minimal qualifications listed in Sec. 700.815(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on the New Lands, the names of the university, 
museum,

[[Page 806]]

or other scientific or educational institution in which the applicant 
proposes to store all collections, and copies of records, data, 
photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the Navajo Nation.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, of 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal Land Manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained in Sec. 700.811 has been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 
1024-0037. The purpose of the information collection is to meet 
statutory and administrative requirements in the public interest. The 
information will be used to assist Federal land managers in determining 
that applicants for permits are qualified, that the work proposed would 
further archaeological knowledge, that archaeological resources and 
associated records and data will be property preserved, and that the 
permitted activity would not conflict with the management of the New 
Lands involved. Response to the information requirement is necessary in 
order for an applicant to obtain a benefit.



Sec. 700.813  Notification to Indian tribes of possible harm to, or destruction of, sites on the New Lands having religious or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
the New Lands, as determined by the Federal Land Manager, at least 30 
days before issuing such permit the Federal Land Manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal Land Manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal Land Manager.
    (2) The Federal Land Manager may provide notice to any other Native 
American group that is known by the Federal Land Manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal Land Manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 700.817.
    (4) When the Federal Land Manager determines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat or loss or destruction of an archaeological resource, the Federal 
Land Manager shall so notify the appropriate tribe
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal Land Manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the

[[Page 807]]

Federal Land Manager's jurisdiction and seek to determine, from the 
chief executive officer or other designated official of any such tribe, 
the location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal Land Manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to the New Lands under the Federal Land 
Manager's jurisdiction, the Federal Land Manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal Land Manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.



Sec. 700.815  Issuance of permits.

    (a) The Federal Land Manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of the permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaeological survey and/or 
data recovery undertaken in accordance with other approved uses of the 
New Lands or Indian lands, and the proposed work has been agreed to in 
writing by the Federal Land Manager, pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) 
and (a)(3) of this section shall be deemed satisfied by the prior 
approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian land owner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal Land Manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 980 days after 
the date

[[Page 808]]

the final report is submitted to the Federal Land Manager, the following 
will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit;
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from the New Lands.
    (ii) All artifacts, samples, and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.



Sec. 700.817  Terms and conditions of permits.

    (a) In all permits issued, the Federal Land Manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location and purpose of the 
work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational institution in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal Land Manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal Land Manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on the New 
Lands shall include such terms and conditions as may have been developed 
pursuant to Sec. 700.813.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal Land Manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal Land 
Manager, at least annually.



Sec. 700.819  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal Land Manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act of Sec. 700.807. The 
Federal Land Manager shall provide written notice to the permittee of 
suspension, the cause thereof, and the requirements which must be met 
before the suspension will be removed.
    (2) The Federal Land Manager may revoke a permit upon assessment of 
a civil penalty under Sec. 700.829 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
Land Manager may suspend or revoke a permit without liability to the 
United

[[Page 809]]

States, its agents, or employees when continuation of work under the 
permit would be in conflict with management requirements not in effect 
when the permit was issued. The Federal Land Manager shall provide 
written notice to the permittee stating the nature of and basis for the 
suspension or revocation.



Sec. 700.821  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal Land Manager pursuant to section 
10(b) of the Act and this part.



Sec. 700.823  Relationship to section 106 of the National Historic Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with Section 106 of 
the Act of October 15, 1996 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal Land Manager from 
compliance with section 106 where otherwise required.



Sec. 700.825  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from public lands 
remain the property of the Navajo Nation.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.



Sec. 700.827  Determination of archaeological or commercial value and cost of restoration and repair.

    (a) Archaeolgical value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 700.807 of this part or conditions 
of a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtained prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 700.807 of this part or conditions of a permit 
issued pursuant to this part shall be for its fair market value. Where 
the violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damages as a 
result of a violation or prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following.
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and

[[Page 810]]

State, local, or tribal law, where appropriate, as determined by the 
Federal Land Manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 700.829  Assessment of civil penalties.

    (a) The Federal Land Manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 700.807 or who 
has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal Land Manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal Land Manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of the proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal Land Manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal Land Manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal Land Manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal Land Manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal Land Manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal Land Manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c) and (d) of this section or furnished upon further request 
by the Federal Land Manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal Land Manger shall so notify the person served with 
a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal Land Manager shall determine a penalty amount in 
accordance with Sec. 700.831.
    (f) Notice of assessment. The Federal Land Manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
Land Manager shall include

[[Page 811]]

the following in the notice of assessment.
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 700.831 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request, as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal Land Manager 
under paragraph (f) of this section or any offer of mitigation or 
remission made by the Federal Land Manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for hearing pursuant to paragraph (g)(1) of this section, 
the decision resulting from the hearing or any applicable administrative 
appeal therefrom shall constitute the final administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment assessed, unless a 
timely request for appeal has been filed with a U.S. District Court, as 
provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal Land Manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal Land Manager is not represented by the Attorney General, a 
civil action may be initiated directly by the Federal Land Manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 700.831  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition in Sec. 700.807 or of any term or condition included in a 
permit issued pursuant to this part, the maximum amount of the penalty 
shall be the full cost of restoration and repair of archaeological 
resources damaged plus the commercial value of archaeological resources 
destroyed or not recovered.
    (2) Where the persons being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 700.807 or of any term 
or condition included in a permit issued pursuant to this part, the 
maximum amount of the penalty shall be doubled the cost of restoration 
and repair plus double the commercial value of archaeological resources 
destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.

[[Page 812]]

    (b) Determination of penalty amount, mitigation, and remission. The 
Federal Land Manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors.
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal Land Manager archaeological resources removed from the 
New Lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal Land Manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on the New Lands or Indian Lands.
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation.
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances.
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
Land Manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on the New Lands, 
the Federal Land Manager should consult with and consider the interests 
of the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.



Sec. 700.833  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal Land Manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render services in the performance 
of their official duties, and persons who have provided information 
under Sec. 700.831(b)(1)(iii) shall not be certified eligible to receive 
payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indiana or Indian tribes.



Sec. 700.835  Confidentiality of archaeological resource information.

    The Federal Land Manager shall not make available to the public 
under subchapter II of chapter 5 of title 5 of the United States Code or 
any other provision of law, information concerning the nature and 
location of any archaeological resource, with the following exceptions:
    (a) The Federal Land Manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c) 
without risking harm to the archaeological resource or to the site in 
which it is located.
    (b) The Federal Land Manager shall make information available, when 
the Governor of any State has submitted to the Federal Land Manager a 
written request for information concerning the archaeological resources 
within the requesting Governor's state; provided that the request 
includes:
    (1) The specific archaeological resource or area about which 
information is sought.

[[Page 813]]

    (2) The purpose for which the information is sought; and
    (3) The Governor's written commitment to adequately protect the 
confidentiality of the information.



Sec. 700.837  Report.

    Each Federal Land Manager, when requested by the Secretary of the 
Interior, shall submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act.



Sec. 700.839  Permitting procedures for Navajo Nation lands.

    (a) If the lands involved in a permit application are Indian lands, 
the consent of the appropriate Indian tribal authority or individual 
Indian landowner is required by the Act and the regulations in this 
subpart.
    (b) When Indian tribal lands are involved in an application for a 
permit or a request for extension or modification of a permit, the 
consent of the Indian tribal government must be obtained. For Indian 
allotted lands outside reservation boundaries, consent from only the 
individual landowner is needed. When multiple-owner allotted lands are 
involved, consent by more than 50 percent of the ownership interest is 
sufficient. For Indian allotted lands within reservation boundaries, 
consent must be obtained from the Indian tribal government and the 
individual landowner(s).
    (c) The applicant should consult with the Office concerning 
procedures for obtaining consent from the appropriate Indian tribal 
authorities and submit the permit application to the Office that is 
responsible for the administration of the lands in question. The Office 
shall ensure that consultation with the appropriate Indian tribal 
authority or individual Indian landowner regarding terms and conditions 
of the permit occurs prior to detailed evaluation of the application. 
The Indian tribal authority or individual Indian landowner shall have 30 
days from the date of receipt of the consultation request from the 
Office to respond to such request. Failure of the Indian tribal 
authority or individual Indian landowner to respond timely to the 
consultation request shall be deemed to be consent to the request. 
Permits shall include terms and conditions requested by the Indian tribe 
or Indian landowner pursuant to Sec. 700.817 of this part.
    (d) The issuance of a permit under this part does not remove the 
requirement for any other permit required by Indian tribal law.



PART 720--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NAVAJO AND HOPI INDIAN RELOCATION COMMISSION--Table of Contents




Sec.
720.101  Purpose.
720.102  Application.
720.103  Definitions.
720.104--720.109  [Reserved]
720.110  Self-evaluation.
720.111  Notice.
720.112--720.129  [Reserved]
720.130  General prohibitions against discrimination.
720.131--720.139  [Reserved]
720.140  Employment.
720.141--720.148  [Reserved]
720.149  Program accessibility: Discrimination prohibited.
720.150  Program accessibility: Existing facilities.
720.151  Program accessibility: New construction and alterations.
720.152--720.159  [Reserved]
720.160  Communications.
720.161--720.169  [Reserved]
720.170  Compliance procedures.

    Authority: 29 U.S.C 794.

    Source: 51 FR 22891, 22896, June 23, 1986, unless otherwise noted.



Sec. 720.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the U.S. Postal Service.



Sec. 720.102  Application.

    This part applies to all programs or activities conducted by the 
agency.

[[Page 814]]



Sec. 720.103  Definitions.

    For purposes of this part, the term--
    ``Assistant Attorney General'' means the Assistant Attorney General, 
Civil Rights Division, U.S. Department of Justice.
    ``Auxiliary aids'' means services or devices that enable persons 
with impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    ``Complete complaint'' means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    ``Facility'' means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    ``Handicapped person'' means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) ``Physical or mental impairment'' includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alocoholism.
    (2) ``Major life activities'' includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) ``Has a record of such an impairment'' means has a history of, 
or has been misclassified as having, a mental or physical impairment 
that substantially limits one or more major life activities.
    (4) ``Is regarded as having an impairment'' means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    ``Historic preservation programs'' means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    ``Historic properties'' means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    ``Qualified handicapped person'' means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped

[[Page 815]]

person who is a member of a class of persons otherwise entitled by 
statute, regulation, or agency policy to receive education services from 
the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) ``Qualified handicapped person'' is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 720.140.
    ``Section 504'' means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    ``Substantial impairment'' means a significant loss of the integrity 
of finished materials, design quality, or special character resulting 
from a permanent alteration.
Secs. 720.104--720.109  [Reserved]



Sec. 720.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 720.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.
Secs. 720.112--720.129  [Reserved]



Sec. 720.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to

[[Page 816]]

reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
Secs. 720.131--720.139  [Reserved]



Sec. 720.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.
Secs. 720.141--720.148  [Reserved]



Sec. 720.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 720.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 720.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the

[[Page 817]]

program or activity, when viewed in its entirety, is readily accessible 
to and usable by handicapped persons. This paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 720.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 720.150(a) in historic preservation programs, the agency shall give 
priority to methods that provide physical access to handicapped persons. 
In cases where a physical alteration to an historic property is not 
required because of Sec. 720.150(a)(2) or (a)(3), alternative methods of 
achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987 a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and

[[Page 818]]

written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.
    (e) Housing. The agency shall ensure that any dwelling purchased for 
a relocatee household is readily accessible to and usable by any 
handicapped person who is a member of that household.

[51 FR 22891, 22896, June 23, 1986, as amended at 51 FR 22892, June 23, 
1986]



Sec. 720.151  Program accessibility: New construction and alterations.

    (a) Each building or part of a building that is constructed or 
altered by, on behalf of, or for the use of the agency shall be 
designed, constructed, or altered so as to be readily accessible to and 
usable by handicapped persons. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings 
covered by this section.
    (b) The agency shall ensure that any dwelling that is constructed 
for a relocatee household is designed and constructed so as to be 
readily accessible to and usable by any handicapped person who is a 
member of that household.

[51 FR 22891, 22896, June 23, 1986, as amended at 51 FR 22892, June 23, 
1986]
Secs. 720.152--720.159  [Reserved]



Sec. 720.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and adminstrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 720.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If

[[Page 819]]

an action required to comply with this section would result in such an 
alteration or such burdens, the agency shall take any other action that 
would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, handicapped 
persons receive the benefits and services of the program or activity.
Secs. 720.161--720.169  [Reserved]



Sec. 720.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Assistant Director for Relocation Operations shall be 
responsible for coordinating implementation of this section. Complaints 
may be mailed to Assistant Director for Relocation Operations, Navajo 
and Hopi Indian Relocation Commission, P.O. Box KK, Flagstaff, Arizona 
86002.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by paragraph (g) of this section. The 
agency may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 22891, 22896, June 23, 1986, as amended at 51 FR 22891, June 23, 
1986]



PARTS 721-899--[RESERVED]




[[Page 821]]



  CHAPTER V--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AND 
     INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES




  --------------------------------------------------------------------
Part                                                                Page
900             Contracts under the Indian Self-
                    Determination and Education Assistance 
                    Act.....................................         822

[[Page 822]]



PART 900--CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT--Table of Contents




                      Subpart A--General Provisions

Sec.
900.1  Authority.
900.2  Purpose and scope.
900.3  Policy statements.
900.4  Effect on existing tribal rights.
900.5  Effect of these regulations on Federal program guidelines, 
          manual, or policy directives.

                         Subpart B--Definitions

900.6  Definitions.

                  Subpart C--Contract Proposal Contents

900.7  What technical assistance is available to assist in preparing an 
          initial contract proposal?
900.8  What must an initial contract proposal contain?
900.9  May the Secretary require an Indian tribe or tribal organization 
          to submit any other information beyond that identified in 
          900.8?
900.10  How does an Indian tribe or tribal organization secure a list of 
          all Federal property currently in use in carrying out the 
          programs, functions, services, or activities that benefit the 
          Indian tribe or tribal organization to assist in negotiating a 
          contract?
900.11  What should an Indian tribe or tribal organization that is 
          proposing a contract do about specifying the Federal property 
          that the Indian tribe or tribal organization may wish to use 
          in carrying out the contract?
900.12  Are the proposal contents requirements the same for renewal of a 
          contract that is expiring and for securing an annual funding 
          agreement after the first year of the funding agreement?
900.13  Does the contract proposal become part of the final contract?

          Subpart D--Review and Approval of Contract Proposals

900.14  What does this subpart cover?
900.15  What shall the Secretary do upon receiving a proposal?
900.16  How long does the Secretary have to review and approve the 
          proposal and award the contract, or decline a proposal?
900.17  Can the statutory 90-day period be extended?

[[Page 823]]

900.18  What happens if a proposal is not declined within 90 days after 
          it is received by the Secretary?
900.19  What happens when a proposal is approved?

                    Subpart E--Declination Procedures

900.20  What does this subpart cover?
900.21  When can a proposal be declined?
900.22  For what reasons can the Secretary decline a proposal?
900.23  Can the Secretary decline a proposal where the Secretary's 
          objection can be overcome through the contract?
900.24  Can a contract proposal for an Indian tribe's or tribal 
          organization's share of administrative programs, functions, 
          services, and activities be declined for any reason other than 
          the five reasons specified in Sec. 900.22?
900.25  What if only a portion of a proposal raises one of the five 
          declination criteria?
900.26  What happens if the Secretary declines a part of a proposal on 
          the ground that the proposal proposes in part to plan, 
          conduct, or administer a program, function, service or 
          activity that is beyond the scope of programs covered under 
          section 102(a) of the Act, or proposes a level of funding that 
          is in excess of the applicable level determined under section 
          106(a) of the Act?
900.27  If an Indian tribe or tribal organization elects to contract for 
          a severable portion of a proposal, does the Indian tribe or 
          tribal organization lose its appeal rights to challenge the 
          portion of the proposal that was declined?
900.28  Is technical assistance available to an Indian tribe or tribal 
          organization to avoid declination of a proposal?
900.29  What is the Secretary required to do if the Secretary decides to 
          decline all or a portion of a proposal?
900.30  When the Secretary declines all or a portion of a proposal, is 
          the Secretary required to provide an Indian tribe or tribal 
          organization with technical assistance?
900.31  When the Secretary declines all or a portion of a proposal, is 
          an Indian tribe or tribal organization entitled to any appeal?
900.32  Can the Secretary decline an Indian tribe or tribal 
          organization's proposed successor annual funding agreement?
900.33  Are all proposals to renew term contracts subject to the 
          declination criteria?

   Subpart F--Standards for Tribal or Tribal Organization Management 
                                 Systems

                                 General

900.35  What is the purpose of this subpart?

[[Page 824]]

900.36  What requirements are imposed upon Indian tribes or tribal 
          organizations by this subpart?
900.37  What provisions of Office of Management and Budget (OMB) 
          circulars or the ``common rule'' apply to self-determination 
          contracts?
900.38  Do these standards apply to the subcontractors of an Indian 
          tribe or tribal organization carrying out a self-determination 
          contract?
900.39  What is the difference between a standard and a system?
900.40  When are Indian tribe or tribal organization management 
          standards and management systems evaluated?
900.41  How long must an Indian tribe or tribal organization keep 
          management system records?

               Standards for Financial Management Systems

900.42  What are the general financial management system standards that 
          apply to an Indian tribe carrying out a self-determination 
          contract?
900.43  What are the general financial management system standards that 
          apply to a tribal organization carrying out a self-
          determination contract?
900.44  What minimum general standards apply to all Indian tribe or 
          tribal organization financial management systems when carrying 
          out a self-determination contract?
900.45  What specific minimum requirements shall an Indian tribe or 
          tribal organization's financial management system contain to 
          meet these standards?
900.46  What requirements are imposed upon the Secretary for financial 
          management by these standards?

                 Procurement Management System Standards

900.47  When procuring property or services with self-determination 
          contract funds, can an Indian tribe or tribal organization 
          follow the same procurement policies and procedures applicable 
          to other Indian tribe or tribal organization funds?
900.48  If the Indian tribe or tribal organization does not propose 
          different standards, what basic standards shall the Indian 
          tribe or tribal organization follow?
900.49  What procurement standards apply to subcontracts?
900.50  What Federal laws, regulations, and Executive Orders apply to 
          sub-contractors?

                  Property Management System Standards

900.51  What is an Indian tribe or tribal organization's property 
          management system expected to do?
900.52  What type of property is the property management system required 
          to track?
900.53  What kind of records shall the property management system 
          maintain?
900.54  Should the property management system prescribe internal 
          controls?
900.55  What are the standards for inventories?
900.56  What maintenance is required for property?
900.57  What if the Indian tribe or tribal organization chooses not to 
          take title to property furnished or acquired under the 
          contract?
900.58  Do the same accountability and control procedures described 
          above apply to Federal property?
900.59  How are the inventory requirements for Federal property 
          different than for tribal property?
900.60  How does an Indian tribe or tribal organization dispose of 
          Federal property?

          Subpart G--Programmatic Reports and Data Requirements

900.65  What programmatic reports and data shall the Indian tribe or 
          tribal organization provide?
900.66  What if the Indian tribe or tribal organization and the 
          Secretary cannot come to an agreement concerning the type and/
          or frequency of program narrative and/or program data 
          report(s)?
900.67  Will there be a uniform data set for all IHS programs?
900.68  Will this uniform data set be required of all Indian tribe or 
          tribal organizations contracting with the IHS under the Act?

      Subpart H--Lease of Tribally-Owned Buildings by the Secretary

900.69  What is the purpose of this subpart?
900.70  What elements are included in the compensation for a lease 
          entered into between the Secretary and an Indian tribe or 
          tribal organization for a building owned or leased by the 
          Indian tribe or tribal organization that is used for 
          administration or delivery of services under the Act?
900.71  What type of reserve fund is anticipated for funds deposited 
          into a reserve for replacement of facilities as specified in 
          Sec. 900.70(c)?
900.72  Who is the guardian of the fund and may the funds be invested?
900.73  Is a lease with the Secretary the only method available to 
          recover the types of cost described in Sec. 900.70?
900.74  How may an Indian tribe or tribal organization propose a lease 
          to be compensated for the use of facilities?

[[Page 825]]

                 Subpart I--Property Donation Procedures

                                 General

900.85  What is the purpose of this subpart?
900.86  How will the Secretary exercise discretion to acquire and donate 
          BIA or IHS excess property and excess and surplus Federal 
          property to an Indian tribe or tribal organization?

                      Government-Furnished Property

900.87  How does an Indian tribe or tribal organization obtain title to 
          property furnished by the Federal government for use in the 
          performance of a contract or grant agreement pursuant to 
          section 105(f)(2)(A) of the Act?
900.88  What should the Indian tribe or tribal organization do if it 
          wants to obtain title to government-furnished real property 
          that includes land not already held in trust?
900.89  When may the Secretary elect to reacquire government-furnished 
          property whose title has been transferred to an Indian tribe 
          or tribal organization?
900.90  Does government-furnished real property to which an Indian tribe 
          or tribal organization has taken title continue to be eligible 
          for facilities operation and maintenance funding from the 
          Secretary?

                      Contractor-Purchased Property

900.91  Who takes title to property purchased with funds under a self-
          determination contract or grant agreement pursuant to section 
          105(f)(2)(A)?
900.92  What should the Indian tribe or tribal organization do if it 
          wants contractor-purchased real property to be taken into 
          trust?
900.93  When may the Secretary elect to acquire title to contractor-
          purchased property?
900.94  Is contractor-purchased real property to which an Indian tribe 
          or tribal organization holds title eligible for facilities 
          operation and maintenance funding from the Secretary?

                       BIA and IHS Excess Property

900.95  What is BIA or IHS excess property?
900.96  How can Indian tribes or tribal organizations learn about BIA 
          and IHS excess property?
900.97  How can an Indian tribe or tribal organization acquire excess 
          BIA or IHS property?
900.98  Who takes title to excess BIA or IHS property donated to an 
          Indian tribe or tribal organization?
900.99  Who takes title to any land that is part of excess BIA or IHS 
          real property donated to an Indian tribe or tribal 
          organization?
900.100  May the Secretary elect to reacquire excess BIA or IHS property 
          whose title has been transferred to an Indian tribe or tribal 
          organization?
900.101  Is excess BIA or IHS real property to which an Indian tribe or 
          tribal organization has taken title eligible for facilities 
          operation and maintenance funding from the Secretary?

         Excess or Surplus Government Property of Other Agencies

900.102  What is excess or surplus government property of other 
          agencies?
900.103  How can Indian tribes or tribal organizations learn about 
          property that has been designated as excess or surplus 
          government property?
900.104  How may an Indian tribe or tribal organization receive excess 
          or surplus government property of other agencies?
900.105  Who takes title to excess or surplus Federal property donated 
          to an Indian tribe or tribal organization?
900.106  If a contract or grant agreement or portion thereof is 
          retroceded, reassumed, terminated, or expires, may the 
          Secretary reacquire title to excess or surplus Federal 
          property of other agencies that was donated to an Indian tribe 
          or tribal organization?

                Property Eligible for Replacement Funding

900.107  What property to which an Indian tribe or tribal organization 
          obtains title under this subpart is eligible for replacement 
          funding?

                         Subpart J--Construction

900.110  What does this subpart cover?
900.111  What activities of construction programs are contractible?
900.112  What are construction phases?
900.113  Definitions.
900.114  Why is there a separate subpart in these regulations for 
          construction contracts and grants?
900.115  How do self-determination construction contracts relate to 
          ordinary Federal procurement contracts?
900.116  Are negotiated fixed-price contracts treated the same as cost-
          reimbursable contracts?
900.117  Do these ``construction contract'' regulations apply to 
          planning services?
900.118  Do these ``construction contract'' regulations apply to 
          construction management services?
900.119  To what extent shall the Secretary consult with affected Indian 
          tribes before spending funds for any construction project?

[[Page 826]]

900.120  How does an Indian tribe or tribal organization find out about 
          a construction project?
900.121  What happens during the preplanning phase and can an Indian 
          tribe or tribal organization perform any of the activities 
          involved in this process?
900.122  What does an Indian tribe or tribal organization do if it wants 
          to secure a construction contract?
900.123  What happens if the Indian tribe or tribal organization and the 
          Secretary cannot develop a mutually agreeable contract 
          proposal?
900.124  May the Indian tribe or tribal organization elect to use a 
          grant in lieu of a contract?
900.125  What shall a construction contract proposal contain?
900.126  Shall a construction contract proposal incorporate provisions 
          of Federal construction guidelines and manuals?
900.127  What can be included in the Indian tribe or tribal 
          organization's contract budget?
900.128  What funding shall the Secretary provide in a construction 
          contract?
900.129  How do the Secretary and Indian tribe or tribal organization 
          arrive at an overall fair and reasonable price for the 
          performance of a construction contract?
900.130  What role does the Indian tribe or tribal organization play 
          during the performance of a self-determination construction 
          contract?
900.131  What role does the Secretary play during the performance of a 
          self-determination construction contract?
900.132  Once a contract and/or grant is awarded, how will the Indian 
          tribe or tribal organization receive payments?
900.133  Does the declination process or the Contract Dispute Act apply 
          to construction contract amendments proposed either by an 
          Indian tribe or tribal organization or the Secretary?
900.134  At the end of a self-determination construction contract, what 
          happens to savings on a cost-reimbursement contract?
900.135  May the time frames for action set out in this subpart be 
          reduced?
900.136  Do tribal employment rights ordinances apply to construction 
          contracts and subcontracts?
900.137  Do all provisions of the other subparts apply to contracts 
          awarded under this subpart?

                      Subpart K--Waiver Procedures

900.140  Can any provision of the regulations under this part be waived?
900.141  How does an Indian tribe or tribal organization get a waiver?
900.142  Does an Indian tribe or tribal organization's waiver request 
          have to be included in an initial contract proposal?
900.143  How is a waiver request processed?
900.144  What happens if the Secretary makes no decision within the 90-
          day period?
900.145  On what basis may the Secretary deny a waiver request?
900.146  Is technical assistance available for waiver requests?
900.147  What appeal rights are available?
900.148  How can an Indian tribe or tribal organization secure a 
          determination that a law or regulation has been superseded by 
          the Indian Self-Determination Act, as specified in section 
          107(b) of the Act?

                           Subpart L--Appeals

Appeals Other Than Emergency Reassumption and Suspension, Withholding or 
                            Delay in Payment

900.150  What decisions can an Indian tribe or tribal organization 
          appeal under this subpart?
900.151  Are there any appeals this part does not cover?
900.152  How does an Indian tribe or tribal organization know where and 
          when to file its appeal from decisions made by agencies of DOI 
          or DHHS?
900.153  Does an Indian tribe or tribal organization have any options 
          besides an appeal?
900.154  How does an Indian tribe or tribal organization request an 
          informal conference?
900.155  How is an informal conference held?
900.156  What happens after the informal conference?
900.157  Is the recommended decision always final?
900.158  How does an Indian tribe or tribal organization appeal the 
          initial decision, if it does not request an informal 
          conference or if it does not agree with the recommended 
          decision resulting from the informal conference?
900.159  May an Indian tribe or tribal organization get an extension of 
          time to file a notice of appeal?
900.160  What happens after an Indian tribe or tribal organization files 
          an appeal?
900.161  How is a hearing arranged?
900.162  What happens when a hearing is necessary?
900.163  What is the Secretary's burden of proof for appeals from 
          decisions under Sec. 900.150(a) through Sec. 900.150(g)?
900.164  What rights do Indian tribes, tribal organizations, and the 
          government have during the appeal process?
900.165  What happens after the hearing?
900.166  Is the recommended decision always final?

[[Page 827]]

900.167  If an Indian tribe or tribal organization objects to the 
          recommended decision, what will the Secretary of Health and 
          Human Services or the IBIA do?
900.168  Will an appeal hurt the Indian tribe or tribal organization's 
          position in other contract negotiations?
900.169  Will the decisions on appeals be available for the public to 
          review?

  Appeals of Emergency Reassumption of Self-Determination Contracts or 
Suspensions, Withholding or Delay of Payments Under a Self-Determination 
                                Contract

900.170  What happens in the case of emergency reassumption or 
          suspension or withholding or delay of payments?
900.171  Will there be a hearing?
900.172  What happens after the hearing?
900.173  Is the recommended decision always final?
900.174  If an Indian tribe or tribal organization objects to the 
          recommended decision, what will the Secretary of Health and 
          Human Services or the IBIA do?
900.175  Will an appeal hurt an Indian tribe or tribal organization's 
          position in other contract negotiations?
900.176  Will the decisions on appeals be available for the public to 
          review?

            Applicability of the Equal Access to Justice Act

900.177  Does the Equal Access to Justice Act (EAJA) apply to appeals 
          under this subpart?

     Subpart M--Federal Tort Claims Act Coverage General Provisions

900.180  What does this subpart cover?
900.181  What definitions apply to this subpart?
900.182  What other statutes and regulations apply to FTCA coverage?
900.183  Do Indian tribes and tribal organizations need to be aware of 
          areas which FTCA does not cover?
900.184  Is there a deadline for filing FTCA claims?
900.185  How long does the Federal government have to process an FTCA 
          claim after the claim is received by the Federal agency, 
          before a lawsuit may be filed?
900.186  Is it necessary for a self-determination contract to include 
          any clauses about Federal Tort Claims Act coverage?
900.187  Does FTCA apply to a self-determination contract if FTCA is not 
          referenced in the contract?
900.188  To what extent shall the contractor cooperate with the Federal 
          government in connection with tort claims arising out of the 
          contractor's performance?
900.189  Does this coverage extend to subcontractors of self-
          determination contracts?

                         Medical-Related Claims

900.190  Is FTCA the exclusive remedy for a tort claim for personal 
          injury or death resulting from the performance of a self-
          determination contract?
900.191  Are employees of self-determination contractors providing 
          health services under the self-determination contract 
          protected by FTCA?
900.192  What employees are covered by FTCA for medical-related claims?
900.193  Does FTCA coverage extend to individuals who provide health 
          care services under a personal services contract providing 
          services in a facility that is owned, operated, or constructed 
          under the jurisdiction of the IHS?
900.194  Does FTCA coverage extend to services provided under a staff 
          privileges agreement with a non-IHS facility where the 
          agreement requires a health care practitioner to provide 
          reciprocal services to the general population?
900.195  Does FTCA coverage extend to the contractor's health care 
          practitioners providing services to private patients on a fee-
          for-services basis when such personnel (not the self-
          determination contractor) receive the fee?
900.196  Do covered services include the conduct of clinical studies and 
          investigations and the provision of emergency services, 
          including the operation of emergency motor vehicles?
900.197  Does FTCA cover employees of the contractor who are paid by the 
          contractor from funds other than those provided through the 
          self-determination contract?
900.198  Are Federal employees assigned to a self-determination 
          contractor under the Intergovernmental Personnel Act or 
          detailed under section 214 of the Public Health Service Act 
          covered to the same extent that they would be if working 
          directly for a Federal agency?
900.199  Does FTCA coverage extend to health care practitioners to whom 
          staff privileges have been extended in contractor health care 
          facilities operated under a self-determination contract on the 
          condition that such practitioner provide health services to 
          IHS beneficiaries covered by FTCA?
900.200  May persons who are not Indians or Alaska Natives assert claims 
          under FTCA?

               Procedure for Filing Medical-Related Claims

900.201  How should claims arising out of the performance of medical-
          related functions be filed?

[[Page 828]]

900.202  What should a self-determination contractor or a contractor's 
          employee do on receiving such a claim?
900.203  If the contractor or contractor's employee receives a summons 
          and/or a complaint alleging a tort covered by FTCA, what 
          should the contractor do?

                       Non-Medical Related Claims

900.204  Is FTCA the exclusive remedy for a non-medical related tort 
          claim arising out of the performance of a self-determination 
          contract?
900.205  To what non-medical-related claims against self-determination 
          contractors does FTCA apply?
900.206  What employees are covered by FTCA for non-medical-related 
          claims?
900.207  How are non-medical related tort claims and lawsuits filed for 
          IHS?
900.208  How are non-medical related tort claims and lawsuits filed for 
          DOI?
900.209  What should a self-determination contractor or contractor's 
          employee do on receiving a non-medical related tort claim?
900.210  If the contractor or contractor's employee receives a summons 
          and/or complaint alleging a non-medical related tort covered 
          by FTCA, what should an Indian tribe or tribal organization 
          do?

                 Subpart N--Post-Award Contract Disputes

900.215  What does this subpart cover?
900.216  What other statutes and regulations apply to contract disputes?
900.217  Is filing a claim under the CDA our only option for resolving 
          post-award contract disputes?
900.218  What is a claim under the CDA?
900.219  How does an Indian tribe, tribal organization, or Federal 
          agency submit a claim?
900.220  Does it make a difference whether the claim is large or small?
900.221  What happens next?
900.222  What goes into a decision?
900.223  When does an Indian tribe or tribal organization get the 
          decision?
900.224  What happens if the decision does not come within that time?
900.225   Does an Indian tribe or tribal organization get paid 
          immediately if the awarding official decides in its favor?
900.226  What rules govern appeals of cost disallowances?
900.227  Can the awarding official change the decision after it has been 
          made?
900.228  Is an Indian tribe or tribal organization entitled to interest 
          if it wins its claim?
900.229  What role will the awarding official play during an appeal?
900.230  What is the effect of a pending appeal?

