[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2019 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
          
          Title 25

Indians


________________________

Parts 1 to 299

                         Revised as of April 1, 2019

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2019
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



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

  Title 25:
          Chapter I--Bureau of Indian Affairs, Department of 
          the Interior                                               3
  Finding Aids:
      Table of CFR Titles and Chapters........................     951
      Alphabetical List of Agencies Appearing in the CFR......     971
      List of CFR Sections Affected...........................     981

[[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, 2019), 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 
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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.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
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CFR INDEXES AND TABULAR GUIDES

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alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
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    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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in the Code of Federal Regulations.

INQUIRIES

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    April 1, 2019.







[[Page ix]]



                               THIS TITLE

    Title 25--Indians is composed of two volumes. The parts in these 
volumes are arranged in the following order: Parts 1--299, and part 300 
to end. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of April 1, 2019.

    For this volume, Stephen J. Frattini was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez.

[[Page 1]]



                            TITLE 25--INDIANS




                   (This book contains parts 1 to 299)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Bureau of Indian Affairs, Department of the 
  Interior..................................................           1

[[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              Courts of Indian offenses and law and order 
                    code....................................          19
12              Indian country law enforcement..............          58
13              Tribal reassumption of jurisdiction over 
                    child custody proceedings...............          63
                          SUBCHAPTER C--PROBATE
15              Probate of Indian estates, except for 
                    members of the Osage Nation and the Five 
                    Civilized Tribes........................          67
16              Estates of Indians of the Five Civilized 
                    Tribes..................................          76
17              Action on wills of Osage Indians............          79
18              Tribal probate codes........................          81
                      SUBCHAPTER D--HUMAN SERVICES
20              Financial assistance and social services 
                    programs................................          86
23              Indian Child Welfare Act....................         107
26              Job placement and training program..........         142
                         SUBCHAPTER E--EDUCATION
30              Adequate yearly progress....................         149
31              Federal schools for Indians.................         155
32              Indian education policies...................         156
33              Transfer of Indian education functions......         161
36              Minimum academic standards for the basic 
                    education of Indian children and 
                    national criteria for dormitory 
                    situations..............................         163
37              Geographic boundaries.......................         183

[[Page 4]]

38              Education personnel.........................         185
39              The Indian school equalization program......         199
40              Administration of educational loans, grants 
                    and other assistance for higher 
                    education...............................         224
41              Grants to tribal colleges and universities 
                    and Din[eacute] College.................         225
42              Student rights..............................         234
43              Maintenance and control of student records 
                    in Bureau schools.......................         236
44              Grants under the Tribally Controlled Schools 
                    Act.....................................         242
46              Adult Education Program.....................         244
47              Uniform direct funding and support for 
                    Bureau-operated schools.................         247
                     SUBCHAPTER F--TRIBAL GOVERNMENT
61              Preparation of rolls of Indians.............         250
62              Enrollment appeals..........................         261
63              Indian child protection and family violence 
                    prevention..............................         264
67              Preparation of a roll of independent 
                    Seminole Indians of Florida.............         273
75              Revision of the membership roll of the 
                    Eastern Band of Cherokee Indians, North 
                    Carolina................................         277
81              Secretarial election procedures.............         282
82

[Reserved]

83              Procedures for Federal acknowledgment of 
                    Indian tribes...........................         297
84              Encumbrances of tribal land--Contract 
                    approvals...............................         311
87              Use or distribution of Indian judgment funds         313
88              Recognition of attorneys and agents to 
                    represent claimants.....................         318
89              Attorney contracts with Indian tribes.......         318
90              Election of officers of the Osage Tribe.....         321
91              Government of Indian villages, Osage 
                    Reservation, Oklahoma...................         327
                   SUBCHAPTER G--FINANCIAL ACTIVITIES
101             Loans to Indians from the Revolving Loan 
                    Fund....................................         332
103             Loan guaranty, insurance, and interest 
                    subsidy.................................         343
111             Annuity and other per capita payments.......         360
114

Special deposits [Reserved]

115             Trust funds for tribes and individual 
                    Indians.................................         361
117             Deposit and expenditure of individual funds 
                    of members of the Osage Tribe of Indians 
                    who do not have certificates of 
                    competency..............................         386
122             Management of Osage judgment funds for 
                    education...............................         394

[[Page 5]]

124             Deposits of proceeds from lands withdrawn 
                    for Native selection....................         396
134             Partial payment construction charges on 
                    Indian irrigation projects..............         397
135             Construction assessments, Crow Indian 
                    irrigation project......................         399
136             Fort Hall Indian irrigation project, Idaho..         401
137             Reimbursement of construction costs, San 
                    Carlos Indian irrigation project, 
                    Arizona.................................         401
138             Reimbursement of construction costs, Ahtanum 
                    Unit, Wapato Indian irrigation project, 
                    Washington..............................         403
139             Reimbursement of construction costs, Wapato-
                    Satus Unit, Wapato Indian irrigation 
                    project, Washington.....................         404
140             Licensed Indian traders.....................         405
141             Business practices on the Navajo, Hopi and 
                    Zuni Reservations.......................         410
142             Alaska Resupply Operation...................         424
143             Charges for goods and services provided to 
                    non-Federal users.......................         427
                      SUBCHAPTER H--LAND AND WATER
150             Land records and title documents............         430
151             Land acquisitions...........................         433
152             Issuance of patents in fee, certificates of 
                    competency, removal of restrictions, and 
                    sale of certain Indian lands............         438
153             Determination of competency: Crow Indians...         447
158             Osage lands.................................         448
159             Sale of irrigable lands, special water 
                    contract requirements...................         449
160             Inclusion of liens in all patents and 
                    instruments executed....................         450
161             Navajo partitioned lands grazing permits....         451
162             Leases and permits..........................         466
163             General forestry regulations................         561
166             Grazing permits.............................         587
167             Navajo grazing regulations..................         620
168             Grazing regulations for the Hopi Partitioned 
                    Lands area..............................         624
169             Rights-of-way over Indian lands.............         630
170             Tribal Transportation Program...............         657
171             Irrigation operation and maintenance........         706
172             Pueblo Indian lands benefited by irrigation 
                    and drainage works of Middle Rio Grande 
                    Conservancy District, New Mexico........         716

[[Page 6]]

173             Concessions, permits and leases on lands 
                    withdrawn or acquired in connection with 
                    Indian irrigation projects..............         716
175             Electric power utilities....................         720
179             Life estates and future interests...........         725
181             Indian Highway Safety Program...............         727
183             Use and distribution of the San Carlos 
                    Apache Tribe Development Trust Fund and 
                    San Carlos Apache Tribe Lease Fund......         728
                    SUBCHAPTER I--ENERGY AND MINERALS
200             Terms and conditions: Coal leases...........         733
211             Leasing of tribal lands for mineral 
                    development.............................         733
212             Leasing of allotted lands for mineral 
                    development.............................         748
213             Leasing of restricted lands of members of 
                    Five Civilized Tribes, Oklahoma, for 
                    mining..................................         756
214             Leasing of Osage Reservation lands, 
                    Oklahoma, for mining, except oil and gas         769
215             Lead and zinc mining operations and leases, 
                    Quapaw Agency...........................         775
216             Surface exploration, mining, and reclamation 
                    of lands................................         783
217             Management of tribal assets of Ute Indian 
                    Tribe, Uintah and Ouray Reservation, 
                    Utah, by the tribe and the Ute 
                    Distribution Corp.......................         789
224             Tribal energy resource agreements under the 
                    Indian Tribal Energy Development and 
                    Self Determination Act..................         790
225             Oil and gas, geothermal, and solid minerals 
                    agreements..............................         816
226             Leasing of Osage Reservation lands for oil 
                    and gas mining..........................         827
227             Leasing of certain lands in Wind River 
                    Indian Reservation, Wyoming, for oil and 
                    gas mining..............................         843
                     SUBCHAPTER J--FISH AND WILDLIFE
241             Indian fishing in Alaska....................         851
242             Commercial fishing on Red Lake Indian 
                    Reservation.............................         854
243             Reindeer in Alaska..........................         855
247             Use of Columbia River Treaty fishing access 
                    sites...................................         858
248             Use of Columbia River Indian in-lieu fishing 
                    sites...................................         862

[[Page 7]]

249             Off-reservation treaty fishing..............         863
                          SUBCHAPTER K--HOUSING
256             Housing Improvement Program (HIP)...........         867
                   SUBCHAPTER L--HERITAGE PRESERVATION
262             Protection of archaeological resources......         876
265             Establishment of roadless and wild areas on 
                    Indian reservations.....................         881
  SUBCHAPTER M--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT 
                                 PROGRAM
273             Education contracts under Johnson-O'Malley 
                    Act.....................................         882
275             Staffing....................................         896
276             Uniform administrative requirements for 
                    grants..................................         898
                   SUBCHAPTER N--ECONOMIC ENTERPRISES
286             Indian Business Development Program.........         921
290             Tribal revenue allocation plans.............         926
291             Class III gaming procedures.................         930
292             Gaming on trust lands acquired after October 
                    17, 1988................................         934
293             Class III tribal state gaming compact 
                    process.................................         942
294-299

[Reserved]

                 SUBCHAPTER O--MISCELLANEOUS [RESERVED]
Appendix to Chapter I--Extension of the Trust or Restricted 
  Status of Certain Indian Lands............................         945

[[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 received 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 the 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

[[Page 18]]

part 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_COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE--Table of Contents



                   Subpart A_Application; Jurisdiction

Sec.
11.100 Where are Courts of Indian Offenses established?
11.102 What is the purpose of this part?
11.104 When does this part apply?
11.106 Who is an Indian for purposes of this part?
11.108 How are tribal ordinances affected by this part?
11.110 How are tribal customs affected by this part?
11.112 [Reserved]
11.114 What is the criminal jurisdiction of the Court of Indian 
          Offenses?
11.116 What is the civil jurisdiction of a Court of Indian Offenses?
11.118 What are the jurisdictional limitations of the Court of Indian 
          Offenses?

     Subpart B_Courts of Indian Offenses; Personnel; Administration

11.200 What is the composition of the Court of Indian Offenses?
11.201 How are magistrates for the Court of Indian Offenses appointed?
11.202 How is a magistrate of the Court of Indian Offenses removed?
11.203 How are the clerks of the Court of Indian Offenses appointed and 
          what are their duties?
11.204 Prosecutors.
11.205 Are there standards for the appearance of attorneys and lay 
          counselors?
11.206 Is the Court of Indian Offenses a court of record?
11.207 What are the responsibilities of Bureau of Indian Affairs 
          employees?
11.208 May Individual Indian Money accounts be used for payment of 
          judgments?
11.209 How does the Court of Indian Offenses dispose 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.

[[Page 20]]

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.
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.
11.451 Abuse of psychotoxic chemical solvents.
11.452 Possession of a controlled substance.
11.453 Prostitution or solicitation.
11.454 Domestic violence.

                         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.

[[Page 21]]

                  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.
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.

       Subpart L_Child protection and domestic violence procedures

11.1200 Definitions.
11.1202 How to petition for an order of protection.
11.1204 Obtaining an emergency order of protection.
11.1206 Obtaining a regular (non-emergency) order of protection.
11.1208 Service of the protection order.
11.1210 Duration and renewal of a regular protection order.
11.1212 Consequences of disobedience or interference.
11.1214 Relationship of this part to other remedies.

    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

    Source: 73 FR 39859, July 11, 2008, unless otherwise noted.



Sec.  11.100  Where are Courts of Indian Offenses established?

    (a) Unless indicated otherwise in this title, these Courts of Indian 
Offenses are established and the regulations in this part apply to the 
Indian country (as defined in 18 U.S.C. 1151 and by Federal court 
precedent) occupied by the following tribes:
    (1) Santa Fe Indian School Property, including the Santa Fe Indian 
Health Hospital, and the Albuquerque Indian School Property (land held 
in trust for the 19 Pueblos of New Mexico);
    (2) Skull Valley Band of Goshutes Indians (Utah);
    (3) Te-Moak Band of Western Shoshone Indians (Nevada);
    (4) Tribes located in the former Oklahoma Territory (Oklahoma) that 
are listed in paragraph (b) of this section;
    (5) Tribes located in the former Indian Territory (Oklahoma) that 
are listed in paragraph (c) of this section;
    (6) Ute Mountain Ute Tribe (Colorado); and
    (7) Winnemucca Indian Tribe.
    (b) This part applies to the following tribes located in the former 
Oklahoma Territory (Oklahoma):
    (1) Apache Tribe of Oklahoma;
    (2) Caddo Nation of Oklahoma;
    (3) Comanche Nation (except Comanche Children's Court);
    (4) Delaware Nation;
    (5) Fort Sill Apache Tribe of Oklahoma;
    (6) Kiowa Indian Tribe of Oklahoma;
    (7) Otoe-Missouria Tribe of Indians; and
    (8) Wichita and Affiliated Tribe of Indians.
    (c) This part applies to the following tribes located in the former 
Indian Territory (Oklahoma):
    (1) Eastern Shawnee Tribe of Oklahoma;
    (2) Modoc Tribe of Oklahoma;
    (3) Ottawa Tribe of Oklahoma;
    (4) Peoria Tribe of Indians of Oklahoma; and
    (5) Seneca-Cayuga Tribe of Oklahoma.

[[Page 22]]

    (d) This part applies to the Indian country (as defined in 18 U.S.C. 
1151 and by Federal precedent) within the exterior boundaries of the 
Wind River Reservation in Wyoming.

[78 FR 14020, Mar. 4, 2013, as amended at 81 FR 74677, Oct. 27, 2016]



Sec.  11.102  What is the purpose of this part?

    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.



Sec.  11.104  When does this part apply?

    (a) The regulations in this part continue to apply to each tribe 
listed in Sec.  11.100 until either:
    (1) BIA and the tribe enter into a contract or compact for the tribe 
to provide judicial services; or
    (2) The tribe has put into effect a law-and-order code that 
establishes a court system and that meets the requirements of paragraph 
(b) of this section.
    (b) When a tribe adopts a legal code and establishes a judicial 
system, the tribe must notify the Assistant Secretary--Indian Affairs or 
his or her designee. The law-and-order code must be adopted by the tribe 
in accordance with its constitution and by-laws or other governing 
documents.



Sec.  11.106  Who is an Indian for purposes of this part?

    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 the 
purposes of 18 U.S.C. 1152-1153.



Sec.  11.108  How are tribal ordinances affected by this part?

    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:
    (a) Are enforceable in the Court of Indian Offenses having 
jurisdiction over the Indian country occupied by that tribe; and
    (b) Supersede any conflicting regulation in this part.



Sec.  11.110  How are tribal customs affected by this part?

    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.



Sec.  11.112  [Reserved]



Sec.  11.114  What is the criminal jurisdiction 
of the Court of Indian Offenses?

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses has 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 may be prosecuted, tried or punished for any offense 
unless the complaint is filed within 5 years after the offense is 
committed.



Sec.  11.116  What is the civil jurisdiction of a Court of Indian Offenses?

    (a) Except as otherwise provided in this title, each Court of Indian 
Offenses has jurisdiction over any civil action arising within the 
territorial jurisdiction of the court in which:
    (1) The defendant is an Indian; or
    (2) Other claims, provided at least one party is an Indian.
    (b) Any civil action commenced in a Court of Indian Offenses is 
barred unless the complaint is filed within 3 years after the right of 
action first accrues.



Sec.  11.118  What are the jurisdictional limitations 
of the Court of Indian Offenses?

    (a) A Court of Indian Offenses may exercise over a Federal or State 
official only the same jurisdiction that it could exercise if it were a 
tribal court. The

[[Page 23]]

jurisdiction of Courts of Indian Offenses does not extend to Federal or 
State employees acting within the scope of their employment.
    (b) A Court of Indian Offenses may not adjudicate an election 
dispute, take jurisdiction over a suit against a tribe, or adjudicate 
any internal tribal government dispute, unless the relevant tribal 
governing body passes a resolution, ordinance, or referendum granting 
the court jurisdiction.
    (c) In deciding who is a tribal official, BIA will give deference to 
a decision of the Court of Indian Offenses, acting as a tribal forum by 
resolution or ordinance of a tribal governing body under paragraph (b) 
of this section.
    (d) 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.



     Subpart B_Courts of Indian Offenses; Personnel; Administration



Sec.  11.200  What is the composition of the Court of Indian Offenses?

    (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 must be heard by a panel of magistrates who were not 
involved at the tribal/trial level.
    (d) Decisions of the appellate division are final and are not 
subject to administrative appeals within the Department of the Interior.

[58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39860, July 11, 2008]



Sec.  11.201  How are magistrates for the Court of Indian Offenses appointed?

    (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  How is a magistrate of the Court of Indian Offenses removed?

    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  How are the clerks of the Court of Indian Offenses appointed 
and what are their duties?

    (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.

[[Page 24]]

    (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  Are there standards for the appearance of attorneys 
and lay counselors?

    (a) No defendant in a criminal proceeding shall be denied the right 
to counsel.
    (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  Is the Court of Indian Offenses a court of record?

    (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  What are the responsibilities 
of 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  May Individual Indian Money accounts be used 
for payment of judgments?

    (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  How does the Court of Indian Offenses dispose 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

[[Page 25]]

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, 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.

[[Page 26]]



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 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

[[Page 27]]

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 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.
    (e) 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

[[Page 28]]

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.
    (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) A defendant has a right, upon demand, to a jury trial in any 
criminal case:
    (1) That is punishable by a maximum sentence of one year 
incarceration; or
    (2) In which the prosecutor informs the court before the case comes 
to trial that a jail sentence will be sought.
    (b) If the prosecutor informs the court that no sentence of 
incarceration will be sought, the court may not impose a sentence of 
incarceration for the offense.
    (c) A jury must consist of not less than six residents of the 
vicinity in which trial is held, selected from a list of eligible jurors 
prepared each year by the court.
    (1) An eligible juror must:
    (i) Be at least 18 years of age;
    (ii) Not have been convicted of a felony; and
    (iii) Be otherwise qualified according to standards established by 
the Court of Indian Offenses under its general rulemaking authority.

[[Page 29]]

    (2) Any party may challenge without cause a maximum of three members 
of the jury panel chosen under this section.
    (d) 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.
    (e) 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.
    (f) 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.

[58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39861, July 11, 2008]



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 up to the maximum permitted by the 
section defining the offense, but in no case for longer than one year; 
and
    (2) A fine in an amount up to the maximum permitted by the section 
defining the offense, but in no case greater than $5,000.
    (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.

[58 FR 54411, Oct. 21, 1993, as amended at 73 FR 39861, July 11, 2008]



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

[[Page 30]]

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 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 freedom 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 assault 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

[[Page 31]]

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.



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 pecuniary 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

[[Page 32]]

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
    (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

[[Page 33]]

    (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, 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

[[Page 34]]

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 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

[[Page 35]]

    (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 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

[[Page 36]]

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 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 person convicted of an offense under the regulations in this part 
may be sentenced as follows:

------------------------------------------------------------------------
         Type of offense                 Maximum allowable sentence
------------------------------------------------------------------------
(a) Misdemeanor..................  Up to 1 year in prison, or a fine of
                                    up to $5,000, or both.
(b) Petty misdemeanor............  Up to 6 months in prison, or a fine
                                    of up to $2,500, or both.
(c) Violation....................  Up to 3 months in prison, or a fine
                                    of up to $1,000, or both.
------------------------------------------------------------------------


[73 FR 39861, July 11, 2008]



Sec.  11.451  Abuse of psychotoxic chemical solvents.

    (a) It is unlawful to:
    (1) Intentionally smell or inhale the fumes of any psychotoxic 
chemical solvent or possess, purchase, or attempt to possess or purchase 
any psychotoxic

[[Page 37]]

chemical solvent, for the purpose of causing intoxication, inebriation, 
excitement, stupefaction, or the dulling of the brain or nervous system; 
or
    (2) Sell, give away, dispense, or distribute, or offer to sell, give 
away, dispense, or distribute, any psychotoxic chemical solvent knowing 
or believing that the purchaser or another person intends to use the 
solvent in violation of this section.
    (b) This section does not apply to inhalation of anesthesia for 
medical or dental purposes.
    (c) As used in this section, ``psychotoxic chemical solvent'' means 
any glue, gasoline, paint, hair spray, Lysol, or other substance 
containing one or more of the following chemical compounds:
    (1) Acetone and acetate;
    (2) Benzene;
    (3) Butyl-alcohol;
    (4) Methyl ethyl;
    (6) Peptone;
    (7) Pentachlorophenol;
    (8) Petroleum ether; or
    (9) Any other chemical substance the inhalation of whose fumes or 
vapors can cause intoxication, inebriation, excitement, stupefaction, or 
the dulling of the brain or nervous system.
    (d) The statement listing the contents of a substance packaged in a 
container by the manufacturer or producer thereof is rebuttable proof of 
the contents of the substance without further expert testimony if it 
reasonably appears that the substance in the container is the same 
substance placed therein by the manufacturer or producer.
    (e) Abuse of psychotoxic chemical solvents, as defined in this 
section, is punishable as a petty misdemeanor, and the court may order 
any person using psychotoxic chemical solvents as described in paragraph 
(a) of this section to be committed to a facility for treatment for up 
to 6 months.
    (f) Psychotoxic chemical solvents kept or used in violation of this 
section are declared contraband. Upon proof of a violation, these 
solvents must be forfeited to the Federal government by order of the 
court, following public notice and an opportunity for any person 
claiming an interest in the solvents to be heard.

[73 FR 39861, July 11, 2008]



Sec.  11.452  Possession of a controlled substance.

    (a) It is unlawful for a person to knowingly or intentionally 
possess any controlled substance listed in 21 CFR Part 1308, as amended, 
unless:
    (1) The Controlled Substances Act or Drug Enforcement Agency 
regulations specifically authorizes possession of the substance;
    (2) The substance or preparation is excluded or exempted by 21 CFR 
1308.21 through 1308.35, as amended; or
    (3) The provisions of 42 U.S.C. 1996a (regarding traditional Indian 
religious use of peyote) apply.
    (b) Violations of paragraph (a) of this section are punishable as a 
misdemeanor.
    (c) Any controlled substance involved in violation of this section 
is declared to be contraband. Upon proof of a violation of this section, 
the controlled substance must be forfeited to the Federal Government by 
order of the court, after public notice and an opportunity for any 
person claiming an interest in the substance to be heard.
    (d) Any personal property used to transport, conceal, manufacture, 
cultivate, or distribute a controlled substance in violation of this 
section is subject to forfeiture to the Federal Government by order of 
the court upon proof of this use, following public notice and 
opportunity for any person claiming an interest in the property to be 
heard.

[73 FR 39861, July 11, 2008]



Sec.  11.453  Prostitution or solicitation.

    A person who commits prostitution or solicitation or who knowingly 
keeps, maintains, rents, or leases, any house, room, tent, or other 
place for the purpose of prostitution is guilty of a misdemeanor.

[73 FR 39861, July 11, 2008]



Sec.  11.454  Domestic violence.

    (a) A person who commits domestic violence by inflicting physical 
harm, bodily injury, or sexual assault, or inflicting the fear of 
imminent physical

[[Page 38]]

harm, bodily injury, or sexual assault on a family member, is guilty of 
a misdemeanor.
    (b) For purposes of this section, a family member is any of the 
following:
    (1) A spouse;
    (2) A former spouse;
    (3) A person related by blood;
    (4) A person related by existing or prior marriage;
    (5) A person who resides or resided with the defendant;
    (6) A person with whom the defendant has a child in common; or
    (7) A person with whom the defendant is or was in a dating or 
intimate relationship.

[73 FR 39861, July 11, 2008]



                         Subpart E_Civil Actions



Sec.  11.500  Law applicable to civil actions.

    (a) In all civil cases, the Magistrate of a Court of Indian Offenses 
shall have discretion to apply:
    (1) Any laws of the United States that may be applicable;
    (2) Any authorized regulations contained in the Code of Federal 
Regulations; and
    (3) Any laws or customs of the tribe occupying the area of Indian 
country over which the court has jurisdiction that are not prohibited by 
Federal laws.
    (b) The delineation in paragraph (a) of this section does not 
establish a hierarchy relative to the applicability of specific law in 
specific cases.
    (c) Where any doubt arises as to the customs of the tribe, the court 
may request the advice of counselors familiar with those customs.
    (d) Any matters that are not covered by the laws or customs of the 
tribe, or by applicable Federal laws and regulations, may be decided by 
the Court of Indian Offenses according to the laws of the State in which 
the matter in dispute lies.

[73 FR 39862, July 11, 2008]



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 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.

[[Page 39]]



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.



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

[[Page 40]]

    (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 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;

[[Page 41]]

    (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 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.

[[Page 42]]

    (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 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

[[Page 43]]

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 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.

[[Page 44]]



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:
    (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

[[Page 45]]

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.



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.

[[Page 46]]

    (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 Sec. Sec.  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.



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 Sec. Sec.  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 Sec. Sec.  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.

[[Page 47]]



Sec.  11.906  Rights of parties.

    (a) In all hearings and proceedings under Sec. Sec.  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 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 Sec. Sec.  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.

[[Page 48]]

    (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.



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.

[[Page 49]]

    (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:
    (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.

[[Page 50]]



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 Sec. Sec.  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.



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;

[[Page 51]]

    (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.



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.

[[Page 52]]



                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.
    (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

[[Page 53]]

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 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 Sec. Sec.  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

[[Page 54]]

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 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;

[[Page 55]]

    (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.



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:

[[Page 56]]

    (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.



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.



       Subpart L_Child Protection and Domestic Violence Procedures

    Source: 73 FR 39862, July 11, 2008, unless otherwise noted.

[[Page 57]]



Sec.  11.1200  Definitions.

    For purposes of this subpart:
    Domestic violence means to inflict physical harm, bodily injury, or 
sexual assault, or the fear of imminent physical harm, bodily injury, or 
sexual assault on a family member.
    Family member means any of the following:
    (1) A spouse;
    (2) A former spouse;
    (3) A person related by blood;
    (4) A person related by existing or prior marriage;
    (5) A person who resides or resided with the defendant;
    (6) A person with whom the defendant has a child in common; or
    (7) A person with whom the defendant is or was in a dating or 
intimate relationship.
    Parent means persons who have a child in common, regardless of 
whether they have been married or have lived together at any time.



Sec.  11.1202  How to petition for an order of protection.

    A victim of domestic violence, or the parent, guardian of a victim, 
or a concerned adult may petition the court under this subpart for an 
order of protection.
    (a) The petition must be made under oath or accompanied by a sworn 
affidavit setting out specific facts describing the act of domestic 
violence.
    (b) The petitioner is not required to file for annulment, 
separation, or divorce in order to obtain an order of protection. 
However, the petition should state whether any legal action is pending 
between the petitioner and the respondent.
    (c) The Court may develop simplified petition forms with 
instructions for completion and make them available to petitioners not 
represented by counsel. Law enforcement agencies may keep the forms on 
hand and make them available upon request to victims of domestic 
violence.



Sec.  11.1204  Obtaining an emergency order of protection.

    (a) When a victim files a petition for an order of protection under 
Sec.  11.202(a), the court may immediately grant an ex parte emergency 
order of protection if the petition clearly shows that an act of 
domestic violence has occurred. The order must meet the content 
requirements of Sec.  11.206 (a) and (b).
    (b) If the court does not immediately grant an emergency order of 
protection under paragraph (a) of this section, the court must either:
    (1) Within 72 hours after the victim files a petition, serve notice 
to appear upon both parties and hold a hearing on the petition for order 
of protection; or
    (2) If a notice of hearing cannot be served within 72 hours, issue 
an emergency order of protection.
    (c) If the court issues an ex parte emergency order of protection 
under paragraph (a) of this section, it must within 10 days hold a 
hearing on the question of continuing the order. If notice of hearing 
cannot be served within 10 days:
    (1) The emergency order of protection is automatically extended for 
10 days; and
    (2) If after the 10-day extension, notice to appear cannot be 
served, the emergency order of protection expires.
    (d) If the court issues an ex parte emergency order of protection 
under paragraph (b)(2) of this section, it must cause the order to be 
served on the person alleged to have committed a family violence act and 
seek to hold a hearing as soon as possible. If a hearing cannot be held 
within 10 days, the petitioner may ask the court to renew the emergency 
protection order.



Sec.  11.1206  Obtaining a regular (non-emergency) order of protection.

    Following a hearing and finding that an act of domestic violence 
occurred, the court may issue an order of protection. The order must 
meet the requirements of paragraph (a) of this section and may meet the 
requirements of paragraph (b) of this section. Either party may request 
a review hearing to amend or vacate the order of protection.
    (a) The order of protection must do all of the following:
    (1) Specifically describe in clear language the behavior the court 
has ordered he or she do or refrain from doing;

[[Page 58]]

    (2) Give notice that violation of any provision of the order of 
protection constitutes contempt of court and may result in a fine or 
imprisonment, or both; and
    (3) Indicate whether the order of protection supersedes or alters 
prior orders pertaining to matters between the parties.
    (b) The order of protection may do any of the following:
    (1) Order the person who committed the act of domestic violence to 
refrain from acts or threats of violence against the petitioner or any 
other family member;
    (2) Order that the person who committed the act of domestic violence 
be removed from the home of the petitioner;
    (3) Grant sole possession of the residence or household to the 
petitioner during the period the order of protection is effective, or 
order the person who has committed an act of domestic violence to 
provide temporary suitable alternative housing for the petitioner and 
other family members to whom the respondent owes a legal obligation of 
support;
    (4) Award temporary custody of any children involved when 
appropriate and provide for visitation rights, child support, and 
temporary support for the petitioner on a basis which gives primary 
consideration to the safety of the petitioner and other household 
members;
    (5) Order the person who is found to have committed an act of 
domestic violence not to initiate contact with the petitioner;
    (6) Restrain the parties from transferring, concealing, encumbering, 
or otherwise disposing of one another's property or the joint property 
of the parties except in the usual course of business or for the 
necessities of life, and order the parties to account to the court for 
all such transferring, encumbrances, and expenditures made after the 
order is served or communicated; and
    (7) Order other injunctive relief as the court deems necessary for 
the protection of the petitioner, including orders to law enforcement 
agencies as provided by this subpart.



Sec.  11.1208  Service of the protection order.

    When an order of protection is granted under this subpart:
    (a) The petitioner must file it with the clerk of the court;
    (b) The clerk of the court must send a copy to a law enforcement 
agency with jurisdiction over the area in which the court is located;
    (c) The order must be personally served upon the respondent, unless 
the respondent or his or her attorney was present at the time the order 
was issued; and
    (d) If the court finds the petitioner unable to pay court costs, the 
order will be served without cost to the petitioner.



Sec.  11.1210  Duration and renewal of a regular protection order.

    An order of protection granted by the court:
    (a) Is effective for a fixed period of time, which is up to a 
maximum of 6 months; and
    (b) May be extended for good cause upon motion of the petitioner for 
an additional period of up to 6 months each time a petition is 
presented. A petitioner may request as many extensions as necessary 
provided that the court determines that good cause exists.



Sec.  11.1212  Consequences of disobedience or interference.

    Any willful disobedience or interference with any court order 
constitutes contempt of court which may result in a fine or 
imprisonment, or both, in accordance with this part.



Sec.  11.1214  Relationship of this subpart to other remedies.

    The remedies provided in this subpart are in addition to the other 
civil or criminal remedies available to the petitioner.



PART 12_INDIAN COUNTRY LAW ENFORCEMENT--Table of Contents



                       Subpart A_Responsibilities

Sec.
12.1 Who is responsible for the Bureau of Indian Affairs law enforcement 
          function?

[[Page 59]]

12.2 What is the role of the Bureau of Indian Affairs Director of Law 
          Enforcement Services?
12.3 Who supervises Bureau of Indian Affairs criminal investigators?
12.4 Who supervises the Bureau of Indian Affairs uniformed police, 
          detention, and conservation enforcement functions?

                    Subpart B_Policies and Standards

12.11 Do I have to follow these regulations?
12.12 What about self-determination?
12.13 What happens if I do not follow the rules in this part?
12.14 Where can I find specific policies and standards for law 
          enforcement functions in Indian country?

                  Subpart C_Authority and Jurisdiction

12.21 What authority is given to Indian country law enforcement officers 
          to perform their duties?
12.22 Can Bureau of Indian Affairs law enforcement officers enforce 
          tribal laws?
12.23 What are the jurisdictional limits in Indian country?

           Subpart D_Qualifications and Training Requirements

12.31 Are there any minimum employment standards for Indian country law 
          enforcement personnel?
12.32 Do minimum employment standards include a background 
          investigation?
12.33 Are Indian country law enforcement officers paid less than other 
          law enforcement officers?
12.34 Do minimum salaries and position classifications apply to a tribe 
          that has contracted or compacted law enforcement under self-
          determination?
12.35 Do Indian country law enforcement officers complete any special 
          training?
12.36 Does other law enforcement training count?

                    Subpart E_Records and Information

12.41 Who keeps statistics for Indian country law enforcement 
          activities?
12.42 Do Indian country law enforcement programs share information with 
          their own communities or other agencies?

                            Subpart F_Conduct

12.51 Must Indian country law enforcement officers follow a code of 
          conduct?
12.52 How do I report misconduct?
12.53 Who investigates officer misconduct?
12.54 What can I do if I believe my civil rights have been violated?
12.55 Are there any limits on how much force an officer can use when 
          performing law enforcement duties?

                       Subpart G_Support Functions

12.61 Can I be paid for information that helps solve a crime?
12.62 Who decides what uniform an Indian country law enforcement officer 
          can wear and who pays for it?
12.63 Do Indian country law enforcement officers perform other duties as 
          well?

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

    Source: 62 FR 15611, Apr. 2, 1997, unless otherwise noted.



                       Subpart A_Responsibilities



Sec.  12.1  Who is responsible for the Bureau of Indian Affairs 
law enforcement function?

    The Commissioner of Indian Affairs, or in the absence of a 
Commissioner, the Deputy Commissioner, is responsible for Bureau of 
Indian Affairs-operated and contracted law enforcement programs, and for 
overall policy development and implementation of the Indian Law 
Enforcement Reform Act, Public Law 101-379 (25 U.S.C. 2801 et seq.).



Sec.  12.2  What is the role of the Bureau of Indian Affairs Director 
of Law Enforcement Services?

    The Director of the Office of Law Enforcement Services for the 
Bureau of Indian Affairs (Director) has been delegated the 
responsibility for the development of law enforcement and detention 
policies, standards, and management of all Bureau of Indian Affairs 
(BIA) criminal investigations, drug enforcement, training, internal 
affairs, inspection and evaluation, emergency response forces, and other 
national level Indian country law enforcement initiatives. The Director 
publishes these policies and standards in law enforcement manuals and 
handbooks. The Director is also directly responsible for developing 
crime prevention and outreach programs within Indian country law 
enforcement.



Sec.  12.3  Who supervises Bureau of Indian Affairs criminal investigators?

    All BIA criminal investigators are supervised by other criminal 
investigators within the Office of Law Enforcement Services.

[[Page 60]]



Sec.  12.4  Who supervises the Bureau of Indian Affairs uniformed police, 
detention, and conservation enforcement functions?

    The agency superintendent is directly responsible for the operation 
and management of BIA uniformed police operations, detention facilities, 
and conservation enforcement operations at any agency having these 
programs. The agency superintendent must also ensure technical support 
is provided to any agency contracting the law enforcement and/or 
detention program.



                    Subpart B_Policies and Standards



Sec.  12.11  Do I have to follow these regulations?

    You must follow the minimum standards outlined in the regulations in 
this part if you are part of a BIA or tribal law enforcement program 
receiving Federal funding or operating under a BIA law enforcement 
commission.



Sec.  12.12  What about self-determination?

    The regulations in this part are not intended to discourage 
contracting of Indian country law enforcement programs under the Indian 
Self-determination and Education Assistance Act (Pub. L. 93-638, as 
amended, 25 U.S.C. 450). The Deputy Commissioner of Indian Affairs will 
ensure minimum standards are maintained in high risk activities where 
the Federal government retains liability and the responsibility for 
settling tort claims arising from contracted law enforcement programs. 
It is not fair to law abiding citizens of Indian country to have 
anything less than a professional law enforcement program in their 
community. Indian country law enforcement programs that receive Federal 
funding and/or commissioning will be subject to a periodic inspection or 
evaluation to provide technical assistance, to ensure compliance with 
minimum Federal standards, and to identify necessary changes or 
improvements to BIA policies.



Sec.  12.13  What happens if I do not follow the rules in this part?

    Your BIA law enforcement commission may be revoked, your law 
enforcement contract may be canceled, and you may no longer be eligible 
for tribal shares allocated from the law enforcement budget.



Sec.  12.14  Where can I find specific policies and standards 
for law enforcement functions in Indian country?

    BIA will ensure that all Indian country law enforcement programs are 
provided a copy of the most current policy manuals and handbooks. Every 
Indian country law enforcement program covered by the regulations in 
this part must maintain an effective and efficient law enforcement 
program meeting minimal qualitative standards and procedures specified 
in chapter 68 Bureau of Indian Affairs Manual (BIAM) and the Law 
Enforcement Handbook.



                  Subpart C_Authority and Jurisdiction



Sec.  12.21  What authority is given to Indian country 
law enforcement officers to perform their duties?

    BIA law enforcement officers are commissioned under the authority 
established in 25 U.S.C. 2803. BIA may issue law enforcement commissions 
to other Federal, State, local and tribal full-time certified law 
enforcement officers to obtain active assistance in enforcing applicable 
Federal criminal statutes, including Federal hunting and fishing 
regulations, in Indian country.
    (a) BIA will issue commissions to other Federal, State, local and 
tribal full-time certified law enforcement officers only after the head 
of the local government or Federal agency completes an agreement with 
the Commissioner of Indian Affairs asking that BIA issue delegated 
commissions. The agreement must include language that allows the BIA to 
evaluate the effectiveness of these special law enforcement commissions 
and to investigate any allegations of misuse of authority.
    (b) Tribal law enforcement officers operating under a BIA contract 
or compact are not automatically commissioned as Federal officers; 
however, they may be commissioned on a case-by-case basis.

[[Page 61]]



Sec.  12.22  Can Bureau of Indian Affairs law enforcement officers 
enforce tribal laws?

    BIA officers will enforce tribal laws only with the permission of 
the tribe. Local programs are encouraged to make arrangements and 
agreements with local jurisdictions to facilitate law enforcement 
objectives.



Sec.  12.23  What are the jurisdictional limits in Indian country?