                    Subpart O--Conflicts of Interest

900.231  What is an organizational conflict of interest?
900.232  What must an Indian tribe or tribal organization do if an 
          organizational conflict of interest arises under a contract?
900.233  When must an Indian tribe or tribal organization regulate its 
          employees or subcontractors to avoid a personal conflict of 
          interest?
900.234  What types of personal conflicts of interest involving tribal 
          officers, employees or subcontractors would have to be 
          regulated by an Indian tribe?
900.235  What personal conflicts of interest must the standards of 
          conduct regulate?
900.236  May an Indian tribe elect to negotiate contract provisions on 
          conflict of interest to take the place of this regulation?

           Subpart P--Retrocession and Reassumption Procedures

900.240  What does retrocession mean?
900.241  Who may retrocede a contract, in whole or in part?
900.242  What is the effective date of retrocession?
900.243  What effect will an Indian tribe or tribal organization's 
          retrocession have on its rights to contract?
900.244  Will an Indian tribe or tribal organization's retrocession 
          adversely affect funding available for the retroceded program?
900.245  What obligation does the Indian tribe or tribal organization 
          have with respect to returning property that was used in the 
          operation of the retroceded program?
900.246  What does reassumption mean?
900.247  Under what circumstances is a reassumption considered an 
          emergency instead of non-emergency reassumption?
900.248  In a non-emergency reassumption, what is the Secretary required 
          to do?
900.249  What happens if the contractor fails to take corrective action 
          to remedy the contract deficiencies identified in the notice?
900.250  What shall the second written notice include?
900.251  What is the earliest date on which the contract will be 
          rescinded in a non-emergency reassumption?
900.252  In an emergency reassumption, what is the Secretary required to 
          do?
900.253  What shall the written notice include?
900.254  May the contractor be reimbursed for actual and reasonable 
          ``wind up costs'' incurred after the effective date of 
          rescission?

[[Page 829]]

900.255  What obligation does the Indian tribe or tribal organization 
          have with respect to returning property that was used in the 
          operation of the rescinded contract?
900.256  Will a reassumption adversely affect funding available for the 
          reassumed program?

    Authority: 25 U.S.C. 450f et seq.

    Source: 61 FR 32501, June 24, 1996, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 900.1   Authority.

    These regulations are prepared, issued, and maintained jointly by 
the Secretary of Health and Human Services and the Secretary of the 
Interior, with the active participation and representation of Indian 
tribes, tribal organizations, and individual tribal members pursuant to 
the guidance of the Negotiated Rulemaking procedures required by section 
107 of the Indian Self-Determination and Education Assistance Act.



Sec. 900.2   Purpose and scope.

    (a) General. These regulations codify uniform and consistent rules 
for contracts by the Department of Health and Human Services (DHHS) and 
the Department of the Interior (DOI) in implementing title I of the 
Indian Self-Determination and Education Assistance Act, Public Law 93-
638, 25 U.S.C. 450 et seq., as amended and sections 1 through 9 
preceding that title.
    (b) Programs funded by other Departments and agencies. Included 
under this part are programs administered (under current or future law 
or interagency agreement) by the DHHS and the DOI for the benefit of 
Indians for which appropriations are made to other Federal agencies.
    (c) This part included in contracts by reference. Each contract, 
including grants and cooperative agreements in lieu of contracts awarded 
under section 9 of the Act, shall include by reference the provisions of 
this part, and any amendment thereto, and they are binding on the 
Secretary and the contractor except as otherwise specifically authorized 
by a waiver under section 107(e) of the Act.
    (d) Freedom of Information. Access to records maintained by the 
Secretary is governed by the Freedom of Information Act (5 U.S.C. 552) 
and other applicable Federal law. Except for previously provided copies 
of tribal records that the Secretary demonstrates are clearly required 
to be maintained as part of the record keeping systems of the DHHS or 
the DOI, or both, records of the contractors (including archived 
records) shall not be considered Federal records for the purpose of the 
Freedom of Information Act. The Freedom of Information Act does not 
apply to records maintained solely by Indian tribes and tribal 
organizations.
    (e) Privacy Act. Section 108(b) of the Indian Self-Determination Act 
states that records of the tribal government or tribal organizations 
shall not be considered Federal records for the purposes of the Privacy 
Act.
    (f) Information collection. The Office of Management and Budget has 
approved, under 44 U.S.C. chapter 35, the information collection 
requirements in part 900 under assigned control number 1076-0136. The 
information for part 900 is being collected and used by the Departments 
to determine applicant eligibility, evaluate applicant capabilities, 
protect the service population, safeguard Federal funds and other 
resources, and permit the Departments to administer and evaluate 
contract programs.



Sec. 900.3  Policy statements.

    (a) Congressional policy. (1) Congress has recognized the obligation 
of the United States to respond to the strong expression of the Indian 
people for self-determination by assuring maximum Indian participation 
in the direction, planning, conduct and administration of educational as 
well as other Federal programs and services to Indian communities so as 
to render such programs and services more responsive to the needs and 
desires of those communities.
    (2) Congress has declared its commitment to the maintenance of the 
Federal Government's unique and continuing relationship with, and 
responsibility to, individual Indian tribes and to the Indian people as 
a whole through

[[Page 830]]

the establishment of a meaningful Indian self-determination policy which 
will permit an orderly transition from the Federal domination of 
programs for, and services to, Indians to effective and meaningful 
participation by the Indian people in the planning, conduct, and 
administration of those programs and services. In accordance with this 
policy, the United States is committed to supporting and assisting 
Indian tribes in the development of strong and stable tribal 
governments, capable of administering quality programs and developing 
the economies of their respective communities.
    (3) Congress has declared that a major national goal of the United 
States is to provide the quantity and quality of educational services 
and opportunities which will permit Indian children to compete and excel 
in the life areas of their choice, and to achieve the measure of self-
determination essential to their social and economic well-being.
    (4) Congress has declared that the programs, functions, services, or 
activities that are contracted and funded under this Act shall include 
administrative functions of the Department of the Interior and the 
Department of Health and Human Services (whichever is applicable) that 
support the delivery of services to Indians, including those 
administrative activities supportive of, but not included as part of, 
the service delivery programs described in this paragraph that are 
otherwise contractible. The administrative functions referred to in the 
preceding sentence shall be contractible without regard to the 
organizational level within the Department that carries out such 
functions. Contracting of the administrative functions described herein 
shall not be construed to limit or reduce in any way the funding for any 
program, function, service, or activity serving any other tribe under 
the Act or any other law. The Secretary is not required to reduce 
funding for programs, projects, or activities serving a tribe to make 
funds available to another Indian tribe or tribal organization under 
this Act.
    (5) Congress has further declared that each provision of the Act and 
each provision of contracts entered into thereunder shall be liberally 
construed for the benefit of the tribes or tribal organizations to 
transfer the funding and the related functions, services, activities, 
and programs (or portions thereof), that are otherwise contractible 
under the Act, including all related administrative functions, from the 
Federal government to the contractor.
    (6) Congress has declared that one of the primary goals of the 1994 
amendments to the Act was to minimize the reporting requirements 
applicable to tribal contractors and to eliminate excessive and 
burdensome reporting requirements. Reporting requirements over and above 
the annual audit report are to be negotiated with disagreements subject 
to the declination procedures of section 102 of the Act.
    (7) Congress has declared that there not be any threshold issues 
which would avoid the declination, contract review, approval, and appeal 
process.
    (8) Congress has declared that all self-determination contract 
proposals must be supported by the resolution of an Indian tribe(s).
    (9) Congress has declared that to the extent that programs, 
functions, services, and activities carried out by tribes and tribal 
organizations pursuant to contracts entered into under this Act reduce 
the administrative or other responsibilities of the Secretary with 
respect to the operation of Indian programs and result in savings that 
have not otherwise been included in the amount of contract funds 
determined under Section 106(a) of the Act, the Secretary shall make 
such savings available for the provision of additional services to 
program beneficiaries, either directly or through contractors, in a 
manner equitable to both direct and contracted programs.
    (b) Secretarial policy. (1) It is the policy of the Secretary to 
facilitate the efforts of Indian tribes and tribal organizations to 
plan, conduct and administer programs, functions, services and 
activities, or portions thereof, which the Departments are authorized to 
administer for the benefit of Indians because of their status as 
Indians. The Secretary shall make best efforts to remove any obstacles 
which might hinder Indian tribes and tribal organizations including 
obstacles that hinder tribal

[[Page 831]]

autonomy and flexibility in the administration of such programs.
    (2) It is the policy of the Secretary to encourage Indian tribes and 
tribal organizations to become increasingly knowledgeable about the 
Departments' programs administered for the benefit of Indians by 
providing information on such programs, functions and activities and the 
opportunities Indian tribes have regarding them.
    (3) It is the policy of the Secretary to provide a uniform and 
consistent set of rules for contracts under the Act. The rules contained 
herein are designed to facilitate and encourage Indian tribes to 
participate in the planning, conduct, and administration of those 
Federal programs serving Indian people. The Secretary shall afford 
Indian tribes and tribal organizations the flexibility, information, and 
discretion necessary to design contractible programs to meet the needs 
of their communities consistent with their diverse demographic, 
geographic, economic, cultural, health, social, religious and 
institutional needs.
    (4) The Secretary recognizes that contracting under the Act is an 
exercise by Indian tribes of the government-to-government relationship 
between the United States and the Indian tribes. When an Indian tribe 
contracts, there is a transfer of the responsibility with the associated 
funding. The tribal contractor is accountable for managing the day-to-
day operations of the contracted Federal programs, functions, services, 
and activities. The contracting tribe thereby accepts the responsibility 
and accountability to the beneficiaries under the contract with respect 
to use of the funds and the satisfactory performance of the programs, 
functions, services and activities funded under the contract. The 
Secretary will continue to discharge the trust responsibilities to 
protect and conserve the trust resources of Indian tribes and the trust 
resources of individual Indians.
    (5) The Secretary recognizes that tribal decisions to contract or 
not to contract are equal expressions of self-determination.
    (6) The Secretary shall maintain consultation with tribal 
governments and tribal organizations in the Secretary's budget process 
relating to programs, functions, services and activities subject to the 
Act. In addition, on an annual basis, the Secretary shall consult with, 
and solicit the participation of, Indian tribes and tribal organizations 
in the development of the budget for the Indian Health Service and the 
Bureau of Indian Affairs (including participation of Indian tribes and 
tribal organizations in formulating annual budget requests that the 
Secretary submits to the President for submission to Congress pursuant 
to section 1105 of title 31, United States Code).
    (7) The Secretary is committed to implementing and fully supporting 
the policy of Indian self-determination by recognizing and supporting 
the many positive and successful efforts and directions of tribal 
governments and extending the applicability of this policy to all 
operational components within the Department. By fully extending Indian 
self-determination contracting to all operational components within the 
Department having programs or portions of programs for the benefit of 
Indians under section 102(a)(1) (A) through (D) and for the benefit of 
Indians because of their status as Indians under section 102(a)(1)(E), 
it is the Secretary's intent to support and assist Indian tribes in the 
development of strong and stable tribal governments capable of 
administering quality programs that meet the tribally determined needs 
and directions of their respective communities. It is also the policy of 
the Secretary to have all other operational components within the 
Department work cooperatively with tribal governments on a government-
to-government basis so as to expedite the transition away from Federal 
domination of Indian programs and make the ideals of Indian self-
government and self-determination a reality.
    (8) It is the policy of the Secretary that the contractibility of 
programs under this Act should be encouraged. In this regard, Federal 
laws and regulations should be interpreted in a manner that will 
facilitate the inclusion of those programs or portions of those programs 
that are for the benefit of Indians under section 102(a)(1) (A) through 
(D) of the Act, and that are for

[[Page 832]]

the benefit of Indians because of their status of Indians under section 
102(a)(1)(E) of the Act.
    (9) It is the Secretary's policy that no later than upon receipt of 
a contract proposal under the Act (or written notice of an Indian tribe 
or tribal organization's intention to contract), the Secretary shall 
commence planning such administrative actions, including but not limited 
to transfers or reductions in force, transfers of property, and 
transfers of contractible functions, as may be necessary to ensure a 
timely transfer of responsibilities and funding to Indian tribes and 
tribal organizations.
    (10) It is the policy of the Secretary to make available to Indian 
tribes and tribal organizations all administrative functions that may 
lawfully be contracted under the Act, employing methodologies consistent 
with the methodology employed with respect to such functions under 
titles III and IV of the Act.
    (11) The Secretary's commitment to Indian self-determination 
requires that these regulations be liberally construed for the benefit 
of Indian tribes and tribal organizations to effectuate the strong 
Federal policy of self-determination and, further, that any ambiguities 
herein be construed in favor of the Indian tribe or tribal organization 
so as to facilitate and enable the transfer of services, programs, 
functions, and activities, or portions thereof, authorized by the Act.



Sec. 900.4  Effect on existing tribal rights.

    Nothing in these regulations shall be construed as:
    (a) Affecting, modifying, diminishing, or otherwise impairing the 
sovereign immunity from suit enjoyed by Indian tribes;
    (b) Terminating, waiving, modifying, or reducing the trust 
responsibility of the United States to the Indian tribe(s) or individual 
Indians. The Secretary shall act in good faith in upholding this trust 
responsibility;
    (c) Mandating an Indian tribe to apply for a contract(s) or grant(s) 
as described in the Act; or
    (d) Impeding awards by other Departments and agencies of the United 
States to Indian tribes to administer Indian programs under any other 
applicable law.



Sec. 900.5  Effect of these regulations on Federal program guidelines, manual, or policy directives.

    Except as specifically provided in the Act, or as specified in 
subpart J, an Indian tribe or tribal organization is not required to 
abide by any unpublished requirements such as program guidelines, 
manuals, or policy directives of the Secretary, unless otherwise agreed 
to by the Indian tribe or tribal organization and the Secretary, or 
otherwise required by law.



                         Subpart B--Definitions



Sec. 900.6  Definitions.

    Unless otherwise provided in this part:
    Act means Secs. 1 through 9, and Title I of the Indian Self-
Determination and Education Assistance Act of 1975, Public Law 93-638, 
as amended.
    Annual funding agreement means a document that represents the 
negotiated agreement of the Secretary to fund, on an annual basis, the 
programs, services, activities and functions transferred to an Indian 
tribe or tribal organization under the Act.
    Appeal means a request by an Indian tribe or tribal organization for 
an administrative review of an adverse Agency decision.
    Awarding official means any person who by appointment or delegation 
in accordance with applicable regulations has the authority to enter 
into and administer contracts on behalf of the United States of America 
and make determinations and findings with respect thereto. Pursuant to 
the Act, this person can be any Federal official, including but not 
limited to, contracting officers.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    Contract means a self-determination contract as defined in section 
4(j) of the Act.
    Contract appeals board means the Interior Board of Contract Appeals.
    Contractor means an Indian tribe or tribal organization to which a 
contract has been awarded.

[[Page 833]]

    Days means calendar days; except where the last day of any time 
period specified in these regulations falls on a Saturday, Sunday, or a 
Federal holiday, the period shall carry over to the next business day 
unless otherwise prohibited by law.
    Department(s) means the Department of Health and Human Services 
(HHS) or the Department of the Interior (DOI), or both.
    IHS means the Indian Health Service of the Department of Health and 
Human Services.
    Indian means a person who is a member of an Indian Tribe.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group, or community, including pueblos, rancherias, colonies 
and any Alaska Native Village, or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act, which is recognized as eligible for the special programs 
and services provided by the United States to Indians because of their 
status as Indians.
    Indirect cost rate means the rate(s) arrived at through negotiation 
between an Indian tribe or tribal organization and the appropriate 
Federal Agency.
    Indirect costs means costs incurred for a common or joint purpose 
benefiting more than one contract objective or which are not readily 
assignable to the contract objectives specifically benefitted without 
effort disproportionate to the results achieved.
    Initial contract proposal means a proposal for programs, functions, 
services, or activities that the Secretary is authorized to perform but 
which the Indian tribe or tribal organization is not now carrying out.
    Real property means any interest in land together with the 
improvements, structures, and fixtures and appurtenances thereto.
    Reassumption means rescission, in whole or in part, of a contract 
and assuming or resuming control or operation of the contracted program 
by the Secretary without consent of the Indian tribe or tribal 
organization pursuant to the notice and other procedures set forth in 
subpart P.
    Retrocession means the voluntary return to the Secretary of a 
contracted program, in whole or in part, for any reason, before the 
expiration of the term of the contract.
    Secretary means the Secretary of Health and Human Services (HHS) or 
the Secretary of the Interior (DOI), or both (and their respective 
delegates).
    Tribal organization means the recognized governing body of any 
Indian tribe; any legally established organization of Indians which is 
controlled, sanctioned, or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities: provided, 
that, in any case where a contract is let or a grant made to an 
organization to perform services benefiting more than one Indian tribe, 
the approval of each such Indian tribe shall be a prerequisite to the 
letting or making of such contract or grant.
    Trust resources means an interest in land, water, minerals, funds, 
or other assets or property which is held by the United States in trust 
for an Indian tribe or an individual Indian or which is held by an 
Indian tribe or Indian subject to a restriction on alienation imposed by 
the United States.



                  Subpart C--Contract Proposal Contents



Sec. 900.7  What technical assistance is available to assist in preparing an initial contract proposal?

    The Secretary shall, upon request of an Indian tribe or tribal 
organization and subject to the availability of appropriations, provide 
technical assistance on a non-reimbursable basis to such Indian tribe or 
tribal organization to develop a new contract proposal or to provide for 
the assumption by the Indian tribe or tribal organization of any 
program, service, function, or activity (or portion thereof) that is 
contractible under the Act. The Secretary may also make a grant to an 
Indian tribe or tribal organization for the purpose of obtaining 
technical assistance, as provided in section 103 of the Act. An Indian 
tribe or tribal organization may also request reimbursement

[[Page 834]]

for pre-award costs for obtaining technical assistance under sections 
106(a) (2) and (5) of the Act.



Sec. 900.8  What must an initial contract proposal contain?

    An initial contract proposal must contain the following information:
    (a) The full name, address and telephone number of the Indian tribe 
or tribal organization proposing the contract.
    (b) If the tribal organization is not an Indian tribe, the proposal 
must also include:
    (1) A copy of the tribal organization's organizational documents 
(e.g., charter, articles of incorporation, bylaws, etc.).
    (2) The full name(s) of the Indian tribe(s) with which the tribal 
organization is affiliated.
    (c) The full name(s) of the Indian tribe(s) proposed to be served.
    (d) A copy of the authorizing resolution from the Indian tribe(s) to 
be served.
    (1) If an Indian tribe or tribal organization proposes to serve a 
specified geographic area, it must provide authorizing resolution(s) 
from all Indian tribes located within the specific area it proposes to 
serve. However, no resolution is required from an Indian tribe located 
outside the area proposed to be served whose members reside within the 
proposed service area.
    (2) If a currently effective authorizing resolution covering the 
scope of an initial contract proposal has already been provided to the 
agency receiving the proposal, a reference to that resolution.
    (e) The name, title, and signature of the authorized representative 
of the Indian tribe or tribal organization submitting the contract 
proposal.
    (f) The date of submission of the proposal.
    (g) A brief statement of the programs, functions, services, or 
activities that the tribal organization proposes to perform, including:
    (1) A description of the geographical service area, if applicable, 
to be served.
    (2) The estimated number of Indian people who will receive the 
benefits or services under the proposed contract.
    (3) An identification of any local, Area, regional, or national 
level departmental programs, functions, services, or activities to be 
contracted, including administrative functions.
    (4) A description of the proposed program standards;
    (5) An identification of the program reports, data and financial 
reports that the Indian tribe or tribal organization will provide, 
including their frequency.
    (6) A description of any proposed redesign of the programs, 
services, functions, or activities to be contracted,
    (7) Minimum staff qualifications proposed by the Indian tribe and 
tribal organization, if any; and
    (8) A statement that the Indian tribe or tribal organization will 
meet the minimum procurement, property and financial management 
standards set forth in subpart F, subject to any waiver that may have 
been granted under subpart K.
    (h) The amount of funds requested, including:
    (1) An identification of the funds requested by programs, functions, 
services, or activities, under section 106(a)(1) of the Act, including 
the Indian tribe or tribal organization's share of funds related to such 
programs, functions, services, or activities, if any, from any 
Departmental local, area, regional, or national level.
    (2) An identification of the amount of direct contract support 
costs, including one-time start-up or preaward costs under section 
106(a)(2) and related provisions of the Act, presented by major 
categories such as:
    (i) Personnel (differentiating between salary and fringe benefits);
    (ii) Equipment;
    (iii) Materials and supplies;
    (iv) Travel;
    (v) Subcontracts; and
    (vi) Other appropriate items of cost.
    (3) An identification of funds the Indian tribe or tribal 
organization requests to recover for indirect contract support costs. 
This funding request must include either:
    (i) A copy of the most recent negotiated indirect cost rate 
agreement; or
    (ii) An estimated amount requested for indirect costs, pending 
timely establishment of a rate or negotiation of administrative overhead 
costs.

[[Page 835]]

    (4) To the extent not stated elsewhere in the budget or previously 
reported to the Secretary, any preaward costs, including the amount and 
time period covered or to be covered; and
    (5) At the option of the Indian tribe or tribal organization, an 
identification of programs, functions, services, or activities specified 
in the contract proposal which will be funded from sources other than 
the Secretary.
    (i) The proposed starting date and term of the contract.
    (j) In the case of a cooperative agreement, the nature and degree of 
Federal programmatic involvement anticipated during the term of the 
agreement.
    (k) The extent of any planned use of Federal personnel and Federal 
resources.
    (l) Any proposed waiver(s) of the regulations in this part; and
    (m) A statement that the Indian tribe or tribal organization will 
implement procedures appropriate to the programs, functions, services or 
activities proposed to be contracted, assuring the confidentiality of 
medical records and of information relating to the financial affairs of 
individual Indians obtained under the proposal contract, or as otherwise 
required by law.



Sec. 900.9  May the Secretary require an Indian tribe or tribal organization to submit any other information beyond that identified in Sec. 900.8?

    No.




Sec. 900.10  How does an Indian tribe or tribal organization secure a list of all Federal property currently in use in carrying out the programs, functions, 
          services, or activities that benefit the Indian tribe or 
          tribal organization to assist in negotiating a contract?

    The Indian tribe or tribal organization submits a written request to 
the Secretary. The Secretary shall provide the requested information, 
including the condition of the property, within 60 days.



Sec. 900.11  What should an Indian tribe or tribal organization that is proposing a contract do about specifying the Federal property that the Indian tribe or 
          tribal organization may wish to use in carrying out the 
          contract?
A

    The Indian tribe or tribal organization is encouraged to provide the 
Secretary, as early as possible, with:
    (a) A list of the following Federal property intended for use under 
the contract:
    (1) Equipment;
    (2) Furnishings;
    (3) Facilities; and
    (4) Other real and personal property.
    (b) A statement of how the Indian tribe or tribal organization will 
obtain each item by transfer of title under section 105(f)(2) of the Act 
and section 1(b)(8) of the model agreement set forth in section 108(c) 
of the Act, through a temporary use permit, similar arrangement, or 
otherwise; and
    (c) Where equipment is to be shared by contracted and non-contracted 
programs, services, functions, or activities, a proposal outlining 
proposed equipment sharing or other arrangements.



Sec. 900.12  Are the proposal contents requirements the same for renewal of a contract that is expiring and for securing an annual funding agreement after the 
          first year of the funding agreement?

    No. In these situations, an Indian tribe or tribal organization 
should submit a renewal proposal (or notification of intent not to 
renew) or an annual funding agreement proposal at least 90 days before 
the expiration date of the contract or existing annual funding 
agreement. The proposal shall provide funding information in the same 
detail and format as the original proposal and may also identify any 
significant proposed changes.



Sec. 900.13  Does the contract proposal become part of the final contract?

    No, unless the parties agree.

[[Page 836]]



          Subpart D--Review and Approval of Contract Proposals



Sec. 900.14  What does this subpart cover?

    This subpart covers any proposal to enter into a self-determination 
contract, to amend an existing self-determination contract, to renew an 
existing self-determination contract, or to redesign a program through a 
self-determination contract.



Sec. 900.15  What shall the Secretary do upon receiving a proposal?

    Upon receipt of a proposal, the Secretary shall:
    (a) Within two days notify the applicant in writing that the 
proposal has been received;
    (b) Within 15 days notify the applicant in writing of any missing 
items required by Sec. 900.8 and request that the items be submitted 
within 15 days of receipt of the notification; and
    (c) Review the proposal to determine whether there are declination 
issues under section 102(a)(2) of the Act.



Sec. 900.16  How long does the Secretary have to review and approve the proposal and award the contract, or decline a proposal?

    The Secretary has 90 days after receipt of a proposal to review and 
approve the proposal and award the contract or decline the proposal in 
compliance with section 102 of the Act and subpart E. At any time during 
the review period the Secretary may approve the proposal and award the 
requested contract.



Sec. 900.17  Can the statutory 90-day period be extended?

    Yes, with written consent of the Indian tribe or tribal 
organization. If consent is not given, the 90-day deadline applies.



Sec. 900.18  What happens if a proposal is not declined within 90 days after it is received by the Secretary?

    A proposal that is not declined within 90 days (or within any agreed 
extension under Sec. 900.17) is deemed approved and the Secretary shall 
award the contract or any amendment or renewal within that 90-day period 
and add to the contract the full amount of funds pursuant to section 
106(a) of the Act.



Sec. 900.19  What happens when a proposal is approved?

    Upon approval the Secretary shall award the contract and add to the 
contract the full amount of funds to which the contractor is entitled 
under section 106(a) of the Act.



                    Subpart E--Declination Procedures



Sec. 900.20  What does this subpart cover?

    This subpart explains how and under what circumstances the Secretary 
may decline a proposal to contract, to amend an existing contract, to 
renew an existing contract, to redesign a program, or to waive any 
provisions of these regulations. For annual funding agreements, see 
Sec. 900.32.



Sec. 900.21  When can a proposal be declined?

    As explained in Secs. 900.16 and 900.17, a proposal can only be 
declined within 90 days after the Secretary receives the proposal, 
unless that period is extended with the voluntary and express written 
consent of the Indian tribe or tribal organization.



Sec. 900.22  For what reasons can the Secretary decline a proposal?

    The Secretary may only decline to approve a proposal for one of five 
specific reasons:
    (a) The service to be rendered to the Indian beneficiaries of the 
particular program or function to be contracted will not be 
satisfactory;
    (b) Adequate protection of trust resources is not assured;
    (c) The proposed project or function to be contracted for cannot be 
properly completed or maintained by the proposed contract;
    (d) The amount of funds proposed under the contract is in excess of 
the applicable funding level for the contract, as determined under 
section 106(a) of the Act; or
    (e) The program, function, service, or activity (or a portion 
thereof) that is the subject of the proposal is beyond

[[Page 837]]

the scope of programs, functions, services, or activities covered under 
section 102(a)(1) of the Act because the proposal includes activities 
that cannot lawfully be carried out by the contractor.



Sec. 900.23  Can the Secretary decline a proposal where the Secretary's objection can be overcome through the contract?

    No. The Secretary may not decline to enter into a contract with an 
Indian tribe or tribal organization based on any objection that will be 
overcome through the contract.



Sec. 900.24  Can a contract proposal for an Indian tribe or tribal organization's share of administrative programs, functions, services, and activities be 
          declined for any reason other than the five reasons specified 
          in Sec. 900.22?

    No. The Secretary may only decline a proposal based upon one or more 
of the five reasons listed above. If a contract affects the preexisting 
level of services to any other tribe, the Secretary shall address that 
effect in the Secretary's annual report to Congress under section 
106(c)(6) of the Act.



Sec. 900.25  What if only a portion of a proposal raises one of the five declination criteria?

    The Secretary must approve any severable portion of a proposal that 
does not support a declination finding described in Sec. 900.20, subject 
to any alteration in the scope of the proposal that the Secretary and 
the Indian tribe or tribal organization approve.




Sec. 900.26  What happens if the Secretary declines a part of a proposal on the ground that the proposal proposes in part to plan, conduct, or administer a 
          program, function, service or activity that is beyond the 
          scope of programs covered under section 102(a) of the Act, or 
          proposes a level of funding that is in excess of the 
          applicable level determined under section 106(a) of the Act?

    In those situations the Secretary is required, as appropriate, to 
approve the portion of the program, function, service, or activity that 
is authorized under section 102(a) of the Act, or approve a level of 
funding that is authorized under section 106(a) of the Act. As noted in 
Sec. 900.25, the approval is subject to any alteration in the scope of 
the proposal that the Secretary and the Indian tribe or tribal 
organization approve.




Sec. 900.27  If an Indian tribe or tribal organization elects to contract for a severable portion of a proposal, does the Indian tribe or tribal organization 
          lose its appeal rights to challenge the portion of the 
          proposal that was declined?

    No, but the hearing and appeal procedures contained in these 
regulations only apply to the portion of the proposal that was declined.




Sec. 900.28  Is technical assistance available to an Indian tribe or tribal organization to avoid declination of a proposal?

    Yes. In accordance with section 103(d) of the Act, upon receiving a 
proposal, the Secretary shall provide any necessary requested technical 
assistance to an Indian tribe or tribal organization, and shall share 
all relevant information with the Indian tribe or tribal organization, 
in order to avoid declination of the proposal.




Sec. 900.29  What is the Secretary required to do if the Secretary decides to decline all or a portion of a proposal?

    If the Secretary decides to decline all or a severable portion of a 
proposal, the Secretary is required:
    (a) To advise the Indian tribe or tribal organization in writing of 
the Secretary's objections, including a specific finding that clearly 
demonstrates that (or that is supported by a controlling legal authority 
that) one of the conditions set forth in Sec. 900.22 exists, together 
with a detailed explanation of the reason for the decision to decline 
the proposal and, within 20 days, any documents relied on in making the 
decision; and
    (b) To advise the Indian tribe or tribal organization in writing of 
the rights described in Sec. 900.31.

[[Page 838]]




Sec. 900.30  When the Secretary declines all or a portion of a proposal, is the Secretary required to provide an Indian tribe or tribal organization with 
          technical assistance?

    Yes. The Secretary shall provide additional technical assistance to 
overcome the stated objections, in accordance with section 102(b) of the 
Act, and shall provide any necessary requested technical assistance to 
develop any modifications to overcome the Secretary's stated objections.




Sec. 900.31  When the Secretary declines all or a portion of a proposal, is an Indian tribe or tribal organization entitled to any appeal?

    Yes. The Indian tribe or tribal organization is entitled to an 
appeal on the objections raised by the Secretary, with an agency hearing 
on the record, and the right to engage in full discovery relevant to any 
issue raised in the matter. The procedures for appeals are in subpart L 
of these regulations. Alternatively, at its option the Indian tribe or 
tribal organization has the right to sue in Federal district court to 
challenge the Secretary's decision.




Sec. 900.32  Can the Secretary decline an Indian tribe or tribal organization's proposed successor annual funding agreement?

    No. If it is substantially the same as the prior annual funding 
agreement (except for funding increases included in appropriations acts 
or funding reductions as provided in section 106(b) of the Act) and the 
contract is with DHHS or the BIA, the Secretary shall approve and add to 
the contract the full amount of funds to which the contractor is 
entitled, and may not decline, any portion of a successor annual funding 
agreement. Any portion of an annual funding agreement proposal which is 
not substantially the same as that which was funded previously (e.g., a 
redesign proposal; waiver proposal; different proposed funding amount; 
or different program, service, function, or activity), or any annual 
funding agreement proposal which pertains to a contract with an agency 
of DOI other than the BIA, is subject to the declination criteria and 
procedures in subpart E. If there is a disagreement over the 
availability of appropriations, the Secretary may decline the proposal 
in part under the procedure in subpart E.




Sec. 900.33  Are all proposals to renew term contracts subject to the declination criteria?

    Department of Health and Human Services and the Bureau of Indian 
Affairs will not review the renewal of a term contract for declination 
issues where no material and substantial change to the scope or funding 
of a program, functions, services, or activities has been proposed by 
the Indian tribe or tribal organization. Proposals to renew term 
contracts with DOI agencies other than the Bureau of Indian Affairs may 
be reviewed under the declination criteria.



   Subpart F--Standards for Tribal or Tribal Organization Management 
                                 Systems

                                 General




Sec. 900.35  What is the purpose of this subpart?

    This subpart contains the minimum standards for the management 
systems used by Indian tribes or tribal organizations when carrying out 
self-determination contracts. It provides standards for an Indian tribe 
or tribal organization's financial management system, procurement 
management system, and property management system.




Sec. 900.36  What requirements are imposed upon Indian tribes or tribal organizations by this subpart?

    When carrying out self-determination contracts, Indian tribes and 
tribal organizations shall develop, implement, and maintain systems that 
meet these minimum standards, unless one or more of the standards have 
been waived, in whole or in part, under section 107(e) of the Act and 
subpart K.




Sec. 900.37  What provisions of Office of Management and Budget (OMB) circulars or the ``common rule'' apply to self-determination contracts?

    The only provisions of OMB Circulars and the only provisions of the 
``common rule'' that apply to self-determination contracts are the 
provisions

[[Page 839]]

adopted in these regulations, those expressly required or modified by 
the Act, and those negotiated and agreed to in a self-determination 
contract.




Sec. 900.38  Do these standards apply to the subcontractors of an Indian tribe or tribal organization carrying out a self-determination contract?

    An Indian tribe or tribal organization may require that some or all 
of the standards in this subpart be imposed upon its subcontractors when 
carrying out a self-determination contract.




Sec. 900.39  What is the difference between a standard and a system?

    (a) Standards are the minimum baseline requirements for the 
performance of an activity. Standards establish the ``what'' that an 
activity should accomplish.
    (b) Systems are the procedural mechanisms and processes for the day-
to-day conduct of an activity. Systems are ``how'' the activity will be 
accomplished.




Sec. 900.40  When are Indian tribe or tribal organization management standards and management systems evaluated?

    (a) Management standards are evaluated by the Secretary when the 
Indian tribe or tribal organization submits an initial contract 
proposal.
    (b) Management systems are evaluated by an independent auditor 
through the annual single agency audit report that is required by the 
Act and OMB Circular A-128.




Sec. 900.41  How long must an Indian tribe or tribal organization keep management system records?

    The Indian tribe or tribal organization must retain financial, 
procurement and property records for the minimum periods described 
below. Electronic, magnetic or photographic records may be substituted 
for hard copies.
    (a) Financial records. Financial records include documentation of 
supporting costs incurred under the contract. These records must be 
retained for three years from the date of submission of the single audit 
report to the Secretary.
    (b) Procurement records. Procurement records include solicitations, 
purchase orders, contracts, payment histories and records applicable of 
significant decisions. These records must be retained for three years 
after the Indian tribe or tribal organization or subcontractors make 
final payment and all other pending matters are closed.
    (c) Property management records. Property management records of real 
and personal property transactions must be retained for three years from 
the date of disposition, replacement, or transfer.
    (d) Litigation, audit exceptions and claims. Records pertaining to 
any litigation, audit exceptions or claims requiring management systems 
data must be retained until the action has been completed.

               Standards for Financial Management Systems




Sec. 900.42  What are the general financial management system standards that apply to an Indian tribe carrying out a self-determination contract?

    An Indian tribe shall expend and account for contract funds in 
accordance with all applicable tribal laws, regulations, and procedures.




Sec. 900.43  What are the general financial management system standards that apply to a tribal organization carrying out a self-determination contract?

    A tribal organization shall expend and account for contract funds in 
accordance with the procedures of the tribal organization.




Sec. 900.44  What minimum general standards apply to all Indian tribe or tribal organization financial management systems when carrying out a self-determination 
          contract?

    The fiscal control and accounting procedures of an Indian tribe or 
tribal organization shall be sufficient to:
    (a) Permit preparation of reports required by a self-determination 
contract and the Act; and
    (b) Permit the tracing of contract funds to a level of expenditure 
adequate to establish that they have not been used in violation of any 
restrictions or prohibitions contained in any

[[Page 840]]

statute that applies to the self-determination contract.




Sec. 900.45  What specific minimum requirements shall an Indian tribe or tribal organization's financial management system contain to meet these standards?

    An Indian tribe or tribal organization's financial management system 
shall include provisions for the following seven elements.
    (a) Financial reports. The financial management system shall provide 
for accurate, current, and complete disclosure of the financial results 
of self-determination contract activities. This includes providing the 
Secretary a completed Financial Status Report, SF 269A, as negotiated 
and agreed to in the self-determination contract.
    (b) Accounting records. The financial management system shall 
maintain records sufficiently detailed to identify the source and 
application of self-determination contract funds received by the Indian 
tribe or tribal organization. The system shall contain sufficient 
information to identify contract awards, obligations and unobligated 
balances, assets, liabilities, outlays, or expenditures and income.
    (c) Internal controls. The financial management system shall 
maintain effective control and accountability for all self-determination 
contract funds received and for all Federal real property, personal 
property, and other assets furnished for use by the Indian tribe or 
tribal organization under the self-determination contract.
    (d) Budget controls. The financial management system shall permit 
the comparison of actual expenditures or outlays with the amounts 
budgeted by the Indian tribe or tribal organization for each self-
determination contract.
    (e) Allowable costs. The financial management system shall be 
sufficient to determine the reasonableness, allowability, and 
allocability of self-determination contract costs based upon the terms 
of the self-determination contract and the Indian tribe or tribal 
organization's applicable OMB cost principles, as amended by the Act and 
these regulations. (The following chart lists certain OMB Circulars and 
suggests the entities that may use each, but the final selection of the 
applicable circular may differ from those shown, as agreed to by the 
Indian tribe or tribal organization and the Secretary. Agreements 
between an Indian tribe or tribal organization and the Secretary 
currently in place do not require renegotiation.) Copies of these 
circulars are available from the Executive Office of the President, 
Publications Service, 725 17th Street N. W., Washington, D. C. 20503.

[[Page 841]]



------------------------------------------------------------------------
       Type of tribal organization         Applicable OMB cost circular 
------------------------------------------------------------------------
Tribal Government.......................  A-87, ``Cost Principles for   
                                           State, Local and Indian      
                                           Tribal Governments.''        
Tribal private non-profit other than:     A-122, ``Cost Principles for  
 (1) an institution of higher education,   Non-Profit Organizations.''  
 (2) a hospital, or (3) an organization                                 
 named in OMB Circular A-122 as not                                     
 subject to that circular.                                              
Tribal educational institution..........  A-21, ``Cost Principles for   
                                           Educational Institutions.''  
------------------------------------------------------------------------


[[Page 842]]

    (f) Source documentation. The financial management system shall 
contain accounting records that are supported by source documentation, 
e.g., canceled checks, paid bills, payroll records, time and attendance 
records, contract award documents, purchase orders, and other primary 
records that support self-determination contract fund expenditures.
    (g) Cash management. The financial management system shall provide 
for accurate, current, and complete disclosure of cash revenues 
disbursements, cash-on-hand balances, and obligations by source and 
application for each Indian tribe or tribal organization, and 
subcontractor if applicable, so that complete and accurate cash 
transactions may be prepared as required by the self-determination 
contract.




Sec. 900.46   What requirements are imposed upon the Secretary for financial management by these standards?

    The Secretary shall establish procedures, consistent with Treasury 
regulations as modified by the Act, for the transfer of funds from the 
United States to the Indian tribe or tribal organization in strict 
compliance with the self-determination contract and the annual funding 
agreement.

                 Procurement Management System Standards




Sec. 900.47   When procuring property or services with self-determination contract funds, can an Indian tribe or tribal organization follow the same procurement 
          policies and procedures applicable to other Indian tribe or 
          tribal organization funds?

    Indian tribes and tribal organizations shall have standards that 
conform to the standards in this subpart. If the Indian tribe or tribal 
organization relies upon standards different than those described below, 
it shall identify the standards it will use as a proposed waiver in the 
initial contract proposal or as a waiver request to an existing 
contract.




Sec. 900.48   If the Indian tribe or tribal organization does not propose different standards, what basic standards shall the Indian tribe or tribal 
          organization follow?

    (a) The Indian tribe or tribal organization shall ensure that its 
vendors and/or subcontractors perform in accordance with the terms, 
conditions, and specifications of their contracts or purchase orders.
    (b) The Indian tribe or tribal organization shall maintain written 
standards of conduct governing the performance of its employees who 
award and administer contracts.
    (1) No employee, officer, elected official, or agent of the Indian 
tribe or tribal organization shall participate in the selection, award, 
or administration of a procurement supported by Federal funds if a 
conflict of interest, real or apparent, would be involved.
    (2) An employee, officer, elected official, or agent of an Indian 
tribe or tribal organization, or of a subcontractor of the Indian tribe 
or tribal organization, is not allowed to solicit or accept gratuities, 
favors, or anything of monetary value from contractors, potential 
contractors, or parties to sub-agreements, with the following 
exemptions. The Indian tribe or tribal organization may exempt a 
financial interest that is not substantial or a gift that is an 
unsolicited item of nominal value.
    (3) These standards shall also provide for penalties, sanctions, or 
other disciplinary actions for violations of the standards.
    (c) The Indian tribe or tribal organization shall review proposed 
procurements to avoid buying unnecessary or duplicative items and ensure 
the reasonableness of the price. The Indian tribe or tribal organization 
should consider consolidating or breaking out procurement to obtain more 
economical purchases. Where appropriate, the Indian tribe or tribal 
organization shall compare leasing and purchasing alternatives to 
determine which is more economical.
    (d) The Indian tribe or tribal organization shall conduct all major 
procurement transactions by providing full and open competition, to the 
extent

[[Page 843]]

necessary to assure efficient expenditure of contract funds and to the 
extent feasible in the local area.
    (1) Indian tribes or tribal organizations shall develop their own 
definition for ``major procurement transactions.''
    (2) As provided in sections 7 (b) and (c) of the Act, Indian 
preference and tribal preferences shall be applied in any procurement 
award.
    (e) The Indian tribe or tribal organization shall make procurement 
awards only to responsible entities who have the ability to perform 
successfully under the terms and conditions of the proposed procurement. 
In making this judgment, the Indian tribe or tribal organization will 
consider such matters as the contractor's integrity, its compliance with 
public policy, its record of past performance, and its financial and 
technical resources.
    (f) The Indian tribe or tribal organization shall maintain records 
on the significant history of all major procurement transactions. These 
records may include, but are not limited to, the rationale for the 
method of procurement, the selection of contract type, the contract 
selection or rejection, and the basis for the contract price.
    (g) The Indian tribe or tribal organization is solely responsible, 
using good administrative practice and sound business judgment, for 
processing and settling all contractual and administrative issues 
arising out of a procurement. These issues include, but are not limited 
to, source evaluation, protests, disputes, and claims.
    (1) The settlement of any protest, dispute, or claim shall not 
relieve the Indian tribe or tribal organization of any obligations under 
a self-determination contract.
    (2) Violations of law shall be referred to the tribal or Federal 
authority having proper jurisdiction.




Sec. 900.49   What procurement standards apply to subcontracts?

    Each subcontract entered into under the Act shall at a minimum:
    (a) Be in writing;
    (b) Identify the interested parties, their authorities, and the 
purposes of the contract;
    (c) State the work to be performed under the contract;
    (d) State the process for making any claim, the payments to be made, 
and the terms of the contract, which shall be fixed; and
    (e) Be subject to sections 7 (b) and (c) of the Act.




Sec. 900.50   What Federal laws, regulations, and Executive Orders apply to subcontractors?

    Certain provisions of the Act as well as other applicable Federal 
laws, regulations, and Executive Orders apply to subcontracts awarded 
under self-determination contracts. As a result, subcontracts should 
contain a provision informing the recipient that their award is funded 
with Indian Self-Determination Act funds and that the recipient is 
responsible for identifying and ensuring compliance with applicable 
Federal laws, regulations, and Executive Orders. The Secretary and the 
Indian tribe or tribal organization may, through negotiation, identify 
all or a portion of such requirements in the self-determination contract 
and, if so identified, these requirements should be identified in 
subcontracts.

                  Property Management System Standards




Sec. 900.51   What is an Indian tribe or tribal organization's property management system expected to do?

    An Indian tribe or tribal organization's property management system 
shall account for all property furnished or transferred by the Secretary 
for use under a self-determination contract or acquired with contract 
funds. The property management system shall contain requirements for the 
use, care, maintenance, and disposition of Federally-owned and other 
property as follows:
    (a) Where title vests in the Indian tribe, in accordance with tribal 
law and procedures; or
    (b) In the case of a tribal organization, according to the internal 
property procedures of the tribal organization.

[[Page 844]]




Sec. 900.52   What type of property is the property management system required to track?

    The property management system of the Indian tribe or tribal 
organization shall track:
    (a) Personal property with an acquisition value in excess of $5,000 
per item;
    (b) Sensitive personal property, which is all personal property that 
is subject to theft and pilferage, as defined by the Indian tribe or 
tribal organization. All firearms shall be considered sensitive personal 
property; and
    (c) Real property provided by the Secretary for use under the 
contract.




Sec. 900.53   What kind of records shall the property management system maintain?

    The property management system shall maintain records that 
accurately describe the property, including any serial number or other 
identification number. These records should contain information such as 
the source, titleholder, acquisition date, cost, share of Federal 
participation in the cost, location, use and condition of the property, 
and the date of disposal and sale price, if any.




Sec. 900.54   Should the property management system prescribe internal controls?

    Yes. Effective internal controls should include procedures:
    (a) For the conduct of periodic inventories;
    (b) To prevent loss or damage to property; and
    (c) To ensure that property is used for an Indian tribe or tribal 
organization's self-determination contract(s) until the property is 
declared excess to the needs of the contract consistent with the Indian 
tribe or tribal organization's property management system.



Sec. 900.55   What are the standards for inventories?

    A physical inventory should be conducted at least once every 2 
years. The results of the inventory shall be reconciled with the Indian 
tribe or tribal organization's internal property and accounting records.



Sec. 900.56   What maintenance is required for property?

    Required maintenance includes the performance of actions necessary 
to keep the property in good working condition, the procedures 
recommended by equipment manufacturers, and steps necessary to protect 
the interests of the contractor and the Secretary in any express 
warranties or guarantees covering the property.



Sec. 900.57   What if the Indian tribe or tribal organization chooses not to take title to property furnished or acquired under the contract?

    If the Indian tribe or tribal organization chooses not to take title 
to property furnished by the government or acquired with contract funds, 
title to the property remains vested in the Secretary. A list of 
Federally-owned property to be used under the contract shall be included 
in the contract.



Sec. 900.58   Do the same accountability and control procedures described above apply to Federal property?

    Yes, except that requirements for the inventory and disposal of 
Federal property are different.



Sec. 900.59   How are the inventory requirements for Federal property different than for tribal property?

    There are three additional requirements:
    (a) The Indian tribe or tribal organization shall conduct a physical 
inventory of the Federally-owned property and reconcile the results with 
the Indian tribe or tribal organization's property records annually, 
rather than every 2 years;
    (b) Within 90 days following the end of an annual funding agreement, 
the Indian tribe or tribal organization shall certify and submit to the 
Secretary an annual inventory of all Federally-owned real and personal 
property used in the contracted program; and
    (c) The inventory shall report any increase or decrease of $5,000 or 
more in the value of any item of real property.

[[Page 845]]



Sec. 900.60   How does an Indian tribe or tribal organization dispose of Federal personal property?

    The Indian tribe or tribal organization shall report to the 
Secretary in writing any Federally-owned personal property that is worn 
out, lost, stolen, damaged beyond repair, or no longer needed for the 
performance of the contract.
    (a) The Indian tribe or tribal organization shall state whether the 
Indian tribe or tribal organization wants to dispose of or return the 
property.
    (b) If the Secretary does not respond within 60 days, the Indian 
tribe or tribal organization may return the property to the Secretary, 
who shall accept transfer, custody, control, and responsibility for the 
property (together with all associated costs).



          Subpart G--Programmatic Reports and Data Requirements



Sec. 900.65   What programmatic reports and data shall the Indian tribe or tribal organization provide?

    Unless required by statute, there are no mandatory reporting 
requirements. Each Indian tribe or tribal organization shall negotiate 
with the Secretary the type and frequency of program narrative and 
program data report(s) which respond to the needs of the contracting 
parties and that are appropriate for the purposes of the contract. The 
extent of available resources will be a consideration in the 
negotiations.



Sec. 900.66   What happens if the Indian tribe or tribal organization and the Secretary cannot come to an agreement concerning the type and/or frequency of 
          program narrative and/or program data report(s)?

    Any disagreements over reporting requirements are subject to the 
declination criteria and procedures in section 102 of the Act and 
subpart E.



Sec. 900.67   Will there be a uniform data set for all IHS programs?

    IHS will work with Indian tribe or tribal organization 
representatives to develop a mutually defined uniform subset of data 
that is consistent with Congressional intent, imposes a minimal 
reporting burden, and which responds to the needs of the contracting 
parties.



Sec. 900.68   Will this uniform data set be required of all Indian tribe or tribal organizations contracting with the IHS under the Act?

    No. The uniform data set, applicable to the services to be 
performed, will serve as the target for the Secretary and the Indian 
tribes or tribal organizations during individual negotiations on program 
data reporting requirements.



      Subpart H--Lease of Tribally-Owned Buildings by the Secretary



Sec. 900.69   What is the purpose of this subpart?

    Section 105(l) of the Act requires the Secretary, at the request of 
an Indian tribe or tribal organization, to enter into a lease with the 
Indian tribe or tribal organization for a building owned or leased by 
the tribe or tribal organization that is used for administration or 
delivery of services under the Act. The lease is to include compensation 
as provided in the statute as well as ``such other reasonable expenses 
that the Secretary determines, by regulation, to be allowable.'' This 
subpart contains requirements for these leases.




Sec. 900.70   What elements are included in the compensation for a lease entered into between the Secretary and an Indian tribe or tribal organization for a 
          building owned or leased by the Indian tribe or tribal 
          organization that is used for administration or delivery of 
          services under the Act?

    To the extent that no element is duplicative, the following elements 
may be included in the lease compensation:
    (a) Rent (sublease);
    (b) Depreciation and use allowance based on the useful life of the 
facility based on acquisition costs not financed with Federal funds;
    (c) Contributions to a reserve for replacement of facilities;
    (d) Principal and interest paid or accrued;

[[Page 846]]

    (e) Operation and maintenance expenses, to the extent not otherwise 
included in rent or use allowances, including, but not limited to, the 
following:
    (1) Water, sewage;
    (2) Utilities;
    (3) Fuel;
    (4) Insurance;
    (5) Building management supervision and custodial services;
    (6) Custodial and maintenance supplies;
    (7) Pest control;
    (8) Site maintenance (including snow and mud removal);
    (9) Trash and waste removal and disposal;
    (10) Fire protection/fire fighting services and equipment;
    (11) Monitoring and preventive maintenance of building structures 
and systems, including but not limited to:
    (i) Heating/ventilation/air conditioning;
    (ii) Plumbing;
    (iii) Electrical;
    (iv) Elevators;
    (v) Boilers;
    (vi) Fire safety system;
    (vii) Security system; and
    (viii) Roof, foundation, walls, floors.
    (12) Unscheduled maintenance;
    (13) Scheduled maintenance (including replacement of floor 
coverings, lighting fixtures, repainting);
    (14) Security services;
    (15) Management fees; and
    (16) Other reasonable and necessary operation or maintenance costs 
justified by the contractor;
    (f) Repairs to buildings and equipment;
    (g) Alterations needed to meet contract requirements;
    (h) Other reasonable expenses; and
    (i) The fair market rental for buildings or portions of buildings 
and land, exclusive of the Federal share of building construction or 
acquisition costs, or the fair market rental for buildings constructed 
with Federal funds exclusive of fee or profit, and for land.




Sec. 900.71   What type of reserve fund is anticipated for funds deposited into a reserve for replacement of facilities as specified in Sec. 900.70(c)?

    Reserve funds must be accounted for as a capital project fund or a 
special revenue fund.




Sec. 900.72   Who is the guardian of the fund and may the funds be invested?

    (a) The Indian tribe or tribal organization is the guardian of the 
fund.
    (b) Funds may be invested in accordance with the laws, regulations 
and policies of the Indian tribe or tribal organization subject to the 
terms of the lease or the self-determination contract.




Sec. 900.73   Is a lease with the Secretary the only method available to recover the types of cost described in Sec. 900.70?

    No. With the exception of paragraph (i) in Sec. 900.70, the same 
types of costs may be recovered in whole or in part under section 106(a) 
of the Act as direct or indirect charges to a self-determination 
contract.




Sec. 900.74   How may an Indian tribe or tribal organization propose a lease to be compensated for the use of facilities?

    There are three options available:
    (a) The lease may be based on fair market rental.
    (b) The lease may be based on a combination of fair market rental 
and paragraphs (a) through (h) of Sec. 900.70, provided that no element 
of expense is duplicated in fair market rental.
    (c) The lease may be based on paragraphs (a) through (h) of 
Sec. 900.70 only.



                 Subpart I--Property Donation Procedures

                                 General




Sec. 900.85   What is the purpose of this subpart?

    This subpart implements section 105(f) of the Act regarding donation 
of Federal excess and surplus property to Indian tribes or tribal 
organizations

[[Page 847]]

and acquisition of property with funds provided under a self-
determination contract or grant.




Sec. 900.86   How will the Secretary exercise discretion to acquire and donate BIA or IHS excess property and excess and surplus Federal property to an Indian 
          tribe or tribal organization?

    The Secretary will exercise discretion in a way that gives maximum 
effect to the requests of Indian tribes or tribal organizations for 
donation of BIA or IHS excess property and excess or surplus Federal 
property, provided that the requesting Indian tribe or tribal 
organization shall state how the requested property is appropriate for 
use for any purpose for which a self-determination contract or grant is 
authorized.

                      Government-Furnished Property




Sec. 900.87   How does an Indian tribe or tribal organization obtain title to property furnished by the Federal government for use in the performance of a 
          contract or grant agreement pursuant to section 105(f)(2)(A) 
          of the Act?

    (a) For government-furnished personal property made available to an 
Indian tribe or tribal organization before October 25, 1994:
    (1) The Secretary, in consultation with each Indian tribe or tribal 
organization, shall develop a list of the property used in a self-
determination contract.
    (2) The Indian tribe or tribal organization shall indicate any items 
on the list to which the Indian tribe or tribal organization wants the 
Secretary to retain title.
    (3) The Secretary shall provide the Indian tribe or tribal 
organization with any documentation needed to transfer title to the 
remaining listed property to the Indian tribe or tribal organization.
    (b) For government-furnished real property made available to an 
Indian tribe or tribal organization before October 25, 1994:
    (1) The Secretary, in consultation with the Indian tribe or tribal 
organization, shall develop a list of the property furnished for use in 
a self-determination contract.
    (2) The Secretary shall inspect any real property on the list to 
determine the presence of any hazardous substance activity, as defined 
in 41 CFR 101-47.202.2(b)(10). If the Indian tribe or tribal 
organization desires to take title to any real property on the list, the 
Indian tribe or tribal organization shall inform the Secretary, who 
shall take such steps as necessary to transfer title to the Indian tribe 
or tribal organization.
    (c) For government-furnished real and personal property made 
available to an Indian tribe or tribal organization on or after October 
25, 1994:
    (1) The Indian tribe or tribal organization shall take title to all 
property unless the Indian tribe or tribal organization requests that 
the United States retain the title.
    (2) The Secretary shall determine the presence of any hazardous 
substance activity, as defined in 41 CFR 101-47.202.2(b)(10).




Sec. 900.88   What should the Indian tribe or tribal organization do if it wants to obtain title to government-furnished real property that includes land not 
          already held in trust?

    If the land is owned by the United States but not held in trust for 
an Indian tribe or individual Indian, the Indian tribe or tribal 
organization shall specify whether it wants to acquire fee title to the 
land or whether it wants the land to be held in trust for the benefit of 
a tribe.
    (a) If the Indian tribe or tribal organization requests fee title, 
the Secretary shall take the necessary action under Federal law and 
regulations to transfer fee title.
    (b) If the Indian tribe or tribal organization requests beneficial 
ownership with fee title to be held by the United States in trust for an 
Indian tribe:
    (1) The Indian tribe or tribal organization shall submit with its 
request a resolution of support from the governing body of the Indian 
tribe in which the beneficial ownership is to be registered.
    (2) If the request is submitted to the Secretary of Health and Human 
Services for land under the jurisdiction of that Secretary, the 
Secretary shall

[[Page 848]]

take all necessary steps to effect a transfer of the land to the 
Secretary of the Interior and shall also forward the Indian tribe or 
tribal organization's request and the tribe's resolution.
    (3) The Secretary of the Interior shall expeditiously process all 
requests in accordance with applicable Federal law and regulations.
    (4) The Secretary shall not require the Indian tribe or tribal 
organization to furnish any information in support of a request other 
than that required by law or regulation.




Sec. 900.89   When may the Secretary elect to reacquire government-furnished property whose title has been transferred to an Indian tribe or tribal 
          organization?

    (a) Except as provided in paragraph (b) of this section, when a 
self-determination contract or grant agreement, or portion thereof, is 
retroceded, reassumed, terminated, or expires, the Secretary shall have 
the option to take title to any item of government-furnished property:
    (1) That title has been transferred to an Indian tribe or tribal 
organization;
    (2) That is still in use in the program; and
    (3) That has a current fair market value, less the cost of 
improvements borne by the Indian tribe or tribal organization in excess 
of $5,000.
    (b) If property referred to in paragraph (a) of this section is 
shared between one or more ongoing contracts or grant agreements and a 
contract or grant agreement that is retroceded, reassumed, terminated or 
expires and the Secretary wishes to use such property in the retroceded 
or reassumed program, the Secretary and the contractor or grantee using 
such property shall negotiate an acceptable arrangement for continued 
sharing of such property and for the retention or transfer of title.




Sec. 900.90   Does government-furnished real property to which an Indian tribe or tribal organization has taken title continue to be eligible for facilities 
          operation and maintenance funding from the Secretary?

    Yes.

                      Contractor-Purchased Property




Sec. 900.91   Who takes title to property purchased with funds under a self-determination contract or grant agreement pursuant to section 105(f)(2)(A) of the 
          Act?

    The contractor takes title to such property, unless the contractor 
chooses to have the United States take title. In that event, the 
contractor must inform the Secretary of the purchase and identify the 
property and its location in such manner as the contractor and the 
Secretary deem necessary. A request for the United States to take title 
to any item of contractor-purchased property may be made at any time. A 
request for the Secretary to take fee title to real property shall be 
expeditiously processed in accordance with applicable Federal law and 
regulation.




Sec. 900.92   What should the Indian tribe or tribal organization do if it wants contractor-purchased real property to be taken into trust?

    The contractor shall submit a resolution of support from the 
governing body of the Indian tribe in which the beneficial ownership is 
to be registered. If the request to take contractor-purchased real 
property into trust is submitted to the Secretary of Health and Human 
Services, that Secretary shall transfer the request to the Secretary of 
the Interior. The Secretary of the Interior shall expeditiously process 
all requests in accord with applicable Federal law and regulation.




Sec. 900.93   When may the Secretary elect to acquire title to contractor-purchased property?

    (a) Except as provided in paragraph (b) of this section when a self-
determination contract or grant agreement, or portion thereof, is 
retroceded, reassumed, terminated, or expires, the Secretary shall have 
the option to take title to any item of government-furnished property:
    (1) Whose title has been transferred to an Indian tribe or tribal 
organization;
    (2) That is still in use in the program; and
    (3) That has a current fair market value, less the cost of 
improvements

[[Page 849]]

borne by the Indian tribe or tribal organization, in excess of $5,000.
    (b) If property referred to in paragraph (a) of this section is 
shared between one or more ongoing contracts or grant agreements and a 
contract or grant agreement that is retroceded, reassumed, terminated or 
expires and the Secretary wishes to use such property in the retroceded 
or reassumed program, the Secretary and the contractor or grantee using 
such property shall negotiate an acceptable arrangement for continued 
sharing of such property and for the retention or transfer of title.




Sec. 900.94   Is contractor-purchased real property to which an Indian tribe or tribal organization holds title eligible for facilities operation and 
          maintenance funding from the Secretary?

    Yes.

                       BIA and IHS Excess Property




Sec. 900.95  What is BIA or IHS excess property?

    BIA or IHS excess property means property under the jurisdiction of 
the BIA or IHS that is excess to the agency's needs and the discharge of 
its responsibilities.




Sec. 900.96  How can Indian tribes or tribal organizations learn about BIA and IHS excess property?

    The Secretary shall not less than annually send to Indian tribes and 
tribal organizations a listing of all excess BIA or IHS personal 
property before reporting the property to GSA or to any other Federal 
agency as excess. The listing shall identify the agency official to whom 
a request for donation shall be submitted.




Sec. 900.97  How can an Indian tribe or tribal organization acquire excess BIA or IHS property?

    (a) The Indian tribe or tribal organization shall submit to the 
appropriate Secretary a request for specific property that includes a 
statement of how the property is intended for use in connection with a 
self-determination contract or grant. The Secretary shall expeditiously 
process the request and shall exercise discretion in a way that gives 
maximum effect to the request of Indian tribes or tribal organizations 
for the donation of excess BIA or IHS property.
    (b) If more than one request for the same item of personal property 
is submitted, the Secretary shall award the item to the requestor whose 
request is received on the earliest date. If two or more requests are 
received on the same date, the Secretary shall award the item to the 
requestor with the lowest transportation costs. The Secretary shall make 
the donation as expeditiously as possible.
    (c) If more than one request for the same parcel of real property is 
submitted, the Secretary shall award the property to the Indian tribe or 
tribal organization whose reservation or trust land is closest to the 
real property requested.




Sec. 900.98  Who takes title to excess BIA or IHS property donated to an Indian tribe or tribal organization?

    The Indian tribe or tribal organization takes title to donated 
excess BIA or IHS property. The Secretary shall provide the Indian tribe 
or tribal organization with all documentation needed to vest title in 
the Indian tribe or tribal organization.




Sec. 900.99  Who takes title to any land that is part of excess BIA or IHS real property donated to an Indian tribe or tribal organization?

    (a) If an Indian tribe or tribal organization requests donation of 
fee title to excess real property that includes land not held in trust 
for an Indian tribe, the Indian tribe or tribal organization shall so 
specify in its request for donation. The Secretary shall take the 
necessary action under Federal law and regulations to transfer the title 
to the Indian tribe or tribal organization.
    (b) If an Indian tribe or tribal organization asks the Secretary to 
donate excess real property that includes land and requests that fee 
title to the land be held by the United States in trust for an Indian 
tribe, the requestor shall submit a resolution of support from the 
governing body of the Indian tribe in which the beneficial ownership is 
to be registered.
    (1) If the donation request is submitted to the Secretary of Health 
and

[[Page 850]]

Human Services, that Secretary shall take all steps necessary to 
transfer the land to the Secretary of the Interior with the Indian tribe 
or tribal organization's request and the Indian tribe's resolution. The 
Secretary of the Interior shall expeditiously process all requests in 
accordance with applicable Federal law and regulations.
    (2) The Secretary shall not require the Indian tribe or tribal 
organization to furnish any information in support of a request other 
than that required by law or regulation.




Sec. 900.100  May the Secretary elect to reacquire excess BIA or IHS property whose title has been transferred to an Indian tribe or tribal organization?

    Yes. When a self-determination contract or grant agreement, or 
portion-- thereof, is retroceded, reassumed, terminated, or expires, the 
Secretary shall have the option to take title to any item of the 
property;
    (a) Except as provided in paragraph (b) of this section when a self-
determination contract or grant agreement, or portion thereof, is 
retroceded, reassumed, terminated, or expires, the Secretary shall have 
the option to take title to any item of government-furnished property:
    (1) Whose title has been transferred to an Indian tribe or tribal 
organization;
    (2) That is still in use in the program; and
    (3) That has a current fair market value, less the cost of 
improvements borne by the Indian tribe or tribal organization, in excess 
of $5,000.
    (b) To the extent that any property referred to in paragraph (a) of 
this section is shared between one or more ongoing contracts or grant 
agreements and a contract or grant agreement that is retroceded, 
reassumed, terminated or expires and the Secretary wishes to use such 
property in the retroceded or reassumed program, the Secretary and the 
contractor or grantee using such property shall negotiate an acceptable 
arrangement for continued sharing of such property and for the retention 
or transfer of title.




Sec. 900.101  Is excess BIA or IHS real property to which an Indian tribe or tribal organization has taken title eligible for facilities operation and 
          maintenance funding from the Secretary?

    Yes.

         Excess or Surplus Government Property of Other Agencies




Sec. 900.102  What is excess or surplus government property of other agencies?

    (a) ``Excess government property'' is real or personal property 
under the control of a Federal agency, other than BIA and IHS, which is 
not required for the agency's needs and the discharge of its 
responsibilities.
    (b) ``Surplus government property'' means excess real or personal 
property that is not required for the needs of and the discharge of the 
responsibilities of all Federal agencies that has been declared surplus 
by the General Services Administration (GSA).




Sec. 900.103  How can Indian tribes or tribal organizations learn about property that has been designated as excess or surplus government property?

    The Secretary shall furnish, not less than annually, to Indian 
tribes or tribal organizations listings of such property as may be made 
available from time to time by GSA or other Federal agencies, and shall 
obtain listings upon the request of an Indian tribe or tribal 
organization.