    The Department of the Interior and the Department of Justice must 
maintain and periodically review and update a memorandum of 
understanding describing the relationship between the Federal Bureau of 
Investigation and the Bureau of Indian Affairs in the investigation and 
prosecution of major crimes in Indian country. Any law enforcement 
programs performing duties under the authority of 25 U.S.C. 2803 must 
follow the guidelines in the memorandum of understanding and any local 
United States Attorney's guidelines for the investigation and 
prosecution of Federal crimes.



           Subpart D_Qualifications and Training Requirements



Sec.  12.31  Are there any minimum employment standards for Indian country 
law enforcement personnel?

    The Director must develop, maintain, and periodically review the 
qualification standards, including medical qualification standards, for 
all BIA law enforcement, detention, and conservation enforcement 
occupational series. The standards will be no less stringent than the 
minimum standards established by the U.S. Office of Personnel Management 
(OPM) for these occupational series, and may exceed the OPM standards. 
BIA standards are available for review at any BIA personnel office. All 
tribal programs are encouraged to develop standards at least as 
stringent as those established for BIA officers.



Sec.  12.32  Do minimum employment standards include 
a background investigation?

    Law enforcement authority is only entrusted to personnel possessing 
adequate education and/or experience, training, aptitude, and high moral 
character. All Indian country law enforcement programs receiving Federal 
funding and/or authority must ensure that all law enforcement officers 
successfully complete a thorough background investigation no less 
stringent than required of a Federal officer performing the same duties. 
The background investigations of applicants and employees must be 
adjudicated by trained and qualified security professionals. All 
background investigations must be documented and available for 
inspection by the Bureau of Indian Affairs.



Sec.  12.33  Are Indian country law enforcement officers paid less than 
other law enforcement officers?

    An officer's pay is determined by his/her grade and classification. 
The Commissioner of Indian Affairs must ensure that all BIA law 
enforcement officer positions are established at no lower grade level on 
the Federal scale than similar Federal law enforcement officer positions 
in other agencies. No BIA position performing commissioned law 
enforcement duties will be classified in other than the GS 0083, police 
officer series, for uniformed officers and the GS 1811, criminal 
investigating series, for criminal investigators.



Sec.  12.34  Do minimum salaries and position classifications apply to a tribe 
that has contracted or compacted law enforcement under self-determination?

    Any contract or compact with the BIA to provide law enforcement 
services for an Indian tribe must require a law enforcement officer to 
be paid at least the same salary as a BIA officer performing the same 
duties.



Sec.  12.35  Do Indian country law enforcement officers complete 
any special training?

    Law enforcement personnel of any program funded by the Bureau of 
Indian Affairs must not perform law enforcement duties until they have 
successfully completed a basic law enforcement training course 
prescribed by the Director. The Director will also prescribe mandatory 
supplemental and in-service training courses.

[[Page 62]]



Sec.  12.36  Does other law enforcement training count?

    All requests for evaluation of equivalent training must be submitted 
to the Indian Police Academy for review, with final determination made 
by the Director. Requests for a waiver of training requirements to use 
personnel before completing the required courses of instruction must be 
submitted to the Director and approved or disapproved by the 
Commissioner of Indian Affairs. In no case will such a waiver allow 
personnel to be used in any position for more than one year without 
achieving training standards. Failure to complete basic training 
requirements will result in removal from a law enforcement position.



                    Subpart E_Records and Information



Sec.  12.41  Who keeps statistics for Indian country 
law enforcement activities?

    The Director maintains a criminal justice information system for 
Indian country. The Director will prescribe the types of data to be 
collected and the reporting format to be used to collect information and 
assemble reports on crime reported in Indian country. These reports may 
be provided to the Department of Justice. Any law enforcement program 
receiving funding from the BIA must use the same reporting format and 
submit the same statistical reports to the Office of Law Enforcement 
Services as prescribed by the Director and as are required of all BIA 
law enforcement programs.



Sec.  12.42  Do Indian country law enforcement programs share information 
with their own communities or other agencies?

    At intervals established by the Director, each BIA criminal 
investigations program, and any investigations program receiving BIA 
funds will consult with local tribal leaders and managers of local 
patrol and detention programs. They will discuss the quality of the 
local investigations program and offer feedback and technical 
assistance. There will be no requirement to disclose confidential 
investigative information or to compromise ongoing investigations during 
this process.



                            Subpart F_Conduct



Sec.  12.51  Must Indian country law enforcement officers 
follow a code of conduct?

    All law enforcement programs receiving Bureau of Indian Affairs 
funding or commissioning must establish a law enforcement code of 
conduct which establishes specific guidelines for conduct on and off 
duty, impartiality, and professional conduct in the performance of duty, 
and acceptance of gifts or favors. Each officer must acknowledge in 
writing receiving and understanding of this code of conduct. The 
acknowledgment will remain on file with the law enforcement program 
manager as long as the officer is employed there. Training will be 
conducted on this code of conduct and other ethics issues at least once 
each year.



Sec.  12.52  How do I report misconduct?

    The Director will develop and maintain a reporting system that 
allows any resident of or visitor to Indian country to report officer 
misconduct. Each law enforcement program in Indian country will maintain 
instructions on how to register a complaint. An overview of these steps 
must be posted for public viewing at each law enforcement facility in 
Indian country.



Sec.  12.53  Who investigates officer misconduct?

    The Director, Office of Law Enforcement Services maintains an 
internal affairs program that investigates all allegations of misconduct 
by BIA officers, and any officer receiving funding and/or authority from 
the BIA. All allegations of misconduct must be thoroughly investigated 
and appropriate action taken when warranted. Any person having knowledge 
of officer misconduct must report that information to the officer's 
supervisor. The supervisor must immediately report allegations to the 
internal affairs unit. Depending upon the severity of the allegation, 
the matter may be dealt with locally or it will be investigated by the 
internal affairs unit. Failure of any BIA employee to report known 
allegations may be considered misconduct in

[[Page 63]]

itself. Citizens may report officer misconduct directly to the internal 
affairs unit if that is more practical.



Sec.  12.54  What can I do if I believe my civil rights have been violated?

    All allegations of civil rights violations must be reported 
immediately to the internal affairs unit. That office will ensure that 
allegations are immediately reported to the Civil Rights Division of the 
U. S. Department of Justice through established procedures. BIA's 
internal affairs unit may also investigate the matter and make 
recommendations for additional action as necessary.



Sec.  12.55  Are there any limits on how much force an officer can use 
when performing law enforcement duties?

    The Director will develop and maintain the use of force policy for 
all BIA law enforcement personnel, and for programs receiving BIA 
funding or authority. Training in the use of force, to include non-
lethal measures, will be provided annually. All officers will 
successfully complete a course of instruction in firearms, to include 
judgement pistol shooting, approved by the Indian Police Academy before 
carrying a firearm on or off duty.



                       Subpart G_Support Functions



Sec.  12.61  Can I be paid for information that helps solve a crime?

    The Director can spend money to purchase evidence or information, or 
to offer a reward, in the investigation of a crime. This is subject to 
the availability of funds. This authority may be delegated in writing to 
supervisory criminal investigators within the Office of Law Enforcement 
Services in the BIA. The Director must develop policies and procedures 
for the expenditure, control, and audit of these funds before their use.



Sec.  12.62  Who decides what uniform an Indian country 
law enforcement officer can wear and who pays for it?

    Each local law enforcement program must establish its own uniform 
requirements for patrol and detention personnel. Uniformed BIA police 
officers may be paid an annual uniform allowance not to exceed $400. 
Local programs may provide uniforms and related equipment to officers in 
lieu of this payment. All law enforcement officers must also have their 
official identification on their person at all times when performing law 
enforcement duties. Uniforms, when worn, will be plainly distinguishable 
from the uniforms of any non-law enforcement personnel working on the 
reservation.



Sec.  12.63  Do Indian country law enforcement officers 
perform other duties as well?

    Law enforcement commissions will only be issued by the Bureau of 
Indian Affairs to persons occupying positions as full-time officers. 
Bureau of Indian Affairs funded or commissioned criminal investigators 
will not be responsible for supervising or managing any patrol, 
detention, or other uniformed police programs.



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

[[Page 64]]

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 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

[[Page 65]]

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.
    (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,

[[Page 66]]

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 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 67]]



                          SUBCHAPTER C_PROBATE





PART 15_PROBATE OF INDIAN ESTATES, EXCEPT FOR MEMBERS OF THE OSAGE NATION 
AND THE FIVE CIVILIZED TRIBES--Table of Contents



                         Subpart A_Introduction

Sec.
15.1 What is the purpose of this part?
15.2 What definitions do I need to know?
15.3 Who can make a will disposing of trust or restricted land or trust 
          personalty?
15.4 What are the requirements for a valid will?
15.5 May I revoke my will?
15.6 May my will be deemed revoked by the operation of the law of any 
          State?
15.7 What is a self-proved will?
15.8 May I make my will, codicil, or revocation self-proved?
15.9 What information must be included in an affidavit for a self-proved 
          will, codicil, or revocation?
15.10 What assets will the Secretary probate?
15.11 What are the basic steps of the probate process?
15.12 What happens if assets in a trust estate may be diminished or 
          destroyed while the probate is pending?

                 Subpart B_Starting the Probate Process

15.101 When should I notify the agency of a death of a person owning 
          trust or restricted property?
15.102 Who may notify the agency of a death?
15.103 How do I begin the probate process?
15.104 Does the agency need a death certificate to prepare a probate 
          file?
15.105 What other documents does the agency need to prepare a probate 
          file?
15.106 May a probate case be initiated when an owner of an interest has 
          been absent?
15.107 Who prepares the probate file?
15.108 If the decedent was not an enrolled member of a tribe or was a 
          member of more than one tribe, who prepares the probate file?

                  Subpart C_Preparing the Probate File

15.201 What will the agency do with the documents that I provide?
15.202 What items must the agency include in the probate file?
15.203 What information must Tribes provide BIA to complete the probate 
          file?
15.204 When is a probate file complete?

       Subpart D_Obtaining Emergency Assistance and Filing Claims

15.301 May I receive funds from the decedent's IIM account for funeral 
          services?
15.302 May I file a claim against an estate?
15.303 Where may I file my claim against an estate?
15.304 When must I file my claim?
15.305 What must I include with my claim?

             Subpart E_Probate Processing and Distributions

15.401 What happens after BIA prepares the probate file?
15.402 What happens after the probate file is referred to OHA?
15.403 What happens after the probate order is issued?

                    Subpart F_Information and Records

15.501 How may I find out the status of a probate?
15.502 Who owns the records associated with this part?
15.503 How must records associated with this part be preserved?
15.504 Who may inspect records and records management practices?
15.505 How does the Paperwork Reduction Act affect this part?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201 et seq.; 
44 U.S.C. 3101 et seq.

    Cross Reference: For special rules applying to proceedings in Indian 
Probate (Determination of Heirs and Approval of Wills, Except for 
Members of the Five Civilized Tribes and Osage Indians), including 
hearings and appeals within the jurisdiction of the Office of Hearings 
and Appeals, see title 43, Code of Federal Regulations, part 4, subpart 
D, and part 30; Funds of deceased Indians other than the Five Civilized 
Tribes, see title 25 Code of Federal Regulations, part 115.

    Source: 73 FR 67278, Nov. 13, 2008, unless otherwise noted.



                         Subpart A_Introduction



Sec.  15.1  What is the purpose of this part?

    (a) This part contains the procedures that we follow to initiate the 
probate of the estate of a deceased person for whom the United States 
holds an interest in trust or restricted land or trust personalty. This 
part tells you how to

[[Page 68]]

file the necessary documents to probate the estate. This part also 
describes how probates will be processed by the Bureau of Indian Affairs 
(BIA), and when probates will be forwarded to the Office of Hearings and 
Appeals (OHA) for disposition.
    (b) The following provisions do not apply to Alaska property 
interests:
    (1) Section 15.202(c), (d), (e)(2), (n), and (o); and
    (2) Section 15.401(b).

[73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]



Sec.  15.2  What definitions do I need to know?

    Act means the Indian Land Consolidation Act and its amendments, 
including the American Indian Probate Reform Act of 2004 (AIPRA), Pub. 
L. 108-374, as codified at 25 U.S.C. 2201 et seq.
    Administrative law judge (ALJ) means an administrative law judge 
with the Office of Hearings and Appeals appointed under the 
Administrative Procedure Act, 5 U.S.C. 3105.
    Affidavit means a written declaration of facts by a person that is 
signed by that person, swearing or affirming under penalty of perjury 
that the facts declared are true and correct to the best of that 
person's knowledge and belief.
    Agency means:
    (1) The Bureau of Indian Affairs (BIA) agency office, or any other 
designated office in BIA, having jurisdiction over trust or restricted 
land and trust personalty; and
    (2) Any office of a tribe that has entered into a contract or 
compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
    Attorney Decision Maker (ADM) means an attorney with OHA who 
conducts a summary probate proceeding and renders a decision that is 
subject to de novo review by an administrative law judge or Indian 
probate judge.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Child means a natural or adopted child.
    Codicil means a supplement or addition to a will, executed with the 
same formalities as a will. It may explain, modify, add to, or revoke 
provisions in an existing will.
    Consolidation agreement means a written agreement under the 
provisions of 25 U.S.C. 2206(e) or 2206(j)(9), entered during the 
probate process, approved by the judge, and implemented by the probate 
order, by which a decedent's heirs and devisees consolidate interests in 
trust or restricted land.
    Creditor means any individual or entity that has a claim for payment 
from a decedent's estate.
    Day means a calendar day.
    Decedent means a person who is deceased.
    Decision or order (or decision and order) means:
    (1) A written document issued by a judge making determinations as to 
heirs, wills, devisees, and the claims of creditors, and ordering 
distribution of trust or restricted land or trust personalty;
    (2) The decision issued by an attorney decision maker in a summary 
probate proceeding; or
    (3) A decision issued by a judge finding that the evidence is 
insufficient to determine that a person is dead by reason of unexplained 
absence.
    Department means the Department of the Interior.
    Devise means a gift of property by will. Also, to give property by 
will.
    Devisee means a person or entity that receives property under a 
will.
    Eligible heir means, for the purposes of the Act, any of a 
decedent's children, grandchildren, great grandchildren, full siblings, 
half siblings by blood, and parents who are any of the following:
    (1) Indian;
    (2) Lineal descendents within two degrees of consanguinity of an 
Indian; or
    (3) Owners of a trust or restricted interest in a parcel of land for 
purposes of inheriting--by descent, renunciation, or consolidation 
agreement--another trust or restricted interest in such parcel from the 
decedent.
    Estate means the trust or restricted land and trust personalty owned 
by the decedent at the time of death.
    Formal probate proceeding means a proceeding, conducted by a judge, 
in which evidence is obtained through the

[[Page 69]]

testimony of witnesses and the receipt of relevant documents.
    Heir means any individual or entity eligible to receive property 
from a decedent in an intestate proceeding.
    Individual Indian Money (IIM) account means an interest bearing 
account for trust funds held by the Secretary that belong to a person 
who has an interest in trust assets. These accounts are under the 
control and management of the Secretary.
    Indian means, for the purposes of the Act, any of the following:
    (1) Any person who is a member of a federally recognized Indian 
tribe is eligible to become a member of any federally recognized Indian 
tribe, or is an owner (as of October 27, 2004) of a trust or restricted 
interest in land;
    (2) Any person meeting the definition of Indian under 25 U.S.C. 479; 
or
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or restricted interest in a parcel of such land 
in that State.
    Indian probate judge (IPJ) means an attorney with OHA, other than an 
ALJ, to whom the Secretary has delegated the authority to hear and 
decide Indian probate cases.
    Interested party means:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a decedent's 
estate;
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or
    (5) A co-owner exercising a purchase option.
    Intestate means that the decedent died without a valid will as 
determined in the probate proceeding.
    Judge means an ALJ or IPJ.
    Lockbox means a centralized system within OST for receiving and 
depositing trust fund remittances collected by BIA.
    LTRO means the Land Titles and Records Office within BIA.
    OHA means the Office of Hearings and Appeals within the Department 
of the Interior.
    OST means the Office of the Special Trustee for American Indians 
within the Department of the Interior.
    Probate means the legal process by which applicable tribal, Federal, 
or State law that affects the distribution of a decedent's estate is 
applied in order to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine devisees;
    (3) Determine whether claims against the estate will be paid from 
trust personalty; and
    (4) Order the transfer of any trust or restricted land or trust 
personalty to the heirs, devisees, or other persons or entities entitled 
by law to receive them.
    Purchase option at probate means the process by which eligible 
purchasers can purchase a decedent's interest during the probate 
proceeding.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
Secretary's consent. For the purpose of probate proceedings, restricted 
property is treated as if it were trust property. Except as the law may 
provide otherwise, the term ``restricted property'' as used in this part 
does not include the restricted lands of the Five Civilized Tribes of 
Oklahoma or the Osage Nation.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Summary probate proceeding means the consideration of a probate file 
without a hearing. A summary probate proceeding may be conducted if the 
estate involves only an IIM account that did not exceed $5,000 in value 
on the date of the decedent's death.
    Superintendent means a BIA Superintendent or other BIA official, 
including a field representative or one holding equivalent authority.
    Testate means that the decedent executed a valid will as determined 
in the probate proceeding.
    Testator means a person who has executed a valid will as determined 
in the probate proceeding.
    Trust personalty means all tangible personal property, funds, and 
securities of any kind that are held in trust in an

[[Page 70]]

IIM account or otherwise supervised by the Secretary.
    Trust property means real or personal property, or an interest 
therein, the title to which is held in trust by the United States for 
the benefit of an individual Indian or tribe.
    We or us means the Secretary, an authorized representative of the 
Secretary, or the authorized employee or representative of a tribe 
performing probate functions under a contract or compact approved by the 
Secretary.
    Will means a written testamentary document that was executed by the 
decedent and attested to by two disinterested adult witnesses, and that 
states who will receive the decedent's trust or restricted property.
    You or I means an interested party, as defined herein, with an 
interest in the decedent's estate unless the context requires otherwise.

[73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]



Sec.  15.3  Who can make a will disposing of trust or restricted land 
or trust personalty?

    Any person 18 years of age or over and of testamentary capacity, who 
has any right, title, or interest in trust or restricted land or trust 
personalty, may dispose of trust or restricted land or trust personalty 
by will.



Sec.  15.4  What are the requirements for a valid will?

    You must meet the requirements of Sec.  15.3, date and execute your 
will, in writing and have it attested by two disinterested adult 
witnesses.



Sec.  15.5  May I revoke my will?

    Yes. You may revoke your will at any time. You may revoke your will 
by any means authorized by tribal or Federal law, including executing a 
subsequent will or other writing with the same formalities as are 
required for execution of a will.



Sec.  15.6  May my will be deemed revoked by operation of the law of any State?

    No. A will that is subject to the regulations of this subpart will 
not be deemed to be revoked by operation of the law of any State.



Sec.  15.7  What is a self-proved will?

    A self-proved will is a will with attached affidavits, signed by the 
testator and the witnesses before an officer authorized to administer 
oaths, certifying that they complied with the requirements of execution 
of the will.



Sec.  15.8  May I make my will, codicil, or revocation self-proved?

    Yes. A will, codicil, or revocation may be made self-proved as 
provided in this section.
    (a) A will, codicil, or revocation may be made self-proved by the 
testator and attesting witnesses at the time of its execution.
    (b) The testator and the attesting witnesses must sign the required 
affidavits before an officer authorized to administer oaths, and the 
affidavits must be attached to the will, codicil, or revocation.



Sec.  15.9  What information must be included in an affidavit 
for a self-proved will, codicil, or revocation?

    (a) A testator's affidavit must contain substantially the following 
content:
    Tribe of ____ or
    State of ____
    County of ____.

    I, ____, swear or affirm under penalty of perjury that, on the __ 
day of ____, 20__, I requested ____and ____ to act as witnesses to my 
will; that I declared to them that the document was my last will; that I 
signed the will in the presence of both witnesses; that they signed the 
will as witnesses in my presence and in the presence of each other; that 
the will was read and explained to me (or read by me), after being 
prepared and before I signed it, and it clearly and accurately expresses 
my wishes; and that I willingly made and executed the will as my free 
and voluntary act for the purposes expressed in the will.

________________________________________________________________________
Testator

    (b) Each attesting witness's affidavit must contain substantially 
the following content:
    We, ____and ____, swear or affirm under penalty of perjury that on 
the __ day of ____, 20__, ____ of the State of ____, published and 
declared the attached document to be his/her last will, signed the will 
in the presence of both of us, and requested both of us to sign the will 
as witnesses; that we, in compliance with his/her request, signed the 
will as witnesses in his/her presence and in the presence of each

[[Page 71]]

other; and that the testator was not acting under duress, menace, fraud, 
or undue influence of any person, so far as we could determine, and in 
our opinion was mentally capable of disposing of all his/her estate by 
will.
________________________________________________________________________
Witness

________________________________________________________________________
Witness

    Subscribed and sworn to or affirmed before me this __ day of ____, 
20__, by ____ testator, and by ____ and ____, attesting witnesses.
________________________________________________________________________

________________________________________________________________________
(Title)



Sec.  15.10  What assets will the Secretary probate?

    (a) We will probate only the trust or restricted land, or trust 
personalty owned by the decedent at the time of death.
    (b) We will not probate the following property:
    (1) Real or personal property other than trust or restricted land or 
trust personalty owned by the decedent at the time of death;
    (2) Restricted land derived from allotments made to members of the 
Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Creek, and 
Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests owned 
by Osage decedents.
    (c) We will probate that part of the lands and assets owned by a 
deceased member of the Five Civilized Tribes or Osage Nation who owned a 
trust interest in land or a restricted interest in land derived from an 
individual Indian who was a member of a Tribe other than the Five 
Civilized Tribes or Osage Nation.

[76 FR 7505, Feb. 10, 2011]



Sec.  15.11  What are the basic steps of the probate process?

    The basic steps of the probate process are:
    (a) We learn about a person's death (see subpart B for details);
    (b) We prepare a probate file that includes documents sent to the 
agency (see subpart C for details);
    (c) We refer the completed probate file to OHA for assignment to a 
judge or ADM (see subpart D for details); and
    (d) The judge or ADM decides how to distribute any trust or 
restricted land and/or trust personalty, and we make the distribution 
(see subpart D for details).



Sec.  15.12  What happens if assets in a trust estate may be diminished 
or destroyed while the probate is pending?

    (a) This section applies if an interested party or BIA:
    (1) Learns of the death of a person owning trust or restricted 
property; and
    (2) Believes that an emergency exists and the assets in the estate 
may be significantly diminished or destroyed before the final decision 
and order of a judge in a probate case.
    (b) An interested party, the Superintendent, or other authorized 
representative of BIA has standing to request relief.
    (c) The interested party or BIA representative may request:
    (1) That OHA immediately assign a judge or ADM to the probate case;
    (2) That BIA transfer a probate file to OHA containing sufficient 
information on potential interested parties and documentation concerning 
the alleged emergency for a judge to consider emergency relief in order 
to preserve estate assets; and
    (3) That OHA hold an expedited hearing or consider ex parte relief 
to prevent impending or further loss or destruction of trust assets.

[73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]



                 Subpart B_Starting the Probate Process



Sec.  15.101  When should I notify the agency of the death of a person 
owning trust or restricted property?

    There is no deadline for notifying us of a death.
    (a) Notify us as provided in Sec.  15.103 to assure timely 
distribution of the estate.
    (b) If we find out about the death of a person owning trust or 
restricted

[[Page 72]]

property we may initiate the process to collect the necessary 
documentation.



Sec.  15.102  Who may notify the agency of a death?

    Anyone may notify us of a death.



Sec.  15.103  How do I begin the probate process?

    As soon as possible, contact any of the following offices to inform 
us of the decedent's death:
    (a) The agency or BIA regional office nearest to where the decedent 
was enrolled;
    (b) Any agency or BIA regional office; or
    (c) The Trust Beneficiary Call Center in OST.



Sec.  15.104  Does the agency need a death certificate 
to prepare a probate file?

    (a) Yes. You must provide us with a certified copy of the death 
certificate if a death certificate exists. If necessary, we will make a 
copy from your certified copy for our use and return your copy.
    (b) If a death certificate does not exist, you must provide an 
affidavit containing as much information as you have concerning the 
deceased, such as:
    (1) The State, city, reservation, location, date, and cause of 
death;
    (2) The last known address of the deceased;
    (3) Names and addresses of others who may have information about the 
deceased; and
    (4) Any other information available concerning the deceased, such as 
newspaper articles, an obituary, death notices, or a church or court 
record.



Sec.  15.105  What other documents does the agency need 
to prepare a probate file?

    In addition to the certified copy of a death certificate or other 
reliable evidence of death listed in Sec.  15.104, we need the following 
information and documents:
    (a) Originals or copies of all wills, codicils, and revocations, or 
other evidence that a will may exist;
    (b) The Social Security number of the decedent;
    (c) The place of enrollment and the tribal enrollment or census 
number of the decedent and potential heirs or devisees;
    (d) Current names and addresses of the decedent's potential heirs 
and devisees;
    (e) Any sworn statements regarding the decedent's family, including 
any statements of paternity or maternity;
    (f) Any statements renouncing an interest in the estate including 
identification of the person or entity in whose favor the interest is 
renounced, if any;
    (g) A list of claims by known creditors of the decedent and their 
addresses, including copies of any court judgments; and
    (h) Documents from the appropriate authorities, certified if 
possible, concerning the public record of the decedent, including but 
not limited to, any:
    (1) Marriage licenses and certificates of the decedent;
    (2) Divorce decrees of the decedent;
    (3) Adoption and guardianship records concerning the decedent or the 
decedent's potential heirs or devisees;
    (4) Use of other names by the decedent, including copies of name 
changes by court order; and
    (5) Orders requiring payment of child support or spousal support.



Sec.  15.106  May a probate case be initiated when an owner 
of an interest has been absent?

    (a) A probate case may be initiated when either:
    (1) Information is provided to us that an owner of an interest in 
trust or restricted land or trust personalty has been absent without 
explanation for a period of at least 6 years; or
    (2) We become aware of other facts or circumstances from which an 
inference may be drawn that the person has died.
    (b) When we receive information as described in Sec.  15.106(a), we 
may begin an investigation into the circumstances, and may attempt to 
locate the person. We may:
    (1) Search available electronic databases;
    (2) Inquire into other published information sources such as 
telephone directories and other available directories;
    (3) Examine BIA land title and lease records;

[[Page 73]]

    (4) Examine the IIM account ledger for disbursements from the 
account; and
    (5) Engage the services of an independent firm to conduct a search 
for the owner.
    (c) When we have completed our investigation, if we are unable to 
locate the person, we may initiate a probate case and prepare a file 
that may include all the documentation developed in the search.
    (d) We may file a claim in the probate case to recover the 
reasonable costs expended to contract with an independent firm to 
conduct the search.



Sec.  15.107  Who prepares a probate file?

    The agency that serves the tribe where the decedent was an enrolled 
member will prepare the probate file in consultation with the potential 
heirs or devisees who can be located, and with other people who have 
information about the decedent or the estate.



Sec.  15.108  If the decedent was not an enrolled member of a tribe 
or was a member of more than one tribe, who prepares the probate file?

    Unless otherwise provided by Federal law, the agency that has 
jurisdiction over the tribe with the strongest association with the 
decedent will serve as the home agency and will prepare the probate file 
if the decedent owned interests in trust or restricted land or trust 
personalty and either:
    (a) Was not an enrolled member of a tribe; or
    (b) Was a member of more than one tribe.



                  Subpart C_Preparing the Probate File



Sec.  15.201  What will the agency do with the documents that I provide?

    After we receive notice of the death of a person owning trust or 
restricted land or trust personalty, we will examine the documents 
provided under Sec. Sec.  15.104 and 15.105, and other documents and 
information provided to us to prepare a complete probate file. We may 
consult with you and other individuals or entities to obtain additional 
information to complete the probate file. Then we will transfer the 
probate file to OHA.



Sec.  15.202  What items must the agency include in the probate file?

    We will include the items listed in this section in the probate 
file.
    (a) The evidence of death of the decedent as provided under Sec.  
15.104.
    (b) A completed ``Data for Heirship Findings and Family History 
Form'' or successor form, certified by BIA, with the enrollment or other 
identifying number shown for each potential heir or devisee.
    (c) Information provided by potential heirs, devisees, or the tribes 
on:
    (1) Whether the heirs and devisees meet the definition of ``Indian'' 
for probate purposes, including enrollment or eligibility for enrollment 
in a tribe; or
    (2) Whether the potential heirs or devisees are within two degrees 
of consanguinity of an ``Indian.''
    (d) If an individual qualifies as an Indian only because of 
ownership of a trust or restricted interest in land, the date on which 
the individual became the owner of the trust or restricted interest.
    (e) A certified inventory of trust or restricted land, including:
    (1) Accurate and adequate descriptions of all land; and
    (2) Identification of any interests that represent less than 5 
percent of the undivided interests in a parcel.
    (f) A statement showing the balance and the source of funds in the 
decedent's IIM account on the date of death.
    (g) A statement showing all receipts and sources of income to and 
disbursements, if any, from the decedent's IIM account after the date of 
death.
    (h) Originals or copies of all wills, codicils, and revocations that 
have been provided to us.
    (i) A copy of any statement or document concerning any wills, 
codicils, or revocations the BIA returned to the testator.
    (j) Any statement renouncing an interest in the estate that has been 
submitted to us, and the information necessary to identify any person 
receiving a renounced interest.
    (k) Claims of creditors that have been submitted to us under Sec.  
15.302

[[Page 74]]

through 15.305, including documentation required by Sec.  15.305.
    (l) Documentation of any payments made on requests filed under the 
provisions of Sec.  15.301.
    (m) All the documents acquired under Sec.  15.105.
    (n) The record of each tribal or individual request to purchase a 
trust or restricted land interest at probate.
    (o) The record of any individual request for a consolidation 
agreement, including a description, such as an Individual/Tribal 
Interest Report, of any lands not part of the decedent's estate that are 
proposed for inclusion in the consolidation agreement.

[73 FR 67278, Nov. 13, 2008, as amended at 76 FR 7505, Feb. 10, 2011]



Sec.  15.203  What information must Tribes provide BIA 
to complete the probate file?

    Tribes must provide any information that we require or request to 
complete the probate file. This information may include enrollment and 
family history data or property title documents that pertain to any 
pending probate matter, and a copy of Tribal probate orders where they 
exist.

[76 FR 7505, Feb. 10, 2011]



Sec.  15.204  When is a probate file complete?

    A probate file is complete for transfer to OHA when a BIA approving 
official includes a certification that:
    (a) States that the probate file includes all information listed in 
Sec.  15.202 that is available; and
    (b) Lists all sources of information BIA queried in an attempt to 
locate information listed in Sec.  15.202 that is not available.



       Subpart D_Obtaining Emergency Assistance and Filing Claims



Sec.  15.301  May I receive funds from the decedent's IIM account 
for funeral services?

    (a) You may request an amount of no more than $1,000 from the 
decedent's IIM account if:
    (1) You are responsible for making the funeral arrangements on 
behalf of the family of a decedent who had an IIM account;
    (2) You have an immediate need to pay for funeral arrangements 
before burial; and
    (3) The decedent's IIM account contains more than $2,500 on the date 
of death.
    (b) You must apply for funds under paragraph (a) of this section and 
submit to us an original itemized estimate of the cost of the service to 
be rendered and the identification of the service provider.
    (c) We may approve reasonable costs of no more than $1,000 that are 
necessary for the burial services, taking into consideration:
    (1) The total amount in the IIM account;
    (2) The availability of non-trust funds; and
    (3) Any other relevant factors.
    (d) We will make payments directly to the providers of the services.



Sec.  15.302  May I file a claim against an estate?

    If a decedent owed you money, you may make a claim against the 
estate of the decedent.



Sec.  15.303  Where may I file my claim against an estate?

    (a) You may submit your claim to us before we transfer the probate 
file to OHA or you may file your claim with OHA after the probate file 
has been transferred if you comply with 43 CFR 30.140 through 30.148.
    (b) If we receive your claim after the probate file has been 
transmitted to OHA but before the order is issued, we will promptly 
transmit your claim to OHA.



Sec.  15.304  When must I file my claim?

    You must file your claim before the conclusion of the first hearing 
by OHA or, for cases designated as summary probate proceedings, as 
allowed under 43 CFR 30.140. Claims not timely filed will be barred.



Sec.  15.305  What must I include with my claim?

    (a) You must include an itemized statement of the claim, including 
copies of any supporting documents such

[[Page 75]]

as signed notes, account records, billing records, and journal entries. 
The itemized statement must also include:
    (1) The date and amount of the original debt;
    (2) The dates, amounts, and identity of the payor for any payments 
made;
    (3) The dates, amounts, product or service, and identity of any 
person making charges on the account;
    (4) The balance remaining on the debt on the date of the decedent's 
death; and
    (5) Any evidence that the decedent disputed the amount of the claim.
    (b) You must submit an affidavit that verifies the balance due and 
states whether:
    (1) Parties other than the decedent are responsible for any portion 
of the debt alleged;
    (2) Any known or claimed offsets to the alleged debt exist;
    (3) The creditor or anyone on behalf of the creditor has filed a 
claim or sought reimbursement against the decedent's non-trust or non-
restricted property in any other judicial or quasi-judicial proceeding, 
and the status of such action; and
    (4) The creditor or anyone on behalf of the creditor has filed a 
claim or sought reimbursement against the decedent's trust or restricted 
property in any other judicial or quasi-judicial proceeding, and the 
status of such action.
    (c) A secured creditor must first exhaust the security before a 
claim against trust personalty for any deficiency will be allowed. You 
must submit a verified or certified copy of any judgment or other 
documents that establish the amount of the deficiency after exhaustion 
of the security.



             Subpart E_Probate Processing and Distributions



Sec.  15.401  What happens after BIA prepares the probate file?

    Within 30 days after we assemble all the documents required by 
Sec. Sec.  15.202 and 15.204, we will:
    (a) Refer the case and send the probate file to OHA for adjudication 
in accordance with 43 CFR part 30; and
    (b) Forward a list of fractional interests that represent less than 
5 percent of the entire undivided ownership of each parcel of land in 
the decedent's estate to the tribes with jurisdiction over those 
interests.



Sec.  15.402  What happens after the probate file is referred to OHA?

    When OHA receives the probate file from BIA, it will assign the case 
to a judge or ADM. The judge or ADM will conduct the probate proceeding 
and issue a written decision or order, in accordance with 43 CFR part 
30.



Sec.  15.403  What happens after the probate order is issued?

    (a) If the probate decision or order is issued by an ADM, you have 
30 days from the decision mailing date to file a written request for a 
de novo review.
    (b) If the probate decision or order is issued by a judge, you have 
30 days from the decision mailing date to file a written request for 
rehearing. After a judge's decision on rehearing, you have 30 days from 
the mailing date of the decision to file an appeal, in accordance with 
43 CFR parts 4 and 30.
    (c) When any interested party files a timely request for de novo 
review, a request for rehearing, or an appeal, we will not pay claims, 
transfer title to land, or distribute trust personalty until the request 
or appeal is resolved.
    (d) If no interested party files a request or appeal within the 30-
day deadlines in paragraphs (a) and (b) of this section, we will wait at 
least 15 additional days before paying claims, transferring title to 
land, and distributing trust personalty. At that time:
    (1) The LTRO will change the land title records for the trust and 
restricted land in accordance with the final decision or order; and
    (2) We will pay claims and distribute funds from the IIM account in 
accordance with the final decision or order.



                    Subpart F_Information and Records



Sec.  15.501  How may I find out the status of a probate?

    You may get information about the status of an Indian probate by 
contacting any BIA agency or regional office, an OST fiduciary trust 
officer, OHA, or the Trust Beneficiary Call Center in OST.

[[Page 76]]



Sec.  15.502  Who owns the records associated with this part?

    (a) The United States owns the records associated with this part if:
    (1) They are evidence of the organization, functions, policies, 
decisions, procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part; and
    (2) They are either:
    (i) Made by or on behalf of the United States; or
    (ii) Made or received by a tribe or tribal organization in the 
conduct of a Federal trust function under this part, including the 
operation of a trust program under Pub. L. 93-638, as amended, and as 
codified at 25 U.S.C. 450 et seq.
    (b) The tribe owns the records associated with this part if they:
    (1) Are not covered by paragraph (a) of this section; and
    (2) Are made or received by a tribe or tribal organization in the 
conduct of business with the Department of the Interior under this part.



Sec.  15.503  How must records associated with this part be preserved?

    (a) Any organization that has records identified in Sec.  15.502(a), 
including tribes and tribal organizations, must preserve the records in 
accordance with approved Departmental records retention procedures under 
the Federal Records Act, 44 U.S.C. chapters 29, 31, and 33; and
    (b) A tribe or tribal organization must preserve the records 
identified in Sec.  15.502(b) for the period authorized by the Archivist 
of the United States for similar Department of the Interior records 
under 44 U.S.C. chapter 33. If a tribe or tribal organization does not 
do so, it may be unable to adequately document essential transactions or 
furnish information necessary to protect its legal and financial rights 
or those of persons affected by its activities.



Sec.  15.504  Who may inspect records and records management practices?

    (a) You may inspect the probate file at the relevant agency before 
the file is transferred to OHA. Access to records in the probate file is 
governed by 25 U.S.C. 2216(e), the Privacy Act, and the Freedom of 
Information Act.
    (b) The Secretary and the Archivist of the United States may inspect 
records and records management practices and safeguards required under 
the Federal Records Act.



Sec.  15.505  How does the Paperwork Reduction Act affect this part?

    The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-0169. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to a collection of information unless the 
form or regulation requesting the information has a currently valid OMB 
Control Number.



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.

[[Page 77]]



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]



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

[[Page 78]]

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 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

[[Page 79]]

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.
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

[[Page 80]]

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.



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

[[Page 81]]

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.
    (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]



PART 18_TRIBAL PROBATE CODES--Table of Contents



                      Subpart A_General Provisions

Sec.
18.1 What is the purpose of this part?
18.2 What definitions do I need to know?

               Subpart B_Approval of Tribal Probate Codes

18.101 May a tribe create and adopt its own tribal probate code?
18.102 When must a tribe submit its tribal probate code to the 
          Department for approval?
18.103 Which provisions within a tribal probate code require the 
          Department's approval?
18.104 May a tribe include provisions in its tribal probate code 
          regarding the descent and distribution of trust personalty?
18.105 How does a tribe request approval for a tribal probate code?
18.106 What will the Department consider in the approval process?
18.107 When will the Department approve or disapprove a tribal probate 
          code?
18.108 What happens if the Department approves the tribal probate code?
18.109 How will a tribe be notified of the disapproval of a tribal 
          probate code?
18.110 When will a tribal probate code become effective?
18.111 What will happen if a tribe repeals its probate code?
18.112 May a tribe appeal the approval or disapproval of a probate code?

          Subpart C_Approval of Tribal Probate Code Amendments

18.201 May a tribe amend a tribal probate code?
18.202 How does a tribe request approval for a tribal probate code 
          amendment?
18.203 Which probate code amendments require approval?
18.204 When will the Department approve an amendment?
18.205 What happens if the Department approves the amendment?
18.206 How will the tribe be notified of disapproval of the amendment?
18.207 When do amendments to tribal probate codes become effective?
18.208 May a tribe appeal an approval or disapproval of a probate code 
          amendment?

[[Page 82]]

                 Subpart D_Approval of Single Heir Rule

18.301 May a tribe create and adopt a single heir rule without adopting 
          a tribal probate code?
18.302 How does the tribe request approval for the single heir rule?
18.303 When will the Department approve or disapprove a single heir 
          rule?
18.304 What happens if the Department approves a single heir rule?
18.305 How will a tribe be notified of the disapproval of a single heir 
          rule?
18.306 When does the single heir rule become effective?
18.307 May a tribe appeal approval or disapproval of a single heir rule?

                    Subpart E_Information and Records

18.401 How does the Paperwork Reduction Act affect this part?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410, 2201 et seq.; 
44 U.S.C. 3101 et seq.; 25 CFR part 15; 43 CFR part 4.

    Source: 73 FR 67283, Nov. 13, 2008, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  18.1  What is the purpose of this part?

    This part establishes the Department's policies and procedures for 
reviewing and approving or disapproving tribal probate codes, 
amendments, and single heir rules that contain provisions regarding the 
descent and distribution of trust and restricted lands.



Sec.  18.2  What definitions do I need to know?

    Act means the Indian Land Consolidation Act and its amendments, 
including the American Indian Probate Reform Act of 2004 (AIPRA), Public 
Law 108-374, as codified at 25 U.S.C. 2201 et seq.
    Day means a calendar day.
    Decedent means a person who is deceased.
    Department means the Department of the Interior.
    Devise means a gift of property by will. Also, to give property by 
will.
    Devisee means a person or entity that receives property under a 
will.
    Indian means, for the purposes of the Act:
    (1) Any person who is a member of a federally recognized Indian 
tribe, is eligible to become a member of any federally recognized Indian 
tribe, or is an owner (as of October 27, 2004) of a trust or restricted 
interest in land;
    (2) Any person meeting the definition of Indian under 25 U.S.C. 479; 
or
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or restricted interest in a parcel of such land 
in that State.
    Intestate means that the decedent died without a will.
    OHA means the Office of Hearings and Appeals within the Department 
of the Interior.
    Restricted lands means real property, the title to which is held by 
an Indian but which cannot be alienated or encumbered without the 
Secretary's consent. For the purpose of probate proceedings, restricted 
lands are treated as if they were trust lands. Except as the law may 
provide otherwise, the term ``restricted lands'' as used in this part 
does not include the restricted lands of the Five Civilized Tribes of 
Oklahoma or the Osage Nation.
    Testator means a person who has executed a will.
    Trust lands means real property, or an interest therein, the title 
to which is held in trust by the United States for the benefit of an 
individual Indian or tribe.
    Trust personalty means all tangible personal property, funds, and 
securities of any kind that are held in trust in an IIM account or 
otherwise supervised by the Secretary.
    We or us means the Secretary or an authorized representative of the 
Secretary.



               Subpart B_Approval of Tribal Probate Codes



Sec.  18.101  May a tribe create and adopt its own tribal probate code?

    Yes. A tribe may create and adopt a tribal probate code.



Sec.  18.102  When must a tribe submit its tribal probate code 
to the Department for approval?

    The tribe must submit its probate code to the Department for 
approval if

[[Page 83]]

the tribal probate code contains provisions regarding the descent and 
distribution of trust and restricted lands.



Sec.  18.103  Which provisions within a tribal probate code 
require the Department's approval?

    Only those tribal probate code provisions regarding the descent and 
distribution of trust and restricted lands require the Department's 
approval.



Sec.  18.104  May a tribe include provisions in its tribal probate code 
regarding the distribution and descent of trust personalty?

    No. All trust personalty will be distributed in accordance with the 
American Indian Probate Reform Act of 2004, as amended.



Sec.  18.105  How does a tribe request approval for a tribal probate code?

    The tribe must submit the tribal probate code and a duly executed 
tribal resolution adopting the code to the Assistant Secretary--Indian 
Affairs, Attn: Tribal Probate Code, 1849 C Street, NW., Washington, DC 
20240, for review and approval or disapproval.



Sec.  18.106  What will the Department consider in the approval process?

    A tribal probate code must meet the requirements of this section in 
order to receive our approval under this part.
    (a) The code must be consistent with Federal law.
    (b) The code must promote the policies of the Indian Land 
Consolidation Act (ILCA) Amendments of 2000, which are to:
    (1) Prevent further fractionation;
    (2) Consolidate fractional interests into useable parcels;
    (3) Consolidate fractional interests to enhance tribal sovereignty;
    (4) Promote tribal self-sufficiency and self-determination; and
    (5) Reverse the effects of the allotment policy on Indian tribes.
    (c) Unless the conditions in paragraph (d) of this section are met, 
the code must not prohibit the devise of an interest to:
    (1) An Indian lineal descendant of the original allottee; or
    (2) An Indian who is not a member of the Indian tribe with 
jurisdiction over the interest in the land.
    (d) If the tribal probate code prohibits the devise of an interest 
to the devisees in paragraph (c)(1) or (c)(2) of this section, then the 
code must:
    (1) Allow those devisees to renounce their interests in favor of 
eligible devisees as defined by the tribal probate code;
    (2) Allow a devisee who is the spouse or lineal descendant of the 
testator to reserve a life estate without regard to waste; and
    (3) Require the payment of fair market value as determined by the 
Department on the date of the decedent's death.



Sec.  18.107  When will the Department approve or disapprove 
a tribal probate code?

    (a) We have 180 days from receipt by the Assistant Secretary--Indian 
Affairs of a submitted tribal probate code and duly executed tribal 
resolution adopting the tribal probate code to approve or disapprove a 
tribal probate code.
    (b) If we do not meet the deadline in paragraph (a) of this section, 
the tribal probate code will be deemed approved, but only to the extent 
that it:
    (1) Is consistent with Federal law; and
    (2) Promotes the policies of the ILCA Amendments of 2000 as listed 
in Sec.  18.106(b).



Sec.  18.108  What happens if the Department approves the tribal probate code?

    Our approval applies only to those sections of the tribal probate 
code that govern the descent and distribution of trust or restricted 
land. We will notify the tribe of the approval and forward a copy of the 
tribal probate code to OHA.



Sec.  18.109  How will a tribe be notified of the disapproval 
of a tribal probate code?

    If we disapprove a tribal probate code, we must provide the tribe 
with a written notification of the disapproval that includes an 
explanation of the reasons for the disapproval.



Sec.  18.110  When will a tribal probate code become effective?

    (a) A tribal probate code may not become effective sooner than 180 
days

[[Page 84]]

after the date of approval by the Department.
    (b) If a tribal probate code is deemed approved through inaction by 
the Department, then the code will become effective 180 days after it is 
deemed approved.
    (c) The tribal probate code will apply only to the estate of a 
decedent who dies on or after the effective date of the tribal probate 
code.



Sec.  18.111  What will happen if a tribe repeals its probate code?

    If a tribe repeals its tribal probate code:
    (a) The repeal will not become effective sooner than 180 days from 
the date we receive notification from the tribe of its decision to 
repeal the code; and
    (b) We will forward a copy of the repeal to OHA.



Sec.  18.112  May a tribe appeal the approval or disapproval of a probate code?

    No. There is no right of appeal within the Department from a 
decision to approve or disapprove a tribal probate code.



          Subpart C_Approval of Tribal Probate Code Amendments



Sec.  18.201  May a tribe amend a tribal probate code?

    Yes. A tribe may amend a tribal probate code.



Sec.  18.202  How does a tribe request approval 
for a tribal probate code amendment?

    To amend a tribal probate code, the tribe must follow the same 
procedures as for submitting a tribal probate code to the Department for 
approval.



Sec.  18.203  Which probate code amendments require approval?

    Only those tribal probate code amendments regarding the descent and 
distribution of trust and restricted lands require the Department's 
approval.



Sec.  18.204  When will the Department approve an amendment?

    (a) We have 60 days from receipt by the Assistant Secretary of a 
submitted amendment to approve or disapprove the amendment.
    (b) If we do not meet the deadline in paragraphs (a) of this 
section, the amendment will be deemed approved, but only to the extent 
that it:
    (1) Is consistent with Federal law; and
    (2) Promotes the policies of the ILCA Amendments of 2000 as listed 
in Sec.  18.106(b).



Sec.  18.205  What happens if the Department approves the amendment?

    Our approval applies only to those sections of the amendment that 
contain provisions regarding the descent and distribution of trust or 
restricted land. We will notify the tribe of the approval and forward a 
copy of the amendment to OHA.



Sec.  18.206  How will a tribe be notified of the disapproval of an amendment?

    If we disapprove an amendment, we must provide the tribe with a 
written notification of the disapproval that includes an explanation of 
the reasons for the disapproval.



Sec.  18.207  When do amendments to a tribal probate code become effective?

    (a) An amendment may not become effective sooner than 180 days after 
the date of approval by the Department.
    (b) If an amendment is deemed approved through inaction by the 
Department, then the amendment will become effective 180 days after it 
is deemed approved.
    (c) The amendment will apply only to the estate of a decedent who 
dies on or after the effective date of the amendment.



Sec.  18.208  May a tribe appeal an approval or disapproval 
of a probate code amendment?

    No. There is no right of appeal within the Department from a 
decision to approve or disapprove a tribal probate code amendment.

[[Page 85]]



                 Subpart D_Approval of Single Heir Rule



Sec.  18.301  May a tribe create and adopt a single heir rule without adopting 
a tribal probate code?

    Yes. A tribe may create and adopt a single heir rule for intestate 
succession. The single heir rule may specify a single recipient other 
than the one specified in 25 U.S.C. 2206(a)(2)(D).



Sec.  18.302  How does the tribe request approval for the single heir rule?

    The tribe must follow the same procedures as for submitting a tribal 
probate code to the Department for approval.



Sec.  18.303  When will the Department approve or disapprove 
a single heir rule?

    We have 90 days from receipt by the Assistant Secretary of a single 
heir rule submitted separate from a tribal probate code to approve or 
disapprove a single heir rule.



Sec.  18.304  What happens if the Department approves the single heir rule?

    If we approve the single heir rule, we will notify the tribe of the 
approval and forward a copy of the single heir rule to OHA.



Sec.  18.305  How will a tribe be notified of the disapproval 
of a single heir rule?

    If we disapprove a single heir rule, we must provide the tribe with 
a written notification of the disapproval that includes an explanation 
of the reasons for the disapproval.



Sec.  18.306  When does the single heir rule become effective?

    (a) A single heir rule may not become effective sooner than 180 days 
after the date of approval by the Department.
    (b) If a single heir rule is deemed approved through inaction by the 
Department, then the single heir rule will become effective 180 days 
after it is deemed approved.
    (c) The single heir rule will apply only to the estate of a decedent 
who dies on or after the effective date of the single heir rule.



Sec.  18.307  May a tribe appeal approval or disapproval of a single heir rule?

    No. There is no right of appeal within the Department from a 
decision to approve or disapprove a single heir rule.



                    Subpart E_Information and Records



Sec.  18.401  How does the Paperwork Reduction Act affect this part?

    The collection of information contained in this part has been 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., and assigned OMB Control Number 
1076-0168. Response is required to obtain a benefit. A Federal agency 
may not conduct or sponsor, and members of the public are not required 
to respond to, a collection of information unless the form or regulation 
requesting the information displays a currently valid OMB Control 
Number.

[[Page 86]]



                       SUBCHAPTER D_HUMAN SERVICES





PART 20_FINANCIAL ASSISTANCE AND SOCIAL SERVICES PROGRAMS--Table of Contents



                Subpart A_Definitions, Purpose and Policy

Sec.
20.100 What definitions clarify the meaning of the provisions of this 
          part?
20.101 What is the purpose of this part?
20.102 What is the Bureau's policy in providing financial assistance and 
          social services under this part?
20.103 Have the information collection requirements in this part been 
          approved by the Office of Management and Budget?

                        Subpart B_Welfare Reform

20.200 What contact will the Bureau maintain with State, tribal, county, 
          local, and other Federal agency programs?
20.201 How does the Bureau designate a service area and what information 
          is required?
20.202 What is a tribal redesign plan?
20.203 Can a tribe incorporate assistance from other sources into a 
          tribal redesign plan?
20.204 Must all tribes submit a tribal redesign plan?
20.205 Can tribes change eligibility criteria or levels of payments for 
          General Assistance?
20.206 Must a tribe get approval for a tribal redesign plan?
20.207 Can a tribe use savings from a tribal redesign plan to meet other 
          priorities of the tribe?
20.208 What if the tribal redesign plan leads to increased costs?
20.209 Can a tribe operating under a tribal redesign plan go back to 
          operating under this part?
20.210 Can eligibility criteria or payments for Burial Assistance, Child 
          Assistance, and Disaster Assistance and Emergency Assistance 
          change?

                       Subpart C_Direct Assistance

                    Eligibility for Direct Assistance

20.300 Who qualifies for Direct Assistance under this subpart?
20.301 What is the goal of General Assistance?
20.302 Are Indian applicants required to seek assistance through 
          Temporary Assistance for Needy Families?
20.303 When is an applicant eligible for General Assistance?
20.304 When will the Bureau review eligibility for General Assistance?
20.305 What is redetermination?
20.306 What is the payment standard for General Assistance?

                       Determining Need and Income

20.307 What resources does the Bureau consider when determining need?
20.308 What does earned income include?
20.309 What does unearned income include?
20.310 What recurring income must be prorated?
20.311 What amounts will the Bureau deduct from earned income?
20.312 What amounts will the Bureau deduct from income or other 
          resources?
20.313 How will the Bureau compute financial assistance payments?

                         Employment Requirements

20.314 What is the policy on employment?
20.315 Who is not covered by the employment policy?
20.316 What must a person covered by the employment policy do?
20.317 How will the ineligibility period be implemented?
20.318 What case management responsibilities does the social services 
          worker have?
20.319 What responsibilities does the general assistance recipient have?

                  Tribal Work Experience Program (TWEP)

20.320 What is TWEP?
20.321 Does TWEP allow an incentive payment?
20.322 Who can receive a TWEP incentive payment?
20.323 Will the local TWEP be required to have written program 
          procedures?

                            Burial Assistance

20.324 When can the Bureau provide Burial Assistance?
20.325 Who can apply for Burial Assistance?
20.326 Does Burial Assistance cover transportation costs?

                           Disaster Assistance

20.327 When can the Bureau provide Disaster Assistance?
20.328 How can a tribe apply for Disaster Assistance?

                          Emergency Assistance

20.329 When can the Bureau provide Emergency Assistance payments?
20.330 What is the payment standard for Emergency Assistance?

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                          Adult Care Assistance

20.331 What is Adult Care Assistance?
20.332 Who can receive Adult Care Assistance?
20.333 How do I apply for Adult Care Assistance?
20.334 What happens after I apply?
20.335 What is the payment standard for Adult Care Assistance?

          Subpart D_Services to Children, Elderly, and Families

20.400 Who should receive Services to Children, Elderly, and Families?
20.401 What is included under Services to Children, Elderly, and 
          Families?
20.402 When are protective services provided?
20.403 What do protective services include?
20.404 What information is contained in a social services assessment?

                       Subpart E_Child Assistance

20.500 Who is eligible for Child Assistance?

                 How Child Assistance Funds Can Be Used

20.501 What services can be paid for with Child Assistance funds?
20.502 Can Child Assistance funds be used to place Indian children in 
          residential care facilities?
20.503 When can Child Assistance funds be used for Indian adoption or 
          guardianship subsidies?
20.504 What short-term homemaker services can Child Assistance pay for?
20.505 What services are provided jointly with the Child Assistance 
          Program?

                               Foster Care

20.506 What information is required in the foster care case file?
20.507 What requirements must foster care providers meet?
20.508 What must the social services agency do when a child is placed in 
          foster care, residential care or guardianship home?
20.509 What must the social services worker do when a child is placed in 
          foster care or residential care facility?
20.510 How is the court involved in child placements?
20.511 Should permanency plans be developed?
20.512 Can the Bureau/tribal contractors make Indian adoptive 
          placements?
20.513 Should Interstate Compacts be used for the placement of children?
20.514 What assistance can the courts request from social services on 
          behalf of children?
20.515 What is required for case management?
20.516 How are child abuse, neglect or exploitation cases to be handled?

                   Subpart F_Administrative Procedures

20.600 Who can apply for financial assistance or social services?
20.601 How can applications be submitted?
20.602 How does the Bureau verify eligibility for social services?
20.603 How is an application approved or denied?
20.604 How is an applicant or recipient notified that benefits or 
          services are denied or changed?
20.605 What happens when an applicant or recipient appeals a decision 
          under this subpart?
20.606 How is an incorrect payment adjusted or recovered?
20.607 What happens when applicants or recipients knowingly and 
          willfully provide false or fraudulent information?

                     Subpart G_Hearings and Appeals

20.700 Can an applicant or recipient appeal the decision of a Bureau 
          official?
20.701 Does a recipient receive financial assistance while an appeal is 
          pending?
20.702 When is an appeal hearing scheduled?
20.703 What must the written notice of hearing include?
20.704 Who conducts the hearing or appeal of a Bureau decision or action 
          and what is the process?
20.705 Can an applicant or recipient appeal a tribal decision?

    Authority: 25 U.S.C. 13; Pub. L. 93-638; Pub. L. 98-473; Pub. L. 
102-477; Pub. L. 104-193; Pub. L. 105-83.

    Source: 65 FR 63159, Oct. 20, 2000, unless otherwise noted.



                Subpart A_Definitions, Purpose and Policy



Sec.  20.100  What definitions clarify the meaning of the provisions 
of this part?

    Adult means an Indian person age 18 or older.
    Adult care assistance means financial assistance provided on behalf 
of an Indian adult who is not eligible for any other state, federal, or 
tribal assistance as documented in the case file and who requires non-
medical personal care and supervision due to advanced age, infirmity, 
physical condition or mental impairment.
    Appeal means a written request for correction of an action or 
decision of a specific program decision by a Bureau

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official (Sec.  20.700) or a tribal official (Sec.  20.705).
    Applicant means an Indian individual by or on whose behalf an 
application for financial assistance and/or social services has been 
made under this part.
    Application means the written or oral process through which a 
request is made for financial assistance or social services.
    Assistant Secretary means the Assistant Secretary--Indian Affairs.
    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 duly authorized and acting on behalf or representing the 
applicant or recipient.
    Bureau means the Bureau of Indian Affairs of the United States 
Department of the Interior.
    Bureau Standard of Assistance means payment standards established by 
the Assistant Secretary for burial, disaster, emergency, TWEP and 
adoption and guardian subsidy. In accordance with Public Law 104-193, 
the Bureau standard of assistance for general assistance is the state 
rate for TANF in the state where the applicant resides. Where the Bureau 
provides general assistance on a reservation that extends into another 
state, the Bureau will provide general assistance to eligible Indians 
based on the standard of assistance where the applicant resides if the 
applicant is not eligible for state general assistance or TANF. The 
Bureau standard of assistance for adult care assistance is the state 
rate for adult care assistance in the state where the applicant resides. 
The Bureau standard of assistance for foster care is the state rate for 
foster care in the state where the applicant resides as provided by 
Title IV of the Social Security Act (49 Stat. 620).
    Burial assistance means a financial assistance payment made on 
behalf of an indigent Indian who meets the eligibility criteria to 
provide minimum burial expenses according to Bureau payment standards 
established by the Assistant Secretary.
    Case means a single type of assistance and/or service provided to an 
individual or household in response to an identified need which requires 
intervention by social services.
    Case management means the activity of a social services worker in 
assessing client and family problem(s), case planning, coordinating and 
linking services for clients, monitoring service provisions and client 
progress, advocacy, tracking and evaluating services provided, such as 
evaluation of child's treatment being concurrent with parent's 
treatment, and provision of aftercare service. Activities may also 
include resource development and providing other direct services such as 
accountability of funds, data collection, reporting requirements, and 
documenting activities in the case file.
    Case plan means a written plan with time limited goals which is 
developed and signed by the service recipient and social services 
worker. The case plan will include documentation of referral and 
disapproval of eligibility for other services. The plan must incorporate 
the steps needed to assist individuals and families to resolve social, 
economic, psychological, interpersonal, and/or other problems, to 
achieve self-sufficiency and independence. All plans for children in 
foster care or residential care must include a permanency plan which 
contains a time specific goal of the return of the child to the natural 
parents or initiation of a guardianship/adoption.
    Child means an Indian person under the age of 18 except that no 
person who has been emancipated by marriage will be deemed a child.
    Child assistance means financial assistance provided on behalf of an 
Indian child, who has special needs as specified in Sec.  20.100. In 
addition, assistance includes services to a child who requires placement 
in a foster home or a residential care facility in accordance with 
standards of payment levels established by the state or county in which 
the child resides. Further, assistance includes services to a child in 
need of adoption or guardianship in accordance with payment levels 
established by the Assistant Secretary.
    Designated representative means an official of the Bureau who is 
designated by a Superintendent to hold a hearing as prescribed in 
Sec. Sec.  20.700 through 20.705 and who has had no prior involvement

[[Page 89]]

in the proposed decision under Sec.  20.603 and whose hearing decision 
under Sec. Sec.  20.700 through 20.705 will have the same force and 
effect as if rendered by the Superintendent.
    Disaster means a situation where a tribal community is adversely 
affected by a natural disaster or other forces which pose a threat to 
life, safety, or health as specified in Sec. Sec.  20.327 and 20.328.
    Emergency means a situation where an individual or family's home and 
personal possessions are either destroyed or damaged through forces 
beyond their control as specified in Sec.  20.329.
    Employable means an eligible Indian person who is physically and 
mentally able to obtain employment, and who is not exempt from seeking 
employment in accordance with the criteria specified in Sec.  20.315.
    Essential needs means shelter, food, clothing and utilities, as 
included in the standard of assistance in the state where the eligible 
applicant lives.
    Extended family means persons related by blood, marriage or as 
defined by tribal law or custom.
    Family assessment means a social services assessment of a family's 
history and present abilities and resources to provide the necessary 
care, guidance and supervision for individuals within the family's 
current living situation who may need social service assistance and/or 
services.
    Financial Assistance means any of the following forms of assistance 
not provided by other federal, state, local or tribal sources:
    (1) Adult Care Assistance for adults who require non-medical 
personal care and supervision;
    (2) Burial Assistance for indigent burials;
    (3) Child Assistance for any child with special needs, in need of 
placement in a foster home or residential care facility, or in need of 
adoption or guardianship;
    (4) Disaster Assistance;
    (5) Emergency Assistance for essential needs to prevent hardship 
caused by burnout, flooding of homes, or other life threatening 
situations that may cause loss or damage of personal possessions;
    (6) General Assistance for basic essential needs; or
    (7) Tribal Work Experience Program for participants in work 
experience and training.
    Foster care services means those social services provided to an 
eligible Indian child that is removed from his or her home due to 
neglect, abandonment, abuse or other maltreatment and placed in a foster 
home. Services must also be extended to the affected family members and 
foster parent(s) with a goal of reuniting and preserving the family.
    General Assistance means financial assistance payments to an 
eligible Indian for essential needs provided under Sec. Sec.  20.300 
through 20.319.
    Guardianship means long-term, social services and court approved 
placement of a child.
    Head of household means a person in the household that has primary 
responsibility and/or obligation for the financial support of others in 
the household. In the case of a two parent household, one will be 
considered the head of household for the purpose of making an 
application for benefits.
    Homemaker services means non-medical services provided by social 
services, in the absence of other resources, to assist an eligible 
Indian in maintaining self-sufficiency, and preventing placement into 
foster care or residential care. Examples of services included in 
homemaker services are: cleaning an individual's home, preparing meals 
for an individual, and maintaining or performing basic household 
functions.
    Household means persons living together who may or may not be 
related to the ``head of household.''
    Indian means:
    (1) Any person who is a member of an Indian tribe; or
    (2) In the Alaska service area only, any person who meets the 
definition of ``Native'' as defined under 43 U.S.C. 1602(b): ``A citizen 
of the United States and one-fourth degree or more Alaska Indian 
(including Tsimshian Indians not enrolled in the Metlakatla Indian 
Community) Eskimo, or Aleut blood, or combination thereof. The term 
includes any Native as so defined either or both of whose adoptive 
parents are

[[Page 90]]

not Natives. It also includes, in the absence of proof of a minimum 
blood quantum, any citizen of the United States who is regarded as an 
Alaska Native by the Native village or Native group of which he claims 
to be a member and whose father or mother is (or, if deceased, was) 
regarded as Native by any village or group. Any decision of the 
Secretary regarding eligibility for enrollment shall be final.''
    Indian court means Indian tribal court or Court of Indian Offenses.
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village, or community which is recognized as eligible for the 
special programs and services provided by the United States because of 
their status as Indians.
    Individual Self-sufficiency Plan (ISP) means a plan designed to meet 
the goal of employment through specific action steps and is incorporated 
within the case plan for the general assistance recipient. The plan is 
jointly developed and signed by the recipient and social services 
worker.
    Near Reservation means those areas or communities designated by the 
Assistant Secretary that are adjacent or contiguous to reservations 
where financial assistance and social service programs are provided.
    Need means the deficit after consideration of income and other 
resources necessary to meet the cost of essential need items and special 
need items as defined by the Bureau standard of assistance for the state 
in which the applicant or recipient resides.
    Permanency plan means the documentation in a case plan which 
provides for permanent living alternatives for the child in foster care, 
a residential care facility, or in need of adoption or guardianship. 
Permanency plans are developed and implemented in accordance with 
tribal, cultural, and tribal/state legal standards when the parent or 
guardian is unable to resolve the issues that require out-of-home 
placement of the child.
    Protective services means those services necessary to protect an 
Indian who is the victim of an alleged and/or substantiated incident of 
abuse, neglect or exploitation or who is under the supervision of the 
Bureau in regard to the use and disbursement of funds in his or her 
Individual Indian Money (IIM) account.
    Public assistance means those programs of financial assistance 
provided by state, tribal, county, local and federal organizations 
including programs under Title IV of the Social Security Act (49 Stat. 
620), as amended, and Public Law 104-193.
    Recipient is an eligible Indian receiving financial assistance or 
social services under this part.
    Recurring income means any cash or in-kind payment, earned or 
unearned, received on a monthly, quarterly, semiannual, or annual basis.
    Regional Director means the Bureau official in charge of a Regional 
Office.
    Reservation means any federally recognized Indian tribe's 
reservation, pueblo, or colony, including Alaska Native regions 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688).
    Residential care services means those rehabilitation services 
provided to an eligible Indian child that is removed from his or her 
home due to lack of resources in the home to care for him or her and 
placed in a residential care facility.
    Resources means income, both earned and unearned, 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, and 
retirements and annuities.
    Secretary means the Secretary of the Interior.
    Service area means a geographic area designated by the Assistant 
Secretary where financial assistance and social services programs are 
provided. Such a geographic area designation can include a reservation, 
near reservation, or other geographic location. ``The Assistant 
Secretary has designated the entire State of Alaska as a service area.''
    Services to children, elderly and families means social services, 
including protective services provided through the

[[Page 91]]

social work skills of casework, group work or community development to 
assist in solving social problems involving children, elderly and 
families. These services do not include money payments.
    Special needs means a financial assistance payment made to or on 
behalf of children under social services supervision for circumstances 
that warrant financial assistance that is not included in the foster 
care rates; for example, respite care, homemaker service, day care 
service, and may include basic needs (special diets) which are not 
considered as a medical need where other resources are not available.
    Superintendent means the Bureau official in charge of an agency 
office.
    Supplemental Security Income (SSI) means cash assistance provided 
under Title XVI of the Social Security Act (49 Stat. 620), as amended.
    Temporary Assistance for Needy Families (TANF) means one of the 
programs of financial assistance provided under the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).
    Tribal governing body means the federally recognized governing body 
of an Indian tribe.
    Tribal redesign plan means a tribally designed method for changing 
general assistance eligibility and/or payment levels in accordance with 
25 U.S.C.A. Sec.  13d-3.
    Tribal Work Experience Program (TWEP) means a program operated by 
tribal contract/grant or self-governance annual funding agreement, which 
provides eligible participants with work experience and training that 
promotes and preserves work habits and develops work skills aimed toward 
self-sufficiency. The Bureau payment standard is established by the 
Assistant Secretary.
    Unemployable means a person who meets the criteria specified in 
Sec.  20.315.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000, as amended at 66 
FR 15030, Mar. 15, 2001]



Sec.  20.101  What is the purpose of this part?

    The regulations in this part govern the provision to eligible 
Indians of the following kinds of financial assistance and social 
services:
    (a) Adult Care Assistance;
    (b) Burial Assistance;
    (c) Child Assistance;
    (d) Disaster Assistance;
    (e) Emergency Assistance;
    (f) General Assistance;
    (g) Services to Children, Elderly and Families; and
    (h) Tribal Work Experience Program.



Sec.  20.102  What is the Bureau's policy in providing financial assistance 
and social services under this part?

    (a) Bureau social services programs are a secondary, or residual 
resource, and must not be used to supplement or supplant other programs.
    (b) The Bureau can provide assistance under this part to eligible 
Indians when comparable financial assistance or social services are 
either not available or not provided by state, tribal, county, local or 
other federal agencies.
    (c) Bureau financial assistance and social services are subject to 
annual Congressional appropriations.



Sec.  20.103  Have the information collection requirements in this part 
been approved by the Office of Management and Budget?

    The information collection requirements contained in Sec. Sec.  
20.300, 20.400, and 20.500 were submitted for clearance to the Office of 
Management and Budget under 44 U.S.C. 35d et seq. This information 
collection was approved by OMB with OMB Control 1076-0017. The 
expiration date is on the form. The information is collected to 
determine applicant eligibility for services. The information will be 
used to determine applicant eligibility and to insure uniformity of 
services. Response is required to obtain a benefit. The public reporting 
burdens for this form are estimated to average 15 minutes per response 
including time for reviewing the instructions, gathering and maintaining 
data, and completing and reviewing the form.



                        Subpart B_Welfare Reform



Sec.  20.200  What contact will the Bureau maintain with State, tribal, 
county, local, and other Federal agency programs?

    We will coordinate all financial assistance and social services 
programs

[[Page 92]]

with state, tribal, county, local and other federal agency programs to 
ensure that the financial assistance and social services program avoids 
duplication of assistance.



Sec.  20.201  How does the Bureau designate a service area 
and what information is required?

    The Assistant Secretary can designate or modify service areas for a 
tribe. If you are a tribe requesting a service area designation, you 
must submit each of the following:
    (a) A tribal resolution that certifies that:
    (1) All eligible Indians residing within the service area will be 
served; and
    (2) The proposed service area will not include counties or parts 
thereof that have reasonably available comparable services.
    (b) Additional documentation showing that:
    (1) The area is administratively feasible (that is, an adequate 
level of services can be provided to the eligible Indians residing in 
the area.);
    (2) No duplication of services exists; and
    (3) A plan describing how services will be provided to all eligible 
Indians can be implemented.
    (c) Documentation should be sent to the Regional Director or Office 
of Self-Governance.
    The Director or office will evaluate the information and make 
recommendations to the Assistant Secretary. The Assistant Secretary can 
make a determination to approve or disapprove and publish notice of the 
designation of service area and the Indians to be served in the Federal 
Register. Tribes currently providing services are not required to 
request designation for service areas unless they make a decision to 
modify their existing service areas.



Sec.  20.202  What is a tribal redesign plan?

    If you are a tribe administering a general assistance program, you 
can develop and submit to us a tribal redesign plan to change the way 
that you administer the program.
    (a) A tribal redesign plan allows a tribe to:
    (1) Change eligibility for general assistance in the service area; 
or
    (2) Change the amount of general assistance payments for individuals 
within the service area.
    (b) If you develop a tribal redesign plan it must:
    (1) Treat all persons in the same situation equally; and
    (2) Will not result in additional expenses for the Bureau solely 
because of any increased level of payments.



Sec.  20.203  Can a tribe incorporate assistance from other sources 
into a tribal redesign plan?

    Yes, when a tribe redesigns its general assistance program, it may 
include assistance from other sources (such as Public Law 102-477 
federal funding sources) in the plan.



Sec.  20.204  Must all tribes submit a tribal redesign plan?

    No, you must submit a tribal redesign plan under Sec.  20.206 only 
if you want to change the way that the General Assistance program 
operates in your service area.



Sec.  20.205  Can tribes change eligibility criteria or levels of payments 
for General Assistance?

    Yes, if you have a redesign plan, you can change eligibility 
criteria or levels of payment for general assistance.
    (a) The funding level for your redesigned general assistance program 
will be the same funding received in the most recent fiscal or calendar 
year, whichever applies.
    (b) If you do not have a prior year level of funding, the Bureau or 
Office of Self-Governance will establish a tentative funding level based 
upon best estimates for caseload and expenditures.
    (c) A Bureau servicing office can administer a tribal redesign plan 
as requested by a tribal resolution.



Sec.  20.206  Must a tribe get approval for a tribal redesign plan?

    If you have a Public Law 93-638 contract or receive direct services 
from us, you must obtain our approval before implementing a redesign 
plan. You can apply for approval to the Regional Director through the 
Bureau servicing office.

[[Page 93]]

    (a) You must submit your redesign plan for approval at least 3 
months before the effective date.
    (b) If you operate with a self-governance annual funding agreement, 
you must obtain the approval of the redesign from the Office of Self-
Governance.
    (c) If you operate with a Public Law 102-477 grant, you must obtain 
approval from the Bureau Central Office.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec.  20.207  Can a tribe use savings from a tribal redesign plan 
to meet other priorities of the tribe?

    Yes, you may use savings from a redesign of the general assistance 
program to meet other priorities.



Sec.  20.208  What if the tribal redesign plan leads to increased costs?

    The tribe must meet any increase in cost to the General Assistance 
program that results solely from tribally increased payment levels due 
to a redesign plan.



Sec.  20.209  Can a tribe operating under a tribal redesign plan go back 
to operating under this part?

    Yes, a tribe operating under a tribal redesign plan can choose to 
return to operation of the program as provided in Sec. Sec.  20.300 
through 20.323.



Sec.  20.210  Can eligibility criteria or payments for Burial Assistance, 
Child Assistance, and Disaster Assistance and Emergency Assistance change?

    No, unless otherwise provided by law, the Bureau nor a tribe may 
change eligibility criteria or levels of payment for Burial Assistance, 
Child Assistance, Disaster Assistance, and Emergency Assistance awarded 
in Public Law 93-638 contracts, Public Law 102-477 grants, or Public Law 
103-413 self-governance annual funding agreements.



                       Subpart C_Direct Assistance

                    Eligibility for Direct Assistance



Sec.  20.300  Who qualifies for Direct Assistance under this subpart?

    To be eligible for assistance or services under this part, an 
applicant must meet all of the following criteria:
    (a) Meet the definition of Indian as defined in this part;
    (b) Not have sufficient resources to meet the essential need items 
defined by the Bureau standard of assistance for those Bureau programs 
providing financial payment;
    (c) Reside in the service area as defined in Sec.  20.100; and
    (d) Meet the additional eligibility criteria for each of the 
specific programs of financial assistance or social services in 
Sec. Sec.  20.301 through 20.516.

[65 FR 63159, Oct. 20, 2000, as amended at 66 FR 15030, Mar. 15, 2001]



Sec.  20.301  What is the goal of General Assistance?

    The goal of the General Assistance program is to increase self-
sufficiency. Each General Assistance recipient must work with the social 
services worker to develop and sign an Individual Self-Sufficiency Plan 
(ISP). The plan must outline the specific steps the individual will take 
to increase independence by meeting the goal of employment.



Sec.  20.302  Are Indian applicants required to seek assistance 
through Temporary Assistance for Needy Families?

    Yes, all Indian applicants with dependent children are required to 
apply for Temporary Assistance for Needy Families (TANF) and follow TANF 
regulations.



Sec.  20.303  When is an applicant eligible for General Assistance?

    To be eligible for General Assistance an applicant must:
    (a) Meet the criteria contained in Sec.  20.300;
    (b) Apply concurrently for financial assistance from other state, 
tribal, county, local, or other federal agency programs for which he/she 
is eligible;

[[Page 94]]

    (c) Not receive any comparable public assistance; and
    (d) Develop and sign an employment strategy in the ISP with the 
assistance of the social services worker to meet the goal of employment 
through specific action steps including job readiness and job search 
activities.



Sec.  20.304  When will the Bureau review eligibility for General Assistance?

    The Bureau will review eligibility for General Assistance:
    (a) Every 3 months for individuals who are not exempt from seeking 
or accepting employment in accordance with Sec.  20.315 or the ISP;
    (b) Every 6 months for all recipients; and
    (c) Whenever there is a change in status that can affect a 
recipient's eligibility or amount of assistance. Recipients must 
immediately inform the social services office of any such changes.



Sec.  20.305  What is redetermination?

    Redetermination is an evaluation by a social services worker to 
assess the need for continued financial assistance as outlined in Sec.  
20.304. It includes:
    (a) A home visit;
    (b) An estimate of income, living circumstances, household 
composition for the month(s) for which financial assistance is to be 
provided; and
    (c) Appropriate revisions to the case plan and the ISP.



Sec.  20.306  What is the payment standard for General Assistance?

    (a) Under Public Law 104-193, the Bureau must use the same TANF 
payment standard (and any associated rateable reduction) that exists in 
the state or service area where the applicant or recipient resides. This 
payment standard is the amount from which the Bureau subtracts net 
income and resources to determine General Assistance eligibility and 
payment levels;
    (b) If the state does not have a standard for an adult, we will use 
either the difference between the standard for a child and the standard 
for a household of two, or one-half of the standard for a household of 
two, whichever is greater; and
    (c) If the state does not have a TANF program, we will use the AFDC 
payment standard which was in effect on September 30, 1995, in the State 
where the applicant or recipient resides.