Sec. 900.104  How may an Indian tribe or tribal organization receive excess or surplus government property of other agencies?

    (a) The Indian tribe or tribal organization shall file a request for 
specific property with the Secretary, and shall state how the property 
is appropriate for use for a purpose for which a self-determination 
contract or grant is authorized under the Act.
    (b) The Secretary shall expeditiously process such request and shall 
exercise discretion to acquire the property in the manner described in 
Sec. 900.86 of this subpart.
    (c) Upon approval of the Indian tribe or tribal organization's 
request, the

[[Page 851]]

Secretary shall immediately request acquisition of the property from the 
GSA or the holding agency, as appropriate, by submitting the necessary 
documentation in order to acquire the requested property prior to the 
expiration of any ``freeze'' placed on the property by the Indian tribe 
or tribal organization.
    (d) The Secretary shall specify that the property is requested for 
donation to an Indian tribe or tribal organization pursuant to authority 
provided in section 105(f)(3) of the Act.
    (e) The Secretary shall request a waiver of any fees for transfer of 
the property in accordance with applicable Federal regulations.




Sec. 900.105  Who takes title to excess or surplus Federal property donated to an Indian tribe or tribal organization?

    (a) Title to any donated excess or surplus Federal personal property 
shall vest in the Indian tribe or tribal organization upon taking 
possession.
    (b) Legal title to donated excess or surplus Federal real property 
shall vest in the Indian tribe or tribal organization upon acceptance by 
the Indian tribe or tribal organization of a proper deed of conveyance.
    (c) If the donation of excess or surplus Federal real property 
includes land owned by the United States but not held in trust for an 
Indian tribe, the Indian tribe or tribal organization shall specify 
whether it wants to acquire fee title to the land or whether it wants 
the land to be held in trust for the benefit of an Indian tribe.
    (1) If the Indian tribe or tribal organization requests fee title, 
the Secretary shall take the necessary action under Federal law and 
regulations to transfer fee title to the Indian tribe or tribal 
organization.
    (2) If the Indian tribe or tribal organization requests beneficial 
ownership with fee title to be held by the United States in trust for an 
Indian tribe:
    (i) The Indian tribe or tribal organization shall submit with its 
request a resolution of support from the governing body of the Indian 
tribe in which the beneficial ownership is to be registered.
    (ii) If the donation request of the Indian tribe or tribal 
organization is submitted to the Secretary of Health and Human Services, 
that Secretary shall take all necessary steps to acquire the land and 
transfer it to the Secretary of the Interior and shall also forward the 
Indian tribe or tribal organization's request and the Indian tribe's 
resolution.
    (iii) The Secretary of the Interior shall expeditiously process all 
requests in accord with applicable Federal law and regulations.
    (iv) The Secretary shall not require submission of any information 
other than that required by Federal law and regulation.




Sec. 900.106  If a contract or grant agreement or portion thereof is retroceded, reassumed, terminated, or expires, may the Secretary reacquire title to excess 
          or surplus Federal property of other agencies that was donated 
          to an Indian tribe or tribal organization?

    No. Section 105(f)(3) of the Act does not give the Secretary the 
authority to reacquire title to excess or surplus government property 
acquired from other agencies for donation to an Indian tribe or tribal 
organization.

                Property Eligible for Replacement Funding




Sec. 900.107  What property to which an Indian tribe or tribal organization obtains title under this subpart is eligible for replacement funding?

    Government-furnished property, contractor-purchased property and 
excess BIA and IHS property donated to an Indian tribe or tribal 
organization to which an Indian tribe or tribal organization holds title 
shall remain eligible for replacement funding to the same extent as if 
title to that property were held by the United States.



                         Subpart J--Construction




Sec. 900.110  What does this subpart cover?

    (a) This subpart establishes requirements for issuing fixed-price or 
cost-reimbursable contracts to provide: design, construction, repair, 
improvement, expansion, replacement, erection of new space, or 
demolition and other

[[Page 852]]

related work for one or more Federal facilities. It applies to tribal 
facilities where the Secretary is authorized by law to design, construct 
and/or renovate, or make improvements to such tribal facilities.
    (b) Activities covered by construction contracts under this subpart 
are: design and architectural/engineering services, construction project 
management, and the actual construction of the building or facility in 
accordance with the construction documents, including all labor, 
materials, equipment, and services necessary to complete the work 
defined in the construction documents.
    (1) Such contracts may include the provision of movable equipment, 
telecommunications and data processing equipment, furnishings (including 
works of art), and special purpose equipment, when part of a 
construction contract let under this subpart.
    (2) While planning services and construction management services as 
defined in Sec. 900.113 may be included in a construction contract under 
this subpart, they may also be contracted separately using the model 
agreement in section 108 of the Act.




Sec. 900.111  What activities of construction programs are contractible?

    The Secretary shall, upon the request of any Indian tribe or tribal 
organization authorized by tribal resolution, enter into a self-
determination contract to plan, conduct, and administer construction 
programs or portions thereof.




Sec. 900.112  What are construction phases?

    (a) Construction programs generally include the following activities 
in phases which can vary by funding source (an Indian tribe or tribal 
organization should contact its funding source for more information 
regarding the conduct of its program):
    (1) The preplanning phase. The phase during which an initial 
assessment and determination of project need is made and supporting 
information collected for presentation in a project application. This 
project application process is explained in more detail in Sec. 900.122;
    (2) The planning phase. The phase during which planning services are 
provided. This phase can include conducting and preparing a detailed 
needs assessment, developing justification documents, completing and/or 
verifying master plans, conducting predesign site investigations and 
selection, developing budget cost estimates, conducting feasibility 
studies, and developing a project Program of Requirements (POR);
    (3) The design phase. The phase during which licensed design 
professional(s) using the POR as the basis for design of the project, 
prepare project plans, specifications, and other documents that are a 
part of the construction documents used to build the project. Site 
investigation and selection activities are completed in this phase if 
not conducted as part of the planning phase.
    (4) The construction phase. The phase during which the project is 
constructed. The construction phase includes providing the labor, 
materials, equipment, and services necessary to complete the work in 
accordance with the construction documents prepared as part of the 
design phase.
    (b) The following activities may be part of phases described in 
paragraphs (a)(2), (a)(3), and (a)(4) of this section:
    (1) Management; and
    (2) Environmental, archeological, cultural resource, historic 
preservation, and similar assessments and associated activities.




Sec. 900.113  Definitions.

    (a) Construction contract means a fixed-price or cost-reimbursement 
self-determination contract for a construction project, except that such 
term does not include any contract:
    (1) That is limited to providing planning services and construction 
management services (or a combination of such services);
    (2) For the Housing Improvement Program or roads maintenance program 
of the Bureau of Indian Affairs administered by the Secretary of the 
Interior; or
    (3) For the health facility maintenance and improvement program 
administered by the Secretary of Health and Human Services.

[[Page 853]]

    (b) Construction management services (CMS) means activities limited 
to administrative support services; coordination; and monitoring 
oversight of the planning, design, and construction process. An Indian 
tribe or tribal organization's employee or construction management 
services consultant (typically an engineer or architect) performs such 
activities as:
    (1) Coordination and information exchange between the Indian tribe 
or tribal organization and the Federal government;
    (2) Preparation of Indian tribe or tribal organization's 
construction contract proposals;
    (3) Indian tribe or tribal organization subcontract scope of work 
identification and subcontract preparation, and competitive selection of 
Indian tribe or tribal organization construction contract subcontractors 
(see Sec. 900.110);
    (4) Review of work to ensure compliance with the POR and/or the 
construction contract. This does not involve construction project 
management as defined in paragraph (d) of this section.
    (c) Construction programs include programs for the planning, design, 
construction, repair, improvement, and expansion of buildings or 
facilities, including but not limited to, housing, law enforcement and 
detention facilities, sanitation and water systems, roads, schools, 
administration and health facilities, irrigation and agricultural work, 
water conservation, flood control, and port facilities, and 
environmental, archeological, cultural resource, historic preservation, 
and conduct of similar assessments.
    (d) Construction project management means direct responsibility for 
the construction project through day-to-day on-site management and 
administration of the project. Activities may include cost management, 
project budgeting, project scheduling, procurement services.
    (e) Design means services performed by licensed design professionals 
related to preparing drawings, specifications, and other design 
submissions specified in the contract, as well as services provided by 
or for licensed design professionals during the bidding/negotiating, 
construction, and operational phases of the project.
    (f) Planning services means activities undertaken to support agency 
and/or Congressional funding of a construction project. Planning 
services may include performing a needs assessment, completing and/or 
verifying master plans, developing justification documents, conducting 
pre-design site investigations, developing budget cost estimates, 
conducting feasibility studies as needed and completion of approved 
justification documents and a program of requirements (POR) for the 
project.
    (g) Program of Requirements (POR) is a planning document developed 
during the planning phase for an individual project. It provides 
background about the project; site information; programmatic needs; and, 
for facilities projects, a detailed room-by-room listing of spaces, 
including net and gross sizes, finish materials to be used, furnishings 
and equipment, and other information and design criteria on which to 
base the construction project documents.
    (h) Scope of work means the description of the work to be provided 
through a contract issued under this subpart and the methods and 
processes to be used to accomplish that work. A scope of work is 
typically developed based on criteria provided in a POR during the 
design phase, and project construction documents (plans and 
specifications) during the construction phase.




Sec. 900.114  Why is there a separate subpart in these regulations for construction contracts and grants?

    There is a separate subpart because the Act differentiates between 
construction contracts and the model agreement in section 108 of the Act 
which is required for contracting other activities. Construction 
contracts are separately defined in the Act and are subject to a 
separate proposal and review process.




Sec. 900.115  How do self-determination construction contracts relate to ordinary Federal procurement contracts?

    (a) A self-determination construction contract is a government-to-
government agreement that transfers control of the construction project, 
including

[[Page 854]]

administrative functions, to the contracting Indian tribe or tribal 
organization to facilitate effective and meaningful participation by the 
Indian tribe or tribal organization in planning, conducting, and 
administering the construction project, and so that the construction 
project is responsive to the true needs of the Indian community. The 
Secretary's role in the conduct of a contracted construction project is 
limited to the Secretary's responsibilities set out in Sec. 900.131.
    (b) Self-determination construction contracts are not traditional 
``procurement'' contracts.
    (1) With respect to a construction contract (or a subcontract of 
such a construction contract), the provisions of the Office of Federal 
Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations 
promulgated under that Act, shall apply to a construction contract or 
subcontract only to the extent that application of the provision is:
    (i) Necessary to ensure that the contract may be carried out in a 
satisfactory manner;
    (ii) Directly related to the construction activity; and
    (iii) Not inconsistent with the Act.
    (2) A list of the Federal requirements that meet the requirements of 
this paragraph shall be included in an attachment to the contract under 
negotiations between the Secretary and the Indian tribe or tribal 
organization.
    (3) Except as provided in paragraph (b)(2) of this section, no 
Federal law listed in section 105(3)(C)(ii) of the Act or any other 
provision of Federal law (including an Executive order) relating to 
acquisition by the Federal government shall apply to a construction 
contract that an Indian tribe or tribal organization enters into under 
this Act, unless expressly provided in the law.
    (c) Provisions of a construction contract under this subpart shall 
be liberally construed in favor of the contracting Indian tribe or 
tribal organization.




Sec. 900.116  Are negotiated fixed-price contracts treated the same as cost-reimbursable contracts?

    Yes, except that in negotiated fixed-price construction contracts, 
appropriate clauses shall be negotiated to allocate properly the 
contract risks between the government and the contractor.




Sec. 900.117  Do these ``construction contract'' regulations apply to planning services?

    (a) These regulations apply to planning services contracts only as 
provided in this section.
    (1) The Indian tribe or tribal organization shall submit to the 
Secretary for review and approval the POR documents produced as a part 
of a model contract under section 108 of the Act or under a construction 
contract under this subpart.
    (i) Within 60 days after receipt of the POR from the Indian tribe or 
tribal organization for a project that has achieved priority ranking or 
that is funded, the Secretary shall:
    (A) Approve the POR;
    (B) Notify the Indian tribe or tribal organization of and make 
available any objections to the POR that the Secretary may have; or
    (C) Notify the Indian tribe or tribal organization of the reasons 
why the Secretary will be unable either to approve the POR or to notify 
the Indian tribe or tribal organization of any objections within 60 
days, and state the time within which the notification will be made, 
provided that the extended time shall not exceed 60 additional days.
    (ii) Within a maximum of 180 days after receipt of a POR from an 
Indian tribe or tribal organization for a project that is not funded and 
is not described in paragraph (a)(1)(i) of this section, the Secretary 
shall:
    (A) Approve the POR; or
    (B) Notify the Indian tribe or tribal organization of and make 
available any objections to the POR; or
    (C) Notify the Indian tribe or tribal organization of the reasons 
why the Secretary will be unable either to approve the POR or to notify 
the Indian tribe or tribal organization of any objections within 180 
days, and state the time within which the notification will be made, 
provided that the extended time shall not exceed 60 additional days.

[[Page 855]]

    (2) Any failure of the Secretary to act on a POR within the 
applicable period required in paragraph (a)(1) of this section will be 
deemed a rejection of the POR and will authorize the commencement of any 
appeal as provided in section 110 of the Act, or, if a model agreement 
under section 108 of the Act is used, the disputes provision of that 
agreement.
    (3) If an Indian tribe or tribal organization elects to provide 
planning services as part of a construction contract rather than under a 
model agreement as set out in section 108 of the Act, the regulations in 
this subpart shall apply.
    (b) The parties to the contract are encouraged to consult during the 
development of the POR and following submission of the POR to the 
Secretary.




Sec. 900.118  Do these ``construction contract'' regulations apply to construction management services?

     No. Construction management services may be contracted separately 
under section 108 of the Act. Construction management services 
consultants and/or Indian tribe or tribal organization employees assist 
and advise the Indian tribe or tribal organization to implement 
construction contracts, but have no contractual relationship with or 
authority to direct construction contract subcontractors.
    (a) If the Indian tribe or tribal organization chooses to contract 
solely for construction management services, these services shall be 
limited to:
    (1) Coordination and exchange of information between the Indian 
tribe or tribal organization and the Secretary;
    (2) Review of work produced by the Secretary to determine compliance 
with:
    (i) The POR and design contract during the design stage; or
    (ii) The project construction documents during the construction 
stage;
    (3) Disputes shall be resolved in accordance with the disputes 
clause of the CMS contract.
    (b) If the Indian tribe or tribal organization conducts CMS under 
section 108 of the Act and the Indian tribe or tribal organization 
contracts separately under this subpart for all or some of the 
activities in Sec. 900.110, the contracted activities shall be limited 
to:
    (1) Coordination and exchange of information between the Indian 
tribe or tribal organization and Secretary;
    (2) Preparation of tribal or tribal organization construction 
subcontract scope of work identification and subcontract preparation, 
and competitive selection of tribal or tribal organization construction 
contract subcontractors;
    (3) Review of work produced by tribal or tribal organization 
construction subcontractors to determine compliance with:
    (i) The POR and the design contract during the design stage; or
    (ii) The project construction documents during the construction 
stage.




Sec. 900.119  To what extent shall the Secretary consult with affected Indian tribes before spending funds for any construction project?

    Before spending any funds for a planning, design, construction, or 
renovation project, whether subject to a competitive application and 
ranking process or not, the Secretary shall consult with any Indian 
tribe or tribal organization(s) that would be significantly affected by 
the expenditure to determine and to follow tribal preferences to the 
greatest extent feasible concerning: size, location, type, and other 
characteristics of the project.




Sec. 900.120  How does an Indian tribe or tribal organization find out about a construction project?

    Within 30 days after the Secretary's allocation of funds for 
planning phase, design phase, or construction phase activities for a 
specific project, the Secretary shall notify, by registered mail with 
return receipt in order to document mailing, the Indian tribe or tribal 
organization(s) to be benefitted by the availability of the funds for 
each phase of a project. The Secretarial notice of fund allocation shall 
offer technical assistance in the preparation of a contract proposal.
    (a) The Secretary shall, within 30 days after receiving a request 
from an Indian tribe or tribal organization, furnish the Indian tribe or 
tribal organization with all information available to

[[Page 856]]

the Secretary about the project including, but not limited to: 
construction drawings, maps, engineering reports, design reports, plans 
of requirements, cost estimates, environmental assessments, or 
environmental impact reports and archeological reports.
    (b) An Indian tribe or tribal organization is not required to 
request this information prior to submitting a notification of intent to 
contract or a contract proposal.
    (c) The Secretary shall have a continuing responsibility to furnish 
information.




Sec. 900.121  What happens during the preplanning phase and can an Indian tribe or tribal organization perform any of the activities involved in this process?

    (a) The application and ranking process for developing a priority 
listing of projects varies between agencies. There are, however, steps 
in the selection process that are common to most selection processes. An 
Indian tribe or tribal organization that wishes to secure a construction 
project should contact the appropriate agency to determine the specific 
steps involved in the application and selection process used to fund 
specific types of projects. When a priority process is used in the 
selection of construction projects, the steps involved in the 
application and ranking process are as follows:
    (1) Application. The agency solicits applications from Indian tribes 
or tribal organizations. In the request for applications, the Secretary 
provides specific information regarding the type of project to be 
funded, the objective criteria that will be used to evaluate 
applications, the points or weight that each criterion will be assigned, 
and the time when applications are due. An Indian tribe or tribal 
organization may prepare the application (technical assistance from the 
agency, within resources available, shall be provided upon request from 
an Indian tribe or tribal organization) or may rely upon the agency to 
prepare the application.
    (2) Ranking/Prioritization. The Secretary evaluates the applications 
based on the criteria provided as part of the application preparation 
process. The Secretary applies only criteria and weights assigned to 
each criteria that were disclosed to the Indian tribe or tribal 
organization during the application stage. The applications are then 
ranked in order from the application that best meets application 
criteria to the application that least meet the application criteria.
    (3) Validation. Before final acceptance of a ranked application, the 
information, such as demographic information, deficiency levels reported 
in application, the condition of existing facilities, and program 
housing needs, is validated. During this process, additional information 
may be developed by the Indian tribe or tribal organization in support 
of the original information or the Secretary may designate a 
representative of the Department to conduct an on-site review of the 
information contained in the application.
    (b) [Reserved]




Sec. 900.122  What does an Indian tribe or tribal organization do if it wants to secure a construction contract?

    (a) The Act establishes a special process for review and negotiation 
of proposals for construction contracts which is different than that for 
other self-determination contract proposals. The Indian tribe or tribal 
organization should notify the Secretary of its intent to contract. 
After notification, the Indian tribe or tribal organization should 
prepare its contract proposal in accordance with the sections of this 
subpart. While developing its construction contract proposal, the Indian 
tribe or tribal organization can request technical assistance from the 
Secretary. Not later than 30 days after receiving a request from an 
Indian tribe or tribal organization, the Secretary shall provide to the 
Indian tribe or tribal organization all information available about the 
construction project, including construction drawings, maps, engineering 
reports, design reports, plans of requirements, cost estimates, 
environmental assessments, or environmental impact reports, and 
archaeological reports. The responsibility of the Secretary to furnish 
this information shall be a continuing one.
    (b) At the request of the Indian tribe or tribal organization and 
before finalizing its construction contract proposal, the Secretary 
shall provide for a

[[Page 857]]

precontract negotiation phase during the development of a contract 
proposal. Within 30 days the Secretary shall acknowledge receipt of the 
proposal and, if requested by the Indian tribe or tribal organization, 
shall confer with the Indian tribe or tribal organization to develop a 
negotiation schedule. The negotiation phase shall include, at a minimum:
    (1) The provision of technical assistance under section 103 of the 
Act and paragraph (a) of this section;
    (2) A joint scoping session between the Secretary and the Indian 
tribe or tribal organization to review all plans, specifications, 
engineering reports, cost estimates, and other information available to 
the parties, for the purpose of identifying all areas of agreement and 
disagreement;
    (3) An opportunity for the Secretary to revise plans, designs, or 
cost estimates of the Secretary in response to concerns raised, or 
information provided by, the Indian tribe or tribal organization;
    (4) A negotiation session during which the Secretary and the Indian 
tribe or tribal organization shall seek to develop a mutually agreeable 
contract proposal; and
    (5) Upon the request of the Indian tribe or tribal organization, the 
use of alternative dispute resolution to resolve remaining areas of 
disagreement under the dispute resolution provisions under subchapter IV 
of chapter 5 of the United States Code.




Sec. 900.123  What happens if the Indian tribe or tribal organization and the Secretary cannot develop a mutually agreeable contract proposal?

    (a) If the Secretary and the Indian tribe or tribal organization are 
unable to develop a mutually agreeable construction contract proposal 
under the procedures in Sec. 900.122, the Indian tribe or tribal 
organization may submit a final contract proposal to the Secretary. Not 
later than 30 days after receiving the final contract proposal, the 
Secretary shall approve the contract proposal and award the contract, 
unless, during the period the Secretary declines the proposal under 
sections 102(a)(2) and 102(b) of the Act (including providing 
opportunity for an appeal under section 102(b)).
    (b) Whenever the Secretary declines to enter into a self-
determination contract or contracts under section 102(a)(2) of the Act, 
the Secretary shall:
    (1) State any objections to the contract proposal (as submitted by 
the Indian tribe or tribal organization) in writing and provide all 
documents relied on in making the declination decision within 20 days of 
such decision to the Indian tribe or tribal organization;
    (2) Provide assistance to the Indian tribe or tribal organization to 
overcome the stated objections;
    (3) Provide the Indian tribe or tribal organization with a hearing 
on the record with the right to engage in full discovery relevant to any 
issue raised in the matter and the opportunity for appeal on the 
objections raised, under the regulations set forth in subpart L, except 
that the Indian tribe or tribal organization may, in lieu of filing the 
appeal, initiate an action in a Federal district court and proceed 
directly under section 110(a) of the Act.




Sec. 900.124  May the Indian tribe or tribal organization to use a grant in lieu of a contract?

    Yes. A grant agreement or a cooperative agreement may be used in 
lieu of a contract under sections 102 and 103 of the Act when agreed to 
by the Secretary and the Indian tribe or tribal organization. Under the 
grant concept, the grantee will assume full responsibility and 
accountability for design and construction performance within the 
funding limitations. The grantee will manage and administer the work 
with minimal involvement by the government. The grantee will be expected 
to have acceptable management systems for finance, procurement, and 
property. The Secretary may issue Federal construction guidelines and 
manuals applicable to its construction programs, and the government 
shall accept tribal proposals for alternatives which are consistent with 
or exceed Federal guidelines or manuals applicable to construction 
programs.

[[Page 858]]




Sec. 900.125  What shall a construction contract proposal contain?

    (a) In addition to the full name, address, and telephone number of 
the Indian tribe or tribal organization submitting the construction 
proposal, a construction contract proposal shall contain descriptions of 
the following standards under which they propose to operate the 
contract:
    (1) The use of licensed and qualified architects;
    (2) Applicable health and safety standards;
    (3) Adherence to applicable Federal, State, local, or tribal 
building codes and engineering standards;
    (4) Structural integrity;
    (5) Accountability of funds;
    (6) Adequate competition for subcontracting under tribal or other 
applicable law;
    (7) The commencement, performance, and completion of the contract;
    (8) Adherence to project plans and specifications (including any 
applicable Federal construction guidelines and manuals and the Secretary 
shall accept tribal proposals for alternatives which are consistent with 
or exceed Federal guidelines or manuals applicable to construction 
programs);
    (9) The use of proper materials and workmanship;
    (10) Necessary inspection and testing;
    (11) With respect to the self-determination contract between the 
Indian tribe or tribal organization and Federal government, a process 
for changes, modifications, stop work, and termination of the work when 
warranted;
    (b) In addition to provisions regarding the program standards listed 
in paragraph (a) of this section or the assurances listed in paragraph 
(c) of this section, the Indian tribe or tribal organization shall also 
include in its construction contract proposal the following:
    (1) In the case of a contract for design activities, this statement, 
``Construction documents produced as part of this contract will be 
produced in accordance with the Program of Requirements and/or Scope of 
Work,'' and the POR and/or Scope of Work shall be attached to the 
contract proposal. If tribal construction procedures, standards and 
methods (including national, regional, state, or tribal building codes 
or construction industry standards) are consistent with or exceed 
applicable Federal standards then the Secretary shall accept the 
tribally proposed standards; and
    (2) In the case of a contract for construction activities, this 
statement, ``The facility will be built in accordance with the 
construction documents produced as a part of design activities. The 
project documents, including plans and specifications, are hereby 
incorporated into this contract through this reference.'' If tribal 
construction procedures, standards and methods (including national, 
regional, state, or tribal building codes or construction industry 
standards) are consistent with or exceed applicable Federal standards 
then the Secretary shall accept the tribally proposed standards; and
    (3) Proposed methods to accommodate the responsibilities of the 
Secretary provided in Sec. 900.131; and
    (4) Proposed methods to accommodate the responsibilities of the 
Indian tribe or tribal organization provided in Sec. 900.130 unless 
otherwise addressed in paragraph (a) of this section and minimum staff 
qualifications proposed by the Indian tribe or tribal organization, if 
any;
    (5) A contract budget as described in Sec. 900.127; and
    (6) A period of performance for the conduct of all activities to be 
contracted;
    (7) A payment schedule as described in Sec. 900.132;
    (8) A statement indicating whether or not the Indian tribe or tribal 
organization has a CMS contract related to this project;
    (9) Current (unrevoked) authorizing resolutions in accordance with 
Sec. 900.5(d) from all Indian tribes benefitting from the contract 
proposal; and
    (10) Any responsibilities, in addition to the Federal 
responsibilities listed in Sec. 900.131, which the Indian tribe or 
tribal organization proposes the Federal government perform to assist 
with the completion of the scope of work;
    (c) The Indian tribe or tribal organization will provide the 
following assurances in its contract proposal:

[[Page 859]]

    (1) If the Indian tribe or tribal organization elects not to take 
title (pursuant to subpart I) to Federal property used in carrying out 
the contract, ``The Indian tribe or tribal organization will not dispose 
of, modify the use of, or change the terms of the real property title, 
or other interest in the site and facilities without permission and 
instructions from the awarding agency. The Indian tribe or tribal 
organization will record the Federal interest in the title of real 
property in accordance with awarding agency directives and will include 
a covenant in the title of real property acquired in whole or in part 
with Federal assistance funds to assure nondiscrimination during the 
useful life of the project''; and
    (2) ``The Indian tribe or tribal organization will comply with the 
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.)'' 
which prohibits the use of lead based paint in construction or 
rehabilitation of residential structures;
    (3) ``The Indian tribe or tribal organization will comply, or has 
already complied, with the requirements of Titles II and III of the 
Uniform Relocation Assistance and Real Property Acquisition Policies Act 
of 1970 (Pub. L. 91-646),'' which provides for fair and equitable 
treatment of persons displaced or whose property is acquired as a result 
of Federal participation in purchases; and
    (4) ``Except for work performed by tribal or tribal organization 
employees, the Indian tribe or tribal organization will comply, as 
applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. 276c 
and 18 U.S.C. 874),'' for Federally assisted construction subagreements;
    (5) ``The Indian tribe or tribal organization will comply with the 
flood insurance purchase requirements of section 102(a) of the Flood 
Disaster Protection Act of 1973 (Pub. L. 93-234),'' which requires 
recipients in a special flood hazard area to participate in the program 
and to purchase flood insurance if the total cost of insurable 
construction and acquisition is $10,000 or more;
    (6) ``The Indian tribe or tribal organization will comply with all 
applicable Federal environmental laws, regulations, and Executive 
Orders;''
    (7) ``The Indian tribe or tribal organization will comply with the 
Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.) related to 
protecting the components or potential components of the national wild 
and scenic rivers system;''
    (8) ``The Indian tribe or tribal organization will assist the 
awarding agency in assuring compliance with section 106 of the National 
Historic Preservation Act of 1966, as amended (16 U.S.C. 470), EO 11593 
(identification and preservation of historic properties), and the 
Archaeological and Historic Preservation Act of 1974 (16 U.S.C. 469a-1 
et seq.).''
    (d) The Indian tribe or tribal organization and the Secretary will 
both make a good faith effort to identify any other applicable Federal 
laws, Executive Orders, or regulations applicable to the contract, share 
them with the other party, and refer to them in the construction 
contract. The parties will make a good faith effort to identify tribal 
laws, ordinances, and resolutions which may affect either party in the 
performance of the contract.




Sec. 900.126   Shall a construction contract proposal incorporate provisions of Federal construction guidelines and manuals?

    Each agency may provide or the Indian tribe or tribal organization 
may request Federal construction guidelines and manuals for 
consideration by the Indian tribe or tribal organization in the 
preparation of its contract proposal. If tribal construction procedures, 
standards and methods (including national, regional, State, or tribal 
building codes or construction industry standards) are consistent with 
or exceed applicable Federal standards, the Secretary shall accept the 
tribally proposed standards.




Sec. 900.127   What can be included in the Indian tribe or tribal organization's contract budget?

    (a) The costs incurred will vary depending on which phase (see 
Sec. 900.112) of the construction process the Indian tribe or tribal 
organization is conducting and the type of contract that will be used. 
The total amount awarded

[[Page 860]]

under a construction contract shall reflect an overall fair and 
reasonable price to the parties (see Sec. 900.129).
    (b) Costs for activities under this subpart that have not been 
billed, allocated, or recovered under a contract issued under section 
108 of the Act should be included.
    (c) The Indian tribe or tribal organization's budget should include 
the cost elements that reflect an overall fair and reasonable price. 
These costs include:
    (1) The reasonable costs to the Indian tribe or tribal organization 
of performing the contract, taking into consideration the terms of the 
contract and the requirements of the Act and any other applicable law;
    (2) The costs of preparing the contract proposal and supporting cost 
data;
    (3) The costs associated with auditing the general and 
administrative costs of the Indian tribe or tribal organization 
associated with the management of the construction contract; and
    (4) In cases where the Indian tribe or tribal organization is 
submitting a fixed-price construction contract:
    (i) The reasonable costs to the Indian tribe or tribal organization 
for general administration incurred in connection with the project that 
is the subject of the contract;
    (ii) The ability of the contractor that carries out the construction 
contract to make a reasonable profit, taking into consideration the 
risks associated with carrying out the contract, local market 
conditions, and other relevant considerations.
    (d) In establishing a contract budget for a construction project, 
the Secretary shall not be required to identify separately the 
components described in paragraphs (c)(4)(i) and (c)(4)(ii) of this 
section.
    (e) The Indian tribe or tribal organization's budget proposal 
includes a detailed budget breakdown for performing the scope of work 
including a total ``not to exceed'' dollar amount with which to perform 
the scope of work. Specific budget line items, if requested by the 
Indian tribe or tribal organization, can include the following:
    (1) The administrative costs the Indian tribe or tribal organization 
may incur including:
    (i) Personnel needed to provide administrative oversight of the 
contract;
    (ii) Travel costs incurred, both local travel incurred as a direct 
result of conducting the contract and remote travel necessary to review 
project status with the Secretary;
    (iii) Meeting costs incurred while meeting with community residents 
to develop project documents;
    (iv) Fees to be paid to consultants, such as demographic 
consultants, planning consultants, attorneys, accountants, and personnel 
who will provide construction management services;
    (2) The fees to be paid to architects and engineers to assist in 
preparing project documents and to assist in oversight of the 
construction process;
    (3) The fees to be paid to develop project surveys including 
topographical surveys, site boundary descriptions, geotechnical surveys, 
archeological surveys, and NEPA compliance, and;
    (4) In the case of a contract to conduct project construction 
activities, the fees to provide a part-time or full-time on-site 
inspector, depending on the terms of the contract, to monitor 
construction activities;
    (5) In the case of a contract to conduct project construction 
activities, project site development costs;
    (6) In the case of a contract to conduct project construction 
activities, project construction costs including those costs described 
in paragraph (c)(4), of this section;
    (7) The cost of securing and installing moveable equipment, 
telecommunications and data processing equipment, furnishings, including 
works of art, and special purpose equipment when part of a construction 
contract;
    (8) A contingency amount for unanticipated conditions of the 
construction phase of cost-reimbursable contracts. The amount of the 
contingency provided shall be 3 percent of activities being contracted 
or 50 percent of the available contingency funds, whichever is greater. 
In the event provision of required contingency funds will cause the 
project to exceed available project

[[Page 861]]

funds, the discrepancy shall be reconciled in accordance with 
Sec. 900.129(e). Any additional contingency funds for the construction 
phase will be negotiated on an as-needed basis subject to the 
availability of funds and the nature, scope, and complexity of the 
project. Any contingency for other phases will be negotiated on a 
contract-by-contract basis. Unused contingency funds obligated to the 
contract and remaining at the end of the contract will be considered 
savings.
    (9) Other costs incurred that are directly related to the conduct of 
contract activities.




Sec. 900.128   What funding shall the Secretary provide in a construction contract?