                       Determining Need and Income



Sec.  20.307  What resources does the Bureau consider when determining need?

    When the Bureau determines General Assistance eligibility and 
payment levels, we consider income and other resources as specified in 
Sec. Sec.  20.308 and 20.309.
    (a) All income, earned or unearned, must be calculated in the month 
it is received and as a resource thereafter, except that certain income 
obtained from the sale of real or personal property may be exempt as 
provided in Sec.  20.309.
    (b) Resources are considered to be available when they are converted 
to cash.



Sec.  20.308  What does earned income include?

    Earned income is cash or any in-kind payment earned in the form of 
wages, salary, commissions, or profit, from activities by an employee or 
self-employed individual. Earned income includes:
    (a) Any one-time payment to an individual for activities which were 
sustained over a period of time (for example, the sale of farm crops, 
livestock, or professional artists producing art work); and
    (b) With regard to self-employment, total profit from a business 
enterprise (i.e., gross receipts less expenses incurred in producing the 
goods or services). Business expenses do not include depreciation, 
personal business and entertainment expenses, personal transportation, 
capital equipment purchases, or principal payments on loans for capital 
assets or durable goods.



Sec.  20.309  What does unearned income include?

    Unearned income includes, but is not limited to:
    (a) Income from interest; oil and gas and other mineral royalties; 
gaming income per capita distributions; rental property; cash 
contributions, such as child support and alimony, gaming winnings; 
retirement benefits;

[[Page 95]]

    (b) Annuities, veteran's disability, unemployment benefits, and 
federal and state tax refunds;
    (c) Per capita payments not excluded by federal statute;
    (d) Income from sale of trust land and real or personal property 
that is set aside for reinvestment in trust land or a primary residence, 
but has not been reinvested in trust land or a primary residence at the 
end of one year from the date the income was received;
    (e) In-kind contributions providing shelter at no cost to the 
individual or household, this must equal the amount for shelter included 
in the state standard, or 25 percent of the state standard, whichever is 
less; and
    (f) Financial assistance provided by a state, tribal, county, local, 
or other federal agency.



Sec.  20.310  What recurring income must be prorated?

    The social services worker will prorate the following recurring 
income:
    (a) Recurring income received by individuals over a 12-month period 
for less than a full year's employment (for example, income earned by 
teachers who are not employed for a full year);
    (b) Income received by individuals employed on a contractual basis 
over the term of a contract; and
    (c) Intermittent income received quarterly, semiannually, or yearly 
over the period covered by the income.



Sec.  20.311  What amounts will the Bureau deduct from earned income?

    (a) The social services worker will deduct the following amounts 
from earned income:
    (1) Other federal, state, and local taxes;
    (2) Social Security (FICA);
    (3) Health insurance;
    (4) Work related expenses, including reasonable transportation 
costs;
    (5) Child care costs for children under the age of 6 except where 
the other parent in the home is unemployed and physically able to care 
for the children; and
    (6) The cost of special clothing, tools, and equipment directly 
related to the individual's employment.
    (b) For self-employed individuals, the social services worker will 
deduct the costs of conducting business and all of the amounts in 
paragraph (a) of this section.



Sec.  20.312  What amounts will the Bureau deduct 
from income or other resources?

    The social services worker will deduct the following amounts from 
income, or other resources:
    (a) The first $2,000 of liquid resources annually available to the 
household;
    (b) Any home produce from a garden, livestock, and poultry used by 
the applicant or recipient and his/her household for their consumption; 
and
    (c) Resources specifically excluded by federal statute.



Sec.  20.313  How will the Bureau compute financial assistance payments?

    (a) The social services worker will compute financial assistance 
payments by beginning with the Bureau standard of assistance and doing 
the following:
    (1) Subtracting from all resources calculated under Sec. Sec.  
20.307 through 20.310;
    (2) Subtracting the rateable reduction or maximum payment level used 
by the state where the applicant lives;
    (3) Subtracting an amount for shelter (see paragraph (b) of this 
section for details on how to calculate a shelter amount); and
    (4) Rounding the result down to the next lowest dollar.
    (b) The social services worker must calculate a shelter amount for 
purposes of paragraph (a)(3) of this section. To calculate the shelter 
amount:
    (1) The shelter amount must not exceed the amount for shelter in the 
state TANF standard;
    (2) If the state TANF does not specify an amount for shelter, the 
social services worker must calculate the amount as 25 percent of the 
total state TANF payment; and
    (3) If there is more than one household in a dwelling, the social 
services worker must prorate the actual shelter cost among the 
households receiving General Assistance; this amount cannot exceed the 
amount in the standard for individuals in similar circumstances. The 
head of each household is responsible for his/her portion of the 
documented shelter cost.

[[Page 96]]

    (c) The social services worker must not provide General Assistance 
payments for any period before the date of the application for 
assistance.

                         Employment Requirements



Sec.  20.314  What is the policy on employment?

    (a) An applicant or recipient must:
    (1) Actively seek employment, including the use of available state, 
tribal, county, local or Bureau-funded employment services;
    (2) Make satisfactory progress in an ISP; and
    (3) Accept local and seasonable employment when it is available.
    (b) A head of household who does not comply with this section will 
not be eligible for General Assistance for a period of at least 60 days 
but not more than 90 days. This action must be documented in the case 
file.
    (c) The policy in this section does not apply to any person meeting 
the criteria in Sec.  20.315.



Sec.  20.315  Who is not covered by the employment policy?

    The employment policy in Sec.  20.314 does not apply to the persons 
shown in the following table.

------------------------------------------------------------------------
  The employment policy in
Sec.   20.314 does not apply        if . . .              and . . .
          to . . .
------------------------------------------------------------------------
(a) Anyone younger than 16..
------------------------------------------------------------------------
(b) A full-student under the  He/she is attending   He/she is making
 age of 19.                    an elementary or      satisfactory
                               secondary school or   progress.
                               a vocational or
                               technical school
                               equivalent to a
                               secondary school.
------------------------------------------------------------------------
(c) A person enrolled at      He/she is making      He/she was an active
 least half-time in a          satisfactory          General Assistance
 program of study under        progress.             recipient for a
 Section 5404 of Pub. L. 100-                        minimum of 3 months
 297.                                                before
                                                     determination/
                                                     redetermination of
                                                     eligibility.
------------------------------------------------------------------------
(d) A person suffering from   It is documented in   He/she must be
 a temporary medical injury    the case plan that    referred to SSI if
 or illness.                   the illness or        the disability
                               injury is serious     status exceeds 3
                               enough to             months.
                               temporarily prevent
                               employment.
------------------------------------------------------------------------
(e) An incapacitated person   A physician,          The assessment is
 who has not yet received      psychologist, or      documented in the
 Supplemental Security         social services       case plan.
 Income (SSI) assistance.      worker certifies
                               that a physical or
                               mental impairment
                               (either by itself,
                               or in conjunction
                               with age) prevents
                               the individual from
                               being employed.
------------------------------------------------------------------------
(f) A caretaker who is        A physician or        The case plan
 responsible for a person in   certified             documents that: the
 the home who has a physical   psychologist          condition requires
 or mental impairment.         verifies the          the caretaker to be
                               condition.            home on a virtually
                                                     continuous basis;
                                                     and there is no
                                                     other appropriate
                                                     household member
                                                     available to
                                                     provide this care.
------------------------------------------------------------------------
(g) A parent or other         He/she personally
 individual who does not       provides full-time
 have access to child care.    care to a child
                               under the age of 6.
------------------------------------------------------------------------
(h) A person for whom         There is a minimum
 employment is not             commuting time of
 accessible.                   one hour each way.
------------------------------------------------------------------------



Sec.  20.316  What must a person covered by the employment policy do?

    (a) If you are covered by the employment policy in Sec.  20.314, you 
must seek employment and provide evidence of your monthly efforts to 
obtain employment in accordance with your ISP.
    (b) If you do not seek and accept available local and seasonal 
employment, or you quit a job without good cause, you cannot receive 
General Assistance for a period of at least 60 days but not more than 90 
days after you refuse or quit a job.

[[Page 97]]



Sec.  20.317  How will the ineligibility period be implemented?

    (a) If you refuse or quit a job, your ineligibility period will 
continue as provided in Sec.  20.316(b) until you seek and accept 
appropriate available local and seasonal employment and fulfill your 
obligations already agreed to in the ISP;
    (b) The Bureau will reduce your suspension period by 30 days when 
you show that you have sought local and seasonal employment in 
accordance with the ISP; and
    (c) Your eligibility suspension will affect only you. The Bureau 
will not apply it to other eligible members of the household.



Sec.  20.318  What case management responsibilities 
does the social services worker have?

    In working with each recipient, you, the social services worker 
must:
    (a) Assess the general employability of the recipient;
    (b) Assist the recipient in the development of the ISP;
    (c) Sign the ISP;
    (d) Help the recipient identify the service(s) needed to meet the 
goals identified in their ISP;
    (e) Monitor recipient participation in work related training and 
other employment assistance programs; and
    (f) Document activities in the case file.



Sec.  20.319  What responsibilities does the general assistance recipient have?

    In working with the social services worker, you, the recipient, 
must:
    (a) Participate with the social services worker in developing an ISP 
and sign the ISP;
    (b) Perform successfully in the work related activities, community 
service, training and/or other employment assistance programs developed 
in the ISP;
    (c) Participate successfully in treatment and counseling services 
identified in the ISP;
    (d) Participate in evaluations of job readiness and/or any other 
testing required for employment purposes; and
    (e) Demonstrate that you are actively seeking employment by 
providing the social services worker with evidence of job search 
activities as required in the ISP.

                  Tribal Work Experience Program (TWEP)



Sec.  20.320  What is TWEP?

    TWEP is a program that provides work experience and job skills to 
enhance potential job placement for the general assistance recipient. 
TWEP programs can be incorporated within Public Law 93-638 self-
determination contracts, Public Law 102-477 grants, and Public Law 103-
413 self-governance annual funding agreements at the request of the 
tribe.



Sec.  20.321  Does TWEP allow an incentive payment?

    Yes, incentive payments to participants are allowed under TWEP.
    (a) Incentive payments are separate. The Bureau will not consider 
incentive payments as wages or work related expenses, but as grant 
assistance payments under Sec. Sec.  20.320 through 20.323.
    (b) The approved payment will not exceed the Bureau maximum TWEP 
payment standard established by the Assistant Secretary.



Sec.  20.322  Who can receive a TWEP incentive payment?

    (a) The head of the family unit normally receives the TWEP 
assistance payment.
    (b) The social services worker can designate a spouse or other adult 
in the assistance group to receive the TWEP assistance payment. The 
social services worker will do this only if:
    (1) The recognized head of the family unit is certified as 
unemployable; and
    (2) The designation is consistent with the ISP.
    (c) Where there are multiple family units in one household, one 
member of each family unit will be eligible to receive the TWEP 
incentive payment.



Sec.  20.323  Will the local TWEP be required to have 
written program procedures?

    Yes, the local TWEP must have specific written program procedures 
that cover hours of work, acceptable reasons for granting leave from 
work, evaluation criteria and monitoring

[[Page 98]]

plans and ISP's for participants. Work readiness progress must be 
documented in each ISP.

                            Burial Assistance



Sec.  20.324  When can the Bureau provide Burial Assistance?

    In the absence of other resources, the Bureau can provide Burial 
Assistance for eligible indigent Indians meeting the requirements 
prescribed in Sec.  20.300.



Sec.  20.325  Who can apply for Burial Assistance?

    If you are a relative of a deceased Indian, you can apply for burial 
assistance for the deceased Indian under this section.
    (a) To apply for burial assistance under this section, you must 
submit the application to the social services worker. You must submit 
this application within 180 days following death.
    (b) The Bureau will determine eligibility based on the income and 
resources available to the deceased in accordance with Sec.  20.100. 
This includes but is not limited to SSI, veterans' death benefits, 
social security, and Individual Indian Money (IIM) accounts. 
Determination of need will be accomplished on a case-by-case basis using 
the Bureau payment standard.
    (c) The Bureau will not approve an application unless it meets the 
criteria specified at Sec.  20.300.
    (d) The approved payment will not exceed the Bureau maximum burial 
payment standard established by the Assistant Secretary.

[65 FR 63159, Oct. 20, 2000, as amended at 81 FR 10477, Mar. 1, 2016]



Sec.  20.326  Does Burial Assistance cover transportation costs?

    Transportation costs directly associated with burials are normally a 
part of the established burial rate. If a provider adds an additional 
transportation charge to the burial rate because of extenuating 
circumstances, the social services worker can pay the added charge. To 
do this, the social services worker must ensure and document in the case 
plan that:
    (a) The charges are reasonable and equitable;
    (b) The deceased was an eligible indigent Indian who was socially, 
culturally, and economically affiliated with his or her tribe; and
    (c) The deceased resided in the service area for at least the last 6 
consecutive months of his/her life.

                           Disaster Assistance



Sec.  20.327  When can the Bureau provide Disaster Assistance?

    Disaster assistance is immediate and/or short-term relief from a 
disaster and can be provided to a tribal community in accordance with 
Sec.  20.328.



Sec.  20.328  How can a tribe apply for Disaster Assistance?

    (a) The tribe affected by the disaster is considered the applicant 
and must submit the following to the Regional Director through the local 
Superintendent:
    (1) A tribal resolution requesting disaster assistance;
    (2) A copy of county, state, or Presidential declaration of 
disaster; and
    (3) The projected extent of need in the service area not covered by 
other federal funding sources.
    (b) The Regional Director must forward the above tribal documents 
and his/her recommendation to the Assistant Secretary for final decision 
on whether disaster assistance will be provided and to what extent.

                          Emergency Assistance



Sec.  20.329  When can the Bureau provide Emergency Assistance payments?

    Emergency Assistance payments can be provided to individuals or 
families who suffer from a burnout, flood, or other destruction of their 
home and loss or damage to personal possessions. The Bureau will make 
payments only for essential needs and other non-medical necessities.



Sec.  20.330  What is the payment standard for Emergency Assistance?

    The approved payment will not exceed the Bureau's maximum Emergency 
Assistance payment standard established by the Assistant Secretary.

[[Page 99]]

                          Adult Care Assistance



Sec.  20.331  What is Adult Care Assistance?

    Adult care assistance provides non-medical care for eligible adult 
Indians who:
    (a) Have needs that require personal care and supervision due to 
advanced age, infirmity, physical condition, or mental impairments; and
    (b) Cannot be cared for in their own home by family members.



Sec.  20.332  Who can receive Adult Care Assistance?

    An adult Indian is eligible to receive adult care assistance under 
this part if he/she:
    (a) Is unable to meet his/her basic needs, including non-medical 
care and/or protection, with his/her own resources; and
    (b) Does not require intermediate or skilled nursing care.



Sec.  20.333  How do I apply for Adult Care Assistance?

    To apply for adult care assistance, you or someone acting on your 
behalf must submit an application form to the social services worker.



Sec.  20.334  What happens after I apply?

    (a) The Bureau will determine eligibility based upon the income and 
available resources of the person named in the application.
    (b) Upon approval by the Bureau Line Officer, payments will be 
approved under purchase of service agreements for adult care provided in 
state or tribally licensed or certified group settings, or by individual 
service providers licensed or certified for homemaker service.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec.  20.335  What is the payment standard for Adult Care Assistance?

    The approved payment for adult care assistance will not exceed the 
applicable state payment rate for similar care.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



          Subpart D_Services to Children, Elderly, and Families



Sec.  20.400  Who should receive Services to Children, Elderly, and Families?

    Services to Children, Elderly, and Families will be provided for 
Indians meeting the requirements prescribed in Sec.  20.300 who request 
these services or on whose behalf these services are requested.



Sec.  20.401  What is included under Services to Children, Elderly, 
and Families?

    Services to Children, Elderly, and Families include, but are not 
limited to, the following:
    (a) Assistance in solving problems related to family functioning and 
interpersonal relationships;
    (b) Referral to the appropriate resource for problems related to 
illness, physical or mental handicaps, drug abuse, alcoholism, and 
violation of the law; and
    (c) Protective services.
    In addition, economic opportunity and money management may also be 
provided.



Sec.  20.402  When are protective services provided?

    Protective services are provided when children or adults:
    (a) Are deprived temporarily or permanently of needed supervision by 
responsible adults;
    (b) Are neglected, abused or exploited;
    (c) Need services when they are mentally or physically handicapped 
or otherwise disabled; or
    (d) Are under the supervision of the Bureau in regard to the use and 
disbursement of funds in the child's or adult's Individual Indian Money 
(IIM) account. Those IIM accounts that are established for children will 
be supervised by the Bureau until the child becomes an adult as defined 
in 25 CFR 115.



Sec.  20.403  What do protective services include?

    Protective services provided to a child, family or elderly person 
will be documented in the case files and:

[[Page 100]]

    (a) Can include, but are not limited to, any of the following:
    (1) Providing responses to requests from members of the community on 
behalf of children or adults alleged to need protective services;
    (2) Providing services to children, elderly, and families, including 
referrals for homemaker and day care services for the elderly and 
children;
    (3) Coordinating with Indian courts to provide services, which may 
include, but are not limited to, the following:
    (i) Investigating and reporting on allegations of child abuse and 
neglect, abandonment, and conditions that may require referrals (such as 
mental or physical handicaps);
    (ii) Providing social information related to the disposition of a 
case, including recommendation of alternative resources for treatment; 
and
    (iii) Providing placement services by the court order before and 
after adjudication.
    (4) Coordinating with other community services, including groups, 
agencies, and facilities in the community. Coordination can include, but 
are not limited to:
    (i) Evaluating social conditions that affect community well-being;
    (ii) Treating conditions identified under paragraph (b)(1) of this 
section that are within the competence of social services workers; and
    (iii) Working with other community agencies to identify and help 
clients to use services available for assistance in solving the social 
problems of individuals, families, and children.
    (5) Coordinating with law enforcement and tribal courts, to place 
the victim of an alleged and/or substantiated incident of abuse, neglect 
or exploitation out of the home to assure safety while the allegations 
are being investigated. Social services workers may remove individuals 
in life threatening situations. After a social services assessment, the 
individual must be either returned to the parent(s) or to the home from 
which they were removed or the social services worker must initiate 
other actions as provided by the tribal code; and
    (6) Providing social services in the home, coordinating and making 
referrals to other programs/services, including Child Protection, and/or 
establishing Multi-Disciplinary Teams.
    (b) Must include, where the service population includes IIM account 
holders:
    (1) Conducting, upon the request of an account holder or other 
interested party, a social services assessment to evaluate an adult 
account holder's circumstances and abilities and the extent to which the 
account holder needs assistance in managing his or her financial 
affairs; and
    (2) Managing supervised IIM accounts of children and adults (in 
conjunction with legal guardians), which includes, but is not limited 
to, the following:
    (i) Evaluating the needs of the account holder;
    (ii) Developing, as necessary and as permitted under 25 CFR 115, a 
one-time or an annual distribution plan for funds held in an IIM account 
along with any amendments to the plan for approval by the Bureau;
    (iii) Monitoring the implementation of the approved distribution 
plan to ensure that the funds are expended in accordance with the 
distribution plan;
    (iv) Reviewing the supervised account every 6 months or more often 
as necessary if conditions have changed to warrant a recommendation to 
change the status of the account holder, or to modify the distribution 
plan;
    (v) Reviewing receipts for an account holder's expenses and 
verifying that expenditures of funds from a supervised IIM account were 
made in accordance with the distribution plan approved by the Bureau, 
including any amendments made to the plan; and
    (vi) Petitioning a court of competent jurisdiction for the 
appointment of, or change in, a legal guardian for a client, where 
appropriate.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec.  20.404  What information is contained in a social services assessment?

    A social services assessment must contain, but is not limited to, 
the following:
    (a) Identifying information about the client (for example, name, 
address, age, gender, social security number, telephone number, 
certificate of Indian blood, education level), family history

[[Page 101]]

and medical history of the account holder;
    (b) Description of the household composition: information on each 
member of the household (e.g., name, age, and gender) and that person's 
relationship to the client;
    (c) The client's current resources and future income (e.g., VA 
benefits, retirement pensions, trust assets, employment income, judgment 
funds, general assistance benefits, unemployment benefits, social 
security income, supplemental security income and other governmental 
agency benefits);
    (d) A discussion of the circumstances which justify special 
services, including ability of the client to handle his or her financial 
affairs and to conduct day-to-day living activities. Factors to be 
considered should include, but are not limited to:
    (1) Age;
    (2) Developmental disability;
    (3) Chronic alcoholism or substance abuse;
    (4) Lack of family assistance or social support systems, or 
abandonment;
    (5) Self-neglect;
    (6) Financial exploitation or abuse;
    (7) Physical exploitation, neglect or abuse;
    (8) Senility; and
    (9) Dementia.
    (e) Documentation supporting the need for assistance (e.g., medical 
reports, police reports, court orders, letters from interested parties, 
prior assessments or evaluations, diagnosis by psychologist/
psychiatrist); and
    (f) Summary of findings and proposed services to meet the identified 
needs of the client.



                       Subpart E_Child Assistance



Sec.  20.500  Who is eligible for Child Assistance?

    A child is eligible for Child Assistance under this subpart if all 
of the following criteria are met:
    (a) The child must meet the requirements in Sec.  20.300.
    (b) The child's legally responsible parent, custodian/guardian, or 
Indian court having jurisdiction must:
    (1) Request assistance under this part in writing;
    (2) State that they are unable to provide necessary care and 
guidance for the child, or to provide for the child's special needs in 
his/her own home; and
    (3) Provide a documented social services assessment from the social 
services worker of whether parent(s), custodian, guardian(s) are able to 
care for their child.
    (c) All income accruing to the child, except income exempted by 
federal statute, must be used to meet the cost of special needs, foster 
home or residential care facility as authorized and arranged by social 
services.

                 How Child Assistance Funds Can Be Used



Sec.  20.501  What services can be paid for with Child Assistance funds?

    The social services program can use Child Assistance funds to pay 
for services as shown in the following table.

------------------------------------------------------------------------
                               Conditions that must be   Maximum payment
  Service that can be paid               met                  level
------------------------------------------------------------------------
(a) Room and board at         There must be no other     The state or
 residential care facilities   resources available to     county
 licensed by the tribe or      pay these costs. See       residential
 state.                        Sec.   20.502 for other    care rate in
                               conditions that must be    the state in
                               met.                       which the
                                                          child resides.
------------------------------------------------------------------------
(b) Adoption or guardianship  There must be no other     The Bureau's
 subsidies.                    resources available to     maximum
                               pay for this service.      adoption and
                               See Sec.   20.503 for      guardianship
                               other conditions that      payment
                               must be met.               standard.
------------------------------------------------------------------------
(c) Short-term homemaker      There must be no other     As approved by
 services.                     resources (such as         the Bureau
                               Medicaid) available to     line officer.
                               pay for this service.
                               Services can be
                               purchased for a maximum
                               of 3 months. See Sec.
                               20.504 for other
                               conditions that must be
                               met.
------------------------------------------------------------------------
(d) Temporary foster care...  See Sec.   20.509 for      The state or
                               conditions that must be    county foster
                               met.                       care rate in
                                                          the state in
                                                          which the
                                                          child resides.
------------------------------------------------------------------------


[[Page 102]]



Sec.  20.502  Can Child Assistance funds be used to place Indian children 
in residential care facilities?

    You, the social service program, can use Child Assistance funds to 
purchase or contract for room and board in licensed residential care 
facilities.
    (a) You can use Child Assistance funds to pay only for room and 
board. You must pay for other services that may be needed, including 
mental health, education, and physical therapy from other sources.
    (b) Before placement the various funding sources must sign an 
agreement that specifies the services each source will pay. The Bureau 
Line Officer must approve this agreement.



Sec.  20.503  When can Child Assistance funds be used for Indian adoption 
or guardianship subsidies?

    You, the social services program, can use Child Assistance funds to 
provide either adoption or guardianship subsidies if all of the 
following are true:
    (a) The child is 17 or younger;
    (b) The child has been in foster care prior to approval of the 
subsidy;
    (c) The social services worker has considered all other available 
resources, attempted permanency planning, and documented in the case 
file that placement was in the best interest of the child; and
    (d) The Bureau Line Officer approves the subsidy before it is 
authorized and redetermines eligibility on a yearly basis.



Sec.  20.504  What short-term homemaker services can Child Assistance pay for?

    You, the social services program, can use Child Assistance funds to 
pay for homemaker services as specified in Sec.  20.501 and this 
section. While housekeeping services are covered, homemaker services 
must focus on training household members in such skills as child care 
and home management. Homemaker services are provided for:
    (a) A child who would otherwise need foster care placement or who 
would benefit from supportive (protective) supervision;
    (b) A severely handicapped or special needs child whose care places 
undue stress on the family; or
    (c) A child whose care would benefit from specialized training and 
supportive services provided to family members.



Sec.  20.505  What services are provided jointly 
with the Child Assistance Program?

    The services listed in this section are provided by Services to 
Children, Elderly, and Families under this subpart jointly with the 
Child Assistance Program.
    (a) Social services provided for children in their own home aimed at 
strengthening the family's ability to provide for and nurture their 
child. These supportive services can include:
    (1) Social work case management;
    (2) Counseling for parents and children;
    (3) Group work, day care; and
    (4) Homemaker services, when necessary.
    (b) Protection of Indian children from abuse, neglect or 
exploitation in coordination with law enforcement and courts.
    (c) A written case plan must be established within 30 days of 
placement and reviewed within 60 days of placement or as outlined in 
tribally established standards, when temporary placement outside the 
home is necessary. The case plan must contain a written agreement signed 
among the various funding sources to identify the services that will be 
paid by each source in those instances where the child requires services 
outside the authority of the Child Assistance program.

                               Foster Care



Sec.  20.506  What information is required in the foster care case file?

    At a minimum the following information is required:
    (a) Tribal enrollment verification in accordance with Sec.  20.100;
    (b) A written case plan (established within 30 days of placement), 
which would include a permanency plan detailing the need for and 
expected length of placement;
    (c) Information on each child's health status and school records, 
including medications and immunization records;

[[Page 103]]

    (d) Parental consent(s) for emergency medical care, school, and 
transportation;
    (e) A signed plan for payment, including financial responsibility of 
parents and use of other appropriate resources;
    (f) A copy of the certification/license of the foster home;
    (g) A current photo of each child;
    (h) A copy of the social security card, birth certificate, Medicaid 
card and current court order;
    (i) For a placement beyond 30 days, copy of the action taken or 
authorized by a court of competent jurisdiction that documents the need 
for protection of the child;
    (j) For an involuntary placement, a social services assessment 
completed by a social services worker within 30 days of placement;
    (k) Documentation of a minimum of one visit to the placement setting 
per month by the social services worker with each child; and
    (l) A list of all prior placements, including the names of the 
foster parents and dates of placements.



Sec.  20.507  What requirements must foster care providers meet?

    If a child needs foster care, the social services worker must select 
care that meets the physical, behavioral, and emotional needs of the 
child. Foster care is intended to be short-term. The case plan must show 
that all of the requirements in paragraphs (a) through (c) of this 
section are met:
    (a) All foster homes must be certified or licensed by the tribe or 
other appropriate authority. Foster care placements beyond 30 days must 
be made through a court of competent jurisdiction to ensure that:
    (1) Federal background checks are completed prior to placement as 
required by Public Law 101-630; and
    (2) Training (optional for placements with relatives) is provided to 
the foster family.
    (b) If the child is placed with relatives in an adoption and 
guardian placement, the case file must contain an approved current home 
study.
    (c) An off-reservation foster home, or residential care facility 
under contract must meet the licensing standards of the state in which 
it is located or tribally established certifying/licensing standards.



Sec.  20.508  What must the social services agency do when a child is placed 
in foster care, residential care or guardianship home?

    The social services agency must make efforts to secure child support 
for the child in foster care or residential care through a court of 
competent jurisdiction.



Sec.  20.509  What must the social services worker do when a child is placed 
in foster care or residential care facility?

    When a child is placed in foster care or a residential care facility 
the social services worker must do all of the following:
    (a) Discuss with foster parents or caretakers, the child's special 
needs, including disabilities;
    (b) Provide counseling or referral to available resources;
    (c) Refer any child requiring medical, substance abuse, or 
behavioral (mental) health services to an appropriate health services to 
be assessed and to receive services;
    (d) Ensure that the case plan provides for all necessary costs of 
care (including clothing, incidentals, and personal allowance) in 
accordance with established state standards of payments;
    (e) Develop a foster family agreement signed and dated by the 
parties involved that specifies the roles and responsibilities of the 
biological parents, foster parents, and placing agency; the terms of 
payment of care; and the need for adherence to the established case 
plan;
    (f) Immediately report any occurrences of suspected child abuse or 
neglect in a foster home or residential care facility to law enforcement 
and protective services in accordance with tribal standards and 
reporting requirements under Public Law 101-630; and
    (g) Complete a yearly assessment of each tribal or state licensed 
foster home or residential care facility evaluating how the home has 
fulfilled its function relative to the needs of the child placed in the 
home.

[[Page 104]]



Sec.  20.510  How is the court involved in child placements?

    The court retains custody of a child in placement and the care and 
supervision must be given to the appropriate social services agency. 
While the court can issue any court order consistent with tribal law, 
the courts do not have the authority to require expenditure of federal 
funds to pay for specifically prescribed or restrictive services or out-
of-home placements of children. Case plans must be reviewed with the 
appropriate court at least every 6 months and a permanency hearing held 
within 12 months after a child enters foster care or residential care, 
or according to established tribal standards. These standards can be 
established in the tribal code and can be in accordance with available 
funding source requirements.



Sec.  20.511  Should permanency plans be developed?

    Permanency planning must be developed for all child placements 
within 6 months after initial placement of the child. Every reasonable 
effort will be made to preserve the family and/or reunify the children 
with the family and relatives when developing permanency plans. However, 
the child's health and safety are the paramount concern.



Sec.  20.512  Can the Bureau/tribal contractors make 
Indian adoptive placements?

    The Bureau is not an authorized adoption agency and staff must not 
arrange adoptive placements. However, long-term permanency planning can 
involve the Bureau social services workers cooperating with tribal 
courts to provide an adoption subsidy. Tribal contractors will provide 
adoption services as authorized by the tribal courts in accordance with 
tribal codes/law.



Sec.  20.513  Should Interstate Compacts be used for the placement of children?

    Interstate compact agreements should be used when appropriate for 
foster care, adoption and guardianship to protect the best interests of 
the child and to assure the availability of the funding resources and 
services from the originating placement source.



Sec.  20.514  What assistance can the courts request from social services 
on behalf of children?

    The courts can request the following:
    (a) Investigations of law enforcement reports of child abuse and 
neglect;
    (b) Assessment of the need for out-of-home placement of the child; 
and
    (c) Provision of court-related services following adjudication, such 
as monitoring, foster care, or residential care, or pre/post placement 
services.



Sec.  20.515  What is required for case management?

    Social services workers must document regular contact with children 
and families in accordance with specific program requirements. The 
social services agency is responsible for implementation of quality case 
management; this requires the supervisor's review of case plans every 90 
days.



Sec.  20.516  How are child abuse, neglect or exploitation cases to be handled?

    Reported child abuse, neglect or exploitation cases and the 
requirement for background clearances will be handled in accordance with 
the Indian Child Protection and Family Violence Prevention Act of 1990, 
Public Law 101-630, 25 CFR part 63, federal and/or state laws where 
applicable, and tribal codes which protect Indian children and victims 
of domestic violence. This includes developing and maintaining Child 
Protection Teams in accordance to Public Law 101-630 and collection of 
child abuse, neglect and exploitation data according to Public Law 99-
570. Those cases referred by the state will be handled according to the 
Indian Child Welfare Act, Public Law 95-608, and 25 CFR part 23.



                   Subpart F_Administrative Procedures



Sec.  20.600  Who can apply for financial assistance or social services?

    (a) You can apply for financial assistance or social services under 
this part if you:
    (1) Believe that you are eligible to receive benefits; or
    (2) Are applying on behalf of someone who you believe is eligible to 
receive benefits.

[[Page 105]]

    (b) Under paragraph (a) of this section, any of the following may 
apply for benefits on behalf of another person: relatives, interested 
individuals, social services agencies, law enforcement agencies, courts, 
or other persons or agencies.



Sec.  20.601  How can applications be submitted?

    You can apply for financial assistance or social services under this 
part by:
    (a) Completing an application that you can get from your social 
services worker or tribe; or
    (b) Through an interview with a social services worker who will 
complete an application for you based on the oral interview.



Sec.  20.602  How does the Bureau verify eligibility for social services?

    (a) You, the applicant, are the primary source of information used 
to determine eligibility and need. If it is necessary to secure 
information such as medical records from other sources, you must 
authorize the release of information.
    (b) You must immediately report to your social services worker any 
changes in circumstances that may affect your eligibility or the amount 
of financial assistance that you receive.



Sec.  20.603  How is an application approved or denied?

    (a) Each application must be approved if the applicant meets the 
eligibility criteria in this part for the type of assistance requested 
and all recipients will be redetermined for eligibility every 6 months. 
Financial assistance will be made retroactive to the application date.
    (b) An application must be denied if the applicant does not meet the 
eligibility criteria in Sec. Sec.  20.300 through 20.516.
    (c) The social services worker must approve or deny an application 
within 30 days of the application date. The local social services worker 
must issue written notice of the approval or denial of each application 
within 45 days of the application date.
    (d) If for a good reason the social services worker cannot meet the 
deadline in paragraph (c) of this section, he or she must notify the 
applicant in writing of:
    (1) The reasons why the decision cannot be made; and
    (2) The deadline by which the social services worker will send the 
applicant a decision.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec.  20.604  How is an applicant or recipient notified that benefits 
or services are denied or changed?

    If the Bureau increases, decreases, suspends, or terminates 
financial assistance, the social services worker must mail or hand 
deliver to the applicant or recipient a written notice of the action. 
The notice must:
    (a) State the action taken, the effective date, and the reason(s) 
for the decision;
    (b) Inform the applicant or recipient of the right to request a 
hearing if dissatisfied with the decision;
    (c) Advise the applicant or recipient of the right to be represented 
by an authorized representative at no expense to the Bureau;
    (d) Include the address of the local Superintendent or his/her 
designated representative to whom the request for a hearing must be 
submitted;
    (e) Advise the applicant or recipient that failure to request a 
hearing within 20 days of the date of the notice will cause the decision 
to become final and not subject to appeal under 25 CFR part 2; and
    (f) Be delivered to the applicant 20 days in advance of the 
effective date of the action.



Sec.  20.605  What happens when an applicant or recipient appeals a decision 
under this subpart?

    If you are an applicant or recipient and appeal a decision made 
under Sec.  20.604, you can continue to receive your assistance while 
your appeal is pending. For this to happen, you must submit your appeal 
by the deadline in Sec.  20.604(e).



Sec.  20.606  How is an incorrect payment adjusted or recovered?

    (a) When an incorrect payment of financial assistance has been made 
to an

[[Page 106]]

individual or family, a proper adjustment or recovery is required.
    (b) The proper adjustment or recovery is based upon individual need 
as appropriate to the circumstances that resulted in an incorrect 
payment.
    (c) Before adjustment or recovery, the recipient will be notified of 
the proposal to correct the payment and given an informal opportunity to 
resolve the matter.
    (d) If an informal resolution cannot be attained, the recipient must 
be given a written notice of decision and the procedures of Sec.  20.604 
will apply.
    (e) If a hearing is requested, the hearing will be conducted in 
accordance with the procedures under Sec. Sec.  20.700 through 20.705.



Sec.  20.607  What happens when applicants or recipients knowingly 
and willfully provide false or fraudulent information?

    Applicants or recipients who knowingly and willfully provide false 
or fraudulent information are subject to prosecution under 18 U.S.C. 
Sec.  1001, which carries a fine of not more than $10,000 or 
imprisonment for not more than 5 years, or both. The social services 
worker will prepare a written report detailing the information 
considered to be false and submit the report to the Superintendent or 
his/her designated representative for appropriate investigative action.



                     Subpart G_Hearings and Appeals



Sec.  20.700  Can an applicant or recipient appeal the decision 
of a Bureau official?

    Yes, if you are an applicant or recipient, and are dissatisfied with 
a Bureau decision made under this part, you can request a hearing before 
the Superintendent or his/her designated representative. You must submit 
your request by the deadline in Sec.  20.604. The Superintendent or his/
her designated representative can extend the deadline if you show good 
cause.



Sec.  20.701  Does a recipient receive financial assistance 
while an appeal is pending?

    Yes, if you appeal under this subpart, financial assistance will be 
continued or reinstated to insure there is no break in financial 
assistance until the Superintendent or his/her designated representative 
makes a decision. The Superintendent or his/her designated 
representative can adjust payments or recover overpayments to conform 
with his/her decision.

[65 FR 63159, Oct. 20, 2000; 65 FR 76563, Dec. 7, 2000]



Sec.  20.702  When is an appeal hearing scheduled?

    The Superintendent or his/her designated representative must set a 
date for the hearing within 10 days of the date of request for a hearing 
and give written notice to the applicant or recipient.



Sec.  20.703  What must the written notice of hearing include?

    The written notice of hearing must include:
    (a) The date, time and location of the hearing;
    (b) A statement of the facts and issues giving rise to the appeal;
    (c) The applicant's or recipient's right to be heard in person, or 
to be represented by an authorized representative at no expense to the 
Bureau;
    (d) The applicant or recipient's right to present both oral and 
written evidence during the hearing;
    (e) The applicant's or recipient's right to confront and cross-
examine witnesses at the hearing;
    (f) The applicant's or recipient's right of one continuance of not 
more than 10 days with respect to the date of hearing; and
    (g) The applicant's or recipient's right to examine and copy, at a 
reasonable time before the hearing, his/her case record as it relates to 
the proposed action being contested.



Sec.  20.704  Who conducts the hearing or appeal of a Bureau decision 
or action and what is the process?

    (a) The Superintendent or his/her designated representative conducts 
the hearing in an informal but orderly manner, records the hearing, and 
provides the applicant or recipient with a transcript of the hearing 
upon request.

[[Page 107]]

    (b) The Superintendent or his/her designated representative must 
render a written decision within 10 days of the completion of the 
hearing. The written decision must include:
    (1) A written statement covering the evidence relied upon and 
reasons for the decision; and
    (2) The applicant's or recipient's right to appeal the 
Superintendent or his/her designated representative's decision pursuant 
to 25 CFR part 2 and request Bureau assistance in preparation of the 
appeal.



Sec.  20.705  Can an applicant or recipient appeal a tribal decision?

    Yes, the applicant or recipient must pursue the appeal process 
applicable to the Public Law 93-638 contract, Public Law 102-477 grant, 
or Public Law 103-413 self-governance annual funding agreement. If no 
appeal process exists, then the applicant or recipient must pursue the 
appeal through the appropriate tribal forum.



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 Regional 
          Director.
23.35 Deadline for Central Office action.

   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, Regional 
          Director or Grants Officer.
23.62 Appeals from decision or action by Regional 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.

             Subpart I_Indian Child Welfare Act Proceedings

                           General Provisions

23.101 What is the purpose of this subpart?
23.102 What terms do I need to know?

[[Page 108]]

23.103 When does ICWA apply?
23.104 What provisions of this subpart apply to each type of child-
          custody proceeding?
23.105 How do I contact a Tribe under the regulations in this subpart?
23.106 How does this subpart interact with State and Federal laws?

                          Pretrial Requirements

23.107 How should a State court determine if there is reason to know the 
          child is an Indian child?
23.108 Who makes the determination as to whether a child is a member, 
          whether a child is eligible for membership, or whether a 
          biological parent is a member of a Tribe?
23.109 How should a State court determine an Indian child's Tribe when 
          the child may be a member or eligible for membership in more 
          than one Tribe?
23.110 When must a State court dismiss an action?
23.111 What are the notice requirements for a child-custody proceeding 
          involving an Indian child?
23.112 What time limits and extensions apply?
23.113 What are the standards for emergency proceedings involving an 
          Indian child?
23.114 What are the requirements for determining improper removal?

                  Petitions To Transfer to Tribal Court

23.115 How are petitions for transfer of a proceeding made?
23.116 What happens after a petition for transfer is made?
23.117 What are the criteria for ruling on transfer petitions?
23.118 How is a determination of ``good cause'' to deny transfer made?
23.119 What happens after a petition for transfer is granted?

                 Adjudication of Involuntary Proceedings

23.120 How does the State court ensure that active efforts have been 
          made?
23.121 What are the applicable standards of evidence?
23.122 Who may serve as a qualified expert witness?
23.123 [Reserved]

                          Voluntary Proceedings

23.124 What actions must a State court undertake in voluntary 
          proceedings?
23.125 How is consent obtained?
23.126 What information must a consent document contain?
23.127 How is withdrawal of consent to a foster-care placement achieved?
23.128 How is withdrawal of consent to a termination of parental rights 
          or adoption achieved?

                              Dispositions

23.129 When do the placement preferences apply?
23.130 What placement preferences apply in adoptive placements?
23.131 What placement preferences apply in foster-care or preadoptive 
          placements?
23.132 How is a determination of ``good cause'' to depart from the 
          placement preferences made?

                                 Access

23.133 Should courts allow participation by alternative methods?
23.134 Who has access to reports and records during a proceeding?
23.135 [Reserved]

                  Post-Trial Rights & Responsibilities

23.136 What are the requirements for vacating an adoption based on 
          consent having been obtained through fraud or duress?
23.137 Who can petition to invalidate an action for certain ICWA 
          violations?
23.138 What are the rights to information about adoptees' Tribal 
          affiliations?
23.139 Must notice be given of a change in an adopted Indian child's 
          status?

                              Recordkeeping

23.140 What information must States furnish to the Bureau of Indian 
          Affairs?
23.141 What records must the State maintain?
23.142 How does the Paperwork Reduction Act affect this subpart?

                             Effective Date

23.143 How does this subpart apply to pending proceedings?

                              Severability

23.144 What happens if some portion of this part is held to be invalid 
          by a court of competent jurisdiction?

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

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

    Editorial Note: Nomenclature changes to part 23 appear at 79 FR 
27190, May 13, 2014.



               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

[[Page 109]]

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.
    Active efforts means affirmative, active, thorough, and timely 
efforts intended primarily to maintain or reunite an Indian child with 
his or her family. Where an agency is involved in the child-custody 
proceeding, active efforts must involve assisting the parent or parents 
or Indian custodian through the steps of a case plan and with accessing 
or developing the resources necessary to satisfy the case plan. To the 
maximum extent possible, active efforts should be provided in a manner 
consistent with the prevailing social and cultural conditions and way of 
life of the Indian child's Tribe and should be conducted in partnership 
with the Indian child and the Indian child's parents, extended family 
members, Indian custodians, and Tribe. Active efforts are to be tailored 
to the facts and circumstances of the case and may include, for example:
    (1) Conducting a comprehensive assessment of the circumstances of 
the Indian child's family, with a focus on safe reunification as the 
most desirable goal;
    (2) Identifying appropriate services and helping the parents to 
overcome barriers, including actively assisting the parents in obtaining 
such services;
    (3) Identifying, notifying, and inviting representatives of the 
Indian child's Tribe to participate in providing support and services to 
the Indian child's family and in family team meetings, permanency 
planning, and resolution of placement issues;
    (4) Conducting or causing to be conducted a diligent search for the 
Indian child's extended family members, and contacting and consulting 
with extended family members to provide family structure and support for 
the Indian child and the Indian child's parents;
    (5) Offering and employing all available and culturally appropriate 
family preservation strategies and facilitating the use of remedial and 
rehabilitative services provided by the child's Tribe;
    (6) Taking steps to keep siblings together whenever possible;
    (7) Supporting regular visits with parents or Indian custodians in 
the most natural setting possible as well as trial home visits of the 
Indian child during any period of removal, consistent with the need to 
ensure the health, safety, and welfare of the child;
    (8) Identifying community resources including housing, financial, 
transportation, mental health, substance abuse, and peer support 
services and actively assisting the Indian child's parents or, when 
appropriate, the child's family, in utilizing and accessing those 
resources;
    (9) Monitoring progress and participation in services;
    (10) Considering alternative ways to address the needs of the Indian 
child's parents and, where appropriate, the family, if the optimum 
services do not exist or are not available;
    (11) Providing post-reunification services and monitoring.
    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. (1) ``Child-custody proceeding'' means and 
includes any action, other than an emergency proceeding, that may 
culminate in one of the following outcomes:
    (i) Foster-care placement, which is 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;
    (ii) Termination of parental rights, which is any action resulting 
in the termination of the parent-child relationship;
    (iii) Preadoptive placement, which is 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; or
    (iv) Adoptive placement, which is the permanent placement of an 
Indian

[[Page 110]]

child for adoption, including any action resulting in a final decree of 
adoption.
    (2) An action that may culminate in one of these four outcomes is 
considered a separate child-custody proceeding from an action that may 
culminate in a different one of these four outcomes. There may be 
several child-custody proceedings involving any given Indian child. 
Within each child-custody proceeding, there may be several hearings. If 
a child is placed in foster care or another out-of-home placement as a 
result of a status offense, that status offense proceeding is a child-
custody proceeding.
    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.
    Continued custody means physical custody or legal custody or both, 
under any applicable Tribal law or Tribal custom or State law, that a 
parent or Indian custodian already has or had at any point in the past. 
The biological mother of a child has had custody of a child.
    Custody means physical custody or legal custody or both, under any 
applicable Tribal law or Tribal custom or State law. A party may 
demonstrate the existence of custody by looking to Tribal law or Tribal 
custom or State law.
    Domicile means:
    (1) For a parent or Indian custodian, the place at which a person 
has been physically present and that the person regards as home; a 
person's true, fixed, principal, and permanent home, to which that 
person intends to return and remain indefinitely even though the person 
may be currently residing elsewhere.
    (2) For an Indian child, the domicile of the Indian child's parents 
or Indian custodian or guardian. In the case of an Indian child whose 
parents are not married to each other, the domicile of the Indian 
child's custodial parent.
    Emergency proceeding means and includes any court action that 
involves an emergency removal or emergency placement of an Indian child.
    Extended family member is defined by the law or custom of the Indian 
child's Tribe or, in the absence of such law or custom, is a person who 
has reached age 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.
    Hearing means a judicial session held for the purpose of deciding 
issues of fact, of law, or both.
    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 
either:
    (1) Is a member or citizen of an Indian Tribe; or
    (2) Is eligible for membership or citizenship in an Indian Tribe and 
is the biological child of a member/citizen of an Indian Tribe.
    Indian child's Tribe means:
    (1) The Indian Tribe in which an Indian child is a member or 
eligible for membership; or
    (2) In the case of an Indian child who is a member of or eligible 
for membership in more than one Tribe, the Indian Tribe described in 
Sec.  23.109.
    Indian custodian means any Indian who has legal custody of an Indian 
child under applicable Tribal law or custom or under applicable State 
law, or to whom temporary physical care,

[[Page 111]]

custody, and control has been transferred by the parent of such child. 
An Indian may demonstrate that he or she is an Indian custodian by 
looking to Tribal law or Tribal custom or State law.
    Indian foster home means a foster home where one or more of the 
licensed or approved foster parents is an ``Indian'' as defined in 25 
U.S.C. 1903(3).
    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).
    Involuntary proceeding means a child-custody proceeding in which the 
parent does not consent of his or her free will to the foster-care, 
preadoptive, or adoptive placement or termination of parental rights or 
in which the parent consents to the foster-care, preadoptive, or 
adoptive placement under threat of removal of the child by a State court 
or agency.
    Off-reservation ICWA program means an ICWA program administered in 
accordance with 25 U.S.C. 1932 by an off-reservation Indian 
organization.
    Parent or parents means any biological parent or parents of an 
Indian child, or any Indian who has lawfully adopted an Indian child, 
including adoptions under Tribal law or custom. It does not include an 
unwed biological 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 that section, title to which is 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 or the Secretary's 
authorized representative acting under delegated authority.
    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 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.
    Status offenses mean offenses that would not be considered criminal 
if committed by an adult; they are acts prohibited only because of a 
person's status as a minor (e.g., truancy, incorrigibility).
    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-

[[Page 112]]

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 vested with authority over 
child-custody proceedings.
    Tribal government means the federally recognized governing body of 
an Indian tribe.
    Upon demand means that the parent or Indian custodian can regain 
custody simply upon verbal request, without any formalities or 
contingencies.
    Value means face, par, or market value, or cost price, either 
wholesale or retail, whichever is greater.
    Voluntary proceeding means a child-custody proceeding that is not an 
involuntary proceeding, such as a proceeding for foster-care, 
preadoptive, or adoptive placement that either parent, both parents, or 
the Indian custodian has, of his or her or their free will, without a 
threat of removal by a State agency, consented to for the Indian child, 
or a proceeding for voluntary termination of parental rights.

[59 FR 2256, Jan. 13, 1994, as amended at 81 FR 38864, June 14, 2016]



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 Sec. Sec.  
23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the Office 
of Management and Budget under 44 U.S.C. 3501 et seq. and assigned 
clearance number 1076-0131. The information collection requirements 
under Sec. Sec.  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

[[Page 113]]

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 Sec. Sec.  
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 Sec. Sec.  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 parent or Indian custodian or 
Tribe is known, the party seeking the foster-care placement of, or 
termination of parental rights to, an Indian child must directly notify 
the parents, the Indian custodians, and the child's Tribe by registered 
or certified mail with return receipt requested, of the pending child-
custody proceedings and their right of intervention. Notice must include 
the requisite information identified in Sec.  23.111, consistent with 
the confidentiality requirement in Sec.  23.111(d)(6)(ix). Copies of 
these notices must be sent to the appropriate Regional Director listed 
in paragraphs (b)(1) through (12) of this section by registered or 
certified mail with return receipt requested or by personal delivery and 
must include the information required by Sec.  23.111.
    (b)(1) For child-custody 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 
possession of the United States, notices must be sent to the following 
address: Eastern Regional Director, Bureau of Indian Affairs, 545 
Marriott Drive, Suite 700, Nashville, Tennessee 37214.
    (2) For child-custody proceedings in Illinois, Indiana, Iowa, 
Michigan, Minnesota, Ohio, or Wisconsin, notices must be sent to the 
following address: Minneapolis Regional Director, Bureau of Indian 
Affairs, 5600 American Blvd. W, Ste. 500, Bloomington, MN 55437.
    (3) For child-custody proceedings in Nebraska, North Dakota, or 
South Dakota, notices must be sent to the following address: Aberdeen 
Regional Director, Bureau of Indian Affairs, 115 Fourth Avenue SE., 
Aberdeen, South Dakota 57401.
    (4) For child-custody proceedings in Kansas, Texas (except for 
notices to the Ysleta del Sur Pueblo of El Paso County, Texas), or 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,

[[Page 114]]

Logan, Major, Noble, Oklahoma, Pawnee, Payne, Pottawatomie, Roger Mills, 
Texas, Tillman, Washita, Woods or Woodward, notices must be sent to the 
following address: Anadarko Regional Director, Bureau of Indian Affairs, 
P.O. Box 368, Anadarko, Oklahoma 73005. Notices to the Ysleta del Sur 
Pueblo must be sent to the Albuquerque Regional Director at the address 
listed in paragraph (b)(6) of this section.
    (5) For child-custody proceedings in Wyoming or Montana (except for 
notices to the Confederated Salish and Kootenai Tribes of the Flathead 
Reservation, Montana), notices must be sent to the following address: 
Billings Regional Director, Bureau of Indian Affairs, 316 N. 26th 
Street, Billings, Montana 59101. Notices to the Confederated Salish and 
Kootenai Tribes of the Flathead Reservation, Montana, must be sent to 
the Portland Regional Director at the address listed in paragraph 
(b)(11) of this section.
    (6) For child-custody proceedings in the Texas counties of El Paso 
and Hudspeth or in Colorado or New Mexico (exclusive of notices to the 
Navajo Nation from the New Mexico counties listed in paragraph (b)(9) of 
this section), notices must be sent to the following address: 
Albuquerque Regional Director, Bureau of Indian Affairs, 615 First 
Street, P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the 
Navajo Nation must be sent to the Navajo Regional Director at the 
address listed in paragraph (b)(9) of this section.
    (7) For child-custody proceedings in Alaska (except for notices to 
the Metlakatla Indian Community, Annette Island Reserve, Alaska), 
notices must be sent to the following address: Alaska Regional 
Director--Attn: Human Services, Bureau of Indian Affairs, 3601 C Street, 
Suite 1258, Anchorage, Alaska 99503. Notices to the Metlakatla Indian 
Community, Annette Island Reserve, Alaska, must be sent to the Portland 
Regional Director at the address listed in paragraph (b)(11) of this 
section.
    (8) For child-custody proceedings in Arkansas, Missouri, or 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, 
Stephens, Tulsa, Wagoner, or Washington, notices must be sent to the 
following address: Muskogee Regional Director, Bureau of Indian Affairs, 
101 North Fifth Street, Muskogee, Oklahoma 74401.
    (9) For child-custody proceedings in the Arizona counties of Apache, 
Coconino (except for notices to the Hopi Tribe of Arizona and the San 
Juan Southern Paiute Tribe of Arizona) or Navajo (except for notices to 
the Hopi Tribe of Arizona); the New Mexico counties of McKinley (except 
for notices to the Zuni Tribe of the Zuni Reservation), San Juan, or 
Socorro; or the Utah county of San Juan, notices must be sent to the 
following address: Navajo Regional Director, Bureau of Indian Affairs, 
P.O. Box 1060, Gallup, New Mexico 87301. Notices to the Hopi and San 
Juan Southern Paiute Tribes of Arizona must be sent to the Phoenix 
Regional Director at the address listed in paragraph (b)(10) of this 
section. Notices to the Zuni Tribe of the Zuni Reservation must be sent 
to the Albuquerque Regional Director at the address listed in paragraph 
(b)(6 of this section).
    (10) For child-custody proceedings in Arizona (exclusive of notices 
to the Navajo Nation from those counties listed in paragraph (b)(9) of 
this section), Nevada, or Utah (exclusive of San Juan County), notices 
must be sent to the following address: Phoenix Regional Director, Bureau 
of Indian Affairs, 1 North First Street, P.O. Box 10, Phoenix, Arizona 
85001.
    (11) For child-custody proceedings in Idaho, Oregon, or Washington, 
notices must be sent to the following address: Portland Regional 
Director, Bureau of Indian Affairs, 911 NE 11th Avenue, Portland, Oregon 
97232. All notices to the Confederated Salish and Kootenai Tribes of the 
Flathead Reservation, located in the Montana counties of Flathead, Lake, 
Missoula, and Sanders, must also be sent to the Portland Regional 
Director.

[[Page 115]]

    (12) For child-custody proceedings in California or Hawaii, notices 
must be sent to the following address: Sacramento Regional Director, 
Bureau of Indian Affairs, Federal Office Building, 2800 Cottage Way, 
Sacramento, California 95825.
    (c) Upon receipt of the notice, the Secretary will make reasonable 
documented efforts to locate and notify the child's Tribe and the 
child's parent or Indian custodian. The Secretary will have 15 days, 
after receipt of the notice, to notify the child's Tribe and parents or 
Indian custodians and to send a copy of the notice to the court. If 
within the 15-day period the Secretary is unable to verify that the 
child meets the criteria of an Indian child as defined in Sec.  23.2, or 
is unable to locate the parents or Indian custodians, the Secretary will 
so inform the court and state how much more time, if any, will be needed 
to complete the verification or the search. The Secretary will complete 
all research efforts, even if those efforts cannot be completed before 
the child-custody proceeding begins.
    (d) Upon request from a party to an Indian child-custody proceeding, 
the Secretary will make a reasonable attempt to identify and locate the 
child's Tribe, parents, or Indian custodians to assist the party seeking 
the information.

[81 FR 38866, June 14, 2016, as amended at 83 FR 55268, Nov. 5, 2018]



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 Regional 
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 Regional 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 Regional 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 Regional 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

[[Page 116]]

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 Regional 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.
    (e) The Regional 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 
Regional 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 Regional 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 Regional 
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 Regional 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 Regional 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

[[Page 117]]

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 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 Sec. Sec.  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.

[[Page 118]]

    (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 Regional 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 Regional 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 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.

[[Page 119]]

    (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 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 Regional 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 Regional 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

[[Page 120]]

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 Sec. Sec.  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 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 Regional Director prior to 
or on the announced deadline date published in the Federal Register. The 
Regional 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 Regional 
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 Regional 
Director or his/her designated representative shall select those 
proposals which will in his/her judgment best promote the proposes of

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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 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

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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;
    (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 Regional Director.

    (a) Area office certification. Upon receipt of an application for a 
grant by an off-reservation Indian organization at the area office, the 
Regional Director shall:
    (1) Complete and sign the area office certification form. In 
completing the area certification form, the Regional Director shall 
assess and certify whether applications contain and meet all the 
application requirements specified at Sec.  23.33. Regional 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 Regional Director, 
the Regional 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.

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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 Regional 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 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 
Regional Director.



Sec.  23.35  Deadline for Central Office action.

    Within 30 days of the receipt of grant reporting forms from the 
Regional 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 Regional 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 Regional 
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.

[[Page 124]]



Sec.  23.43  Authority for grant approval and execution.

    (a) Tribal government programs. The appropriate Agency 
Superintendent or Regional 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 Regional 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 requirements. Unless 
delegated to the Agency Superintendent, appropriate area office 
personnel designated by the Regional 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

[[Page 125]]

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:
    (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 Sec. Sec.  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

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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 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.

[[Page 127]]

    (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, 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 Regional 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 Regional 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, 
Regional Director or Grants Officer.

    A grantee or prospective applicant may appeal any decision made or 
action taken by the Agency Superintendent, Regional 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 Regional Director 
under subpart D.

    A grantee or applicant may appeal any decision made or action taken 
by the Regional 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.

[[Page 128]]



                   Subpart G_Administrative Provisions



Sec.  23.71  Recordkeeping and information availability.

    (a) The Division of Human Services, Bureau of Indian Affairs (BIA), 
is authorized to receive all information and to maintain a central file 
on all State Indian adoptions. This file is confidential and only 
designated persons may have access to it.
    (b) Upon the request of an adopted Indian who has reached age 18, 
the adoptive or foster parents of an Indian child, or an Indian Tribe, 
BIA will disclose such information as may be necessary for purposes of 
Tribal enrollment or determining any rights or benefits associated with 
Tribal membership. Where the documents relating to such child contain an 
affidavit from the biological parent or parents requesting anonymity, 
BIA must certify to the Indian child's Tribe, where the information 
warrants, that the child's parentage and other circumstances entitle the 
child to enrollment under the criteria established by such Tribe.
    (c) BIA will ensure that the confidentiality of this information is 
maintained and that the information is not subject to the Freedom of 
Information Act, 5 U.S.C. 552, as amended.

[81 FR 38867, June 14, 2016]



                  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 Regional 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 Regional 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 Regional Director 
designated in Sec.  23.11(c).



             Subpart I_Indian Child Welfare Act Proceedings

    Source: 81 FR 38867, June 14, 2016, unless otherwise noted.

                           General Provisions



Sec.  23.101  What is the purpose of this subpart?

    The regulations in this subpart clarify the minimum Federal 
standards governing implementation of the Indian Child Welfare Act 
(ICWA) to ensure that ICWA is applied in all States consistent with the 
Act's express language, Congress's intent in enacting the statute, and 
to promote the stability and security of Indian tribes and families.



Sec.  23.102  What terms do I need to know?

    The following terms and their definitions apply to this subpart. All 
other terms have the meanings assigned in Sec.  23.2.
    Agency means a nonprofit, for-profit, or governmental organization 
and its employees, agents, or officials that performs, or provides 
services to biological parents, foster parents, or adoptive parents to 
assist in the administrative and social work necessary for foster, 
preadoptive, or adoptive placements.
    Indian organization means any group, association, partnership, 
corporation,

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or other legal entity owned or controlled by Indians or a Tribe, or a 
majority of whose members are Indians.



Sec.  23.103  When does ICWA apply?

    (a) ICWA includes requirements that apply whenever an Indian child 
is the subject of:
    (1) A child-custody proceeding, including:
    (i) An involuntary proceeding;
    (ii) A voluntary proceeding that could prohibit the parent or Indian 
custodian from regaining custody of the child upon demand; and
    (iii) A proceeding involving status offenses if any part of the 
proceeding results in the need for out-of-home placement of the child, 
including a foster-care, preadoptive, or adoptive placement, or 
termination of parental rights.
    (2) An emergency proceeding.
    (b) ICWA does not apply to:
    (1) A Tribal court proceeding;
    (2) A proceeding regarding a criminal act that is not a status 
offense;
    (3) An award of custody of the Indian child to one of the parents 
including, but not limited to, an award in a divorce proceeding; or
    (4) A voluntary placement that either parent, both parents, or the 
Indian custodian has, of his or her or their free will, without a threat 
of removal by a State agency, chosen for the Indian child and that does 
not operate to prohibit the child's parent or Indian custodian from 
regaining custody of the child upon demand.
    (c) If a proceeding listed in paragraph (a) of this section concerns 
a child who meets the statutory definition of ``Indian child,'' then 
ICWA will apply to that proceeding. In determining whether ICWA applies 
to a proceeding, the State court may not consider factors such as the 
participation of the parents or the Indian child in Tribal cultural, 
social, religious, or political activities, the relationship between the 
Indian child and his or her parents, whether the parent ever had custody 
of the child, or the Indian child's blood quantum.
    (d) If ICWA applies at the commencement of a proceeding, it will not 
cease to apply simply because the child reaches age 18 during the 
pendency of the proceeding.



Sec.  23.104  What provisions of this subpart apply to each type 
of child-custody proceeding?

    The following table lists what sections of this subpart apply to 
each type of child-custody proceeding identified in Sec.  23.103(a):

------------------------------------------------------------------------
                   Section                         Type of proceeding
------------------------------------------------------------------------
23.101-23.106 (General Provisions)...........  Emergency, Involuntary,
                                                Voluntary.
Pretrial Requirements:
23.107 (How should a State court determine if  Emergency, Involuntary,
 there is reason to know the child is an        Voluntary.
 Indian child?).
23.108 (Who makes the determination as to      Emergency, Involuntary,
 whether a child is a member whether a child    Voluntary.
 is eligible for membership, or whether a
 biological parent is a member of a Tribe?).
23.109 (How should a State court determine an  Emergency, Involuntary,
 Indian child's Tribe when the child may be a   Voluntary.
 member or eligible for membership in more
 than one Tribe?).
23.110 (When must a State court dismiss an     Involuntary, Voluntary.
 action?).
23.111 (What are the notice requirements for   Involuntary (foster-care
 a child-custody proceeding involving an        placement and
 Indian child?).                                termination of parental
                                                rights).
23.112 (What time limits and extensions        Involuntary (foster-care
 apply?).                                       placement and
                                                termination of parental
                                                rights).
23.113 (What are the standards for emergency   Emergency.
 proceedings involving an Indian child?).
23.114 (What are the requirements for          Involuntary.
 determining improper removal?).
Petitions to Transfer to Tribal Court:
23.115 (How are petitions for transfer of a    Involuntary, Voluntary
 proceeding made?).                             (foster-care placement
                                                and termination of
                                                parental rights).
23.116 (What happens after a petition for      Involuntary, Voluntary
 transfer is made?).                            (foster-care placement
                                                and termination of
                                                parental rights).
23.117 (What are the criteria for ruling on    Involuntary, Voluntary
 transfer petitions?).                          (foster-care placement
                                                and termination of
                                                parental rights).

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23.118 (How is a determination of ``good       Involuntary, Voluntary
 cause'' to deny transfer made?).               (foster-care placement
                                                and termination of
                                                parental rights).
23.119 (What happens after a petition for      Involuntary, Voluntary
 transfer is granted?).                         (foster-care placement
                                                and termination of
                                                parental rights).
Adjudication of Involuntary Proceedings:
23.120 (How does the State court ensure that   Involuntary (foster-care
 active efforts have been made?).               placement and
                                                termination of parental
                                                rights).
23.121 (What are the applicable standards of   Involuntary (foster-care
 evidence?).                                    placement and
                                                termination of parental
                                                rights).
23.122 (Who may serve as a qualified expert    Involuntary (foster-care
 witness?).                                     placement and
                                                termination of parental
                                                rights).
23.123 Reserved..............................  N/A.
Voluntary Proceedings:
23.124 (What actions must a State court        Voluntary.
 undertake in voluntary proceedings?).
23.125 (How is consent obtained?)............  Voluntary.
23.126 (What information must a consent        Voluntary.
 document contain?).
23.127 (How is withdrawal of consent to a      Voluntary.
 foster-care placement achieved?).
23.128 (How is withdrawal of consent to a      Voluntary.
 termination of parental rights or adoption
 achieved?).
Dispositions:
23.129 (When do the placement preferences      Involuntary, Voluntary.
 apply?).
23.130 (What placement preferences apply in    Involuntary, Voluntary.
 adoptive placements?).
23.131 (What placement preferences apply in    Involuntary, Voluntary.
 foster-care or preadoptive placements?).
23.132 (How is a determination of ``good       Involuntary, Voluntary.
 cause'' to depart from the placement
 preferences made?).
Access:
23.133 (Should courts allow participation by   Emergency, Involuntary.
 alternative methods?).
23.134 (Who has access to reports and records  Emergency, Involuntary.
 during a proceeding?).
23.135 Reserved..............................  N/A.
Post-Trial Rights & Responsibilities:
23.136 (What are the requirements for          Involuntary (if consent
 vacating an adoption based on consent having   given under threat of
 been obtained through fraud or duress?).       removal), voluntary.
23.137 (Who can petition to invalidate an      Emergency (to extent it
 action for certain ICWA violations?).          involved a specified
                                                violation), involuntary,
                                                voluntary.
23.138 (What are the rights to information     Emergency, Involuntary,
 about adoptees' Tribal affiliations?).         Voluntary.
23.139 (Must notice be given of a change in    Involuntary, Voluntary.
 an adopted Indian child's status?).
Recordkeeping:
23.140 (What information must States furnish   Involuntary, Voluntary.
 to the Bureau of Indian Affairs?).
23.141 (What records must the State            Involuntary, Voluntary.
 maintain?).
23.142 (How does the Paperwork Reduction Act   Emergency, Involuntary,
 affect this subpart?).                         Voluntary.
Effective Date:
23.143 (How does this subpart apply to         Emergency, Involuntary,
 pending proceedings?).                         Voluntary.
Severability:
23.144 (What happens if some portion of part   Emergency, Involuntary,
 is held to be invalid by a court of            Voluntary.
 competent jurisdiction?).
------------------------------------------------------------------------
Note: For purposes of this table, status-offense child-custody
  proceedings are included as a type of involuntary proceeding.



Sec.  23.105  How do I contact a Tribe under the regulations in this subpart?

    To contact a Tribe to provide notice or obtain information or 
verification under the regulations in this subpart, you should direct 
the notice or inquiry as follows:
    (a) Many Tribes designate an agent for receipt of ICWA notices. The 
BIA publishes a list of Tribes' designated Tribal agents for service of 
ICWA notice in the Federal Register each year and makes the list 
available on its Web site at www.bia.gov.
    (b) For a Tribe without a designated Tribal agent for service of 
ICWA notice, contact the Tribe to be directed to the appropriate office 
or individual.
    (c) If you do not have accurate contact information for a Tribe, or 
the Tribe contacted fails to respond to written inquiries, you should 
seek assistance in contacting the Indian Tribe from the BIA local or 
regional office or the BIA's Central Office in Washington, DC (see 
www.bia.gov).

[[Page 131]]



Sec.  23.106  How does this subpart interact with State and Federal laws?

    (a) The regulations in this subpart provide minimum Federal 
standards to ensure compliance with ICWA.
    (b) Under section 1921 of ICWA, where applicable State or other 
Federal law provides a higher standard of protection to the rights of 
the parent or Indian custodian than the protection accorded under the 
Act, ICWA requires the State or Federal court to apply the higher State 
or Federal standard.

                          Pretrial Requirements



Sec.  23.107  How should a State court determine if there is reason to know 
the child is an Indian child?

    (a) State courts must ask each participant in an emergency or 
voluntary or involuntary child-custody proceeding whether the 
participant knows or has reason to know that the child is an Indian 
child. The inquiry is made at the commencement of the proceeding and all 
responses should be on the record. State courts must instruct the 
parties to inform the court if they subsequently receive information 
that provides reason to know the child is an Indian child.
    (b) If there is reason to know the child is an Indian child, but the 
court does not have sufficient evidence to determine that the child is 
or is not an ``Indian child,'' the court must:
    (1) Confirm, by way of a report, declaration, or testimony included 
in the record that the agency or other party used due diligence to 
identify and work with all of the Tribes of which there is reason to 
know the child may be a member (or eligible for membership), to verify 
whether the child is in fact a member (or a biological parent is a 
member and the child is eligible for membership); and
    (2) Treat the child as an Indian child, unless and until it is 
determined on the record that the child does not meet the definition of 
an ``Indian child'' in this part.
    (c) A court, upon conducting the inquiry required in paragraph (a) 
of this section, has reason to know that a child involved in an 
emergency or child-custody proceeding is an Indian child if:
    (1) Any participant in the proceeding, officer of the court involved 
in the proceeding, Indian Tribe, Indian organization, or agency informs 
the court that the child is an Indian child;
    (2) Any participant in the proceeding, officer of the court involved 
in the proceeding, Indian Tribe, Indian organization, or agency informs 
the court that it has discovered information indicating that the child 
is an Indian child;
    (3) The child who is the subject of the proceeding gives the court 
reason to know he or she is an Indian child;
    (4) The court is informed that the domicile or residence of the 
child, the child's parent, or the child's Indian custodian is on a 
reservation or in an Alaska Native village;
    (5) The court is informed that the child is or has been a ward of a 
Tribal court; or
    (6) The court is informed that either parent or the child possesses 
an identification card indicating membership in an Indian Tribe.
    (d) In seeking verification of the child's status in a voluntary 
proceeding where a consenting parent evidences, by written request or 
statement in the record, a desire for anonymity, the court must keep 
relevant documents pertaining to the inquiry required under this section 
confidential and under seal. A request for anonymity does not relieve 
the court, agency, or other party from any duty of compliance with ICWA, 
including the obligation to verify whether the child is an ``Indian 
child.'' A Tribe receiving information related to this inquiry must keep 
documents and information confidential.



Sec.  23.108  Who makes the determination as to whether a child is a member, 
whether a child is eligible for membership, or whether a biological parent 
is a member of a Tribe?

    (a) The Indian Tribe of which it is believed the child is a member 
(or eligible for membership and of which the biological parent is a 
member) determines whether the child is a member of the Tribe, or 
whether the child is eligible for membership in the Tribe and a 
biological parent of the child is a member of the Tribe, except as 
otherwise provided by Federal or Tribal law.

[[Page 132]]

    (b) The determination by a Tribe of whether a child is a member, 
whether a child is eligible for membership, or whether a biological 
parent is a member, is solely within the jurisdiction and authority of 
the Tribe, except as otherwise provided by Federal or Tribal law. The 
State court may not substitute its own determination regarding a child's 
membership in a Tribe, a child's eligibility for membership in a Tribe, 
or a parent's membership in a Tribe.
    (c) The State court may rely on facts or documentation indicating a 
Tribal determination of membership or eligibility for membership in 
making a judicial determination as to whether the child is an ``Indian 
child.'' An example of documentation indicating membership is a document 
issued by the Tribe, such as Tribal enrollment documentation.



Sec.  23.109  How should a State court determine an Indian child's Tribe 
when the child may be a member or eligible for membership 
in more than one Tribe?

    (a) If the Indian child is a member or eligible for membership in 
only one Tribe, that Tribe must be designated as the Indian child's 
Tribe.
    (b) If the Indian child meets the definition of ``Indian child'' 
through more than one Tribe, deference should be given to the Tribe in 
which the Indian child is already a member, unless otherwise agreed to 
by the Tribes.
    (c) If an Indian child meets the definition of ``Indian child'' 
through more than one Tribe because the child is a member in more than 
one Tribe or the child is not a member of but is eligible for membership 
in more than one Tribe, the court must provide the opportunity in any 
involuntary child-custody proceeding for the Tribes to determine which 
should be designated as the Indian child's Tribe.
    (1) If the Tribes are able to reach an agreement, the agreed-upon 
Tribe should be designated as the Indian child's Tribe.
    (2) If the Tribes are unable to reach an agreement, the State court 
designates, for the purposes of ICWA, the Indian Tribe with which the 
Indian child has the more significant contacts as the Indian child's 
Tribe, taking into consideration:
    (i) Preference of the parents for membership of the child;
    (ii) Length of past domicile or residence on or near the reservation 
of each Tribe;
    (iii) Tribal membership of the child's custodial parent or Indian 
custodian; and
    (iv) Interest asserted by each Tribe in the child-custody 
proceeding;
    (v) Whether there has been a previous adjudication with respect to 
the child by a court of one of the Tribes; and
    (vi) Self-identification by the child, if the child is of sufficient 
age and capacity to meaningfully self-identify.
    (3) A determination of the Indian child's Tribe for purposes of ICWA 
and the regulations in this subpart do not constitute a determination 
for any other purpose.



Sec.  23.110  When must a State court dismiss an action?

    Subject to 25 U.S.C. 1919 (Agreements between States and Indian 
Tribes) and Sec.  23.113 (emergency proceedings), the following 
limitations on a State court's jurisdiction apply:
    (a) The court in any voluntary or involuntary child-custody 
proceeding involving an Indian child must determine the residence and 
domicile of the Indian child. If either the residence or domicile is on 
a reservation where the Tribe exercises exclusive jurisdiction over 
child-custody proceedings, the State court must expeditiously notify the 
Tribal court of the pending dismissal based on the Tribe's exclusive 
jurisdiction, dismiss the State-court child-custody proceeding, and 
ensure that the Tribal court is sent all information regarding the 
Indian child-custody proceeding, including, but not limited to, the 
pleadings and any court record.
    (b) If the child is a ward of a Tribal court, the State court must 
expeditiously notify the Tribal court of the pending dismissal, dismiss 
the State-court child-custody proceeding, and ensure that the Tribal 
court is sent all information regarding the Indian child-custody 
proceeding, including, but not limited to, the pleadings and any court 
record.

[[Page 133]]



Sec.  23.111  What are the notice requirements for a child-custody proceeding 
involving an Indian child?

    (a) When a court knows or has reason to know that the subject of an 
involuntary foster-care-placement or termination-of-parental-rights 
proceeding is an Indian child, the court must ensure that:
    (1) The party seeking placement promptly sends notice of each such 
child-custody proceeding (including, but not limited to, any foster-care 
placement or any termination of parental or custodial rights) in 
accordance with this section; and
    (2) An original or a copy of each notice sent under this section is 
filed with the court together with any return receipts or other proof of 
service.
    (b) Notice must be sent to:
    (1) Each Tribe where the child may be a member (or eligible for 
membership if a biological parent is a member) (see Sec.  23.105 for 
information on how to contact a Tribe);
    (2) The child's parents; and
    (3) If applicable, the child's Indian custodian.
    (c) Notice must be sent by registered or certified mail with return 
receipt requested. Notice may also be sent via personal service or 
electronically, but such alternative methods do not replace the 
requirement for notice to be sent by registered or certified mail with 
return receipt requested.
    (d) Notice must be in clear and understandable language and include 
the following:
    (1) The child's name, birthdate, and birthplace;
    (2) All names known (including maiden, married, and former names or 
aliases) of the parents, the parents' birthdates and birthplaces, and 
Tribal enrollment numbers if known;
    (3) If known, the names, birthdates, birthplaces, and Tribal 
enrollment information of other direct lineal ancestors of the child, 
such as grandparents;
    (4) The name of each Indian Tribe in which the child is a member (or 
may be eligible for membership if a biological parent is a member);
    (5) A copy of the petition, complaint, or other document by which 
the child-custody proceeding was initiated and, if a hearing has been 
scheduled, information on the date, time, and location of the hearing;
    (6) Statements setting out:
    (i) The name of the petitioner and the name and address of 
petitioner's attorney;
    (ii) The right of any parent or Indian custodian of the child, if 
not already a party to the child-custody proceeding, to intervene in the 
proceedings.
    (iii) The Indian Tribe's right to intervene at any time in a State-
court proceeding for the foster-care placement of or termination of 
parental rights to an Indian child.
    (iv) That, if the child's parent or Indian custodian is unable to 
afford counsel based on a determination of indigency by the court, the 
parent or Indian custodian has the right to court-appointed counsel.
    (v) The right to be granted, upon request, up to 20 additional days 
to prepare for the child-custody proceedings.
    (vi) The right of the parent or Indian custodian and the Indian 
child's Tribe to petition the court for transfer of the foster-care-
placement or termination-of-parental-rights proceeding to Tribal court 
as provided by 25 U.S.C. 1911 and Sec.  23.115.
    (vii) The mailing addresses and telephone numbers of the court and 
information related to all parties to the child-custody proceeding and 
individuals notified under this section.
    (viii) The potential legal consequences of the child-custody 
proceedings on the future parental and custodial rights of the parent or 
Indian custodian.
    (ix) That all parties notified must keep confidential the 
information contained in the notice and the notice should not be handled 
by anyone not needing the information to exercise rights under ICWA.
    (e) If the identity or location of the child's parents, the child's 
Indian custodian, or the Tribes in which the Indian child is a member or 
eligible for membership cannot be ascertained, but there is reason to 
know the child is an Indian child, notice of the child-custody 
proceeding must be sent to the appropriate Bureau of Indian Affairs 
Regional Director (see www.bia.gov). To establish Tribal identity, as 
much information as is known regarding the

[[Page 134]]

child's direct lineal ancestors should be provided. The Bureau of Indian 
Affairs will not make a determination of Tribal membership but may, in 
some instances, be able to identify Tribes to contact.
    (f) If there is a reason to know that a parent or Indian custodian 
possesses limited English proficiency and is therefore not likely to 
understand the contents of the notice, the court must provide language 
access services as required by Title VI of the Civil Rights Act and 
other Federal laws. To secure such translation or interpretation 
support, a court may contact or direct a party to contact the Indian 
child's Tribe or the local BIA office for assistance in locating and 
obtaining the name of a qualified translator or interpreter.
    (g) If a parent or Indian custodian of an Indian child appears in 
court without an attorney, the court must inform him or her of his or 
her rights, including any applicable right to appointed counsel, right 
to request that the child-custody proceeding be transferred to Tribal 
court, right to object to such transfer, right to request additional 
time to prepare for the child-custody proceeding as provided in Sec.  
23.112, and right (if the parent or Indian custodian is not already a 
party) to intervene in the child-custody proceedings.