    The Secretary shall provide an amount under a construction contract 
that reflects an overall fair and reasonable price to the parties. These 
costs include:
    (a) The reasonable costs to the Indian tribe or tribal organization 
of performing the contract, taking into consideration the terms of the 
contract and the requirements of the Act and any other applicable law;
    (b) The costs of preparing the contract proposal and supporting cost 
data; and
    (c) The costs associated with auditing the general and 
administrative costs of the tribal organization associated with the 
management of the construction contract; and
    (d) If the Indian tribe or tribal organization is submitting a 
fixed-price construction contract:
    (1) The reasonable costs to the Indian tribe or tribal organization 
for general administration incurred in connection with the project that 
is the subject of the contract;
    (2) The ability of the contractor that carries out the construction 
contract to make a reasonable profit, taking into consideration the 
risks associated with carrying out the contract, local market 
conditions, and other relevant considerations including but not limited 
to contingency.
    (3) In establishing a contract budget for a construction project, 
the Secretary is not required to identify separately the components 
described in paragraph (d) (1) and (d) (2) of this sections.




Sec. 900.129   How do the Secretary and Indian tribe or tribal organization arrive at an overall fair and reasonable price for the performance of a construction 
          contract?

    (a) Throughout the contract award process, the Secretary and Indian 
tribe or tribal organization shall share all construction project cost 
information available to them in order to facilitate reaching agreement 
on an overall fair and reasonable price for the project or part thereof. 
In order to enhance this communication, the government's estimate of an 
overall fair and reasonable price shall:
    (1) Contain a level of detail appropriate to the nature and phase of 
the work and sufficient to allow comparisons to the Indian tribe or 
tribal organization's estimate;
    (2) Be prepared in a format coordinated with the Indian tribe or 
tribal organization; and
    (3) Include the cost elements contained in section 105(m)(4) of the 
Act.
    (b) The government's cost estimate shall be an independent cost 
estimate based on such information as the following:
    (1) Prior costs to the government for similar projects adjusted for 
comparison to the target location, typically in unit costs, such as 
dollars per pound, square meter cost of building, or other unit cost 
that can be used to make a comparison;
    (2) Actual costs previously incurred by the Indian tribe or tribal 
organization for similar projects;
    (3) Published price lists, to include regional adjustment factors, 
for materials, equipment, and labor; and
    (4) Projections of inflation and cost trends, including projected 
changes such as labor, material, and transportation costs.
    (c) The Secretary shall provide the initial government cost estimate 
to the Indian tribe or tribal organization and make appropriate 
revisions based on concerns raised or information provided by the Indian 
tribe or tribal organization. The Secretary and the Indian tribe or 
tribal organization shall continue to revise, as appropriate, their 
respective cost estimates based on

[[Page 862]]

changed or additional information such as the following:
    (1) Actual subcontract bids;
    (2) Changes in inflation rates and market conditions, including 
local market conditions;
    (3) Cost and price analyses conducted by the Secretary and the 
Indian tribe or tribal organization during negotiations;
    (4) Agreed-upon changes in the size, scope and schedule of the 
construction project; and
    (5) Agreed-upon changes in project plans and specifications.
    (d) Considering all of the information available, the Secretary and 
the Indian tribe or tribal organization shall negotiate the amount of 
the construction contract. The objective of the negotiations is to 
arrive at an amount that is fair under current market conditions and 
reasonable to both the government and the Indian tribe or tribal 
organization. As a result, the agreement does not necessarily have to be 
in strict conformance with either party's cost estimate nor does 
agreement have to be reached on every element of cost, but only on the 
overall fair and reasonable price of each phase of the work included in 
the contract.
    (e) If the fair and reasonable price arrived at under paragraph (d) 
of this section would exceed the amount available to the Secretary, 
then:
    (1) If the Indian tribe or tribal organization elects to submit a 
final proposal, the Secretary may decline the proposal under section 
105(m)(4)(C)(v) of the Act or if the contract has been awarded, dispute 
the matter under the Contract Disputes Act; or
    (2) If requested by the Indian tribe or tribal organization:
    (i) The Indian tribe or tribal organization and the Secretary may 
jointly explore methods of expanding the available funds through the use 
of contingency funds, advance payments in accordance with Sec. 900.132, 
rebudgeting, or seeking additional appropriations; or
    (ii) The Indian tribe or tribal organization may elect to propose a 
reduction in project scope to bring the project price within available 
funds; or
    (iii) The Secretary and Indian tribe or tribal organization may 
agree that the project be executed in phases.




Sec. 900.130  What role does the Indian tribe or tribal organization play during the performance of a self-determination construction contract?

    (a) The Indian tribe or tribal organization is responsible for the 
successful completion of the project in accordance with the approved 
contract documents.
    (b) If the Indian tribe or tribal organization is contracting to 
perform design phase activities, the Indian tribe or tribal organization 
shall have the following responsibilities:
    (1) The Indian tribe or tribal organization shall subcontract with 
or provide the services of licensed and qualified architects and other 
consultants needed to accomplish the self-determination construction 
contract.
    (2) The Indian tribe or tribal organization shall administer and 
disburse funds provided through the contract in accordance with subpart 
F, Sec. 900.42 through Sec. 900.45 and implement a property management 
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
    (3) The Indian tribe or tribal organization shall direct the 
activities of project architects, engineers, and other project 
consultants, facilitate the flow of information between the Indian tribe 
or tribal organization and its subcontractors, resolve disputes between 
the Indian tribe or tribal organization and its subcontractors or 
between its subcontractors, and monitor the work produced by its 
subcontractors to ensure compliance with the POR.
    (4) The Indian tribe or tribal organization shall direct the work of 
its subcontractors so that work produced is provided in accordance with 
the contract budget and contract performance period as negotiated 
between and agreed to by the parties.
    (5) The Indian tribe or tribal organization shall provide the 
Secretary with an opportunity to review and provide written comments on 
the project plans and specifications only at the concept phase, the 
schematic phase (or the preliminary design), the design development 
phase, and the final construction

[[Page 863]]

documents phase and approve the project plans and specifications for 
general compliance with contract requirements only at the schematic 
phase (or the preliminary design) and the final construction documents 
phase or as otherwise negotiated.
    (6) The Indian tribe or tribal organization shall provide the 
Secretary with the plans and specifications after their final review so, 
if needed, the Secretary may obtain an independent government cost 
estimate in accordance with Sec. 900.131(b)(4) for the construction of 
the project.
    (7) The Indian tribe or tribal organization shall retain project 
records and design documents for a minimum of 3 years following 
completion of the contract.
    (8) The Indian tribe or tribal organization shall provide progress 
reports and financial status reports quarterly, or as negotiated, that 
contain a narrative of the work accomplished, including but not limited 
to descriptions of contracts, major subcontracts, and modifications 
implemented during the report period and A/E service deliverables, the 
percentage of the work completed, a report of funds expended during the 
reporting period, and total funds expended for the project. The Indian 
tribe or tribal organization shall also provide copies, for the 
information of the Secretary, of an initial work and payment schedule 
and updates as they may occur.
    (c) If the Indian tribe or tribal organization is contracting to 
perform project construction phase activities, the Indian tribe or 
tribal organization shall have the following responsibilities:
    (1) The Indian tribe or tribal organization shall subcontract with 
or provide the services of licensed and qualified architects and other 
consultants as needed to accomplish the self-determination construction 
contract.
    (2) The Indian tribe or tribal organization shall administer and 
dispense funds provided through the contract in accordance with subpart 
F, Sec. 900.42 through Sec. 900.45 and implement a property management 
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
    (3) The Indian tribe or tribal organization shall subcontract with 
or provide the services of construction contractors or provide its own 
forces to conduct construction activities in accordance with the project 
construction documents or as otherwise negotiated between and agreed to 
by the parties.
    (4) The Indian tribe or tribal organization shall direct the 
activities of project architects, engineers, construction contractors, 
and other project consultants, facilitate the flow of information 
between the Indian tribe or tribal organization and its subcontractors, 
resolve disputes between itself and its subcontractors or between its 
subcontractors, and monitor the work produced by its subcontractors to 
assure compliance with the project plans and specifications.
    (5) The Indian tribe or tribal organization shall manage or provide 
for the management of day-to-day activities of the contract including 
the issuance of construction change orders to subcontractors except 
that, unless the Secretary agrees:
    (i) The Indian tribe or tribal organization may not issue a change 
order to a construction subcontractor that will cause the Indian tribe 
or tribal organization to exceed its self-determination contract budget;
    (ii) The Indian tribe or tribal organization may not issue a change 
order to a construction subcontractor that will cause the Indian tribe 
or tribal organization to exceed the performance period in its self-
determination contract budget; or
    (iii) The Indian tribe or tribal organization may not issue to a 
construction subcontractor a change order that is a significant 
departure from the scope or objective of the project.
    (6) The Indian tribe or tribal organization shall direct the work of 
its subcontractors so that work produced is provided in accordance with 
the contract budget and performance period as negotiated between and 
agreed to by the parties.
    (7) The Indian tribe or tribal organization shall provide to the 
Secretary progress and financial status reports.
    (i) The reports shall be provided quarterly, or as negotiated, and 
shall

[[Page 864]]

contain a narrative of the work accomplished, the percentage of the work 
completed, a report of funds expended during the reporting period, and 
total funds expended for the project.
    (ii) The Indian tribe or tribal organization shall also provide 
copies, for the information of the Secretary, of an initial schedule of 
values and updates as they may occur, and an initial construction 
schedule and updates as they occur.
    (8) The Indian tribe or tribal organization shall maintain on the 
job-site or project office, and make available to the Secretary during 
monitoring visits: contracts, major subcontracts, modifications, 
construction documents, change orders, shop drawings, equipment cut 
sheets, inspection reports, testing reports, and current redline 
drawings.
    (d) Upon completion of the project, the Indian tribe or tribal 
organization shall provide to the Secretary a reproducible copy of the 
record plans and a contract closeout report.
    (e) For cost-reimbursable projects, the Indian tribe or tribal 
organization shall not be obligated to continue performance that 
requires an expenditure of more funds than were awarded under the 
contract. If the Indian tribe or tribal organization has a reason to 
believe that the total amount required for performance of the contract 
will be greater than the amount of funds awarded, it shall provide 
reasonable notice to the Secretary. If the Secretary does not increase 
the amount of funds awarded under the contract, the Indian tribe or 
tribal organization may suspend performance of the contract until 
sufficient additional funds are awarded.




Sec. 900.131  What role does the Secretary play during the performance of a self-determination construction contract?

    (a) If the Indian tribe or tribal organization is contracting solely 
to perform construction management services either under this subpart or 
section 108 of the Act, the Secretary has the following 
responsibilities:
    (1) The Secretary is responsible for the successful completion of 
the project in accordance with the approved contract documents. In 
fulfilling those responsibilities, the Secretary shall consult with the 
Indian tribe or tribal organization on a regular basis as agreed to by 
the parties to facilitate the exchange of information between the Indian 
tribe or tribal organization and Secretary;
    (2) The Secretary shall provide the Indian tribe or tribal 
organization with regular opportunities to review work produced to 
determine compliance with the following documents:
    (i) The POR, during the conduct of design phase activities. The 
Secretary shall provide the Indian tribe or tribal organization with an 
opportunity to review the project construction documents at the concept 
phase, the schematic phase, the design development phase, and the final 
construction documents phase, or as otherwise negotiated. Upon receipt 
of project construction documents for review, the Indian tribe or tribal 
organization shall not take more than 21 days to make available to the 
Secretary any comments or objections to the construction documents as 
submitted by the Secretary. Resolution of any comments or objections 
shall be in accordance with dispute resolution procedures as agreed to 
by the parties and contained in the contract; or
    (ii) The project construction documents, during conduct of the 
construction phase activities. The Indian tribe or tribal organization 
shall have the right to conduct monthly or critical milestone on-site 
monitoring visits or as negotiated with the Secretary;
    (b) If the Indian tribe or tribal organization is contracting to 
perform design and/or construction phase activities, the Secretary shall 
have the following responsibilities:
    (1) In carrying out the responsibilities of this section, and 
specifically in carrying out review, comment, and approval functions 
under this section, the Secretary shall provide for full tribal 
participation in the decision making process and shall honor tribal 
preferences and recommendations to the greatest extent feasible. This 
includes promptly notifying the Indian tribe or tribal organization of 
any concerns or issues in writing that may lead to disapproval, meeting 
with the Indian tribe

[[Page 865]]

or tribal organization to discuss these concerns and issues and to share 
relevant information and documents, and making a good faith effort to 
resolve all issues and concerns of the Indian tribe or tribal 
organization. The time allowed for Secretarial review, comment, and 
approval shall be no more than 21 days per review unless a different 
time period is negotiated and specified in individual contracts. The 21-
day time period may be extended if the Indian tribe or tribal 
organization agrees to the extension in writing. Disagreements over the 
Secretary's decisions in carrying out these responsibilities shall be 
handled under subpart N governing contract disputes under the Contract 
Disputes Act.
    (2) To the extent the construction project is subject to NEPA or 
other environmental laws, the appropriate Secretary shall make the final 
determination under such laws. All other environmentally related 
functions are contractible.
    (3) If the Indian tribe or tribal organization conducts planning 
activities under this subpart, the Secretary shall review and approve 
final planning documents for the project to ensure compliance with 
applicable planning standards.
    (4) When a contract or portion of a contract is for project 
construction activities, the Secretary may rely on the Indian tribe or 
tribal organization's cost estimate or the Secretary may obtain an 
independent government cost estimate that is derived from the final 
project plans and specifications. The Secretary shall obtain the cost 
estimate, if any, within 90 days or less of receiving the final plans 
and specifications from the Indian tribe or tribal organization and 
shall provide all supporting documentation of the independent cost 
estimate to the Indian tribe or tribal organization within the 90 day 
time limit.
    (5) If the contracted project involves design activities, the 
Secretary shall have the authority to review for general compliance with 
the contract requirements and provide written comments on the project 
plans and specifications only at the concept phase, the schematic phase, 
the design development phase and the final construction documents phase, 
and approve for general compliance with contract requirements the 
project plans and specifications only at the schematic phase and the 
final construction documents phase or as otherwise negotiated.
    (6) If the contracted project involves design activities, the 
Secretary reserves a royalty-free, nonexclusive, and irrevocable license 
to reproduce, publish or otherwise use, for Federal government purposes:
    (i) The copyright in any work developed under a contract or 
subcontract of this subpart; and
    (ii) Any rights of copyright to which an Indian tribe or tribal 
organization or a tribal subcontractor purchases ownership through this 
contract.
    (7) Changes that require an increase to the negotiated contract 
budget or an increase in the negotiated performance period or are a 
significant departure from the scope or objective of the project shall 
require approval of the Secretary.
    (8) Review and comment on specific shop drawings as negotiated and 
specified in individual contracts.
    (9) The Secretary may conduct monthly on-site monitoring visits, or 
alternatively if negotiated with the Indian tribe or tribal 
organization, critical milestone on-site monitoring visits.
    (10) The Secretary retains the right to conduct final project 
inspections jointly with the Indian tribe or tribal organization and to 
accept the building or facility. If the Secretary identifies problems 
during final project inspections the information shall be provide to the 
Indian tribe or tribal organization and shall be limited to items that 
are materially noncompliant.
    (11) The Secretary can require an Indian tribe or tribal 
organization to suspend work under a contract in accordance with this 
paragraph. The Secretary may suspend a contract for no more than 30 days 
unless the Indian tribe or tribal organization has failed to correct the 
reason(s) for the suspension or unless the cause of the suspension 
cannot be resolved through either the efforts of the Secretary or the 
Indian tribe or tribal organization.
    (i) The following are reasons the Secretary may suspend work under a 
self-

[[Page 866]]

determination contract for construction:
    (A) Differing site conditions encountered upon commencement of 
construction activities that impact health or safety concerns or shall 
require an increase in the negotiated project budget;
    (B) The Secretary discovers materially non-compliant work;
    (C) Funds allocated for the project that is the subject of this 
contract are rescinded by Congressional action; or
    (D) Other Congressional actions occur that materially affect the 
subject matter of the contract.
    (ii) If the Secretary wishes to suspend the work, the Secretary 
shall first provide written notice and an opportunity for the Indian 
tribe or tribal organization to correct the problem. The Secretary may 
direct the Indian tribe or tribal organization to suspend temporarily 
work under a contract only after providing a minimum of 5 working days' 
advance written notice to the Indian tribe or tribal organization 
describing the nature of the performance deficiencies or imminent 
safety, health or environmental issues which are the cause for 
suspending the work.
    (iii) The Indian tribe or tribal organization shall be compensated 
for reasonable costs, including but not limited to overhead costs, 
incurred due to any suspension of work that occurred through no fault of 
the Indian tribe or tribal organization.
    (iv) Disputes arising as a result of a suspension of the work by the 
Secretary shall be subject to the Contract Disputes Act or any other 
alternative dispute resolution mechanism as negotiated between and 
agreed to by the parties and contained in the contract.
    (12) The Secretary can terminate the project for cause in the event 
non-compliant work is not corrected through the suspension process 
specified in paragraph (11) of this section.
    (13) The Secretary retains authority to terminate the project for 
convenience for the following reasons:
    (i) Termination for convenience is requested by the Indian tribe or 
tribal organization;
    (ii) Termination for convenience is requested by the Secretary and 
agreed to by the Indian tribe or tribal organization;
    (iii) Funds allocated for the project that is the subject of the 
contract are rescinded by Congressional action;
    (iv) Other Congressional actions take place that affect the subject 
matter of the contract;
    (v) If the Secretary terminates a self-determination construction 
contract for convenience, the Secretary shall provide the Indian tribe 
or tribal organization 21 days advance written notice of intent to 
terminate a contract for convenience; or
    (vi) The Indian tribe or tribal organization shall be compensated 
for reasonable costs incurred due to termination of the contract.




Sec. 900.132  Once a contract and/or grant is awarded, how will the Indian tribe or tribal organization receive payments?

    (a) A schedule for advance payments shall be developed based on 
progress, need, and other considerations in accordance with applicable 
law. The payment schedule shall be negotiated by the parties and 
included in the contract. The payment schedule may be adjusted as 
negotiated by the parties during the course of the project based on 
progress and need.
    (b) Payments shall be made to the Indian tribe or tribal 
organization according to the payment schedule contained in the 
contract. If the contract does not provide for the length of each 
allocation period, the Secretary shall make payments to the Indian tribe 
or tribal organization at least quarterly. Each allocation shall be 
adequate to provide funds for the contract activities anticipated to be 
conducted during the allocation period, except that:
    (1) The first allocation may be greater than subsequent allocations 
and include mobilization costs, and contingency funds described in 
Sec. 900.128(e)(8); and
    (2) Any allocation may include funds for payment for materials that 
will be used during subsequent allocation periods.
    (c) The Indian tribe or tribal organization may propose a schedule 
of payment amounts measured by time or

[[Page 867]]

measured by phase of the project (e.g., planning, design, construction).
    (d) The amount of each payment allocation shall be stated in the 
Indian tribe or tribal organization's contract proposal. Upon award of 
the contract, the Secretary shall transfer the amount of the first 
allocation to the Indian tribe or tribal organization within 21 days 
after the date of contract award. The second allocation shall be made 
not later than 7 days before the end of the first allocation period.
    (e) Not later than 7 days before the end of each subsequent 
allocation period after the second allocation, the Secretary shall 
transfer to the Indian tribe or tribal organization the amount for the 
next allocation period, unless the Indian tribe or tribal organization 
is delinquent in submission of allocation period progress reports and 
financial reports or the Secretary takes action to suspend or terminate 
the contract in accordance with Sec. 900.131(b)(11), 
Sec. 900.131(b)(12), or Sec. 900.131(b)(13).




Sec. 900.133  Does the declination process or the Contract Dispute Act apply to construction contract amendments proposed either by an Indian tribe or tribal 
          organization or the Secretary?

    The Contract Disputes Act generally applies to such amendments. 
However, the declination process and the procedures in Sec. 900.122 and 
Sec. 900.123 apply to the proposal by an Indian tribe or tribal 
organization when the proposal is for a new project, a new phase or 
discreet stage of a phase of a project, or an expansion of a project 
resulting from an additional allocation of funds by the Secretary under 
Sec. 900.120.




Sec. 900.134  At the end of a self-determination construction contract, what happens to savings on a cost-reimbursement contract?

    The savings shall be used by the Indian tribe or tribal organization 
to provide additional services or benefits under the contract. 
Unexpended contingency funds obligated to the contract, and remaining at 
the end of the contract, are savings. No further approval or justifying 
documentation by the Indian tribe or tribal organization shall be 
required before expenditure of funds.




Sec. 900.135  May the time frames for action set out in this subpart be reduced?

    Yes. The time frames in this subpart are intended to be maximum 
times and may be reduced based on urgency and need, by agreement of the 
parties. If the Indian tribe or tribal organization requests reduced 
time frames for action due to unusual or special conditions (such as 
limited construction periods), the Secretary shall make a good faith 
effort to accommodate the requested time frames.




Sec. 900.136  Do tribal employment rights ordinances apply to construction contracts and subcontracts?

    Yes. Tribal employment rights ordinances do apply to construction 
contracts and subcontracts pursuant to section 7(b) and section 7(c) of 
the Act.




Sec. 900.137  Do all provisions of the other subparts apply to contracts awarded under this subpart?

    Yes, except as otherwise provided in this subpart and unless 
excluded as follows: programmatic reports and data requirements, 
reassumption, contract review and approval process, contract proposal 
contents, and Sec. 900.150 (d) and (e) of these regulations.



                      Subpart K--Waiver Procedures




Sec. 900.140  Can any provision of the regulations under this part be waived?

    Yes. Upon the request of an Indian tribe or tribal organization, the 
Secretary shall waive any provision of these regulations, including any 
cost principles adopted by the regulations under this part, if the 
Secretary finds that granting the waiver is either in the best interest 
of the Indians served by the contract, or is consistent with the 
policies of the Act and is not contrary to statutory law.




Sec. 900.141  How does an Indian tribe or tribal organization get a waiver?

    To obtain a waiver, an Indian tribe or tribal organization shall 
submit a written request to the Secretary identifying the regulation to 
be waived and the

[[Page 868]]

basis for the request. The Indian tribe or tribal organization shall 
explain the intended effect of the waiver, the impact upon the Indian 
tribe or tribal organization if the waiver is not granted, and the 
specific contract(s) to which the waiver will apply.




Sec. 900.142  Does an Indian tribe or tribal organization's waiver request have to be included in an initial contract proposal?

    No. Although a waiver request may be included in a contract 
proposal, it can also be submitted separately.





Sec. 900.143  How is a waiver request processed?

    The Secretary shall approve or deny a waiver within 90 days after 
the Secretary receives a written waiver request. The Secretary's 
decision shall be in writing. If the requested waiver is denied, the 
Secretary shall include in the decision a full explanation of the basis 
for the decision.




Sec. 900.144  What happens if the Secretary makes no decision within the 90-day period?

    The waiver request is deemed approved.




Sec. 900.145  On what basis may the Secretary deny a waiver request?

    Consistent with section 107(e) of the Act, the Secretary may only 
deny a waiver request based on a specific written finding. The finding 
must clearly demonstrate (or be supported by controlling legal 
authority) that if the waiver is granted:
    (a) The service to be rendered to the Indian beneficiaries of the 
particular program or function to be contracted will not be 
satisfactory;
    (b) Adequate protection of trust resources is not assured;
    (c) The proposed project or function to be contracted for cannot be 
properly completed or maintained by the proposed contract;
    (d) The amount of funds proposed under the contract is in excess of 
the applicable funding level for the contract, as determined under 
section 106(a) of the Act; or
    (e) The program, function, service, or activity (or portion of it) 
that is the subject of the proposal is beyond the scope of programs, 
functions, services, or activities that are contractible under the Act 
because the proposal includes activities that cannot lawfully be carried 
out by the contractor.




Sec. 900.146  Is technical assistance available for waiver requests?

    Yes. Technical assistance is available as provided in Sec. 900.7 to 
prepare a waiver request or to overcome any stated objection which the 
Secretary might have to the request.




Sec. 900.147  What appeal rights are available?

    If the Secretary denies a waiver request, the Indian tribe or tribal 
organization has the right to appeal the decision and request a hearing 
on the record under the procedures for hearings and appeals contained in 
subpart L of these regulations. Alternatively, the Indian tribe or 
tribal organization may sue in Federal district court to challenge the 
Secretary's action.




Sec. 900.148  How can an Indian tribe or tribal organization secure a determination that a law or regulation has been superseded by the Indian Self-
          Determination Act, as specified in section 107(b) of the Act?

    Any Indian tribe or tribal organization may at any time submit a 
request to the Secretary for a determination that any law or regulation 
has been superseded by the Act and that the law has no applicability to 
any contract or proposed contract under the Act. The Secretary is 
required to provide an initial decision on such a request within 90 days 
after receipt. If such a request is denied, the Indian tribe or tribal 
organization may appeal under subpart L of these regulations. The 
Secretary shall provide notice of each determination made under this 
subpart to all Indian tribes and tribal organizations.

[[Page 869]]



                           Subpart L--Appeals

Appeals Other Than Emergency Reassumption and Suspension, Withholding or 
                            Delay in Payment




Sec. 900.150  What decisions can an Indian tribe or tribal organization appeal under this subpart?

    (a) A decision to decline to award a self-determination contract, or 
a portion thereof, under section 102 of the Act;
    (b) A decision to decline to award a construction contract, or a 
portion thereof, under sections 105(m) and 102 of the Act;
    (c) A decision to decline a proposed amendment to a self-
determination contract, or a portion thereof, under section 102 of the 
Act;
    (d) A decision not to approve a proposal, in whole or in part, to 
redesign a program;
    (e) A decision to rescind and reassume a self-determination 
contract, in whole or in part, under section 109 of the Act except for 
emergency reassumptions;
    (f) A decision to refuse to waive a regulation under section 107(e) 
of the Act;
    (g) A disagreement between an Indian tribe or tribal organization 
and the Federal government over proposed reporting requirements;
    (h) A decision to refuse to allow an Indian tribe or tribal 
organization to convert a contract to mature status, under section 4(h) 
of the Act;
    (i) All other appealable pre-award decisions by a Federal official 
as specified in these regulations, whether an official of the Department 
of the Interior or the Department of Health and Human Services; or
    (j) A decision relating to a request for a determination that a law 
or regulation has been superseded by the Act.




Sec. 900.151  Are there any appeals this subpart does not cover?

    This subpart does not cover:
    (a) Disputes which arise after a self-determination contract has 
been awarded, or emergency reassumption of self-determination contracts 
or suspension of payments under self-determination contracts, which are 
covered under Sec. 900.170 through Sec. 900.176 of these regulations.
    (b) Other post-award contract disputes, which are covered under 
subpart N.
    (c) Denials under the Freedom of Information Act, 5 U.S.C. 552, 
which may be appealed under 43 CFR 2 for the Department of the Interior 
and 45 CFR 5 for the Department of Health and Human Services; and
    (d) Decisions relating to the award of discretionary grants under 
section 103 of the Act, which may be appealed under 25 CFR 2 for the 
Department of the Interior, and under 45 CFR 5 for the Department of 
Health and Human Services.




Sec. 900.152  How does an Indian tribe or tribal organization know where and when to file its appeal from decisions made by agencies of DOI or DHHS?

    Every decision in any of the ten areas listed above shall contain 
information which shall tell the Indian tribe or tribal organization 
where and when to file the Indian tribe or tribal organization's appeal. 
Each decision shall include the following statement:

    Within 30 days of the receipt of this decision, you may request an 
informal conference under 25 CFR 900.154, or appeal this decision under 
25 CFR 900.158 to the Interior Board of Indian Appeals (IBIA). Should 
you decide to appeal this decision, you may request a hearing on the 
record. An appeal to the IBIA under 25 CFR 900.158 shall be filed with 
the IBIA by certified mail or by hand delivery at the following address: 
Board of Indian Appeals, U.S. Department of the Interior, 4015 Wilson 
Boulevard, Arlington, VA 22203. You shall serve copies of your Notice of 
Appeal on the Secretary and on the official whose decision is being 
appealed. You shall certify to the IBIA that you have served these 
copies.




Sec. 900.153  Does an Indian tribe or tribal organization have any options besides an appeal?

    Yes. The Indian tribe or tribal organization may request an informal 
conference. An informal conference is a way to resolve issues as quickly 
as possible, without the need for a formal hearing. The Indian tribe or 
tribal organization may also choose to sue in U.S. District Court under 
section 102(b)(3) and section 110(a) of the Act.

[[Page 870]]




Sec. 900.154  How does an Indian tribe or tribal organization request an informal conference?

    The Indian tribe or tribal organization shall file its request for 
an informal conference with the office of the person whose decision it 
is appealing, within 30 days of the day it receives the decision. The 
Indian tribe or tribal organization may either hand-deliver the request 
for an informal conference to that person's office, or mail it by 
certified mail, return receipt requested. If the Indian tribe or tribal 
organization mails the request, it will be considered filed on the date 
the Indian tribe or tribal organization mailed it by certified mail.




Sec. 900.155  How is an informal conference held?

    (a) The informal conference shall be held within 30 days of the date 
the request was received, unless the Indian tribe or tribal organization 
and the authorized representative of the Secretary agree on another 
date.
    (b) If possible, the informal conference will be held at the Indian 
tribe or tribal organization's office. If the meeting cannot be held at 
the Indian tribe or tribal organization's office and is held more than 
fifty miles from its office, the Secretary shall arrange to pay 
transportation costs and per diem for incidental expenses to allow for 
adequate representation of the Indian tribe or tribal organization.
    (c) The informal conference shall be conducted by a designated 
representative of the Secretary.
    (d) Only people who are the designated representatives of the Indian 
tribe or tribal organization, or authorized by the Secretary of Health 
and Human Services or by the appropriate agency of the Department of the 
Interior, are allowed to make presentations at the informal conference.




Sec. 900.156  What happens after the informal conference?

    (a) Within 10 days of the informal conference, the person who 
conducted the informal conference shall prepare and mail to the Indian 
tribe or tribal organization a written report which summarizes what 
happened at the informal conference and a recommended decision.
    (b) Every report of an informal conference shall contain the 
following language:

    Within 30 days of the receipt of this recommended decision, you may 
file an appeal of the initial decision of the DOI or DHHS agency with 
the Interior Board of Indian Appeals (IBIA) under 25 CFR 900.157. You 
may request a hearing on the record. An appeal to the IBIA under 25 CFR 
900.157 shall be filed with the IBIA by certified mail or hand delivery 
at the following address: Board of Indian Appeals, U.S. Department of 
the Interior, 4015 Wilson Boulevard, Arlington, VA 22203. You shall 
serve copies of your Notice of Appeal on the Secretary and on the 
official whose decision is being appealed. You shall certify to the IBIA 
that you have served these copies.




Sec. 900.157  Is the recommended decision always final?

    No. If the Indian tribe or tribal organization is dissatisfied with 
the recommended decision, it may still appeal the initial decision 
within 30 days of receiving the recommended decision and the report of 
the informal conference. If the Indian tribe or tribal organization does 
not file a notice of appeal within 30 days, or before the expiration of 
the extension it has received under Sec. 900.159, the recommended 
decision becomes final.




Sec. 900.158  How does an Indian tribe or tribal organization appeal the initial decision, if it does not request an informal conference or if it does not agree 
          with the recommended decision resulting from the informal 
          conference?

    (a) If the Indian tribe or tribal organization decides to appeal, it 
shall file a notice of appeal with the IBIA within 30 days of receiving 
either the initial decision or the recommended decision.
    (b) The Indian tribe or tribal organization may either hand-deliver 
the notice of appeal to the IBIA, or mail it by certified mail, return 
receipt requested. If the Indian tribe or tribal organization mails the 
Notice of Appeal, it will be considered filed on the date the Indian 
tribe or tribal organization mailed it by certified mail. The Indian 
tribe or tribal organization should mail the notice of appeal to: Board 
of Indian

[[Page 871]]

Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, 
Arlington, VA 22203.
    (c) The Notice of Appeal shall:
    (1) Briefly state why the Indian tribe or tribal organization thinks 
the initial decision is wrong;
    (2) Briefly identify the issues involved in the appeal; and
    (3) State whether the Indian tribe or tribal organization wants a 
hearing on the record, or whether the Indian tribe or tribal 
organization wants to waive its right to a hearing.
    (d) The Indian tribe or tribal organization shall serve a copy of 
the notice of appeal upon the official whose decision it is appealing. 
The Indian tribe or tribal organization shall certify to the IBIA that 
it has done so.
    (e) The authorized representative of the Secretary of Health and 
Human Services or the authorized representative of the Secretary of the 
Interior will be considered a party to all appeals filed with the IBIA 
under the Act.




Sec. 900.159   May an Indian tribe or tribal organization get an extension of time to file a notice of appeal?

    Yes. If the Indian tribe or tribal organization needs more time, it 
can request an extension of time to file its Notice of Appeal within 60 
days of receiving either the initial decision or the recommended 
decision resulting from the informal conference. The request of the 
Indian tribe or tribal organization shall be in writing, and shall give 
a reason for not filing its notice of appeal within the 30-day time 
period. If the Indian tribe or tribal organization has a valid reason 
for not filing its notice of appeal on time, it may receive an extension 
from the IBIA.