Sec.  23.112  What time limits and extensions apply?

    (a) No foster-care-placement or termination-of-parental-rights 
proceeding may be held until at least 10 days after receipt of the 
notice by the parent (or Indian custodian) and by the Tribe (or the 
Secretary). The parent, Indian custodian, and Tribe each have a right, 
upon request, to be granted up to 20 additional days from the date upon 
which notice was received to prepare for participation in the 
proceeding.
    (b) Except as provided in 25 U.S.C. 1922 and Sec.  23.113, no child-
custody proceeding for foster-care placement or termination of parental 
rights may be held until the waiting periods to which the parents or 
Indian custodians and to which the Indian child's Tribe are entitled 
have expired, as follows:
    (1) 10 days after each parent or Indian custodian (or Secretary 
where the parent or Indian custodian is unknown to the petitioner) has 
received notice of that particular child-custody proceeding in 
accordance with 25 U.S.C. 1912(a) and Sec.  23.111;
    (2) 10 days after the Indian child's Tribe (or the Secretary if the 
Indian child's Tribe is unknown to the party seeking placement) has 
received notice of that particular child-custody proceeding in 
accordance with 25 U.S.C. 1912(a) and Sec.  23.111;
    (3) Up to 30 days after the parent or Indian custodian has received 
notice of that particular child-custody proceeding in accordance with 25 
U.S.C. 1912(a) and Sec.  23.111, if the parent or Indian custodian has 
requested up to 20 additional days to prepare for the child-custody 
proceeding as provided in 25 U.S.C. 1912(a) and Sec.  23.111; and
    (4) Up to 30 days after the Indian child's Tribe has received notice 
of that particular child-custody proceeding in accordance with 25 U.S.C. 
1912(a) and Sec.  23.111, if the Indian child's Tribe has requested up 
to 20 additional days to prepare for the child-custody proceeding.
    (c) Additional time beyond the minimum required by 25 U.S.C. 1912 
and Sec.  23.111 may also be available under State law or pursuant to 
extensions granted by the court.



Sec.  23.113  What are the standards for emergency proceedings 
involving an Indian child?

    (a) Any emergency removal or placement of an Indian child under 
State law must terminate immediately when the removal or placement is no 
longer necessary to prevent imminent physical damage or harm to the 
child.
    (b) The State court must:
    (1) Make a finding on the record that the emergency removal or 
placement is necessary to prevent imminent physical damage or harm to 
the child;
    (2) Promptly hold a hearing on whether the emergency removal or 
placement continues to be necessary whenever new information indicates 
that the emergency situation has ended; and
    (3) At any court hearing during the emergency proceeding, determine 
whether the emergency removal or placement is no longer necessary to

[[Page 135]]

prevent imminent physical damage or harm to the child.
    (4) Immediately terminate (or ensure that the agency immediately 
terminates) the emergency proceeding once the court or agency possesses 
sufficient evidence to determine that the emergency removal or placement 
is no longer necessary to prevent imminent physical damage or harm to 
the child.
    (c) An emergency proceeding can be terminated by one or more of the 
following actions:
    (1) Initiation of a child-custody proceeding subject to the 
provisions of ICWA;
    (2) Transfer of the child to the jurisdiction of the appropriate 
Indian Tribe; or
    (3) Restoring the child to the parent or Indian custodian.
    (d) A petition for a court order authorizing the emergency removal 
or continued emergency placement, or its accompanying documents, should 
contain a statement of the risk of imminent physical damage or harm to 
the Indian child and any evidence that the emergency removal or 
placement continues to be necessary to prevent such imminent physical 
damage or harm to the child. The petition or its accompanying documents 
should also contain the following information:
    (1) The name, age, and last known address of the Indian child;
    (2) The name and address of the child's parents and Indian 
custodians, if any;
    (3) The steps taken to provide notice to the child's parents, 
custodians, and Tribe about the emergency proceeding;
    (4) If the child's parents and Indian custodians are unknown, a 
detailed explanation of what efforts have been made to locate and 
contact them, including contact with the appropriate BIA Regional 
Director (see www.bia.gov);
    (5) The residence and the domicile of the Indian child;
    (6) If either the residence or the domicile of the Indian child is 
believed to be on a reservation or in an Alaska Native village, the name 
of the Tribe affiliated with that reservation or village;
    (7) The Tribal affiliation of the child and of the parents or Indian 
custodians;
    (8) A specific and detailed account of the circumstances that led 
the agency responsible for the emergency removal of the child to take 
that action;
    (9) If the child is believed to reside or be domiciled on a 
reservation where the Tribe exercises exclusive jurisdiction over child-
custody matters, a statement of efforts that have been made and are 
being made to contact the Tribe and transfer the child to the Tribe's 
jurisdiction; and
    (10) A statement of the efforts that have been taken to assist the 
parents or Indian custodians so the Indian child may safely be returned 
to their custody.
    (e) An emergency proceeding regarding an Indian child should not be 
continued for more than 30 days unless the court makes the following 
determinations:
    (1) Restoring the child to the parent or Indian custodian would 
subject the child to imminent physical damage or harm;
    (2) The court has been unable to transfer the proceeding to the 
jurisdiction of the appropriate Indian Tribe; and
    (3) It has not been possible to initiate a ``child-custody 
proceeding'' as defined in Sec.  23.2.



Sec.  23.114  What are the requirements for determining improper removal?

    (a) If, in the course of any child-custody proceeding, any party 
asserts or the court has reason to believe that the Indian child may 
have been improperly removed from the custody of his or her parent or 
Indian custodian, or that the Indian child has been improperly retained 
(such as after a visit or other temporary relinquishment of custody), 
the court must expeditiously determine whether there was improper 
removal or retention.
    (b) If the court finds that the Indian child was improperly removed 
or retained, the court must terminate the proceeding and the child must 
be returned immediately to his or her parent or Indian custodian, unless 
returning the child to his parent or Indian custodian would subject the 
child to

[[Page 136]]

substantial and immediate danger or threat of such danger.

                  Petitions To Transfer to Tribal Court



Sec.  23.115  How are petitions for transfer of a proceeding made?

    (a) Either parent, the Indian custodian, or the Indian child's Tribe 
may request, at any time, orally on the record or in writing, that the 
State court transfer a foster-care or termination-of-parental-rights 
proceeding to the jurisdiction of the child's Tribe.
    (b) The right to request a transfer is available at any stage in 
each foster-care or termination-of-parental-rights proceeding.



Sec.  23.116  What happens after a petition for transfer is made?

    Upon receipt of a transfer petition, the State court must ensure 
that the Tribal court is promptly notified in writing of the transfer 
petition. This notification may request a timely response regarding 
whether the Tribal court wishes to decline the transfer.



Sec.  23.117  What are the criteria for ruling on transfer petitions?

    Upon receipt of a transfer petition from an Indian child's parent, 
Indian custodian, or Tribe, the State court must transfer the child-
custody proceeding unless the court determines that transfer is not 
appropriate because one or more of the following criteria are met:
    (a) Either parent objects to such transfer;
    (b) The Tribal court declines the transfer; or
    (c) Good cause exists for denying the transfer.



Sec.  23.118  How is a determination of ``good cause'' to deny transfer made?

    (a) If the State court believes, or any party asserts, that good 
cause to deny transfer exists, the reasons for that belief or assertion 
must be stated orally on the record or provided in writing on the record 
and to the parties to the child-custody proceeding.
    (b) Any party to the child-custody proceeding must have the 
opportunity to provide the court with views regarding whether good cause 
to deny transfer exists.
    (c) In determining whether good cause exists, the court must not 
consider:
    (1) Whether the foster-care or termination-of-parental-rights 
proceeding is at an advanced stage if the Indian child's parent, Indian 
custodian, or Tribe did not receive notice of the child-custody 
proceeding until an advanced stage;
    (2) Whether there have been prior proceedings involving the child 
for which no petition to transfer was filed;
    (3) Whether transfer could affect the placement of the child;
    (4) The Indian child's cultural connections with the Tribe or its 
reservation; or
    (5) Socioeconomic conditions or any negative perception of Tribal or 
BIA social services or judicial systems.
    (d) The basis for any State-court decision to deny transfer should 
be stated orally on the record or in a written order.



Sec.  23.119  What happens after a petition for transfer is granted?

    (a) If the Tribal court accepts the transfer, the State court should 
expeditiously provide the Tribal court with all records related to the 
proceeding, including, but not limited to, the pleadings and any court 
record.
    (b) The State court should work with the Tribal court to ensure that 
the transfer of the custody of the Indian child and of the proceeding is 
accomplished smoothly and in a way that minimizes the disruption of 
services to the family.

                 Adjudication of Involuntary Proceedings



Sec.  23.120  How does the State court ensure that active efforts 
have been made?

    (a) Prior to ordering an involuntary foster-care placement or 
termination of parental rights, the court must conclude that active 
efforts have been made to prevent the breakup of the Indian family and 
that those efforts have been unsuccessful.
    (b) Active efforts must be documented in detail in the record.

[[Page 137]]



Sec.  23.121  What are the applicable standards of evidence?

    (a) The court must not order a foster-care placement of an Indian 
child unless clear and convincing evidence is presented, including the 
testimony of one or more qualified expert witnesses, demonstrating that 
the child's continued custody by the child's parent or Indian custodian 
is likely to result in serious emotional or physical damage to the 
child.
    (b) The court must not order a termination of parental rights for an 
Indian child unless evidence beyond a reasonable doubt is presented, 
including the testimony of one or more qualified expert witnesses, 
demonstrating that the child's continued custody by the child's parent 
or Indian custodian is likely to result in serious emotional or physical 
damage to the child.
    (c) For a foster-care placement or termination of parental rights, 
the evidence must show a causal relationship between the particular 
conditions in the home and the likelihood that continued custody of the 
child will result in serious emotional or physical damage to the 
particular child who is the subject of the child-custody proceeding.
    (d) Without a causal relationship identified in paragraph (c) of 
this section, evidence that shows only the existence of community or 
family poverty, isolation, single parenthood, custodian age, crowded or 
inadequate housing, substance abuse, or nonconforming social behavior 
does not by itself constitute clear and convincing evidence or evidence 
beyond a reasonable doubt that continued custody is likely to result in 
serious emotional or physical damage to the child.



Sec.  23.122  Who may serve as a qualified expert witness?

    (a) A qualified expert witness must be qualified to testify 
regarding whether the child's continued custody by the parent or Indian 
custodian is likely to result in serious emotional or physical damage to 
the child and should be qualified to testify as to the prevailing social 
and cultural standards of the Indian child's Tribe. A person may be 
designated by the Indian child's Tribe as being qualified to testify to 
the prevailing social and cultural standards of the Indian child's 
Tribe.
    (b) The court or any party may request the assistance of the Indian 
child's Tribe or the BIA office serving the Indian child's Tribe in 
locating persons qualified to serve as expert witnesses.
    (c) The social worker regularly assigned to the Indian child may not 
serve as a qualified expert witness in child-custody proceedings 
concerning the child.



Sec.  23.123  [Reserved]

                          Voluntary Proceedings



Sec.  23.124  What actions must a State court undertake 
in voluntary proceedings?

    (a) The State court must require the participants in a voluntary 
proceeding to state on the record whether the child is an Indian child, 
or whether there is reason to believe the child is an Indian child, as 
provided in Sec.  23.107.
    (b) If there is reason to believe the child is an Indian child, the 
State court must ensure that the party seeking placement has taken all 
reasonable steps to verify the child's status. This may include 
contacting the Tribe of which it is believed the child is a member (or 
eligible for membership and of which the biological parent is a member) 
to verify the child's status. As described in Sec.  23.107, where a 
consenting parent requests anonymity, a Tribe receiving such information 
must keep relevant documents and information confidential.
    (c) State courts must ensure that the placement for the Indian child 
complies with Sec. Sec.  23.129-23.132.



Sec.  23.125  How is consent obtained?

    (a) A parent's or Indian custodian's consent to a voluntary 
termination of parental rights or to a foster-care, preadoptive, or 
adoptive placement must be executed in writing and recorded before a 
court of competent jurisdiction.
    (b) Prior to accepting the consent, the court must explain to the 
parent or Indian custodian:
    (1) The terms and consequences of the consent in detail; and

[[Page 138]]

    (2) The following limitations, applicable to the type of child-
custody proceeding for which consent is given, on withdrawal of consent:
    (i) For consent to foster-care placement, the parent or Indian 
custodian may withdraw consent for any reason, at any time, and have the 
child returned; or
    (ii) For consent to termination of parental rights, the parent or 
Indian custodian may withdraw consent for any reason, at any time prior 
to the entry of the final decree of termination and have the child 
returned; or
    (iii) For consent to an adoptive placement, the parent or Indian 
custodian may withdraw consent for any reason, at any time prior to the 
entry of the final decree of adoption, and have the child returned.
    (c) The court must certify that the terms and consequences of the 
consent were explained on the record in detail in English (or the 
language of the parent or Indian custodian, if English is not the 
primary language) and were fully understood by the parent or Indian 
custodian.
    (d) Where confidentiality is requested or indicated, execution of 
consent need not be made in a session of court open to the public but 
still must be made before a court of competent jurisdiction in 
compliance with this section.
    (e) A consent given prior to, or within 10 days after, the birth of 
an Indian child is not valid.



Sec.  23.126  What information must a consent document contain?

    (a) If there are any conditions to the consent, the written consent 
must clearly set out the conditions.
    (b) A written consent to foster-care placement should contain, in 
addition to the information specified in paragraph (a) of this section, 
the name and birthdate of the Indian child; the name of the Indian 
child's Tribe; the Tribal enrollment number for the parent and for the 
Indian child, where known, or some other indication of the child's 
membership in the Tribe; the name, address, and other identifying 
information of the consenting parent or Indian custodian; the name and 
address of the person or entity, if any, who arranged the placement; and 
the name and address of the prospective foster parents, if known at the 
time.



Sec.  23.127  How is withdrawal of consent to a foster-care placement achieved?

    (a) The parent or Indian custodian may withdraw consent to voluntary 
foster-care placement at any time.
    (b) To withdraw consent, the parent or Indian custodian must file a 
written document with the court or otherwise testify before the court. 
Additional methods of withdrawing consent may be available under State 
law.
    (c) When a parent or Indian custodian withdraws consent to a 
voluntary foster-care placement, the court must ensure that the Indian 
child is returned to that parent or Indian custodian as soon as 
practicable.



Sec.  23.128  How is withdrawal of consent to a termination of parental rights 
or adoption achieved?

    (a) A parent may withdraw consent to voluntary termination of 
parental rights at any time prior to the entry of a final decree of 
termination.
    (b) A parent or Indian custodian may withdraw consent to voluntary 
adoption at any time prior to the entry of a final decree of adoption.
    (c) To withdraw consent prior to the entry of a final decree of 
adoption, the parent or Indian custodian must file a written document 
with the court or otherwise testify before the court. Additional methods 
of withdrawing consent may be available under State law.
    (d) The court in which the withdrawal of consent is filed must 
promptly notify the person or entity who arranged any voluntary 
preadoptive or adoptive placement of such filing, and the Indian child 
must be returned to the parent or Indian custodian as soon as 
practicable.

                              Dispositions



Sec.  23.129  When do the placement preferences apply?

    (a) In any preadoptive, adoptive, or foster-care placement of an 
Indian child, the placement preferences specified in Sec.  23.130 and 
Sec.  23.131 apply.

[[Page 139]]

    (b) Where a consenting parent requests anonymity in a voluntary 
proceeding, the court must give weight to the request in applying the 
preferences.
    (c) The placement preferences must be applied in any foster-care, 
preadoptive, or adoptive placement unless there is a determination on 
the record that good cause under Sec.  23.132 exists to not apply those 
placement preferences.



Sec.  23.130  What placement preferences apply in adoptive placements?

    (a) In any adoptive placement of an Indian child under State law, 
where the Indian child's Tribe has not established a different order of 
preference under paragraph (b) of this section, preference must be given 
in descending order, as listed below, to placement of the child with:
    (1) A member of the Indian child's extended family;
    (2) Other members of the Indian child's Tribe; or
    (3) Other Indian families.
    (b) If the Indian child's Tribe has established by resolution a 
different order of preference than that specified in ICWA, the Tribe's 
placement preferences apply.
    (c) The court must, where appropriate, also consider the placement 
preference of the Indian child or Indian child's parent.



Sec.  23.131  What placement preferences apply in foster-care 
or preadoptive placements?

    (a) In any foster-care or preadoptive placement of an Indian child 
under State law, including changes in foster-care or preadoptive 
placements, the child must be placed in the least-restrictive setting 
that:
    (1) Most approximates a family, taking into consideration sibling 
attachment;
    (2) Allows the Indian child's special needs (if any) to be met; and
    (3) Is in reasonable proximity to the Indian child's home, extended 
family, or siblings.
    (b) In any foster-care or preadoptive placement of an Indian child 
under State law, where the Indian child's Tribe has not established a 
different order of preference under paragraph (c) of this section, 
preference must be given, in descending order as listed below, to 
placement of the child with:
    (1) A member of the Indian child's extended family;
    (2) A foster home that is licensed, approved, or specified by the 
Indian child's Tribe;
    (3) An Indian foster home licensed or approved by an authorized non-
Indian licensing authority; or
    (4) An institution for children approved by an Indian Tribe or 
operated by an Indian organization which has a program suitable to meet 
the child's needs.
    (c) If the Indian child's Tribe has established by resolution a 
different order of preference than that specified in ICWA, the Tribe's 
placement preferences apply, so long as the placement is the least-
restrictive setting appropriate to the particular needs of the Indian 
child, as provided in paragraph (a) of this section.
    (d) The court must, where appropriate, also consider the preference 
of the Indian child or the Indian child's parent.



Sec.  23.132  How is a determination of ``good cause'' to depart 
from the placement preferences made?

    (a) If any party asserts that good cause not to follow the placement 
preferences exists, the reasons for that belief or assertion must be 
stated orally on the record or provided in writing to the parties to the 
child-custody proceeding and the court.
    (b) The party seeking departure from the placement preferences 
should bear the burden of proving by clear and convincing evidence that 
there is ``good cause'' to depart from the placement preferences.
    (c) A court's determination of good cause to depart from the 
placement preferences must be made on the record or in writing and 
should be based on one or more of the following considerations:
    (1) The request of one or both of the Indian child's parents, if 
they attest that they have reviewed the placement options, if any, that 
comply with the order of preference;
    (2) The request of the child, if the child is of sufficient age and 
capacity

[[Page 140]]

to understand the decision that is being made;
    (3) The presence of a sibling attachment that can be maintained only 
through a particular placement;
    (4) The extraordinary physical, mental, or emotional needs of the 
Indian child, such as specialized treatment services that may be 
unavailable in the community where families who meet the placement 
preferences live;
    (5) The unavailability of a suitable placement after a determination 
by the court that a diligent search was conducted to find suitable 
placements meeting the preference criteria, but none has been located. 
For purposes of this analysis, the standards for determining whether a 
placement is unavailable must conform to the prevailing social and 
cultural standards of the Indian community in which the Indian child's 
parent or extended family resides or with which the Indian child's 
parent or extended family members maintain social and cultural ties.
    (d) A placement may not depart from the preferences based on the 
socioeconomic status of any placement relative to another placement.
    (e) A placement may not depart from the preferences based solely on 
ordinary bonding or attachment that flowed from time spent in a non-
preferred placement that was made in violation of ICWA.

                                 Access



Sec.  23.133  Should courts allow participation by alternative methods?

    If it possesses the capability, the court should allow alternative 
methods of participation in State-court child-custody proceedings 
involving an Indian child, such as participation by telephone, 
videoconferencing, or other methods.



Sec.  23.134  Who has access to reports and records during a proceeding?

    Each party to an emergency proceeding or a foster-care-placement or 
termination-of-parental-rights proceeding under State law involving an 
Indian child has a right to timely examine all reports and other 
documents filed or lodged with the court upon which any decision with 
respect to such action may be based.



Sec.  23.135  [Reserved]

                  Post-Trial Rights & Responsibilities



Sec.  23.136  What are the requirements for vacating an adoption based on 
consent having been obtained through fraud or duress?

    (a) Within two years after a final decree of adoption of any Indian 
child by a State court, or within any longer period of time permitted by 
the law of the State, the State court may invalidate the voluntary 
adoption upon finding that the parent's consent was obtained by fraud or 
duress.
    (b) Upon the parent's filing of a petition to vacate the final 
decree of adoption of the parent's Indian child, the court must give 
notice to all parties to the adoption proceedings and the Indian child's 
Tribe and must hold a hearing on the petition.
    (c) Where the court finds that the parent's consent was obtained 
through fraud or duress, the court must vacate the final decree of 
adoption, order the consent revoked, and order that the child be 
returned to the parent.



Sec.  23.137  Who can petition to invalidate an action 
for certain ICWA violations?

    (a) Any of the following may petition any court of competent 
jurisdiction to invalidate an action for foster-care placement or 
termination of parental rights under state law where it is alleged that 
25 U.S.C. 1911, 1912, or 1913 has been violated:
    (1) An Indian child who is or was the subject of any action for 
foster-care placement or termination of parental rights;
    (2) A parent or Indian custodian from whose custody such child was 
removed; and
    (3) The Indian child's Tribe.
    (b) Upon a showing that an action for foster-care placement or 
termination of parental rights violated any provision of 25 U.S.C. 1911, 
1912, or 1913, the court must determine whether it is appropriate to 
invalidate the action.
    (c) To petition for invalidation, there is no requirement that the 
petitioner's

[[Page 141]]

rights under ICWA were violated; rather, a petitioner may challenge the 
action based on any violations of 25 U.S.C. 1911, 1912, or 1913 during 
the course of the child-custody proceeding.



Sec.  23.138  What are the rights to information about adoptees' 
Tribal affiliations?

    Upon application by an Indian who has reached age 18 who was the 
subject of an adoptive placement, the court that entered the final 
decree of adoption must inform such individual of the Tribal 
affiliations, if any, of the individual's biological parents and provide 
such other information necessary to protect any rights, which may 
include Tribal membership, resulting from the individual's Tribal 
relationship.



Sec.  23.139  Must notice be given of a change in an adopted 
Indian child's status?

    (a) If an Indian child has been adopted, the court must notify, by 
registered or certified mail with return receipt requested, the child's 
biological parent or prior Indian custodian and the Indian child's Tribe 
whenever:
    (1) A final decree of adoption of the Indian child has been vacated 
or set aside; or
    (2) The adoptive parent has voluntarily consented to the termination 
of his or her parental rights to the child.
    (b) The notice must state the current name, and any former name, of 
the Indian child, inform the recipient of the right to petition for 
return of custody of the child, and provide sufficient information to 
allow the recipient to participate in any scheduled hearings.
    (c) A parent or Indian custodian may waive his or her right to such 
notice by executing a written waiver of notice and filing the waiver 
with the court.
    (1) Prior to accepting the waiver, the court must explain the 
consequences of the waiver and explain how the waiver may be revoked.
    (2) The court must certify that the terms and consequences of the 
waiver and how the waiver may be revoked were explained in detail in 
English (or the language of the parent or Indian custodian, if English 
is not the primary language), and were fully understood by the parent or 
Indian custodian.
    (3) Where confidentiality is requested or indicated, execution of 
the waiver need not be made in a session of court open to the public but 
still must be made before a court of competent jurisdiction in 
compliance with this section.
    (4) The biological parent or Indian custodian may revoke the waiver 
at any time by filing with the court a written notice of revocation.
    (5) A revocation of the right to receive notice does not affect any 
child-custody proceeding that was completed before the filing of the 
notice of revocation.

                              Recordkeeping



Sec.  23.140  What information must States furnish to 
the Bureau of Indian Affairs?

    (a) Any State court entering a final adoption decree or order in any 
voluntary or involuntary Indian-child adoptive placement must furnish a 
copy of the decree or order within 30 days to the Bureau of Indian 
Affairs, Chief, Division of Human Services, 1849 C Street NW, Mail Stop 
3645 MIB, Washington, DC 20240, along with the following information, in 
an envelope marked ``Confidential'':
    (1) Birth name and birthdate of the Indian child, and Tribal 
affiliation and name of the Indian child after adoption;
    (2) Names and addresses of the biological parents;
    (3) Names and addresses of the adoptive parents;
    (4) Name and contact information for any agency having files or 
information relating to the adoption;
    (5) Any affidavit signed by the biological parent or parents asking 
that their identity remain confidential; and
    (6) Any information relating to Tribal membership or eligibility for 
Tribal membership of the adopted child.
    (b) If a State agency has been designated as the repository for all 
State-court adoption information and is fulfilling the duties described 
in paragraph (a) of this section, the State courts in that State need 
not fulfill those same duties.

[59 FR 2256, Jan. 13, 1994, as amended at 83 FR 55269, Nov. 5, 2018]

[[Page 142]]



Sec.  23.141  What records must the State maintain?

    (a) The State must maintain a record of every voluntary or 
involuntary foster-care, preadoptive, and adoptive placement of an 
Indian child and make the record available within 14 days of a request 
by an Indian child's Tribe or the Secretary.
    (b) The record must contain, at a minimum, the petition or 
complaint, all substantive orders entered in the child-custody 
proceeding, the complete record of the placement determination 
(including, but not limited to, the findings in the court record and the 
social worker's statement), and, if the placement departs from the 
placement preferences, detailed documentation of the efforts to comply 
with the placement preferences.
    (c) A State agency or agencies may be designated to be the 
repository for this information. The State court or agency should notify 
the BIA whether these records are maintained within the court system or 
by a State agency.



Sec.  23.142  How does the Paperwork Reduction Act affect this subpart?

    The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-0186. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless the 
form or regulation requesting the information displays a currently valid 
OMB Control Number. Send comments regarding this collection of 
information, including suggestions for reducing the burden, to the 
Information Collection Clearance Officer--Indian Affairs, 1849 C Street 
NW., Washington, DC 20240.

                             Effective Date



Sec.  23.143  How does this subpart apply to pending proceedings?

    None of the provisions of this subpart affects a proceeding under 
State law for foster-care placement, termination of parental rights, 
preadoptive placement, or adoptive placement that was initiated prior to 
December 12, 2016, but the provisions of this subpart apply to any 
subsequent proceeding in the same matter or subsequent proceedings 
affecting the custody or placement of the same child.

                              Severability



Sec.  23.144  What happens if some portion of this part is held to be invalid 
by a court of competent jurisdiction?

    If any portion of this part is determined to be invalid by a court 
of competent jurisdiction, the other portions of the part remain in 
effect. For example, the Department has considered separately whether 
the provisions of this part apply to involuntary and voluntary 
proceedings; thus, if a particular provision is held to be invalid as to 
one type of proceeding, it is the Department's intent that it remains 
valid as to the other type of proceeding.



PART 26_JOB PLACEMENT AND TRAINING PROGRAM--Table of Contents



                     Subpart A_General Applicability

Sec.
26.1 What terms do I need to know?
26.2 Who authorizes this collection of information?
26.3 What is the purpose of the Job Placement and Training Program?
26.4 Who administers the Job Placement and Training Program?
26.5 Who may be eligible for Job Placement and Training?
26.6 Who is eligible to receive financial assistance?
26.7 How is financial need established?
26.8 Where do I go to apply for Job Placement and Training assistance?
26.9 How do I apply for assistance?
26.10 When will I find out if I have been selected for Job Placement and 
          Training assistance?
26.11 What type of Job Placement and Training assistance may be 
          approved?
26.12 Who provides the Job Placement and Training?
26.13 How long may I be in training and how long can I receive other 
          assistance?
26.14 What or who is a service provider?
26.15 What makes an applicant eligible for Job Placement and Training 
          services?
26.16 If I am awarded financial assistance, how much will I receive?
26.17 Can more than one family member be financially assisted at the 
          same time?
26.18 What kinds of supportive services are available?

[[Page 143]]

26.19 Will I be required to contribute financially to my employment and 
          training goals?
26.20 Can I be required to return portions of my grant?
26.21 Can this program be combined with other similar programs for 
          maximum benefit?
26.22 May a tribe integrate Job Placement and Training funds into its 
          Public Law 102-477 Plan?
26.23 What is an Individual Self-Sufficiency Plan (ISP)?

                    Subpart B_Job Placement Services

26.24 What is the scope of the Job Placement Program?
26.25 What constitutes a complete Job Placement Program application?
26.26 What job placement services may I receive?
26.27 What kind of job placement support services can I expect?
26.28 What follow-up services are available after I become employed?

                       Subpart C_Training Services

26.29 What is the scope of the Job Training Program?
26.30 Does the Job Training Program provide part-time training or short-
          term training?
26.31 May I repeat my job training?
26.32 What constitutes a complete Job Training Program application?
26.33 How do I show that I need job training?
26.34 What type of job training assistance may be approved?
26.35 What kind of support services are available to me?
26.36 What follow-up service is available after I complete training?
26.37 Are there training standards that I must follow?

                    Subpart D_Appeal by an Applicant

26.38 May I appeal a decision about my application?

    Authority: 25 U.S.C. 13; Sec. 1, Public Law 84-959, 70 Stat. 966 as 
amended by Public Law 88-230, 77 Stat. 471 (25 U.S.C. 309)

    Source: 74 FR 41331, Aug. 17, 2009, unless otherwise noted.



                     Subpart A_General Applicability



Sec.  26.1  What terms do I need to know?

    As used in this part:
    Bureau means the Bureau of Indian Affairs (BIA).
    Department means the Department of the Interior.
    Gainful Employment means work resulting in self-sufficiency.
    Indian means any person who is a member of a federally recognized 
tribe, including Alaska Natives.
    Individual Self-Sufficiency Plan (ISP) means a written plan designed 
to meet the goal of employment through specific actions that meet the 
needs of the individual. The plan is jointly developed and is signed by 
both the applicant and the servicing office. The ISP addresses the 
client's barriers to employment and a plan of action to address 
barriers.
    Must means a mandatory act or requirement.
    On or Near Reservation means those areas or communities adjacent or 
contiguous to reservations, or service areas where Job Training and 
Placement programs are provided upon approval of the Assistant 
Secretary-Indian Affairs or his designated representative. For purposes 
of this program and services, Alaska is included in this definition.
    On-the-Job-Training (OJT) means a written agreement for an employer 
to provide training to a participant who engages in productive work that 
provides knowledge or skills essential to the full and adequate 
performance of the job. The employer receives reimbursement from the Job 
Training Program for the wage rate of the participant. OJT may be used 
to meet the goal(s) in the participant's ISP, as long as it does not 
exceed 24 months.
    Permanent Employment means a year-round job or one that re-occurs 
seasonally, lasting at least 90 days per work season.
    Service Area means a location agreed to by the tribe with the Bureau 
to provide Job Training and Placement Services.
    Servicing Office means the Bureau office or the office of the tribal 
service provider that administers the Job Training and Placement 
Program.
    Tribal Governing Body means the recognized entity empowered to 
exercise governmental authority over a federally recognized tribe.
    Tribal Service Provider means a tribe or tribal organization that 
administers

[[Page 144]]

the Job Training and Placement Program pursuant to Public Law 93-638 or 
Public Law 102-477.
    Tribe means any tribal entity listed in the Federal Register notice 
that the Secretary of the Interior publishes under Public Law 103-454, 
108 Stat. 4791.
    Underemployed means an individual who is working but whose income is 
insufficient to meet essential needs.
    Unemployed means an individual who is not currently working or 
employed.
    Unmet need means the difference between available resources and the 
cost associated with finding gainful employment.
    Vocational Training means technical training that leads to permanent 
and gainful employment.
    We, us, or our means the Secretary of the Interior, or an official 
in the Office of the Assistant Secretary--Indian Affairs, or an official 
in the Bureau of Indian Affairs to whom the Secretary has delegated 
authority.



Sec.  26.2  Who authorizes this collection of information?

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget under the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned OMB clearance 
number 1076-0062. Response is required to obtain a benefit. A Federal 
agency may not conduct or sponsor, and you are not required to respond 
to a collection of information unless the form or regulation requesting 
the information has a currently valid OMB Control Number.



Sec.  26.3  What is the purpose of the Job Placement and Training Program?

    The purpose of the Job Placement and Training Program is to assist 
eligible applicants to obtain job skills and to find and retain a job 
leading to self-sufficiency.



Sec.  26.4  Who administers the Job Placement and Training Program?

    The Job Placement and Training Program is administered by the Bureau 
of Indian Affairs or a tribal service provider. Tribes are encouraged to 
provide services directly to Indians by either entering into a Public 
Law 93-638 contract with the Bureau or a compact with the Office of 
Self--Governance. Tribes may also consolidate Job Placement and Training 
Program funds in accordance with the provisions of the Indian 
Employment, Training, and Related Services Demonstration Act of 1992, 
Public Law 102-477.



Sec.  26.5  Who may be eligible for Job Placement and Training?

    You may apply for assistance for employment or training if all of 
the following criteria are met:
    (a) You meet the definition of Indian in Sec.  26.1; and
    (b) You are residing on or near an Indian reservation or in a 
service area, or in the agreed contract service area; and
    (c) You are unemployed or underemployed or need and can benefit from 
employment assistance as determined by your servicing office; and
    (d) You complete an ISP.



Sec.  26.6  Who is eligible to receive financial assistance?

    Financial assistance is only available to persons:
    (a) Approved for training that will lead to permanent, gainful and 
meaningful employment; or
    (b) Who have obtained a job and need financial assistance to retain 
the job, as determined by the servicing office.



Sec.  26.7  How is financial need established?

    You must show that current income and other available resources are 
not sufficient to meet employment or training goals.



Sec.  26.8  Where do I go to apply for Job Placement and Training assistance?

    You may apply for Job Placement and Training assistance at the 
servicing office nearest to your current residence.



Sec.  26.9  How do I apply for assistance?

    (a) You should contact the BIA office or the tribal service provider 
which is nearest to your current residence to get an application form;
    (b) You must complete the application process as established by your 
servicing office; and
    (c) You must complete and sign a comprehensive ISP (or an individual

[[Page 145]]

development plan (IDP) or employment development plan (EDP), which are 
synonymous with an ISP).



Sec.  26.10  When will I find out if I have been selected for Job Placement 
and Training assistance?

    (a) Your servicing office will notify you in writing within 30 
calendar days once it receives a completed job training application 
request; or
    (b) Your servicing office will notify you within 5 business days 
once it has received a completed Job Placement application and written 
job offer.



Sec.  26.11  What type of Job Placement and Training assistance 
may be approved?

    Services provided may include funding for employment, training or 
supplemental assistance that supports job placement or training 
activities (see subpart B of this part for Job Placement or subpart C of 
this part for Training Services).



Sec.  26.12  Who provides the Job Placement and Training?

    The Bureau or a tribal service provider may enter into contracts or 
agreements to provide facilities and services required for vocational 
training programs with:
    (a) Indian tribal governing bodies or, when approved by the tribal 
service provider, other provider of meaningful training programs not 
currently operated by the tribe;
    (b) Appropriate Federal, State, or local government agencies;
    (c) Public or private schools with a recognized reputation in 
vocational education and successfully obtaining employment for 
graduates;
    (d) Education firms that operate residential training centers; and
    (e) Corporations and associations or small business establishments 
with apprenticeship or on-the-job training (OJT) programs leading to 
skilled employment.



Sec.  26.13  How long may I be in training and how long can I receive 
other assistance?

    (a) Your training at any approved institution, apprenticeship, and/
or OJT must not exceed 24 months of full-time actual training hours.
    (b) Registered nurse training must not exceed 36 months of full 
actual training hours.
    (c) You may receive other financial assistance under this program 
determined by your ISP that you have developed with your tribal service 
provider.



Sec.  26.14  What or who is a service provider?

    A service provider is an administrative unit of a BIA Regional 
Office, a BIA Agency Office, a BIA Field Office, a Tribal contracted 
office, or Alaska Native federally recognized tribe, or a tribal 
organization, that provides grants to help offset the cost of vocational 
or technical training (at approved places), or immediate job placement 
services. To the extent resources will allow, other kinds of support 
service may also be available.



Sec.  26.15  What makes an applicant eligible for Job Placement 
and Training services?

    You are eligible for services if:
    (a) You meet the definition of an American Indian or Alaska Native; 
and
    (b) Either:
    (1) You can demonstrate an unmet need and show a need for job 
training or placement services in order to become gainfully and 
meaningfully employed; or
    (2) You are skilled, but need financial assistance to get to a job, 
and you show an aptitude and potential to benefit from services.



Sec.  26.16  If I am awarded financial assistance, how much will I receive?

    (a) The amount of financial assistance you receive depends on your 
unmet needs. If applicable, you should apply for:
    (1) A Pell Grant if your training institution offers this grant; and
    (2) Other education grants or loans for which you may qualify.
    (b) The Bureau or tribal service provider will award financial 
assistance up to the level of your unmet need to the extent resources 
are available. It is possible that the combination of available 
financial assistance will not equal your financial need.

[[Page 146]]



Sec.  26.17  Can more than one family member be financially assisted 
at the same time?

    Yes, more than one family member can be assisted, providing that 
each applicant is eligible.



Sec.  26.18  What kinds of supportive services are available?

    The BIA or tribal service provider may provide, but is not limited 
to, the following supportive services:
    (a) Assistance in completing an application and the provision of 
supporting documents;
    (b) A description of the Job Placement and Training Program and 
related services;
    (c) An assessment of eligibility;
    (d) An assessment of need for employment services (or a combination 
of training and employment services);
    (e) The creation of an ISP (which may include training and other 
support services);
    (f) Counseling services that address cultural differences and 
strengthen probability of client success;
    (g) Referral to other appropriate services;
    (h) Youth work experience;
    (i) Tools for employment;
    (j) Initial union dues;
    (k) Transportation of household effects;
    (l) Security and safety deposits;
    (m) Items to improve personal appearance such as professional work 
clothing;
    (n) If required, kitchen and other household effects including 
bedding and appliances; and
    (o) Childcare.



Sec.  26.19  Will I be required to contribute financially to my employment 
and training goals?

    Yes, the Job Placement and Training Program clients are required to 
seek other funding, including the use of personal resources as a 
condition of their ISP.



Sec.  26.20  Can I be required to return portions of my grant?

    Yes, grants are awarded for a specific purpose as described in the 
applicant's ISP. If the funds cannot be spent according to the ISP, the 
unused portion must be returned to the service provider's job placement 
and training budget.



Sec.  26.21  Can this program be combined with other similar programs 
for maximum benefit?

    Yes, combining this program with other programs is encouraged, to 
the extent that laws governing program services permit partnering with 
similar programs and resources.



Sec.  26.22  May a tribe integrate Job Placement and Training funds 
into its Public Law 102-477 Plan?

    Yes, Indian tribes may integrate Job Placement and Training Program 
funds into their Public Law 102-477 Plan.



Sec.  26.23  What is an Individual Self-Sufficiency Plan (ISP)?

    (a) An ISP is a document that:
    (1) Spells out the details necessary for a person to assume a 
meaningful job (usually within a reasonable period of time);
    (2) Supplements the application process and includes needed 
finances, special clothing, transportation, and support services 
necessary for employment;
    (3) Identifies all financial resources and defines the employment or 
training objective and activities planned to reach the objective; and
    (4) Outlines how the applicant will participate in job placement, 
where resources will allow.
    (b) The employer's job information and offer should be attached to 
the ISP, which becomes a part of the application (and supporting 
documents).
    (c) The ISP must indicate that the services received will meet the 
individual's and tribal goals.
    (d) Only one comprehensive ISP can be in effect for each applicant 
at one time. The comprehensive ISP should be coordinated and integrated 
with other programs offered by the servicing agency.

[[Page 147]]



                    Subpart B_Job Placement Services



Sec.  26.24  What is the scope of the Job Placement Program?

    The Job Placement Program assists Indian people who have job skills 
to obtain and retain gainful employment leading to self-sufficiency.



Sec.  26.25  What constitutes a complete Job Placement Program application?

    To be complete, a Job Placement Program application must contain all 
of the items required by this section.
    (a) An application signed by the applicant and servicing office 
representative.
    (b) An ISP, including a list of goods and services needed to get the 
applicant to the job, signed by the applicant and servicing 
representative.
    (c) An accepted official document that shows the formal relationship 
between the applicant and a federally recognized tribe or a document 
that shows an applicant's eligibility for services.
    (d) A statement by the service provider that the applicant has been 
declared eligible for services.
    (e) A financial statement that reflects the applicant's unmet need.
    (f) An employer certification that the applicant has been hired. The 
certification must include, at a minimum:
    (1) Job title;
    (2) Beginning date;
    (3) Beginning wage;
    (4) Date first full paycheck will be issued; and
    (5) Expected duration of the job.



Sec.  26.26  What Job Placement services may I receive?

    As determined by the service provider, you may receive 
transportation to work for a limited period, funds to finalize your job 
resume, and job placement assistance.



Sec.  26.27  What kind of Job Placement support services can I expect?

    Service office representatives will make the determination of what 
support services are necessary and to be funded. Examples of job 
placement support services include, but are not limited to resume 
preparation, interview techniques, job retention, and related living 
skills.



Sec.  26.28  What follow-up services are available after I become employed?

    As determined by the service provider, the following type of 
services may be available: Temporary housing, transportation to work for 
a limited period of time, work clothing, and childcare.



                       Subpart C_Training Services



Sec.  26.29  What is the scope of the Job Training Program?

    A service provider may offer career counseling, assessment, 
recommend training institutions that properly prepare applicants for 
entry into their career field, and help prepare applicants for gainful 
employment to the extent program funding will allow and based on 
applicants' established need.



Sec.  26.30  Does the Job Training Program provide part-time training 
or short-term training?

    Yes, part-time and short-term training are allowable provided the 
training assists individuals to develop skills necessary to acquire 
gainful employment, in accordance with the ISP, and depending upon 
availability of resources. Part-time means no less than six credit units 
per semester (based on a nine-month school year).



Sec.  26.31  May I repeat my training?

    Eligibility for repeat training and other financial assistance will 
be determined by your tribal service provider.



Sec.  26.32  What constitutes a complete Job Training Program application?

    A request for training includes:
    (a) Intake and application data;
    (b) Feasible, comprehensive ISP;
    (c) Tribal affiliation document;
    (d) Selective Service registration;
    (e) Selected place of training;
    (f) Statement of financial need;
    (g) Statement of eligibility; and
    (h) Applicant assessment or other documents as required by the 
servicing agency.

[[Page 148]]



Sec.  26.33  How do I show I need job training?

    The need for Job Placement and Training is shown by completing an 
application for training that demonstrates financial need.



Sec.  26.34  What type of job training assistance may be approved?

    The following types of training that lead to gainful employment may 
be approved:
    (a) Nationally accredited vocational training;
    (b) Training and non-accredited vocational courses provided by a 
tribe;
    (c) Training programs not operated by the tribe but approved by the 
service provider;
    (d) Apprenticeship training supervised by a State apprenticeship 
agency or council or by the Federal Apprenticeship Training Service that 
is provided by a corporation or association that has been training bona 
fide apprentices for at least one year or any other apprenticeship 
program approved by the service provider; or
    (e) OJT offered by a public or private business.



Sec.  26.35  What kind of support services are available to me?

    As determined by the service provider, training support services 
include, but are not limited to, stipends, transportation, and 
childcare.



Sec.  26.36  What follow-up service is available after I complete training?

    Job Placement assistance may follow training.



Sec.  26.37  Are there training standards that I must follow?

    Yes, students must maintain the minimum academic requirements and be 
in good standing as set forth by the training institute. If an applicant 
is separated from training for good cause, the applicant may be 
responsible for repaying any portion of misused funds.



                    Subpart D_Appeal by an Applicant



Sec.  26.38  May I appeal a decision about my application?

    If the servicing agency denies your application you may appeal under 
part 2 of this chapter by sending your appeal to your service provider. 
If your servicing agency is a tribal contractor, you should file your 
appeal with the tribal contractor under their established procedure. The 
letter informing you of the decision on your application will include 
information on how to appeal.

[[Page 149]]



                         SUBCHAPTER E_EDUCATION





PART 30_ADEQUATE YEARLY PROGRESS--Table of Contents



Sec.
30.100 What is the purpose of this part?
30.101 What definitions apply to terms in this part?

               Subpart A_Defining Adequate Yearly Progress

30.102 Does the Act require the Secretary of the Interior to develop a 
          definition of AYP for Bureau-funded schools?
30.103 Did the Committee consider a separate Bureau definition of AYP?
30.104 What is the Secretary's definition of AYP?

                      Alternative Definition of AYP

30.105 Can a tribal governing body or school board use another 
          definition of AYP?
30.106 How does a tribal governing body or school board propose an 
          alternative definition of AYP?
30.107 What must a tribal governing body or school board include in its 
          alternative definition of AYP?
30.108 May an alternative definition of AYP use parts of the Secretary's 
          definition?

                          Technical Assistance

30.109 Will the Secretary provide assistance in developing an 
          alternative AYP definition?
30.110 What is the process for requesting technical assistance to 
          develop an alternative definition of AYP?
30.111 When should the tribal governing body or school board request 
          technical assistance?

                   Approval of Alternative Definition

30.113 How does the Secretary review and approve an alternative 
          definition of AYP?

              Subpart B_Assessing Adequate Yearly Progress

30.114 Which students must be assessed?
30.115 Which students' performance data must be included for purposes of 
          AYP?
30.116 If a school fails to achieve its annual measurable objectives, 
          what other methods may it use to determine whether it made 
          AYP?

           Subpart C_Failure To Make Adequate Yearly Progress

30.117 What happens if a Bureau-funded school fails to make AYP?
30.118 May a Bureau-funded school present evidence of errors in 
          identification before it is identified for school improvement, 
          corrective action, or restructuring?
30.119 Who is responsible for implementing required remedial actions at 
          a Bureau-funded school identified for school improvement, 
          corrective action or restructuring?
30.120 Are Bureau-funded schools exempt from school choice and 
          supplemental services when identified for school improvement, 
          corrective action, and restructuring?
30.121 What funds are available to assist schools identified for school 
          improvement, corrective action, or restructuring?
30.122 Must the Bureau assist a school it identified for school 
          improvement, corrective action, or restructuring?
30.123 What is the Bureau's role in assisting Bureau-funded schools to 
          make AYP?
30.124 Will the Department of Education provide funds for schools that 
          fail to meet AYP?
30.125 What happens if a State refuses to allow a school access to the 
          State assessment?

              Subpart D_Responsibilities and Accountability

30.126 What is required for the Bureau to meet its reporting 
          responsibilities?
30.150 Information Collection.

    Authority: Public Law 107-110, 115 Stat. 1425.

    Source: 70 FR 22200, Apr. 28, 2005, unless otherwise noted.



Sec.  30.100  What is the purpose of this part?

    This part establishes for schools receiving Bureau funding a 
definition of ``Adequate Yearly Progress (AYP).'' Nothing in this part:
    (a) Diminishes the Secretary's trust responsibility for Indian 
education or any statutory rights in law;
    (b) Affects in any way the sovereign rights of tribes; or
    (c) Terminates or changes the trust responsibility of the United 
States to Indian tribes or individual Indians.

[[Page 150]]



Sec.  30.101  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and amends the 
Education Amendments of 1978.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Department means the Department of the Interior.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs.
    School means a school funded by the Bureau of Indian Affairs.
    Secretary means the Secretary of the Interior or a designated 
representative.
    Secretaries means the Secretary of the Interior and the Secretary of 
Education.



               Subpart A_Defining Adequate Yearly Progress



Sec.  30.102  Does the Act require the Secretary of the Interior 
to develop a definition of AYP for Bureau-funded schools?

    Yes, the Act requires the Secretary to develop a definition of AYP 
through negotiated rulemaking. In developing the Secretary's definition 
of AYP, the No Child Left Behind Negotiated Rulemaking Committee 
(Committee) considered a variety of options. In choosing the definition 
in Sec.  30.104, the Committee in no way intended to diminish the 
Secretary's trust responsibility for Indian education or any statutory 
rights in law. Nothing in this part:
    (a) Affects in any way the sovereign rights of tribes; or
    (b) Terminates or changes the trust responsibility of the United 
States to Indian tribes or individual Indians.



Sec.  30.103  Did the Committee consider a separate Bureau definition of AYP?

    Yes, the Committee considered having the Bureau of Indian Affairs 
develop a separate Bureau definition of AYP. For a variety of reasons, 
the Committee reached consensus on the definition in Sec.  30.104. This 
definition is in no way intended to diminish the United States' trust 
responsibility for Indian education nor is it intended to give States 
authority over Bureau-funded schools.



Sec.  30.104  What is the Secretary's definition of AYP?

    The Secretary defines AYP as follows. The definition meets the 
requirements in 20 U.S.C. 6311(b).
    (a) Effective in the 2005-2006 school year, the academic content and 
student achievement standards, assessments, and the definition of AYP 
are those of the State where the school is located, unless an 
alternative definition of AYP is proposed by the tribal governing body 
or school board and approved by the Secretary.
    (1) If the geographic boundaries of the school include more than one 
State, the tribal governing body or school board may choose the State 
definition it desires. Such decision shall be communicated to the 
Secretary in writing.
    (2) This section does not mean that the school is under the 
jurisdiction of the State for any purpose, rather a reference to the 
State is solely for the purpose of using the State's assessment, 
academic content and student achievement standards, and definition of 
AYP.
    (3) The use of the State's definition of AYP does not diminish or 
alter the Federal Government's trust responsibility for Indian 
education.
    (b) School boards or tribal governing bodies may seek a waiver that 
may include developing their own definition of AYP, or adopting or 
modifying an existing definition of AYP that has been accepted by the 
Department of Education. The Secretary is committed to providing 
technical assistance to a school, or a group of schools, to develop an 
alternative definition of AYP.

                      Alternative Definition of AYP



Sec.  30.105  May a tribal governing body or school board use 
another definition of AYP?

    Yes. A tribal governing body or school board may waive all or part 
of the Secretary's definition of academic content and achievement 
standards, assessments, and AYP. However, unless an alternative 
definition is approved

[[Page 151]]

under Sec.  30.113, the school must use the Secretary's definition of 
academic content and achievement standards, assessments, and AYP.



Sec.  30.106  How does a tribal governing body or school board propose 
an alternative definition of AYP?

    If a tribal governing body or school board decides that the 
definition of AYP in Sec.  30.104 is inappropriate, it may decide to 
waive all or part of the definition. Within 60 days of the decision to 
waive, the tribal governing body or school board must submit to the 
Secretary a proposal for an alternative definition of AYP. The proposal 
must meet the requirements of 20 U.S.C. 6311(b) and 34 CFR 200.13-
200.20, taking into account the unique circumstances and needs of the 
school or schools and the students served.



Sec.  30.107  What must a tribal governing body or school board include 
in its alternative definition of AYP?

    (a) An alternative definition of AYP must meet the requirements of 
20 U.S.C. 6311(b)(2) of the Act and 34 CFR 200.13-200.20, taking into 
account the unique circumstances and needs of the school or schools and 
the students served.
    (b) In accordance with 20 U.S.C. 6311(b) of the Act and 34 CFR 
200.13-200.20, an alternative definition of AYP must:
    (1) Apply the same high standards of academic achievement to all 
students;
    (2) Be statistically valid and reliable;
    (3) Result in continuous and substantial academic improvement for 
all students;
    (4) Measure the progress of all students based on a high-quality 
assessment system that includes, at a minimum, academic assessments in 
mathematics and reading or language arts;
    (5) Measure progress separately for reading or language arts and for 
mathematics;
    (6) Unless disaggregation of data cannot yield statistically 
reliable information or reveals personally identifiable information, 
apply the same annual measurable objectives to each of the following:
    (i) The achievement of all students; and
    (ii) The achievement of economically disadvantaged students, 
students from major racial or ethnic groups, students with disabilities, 
and students with limited English proficiency;
    (7) Establish a starting point;
    (8) Create a timeline to ensure that all students are proficient by 
the 2013-2014 school year;
    (9) Establish annual measurable objectives;
    (10) Establish intermediate goals;
    (11) Include at least one other academic indicator which, for any 
school with a 12th grade, must be graduation rate; and
    (12) Ensure that at least 95 percent of the students enrolled in 
each group under Sec.  30.107(b)(6) are assessed.
    (c) If a Bureau-funded school's alternative definition of AYP does 
not use a State's academic content and student achievement standards and 
academic assessments, the school must include with its alternative 
definition the academic standards and assessment it proposes to use. 
These standards and assessments must meet the requirements in 20 U.S.C. 
6311(b) and 34 CFR 200.1-200.9.



Sec.  30.108  May an alternative definition of AYP use parts 
of the Secretary's definition?

    Yes, a tribal governing body or school board may take part of the 
Secretary's definition and propose to waive the remainder. The proposed 
alternative definition of AYP must, however, include both the parts of 
the Secretary's AYP definition the tribal governing body or school board 
is adopting and those parts the tribal governing body or school board is 
proposing to change.

                          Technical Assistance



Sec.  30.109  Will the Secretary provide assistance in developing 
an alternative AYP definition?

    Yes, the Secretary through the Bureau, shall provide technical 
assistance either directly or through contract to the tribal governing 
body or the school board in developing an alternative AYP definition. A 
tribal governing body or school board needing assistance must submit a 
request to the Director of

[[Page 152]]

OIEP under Sec.  30.110. In providing assistance, the Secretary may 
consult with the Secretary of Education and may use funds supplied by 
the Secretary of Education in accordance with 20 U.S.C. 7301.



Sec.  30.110  What is the process for requesting technical assistance 
to develop an alternative definition of AYP?

    (a) The tribal governing body or school board requesting technical 
assistance to develop an alternative definition of AYP must submit a 
written request to the Director of OIEP, specifying the form of 
assistance it requires.
    (b) The Director of OIEP must acknowledge receipt of the request for 
technical assistance within 10 days of receiving the request.
    (c) No later than 30 days after receiving the original request, the 
Director of OIEP will identify a point of contact. This contact will 
immediately begin working with the tribal governing body or school board 
to jointly develop the specifics of the technical assistance, including 
identifying the form, substance, and timeline for the assistance.



Sec.  30.111  When should the tribal governing body or school board 
request technical assistance?

    In order to maximize the time the tribal governing body or school 
board has to develop an alternative definition of AYP and to provide 
full opportunity for technical assistance, the tribal governing body or 
school board should request technical assistance before formally 
notifying the Secretary of its intention to waive the Secretary's 
definition of AYP.

                   Approval of Alternative Definition



Sec.  30.113  How does the Secretary review and approve 
an alternative definition of AYP?

    (a) The tribal governing body or school board submits a proposed 
alternative definition of AYP to the Director, OIEP within 60 days of 
its decision to waive the Secretary's definition.
    (b) Within 60 days of receiving a proposed alternative definition of 
AYP, OIEP will notify the tribal governing body or the school board of:
    (1) Whether the proposed alternative definition is complete; and
    (2) If the definition is complete, an estimated timetable for the 
final decision.
    (c) If the proposed alternative definition is incomplete, OIEP will 
provide the tribal governing body or school board with technical 
assistance to complete the proposed alternative definition of AYP, 
including identifying what additional items are necessary.
    (d) The Secretaries will review the proposed alternative definition 
of AYP to determine whether it is consistent with the requirements of 20 
U.S.C. 6311(b). This review must take into account the unique 
circumstances and needs of the schools and students.
    (e) The Secretaries shall approve the alternative definition of AYP 
if it is consistent with the requirements of 20 U.S.C. 6311(b), taking 
into consideration the unique circumstances and needs of the school or 
schools and the students served.
    (f) If the Secretaries approve the alternative definition of AYP:
    (1) The Secretary shall promptly notify the tribal governing body or 
school board; and
    (2) The alternate definition of AYP will become effective at the 
start of the following school year.
    (g) The Secretaries will disapprove the alternative definition of 
AYP if it is not consistent with the requirements of 20 U.S.C. 6311(b). 
If the alternative definition is disapproved, the tribal governing body 
or school board will be notified of the following:
    (1) That the definition is disapproved; and
    (2) The reasons why the proposed alternative definition does not 
meet the requirements of 20 U.S.C. 6311(b).
    (h) If the Secretaries deny a proposed definition under paragraph 
(g) of this section, they shall provide technical assistance to overcome 
the basis for the denial.



              Subpart B_Assessing Adequate Yearly Progress



Sec.  30.114  Which students must be assessed?

    All students in grades three through eight and at least once in 
grades ten

[[Page 153]]

through twelve who are enrolled in a Bureau-funded school must be 
assessed.



Sec.  30.115  Which students' performance data must be included 
for purposes of AYP?

    The performance data of all students assessed pursuant to Sec.  
30.114 must be included for purposes of AYP if the student is enrolled 
in a Bureau-funded school for a full academic year as defined by the 
Secretary or by an approved alternative definition of AYP.



Sec.  30.116  If a school fails to achieve its annual measurable objectives, 
what other methods may it use to determine whether it made AYP?

    A school makes AYP if each group of students identified in Sec.  
30.107(b)(6) meets or exceeds the annual measurable objectives and 
participation rate identified in Sec. Sec.  30.107(b)(9) and 
30.107(b)(12) respectively, and the school meets the other academic 
indicators identified in Sec.  30.107(b)(11). If a school fails to 
achieve its annual measurable objectives for any group identified in 
Sec.  30.107(b)(6), there are two other methods it may use to determine 
whether it made AYP:
    (a) Method A--``Safe Harbor.'' Under ``safe harbor,'' the following 
requirements must be met for each group referenced under Sec.  
30.107(b)(6) that does not achieve the school's annual measurable 
objectives:
    (1) In each group that does not achieve the school's annual 
measurable objectives, the percentage of students who were below the 
``proficient'' level of academic achievement decreased by at least 10 
percent from the preceding school year; and
    (2) The students in that group made progress on one or more of the 
other academic indicators; and
    (3) Not less than 95 percent of the students in that group 
participated in the assessment.
    (b) Method B--Uniform Averaging Procedure. A school may use uniform 
averaging. Under this procedure, the school may average data from the 
school year with data from one or two school years immediately preceding 
that school year and determine if the resulting average makes AYP.



           Subpart C_Failure To Make Adequate Yearly Progress



Sec.  30.117  What happens if a Bureau-funded school fails to make AYP?

----------------------------------------------------------------------------------------------------------------
 Number of yrs of failing to make AYP in                                   Action required by entity operating
          same academic subject                       Status              school for the following school year
----------------------------------------------------------------------------------------------------------------
1st year of failing AYP..................  No status change...........  Analyze AYP data and consider
                                                                         consultation with outside experts.
2nd year of failing AYP..................  School improvement, year     Develop a plan or revise an existing
                                            one.                         plan for school improvement in
                                                                         consultation with parents, school staff
                                                                         and outside experts.
3rd year of failing AYP..................  School Improvement, year     Continue revising or modifying the plan
                                            two.                         for school improvement in consultation
                                                                         with parents, school staff and outside
                                                                         experts.
4th year of failing AYP..................  Corrective Action..........  Implement at least one of the six
                                                                         corrective actions steps found in 20
                                                                         U.S.C. 6316(b)(7)(C)(iv).
5th year of failing AYP..................  Planning to Restructure....  Prepare a restructuring plan and make
                                                                         arrangements to implement the plan.
6th year of failing AYP..................  Restructuring..............  Implement the restructuring plan no
                                                                         later than the beginning of the school
                                                                         year following the year in which it
                                                                         developed the plan.
7th year (and beyond) of failing AYP.....  Restructuring..............  Continue implementation of the
                                                                         restructuring plan until AYP is met for
                                                                         two consecutive years.
----------------------------------------------------------------------------------------------------------------



Sec.  30.118  May a Bureau-funded school present evidence of errors 
in identification before it is identified for school improvement, 
corrective action, or restructuring?

    Yes. The Bureau must give such a school the opportunity to review 
the data on which the bureau would identify a school for improvement, 
and present evidence as set out in 20 U.S.C. 6316(b)(2).

[[Page 154]]



Sec.  30.119  Who is responsible for implementing required remedial actions 
at a Bureau-funded school identified for school improvement, corrective action 
or restructuring?

    (a) For a Bureau-operated school, implementation of remedial actions 
is the responsibility of the Bureau.
    (b) For a tribally operated contract school or grant school, 
implementation of remedial actions is the responsibility of the school 
board of the school.



Sec.  30.120  Are Bureau-funded schools exempt from offering school choice 
and supplemental educational services when identified for school improvement, 
corrective action, and restructuring?

    Yes, Bureau-funded schools are exempt from offering public school 
choice and supplemental educational services when identified for school 
improvement, corrective action, and restructuring.



Sec.  30.121  What funds are available to assist schools identified 
for school improvement, corrective action, or restructuring?

    From fiscal year 2004 to fiscal year 2007, the Bureau will reserve 4 
percent of its title I allocation to assist Bureau-funded schools 
identified for school improvement, corrective action, and restructuring.
    (a) The Bureau will allocate at least 95 percent of funds under this 
section to Bureau-funded schools identified for school improvement, 
corrective action, and restructuring to carry out those schools' 
responsibilities under 20 U.S.C. 6316(b). With the approval of the 
school board the Bureau may directly provide for the remedial activities 
or arrange for their provision through other entities such as school 
support teams or educational service agencies.
    (b) In allocating funds under this section, the Bureau will give 
priority to schools that:
    (1) Are the lowest-achieving schools;
    (2) Demonstrate the greatest need for funds; and
    (3) Demonstrate the strongest commitment to ensuring that the funds 
enable the lowest-achieving schools to meet progress goals in the school 
improvement plans.
    (c) Funds reserved under this section must not decrease total 
funding under title I, part A of the Act, for any school below the level 
for the preceding year. To the extent that reserving funds under this 
section would reduce the title I, part A dollar amount of any school 
below the amount of title I, part A dollars the school received the 
previous year, the Secretary is authorized to reduce the title I, part A 
allocations of those schools receiving an increase in the title I, part 
A funds over the previous year to create the 4 percent reserve. This 
section does not authorize a school to receive title I, part A dollars 
it is not otherwise eligible to receive.
    (d) The Bureau will publish in the Federal Register a list of 
schools receiving funds under this section.



Sec.  30.122  Must the Bureau assist a school it identified 
for school improvement, corrective action, or restructuring?

    Yes, if a Bureau-funded school is identified for school improvement, 
corrective action, or restructuring, the Bureau must provide technical 
or other assistance described in 20 U.S.C. 6316(b)(4) and 20 U.S.C. 
6316(g)(3) .



Sec.  30.123  What is the Bureau's role in assisting Bureau-funded schools 
to make AYP?

    The Bureau must provide support to all Bureau-funded schools to 
assist them in achieving AYP. This includes technical assistance and 
other forms of support.



Sec.  30.124  Will the Bureau apply for funds that are available to help 
schools that fail to meet AYP?

    Yes, to the extent that Congress appropriates other funds to assist 
schools not meeting AYP, the Bureau will apply to the Department of 
Education for these funds.



Sec.  30.125  What happens if a State refuses to allow a school access 
to the State assessment?

    (a) The Department will work directly with State officials to assist 
schools in obtaining access to the State's assessment. This can include 
direct communication with the Governor of the State. A Bureau-funded 
school may, if necessary, pay a State

[[Page 155]]

for access to its assessment tools and scoring services.
    (b) If a State does not provide access to the State's assessment, 
the Bureau-funded school must submit a waiver for an alternative 
definition of AYP.



              Subpart D_Responsibilities and Accountability



Sec.  30.126  What is required for the Bureau to meet 
its reporting responsibilities?

    The Bureau has the following reporting responsibilities to the 
Department of Education, appropriate Committees of Congress, and the 
public.
    (a) In order to provide information about annual progress, the 
Bureau must obtain from all Bureau-funded schools the results of 
assessments administered for all tested students, special education 
students, students with limited English proficiency, and disseminate 
such results in an annual report.
    (b) The Bureau must identify each school that did not meet AYP in 
accordance with the school's AYP definition.
    (c) Within its annual report to Congress, the Secretary shall 
include all of the reporting requirements of 20 U.S.C. 6316(g)(5).



Sec.  30.150  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)(PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec.  
30.104(a)(1), 30.104(b), 30.106, 30.107, 30.110, and 30.118. These 
collections have been approved by OMB under control number 1076-0163.



PART 31_FEDERAL SCHOOLS FOR INDIANS--Table of Contents



Sec.
31.0 Definitions.
31.2 Use of Federal school facilities.
31.3 Non-Indian pupils in Indian schools.
31.4 Compulsory attendance.
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.  31.2  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

[[Page 156]]

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 Sec.  11.424 of this chapter.



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

[[Page 157]]

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.
    (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 families, 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

[[Page 158]]

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 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

[[Page 159]]

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 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

[[Page 160]]

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 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

[[Page 161]]

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 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

[[Page 162]]

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, 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 
authorities 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]

[[Page 163]]



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.



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_Homeliving Programs

36.70 What terms do I need to know?
36.71 What is the purpose of this part?

                                Staffing

36.75 What qualifications must homeliving staff possess?
36.76 Who is in charge of all homeliving operations?
36.77 What are the homeliving staffing requirements?
36.78 What are the staffing requirements for homeliving programs 
          offering less than 5 nights service?
36.79 What are the homeliving behavioral staff/student ratio 
          requirements?
36.80 If a school or dormitory has separated boys' and girls' homeliving 
          programs, may the same behavioral staff be used for each 
          program?
36.81 May a homeliving program use support staff or teachers to meet 
          behavioral health staffing requirements?
36.82 May behavioral health professional(s) provide services during the 
          academic school day?

[[Page 164]]

36.83 How many hours can a student be taken out of the academic setting 
          to receive behavioral health services?
36.84 Can a program hire or contract or acquire by other means 
          behavioral health professionals to meet staffing requirements?
36.85 Is a nurse required to be available in the evenings?
36.86 Are there staff training requirements?

                          Program Requirements

36.90 What recreation, academic tutoring, student safety, and health 
          care services must homeliving programs provide?
36.91 What are the program requirements for behavioral health services?
36.92 Are there any activities that must be offered by a homeliving 
          program?
36.93 Is a homeliving handbook required?
36.94 What must a homeliving handbook contain?
36.95 What sanitary standards must homeliving programs meet?
36.96 May students be required to assist with daily or weekly cleaning?
36.97 What basic requirements must a program's health services meet?
36.98 Must the homeliving program have an isolation room for ill 
          children?
36.99 Are immunizations required for residential program students?
36.100 Are there minimum requirements for student attendance checks?
36.101 How often must students who have been separated for emergency 
          health or behavioral reasons be supervised?
36.102 What student resources must be provided by a homeliving program?
36.103 What are the requirements for multipurpose spaces in homeliving 
          programs?
36.104 What are the requirements for heating, ventilation, cooling and 
          lighting at dormitories?

                                 Privacy

36.110 Must programs provide space for storing personal effects?

                       Waivers and Accountability

36.111 Can a tribe, tribal governing body, or local school board waive 
          the homeliving standards?
36.112 Can a homeliving program be closed, transferred, consolidated, or 
          substantially curtailed for failure to meet these standards?
36.120 What type of reporting is required to ensure accountability?

    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 and for 
Indian-controlled contract schools operating dormitories.
    (b) 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 Sec. Sec.  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.

[50 FR 36816, Sept. 9, 1985, as amended at 70 FR 21951, Apr. 28, 2005]



Sec.  36.2  Applicability.

    The national criteria for dormitory situations established under 
subpart G serve as a minimum requirement and are mandatory for all 
Bureau-operated and Indian-controlled contract schools.

[77 FR 30891, May 24, 2012]



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,

[[Page 165]]

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.
    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

[[Page 166]]

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 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

[[Page 167]]

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.
    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 subdivision 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

[[Page 168]]

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 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) Immunization. School children shall be immunized in accordance 
with the regulations and requirements of

[[Page 169]]

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; 70 
FR 21951, Apr. 28, 2005]



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) 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 school day provided 
that three-fourths of the instructional hours are met.
    (b) 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.
    (c) 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

[[Page 170]]

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; 70 
FR 21951, Apr. 28, 2005]



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.
    (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.

[[Page 171]]



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.
    (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.

[[Page 172]]



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.
    (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

[[Page 173]]

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 integrated 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 collection 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
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.

[[Page 174]]

    (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 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

[[Page 175]]

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.
    (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.

[[Page 176]]

    (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 Education 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.
    (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

[[Page 177]]

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_Homeliving Programs

    Authority: 25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110 (115 Stat. 
1425).

    Source: 72 FR 68498, Dec. 5, 2007, unless otherwise noted.



Sec.  36.70  What terms do I need to know?

    The following definitions apply to this subpart:
    Behavioral health professional means a State licensed or State 
certified Social Worker, School Counselor, Drug and Alcohol Counselor, 
School Psychologist, or School Psychometrist responsible for 
coordinating a broad range of needs including:
    (1) Support groups;
    (2) Individual counseling;
    (3) Crisis intervention;
    (4) Preventive activities; and
    (5) Coordination of referrals and outside services with appropriate 
providers.
    Behavioral Health Program means a homeliving based service designed 
to decrease barriers to learning or increase positive, personal well-
being by:
    (1) Providing early intervention services, coordinating crisis 
intervention and prevention services;
    (2) Promoting a positive social and emotional environment;
    (3) Reducing the incidence of problems; and
    (4) Referring students with behavioral needs that require 
professional medical care to an appropriate residential care facility.
    Behavioral health services means the services provided by a school 
behavioral health program as defined in this section.
    Homeliving Manager means the employee responsible for direct 
supervision of the homeliving program staff and students.
    Homeliving Program means a program that provides room and board in a 
boarding school or dormitory to residents who are either:
    (1) Enrolled in and are current members of a public school in the 
community in which they reside; or
    (2) Members of the instructional program in the same boarding school 
in which they are counted as residents and:
    (i) Are officially enrolled in the residential program of a Bureau-
operated or funded school; and
    (ii) Are actually receiving a homeliving program provided to all 
students who are provided room and board in a boarding school or 
dormitory.
    Homeliving Program Staff means the employee(s) responsible for 
direct supervision of students in the homeliving area.
    Homeliving Supervisor means the employee with overall administrative 
responsibility for supervising students, programs, and personnel in the 
homeliving area.



Sec.  36.71  What is the purpose of this part?

    The purpose of this part is to establish standards for homeliving 
programs.

                                Staffing



Sec.  36.75  What qualifications must homeliving staff possess?

    (a) Homeliving staff must possess the qualifications shown in the 
following table:

------------------------------------------------------------------------
                Position                         Required training
------------------------------------------------------------------------
(1) Homeliving Supervisor...............  Must be qualified based on
                                           size and complexity of the
                                           school, but at minimum
                                           possess a bachelor's degree.
(2) Homeliving Manager..................  Must be qualified based on the
                                           size and complexity of the
                                           student body but must at a
                                           minimum have an associate's
                                           degree no later than 2008.
(3) Homeliving Program Staff............  Must have at least 32 post-
                                           secondary semester hours (or
                                           48 quarter hours) in an
                                           applicable academic
                                           discipline, including fields
                                           related to working with
                                           children, such as, child
                                           development, education,
                                           behavioral sciences and
                                           cultural studies.
------------------------------------------------------------------------

    (b) A person employed as a homeliving program staff:

[[Page 178]]

    (1) Should meet the requirements of paragraph (a) of this section by 
the 2009-2010 school year; and
    (2) May, upon showing good cause, petition the school supervisor (or 
the homeliving supervisor for peripheral dorms) for a waiver from the 
new qualifications.



Sec.  36.76  Who is in charge of all homeliving operations?

    One staff member who has the authority to ensure the successful 
functioning of all phases of the homeliving program should be designated 
as in charge of all homeliving operations. All staff should be advised 
of the lines of authority through an organizational chart approved by 
the local board responsible for operations of the homeliving program.



Sec.  36.77  What are the homeliving staffing requirements?

    Homeliving programs must meet the staffing requirements of this 
section.
    (a) Effective with the 2009-2010 school year, each homeliving 
program must maintain the following student minimum supervisory 
requirements on weekdays:

------------------------------------------------------------------------
           Grade level                Time of day            Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6)..........  Morning...........  1:20.
                                  During school.....  As school needs.
                                  Evening...........  1:20.
                                  Night.............  1:40.
 
High School (Gr. 7-12)..........  Morning...........  1:20.
                                  During school       As school needs.
                                  Evening...........  1:30.
                                  Night.............  1:50.
------------------------------------------------------------------------

    (b) The following staffing ratios apply on weekends:

------------------------------------------------------------------------
           Grade level                Time of day            Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6)..........  Morning/day.......  1:20.
                                  Evening...........  1:20.
                                  Night.............  1:40.
 
High School (Gr. 7-12)..........  Morning/day.......  1:40.
                                  Evening...........  1:40.
                                  Night.............  1:50.
------------------------------------------------------------------------



Sec.  36.78  What are the staffing requirements for homeliving programs 
offering less than 5 nights service?

    For homeliving programs providing less than 5 nights service, the 
staffing levels from 36.77 apply. To fill this requirement, the program 
must use only employees who work a minimum of 20 hours per week.



Sec.  36.79  What are the homeliving behavioral professional staff/student 
ratio requirements?

    Behavioral health professional(s) is necessary in homeliving 
programs to address issues, such as abuse, neglect, trauma, cultural 
conflict, and lack of school success. Each homeliving program must 
provide a minimum of one half-time behavioral health professional for 
every 50 students.
    (a) The program may fill the staffing requirements of this section 
by using contract services, other agencies (including the Indian Health 
Service) or private/nonprofit volunteer service organizations.
    (b) Off-reservation homeliving programs should consider providing 
one full-time behavioral health professional for every 50 students.
    (c) For purposes of this section, a one half-time behavioral health 
professional is one that works for the homeliving program a minimum of 
20 hours per week.
    (d) For purposes of this section, in instances where the behavioral 
health services are obtained through other programs, the behavioral 
health professional must be available at the request of the homeliving 
program.



Sec.  36.80  If a school or dormitory has separated boys' 
and girls' homeliving programs, may the same behavioral professional be used 
for each program?

    Yes, a program may use the same behavioral professional for both 
boys' and girls' programs. However, behavioral health staffing 
requirements are based on the combined enrollment during the homeliving 
count period.



Sec.  36.81  May a homeliving program use support staff or teachers 
to meet behavioral health staffing requirements?

    No, a homeliving program must not use support staff or teachers to 
meet behavioral health staffing requirements. The only exception is if 
the individual support staff employee or teacher has the appropriate 
behavioral health license or certification.

[[Page 179]]



Sec.  36.82  May behavioral health professional(s) provide services 
during the academic school day?

    Behavioral health professional(s) must average at least 75 percent 
of their work hours with students in their dormitories. These work hours 
must occur outside of the academic school day, except in emergency 
situations as deemed by the administrative head of the homeliving 
program or designee. The purpose of this requirement is to maximize 
contact time with students in their homeliving setting.