Sec. 900.160   What happens after an Indian tribe or tribal organization files an appeal?

    (a) Within 5 days of receiving the Indian tribe or tribal 
organization's notice of appeal, the IBIA will decide whether the appeal 
falls under Sec. 900.150(a) through Sec. 900.150(g). If so, the Indian 
tribe or tribal organization is entitled to a hearing.
    (1) If the IBIA determines that the appeal of the Indian tribe or 
tribal organization falls under Sec. 900.150(h), Sec. 900.150(i), or 
Sec. 900.150(j), and the Indian tribe or tribal organization has 
requested a hearing, the IBIA will grant the request for a hearing 
unless the IBIA determines that there are no genuine issues of material 
fact to be resolved.
    (2) If the IBIA cannot make that decision based on the information 
included in the notice of appeal, the IBIA may ask for additional 
statements from the Indian tribe or tribal organization, or from the 
appropriate Federal agency. If the IBIA asks for more statements, it 
will make its decision within 5 days of receiving those statements.
    (b) If the IBIA decides that the Indian tribe or tribal organization 
is not entitled to a hearing or if the Indian tribe or tribal 
organization has waived its right to a hearing on the record, the IBIA 
will ask for the administrative record under 43 CFR 4.335. The IBIA 
shall tell the parties that the appeal will be considered under the 
regulations at 43 CFR 4, subpart D, except the case shall be docketed 
immediately, without waiting for the 20-day period described in 43 CFR 
4.336.




Sec. 900.161   How is a hearing arranged?

    (a) If a hearing is to be held, the IBIA will refer the Indian tribe 
or tribal organization's case to the Hearings Division of the Office of 
Hearings and Appeals of the U.S. Department of the Interior. The case 
will then be assigned to an Administrative Law Judge (ALJ), appointed 
under 5 U.S.C. 3105.
    (b) Within 15 days of the date of the referral, the ALJ will hold a 
pre-hearing conference, by telephone or in person, to decide whether an 
evidentiary hearing is necessary, or whether it is possible to decide 
the appeal based on the written record. At the pre-hearing conference 
the ALJ will provide for:
    (1) A briefing and discovery schedule;
    (2) A schedule for the exchange of information, including, but not 
limited to witness and exhibit lists, if an evidentiary hearing is to be 
held;
    (3) The simplification or clarification of issues;
    (4) The limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence, if an evidentiary hearing is to be held;

[[Page 872]]

    (5) The possibility of agreement disposing of all or any of the 
issues in dispute; and
    (6) Such other matters as may aid in the disposition of the appeal.
    (c) The ALJ shall order a written record to be made of any 
conference results that are not reflected in a transcript.




Sec. 900.162   What happens when a hearing is necessary?

    (a) The ALJ shall hold a hearing within 60 days of the date of the 
order referring the appeal to the ALJ, unless the parties agree to have 
the hearing on a later date.
    (b) At least 30 days before the hearing, the government agency shall 
file and serve the Indian tribe or tribal organization with a response 
to the notice of appeal.
    (c) If the hearing is held more than 50 miles from the Indian tribe 
or tribal organization's office, the Secretary shall arrange to pay 
transportation costs and per diem for incidental expenses to allow for 
adequate representation of the Indian tribe or tribal organization.
    (d) The hearing shall be conducted in accordance with the 
Administrative Procedure Act, 5 U.S.C. 556.




Sec. 900.163   What is the Secretary's burden of proof for appeals from decisions under Sec. 900.150(a) through Sec. 900.150(g)?

    For those appeals, the Secretary has the burden of proof (as 
required by section 102(e)(1) of the Act) to establish by clearly 
demonstrating the validity of the grounds for declining the contract 
proposal.




Sec. 900.164   What rights do Indian tribes, tribal organizations, and the government have during the appeal process?

    Both the Indian tribe or tribal organization and the government 
agency have the same rights during the appeal process. These rights 
include the right to:
    (a) Be represented by legal counsel;
    (b) Have the parties provide witnesses who have knowledge of the 
relevant issues, including specific witnesses with that knowledge, who 
are requested by either party;
    (c) Cross-examine witnesses;
    (d) Introduce oral or documentary evidence, or both;
    (e) Require that oral testimony be under oath;
    (f) Receive a copy of the transcript of the hearing, and copies of 
all documentary evidence which is introduced at the hearing;
    (g) Compel the presence of witnesses, or the production of 
documents, or both, by subpoena at hearings or at depositions;
    (h) Take depositions, to request the production of documents, to 
serve interrogatories on other parties, and to request admissions; and
    (i) Any other procedural rights under the Administrative Procedure 
Act, 5 U.S.C. 556.




Sec. 900.165   What happens after the hearing?

    (a) Within 30 days of the end of the formal hearing or any post-
hearing briefing schedule established by the ALJ, the ALJ shall send all 
the parties a recommended decision, by certified mail, return receipt 
requested. The recommended decision shall contain the ALJ's findings of 
fact and conclusions of law on all the issues. The recommended decision 
shall also state that the Indian tribe or tribal organization has the 
right to object to the recommended decision.
    (b) If the appeal involves the Department of Health and Human 
Services, the recommended decision shall contain the following 
statement:

    Within 30 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Secretary of 
Health and Human Services under 25 CFR 900.165(b). An appeal to the 
Secretary under 25 CFR 900.165(b) shall be filed at the following 
address: Department of Health and Human Services, 200 Independence Ave. 
S.W., Washington, DC, 20201. You shall serve copies of your notice of 
appeal on the official whose decision is being appealed. You shall 
certify to the Secretary that you have served this copy. If neither 
party files an objection to the recommended decision within 30 days, the 
recommended decision will become final.

    (c) If the appeal involves the Department of the Interior, the 
recommended decision shall contain the following statement:


[[Page 873]]


    Within 30 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Interior Board of 
Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to the IBIA 
under 25 CFR 900.165(c) shall be filed at the following address: Board 
of Indian Appeals, 4015 Wilson Boulevard, Arlington, VA 22203. You shall 
serve copies of your notice of appeal on the Secretary of the Interior, 
and on the official whose decision is being appealed. You shall certify 
to the IBIA that you have served these copies. If neither party files an 
objection to the recommended decision within 30 days, the recommended 
decision will become final.




Sec. 900.166   Is the recommended decision always final?

    No. Any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 30 
days of receiving the recommended decision. Objections shall be served 
on all other parties. The recommended decision shall become final 30 
days after the Indian tribe or tribal organization receives the ALJ's 
recommended decision, unless a written statement of objections is filed 
with the Secretary of Health and Human Services or the IBIA during the 
30-day period. If no party files a written statement of objections 
within 30 days, the recommended decision shall become final.




Sec. 900.167   If an Indian tribe or tribal organization objects to the recommended decision, what will the Secretary of Health and Human Services or the IBIA 
          do?

    (a) The Secretary of Health and Human Services or the IBIA has 20 
days from the date it receives any timely written objections to modify, 
adopt, or reverse the recommended decision. If the Secretary of Health 
and Human Services or the IBIA does not modify or reverse the 
recommended decision during that time, the recommended decision 
automatically becomes final.
    (b) When reviewing the recommended decision, the IBIA or the 
Secretary may consider and decide all issues properly raised by any 
party to the appeal, based on the record.
    (c) The decision of the Secretary or the IBIA shall:
    (1) Be in writing;
    (2) Specify the findings of fact or conclusions of law which are 
modified or reversed;
    (3) Give reasons for the decision, based on the record; and
    (4) State that the decision is final for the Department.




Sec. 900.168   Will an appeal hurt the Indian tribe or tribal organization's position in other contract negotiations?

    No. A pending appeal will not affect or prevent the negotiation or 
award of another contract.




Sec. 900.169   Will the decisions on appeals be available for the public to review?

    Yes. The Secretary shall publish all final decisions from the ALJs, 
the IBIA, and the Secretary of Health and Human Services.

  Appeals of Emergency Reassumption of Self-Determination Contracts or 
Suspensions, Withholding or Delay of Payments Under a Self-Determination 
                                Contract




Sec. 900.170   What happens in the case of emergency reassumption or suspension or withholding or delay of payments?

    (a) This subpart applies when the Secretary gives notice to an 
Indian tribe or tribal organization that the Secretary intends to:
    (1) Immediately rescind a contract or grant and reassume a program; 
or
    (2) Suspend, withhold, or delay payment under a contract.
    (b) When the Secretary advises an Indian tribe or tribal 
organization that the Secretary intends to take an action referred to in 
paragraph (a)(1) of this section, the Secretary shall also notify the 
Deputy Director of the Office of Hearings and Appeals, Department of the 
Interior, 4015 Wilson Boulevard, Arlington, VA 22203.




Sec. 900.171   Will there be a hearing?

    Yes. The Deputy Director of the Office of Hearings and Appeals shall 
appoint an Administrative Law Judge (ALJ) to hold a hearing.
    (a) The hearing shall be held within 10 days of the date of the 
notice referred to in Sec. 900.170 unless the Indian

[[Page 874]]

tribe or tribal organization agrees to a later date.
    (b) If possible, the hearing will be held at the office of the 
Indian tribe or tribal organization. If the hearing is held more than 50 
miles from the office of the Indian tribe or tribal organization, the 
Secretary shall arrange to pay transportation costs and per diem for 
incidental expenses. This will allow for adequate representation of the 
Indian tribe or tribal organization.




Sec. 900.172   What happens after the hearing?

    (a) Within 30 days after the end of the hearing or any post-hearing 
briefing schedule established by the ALJ, the ALJ shall send all parties 
a recommended decision by certified mail, return receipt requested. The 
recommended decision shall contain the ALJ's findings of fact and 
conclusions of law on all the issues. The recommended decision shall 
also state that the Indian tribe or tribal organization has the right to 
object to the recommended decision.
    (b) If the appeal involves the Department of Health and Human 
Services, the recommended decision shall contain the following 
statement:

    Within 15 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Secretary of 
Health and Human Services under 25 CFR 900.165(b). An appeal to the 
Secretary under 25 CFR 900.165(b) shall be filed at the following 
address: Department of Health and Human Services, 200 Independence Ave. 
S.W., Washington, DC 20201. You shall serve copies of your notice of 
appeal on the official whose decision is being appealed. You shall 
certify to the Secretary that you have served this copy. If neither 
party files an objection to the recommended decision within 15 days, the 
recommended decision will become final.

    (c) If the appeal involves the Department of the Interior, the 
recommended decision shall contain the following statement:

    Within 15 days of the receipt of this recommended decision, you may 
file an objection to the recommended decision with the Interior Board of 
Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to the IBIA 
under 25 CFR 900.165(c) shall be filed at the following address: Board 
of Indian Appeals, 4015 Wilson Boulevard, Arlington, VA 22203. You shall 
serve copies of your notice of appeal on the Secretary of the Interior, 
and on the official whose decision is being appealed. You shall certify 
to the IBIA that you have served these copies. If neither party files an 
objection to the recommended decision within 15 days, the recommended 
decision will become final.




Sec. 900.173   Is the recommended decision always final?

    No. Any party to the appeal may file precise and specific written 
objections to the recommended decision, or any other comments, within 15 
days of receiving the recommended decision. You shall serve a copy of 
your objections on the other party. The recommended decision will become 
final 15 days after the Indian tribe or tribal organization receives the 
ALJ's recommended decision, unless a written statement of objections is 
filed with the Secretary of Health and Human Services or the IBIA during 
the 15-day period. If no party files a written statement of objections 
within 15 days, the recommended decision will become final.




Sec. 900.174   If an Indian tribe or tribal organization objects to the recommended decision, what will the Secretary of Health and Human Services or the IBIA 
          do?

    (a) The Secretary or the IBIA has 15 days from the date he/she 
receives timely written objections to modify, adopt, or reverse the 
recommended decision. If the Secretary or the IBIA does not modify or 
reverse the recommended decision during that time, the recommended 
decision automatically becomes final.
    (b) When reviewing the recommended decision, the IBIA or the 
Secretary may consider and decide all issues properly raised by any 
party to the appeal, based on the record.
    (c) The decision of the Secretary or of the IBIA shall:
    (1) Be in writing;
    (2) Specify the findings of fact or conclusions of law which are 
modified or reversed;
    (3) Give reasons for the decision, based on the record; and
    (4) State that the decision is final for the Department.

[[Page 875]]




Sec. 900.175   Will an appeal hurt an Indian tribe or tribal organization's position in other contract negotiations?

    No. A pending appeal will not affect or prevent the negotiation or 
award of another contract.




Sec. 900.176   Will the decisions on appeals be available for the public to review?

    Yes. The Secretary shall publish all final decisions from the ALJs, 
the IBIA, and the Secretary of Health and Human Services.

            Applicability of the Equal Access to Justice Act




Sec. 900.177   Does the Equal Access to Justice Act (EAJA) apply to appeals under this subpart?

    Yes. EAJA claims against the DOI or the DHHS will be heard by the 
IBIA under 43 CFR 4.601-4.619. For DHHS, appeals from the EAJA award 
will be according to 25 CFR 900.165(b).



     Subpart M--Federal Tort Claims Act Coverage General Provisions




Sec. 900.180  What does this subpart cover?

    This subpart explains the applicability of the Federal Tort Claims 
Act (FTCA). This section covers:
    (a) Coverage of claims arising out of the performance of medical-
related functions under self-determination contracts;
    (b) Coverage of claims arising out of the performance of non-
medical-related functions under self-determination contracts; and
    (c) Procedures for filing claims under FTCA.




Sec. 900.181  What definitions apply to this subpart?

    Indian contractor means:
    (1) In California, subcontractors of the California Rural Indian 
Health Board, Inc. or, subject to approval of the IHS Director after 
consultation with the DHHS Office of General Counsel, subcontractors of 
an Indian tribe or tribal organization which are:
    (i) Governed by Indians eligible to receive services from the Indian 
Health Service;
    (ii) Which carry out comprehensive IHS service programs within 
geographically defined service areas; and
    (iii) Which are selected and identified through tribal resolution as 
the local provider of Indian health care services.
    (2) Subject to the approval of the IHS Director after consultation 
with the DHHS Office of General Counsel, Indian tribes and tribal 
organizations which meet in all respects the requirements of the Indian 
Self-Determination Act to contract directly with the Federal Government 
but which choose through tribal resolution to subcontract to carry out 
IHS service programs within geographically defined service areas with 
another Indian tribe or tribal organization which contracts directly 
with IHS.
    (3) Any other contractor that qualifies as an ``Indian contractor'' 
under the Indian Self-Determination Act.




Sec. 900.182  What other statutes and regulations apply to FTCA coverage?

    A number of other statutes and regulations apply to FTCA coverage, 
including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-
2680) and related Department of Justice regulations in 28 CFR part 14.




Sec. 900.183  Do Indian tribes and tribal organizations need to be aware of areas which FTCA does not cover?

    Yes. There are claims against self-determination contractors which 
are not covered by FTCA, claims which may not be pursued under FTCA, and 
remedies that are excluded by FTCA. General guidance is provided below 
as to these matters but is not intended as a definitive description of 
coverage, which is subject to review by the Department of Justice and 
the courts on a case-by-case basis.
    (a) What claims are expressly barred by FTCA and therefore may not 
be made against the United States, an Indian tribe or tribal 
organization? Any claim under 28 U.S.C. 2680, including claims arising 
out of assault, battery, false imprisonment, false arrest, malicious 
prosecution, abuse of process, libel, slander, misrepresentation, 
deceit, or interference with contract rights, unless otherwise 
authorized by 28 U.S.C. 2680(h).

[[Page 876]]

    (b) What claims may not be pursued under FTCA?
    (1) Except as provided in Sec. 900.181(a)(1) and Sec. 900.189, 
claims against subcontractors arising out of the performance of 
subcontracts with a self-determination contractor;
    (2) Claims for on-the-job injuries which are covered by workmen's 
compensation;
    (3) Claims for breach of contract rather than tort claims; or
    (4) Claims resulting from activities performed by an employee which 
are outside the scope of employment.
    (c) What remedies are expressly excluded by FTCA and therefore are 
barred?
    (1) Punitive damages, unless otherwise authorized by 28 U.S.C. 2674; 
and
    (2) Other remedies not permitted under applicable state law.




Sec. 900.184  Is there a deadline for filing FTCA claims?

    Yes. Claims shall be filed within 2 years of the date of accrual. 
(28 U.S.C. 2401).




Sec. 900.185  How long does the Federal government have to process an FTCA claim after the claim is received by the Federal agency, before a lawsuit may be 
          filed?

    Six months.




Sec. 900.186  Is it necessary for a self-determination contract to include any clauses about Federal Tort Claims Act coverage?

    No, it is optional. At the request of Indian tribes and tribal 
organizations, self-determination contracts shall include the following 
clauses to clarify the scope of FTCA coverage:
    (a) The following clause may be used for all contracts:

    For purposes of Federal Tort Claims Act coverage, the contractor and 
its employees (including individuals performing personal services 
contracts with the contractor to provide health care services) are 
deemed to be employees of the Federal government while performing work 
under this contract. This status is not changed by the source of the 
funds used by the contractor to pay the employee's salary and benefits 
unless the employee receives additional compensation for performing 
covered services from anyone other than the contractor.

    (b) The following clause is for IHS contracts only:

    Under this contract, the contractor's employee may be required as a 
condition of employment to provide health services to non-IHS 
beneficiaries in order to meet contractual obligations. These services 
may be provided in either contractor or non-contractor facilities. The 
employee's status for Federal Tort Claims Act purposes is not affected.




Sec. 900.187  Does FTCA apply to a self-determination contract if FTCA is not referenced in the contract?

    Yes.




Sec. 900.188  To what extent shall the contractor cooperate with the Federal government in connection with tort claims arising out of the contractor's 
          performance?

    (a) The contractor shall designate an individual to serve as tort 
claims liaison with the Federal government.
    (b) As part of the notification required by 28 U.S.C. 2679(c), the 
contractor shall notify the Secretary immediately in writing of any tort 
claim (including any proceeding before an administrative agency or 
court) filed against the contractor or any of its employees that relates 
to performance of a self-determination contract or subcontract.
    (c) The contractor, through its designated tort claims liaison, 
shall assist the appropriate Federal agency in preparing a 
comprehensive, accurate, and unbiased report of the incident so that the 
claim may be properly evaluated. This report should be completed within 
60 days of notification of the filing of the tort claim. The report 
should be complete in every significant detail and include as 
appropriate:
    (1) The date, time and exact place of the accident or incident;
    (2) A concise and complete statement of the circumstances of the 
accident or incident;
    (3) The names and addresses of tribal and/or Federal employees 
involved as participants or witnesses;
    (4) The names and addresses of all other eyewitnesses;
    (5) An accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;

[[Page 877]]

    (6) A statement as to whether any person involved was cited for 
violating a Federal, State or tribal law, ordinance, or regulation;
    (7) The contractor's determination as to whether any of its 
employees (including Federal employees assigned to the contractor) 
involved in the incident giving rise to the tort claim were acting 
within the scope of their employment in carrying out the contract at the 
time the incident occurred;
    (8) Copies of all relevant documentation, including available police 
reports, statements of witnesses, newspaper accounts, weather reports, 
plats and photographs of the site or damaged property, such as may be 
necessary or useful for purposes of claim determination by the Federal 
agency; and
    (9) Insurance coverage information, copies of medical bills, and 
relevant employment records.
    (d) The contractor shall cooperate with and provide assistance to 
the U.S. Department of Justice attorneys assigned to defend the tort 
claim, including, but not limited to, case preparation, discovery, and 
trial.
    (e) If requested by the Secretary, the contractor shall make an 
assignment and subrogation of all the contractor's rights and claims 
(except those against the Federal government) arising out of a tort 
claim against the contractor.
    (f) If requested by the Secretary, the contractor shall authorize 
representatives of the Secretary to settle or defend any claim and to 
represent the contractor in or take charge of any action. If the Federal 
government undertakes the settlement or defense of any claim or action 
the contractor shall provide all reasonable additional assistance in 
reaching a settlement or asserting a defense.




Sec. 900.189  Does this coverage extend to subcontractors of self-determination contracts?

    No. Subcontractors or subgrantees providing services to a Public Law 
93-638 contractor or grantee are generally not covered. The only 
exceptions are Indian contractors such as those under subcontract with 
the California Rural Indian Health Board to carry out IHS programs in 
geographically defined service areas in California and personal services 
contracts under Sec. 900.193 (for Sec. 900.183(b)(1)) or Sec. 900.183(b) 
(for Sec. 900.190).

                         Medical-Related Claims




Sec. 900.190  Is FTCA the exclusive remedy for a tort claim for personal injury or death resulting from the performance of a self-determination contract?

    Yes, except as explained in Sec. 900.183(b). No claim may be filed 
against a self-determination contractor or employee for personal injury 
or death arising from the performance of medical, surgical, dental, or 
related functions by the contractor in carrying out self-determination 
contracts under the Act. Related functions include services such as 
those provided by nurses, laboratory and x-ray technicians, emergency 
medical technicians and other health care providers including 
psychologists and social workers. All such claims shall be filed against 
the United States and are subject to the limitations and restrictions of 
the FTCA.




Sec. 900.191  Are employees of self-determination contractors providing health services under the self-determination contract protected by FTCA?

    Yes. For the purpose of Federal Tort Claims Act coverage, an Indian 
tribe or tribal organization and its employees performing medical-
related functions under a self-determination contract are deemed a part 
of the Public Health Service if the employees are acting within the 
scope of their employment in carrying out the contract.




Sec. 900.192  What employees are covered by FTCA for medical-related claims?

    (a) Permanent employees;
    (b) Temporary employees;
    (c) Persons providing services without compensation in carrying out 
a contract;
    (d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the 
services are provided in facilities not owned by the contractor); and

[[Page 878]]

    (e) Federal employees assigned to the contract.




Sec. 900.193  Does FTCA coverage extend to individuals who provide health care services under a personal services contract providing services in a facility that 
          is owned, operated, or constructed under the jurisdiction of 
          the IHS?

    Yes. The coverage extends to individual personal services 
contractors providing health services in such a facility, including a 
facility owned by an Indian tribe or tribal organization but operated 
under a self-determination contract with IHS.




Sec. 900.194  Does FTCA coverage extend to services provided under a staff privileges agreement with a non-IHS facility where the agreement requires a health 
          care practitioner to provide reciprocal services to the 
          general population?

    Yes. Those services are covered, as long as the contractor's health 
care practitioners do not receive additional compensation from a third 
party for the performance of these services and they are acting within 
the scope of their employment under a self-determination contract. 
Reciprocal services include:
    (a) Cross-covering other medical personnel who temporarily cannot 
attend their patients;
    (b) Assisting other personnel with surgeries or other medical 
procedures;
    (c) Assisting with unstable patients or at deliveries; or
    (d) Assisting in any patient care situation where additional 
assistance by health care personnel is needed.




Sec. 900.195  Does FTCA coverage extend to the contractor's health care practitioners providing services to private patients on a fee-for-services basis when 
          such personnel (not the self-determination contractor) receive 
          the fee?

    No.




Sec. 900.196  Do covered services include the conduct of clinical studies and investigations and the provision of emergency services, including the operation of 
          emergency motor vehicles?

    Yes, if the services are provided in carrying out a self-
determination contract. (An emergency motor vehicle is a vehicle, 
whether government, contractor, or employee-owned, used to transport 
passengers for medical services.)




Sec. 900.197  Does FTCA cover employees of the contractor who are paid by the contractor from funds other than those provided through the self-determination 
          contract?

    Yes, as long as the services out of which the claim arose were 
performed in carrying out the self-determination contract.




Sec. 900.198  Are Federal employees assigned to a self-determination contractor under the Intergovernmental Personnel Act or detailed under section 214 of the 
          Public Health Service Act covered to the same extent that they 
          would be if working directly for a Federal agency?

    Yes.




Sec. 900.199  Does FTCA coverage extend to health care practitioners to whom staff privileges have been extended in contractor health care facilities operated 
          under a self-determination contract on the condition that such 
          practitioner provide health services to IHS beneficiaries 
          covered by FTCA?

    Yes, health care practitioners with staff privileges in a facility 
operated by a contractor are covered when they perform services to IHS 
beneficiaries. Such personnel are not covered when providing services to 
non-IHS beneficiaries.




Sec. 900.200  May persons who are not Indians or Alaska Natives assert claims under FTCA?

    Yes. Non-Indian individuals served under the contract whether or not 
on a fee-for-service basis, may assert claims under this subpart.

[[Page 879]]

               Procedure for Filing Medical-Related Claims




Sec. 900.201  How should claims arising out of the performance of medical-related functions be filed?

    Claims should be filed on Standard Form 95 (Claim for Damage, Injury 
or Death) or by submitting comparable written information (including a 
definite amount of monetary damage claimed) with the Chief, PHS Claims 
Branch, Room 18-20, Parklawn Building, 5600 Fishers Lane, Rockville, MD 
20857, or at such other address as shall have been provided to the 
contractor in writing.




Sec. 900.202  What should a self-determination contractor or a contractor's employee do on receiving such a claim?

    They should immediately forward the claim to the PHS Claims Branch 
at the address indicated in Sec. 900.201 and notify the contractor's 
tort claims liaison.




Sec. 900.203  If the contractor or contractor's employee receives a summons and/or a complaint alleging a tort covered by FTCA, what should the contractor do?

    As part of the notification required by 28 U.S.C. 2679(c), the 
contractor should immediately inform the Chief, Litigation Branch, 
Business and Administrative Law Division, Office of General Counsel, 
Department of Health and Human Services, 330 Independence Avenue SW., 
Room 5362, Washington, DC 20201, and the contractor's tort claims 
liaison, and forward the following materials:
    (a) Four copies of the claimant's medical records of treatment, 
inpatient and outpatient, and any related correspondence, as well as 
reports of consultants;
    (b) A narrative summary of the care and treatment involved;
    (c) The names and addresses of all personnel who were involved in 
the care and treatment of the claimant;
    (d) Any comments or opinions that the employees who treated the 
claimant believe to be pertinent to the allegations contained in the 
claim; and
    (e) Other materials identified in Sec. 900.188(c).

                       Non-Medical Related Claims




Sec. 900.204  Is FTCA the exclusive remedy for a non-medical related tort claim arising out of the performance of a self-determination contract?

    Yes. Except as explained in Sec. 900.183(b), no claim may be filed 
against a self-determination contractor or employee based upon 
performance of non-medical-related functions under a self-determination 
contract. Claims of this type must be filed against the United States 
under FTCA.




Sec. 900.205   To what non-medical-related claims against self-determination contractors does FTCA apply?

    It applies to:
    (a) All tort claims arising from the performance of self-
determination contracts under the authority of the Act on or after 
October 1, 1989; and
    (b) Any tort claims first filed on or after October 24, 1989, 
regardless of when the incident which is the basis of the claim 
occurred.




Sec. 900.206   What employees are covered by FTCA for non-medical-related claims?

    (a) Permanent employees;
    (b) Temporary employees;
    (c) Persons providing services without compensation in carrying out 
a contract;
    (d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the 
services are provided in facilities not owned by the contractor); and
    (e) Federal employees assigned to the contract.




Sec. 900.207   How are non-medical related tort claims and lawsuits filed for IHS?

    Non-medical-related tort claims and lawsuits arising out of the 
performance of self-determination contracts with the Indian Health 
Service should be filed in the manner described in Sec. 900.201 (for 
both Sec. 900.207 and Sec. 900.208).

[[Page 880]]




Sec. 900.208   How are non-medical related tort claims and lawsuits filed for DOI?

    Non-medical-related claims arising out of the performance of self-
determination contracts with the Secretary of the Interior should be 
filed in the manner described in Sec. 900.201 with the Assistant 
Solicitor, Procurement and Patents, Office of the Solicitor, Department 
of the Interior, Room 6511, 1849 C Street NW., Washington, DC 20240.




Sec. 900.209   What should a self-determination contractor or contractor's employee do on receiving a non-medical related tort claim?

    (a) If the contract is with DHHS, they should immediately forward 
the claim to the PHS Claims Branch at the address indicated in 
Sec. 900.201 and notify the contractor's tort claims liaison.
    (b) If the contract is with DOI, they should immediately notify the 
Assistant Solicitor, Procurement and Patents, Office of the Solicitor, 
Department of the Interior, Room 6511, 1849 C Street N.W., Washington, 
DC 20240.




Sec. 900.210   If the contractor or contractor's employee receives a summons and/or complaint alleging a non-medical related tort covered by FTCA, what should 
          an Indian tribe or tribal organization do?

    (a) If the contract is with the DHHS, they should immediately inform 
the Chief, Litigation Branch, Business and Administrative Law Division, 
Office of General Counsel, Department of Health and Human Services, 330 
Independence Avenue S.W., Room 5362, Washington, DC 20201 and the 
contractor's tort claims liaison.
    (b) If the contract is with the Department of the Interior, they 
should immediately notify the Assistant Solicitor, Procurement and 
Patents, Office of the Solicitor, Department of the Interior, Room 6511, 
1849 C Street N.W., Washington, DC 20240, and the contractor's tort 
claims liaison.



                 Subpart N--Post-Award Contract Disputes




Sec. 900.215   What does this subpart cover?

    (a) This subpart covers:
    (1) All HHS and DOI self-determination contracts, including 
construction contracts; and
    (2) All disputes regarding an awarding official's decision relating 
to a self-determination contract.
    (b) This subpart does not cover the decisions of an awarding 
official that are covered under subpart L.




Sec. 900.216   What other statutes and regulations apply to contract disputes?

    (a) The Contract Disputes Act of 1978 (CDA), Public Law 95-563 (41 
U.S.C. 601 as amended);
    (b) If the matter is submitted to the Interior Board of Contract 
Appeals, 43 CFR 4.110-126; and
    (c) The Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412 
and regulations at 43 CFR 4.601 through 4.619 (DOI) and 45 CFR 13 
(DHHS).




Sec. 900.217   Is filing a claim under the CDA our only option for resolving post-award contract disputes?

    No. The Federal government attempts to resolve all contract disputes 
by agreement at the awarding official's level. These are alternatives to 
filing a claim under the CDA:
    (a) Before issuing a decision on a claim, the awarding official 
should consider using informal discussions between the parties, assisted 
by individuals who have not substantially participated in the matter, to 
aid in resolving differences.
    (b) In addition to filing a CDA claim, or instead of filing a CDA 
claim, the parties may choose to use an alternative dispute resolution 
mechanism, pursuant to the provisions of the Administrative Dispute 
Resolution Act, Public Law 101-552, as amended, 5 U.S.C. 581 et seq., or 
the options listed in section 108(1)(b)(12) of the Indian Self-
Determination Act, as applicable.

[[Page 881]]




Sec. 900.218   What is a claim under the CDA?

    (a) A claim is a written demand by one of the contracting parties, 
asking for one or more of the following:
    (1) Payment of a specific sum of money under the contract;
    (2) Adjustment or interpretation of contract terms; or
    (3) Any other claim relating to the contract.
    (b) However, an undisputed voucher, invoice, or other routing 
request for payment is not a claim under the CDA. A voucher, invoice, or 
routing request for payment may be converted into a CDA claim if:
    (1) It is disputed as to liability or amount; or
    (2) It is not acted upon in a reasonable time and written notice of 
the claim is given to the awarding official by the senior official 
designated in the contract.




Sec. 900.219   How does an Indian tribe, tribal organization, or Federal agency submit a claim?

    (a) An Indian tribe or tribal organization shall submit its claim in 
writing to the awarding official. The awarding official shall document 
the contract file with evidence of the date the claim was received.
    (b) A Federal agency shall submit its claim in writing to the 
contractor's senior official, as designated in the contract.




Sec. 900.220   Does it make a difference whether the claim is large or small?

    Yes. The Contract Disputes Act requires that an Indian tribe or 
tribal organization making a claim for more than $100,000 shall certify 
that:
    (a) The claim is made in good faith,
    (b) Supporting documents or data are accurate and complete to the 
best of the Indian tribe or tribal organization's knowledge and belief;
    (c) The amount claimed accurately reflects the amount believed to be 
owed by the Federal government; and
    (d) The person making the certification is authorized to do so on 
behalf of the Indian tribe or tribal organization.




Sec. 900.221   What happens next?

    (a) If the parties do not agree on a settlement, the awarding 
official will issue a written decision on the claim.
    (b) The awarding official shall always give a copy of the decision 
to the Indian tribe or tribal organization by certified mail, return 
receipt requested, or by any other method which provides a receipt.




Sec. 900.222   What goes into a decision?

    A decision shall:
    (a) Describe the claim or dispute;
    (b) Refer to the relevant terms of the contract;
    (c) Set out the factual areas of agreement and disagreement;
    (d) Set out the actual decision, based on the facts, and outline the 
reasoning which supports the decision; and
    (e) Contain the following language:

    This is a final decision. You may appeal this decision to the 
Interior Board of Contract Appeals (IBCA), U.S. Department of the 
Interior, 4015 Wilson Boulevard, Arlington, VA 22203. If you decide to 
appeal, you shall, within 90 days from the date you receive this 
decision, mail or otherwise furnish written notice to the IBCA and 
provide a copy to the individual from whose decision the appeal is 
taken. The notice shall indicate that an appeal is intended, and refer 
to the decision and contract number. Instead of appealing to the IBCA, 
you may bring an action in the U.S. Court of Federal Claims or in the 
United States District Court within 12 months of the date you receive 
this notice.




Sec. 900.223   When does an Indian tribe or tribal organization get the decision?

    (a) If the claim is for more than $100,000, the awarding official 
shall issue the decision within 60 days of the day he or she receives 
the claim. If the awarding official cannot issue a decision that 
quickly, he or she shall tell you when the decision will be issued.
    (b) If the claim is for $100,000 or less, and you want a decision 
within 60 days, you shall advise the awarding official in writing that 
you want a decision within that period. If you advise the awarding 
official in writing that you do want a decision within 60 days, the 
awarding official shall issue the decision within 60 days of the day he 
or she receives your written notice.

[[Page 882]]

    (c) If your claim is for $100,000 or less and you do not advise the 
awarding official that you want a decision within 60 days, or if your 
claim exceeds $100,000 and the awarding official has notified you of the 
time within which a decision will be issued, the awarding official shall 
issue a decision within a reasonable time. What is ``reasonable'' 
depends upon the size and complexity of your claim, and upon the 
adequacy of the information you have given to the awarding official in 
support of your claim.




Sec. 900.224   What happens if the decision does not come within that time?

    If the awarding official does not issue a decision within the time 
required under Sec. 900.223, the Indian tribe or tribal organization may 
treat the delay as though the awarding official has denied the claim, 
and proceed according to Sec. 900.222(e),




Sec. 900.225   Does an Indian tribe or tribal organization get paid immediately if the awarding official decides in its favor?

    Yes. Once the awarding official decides that money should be paid 
under the contract, the amount due, minus any portion already paid, 
should be paid as promptly as possible, without waiting for either party 
to file an appeal. Any payment which is made under this subsection will 
not affect any other rights either party might have. In addition, it 
will not create a binding legal precedent as to any future payments.




Sec. 900.226   What rules govern appeals of cost disallowances?

    In any appeal involving a disallowance of costs, the Board of 
Contract Appeals will give due consideration to the factual 
circumstances giving rise to the disallowed costs, and shall seek to 
determine a fair result without rigid adherence to strict accounting 
principles. The determination of allowability shall assure fair 
compensation for the work or service performed, using cost and 
accounting data as guides, but not rigid measures, for ascertaining fair 
compensation.




Sec. 900.227   Can the awarding official change the decision after it has been made?

    (a) The decision of the awarding official is final and conclusive, 
and not subject to review by any forum, tribunal or government agency, 
unless an appeal or suit is timely commenced as authorized by the 
Contract Disputes Act. Once the decision has been made, the awarding 
official may not change it, except by agreement of the parties, or under 
the following limited circumstances:
    (1) If evidence is discovered which could not have been discovered 
through due diligence before the awarding official issued the decision;
    (2) If the awarding official learns that there has been fraud, 
misrepresentation, or other misconduct by a party;
    (3) If the decision is beyond the scope of the awarding official's 
authority;
    (4) If the claim has been satisfied, released or discharged; or
    (5) For any other reason justifying relief from the decision.
    (b) Nothing in this subpart shall be interpreted to discourage 
settlement discussions or prevent settlement of the dispute at any time.
    (c) If a decision is withdrawn and a new decision is issued that is 
not acceptable to the contractor, the contractor may proceed with the 
appeal based on the new decision. If no new decision is issued, the 
contractor may proceed under Sec. 900.224.
    (d) If an appeal or suit is filed, the awarding official may modify 
or withdraw his or her final decision.




Sec. 900.228   Is an Indian tribe or tribal organization entitled to interest if it wins its claim?

    Yes. If an Indian tribe or tribal organization wins the claim, it 
will be entitled to interest on the amount of the award. The interest 
will be calculated from the date the awarding official receives the 
claim until the day it is paid. The interest rate will be the rate which 
the Secretary of the Treasury sets for the Renegotiation Board under the 
Renegotiation Act of 1951, Public Law 92-41, 26 U.S.C. 1212 and 26 
U.S.C. 7447.

[[Page 883]]




Sec. 900.229   What role will the awarding official play during an appeal?

    (a) The awarding official shall provide any data, documentation, 
information or support required by the IBCA for use in deciding a 
pending appeal.
    (b) Within 30 days of receiving an appeal or learning that an appeal 
has been filed, the awarding official shall assemble a file which 
contains all the documents which are pertinent to the appeal, including:
    (1) The decision and findings of fact from which the appeal is 
taken;
    (2) The contract, including specifications and pertinent 
modifications, plans and drawings;
    (3) All correspondence between the parties which relates to the 
appeal, including the letter or letters of claims in response to which 
the decision was issued;
    (4) Transcripts of any testimony taken during the course of the 
proceedings, and affidavits or statements of any witnesses on the matter 
in dispute, which were made before the filing of the notice of appeal 
with the IBCA; and
    (5) Any additional information which may be relevant.




Sec. 900.230  What is the effect of a pending appeal?

    (a) Indian tribes and tribal organizations shall continue 
performance of a contract during the appeal of any claims to the same 
extent they would had there been no dispute.
    (b) A pending dispute will not affect or bar the negotiation or 
award of any subsequent contract or negotiation between the parties.



                    Subpart O--Conflicts of Interest




Sec. 900.231  What is an organizational conflict of interest?

    An organizational conflict of interest arises when there is a direct 
conflict between the financial interests of the contracting Indian tribe 
or tribal organization and:
    (a) The financial interests of beneficial owners of Indian trust 
resources;
    (b) The financial interests of the United States relating to trust 
resources, trust acquisitions, or lands conveyed or to be conveyed 
pursuant to the Alaska Native Claims Settlement Act 43 U.S.C. 1601 et 
seq.; or
    (c) An express statutory obligation of the United States to third 
parties. This section only applies if the conflict was not addressed 
when the contract was first negotiated. This section only applies where 
the financial interests of the Indian tribe or tribal organization are 
significant enough to impair the Indian tribe or tribal organization's 
objectivity in carrying out the contract, or a portion of the contract.




Sec. 900.232  What must an Indian tribe or tribal organization do if an organizational conflict of interest arises under a contract?

    This section only applies if the conflict was not addressed when the 
contract was first negotiated. When an Indian tribe or tribal 
organization becomes aware of an organizational conflict of interest, 
the Indian tribe or tribal organization must immediately disclose the 
conflict to the Secretary.




Sec. 900.233  When must an Indian tribe or tribal organization regulate its employees or subcontractors to avoid a personal conflict of interest?

    An Indian tribe or tribal organization must maintain written 
standards of conduct to govern officers, employees, and agents 
(including subcontractors) engaged in functions related to the 
management of trust assets.




Sec. 900.234  What types of personal conflicts of interest involving tribal officers, employees or subcontractors would have to be regulated by an Indian tribe?

    The Indian tribe or tribal organization would need a tribally-
approved mechanism to ensure that no officer, employee, or agent 
(including a subcontractor) of the Indian tribe or tribal organization 
reviews a trust transaction in which that person has a financial or 
employment interest that conflicts with that of the trust beneficiary, 
whether the tribe or an allottee. Interests arising from membership in, 
or employment by, an Indian tribe or rights to share in a tribal claim 
need not be regulated.

[[Page 884]]




Sec. 900.235  What personal conflicts of interest must the standards of conduct regulate?

    The standards must prohibit an officer, employee, or agent 
(including a subcontractor) from participating in the review, analysis, 
or inspection of trust transactions involving an entity in which such 
persons have a direct financial interest or an employment relationship. 
It must also prohibit such officers, employees, or agents from accepting 
any gratuity, favor, or anything of more than nominal value, from a 
party (other than the Indian tribe) with an interest in the trust 
transactions under review. Such standards must also provide for 
sanctions or remedies for violation of the standards.




Sec. 900.236  May an Indian tribe elect to negotiate contract provisions on conflict of interest to take the place of this regulation?

    Yes. An Indian tribe and the Secretary may agree to contract 
provisions, concerning either personal or organizational conflicts, that 
address the issues specific to the program and activities contracted in 
a manner that provides equivalent protection against conflicts of 
interest to these regulations. Agreed-upon contract provisions shall be 
followed, rather than the related provisions of this regulation. For 
example, the Indian tribe and the Secretary may agree that using the 
Indian tribe's own written code of ethics satisfies the objectives of 
the personal conflicts provisions of this regulation, in whole or in 
part.



           Subpart P--Retrocession and Reassumption Procedures




Sec. 900.240  What does retrocession mean?

    A retrocession means the return to the Secretary of a contracted 
program, in whole or in part, for any reason, before the expiration of 
the term of the contract.




Sec. 900.241  Who may retrocede a contract, in whole or in part?

    An Indian tribe or tribal organization authorized by an Indian tribe 
may retrocede a contract.




Sec. 900.242  What is the effective date of retrocession?

    The retrocession is effective on the date which is the earliest date 
among:
    (a) One year from the date of the Indian tribe or tribal 
organization's request;
    (b) The date the contract expires; or
    (c) A mutually agreed-upon date.




Sec. 900.243  What effect will an Indian tribe or tribal organization's retrocession have on its rights to contract?

    An Indian tribe or tribal organization's retrocession shall not 
negatively affect:
    (a) Any other contract to which it is a party;
    (b) Any other contracts it may request; and
    (c) Any future request by the Indian tribe or tribal organization to 
contract for the same program.




Sec. 900.244  Will an Indian tribe or tribal organization's retrocession adversely affect funding available for the retroceded program?

    No. The Secretary shall provide not less than the same level of 
funding that would have been available if there had been no 
retrocession.




Sec. 900.245  What obligation does the Indian tribe or tribal organization have with respect to returning property that was used in the operation of the 
          retroceded program?

    On the effective date of any retrocession, the Indian tribe or 
tribal organization shall, at the request of the Secretary, deliver to 
the Secretary all requested property and equipment provided under the 
contract which have a per item current fair market value, less the cost 
of improvements borne by the Indian tribe or tribal organization, in 
excess of $5,000 at the time of the retrocession.




Sec. 900.246  What does reassumption mean?

    Reassumption means rescission, in whole or in part, of a contract 
and assuming or resuming control or operation of the contracted program 
by the Secretary without consent of the Indian tribe or tribal 
organization. There

[[Page 885]]

are two types of reassumption: emergency and non-emergency.




Sec. 900.247  Under what circumstances is a reassumption considered an emergency instead of non-emergency reassumption?

    (a) A reassumption is considered an emergency reassumption if an 
Indian tribe or tribal organization fails to fulfill the requirements of 
the contract and this failure poses:
    (1) An immediate threat of imminent harm to the safety of any 
person; or
    (2) Imminent substantial and irreparable harm to trust funds, trust 
lands, or interest in such lands.
    (b) A reassumption is considered a non-emergency reassumption if 
there has been:
    (1) A violation of the rights or endangerment of the health, safety, 
or welfare of any person; or
    (2) Gross negligence or mismanagement in the handling or use of:
    (i) Contract funds;
    (ii) Trust funds;
    (iii) Trust lands; or
    (iv) Interests in trust lands under the contract.




Sec. 900.248  In a non-emergency reassumption, what is the Secretary required to do?

    The Secretary must:
    (a) Notify the Indian tribes or tribal organizations served by the 
contract and the contractor in writing by certified mail of the details 
of the deficiencies in contract performance;
    (b) Request specified corrective action to be taken within a 
reasonable period of time, which in no case may be less than 45 days; 
and
    (c) Offer and provide, if requested, the necessary technical 
assistance and advice to assist the contractor to overcome the 
deficiencies in contract performance. The Secretary may also make a 
grant for the purpose of obtaining such technical assistance as provided 
in section 103 of the Act.




Sec. 900.249  What happens if the contractor fails to take corrective action to remedy the contract deficiencies identified in the notice?

    The Secretary shall provide a second written notice by certified 
mail to the Indian tribes or tribal organizations served by the contract 
and the contractor that the contract will be rescinded, in whole or in 
part.




Sec. 900.250  What shall the second written notice include?

    The second written notice shall include:
    (a) The intended effective date of the reassumption;
    (b) The details and facts supporting the intended reassumption; and
    (c) Instructions that explain the Indian tribe or tribal 
organization's right to a formal hearing within 30 days of receipt of 
the notice.




Sec. 900.251  What is the earliest date on which the contract will be rescinded in a non-emergency reassumption?

    The contract will not be rescinded by the Secretary before the 
issuance of a final decision in any administrative hearing or appeal.




Sec. 900.252  In an emergency reassumption, what is the Secretary required to do?

    (a) Immediately rescind, in whole or in part, the contract;
    (b) Assume control or operation of all or part of the program; and
    (c) Give written notice to the contractor and the Indian tribes or 
tribal organizations served.




Sec. 900.253  What shall the written notice include?

    The written notice shall include the following:
    (a) A detailed statement of the findings which support the 
Secretary's determination;
    (b) A statement explaining the contractor's right to a hearing on 
the record under Sec. 900.160 and Sec. 900.161 within 10 days of the 
emergency reassumption or such later date as the contractor may approve;
    (c) An explanation that the contractor may be reimbursed for actual 
and reasonable ``wind up costs'' incurred after the effective date of 
the rescission; and
    (d) A request for the return of property, if any.

[[Page 886]]



Sec. 900.254  May the contractor be reimbursed for actual and reasonable ``wind up costs'' incurred after the effective date of rescission?


    Yes.




Sec. 900.255  What obligation does the Indian tribe or tribal organization have with respect to returning property that was used in the operation of the 
          rescinded contract?

    On the effective date of any rescission, the Indian tribe or tribal 
organization shall, at the request of the Secretary, deliver to the 
Secretary all property and equipment provided under the contract which 
has a per item current fair market value, less the cost of improvements 
borne by the Indian tribe or tribal organization, in excess of $5,000 at 
the time of the retrocession.




Sec. 900.256  Will a reassumption adversely affect funding available for the reassumed program?

    No. The Secretary shall provide at least the same level of funding 
that would have been provided if there had been no reassumption.

[[Page 887]]



                              CHAPTER VI--






  OFFICE OF THE ASSISTANT SECRETARY, INDIAN AFFAIRS, DEPARTMENT OF THE 
                                INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
1000      [Reserved]
1001            Self-Governance Program.....................         888



[[Page 888]]



PART 1000--[RESERVED]






PART 1001--SELF-GOVERNANCE PROGRAM--Table of Contents




Sec.
1001.1  Purpose.
1001.2  Applicant eligibility.
1001.3  Priority ranking for negotiations.
1001.4  Application review and approval.
1001.5  Application review and selection process for negotiations for 
          funding agreements.
1001.6  Submitting applications.
1001.7  Availability, amount, and number of planning and negotiation 
          grants.
1001.8  Selection criteria for tribes/consortia to receive a negotiation 
          grant.
1001.9  Selection criteria for tribes/consortia seeking advance planning 
          grant funding.
1001.10  Selection criteria for other planning and negotiating financial 
          assistance.

    Authority: 25 U.S.C. 450 note, 458aa-458gg.

    Source: 60 FR 8554, Feb. 15, 1995, unless otherwise noted.



Sec. 1001.1  Purpose.

    The purpose of this rule is to establish the process for tribes to 
apply for entry into the Self-Governance program and to establish the 
selection criteria by which the Department will identify eligible tribes 
and select tribes to begin the negotiations process.



Sec. 1001.2  Applicant eligibility.

    Any tribe or consortium of tribes seeking inclusion in the applicant 
pool must meet the following eligibility criteria:
    (a) Be a federally recognized tribe or a consortium of federally 
recognized tribes as defined in Public Law 93-638.
    (b) Document, with an official action of the tribal governing body, 
a formal request to enter negotiations with the Department of Interior 
(Department) under the Tribal Self-Governance Act authority. In the case 
of a consortium of tribes, the governing body of each participating 
tribe must authorize participation by an official action by the tribal 
governing body.
    (c) Demonstrate financial stability and financial management 
capability by furnishing organization-wide single audit reports as 
prescribed by Public Law 96-502, the Single Audit Act of 1984, for the 
previous three years. These audits must not contain material audit 
exceptions. In the case of tribal consortiums, each signatory to the 
agreement must meet this requirement. Non-signatory tribes participating 
in the consortium do not have to meet this requirement.
    (d) Successfully complete the planning phase for self-governance. A 
final planning report must be submitted which demonstrates that the 
tribe has conducted--
    (1) Legal and budgetary research; and
    (2) Internal tribal government and organizational planning.
    (e) To be included in the applicant pool, tribes or tribal 
consortiums may submit their applications at any time. The application 
should state which year the tribe desires to enter negotiations.



Sec. 1001.3  Priority ranking for negotiations.

    In addition to the eligibility criteria identified above, a tribe or 
consortium of tribes seeking priority ranking for negotiations must 
submit a description of the efforts of the tribe or consortium to seek 
to enter negotiations and/or prepare for operations under the self-
governance option. This narrative should identify any activities that 
the tribe has pursued, carefully identifying and documenting the dates 
involved, including, but not limited to, the following:
    (a) Prior planning activities related to self-governance, noting the 
source of funding for the planning activity and whether or not it was 
sanctioned by the Office of Self-Governance (OSG), including 
documentation as applicable.
    (b) Prior efforts to secure planning and/or negotiation grants.
    (c) Meetings with the OSG or other Departmental offices in which the 
tribe expressed an interest in participating in the Self-Governance 
Project.
    (d) Correspondence between the tribe and the Department in which the 
tribe has expressed an interest in participating in the Self-Governance 
Project.
    (e) All actions of the tribal governing body related to 
participating in the self-governance option.

[[Page 889]]



Sec. 1001.4  Application review and approval.

    Upon receipt of an application, the OSG will review the package and 
determine whether or not it is complete. Upon determination that it is 
complete, the name of the tribe or consortium will be included in the 
official applicant pool. Incomplete submissions will be returned with 
the deficiencies identified. Revised applications may be resubmitted for 
consideration at any time.



Sec. 1001.5  Application review and selection process for negotiations for funding agreements.

    Upon acceptance into the applicant pool, the OSG will assign to each 
tribe or consortium a ranking relative to other applicants based upon 
the date the OSG receives the complete application package. This ranking 
will constitute a master list that will be maintained and updated on a 
continuous basis from year to year. When receipt dates are the same for 
two or more applications, several other factors will be considered in 
determining the placement of the tribe or consortium on the list. These 
factors are identified in priority order as follows:
    (a) Designation by the Congress through report language that a tribe 
should be considered for participation. These designations will be 
considered based upon the actual language of the report.
    (b) Documentation of OSG sanctioning of the tribe's self-governance 
planning and subsequent evidence of actual planning by the tribe.
    (c) Submission of a completed planning or negotiation grant 
application in the previous year.
    (d) A signed agreement pursuant to the Indian Health Service (IHS) 
self-governance project.
    (e) Receipt of a planning grant awarded by the IHS.



Sec. 1001.6  Submitting applications.

    (a) Applications for inclusion in the applicant pool will be 
accepted on an on-going basis.
    (b) Applications may be mailed or hand-delivered.
    (c) Applications for negotiations in 1996 that are mailed must be 
postmarked no later than May 16, 1995.
    (d) Applications must be sent to: Director, Office of Self 
Governance, Department of the Interior, 1849 C Street, NW., MIB RM/MS-
2548, Washington, DC 20240.



Sec. 1001.7  Availability, amount, and number of planning and negotiation grants.

    (a) What is the purpose of this section? This section describes how 
to apply for planning and negotiation grants authorized by section 
402(d) of the Act to help meet tribal costs incurred:
    (1) In meeting the planning phase requirement of Pub. L. 103-413, 
including planning to negotiate non-BIA programs, services, functions 
and activities; and
    (2) In conducting negotiations.
    (b) What types of grants are available? Three categories of grants 
may be available:
    (1) Negotiation grants for tribes/consortia selected from the 
applicant pool as described in Sec. 1001.5 of these regulations;
    (2) Planning grants for tribes/consortia requiring advance funding 
to meet the planning phase requirement of Pub. L. 103-413; and
    (3) Financial assistance for tribes/consortia to plan for 
negotiating for non-BIA programs, services, functions and activities, as 
described in Sec. 1001.10.
    (c) Will grants always be made available to meet the planning phase 
requirement as described in section 402(d) of Pub. L. 103-413? No. 
Grants to cover some or all of the planning costs that a tribe/
consortium may incur may be made available depending upon the 
availability of funds appropriated by Congress. We will publish notice 
of availability of grants in the Federal Register as described in this 
section.
    (d) May a tribe use its own resources to meet its planning and 
negotiation expenses in preparation for entering into self-governance? 
Yes. A tribe/consortium may use its own resources to meet these costs. 
Receiving a grant is not necessary to meet the planning

[[Page 890]]

phase requirement of the Act or to negotiate a compact and annual 
funding agreement.
    (e) What happens if there are insufficient funds to meet the 
anticipated tribal requests for planning and negotiation grants in any 
given year? If appropriated funds are available but insufficient to meet 
the total requests from tribes/consortia, we will give first priority to 
those that have been selected from the applicant pool to negotiate an 
annual funding agreement. We will give second priority to tribes/
consortia that require advance funds to meet the planning requirement 
for entry into the self-governance program. We will give third priority 
to tribes/consortia that require negotiation/planning funds to negotiate 
for DOI non-BIA programs.
    (f) How many grants will the Department make each year and what 
funding will be available? The number and size of grants awarded each 
year will depend on Congressional appropriations and tribal interest. 
Each year, we will publish a notice in the Federal Register which 
provides relevant details about the application process, including: The 
funds available, timeframes, and requirements for negotiation and 
advance planning specified in this part.

[61 FR 17831, Apr. 23, 1996]



Sec. 1001.8  Selection criteria for tribes/consortia to receive a negotiation grant.

    (a) Who may be selected to receive a negotiation grant? Any tribe/
consortium that has been accepted into the applicant pool in accordance 
with Sec. 1001.5 and has been selected to negotiate a self-governance 
annual funding agreement is eligible to apply for a negotiation grant. 
Each year, we will publish a notice in the Federal Register with all 
relevant details as to how tribes/consortia which have been selected can 
apply for negotiation grants.
    (b) What must a tribe/consortium do to receive a negotiation grant?
    (1) To receive a negotiation grant, a tribe/consortium must:
    (i) Be selected from the applicant pool to negotiate an annual 
funding agreement;
    (ii) Be identified as eligible to receive a negotiation grant; and
    (iii) Not have received a negotiation grant within the 3 years 
preceding the date of the latest Federal Register announcement described 
in Sec. 1001.7.
    (2) The tribe/consortium must submit a letter affirming its 
readiness to negotiate and formally request a negotiation grant to 
prepare for and negotiate a self-governance agreement. These grants are 
not competitive.
    (c) May a selected tribe negotiate without applying for a 
negotiation grant? Yes. In this case, the tribe should notify us in 
writing so that funds can be reallocated for other grants.

[61 FR 17832, Apr. 23, 1996]



Sec. 1001.9  Selection criteria for tribes/consortia seeking advance planning grant funding.

    (a) Who is eligible to apply for a planning grant that will be 
awarded before a tribe/consortium is admitted into the applicant pool? 
Any tribe/consortium that is not a self-governance tribe and needs 
advance funding in order to complete the planning phase requirement may 
apply. Tribes/consortia that have received a planning grant within 3 
years preceding the date of the latest Federal Register announcement 
described in Sec. 1001.7 are not eligible.
    (b) What must a tribe/consortium seeking a planning grant submit in 
order to meet the planning phase requirements? A tribe/consortium must 
submit the following material:
    (1) A tribal resolution or other final action of the tribal 
governing body indicating a desire to plan for tribal self-governance;
    (2) Audits from the last 3 years which document that the tribe meets 
the requirement of being free from any material audit exception;
    (3) A proposal that describes the tribe's/consortium's plans to 
conduct:
    (i) Legal and budgetary research, and
    (ii) Internal tribal government and organization planning;
    (4) A timeline indicating when planning will start and end; and
    (5) Evidence that the tribe/consortium can perform the tasks 
associated with its proposal (i.e., submit resumes

[[Page 891]]

and position descriptions of key staff or consultants to be used).
    (c) How will tribes/consortia know when and how to apply for 
planning grants? Each year, we will publish in the Federal Register a 
notice of the availability of planning grants for additional tribes as 
described in Sec. 1001.7. This notice will identify the specific details 
for applying.
    (d) What criteria will be used to award planning grants to those 
tribes/consortia requiring advance funding to meet the planning phase 
requirement of Public Law 103-413? Advance planning grants are 
discretionary and based on need. The following criteria will be used to 
determine whether to award a planning grant to a tribe/consortium before 
the tribe is being selected into the applicant pool:
    (1) A complete application as described in Secs. 1001.9(b) and 
1001.9(c);
    (2) A demonstration of financial need. We will rank applications 
according to the percentage of tribal resources to total resources as 
indicated in the latest A-128 audit. We will give priority to 
applications that demonstrate financial need by having a lower level of 
tribal resources as a percent of total resources; and
    (3) Other factors that demonstrate the readiness of the tribe/
consortium to enter into a self-governance agreement, including previous 
efforts of the tribe/consortium to participate in self-governance.
    (e) Can tribes/consortia that receive advance planning grants also 
apply for a negotiation grant? Yes. Tribes/consortia that receive 
advance planning grants may submit a completed application to be 
included in the applicant pool. Once approved for inclusion in the 
applicant pool, the tribe/consortium may apply for a negotiation grant 
according to the process identified in Sec. 1001.7 above.
    (f) When and how will a tribe/consortium know whether it has been 
selected to receive an advance planning grant? Within 30 days of the 
deadline for submitting applications we will notify the tribe/consortium 
by letter whether it has been selected to receive an advance planning 
grant.

[61 FR 17832, Apr. 23, 1996]



Sec. 1001.10  Selection criteria for other planning and negotiating financial assistance.

    (a) What is the purpose of this section? This section describes how 
to apply for other financial assistance for planning and negotiating of 
a DOI non-BIA program, service, function or activity that may be 
available, as well as the selection process.
    (b) Are there other funds that may be available to self-governance 
tribes/consortia for planning and negotiating with DOI non-BIA bureaus? 
Yes. Tribes/consortia may contact the Director, Office of Self-
Governance to determine if funds are available for the purpose of 
planning and negotiating with DOI non-BIA bureaus under this section. A 
tribe/consortium may also request information from a DOI non-BIA bureau 
on any funds which may be available from that bureau.
    (c) Who is eligible to apply for financial assistance to plan and 
negotiate for a DOI non-BIA program? Any existing self-governance tribe/
consortium is eligible.
    (d) Under what circumstances may planning and negotiation financial 
assistance be made available to tribes/consortia? At the discretion of 
the Director, grants may be awarded when requested by the tribe and 
coordinated with the DOI non-BIA agency involved.
    (e) How does the tribe/consortium apply for a grant to plan and 
negotiate for a DOI non-BIA program? When such funds are available, we 
will publish a notice of their availability and a deadline for 
submitting applications for such grants in the Federal Register as 
indicated in Sec. 1001.7.
    (f) What must be included in the application? The application must 
include the following:
    (1) The tribal resolution or other final action of the tribal 
governing body indicating that the tribe/consortium intends to negotiate 
for a DOI non-BIA program;
    (2) A copy of the proposal or summary that was submitted to the DOI 
non-BIA bureau;
    (3) A time line indicating when planning will begin and end;
    (4) The planning resources from all other sources that are approved 
and/or

[[Page 892]]

anticipated for the planning activity; and
    (5) The amount requested and a justification of why it is needed by 
the tribe/consortium.
    (g) What criteria will we use to award grants to those tribes/
consortia requesting financial assistance to plan and negotiate for a 
DOI non-BIA program? The award of such grants is discretionary. After 
consulting with the requesting tribe/consortium and the appropriate DOI 
non-BIA bureau, the Director will determine whether to award a grant to 
plan and negotiate for a DOI non-BIA program. The determination will be 
based upon the complexity of the project, the availability of resources 
from all other sources, and the relative need of the tribe/consortium to 
receive such funds for the successful completion of the planning and 
negotiating activity, as determined by the percentage of tribal 
resources to total resources as indicated in the latest A-128 audit. All 
decisions to award or not to award grants as described in paragraphs (e) 
and (f) of this section are final for the Department.

[61 FR 17832, Apr. 23, 1996]

[[Page 893]]



    CHAPTER VII--OFFICE OF THE SPECIAL TRUSTEE FOR AMERICAN INDIANS, 
                       DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
1200            American Indian Trust Fund Management Reform 
                    Act.....................................         894

[[Page 894]]



PART 1200--AMERICAN INDIAN TRUST FUND MANAGEMENT REFORM ACT--Table of Contents




                      Subpart A--General Provisions

Sec.
1200.1  Purpose of this regulation.
1200.2  Definitions.
1200.3  What is the Department's policy on tribal management of trust 
          funds?
1200.4  May tribes exercise increased direction over their trust funds 
          and retain the protections of Federal trust status?
1200.5  What are the advantages and disadvantages of managing trust 
          funds under the options in Sec. 1200.4?
1200.6  Do these regulations tell tribes how to receive future income 
          directly rather than have the government continue to collect 
          it?
1200.7  Information collection.

             Subpart B--Withdrawing Tribal Funds From Trust

1200.10   Who is eligible to withdraw their tribal funds from trust?
1200.11   What funds may be withdrawn?
1200.12   What limitations and restrictions apply to withdrawn funds?
1200.13   How does a tribe apply to withdraw funds?
1200.14   What must the Tribal Management Plan contain?
1200.15   What is the approval process for management plans?
1200.16   What criteria will be used in evaluating the management plan?
1200.17   What special criteria will be used to evaluate management 
          plans for judgment or settlement funds?
1200.18   When does the Department's trust responsibility end?
1200.19   How can the plan be revised?
1200.20   How can a tribe withdraw additional funds?
1200.21   How may a tribe appeal denials under this part?

               Subpart C--Returning Tribal Funds to Trust

1200.30   How does a tribe notify the Department if it wishes to return 
          withdrawn funds to Federal trust status?
1200.31   What part of withdrawn funds can be returned to trust?
1200.32   How often can funds be returned?
1200.33   How can funds be returned?
1200.34   Can a tribe withdraw redeposited funds?

                     Subpart D--Technical Assistance

1200.40   How will the Department provide technical assistance for 
          tribes?

[[Page 895]]

1200.41   What types of technical assistance are available?
1200.42   Who can provide technical assistance?
1200.43   How can a tribe apply for technical assistance?
1200.44   What action will the Department take on requests for technical 
          assistance?

    Authority: 25 U.S.C. 4001.

    Source: 61 FR 67932, Dec. 26, 1996, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 1200.1  Purpose of this regulation.

    This part describes the processes by which Indian tribes can manage 
tribal funds currently held in trust by the United States. It defines 
how tribes may withdraw their funds from trust status; how they may 
return funds to trust; and how they may request technical assistance or 
grants to help prepare plans to manage funds or to ensure the capability 
to manage those funds.



Sec. 1200.2  Definitions.

    As used in this part:
    Act means the American Indian Trust Fund Management Reform Act of 
1994 (Pub. L. 103-412, 108 Stat. 4239, 25 U.S.C. 4001).
    Agency Superintendent means the official in charge of a Bureau of 
Indian Affairs Agency.
    Area Director means the official in charge of a Bureau of Indian 
Affairs area office.
    Bureau or BIA means the Bureau of Indian Affairs, Department of the 
Interior.
    Department or DOI means the Department of the Interior.
    General Counsel means the attorney for the tribe.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior.
    OTFM means the Office of Trust Funds Management, Department of the 
Interior.
    Resolution means the formal manner in which a tribal government 
expresses its legislative will.
    Secretary means the Secretary of the Interior or his/her designee.

[[Page 896]]

    Solicitor means the Office of the Solicitor, Department of the 
Interior.
    Special Trustee means the Special Trustee for American Indians 
appointed under Title III of the Act.
    Tribal council means the elected or appointed governing officials of 
any tribe which is recognized by the Secretary.
    Tribe means any Indian tribe, band, nation, rancheria, pueblo, 
colony or community, including any Alaska Native village or regional or 
village corporation as defined or established pursuant to the Alaska 
Native Claims Settlement Act which is federally recognized by the U.S. 
Government for special programs and services provided by the Secretary 
to Indians because of their status as Indians. For this purpose, it also 
means two or more tribes joined for any purpose, the joint assets of 
which include funds held in trust by the Secretary. An example of this 
would be the KCA (consisting of the Kiowa, Comanche and Apache Tribes).
    Us means the Department of the Interior, i.e., the Secretary of the 
Interior or his/her designee.
    We means the Department of the Interior, i.e., the Secretary of the 
Interior or his/her designee.



Sec. 1200.3  What is the Department's policy on tribal management of trust funds?

    (a) We will give tribes as much responsibility as they desire for 
the management of their tribal funds that we currently hold in trust.
    (b) Title II of the American Indian Trust Fund Management Reform 
Act, implemented by these regulations, offers tribes one approach for 
assuming increased management of their funds that we now hold in trust 
and administer. Under Title II, a tribe may completely remove its funds 
from Federal trust status and manage them as it wishes, subject to the 
requirements and conditions in this part. When a tribe withdraws its 
funds under this part, it may invest those funds in equities or other 
investment vehicles that are statutorily unavailable to us.



Sec. 1200.4  May tribes exercise increased direction over their trust funds and retain the protections of Federal trust status?

    Yes. The Tribal Self-Governance Act (25 U.S.C. 458) and the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 
provide other options for trust funds management. A tribe may choose to 
manage its trust funds under the provisions of these Acts if it wishes. 
These options are covered by 25 CFR part 900 (the ``Indian Self-
Determination and Education Assistance Act Program'') and 25 CFR part 
1000 (the ``Self-Governance Program'').



Sec. 1200.5  What are the advantages and disadvantages of managing trust funds under the options in Sec. 1200.4?

    Under these other options, the funds remain in Federal trust status 
and the tribe can exercise a range of control over their management. 
However, the tribe has fewer investment options than it has when it 
withdraws its funds completely from trust status. If a tribe chooses to 
keep its funds in trust status, the tribe is subject to the same 
statutory investment restrictions that bind us. That means that the 
tribe's investments are limited to bank deposits and securities 
guaranteed by the United States. (See 25 U.S.C. 162a for specific 
statutory investment restrictions.)



Sec. 1200.6  Do these regulations tell tribes how to receive future income directly rather than have the government continue to collect it?

    No. These regulations apply only to the withdrawal of funds which 
are in trust. Some of these funds come from the sale or lease of trust 
resources. Even if a tribe withdraws its funds, we will collect and 
manage future income. If a tribe wishes to receive future income 
directly, it should contact the OST/OTFM staff at its agency or area 
office to find out how to do this.



Sec. 1200.7  Information collection.

    The information collection requirements contained in subpart B of 
this part, Application to Withdraw Tribal Funds from Trust Status and 
subpart D

[[Page 897]]

of this part, Application to Withdraw Tribal Funds from Trust Status-
General and Specific Budget Technical Assistance, have been approved by 
the Office of Management and Budget under 44 U.S.C. 3507 et seq. and 
assigned clearance numbers 1035-001 (subpart B), and 1035-002 and 1035-
003 (subpart D). Information collected in Sec. 1200.13 (How does a tribe 
apply to withdraw funds?) will be used to determine the eligibility of 
applicants, and the capability of tribes or their contractors to manage 
and invest large blocks of funds. Information collected in Sec. 1200.43, 
(How can a tribe apply for technical assistance?) will be used to 
determine the eligibility of applicants, as well as the level of need 
for technical assistance, in order for tribes to develop Management 
Plans and to complete the application for withdrawal process.



             Subpart B--Withdrawing Tribal Funds From Trust



Sec. 1200.10  Who is eligible to withdraw their tribal funds from trust?

    Any tribe for whom we manage funds in trust.



Sec. 1200.11  What funds may be withdrawn?

    A tribe may withdraw some or all funds that we hold in trust if we 
approve a plan that it submits under this part.



Sec. 1200.12  What limitations and restrictions apply to withdrawn funds?

    (a) A tribe may withdraw funds appropriated to satisfy judgments of 
the Indian Claims Commission (ICC) and the Court of Federal Claims and 
that we hold under the Indian Judgment Funds Use and Distributions Act 
(25 U.S.C. 1401) or another act of Congress if:
    (1) The tribe uses the funds as specified in the previously approved 
judgment fund plan, and;
    (2) The tribe withdraws only funds held for Indian tribes and does 
not include any funds held for individual tribal members.
    (b) A tribe may withdraw funds appropriated to satisfy settlement 
agreements relating to certain tribal claims and that we hold and manage 
for the tribe pursuant to an act of Congress if:
    (1) The tribe uses the funds as specified in the previously approved 
settlement act plan;
    (2) The tribe withdraws only funds held for Indian tribes and does 
not include any funds held for individual tribal members; and
    (3) It is determined that there is no provision in the act or 
settlement agreement requiring that the funds remain in trust to 
implement the act or agreement that cannot be waived.
    (c) Tribal funds commonly known as ``Proceeds of Labor'' funds, 
usually income to trust resources, are generally withdrawn under normal 
tribal budgeting procedures, but may also be withdrawn from trust under 
this part. These funds may be returned to trust under the provisions of 
subpart C of this part.



Sec. 1200.13  How does a tribe apply to withdraw funds?

    The tribe must submit four copies of its application and the 
attachments listed below to: Director, Office of Trust Funds Management, 
Department of the Interior, 505 Marquette NW, Suite 1000, Albuquerque, 
NM 87102. We will notify the tribe if the application is incomplete and 
will help the tribe complete the application if requested. When we 
determine that the application is complete, we will send copies to the 
appropriate agency superintendent and area director, the Special Trustee 
and the Solicitor. Each application package must contain the items 
listed below.
    (a) Proof that the tribe has notified its members of its intent to 
remove funds from trust and that, when the request is approved, the 
tribe and not the United States Government will be liable for funds 
management. Notification must be by the method(s) that the tribe 
customarily uses to notify its members of significant tribal actions. 
The notification must identify the specific funds to be withdrawn.
    (b) A tribal resolution that:
    (1) Expressly authorizes the withdrawal of the funds and indicates 
the (approximate) dollar amount of the funds to be withdrawn;

[[Page 898]]

    (2) Expressly acknowledges that the funds, once withdrawn in 
accordance with the Act, will no longer be held in trust status by the 
United States, and that we have no further liability or responsibility 
for the funds; and
    (3) Acknowledges that:
    (i) Neither we nor the tribe necessarily accept the account balances 
at the time of withdrawal as accurate; and
    (ii) Neither we nor the tribe have waived any rights regarding the 
balances, including the right to seek compensation for incorrect 
balances.
    (c) A copy of a formal agreement between the tribe and the manager 
of the funds to be withdrawn, in which the manager agrees to:
    (1) Comply with the terms of the plan we approve under Sec. 1200.15 
and make only those changes that conform to revision procedures in the 
approved plan and the requirements of Sec. 1200.19; and
    (2) Transfer funds to the tribe or another manager only after 
receiving a valid tribal resolution calling for this transfer and proof 
that the tribe has notified its members of intent to transfer the funds. 
The resolution must clearly state that:
    (i) The funds are being withdrawn to be reinvested by the tribe in a 
manner consistent with the goals and strategies of the approved plan; 
and
    (ii) The fund managers will continue to follow any previously 
approved distribution plan conditions.
    (d) A legal opinion by the tribe's attorney or its general counsel 
that:
    (1) The resolution referred to in paragraph (b) of this section was 
enacted under procedures established by the tribe's organic documents or 
oral tradition;
    (2) The tribal governing body has the legal authority to withdraw 
funds from trust status and that the withdrawal does not require a 
referendum vote or other procedure beyond a tribal council resolution; 
and
    (3) If the funds to be withdrawn are judgment or settlement funds, 
that the tribe's plan for managing the funds meets the requirements of 
any applicable judgment fund use and distribution plan or settlement 
act.
    (e) The results of a tribal referendum, if one was held.
    (f) If the funds to be withdrawn are judgment or settlement funds, a 
copy of the act and/or plan that sets out the conditions for the uses of 
the funds or income from them.
    (g) A management plan as provided for in Sec. 1200.14.



Sec. 1200.14  What must the Tribal Management Plan contain?

    The Tribal Management Plan required by Sec. 1200.13 must include 
each of the following:
    (a) Tribal investment goals and the strategy for achieving them.
    (b) A description of the protection against the substantial loss of 
principal, as set forth in Sec. 1200.16.
    (c) A copy of the tribe's ordinances and procedures for managing or 
overseeing the management of the funds to be withdrawn. These must 
include adequate protections against fraud, abuse, and violations of the 
management plan.
    (d) A description of the tribe's previous experience managing or 
overseeing the management of invested funds. This should include factual 
data of past performance of tribally-managed funds (i.e., audited 
reports) and the identity and qualifications of the tribe's investment 
officer.
    (e) A description of the capability of all of the individuals or 
investment institutions that will be involved in managing and investing 
the funds for the tribe. Provide copies of State or Federal security 
applications for account executive(s).
    (1) Investment entities named must submit:
    (i) Ownership information (including Central Registry Depository 
(CRD) numbers);
    (ii) Asset size and capitalization;
    (iii) Assets under management;
    (iv) Performance statistics on managed accounts for the past 5 
years; and
    (v) Any adverse actions by licensing and/or regulatory bodies within 
the past 5 years.
    (2) In addition, we may ask about:
    (i) Soft dollar arrangements;
    (ii) Affiliation with broker dealers, banks, insurance and/or 
investment companies;
    (iii) Research done in house;

[[Page 899]]

    (iv) Recent changes in active portfolio managers; and
    (v) Any other information necessary to make an adequate evaluation 
of the proposed plan.
    (f) A description of how the plan will ensure that the fund manager 
will comply with any conditions established in judgment fund plans or 
settlement acts.
    (g) Proof of liability insurance of the investment firm.
    (h) Proof of liability insurance that protects against fraud for 
those Tribal Council members with authority to disburse funds. In many 
tribes the chairperson, and the comptroller and/or the tribal treasurer, 
for example, would be the positions having this authority.
    (i) A plan for custodianship of investment securities that includes:
    (1) Name of persons in the tribe who can direct the custodian;
    (2) Name of the custodian;
    (3) Copy of intended custodian agreement;
    (4) Size of custodian operation;
    (5) Disclosure of any security lending provisions; and
    (6) Insurance coverage.
    (j) A tribal council agreement to provide an annual audit and report 
on performance of withdrawn funds to the tribal membership, with a copy 
to: Office of the Special Trustee for American Indians, Department of 
the Interior, MS-5140, 1849 C Street NW, Washington, DC, 20240. This 
agreement must include:
    (1) A statement that the copy to the Special Trustee is for 
information only, and infers no liability on our part regarding the 
audit results, nor does it infer a requirement for us to take any action 
whatsoever; and
    (2) A description of the steps (including audit performance and 
reporting) the tribe will take to ensure its membership that the tribe 
is continuing to comply with the terms of the plan submitted and 
approved pursuant to judgment fund limitations (if any) and/or the terms 
of the Act.
    (k) The proposed date for transfer of funds.
    (l) A statement as to whether the tribe chooses to receive the 
withdrawal as a cash balance transfer, as a transfer of marketable 
investments that we own for the tribe, or as a combination of the two.
    (1) A cash balance transfer may require us to sell bonds, notes, or 
other investments that we purchased when investing the tribe's monies.
    (2) We cannot transfer non-marketable securities to a tribe. We can 
only purchase and hold them and must sell them back to the U.S. 
Treasury.
    (3) If we sell a tribe's security at a loss (i.e., when market value 
is less than book value or carrying value) we will first notify the 
tribe. The tribe must instruct us to proceed with the sale and must 
agree not to hold us responsible for the loss before we will make the 
sale.
    (4) If the tribe asks us to transfer marketable securities, upon 
proper instructions from the new tribal custodian, we will order our 
custodian to physically transfer the proper security to the new 
custodian on the agreed upon date.
    (m) Agreement that judgment award funds will have segregated 
accounts.
    (n) A description of the procedures for amending or revising the 
plan.



Sec. 1200.15  What is the approval process for management plans?

    The Secretary will approve or disapprove each management plan, based 
in part upon our recommendation.
    (a) We will determine the completeness of the application, provide 
for adequate professional review of the application and the management 
plan, and provide technical assistance as necessary to make an 
application complete.
    (b) We will coordinate with area directors in confirming authority 
of tribal governments to make requests.
    (c) We will approve or disapprove a request within 90 calendar days 
of receiving a completed application. This 90-day period does not 
include time that we spend awaiting a response from the tribe for 
additional information that we have requested. All determinations will 
be in writing, and all responses will be by certified mail.
    (d) If we find that a plan does not meet the criteria in 
Sec. 1200.16, we will notify the tribe of shortcomings of the request, 
and allow the tribe to respond

[[Page 900]]

before recommending formal disapproval.
    (e) Before final approval, we will reach agreement with the tribe on 
how many days after final approval we will transfer the funds. We will 
transfer the funds as soon after final approval as the tribe or manager 
is ready to receive them, unless we need additional time to sell 
existing instruments.



Sec. 1200.16  What criteria will be used in evaluating the management plan?

    Each plan must be approved by the appropriate tribal governing body, 
and must be accompanied by a resolution approving the plan. The plan 
must be reasonable in light of the trust responsibility and the 
principles of Indian self-determination, and other appropriate factors, 
including, but not limited to, the factors listed below:
    (a) We will evaluate the individuals or entities that will manage 
the funds to be withdrawn, or that will advise the tribe on investing 
the funds to be withdrawn in order to determine if they have the 
capability and experience to manage the funds. Among the elements we 
will evaluate are: the number of years in business, the performance 
record for funds management, and the ability to compensate the tribe if 
the entity is found liable for failing to comply with the tribe's 
management plan (i.e., its assets, bonding, and insurance).
    (b) We will review the tribe's experience in managing investments. 
We will compare this experience to the complexity of the proposed 
management plan to determine whether the tribe has the experience to 
manage its proposed plan or whether it should begin with a less complex 
approach.
    (c) We will evaluate the tribe's internal audit and control systems 
for overseeing or monitoring its investment activity.
    (d) We will evaluate the adequacy of protection against substantial 
loss of principal. Our determination will include a thorough evaluation 
of the tribe's investment plan including:
    (1) The goals and objectives;
    (2) The proposed uses of the fund in order to meet business 
objectives;
    (3) The size and diversity of the investment portfolio (for example, 
the class of stocks and the mixture of types of investments);
    (4) The financial condition of the tribe;
    (5) The inherent riskiness of the proposed investments; and
    (6) The tribe's projected need and proposed timeframes to draw down 
the funds being invested or the income from them.
    (e) We will determine the likelihood that the plan will be followed. 
We will base this determination on the contents of the agreement between 
the tribe and the fund manager and other appropriate factors.



Sec. 1200.17  What special criteria will be used to evaluate management plans for judgment or settlement funds?

    For judgment or settlement funds, in addition to the criteria in 
Sec. 1200.16, we will determine if the plan adequately provides for 
compliance with any conditions, uses of funds, or other requirements 
established by the appropriate judgment fund plan or settlement act.



Sec. 1200.18  When does the Department's trust responsibility end?

    Our trust responsibility for funds withdrawn under this part ends on 
the date that the funds are withdrawn. However at the time of withdrawal 
neither we nor the tribe may be deemed to have accepted the account 
balance at the time of withdrawal as accurate; or waived any rights 
regarding the balance and our ability to seek compensation.



Sec. 1200.19  How can the plan be revised?

    Once a tribe has withdrawn its funds, the tribe may revise its plan 
without our approval. All revisions should conform to the procedures 
outlined in the approved management plan. The tribe should inform its 
members of all revisions to a plan through normal tribal procedures 
before the revisions are implemented.



Sec. 1200.20  How can a tribe withdraw additional funds?

    (a) If a tribe has withdrawn funds under an approved tribal 
management plan and wishes to withdraw additional funds that will be 
managed under the

[[Page 901]]

same plan, it need not submit a complete new application. The tribe 
must:
    (1) Notify us of the additional amount it intends to withdraw and 
whether the funds to be withdrawn are in kind or cash. (Written 
notification should be provided to our address in Sec. 1200.13);
    (2) Send us a tribal resolution approving the new withdrawal and 
certifying that the funds are being withdrawn subject to the same 
conditions and that they will be managed under the plan in the original 
approved application;
    (3) Send us a copy of the most recent compliance audit or investment 
report.
    (b) After we finish our review we will release the additional funds, 
unless the compliance audit or investment report indicates that the 
tribe is not complying with its management plan. In this case, we will 
not release the additional funds until the tribe demonstrates that it is 
complying with the management plan.



Sec. 1200.21  How may a tribe appeal denials under this part?

    If we deny a request or do not approve an application within 90 days 
of a request, the tribe may address any problems that we identify and 
resubmit a revised request, seek technical assistance, or appeal the 
denial under 43 CFR part 4.



               Subpart C--Returning Tribal Funds to Trust



Sec. 1200.30  How does a tribe notify the Department if it wishes to return withdrawn funds to Federal trust status?

    If a tribe elects to return some or all of the funds it has 
withdrawn from Federal trust status pursuant to this Act, it must first 
notify us in writing at our address in Sec. 1200.13. This notification 
must provide a proposed date for the return of the funds, as well as the 
amount of funds to be returned, or actual securities to be delivered to 
the appropriate custodian.



Sec. 1200.31  What part of withdrawn funds can be returned to trust?

    A tribe may return all or a portion of the principal which was 
removed from trust under this Act along with earnings and profits. We 
will verify the amount declared for earnings before we accept a return. 
We will accept any amount less than the original principal amount as a 
principal amount.



Sec. 1200.32  How often can funds be returned?

    Tribes may return all or part of withdrawn funds no more than twice 
a year, beginning no sooner than six months after date of withdrawal, 
except with approval of the Secretary.



Sec. 1200.33  How can funds be returned?

    Funds may be returned either as cash or securities, which meet the 
requirements for investments in 25 U.S.C. 162a. Cash can be transferred 
to the US Treasury by Electronic Funds Transfers (EFT), or the Automated 
Clearing House (ACH) process. Tribes must coordinate the transfer of 
ownership in securities with us to ensure proper credit to the tribe. 
The securities must meet investment restrictions contained in 25 U.S.C. 
162a.



Sec. 1200.34  Can a tribe withdraw redeposited funds?

    Yes. If a tribe wishes to withdraw redeposited funds from Federal 
trust status, it must submit a written request to do so, accompanied by 
a new resolution and any revisions it wishes to make in its original 
management plan.



                     Subpart D--Technical Assistance



Sec. 1200.40  How will the Department provide technical assistance for tribes?

    (a) We will provide direct or contract technical assistance, in 
accordance with appropriations availability to tribes for developing, 
implementing, and managing Indian trust fund investment plans. We will 
ensure that our legal, financial and other expertise is made fully 
available to advise tribes in developing, implementing, and managing 
investment plans.
    (b) We may award grants to tribes for developing and implementing 
plans for investing Indian tribal trust funds.
    (c) Tribes may also obtain technical assistance on their own.

[[Page 902]]



Sec. 1200.41  What types of technical assistance are available?

    The types of technical assistance include: investment planning; 
accounting; selection of investment managers; monitoring of investments; 
asset management; or other assistance appropriate to support funds 
withdrawal.



Sec. 1200.42  Who can provide technical assistance?

    A sample of competent providers includes any of the following 
entities with the appropriate skills and capabilities: available DOI or 
OST staff; intertribal organizations; public agencies; and contracted 
private investment firms.



Sec. 1200.43  How can a tribe apply for technical assistance?

    (a) Tribes wishing technical assistance may request it by sending us 
a letter along with a tribal resolution outlining the technical 
assistance required, tribal resources which may be applied to the need, 
and suggested provider, if known. The resolution must state clearly that 
the assistance is needed for developing, implementing, or managing an 
investment plan under the provisions of this authority.
    (b) Tribes requesting funds for technical assistance must send a 
completed SF-424, APPLICATION FOR FEDERAL ASSISTANCE, and SF-424A, 
BUDGET INFORMATION, along with a tribal resolution, detailing the 
assistance specifically requested, and the suggested provider to our 
address in Sec. 1200.13.
    (c) We will make grants subject to funds availability. We will 
publish a notice in the Federal Register concerning the availability of 
funding, deadlines for grants, the application process, and approval 
criteria. If funding is limited, grants will be awarded based on 
criteria that we feel will best meet the intent of the Act. We will 
consult with tribes in determining annual criteria. Unsolicited grant 
requests will not be accepted.



Sec. 1200.44  What action will the Department take on requests for technical assistance?

    We will respond in writing to all requests for technical assistance 
and grants, advising of decision, availability of appropriate expertise 
and funding, and anticipated delivery of the service.
[[Page 903]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected


                                                                    Chap.

[[Page 905]]



                    Table of CFR Titles and Chapters



                      (Revised as of April 1, 1997)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)

[[Page 906]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)

[[Page 907]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)

[[Page 908]]

     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)

[[Page 909]]

       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)

[[Page 910]]

       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)

[[Page 911]]

      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

[[Page 912]]

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

[[Page 913]]

       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 914]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

[[Page 915]]

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

[[Page 916]]

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)

[[Page 917]]

       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services, 
                General Administration (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)

[[Page 918]]

         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)

[[Page 919]]

        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)

[[Page 920]]

       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 921]]





           Alphabetical List of Agencies Appearing in the CFR



                      (Revised as of April 1, 1997)

                                                  CFR Title, Subtitle or
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 922]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I

[[Page 923]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III

[[Page 924]]

Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Travel Allowances                               41, 301

[[Page 925]]

Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I

[[Page 926]]

  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Relations and Cooperative      29, II
       Programs, Bureau of
  Labor-Management Programs, Office of            29, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Relations and Cooperative        29, II
     Programs, Bureau of
Labor-Management Programs, Office of              29, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI

[[Page 927]]

Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI

[[Page 928]]

President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Trustee for American Indians, Office of   25, VII
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I

[[Page 929]]

  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 931]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven 
separate volumes.

                                  1986

25 CFR
                                                                   51 FR
                                                                    Page
Chapter I
5.1  (e) revised...................................................32632
5.4  Added.........................................................32632
63  Removed........................................................21161
64  Removed........................................................21161
67  Removed........................................................21161
68  Removed........................................................21161
71  Removed........................................................21161
72  Removed........................................................21161
74  Removed........................................................21161
77  Removed........................................................21161
115.10  Redesignated as 115.11; new 115.10 added....................2874
115.11  Redesignated as 115.12; new 115.11 redesignated from 
        115.10......................................................2874
115.12  Redesignated as 115.13; new 115.12 redesignated from 
        115.11......................................................2874
115.13  Redesignated as 115.14 and revised; new 115.13 
        redesignated from 115.12....................................2874
115.14  Redesignated as 115.13 and revised..........................2874
115.15  Added.......................................................2875
151  Policy decision................................................5993
168.6  (b)(4) amended..............................................23052
274.6  Added.......................................................39524
277.5  Added.......................................................39524
Chapter IV
700  Authority citation revised....................................22934
700.137  Revised; interim..........................................19170
700.138  Revised; interim..........................................19170
700.147  (e) added; interim........................................19170
700.701--700.729 (Subpart Q)  Added; interim.......................22934
720  Added..................................................22891, 22896
720.150  (e) added.................................................22892
720.151  Existing text designated as (a); (b) added................22892
720.170  (c) revised...............................................22891

                                  1987

25 CFR
                                                                   52 FR
                                                                    Page
Chapter I
22  Removed........................................................30920
38.14  Added........................................................3428
62  Revised........................................................30160
76  Revised........................................................31392
118  Removed.......................................................15722
120  Removed.......................................................11468
140.5  See EO 12608................................................34621
141.31  See EO 12608...............................................34621
211  Revised.......................................................31929
    Effective date deferred........................................35702
    Revision at 52 FR 31929 withdrawn..............................39332
212  Removed.......................................................31937
    Effective date deferred........................................35702
    Removal at 52 FR 31937 withdrawn...............................39332
225  Added.........................................................31937
    Effective date deferred........................................35702
    Addition at 52 FR 31937 withdrawn..............................39332
244  Revised.......................................................23806

[[Page 932]]

249.11--249.21  (Subpart B) Removed.................................9656
250  Revised; interim..............................................27330
256.11  Added.........................................................38
272.28  Added.........................................................38
Chapter IV
700  Authority citation revised....................................21951
700.183  (a) revised; interim......................................21951

                                  1988

25 CFR
                                                                   53 FR
                                                                    Page
Chapter I
Chapter I  Appendix amended........................................30674
11.1  Heading revised; (f) added...................................21994
13.2  Added........................................................21994
20.4  Added........................................................21994
21.9  Added........................................................21994
23.4  Existing text designated as (b); (a) added...................21994
38  Revised........................................................37678
61  Authority citation revised.....................................11272
61.4  (f) and (g) added............................................11272
69  Removed........................................................21996
102  Removed.......................................................44010
125.7  Added.......................................................21995
151.14  Added......................................................21995
175.56  Added......................................................21995
176.22  Added......................................................21995
176.51  Revised.....................................................6145
176.52  Revised.....................................................6145
176.54  Revised.....................................................6145
176.55  (b) and (c) (1) and (4) revised.............................6146
177.55  Added......................................................21995
179  Added.........................................................25953
271.5  Added.......................................................21995

                                  1989

25 CFR
                                                                   54 FR
                                                                    Page
Chapter I
2  Revised..........................................................6480
2.2  Corrected......................................................7666
2.6  (c) corrected..................................................7666
2.7  Heading corrected..............................................7666
2.8  (a) corrected..................................................7666
2.10  (c) corrected.................................................7666
2.12  (b) corrected.................................................7666
5.1  (e) revised.....................................................283
5.4  Revised.........................................................283
38.6  (c) through (e) redesignated as (d) through (f); new (c) 
        added; new (d)(1) introductory text revised................46374
61  Authority citation revised.....................................14193
61.4  (h) added....................................................14193
101  Authority citation revised....................................34974
101.2  (b) introductory text revised...............................34974
101.3  (a) revised.................................................34974
101.7  Amended.....................................................34975
101.17  Revised....................................................34975
101.26  Added......................................................34975
103  Authority citation revised....................................34975
103.4  (a) amended.................................................34975
103.8  Revised.....................................................34975
103.13  (a) revised................................................34975
103.15  (b)(2) amended; (c) added..................................34975
103.39  Revised....................................................34976
103.41  Amended....................................................34976
103.55  Added......................................................34975
122  Revised.......................................................34155
177.51  (b) and (c) revised..........................................113
177.52  (b) and (c) revised..........................................113
200  Added.........................................................22188
200.11  Technical correction.......................................24789

                                  1990

25 CFR
                                                                   55 FR
                                                                    Page
Chapter I
61  Authority citation revised.....................................41519
61.4  (e) added.....................................................7494
    (j) added......................................................41519
143  Added; interim................................................19621
176.51  Revised....................................................42956
176.52  Revised....................................................42956
176.54  Revised....................................................42956
176.55  (b), (c)(1) and (4) revised................................42957
177.51  (b) revised................................................20456
177.52  (b) revised................................................20456
226  Authority citation revised....................................33114
226.1  (h) revised.................................................33114
226.6  (a) and (c) amended.........................................33114
226.11  (a)(2) revised; (b)(1) amended.............................33114
226.13  (a) amended................................................33114
226.14  (b) revised................................................33114
226.15  (e) added..................................................33115

[[Page 933]]

226.18  Introductory text and (e) revised..........................33115
226.19  (a), (b) and (d) amended...................................33115
226.21  (f) amended................................................33115
226.22  (b) amended; (e) revised...................................33115
226.23  Amended....................................................33115
226.25  Amended....................................................33115
226.28  Introductory text and (a) amended; (c) added...............33115
226.29  (a) revised................................................33115
226.33  Amended....................................................33116
226.34  Revised....................................................33116
226.36  Revised....................................................33116
226.42  Amended....................................................33116
226.43  (a), (b), (d), (g), (h) amended; (j) added.................33116
226.44  Revised....................................................33116
226.45  Revised....................................................33116
226.46  Added......................................................33116
286  Authority citation revised; nomenclature change...............36273
286.1  Revised.....................................................36273
286.5  Added.......................................................36273
286.11  (a) revised................................................36274
286.17  (a), (c), and (g) revised; (j) added.......................36274
Chapter IV
700.701--700.729 (Subpart Q)  Revised; interim.....................37871

                                  1991

25 CFR
                                                                   56 FR
                                                                    Page
Chapter I
39  Authority citation revised.....................................35795
39.120--39.123 (Subpart J)  Revised................................35795
61.4  (j)(1) corrected.............................................10806
175  Revised.......................................................15136
176  Removed.......................................................15136
177  Removed.......................................................15136
244  Removed.......................................................14836
286.17  (b) revised................................................12436
Chapter III
Chapter III  Established...........................................40709
514.1  (c)(7)(iii) corrected.......................................57373
Chapter IV
Chapter IV  Heading revised........................................13397
700  Authority citation revised....................................13398
700.701--700.731 (Subpart Q)  Revised..............................13398

                                  1992

25 CFR
                                                                   57 FR
                                                                    Page
Chapter I
11.1  (a)(23) added.................................................3270
101  Authority citation revised....................................46471
101.1  Revised.....................................................46471
101.3  (a) amended.................................................46471
101.4  Amended.....................................................46471
101.6  (a) amended.................................................46472
101.11  (b) and (c) revised........................................46472
101.15  (j) through (s) added......................................46472
101.20  Removed; new 101.20 redesignated from 101.21; (e) removed; 
        (f) redesignated as (e)....................................46472
101.21  Redesignated as 101.20; new 101.21 redesignated from 
        101.22.....................................................46472
101.22  Redesignated as 101.21; new 101.22 redesignated from 
        101.23.....................................................46472
101.23  Redesignated as 101.22; new 101.23 redesignated from 
        101.24.....................................................46472
101.24  Redesignated as 101.23; new 101.24 redesignated from 
        101.25.....................................................46472
101.25  Redesignated as 101.24; new 101.25 redesignated from 
        101.26.....................................................46472
101.26  Redesignated as 101.25.....................................46472
103  Authority citation revised....................................46472
103.1  Revised.....................................................46472
103.7  Amended.....................................................46473
103.10  (e) and (f) added..........................................46473
103.13  (a) revised................................................46473
103.15  Heading, (a) and (c) revised...............................46473
103.16  Revised....................................................46473
103.17  (a) amended................................................46473
103.23  (b) amended................................................46473
103.27  Amended....................................................46473
103.30  (a) revised................................................46473
103.34  Amended....................................................46473
103.36  Revised....................................................46473
103.38  Amended....................................................46474
103.42  (a) introductory text revised; (a)(5) added; (c) amended 
                                                                   46474
103.43  Revised....................................................46474
103.44  Amended....................................................46474
103.46  Existing text designated as (a); (b) added.................46474
103.51  Amended....................................................46475

[[Page 934]]

Chapter II
256  Revised........................................................3105
Chapter III
502  Added.........................................................12392
    Effective date corrected.......................................20145
Chapter IV
700.709  (d) revised...............................................24363

                                  1993

25 CFR
                                                                   58 FR
                                                                    Page
Chapter I
11  Revised........................................................54411
11.301  Redesignated as 12.100.....................................54411
11.302  Redesignated as 12.101.....................................54411
11.303  Redesignated as 12.102.....................................54411
11.304  Redesignated as 12.103.....................................54411
11.305  Redesignated as 12.104.....................................54411
11.306  Redesignated as 12.105.....................................54411
11.401  Corrected..................................................58729
12  Added; Regulations transferred from part 11....................54431
    Authority citation added.......................................54431
12.100  Redesignated from 11.301...................................54411
12.101  Redesignated from 11.302...................................54411
12.102  Redesignated from 11.303...................................54411
12.103  Redesignated from 11.304...................................54411
12.104  Redesignated from 11.305...................................54411
12.105  Redesignated from 11.306...................................54411
262  Added; eff. 6-13-94...........................................65249
Chapter III
501--519  Designated as Subchapter A; heading added................16493
501  Added..........................................................5810
    Technical correction............................................8449
502  Heading revised...............................................16494
503  Added.........................................................16495
515  Added..........................................................5815
    Technical correction............................................8449
517  Added.........................................................44448
519  Added..........................................................5810
    Technical correction............................................8449
520--529  Designated as Subchapter B; heading added................16493
522  Added..........................................................5810
    Technical correction............................................8449
522.1  Heading revised.............................................16494
522.2  (h) revised.................................................16494
523  Added..........................................................5812
    Technical correction............................................8449
523.1  Heading revised.............................................16494
524  Added..........................................................5812
    Technical correction............................................8449
530--539  Designated as Subchapter C; heading added................16493
531  Added..........................................................5828
    Technical correction............................................8449
533  Added..........................................................5829
    Technical correction............................................8449
535  Added..........................................................5830
    Technical correction............................................8449
537  Added..........................................................5831
    Technical correction............................................8449
537.1  (b)(1)(vi), (vii), (c)(2)(v) and (vi) revised...............16494
539  Added..........................................................5832
    Technical correction............................................8449
539.1  Revised.....................................................16494
550-558  Designated as Subchapter E; heading added.................16493
556  Added..........................................................5813
    Technical correction............................................8449
556.1  Heading revised.............................................16494
558  Added..........................................................5814
    Technical correction............................................8449
558.1  Heading revised.............................................16494
558.2