Sec.  36.83  How many hours can a student be taken out of the academic setting 
to receive behavioral health services?

    A student may spend no more than 5 hours per week out of the 
academic setting to receive behavioral health services from the 
homeliving behavioral health professional(s), except for emergency 
situations.



Sec.  36.84  Can a program hire or contract or acquire by other means 
behavioral health professionals to meet staffing requirements?

    A program may hire or contract behavioral health professionals to 
meet staffing requirements or acquire such services by other means such 
as through a Memorandum of Understanding with other programs.
    (a) At least one individual must be a licensed or certified school 
counselor or a social worker who is licensed/certified to practice at 
the location where the services are provided.
    (b) For additional staffing, other individuals with appropriate 
certifications or licenses are acceptable to meet staffing requirements.



Sec.  36.85  Is a nurse required to be available in the evenings?

    No, a program is not required to make a nurse (LPN or RN) available 
in the evenings. However, this is encouraged for homeliving programs 
with an enrollment greater than 300 or for programs that are more than 
50 miles from available services.



Sec.  36.86  Are there staff training requirements?

    (a) All homeliving program staff as well as all employees that 
supervise students participating in homeliving services and activities 
must have the appropriate certification or licensing requirements up to 
date and on file. Programs must provide annual and continuous 
professional training and development appropriate to the certification 
and licensing requirements.
    (b) All homeliving program staff as well as all employees who 
supervise students participating in homeliving services and activities 
must receive annual training in the topics set out in this section 
before the first day of student occupancy for the year.
    (1) First Aid/Safety/Emergency & Crisis Preparedness;
    (2) CPR--Automated External Defibrillator;
    (3) Student Checkout Policy;
    (4) Confidentiality (Health Information Privacy Act and the Family 
Education Right to Privacy Act.);
    (5) Medication Administration;
    (6) Student Rights;
    (7) Child Abuse Reporting Requirements and Protection Procedures; 
and
    (8) Suicide Prevention.
    (c) Homeliving staff as well as all employees that supervise 
students participating in homeliving services and activities must be 
given the following training annually:
    (1) De-escalation/Conflict Resolution;
    (2) Substance Abuse Issues;
    (3) Ethics;
    (4) Parenting skills/Child Care;
    (5) Special Education and Working with Students with Disabilities;
    (6) Student Supervision Skills;
    (7) Child Development (recognizes various stages of development in 
the student population);
    (8) Basic Counseling Skills; and
    (9) Continuity of Operations Plan (COOP).

                          Program Requirements



Sec.  36.90  What recreation, academic tutoring, student safety, 
and health care services must homeliving programs provide?

    All homeliving programs must provide for appropriate student safety, 
academic tutoring, recreation, and

[[Page 180]]

health care services for their students, as deemed necessary by the 
local school board or homeliving board.



Sec.  36.91  What are the program requirements for behavioral health services?

    (a) The homeliving behavioral health program must make available the 
following services:
    (1) Behavioral Health Screening/Assessment;
    (2) Diagnosis;
    (3) Treatment Plan;
    (4) Treatment and Placement;
    (5) Evaluation; and
    (6) Record of Services (if applicable, in coordination with the 
student's Individual Education Plan).
    (b) Each homeliving behavioral health program must have written 
procedures for dealing with emergency behavioral health care issues.
    (c) Parents or guardians may opt out of any non-emergency behavioral 
health services by submitting a written request.
    (d) Parents or guardians must be consulted before a child is 
prescribed behavioral health.
    (e) Medication in a non-emergency situation.



Sec.  36.92  Are there any activities that must be offered 
by a homeliving program?

    Yes, a homeliving program must make available the following 
activities:
    (a) One hour per day of scheduled, structured physical activity 
Monday through Thursday, and two hours of scheduled physical activities 
on the weekends for any students who are in residence on the weekends;
    (b) One hour per day of scheduled, structured study at least four 
days per week for all students, and additional study time for students 
who are failing any classes;
    (c) Tutoring during study time;
    (d) Native language or cultural activities; and
    (e) Wellness program that may include character, health, wellness, 
and sex education.



Sec.  36.93  Is a homeliving handbook required?

    Yes, each program must publish a homeliving handbook, which may be 
incorporated into a general student handbook. During the first week the 
students and staff are in the dormitory, the homeliving program must:
    (a) Provide each student with a copy of the handbook that contains 
all the provisions in 36.94;
    (b) Provide all staff, students, and parents or guardians with a 
current and updated copy of student rights and responsibilities;
    (c) Conduct an orientation for all students on the handbook and 
student rights and responsibilities; and
    (d) Ensure that all students, school staff, and to the extent 
possible, parents and guardians confirm in writing that they have 
received a copy of and understand the homeliving handbook.



Sec.  36.94  What must a homeliving handbook contain?

    A homeliving handbook must contain all of the following, and may 
include additional information:
    (a) Mission/Vision Statement;
    (b) Discipline Policy;
    (c) Parent/Student Rights and Responsibilities;
    (d) Confidentiality;
    (e) Sexual Harassment Policy;
    (f) Violence/Bullying Policy;
    (g) Homeliving Policies and Procedures;
    (h) Services Available;
    (i) Personnel and Position Listing;
    (j) Emergency Procedures and Contact Numbers;
    (k) Bank Procedures;
    (l) Transportation Policy;
    (m) Check-Out Procedures;
    (n) Dress Code;
    (o) Drug/Alcohol Policy;
    (p) Computer Usage Policy;
    (q) Medication Administration Policy and Procedure; and
    (r) Isolation/Separation Policy.



Sec.  36.95  What sanitary standards must homeliving programs meet?

    Each homeliving program must meet all of the following standards:
    (a) Restrooms, showers, and common areas must be cleaned daily;
    (b) Rooms must be cleaned daily;

[[Page 181]]

    (c) Linens must be changed and cleaned weekly;
    (d) Linens are to be provided;
    (e) Basic Toiletries must be provided; and
    (f) Functional washing machines and dryers must be provided.



Sec.  36.96  May students be required to assist with daily or weekly cleaning?

    Yes, students can be required to assist with daily or weekly 
cleaning. However, the ultimate responsibility of cleanliness rests with 
the homeliving supervisor and local law or rules regarding chemical use 
must be followed.



Sec.  36.97  What basic requirements must a program's health services meet?

    (a) A homeliving program must make available basic medical, dental, 
vision, and other necessary health services for all students residing in 
the homeliving program, subject to agreements between the BIE and the 
Indian Health Service or between a tribally-operated homeliving program 
and the Indian Health Service or tribal health program.
    (b) A homeliving program must have written procedures for dealing 
with emergency health care issues.
    (c) Parents or guardians may opt out of any non-emergency services 
by submitting a written request.
    (d) The homeliving supervisor or designee must act in loco parentis 
when the parent or guardian cannot be found.



Sec.  36.98  Must the homeliving program have an isolation room 
for ill children?

    Yes, the homeliving program must have an isolation room(s) available 
for ill students. The isolation room (or rooms, if needed) must be made 
available for use by students with contagious conditions. Contagious 
boys and girls should have separate rooms. The isolation room(s) should 
have a separate access to shower and restroom facilities. Students 
isolated for contagious illness must be supervised as frequently and as 
closely as the circumstances and protocols require, but at least every 
30 minutes.



Sec.  36.99  Are immunizations required for residential program students?

    Each student must have all immunizations required by State, local, 
or tribal governments before being admitted to a homeliving program. 
Annual flu shots are not required, but are encouraged.



Sec.  36.100  Are there minimum requirements for student attendance checks?

    Yes, there are minimum requirements for student attendance checks as 
follows:
    (a) All students must be physically accounted for four times daily;
    (b) Each count must be at least two hours apart;
    (c) If students are on an off-campus activity, physical accounts of 
students must be made at least once every two hours or at other 
reasonable times depending on the activity;
    (d) At night all student rooms should be physically checked at least 
once every hour;
    (e) If a student is unaccounted for, the homeliving program must 
follow its established search procedures; and
    (f) When homeliving staff is aware of a student who is going to be 
absent from school, the homeliving program is required to notify the 
school.



Sec.  36.101  How often must students who have been separated 
for emergency health or behavioral reasons be supervised?

    Students who have been separated for emergency behavioral or health 
reasons must be supervised as frequently and as closely as the 
circumstances and protocols require. No student will be left 
unsupervised for any period until such factors as the student's health 
based on a medical assessment, the safety of the student, and any other 
applicable guidance for dealing with behavior or health emergencies are 
considered.



Sec.  36.102  What student resources must be provided by a homeliving program?

    The following minimum resources must be available at all homeliving 
programs:

[[Page 182]]

    (a) Library resources such as access to books and resource 
materials, including school libraries and public libraries which are 
conveniently available;
    (b) A copy of each textbook used by the academic program or the 
equivalent for peripheral dorms; and
    (c) Reasonable access to a computer with Internet access to 
facilitate homework and study.



Sec.  36.103  What are the requirements for multipurpose spaces 
in homeliving programs?

    Homeliving programs must provide adequate areas for sleeping, study, 
recreation, and related activities.



Sec.  36.104  What are the requirements for heating, ventilation, 
cooling and lighting at dormitories?

    (a) All dormitories must be designed to meet or exceed the standards 
for heating, ventilation, cooling, and lighting set out in the building 
codes in the Bureau of Indian Affairs ``School Facilities Design 
Handbook,'' dated March 30, 2007, written and published by the Bureau of 
Indian Affairs Office of Facilities Management and Construction. The 
Director of the Federal Register has approved this incorporation by 
reference in accordance with 5 U.S.C. 552(a). To enforce any edition 
other than that specified in this section, the Bureau of Indian Affairs 
must publish notice of change in the Federal Register and the material 
must be available to the public
    (1) You may obtain a copy of the Handbook at http://www.bia.gov/cs/
groups/xraca/documents/text/idc008030.pdf. You can get answers to your 
questions from the Bureau of Indian Affairs Office of Facilities 
Management and Construction at: 1011 Indian School Road NW., Suite 335, 
Albuquerque, NM 87103; email: [email protected]; Web site: http://
www.bia.gov/WhoWeAre/AS-IA/OFECR/index.htm.
    (2) You may inspect the Handbook at the Department of the Interior 
Library, Main Interior Building, 1849 C Street NW., Room 1151, 
Washington, DC 20240; telephone: (202) 208-3796. It is also available 
for inspection at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call (202) 741-6030 or go to http://www.archives.gov/federal_register/
code_of_federal_regulations/ibr_locations.html.
    (b) If an existing dormitory does not comply with the standards in 
paragraph (a) of this section, we will classify the discrepancy as 
``deferred capital maintenance'' for purposes of prioritizing correction 
of the discrepancy.
    (c) The Bureau must publish in the Federal Register any proposal to 
change which building codes are included in the Bureau of Indian Affairs 
``School Facilities Design Handbook'' or any successor document, and 
allow 120 days for public comment and consultation.

[77 FR 30891, May 24, 2012]

                                 Privacy



Sec.  36.110  Must programs provide space for storing personal effects?

    Yes, students are entitled to private personal spaces for storing 
their own personal effects, including at least one lockable closet, 
dresser drawer, or storage space. However, all drawers, dressers, 
storage space, or lockable space are the property of the homeliving 
program and are subject to random search.

                       Waivers and Accountability



Sec.  36.111  Can a tribe, tribal governing body, or local school board 
waive the homeliving standards?

    A tribal governing body or local school board may waive some or all 
of the standards established by this part if the body or board 
determines that the standards are inappropriate for the needs of the 
tribe's students.
    (a) If a tribal governing body or school board waives standards 
under this section, it must, within 60 days, submit proposed alternative 
standards to the Director, BIE.
    (b) Within 90 days of receiving a waiver and proposal under 
paragraph (a) of this section, the Director must either:
    (1) Approve the submission; or
    (2) Deliver to the governing body or school board a written 
explanation of

[[Page 183]]

the good cause for rejecting the submission.
    (c) If the Director rejects a submission under paragraph (c) of this 
section, the governing body or school board may submit another waiver 
and proposal for approval. The standards in this part remain in effect 
until the Director approves alternative standards.



Sec.  36.112  Can a homeliving program be closed, transferred, consolidated, 
or substantially curtailed for failure to meet these standards?

    No, a homeliving program cannot be closed, transferred to any other 
authority, consolidated, or its programs substantially curtailed for 
failure to meet these standards.



Sec.  36.120  What type of reporting is required to ensure accountability?

    The homeliving program must provide to the appropriate local school 
board or alternative board such as a homeliving board, the tribal 
governing body, BIE, and the Secretary of the Interior, an annual 
accountability report within 45 days following the end of the school 
year consisting of:
    (a) Enrollment figures identified by the homeliving count period;
    (b) A brief description of programs offered;
    (c) A statement of compliance with the requirements of this part 
and, if the program is not in compliance, recommendations for achieving 
compliance; and
    (d) Recommendations to improve the homeliving program including 
identification of issues and needs.



PART 37_GEOGRAPHIC BOUNDARIES--Table of Contents



Sec.
37.100 What is the purpose of this part?
37.101 What definitions apply to the terms in this part?
37.102 How is this part organized?
37.103 Information collection.

                          Subpart A_All Schools

37.110 Who determines geographic attendance areas?
37.111 What role does a tribe have in issues relating to school 
          boundaries?
37.112 Must each school have a geographic attendance boundary?

 Subpart B_Day Schools, On-Reservation Boarding Schools, and Peripheral 
                                  Dorms

37.120 How does this part affect current geographic attendance 
          boundaries?
37.121 Who establishes geographic attendance boundaries under this part?
37.122 Once geographic attendance boundaries are established, how can 
          they be changed?
37.123 How does a Tribe develop proposed geographic attendance 
          boundaries or boundary changes?
37.124 How are boundaries established for a new school or dorm?
37.125 Can an eligible student living off a reservation attend a school 
          or dorm?

               Subpart C_Off-Reservation Boarding Schools

37.130 Who establishes boundaries for Off-Reservation Boarding Schools?
37.131 Who may attend an ORBS?

    Authority: Public Law 107-110, 115 Stat. 1425.

    Source: 70 FR 22204, Apr. 28, 2005, unless otherwise noted.



Sec.  37.100  What is the purpose of this part?

    (a) This part:
    (1) Establishes procedures for confirming, establishing, or revising 
attendance areas for each Bureau-funded school;
    (2) Encourages consultation with and coordination between and among 
all agencies (school boards, tribes, and others) involved with a 
student's education; and
    (3) Defines how tribes may develop policies regarding setting or 
revising geographic attendance boundaries, attendance, and 
transportation funding for their area of jurisdiction.
    (b) The goals of the procedures in this part are to:
    (1) Provide stability for schools;
    (2) Assist schools to project and to track current and future 
student enrollment figures for planning their budget, transportation, 
and facilities construction needs;
    (3) Adjust for geographic changes in enrollment, changes in school 
capacities, and improvement of day school opportunities; and
    (4) Avoid overcrowding or stress on limited resources.

[[Page 184]]



Sec.  37.101  What definitions apply to the terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Geographic attendance area means a physical land area that is served 
by a Bureau-funded school.
    Geographic attendance boundary means a line of demarcation that 
clearly delineates and describes the limits of the physical land area 
that is served by a Bureau-funded school.
    Secretary means the Secretary of the Interior or a designated 
representative.



Sec.  37.102  How is this part organized?

    This part is divided into three subparts. Subpart A applies to all 
Bureau-funded schools. Subpart B applies only to day schools, on-
reservation boarding schools, and peripheral dorms--in other words, to 
all Bureau-funded schools except off-reservation boarding schools. 
Subpart C applies only to off-reservation boarding schools (ORBS).



Sec.  37.103  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec.  37.122(b), 
and 37.123(c). These collections have been approved by OMB under control 
number 1076-0163.



                          Subpart A_All Schools



Sec.  37.110  Who determines geographic attendance areas?

    The Tribal governing body or the Secretary determines geographic 
attendance areas.



Sec.  37.111  What role does a tribe have in issues 
relating to school boundaries?

    A tribal governing body may:
    (a) Establish and revise geographical attendance boundaries for all 
but ORB schools;
    (b) Authorize ISEP-eligible students, residing within the tribe's 
jurisdiction, to receive transportation funding to attend schools 
outside the geographic attendance area in which the student lives; and
    (c) Authorize tribal member students who are ISEP-eligible and are 
not residing within the tribe's jurisdiction to receive transportation 
funding to attend schools outside the student's geographic attendance 
area.



Sec.  37.112  Must each school have a geographic attendance boundary?

    Yes. The Secretary must ensure that each school has a geographic 
attendance area boundary.



 Subpart B_Day Schools, On-Reservation Boarding Schools, and Peripheral 
                                  Dorms



Sec.  37.120  How does this part affect current geographic 
attendance boundaries?

    The currently established geographic attendance boundaries of day 
schools, on-reservation boarding schools, and peripheral dorms remain in 
place unless the tribal governing body revises them.



Sec.  37.121  Who establishes geographic attendance boundaries under this part?

    (a) If there is only one day school, on-reservation boarding school, 
or peripheral dorm within a reservation's boundaries, the Secretary will 
establish the reservation boundary as the geographic attendance 
boundary;
    (b) When there is more than one day school, on-reservation boarding 
school,

[[Page 185]]

or peripheral dorm within a reservation boundary, the Tribe may choose 
to establish boundaries for each;
    (c) If a Tribe does not establish boundaries under paragraph (b) of 
this section, the Secretary will do so.



Sec.  37.122  Once geographic attendance boundaries are established, 
how can they be changed?

    (a) The Secretary can change the geographic attendance boundaries of 
a day school, on-reservation boarding school, or peripheral dorm only 
after:
    (1) Notifying the Tribe at least 6 months in advance; and
    (2) Giving the Tribe an opportunity to suggest different 
geographical attendance boundaries.
    (b) A tribe may ask the Secretary to change geographical attendance 
boundaries by writing a letter to the Director of the Office of Indian 
Education Programs, explaining the tribe's suggested changes. The 
Secretary must consult with the affected tribes before deciding whether 
to accept or reject a suggested geographic attendance boundary change.
    (1) If the Secretary accepts the Tribe's suggested change, the 
Secretary must publish the change in the Federal Register.
    (2) If the Secretary rejects the Tribe's suggestion, the Secretary 
will explain in writing to the Tribe why the suggestion either:
    (i) Does not meet the needs of Indian students to be served; or
    (ii) Does not provide adequate stability to all affected programs.



Sec.  37.123  How does a Tribe develop proposed geographic 
attendance boundaries or boundary changes?

    (a) The Tribal governing body establishes a process for developing 
proposed boundaries or boundary changes. This process may include 
consultation and coordination with all entities involved in student 
education.
    (b) The Tribal governing body may delegate the development of 
proposed boundaries to the relevant school boards. The boundaries set by 
the school boards must be approved by the Tribal governing body.
    (c) The Tribal governing body must send the proposed boundaries and 
a copy of its approval to the Secretary.



Sec.  37.124  How are boundaries established for a new school or dorm?

    Geographic attendance boundaries for a new day school, on-
reservation boarding school, or peripheral dorm must be established by 
either:
    (a) The tribe; or
    (b) If the tribe chooses not to establish boundaries, the Secretary.



Sec.  37.125  Can an eligible student living off a reservation 
attend a school or dorm?

    Yes. An eligible student living off a reservation can attend a day 
school, on-reservation boarding school, or peripheral dorm.



               Subpart C_Off-Reservation Boarding Schools



Sec.  37.130  Who establishes boundaries for Off-Reservation Boarding Schools?

    The Secretary or the Secretary's designee, in consultation with the 
affected Tribes, establishes the boundaries for off-reservation boarding 
schools (ORBS).



Sec.  37.131  Who may attend an ORBS?

    Any student is eligible to attend an ORBS.



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.
38.15 Southwestern Indian Polytechnic Institute.

    Authority: 25 U.S.C. 2011 and 2015, Secs. 1131 and 1135 of the Act 
of November 1, 1978, 92 Stat. 2322 and 2327; Secs. 511 and 512, Pub. L. 
98-511; Secs. 8 and 9, Pub. L. 99-89; Title V of Pub. L. 100-297; Pub. 
L. 105-337.

[[Page 186]]


    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, 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).

[[Page 187]]

    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.
    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

[[Page 188]]

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 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.

[[Page 189]]

    (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.
    (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.

[[Page 190]]

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 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 appointment. 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.

[[Page 191]]

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, 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;

[[Page 192]]

    (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, 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

[[Page 193]]

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 
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

[[Page 194]]

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.
    (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.

[[Page 195]]



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 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

[[Page 196]]

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 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

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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.
    (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

[[Page 198]]

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 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

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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 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.



Sec.  38.15  Southwestern Indian Polytechnic Institute.

    (a) The Southwestern Indian Polytechnic Institute has an independent 
personnel system established under Public Law 105-337, the 
Administrative Systems Act of 1998, 112 Stat. 3171. The details of this 
system are in the Indian Affairs Manual (IAM) at Part 20. This manual 
system may be found in Bureau of Indian Affairs Regional and Agency 
Offices, Education Line Offices, and the Central Office in Washington, 
DC.
    (b) The personnel system is in the excepted service and addresses 
the areas of classification, staffing, pay, performance, discipline, and 
separation. Other areas of personnel such as leave, retirement, life 
insurance, health benefits, thrift savings, etc., remain under the 
jurisdiction of the Office of Personnel Management.

[65 FR 58183, Sept. 27, 2000]



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



                            Subpart A_General

Sec.
39.1 What is the purpose of this part?
39.2 What definitions apply to terms in this part?
39.3 Information collection.

              Subpart B_Indian School Equalization Formula

39.100 What is the Indian School Equalization Formula?
39.101 Does ISEF assess the actual cost of school operations?

                      Base and Supplemental Funding

39.102 What is academic base funding?
39.103 What are the factors used to determine base funding?
39.104 How must a school's base funding provide for students with 
          disabilities?
39.105 Are additional funds available for special education?
39.106 Who is eligible for special education funding?
39.107 Are schools allotted supplemental funds for special student and/
          or school costs?

                      Gifted and Talented Programs

39.110 Can ISEF funds be distributed for the use of gifted and talented 
          students?
39.111 What does the term gifted and talented mean?
39.112 What is the limit on the number of students who are gifted and 
          talented?
39.113 What are the special accountability requirements for the gifted 
          and talented program?
39.114 What characteristics may qualify a student as gifted and talented 
          for purposes of supplemental funding?
39.115 How are eligible gifted and talented students identified and 
          nominated?
39.116 How does a school determine who receives gifted and talented 
          services?
39.117 How does a school provide gifted and talented services for a 
          student?
39.118 How does a student receive gifted and talented services in 
          subsequent years?
39.119 When must a student leave a gifted and talented program?
39.120 How are gifted and talented services provided?
39.121 What is the WSU for gifted and talented students?

[[Page 200]]

                      Language Development Programs

39.130 Can ISEF funds be used for Language Development Programs?
39.131 What is a Language Development Program?
39.132 Can a school integrate Language Development Programs into its 
          regular instructional program?
39.133 Who decides how Language Development funds can be used?
39.134 How does a school identify a Limited English Proficient student?
39.135 What services must be provided to an LEP student?
39.136 What is the WSU for Language Development programs?
39.137 May schools operate a language development program without a 
          specific appropriation from Congress?

                         Small School Adjustment

39.140 How does a school qualify for a Small School Adjustment?
39.141 What is the amount of the Small School Adjustment?
39.143 What is a small high school?
39.144 What is the small high school adjustment?
39.145 Can a school receive both a small school adjustment and a small 
          high school adjustment?
39.146 Is there an adjustment for small residential programs?

                     Geographic Isolation Adjustment

39.160 Does ISEF provide supplemental funding for extraordinary costs 
          related to a school's geographic isolation?

 Subpart C_Administrative Procedures, Student Counts, and Verifications

39.200 What is the purpose of the Indian School Equalization Formula?
39.201 Does ISEF reflect the actual cost of school operations?
39.202 What are the definitions of terms used in this subpart?
39.203 When does OIEP calculate a school's allotment?
39.204 How does OIEP calculate ADM?
39.205 How does OIEP calculate a school's total WSUs for the school 
          year?
39.206 How does OIEP calculate the value of one WSU?
39.207 How does OIEP determine a school's funding for the school year?
39.208 How are ISEP funds distributed?
39.209 When may a school count a student for membership purposes?
39.210 When must a school drop a student from its membership?
39.211 What other categories of students can a school count for 
          membership purposes?
39.212 Can a student be counted as enrolled in more than one school?
39.213 Will the Bureau fund children being home schooled?
39.214 What is the minimum number of instructional hours required in 
          order to be considered a full-time educational program?
39.215 Can a school receive funding for any part-time students?

                          Residential Programs

39.216 How does ISEF fund residential programs?
39.217 How are students counted for the purpose of funding residential 
          services?
39.218 Are there different formulas for different levels of residential 
          services?
39.219 What happens if a residential program does not maintain residency 
          levels required by this subpart?
39.220 What reports must residential programs submit to comply with this 
          rule?
39.221 What is a full school month?

                             Phase-in Period

39.230 How will the provisions of this subpart be phased in?

                        Subpart D_Accountability

39.401 What is the purpose of this subpart?
39.402 What definitions apply to terms used in this subpart?
39.403 What certification is required?
39.404 What is the certification and verification process?
39.405 How will verifications be conducted?
39.406 What documentation must the school maintain for additional 
          services it provides?
39.407 How long must a school maintain records?
39.408 What are the responsibilities of administrative officials?
39.409 How does the OIEP Director ensure accountability?
39.410 What qualifications must an audit firm meet to be considered for 
          auditing ISEP administration?
39.411 How will the auditor report its findings?
39.412 What sanctions apply for failure to comply with this subpart?
39.413 Can a school appeal the verification of the count?

                       Subpart E_Contingency Fund

39.500 What emergency and contingency funds are available?
39.501 What is an emergency or unforeseen contingency?
39.502 How does a school apply for contingency funds?
39.503 How can a school use contingency funds?
39.504 May schools carry over contingency funds to a subsequent fiscal 
          year?

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39.505 What are the reporting requirements for the use of the 
          contingency fund?

                Subpart F_School Board Training Expenses

39.600 Are Bureau-operated school board expenses funded by ISEP limited?
39.601 Is school board training for Bureau-operated schools considered a 
          school board expense subject to the limitation?
39.603 Is school board training required for all Bureau-funded schools?
39.604 Is there a separate weight for school board training at Bureau-
          operated schools?

                    Subpart G_Student Transportation

39.700 What is the purpose of this subpart?
39.701 What definitions apply to terms used in this subpart?

                          Eligibility for Funds

39.702 Can a school receive funds to transport residential students 
          using commercial transportation?
39.703 What ground transportation costs are covered for students 
          traveling by commercial transportation?
39.704 Are schools eligible to receive chaperone expenses to transport 
          residential students?
39.705 Are schools eligible for transportation funds to transport 
          special education students?
39.706 Are peripheral dormitories eligible for day transportation funds?
39.707 Which student transportation expenses are currently not eligible 
          for Student Transportation Funding?
39.708 Are miles generated by non-ISEP eligible students eligible for 
          transportation funding?

                    Calculating Transportation Miles

39.710 How does a school calculate annual bus transportation miles for 
          day students?
39.711 How does a school calculate annual bus transportation miles for 
          residential students?

                         Reporting Requirements

39.720 Why are there different reporting requirements for transportation 
          data?
39.721 What transportation information must off-reservation boarding 
          schools report?
39.722 What transportation information must day schools, on-reservation 
          boarding schools and peripheral dormitory schools report?

                        Miscellaneous Provisions

39.730 Which standards must student transportation vehicles meet?
39.731 Can transportation time be used as instruction time for day 
          school students?
39.732 How does OIEP allocate transportation funds to schools?

  Subpart H_Determining the Amount Necessary To Sustain an Academic or 
                           Residential Program

39.801 What is the formula to determine the amount necessary to sustain 
          a school's academic or residential program?
39.802 What is the student unit value in the formula?
39.803 What is a weighted student unit in the formula?
39.804 How is the SUIV calculated?
39.805 What was the student unit for instruction value (SUIV) for the 
          school year 1999-2000?
39.806 How is the SURV calculated?
39.807 How will the Student Unit Value be adjusted annually?
39.808 What definitions apply to this subpart?
39.809 Information collection.

           Subpart I_Interim Maintenance and Minor Repair Fund

39.900 Establishment and funding of an Interim Maintenance and Minor 
          Repair Fund.
39.901 Conditions for distribution.
39.902 Allocation.
39.903 Use of funds.
39.904 Limitations.

                  Subpart J_Administrative Cost Formula

39.1000 Purpose and scope.
39.1001 Definitions.
39.1002 Allotment of education administrative funds.
39.1003 Allotment exception for FY 1991.

                   Subpart K_Pre-kindergarten Programs

39.1100 Interim fiscal year 1980 and fiscal year 1981 funding for pre-
          kindergarten programs previously funded by the Bureau.
39.1101 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

39.1200 Definitions.
39.1201 Establishment of an interim fiscal year 1980 operation and 
          maintenance fund for contract schools.
39.1202 Distribution of funds.
39.1203 Future consideration of contract school operation and 
          maintenance funding.


[[Page 202]]


    Authority: 25 U.S.C. 13, 2008; Public Law 107-110, 115 Stat. 1425.

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



                            Subpart A_General

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec.  39.1  What is the purpose of this part?

    This part provides for the uniform direct funding of Bureau-operated 
and tribally operated day schools, boarding schools, and dormitories. 
This part applies to all schools, dormitories, and administrative units 
that are funded through the Indian School Equalization Program of the 
Bureau of Indian Affairs.



Sec.  39.2  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    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.
    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.
    Assistant Secretary means the Assistant Secretary of Indian Affairs, 
Department of the Interior, or his or her designee.
    At no cost means provided without charge, but does not preclude 
incidental fees normally charged to non-disabled students or their 
parents as a part of the regular education program.
    Average Daily Membership (ADM) means the aggregated ISEP-eligible 
membership of a school for a school year, divided by the number of 
school days in the school's submitted calendar.
    Basic program means the instructional program provided to all 
students at any age level exclusive of any supplemental programs that 
are not provided to all students in day or boarding schools.
    Basic transportation miles means the daily average of all bus miles 
logged for round trip home-to-school transportation of day students.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Bureau-funded school means
    (1) Bureau school;
    (2) A contract or grant school; or
    (3) A school for which assistance is provided under the Tribally 
Controlled Schools Act of 1988.
    Bureau school means a Bureau-operated elementary or secondary day or 
boarding school or a Bureau-operated dormitory for students attending a 
school other than a Bureau school.
    Count Week means the last full week in September during which 
schools count their student enrollment for ISEP purposes.
    Director means the Director of the Office of Indian Education 
Programs in the Bureau of Indian Affairs or a designee.
    Education Line Officer means the Bureau official in charge of Bureau 
education programs and functions in an Agency who reports to the 
Director.
    Eligible Indian student means a student who:
    (1) Is a member of, or is at least one-fourth degree Indian blood 
descendant of a member of, a tribe that is eligible for the special 
programs and services provided by the United States through the Bureau 
of Indian Affairs to Indians because of their status as Indians;
    (2) Resides on or near a reservation or meets the criteria for 
attendance at a Bureau off-reservation home-living school; and
    (3) Is enrolled in a Bureau-funded school.

[[Page 203]]

    Home schooled means a student who is not enrolled in a school and is 
receiving educational services at home at the parent's or guardian's 
initiative.
    Homebound means a student who is educated outside the classroom.
    Individual supplemental services means non-base academic services 
provided to eligible students. Individual supplemental services that are 
funded by additional WSUs are gifted and talented or language 
development services.
    ISEP means the Indian School Equalization Program.
    Limited English Proficient (LEP) means a child from a language 
background other than English who needs language assistance in his/her 
own language or in English in the schools. This child has sufficient 
difficulty speaking, writing, or understanding English to deny him/her 
the opportunity to learn successfully in English-only classrooms and 
meets one or more of the following conditions:
    (1) The child was born outside of the United States or the child's 
Native language is not English;
    (2) The child comes from an environment where a language other than 
English is dominant; or
    (3) The child is an American Indian or Alaska Native and comes from 
an environment where a language other than English has had a significant 
impact on the child's level of English language proficiency.
    Local School Board means a body chosen in accordance with the laws 
of the tribe to be served or, in the absence of such laws, elected by 
the parents of the Indian children attending the school. For a school 
serving a substantial number of students from different tribes:
    (1) The members of the local school board shall be appointed by the 
tribal governing bodies affected; and
    (2) The Secretary shall determine number of members in consultation 
with the affected tribes.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs.
    Physical education means the development of physical and motor 
fitness, fundamental motor skills and patterns, and skills in aquatics, 
dance, and individual and group games and sports (including intramural 
and lifetime sports). The term includes special physical education, 
adapted physical education, movement education, and motor development.
    Resident means a student who is residing at a boarding school or 
dormitory during the weeks when student membership counts are conducted 
and is either:
    (1) A member of the instructional program in the same boarding 
school in which the student is counted as a resident; or
    (2) Enrolled in and a current member of a public school or another 
Bureau-funded school.
    Residential program means a program that provides room and board in 
a boarding school or dormitory to residents who are either:
    (1) Enrolled in and are current members of a public school or 
Bureau-funded school; or
    (2) Members of the instructional program in the same boarding school 
in which they are counted as residents and:
    (i) Are officially enrolled in the residential program of a Bureau-
operated or -funded school; and
    (ii) Are actually receiving supplemental services provided to all 
students who are provided room and board in a boarding school or a 
dormitory.
    Secretary means the Secretary of the Interior or a designated 
representative.
    School means a school funded by the Bureau of Indian Affairs. The 
term ``school'' does not include public, charter, or private schools.
    School bus means a passenger vehicle that is:
    (1) Used to transport day students to and/or from home and the 
school; and
    (2) Operated by an operator in the employ of, or under contract to, 
a Bureau-funded school, who is qualified to operate such a vehicle under 
Tribal, State or Federal regulations governing the transportation of 
students.
    School day means a day as defined by the submitted school calendar, 
as long as annual instructional hours are as they are reflected in Sec.  
39.213, excluding passing time, lunch, recess, and breaks.
    Special education means:
    (1) Specially designed instruction, at no cost to the parents, to 
meet the

[[Page 204]]

unique needs of a child with a disability, including:
    (i) Instruction conducted in the classroom, in the home, in 
hospitals and institutions, and in other settings; and
    (ii) Instruction in physical education.
    (2) The term includes each of the following, if it meets the 
requirements of paragraph (1) of this definition:
    (i) Speech-language pathology services, or any other related 
service, if the service is considered special education rather than a 
related service under State standards;
    (1) Travel training; and
    (2) Vocational education.
    Specially designed instruction means adapting, as appropriate, to 
the needs of an eligible child under this part, the content, 
methodology, or delivery or instruction:
    (1) To address the unique needs of the child that result from the 
child's disability; and
    (2) To ensure access of the child to the general curriculum, so that 
he or she can meet the educational standards within the jurisdiction of 
the public agency that apply to all children
    Three-year average means:
    (1) For academic programs, the average daily membership of the 3 
years before the current year of operation; and
    (2) For the residential programs, the count period membership of the 
3 years before the current year of operation.
    Travel training means providing instruction, as appropriate, to 
children with significant cognitive disabilities, and any other children 
with disabilities who require this instruction, to enable them to:
    (1) Develop an awareness of the environment in which they live; and
    (2) Learn the skills necessary to move efficiently and safely from 
place to place within that environment (e.g., in school, in the home, at 
work, and in the community).
    Tribally operated school means an elementary school, secondary 
school, or dormitory that receives financial assistance for its 
operation under a contract, grant, or agreement with the Bureau under 
section 102, 103(a), or 208 of 25 U.S.C. 450 et seq., or under the 
Tribally Controlled Schools Act of 1988.
    Vocational education means organized educational programs that are 
directly related to the preparation of individuals for paid or unpaid 
employment, or for additional preparation for a career requiring other 
than a baccalaureate or advanced degree.
    Unimproved roads means unengineered earth roads that do not have 
adequate gravel or other aggregate surface materials applied and do not 
have drainage ditches or shoulders.
    Weighted Student Unit means:
    (1) The measure of student membership adjusted by the weights or 
ratios used as factors in the Indian School Equalization Formula; and
    (2) The factor used to adjust the weighted student count at any 
school as the result of other adjustments made under this part.



Sec.  39.3  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part contains in 
Sec. Sec.  39.410 and 39.502 collections of information subject to the 
PRA. These collections have been approved by OMB under control number 
1076-0163.



              Subpart B_Indian School Equalization Formula

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec.  39.100  What is the Indian School Equalization Formula?

    The Indian School Equalization Formula (ISEF) was established to 
allocate Indian School Equalization Program (ISEP) funds. OIEP applies 
ISEF to determine funding allocation for Bureau-funded schools as 
described in Sec. Sec.  39.204 through 39.206.

[[Page 205]]



Sec.  39.101  Does ISEF assess the actual cost of school operations?

    No. ISEF does not attempt to assess the actual cost of school 
operations either at the local level or in the aggregate at the national 
level. ISEF provides a method of distribution of funds appropriated by 
Congress for all schools.

                      Base and Supplemental Funding



Sec.  39.102  What is academic base funding?

    Academic base funding is the ADM times the weighted student unit.



Sec.  39.103  What are the factors used to determine base funding?

    To determine base funding, schools must use the factors shown in the 
following table. The school must apply the appropriate factor to each 
student for funding purposes.

------------------------------------------------------------------------
                                                               Base
               Grade level                 Base academic    residential
                                          funding factor  funding factor
------------------------------------------------------------------------
Kindergarten............................            1.15           NA
Grades 1-3..............................            1.38            1.75
Grades 4-6..............................            1.15            1.6
Grades 7-8..............................            1.38            1.6
Grades 9-12.............................            1.5             1.6
------------------------------------------------------------------------



Sec.  39.104  How must a school's base funding provide 
for students with disabilities?

    (a) Each school must provide for students with disabilities by:
    (1) Reserving 15 percent of academic base funding to support special 
education programs; and
    (2) Providing resources through residential base funding to meet the 
needs of students with disabilities under the National Criteria for 
Home-Living Situations.
    (b) A school may spend all or part of the 15 percent academic base 
funding reserved under paragraph (a)(1) of this section on school-wide 
programs to benefit all students (including those without disabilities) 
only if the school can document that it has met all needs of students 
with disabilities with such funds, and after having done so, there are 
unspent funds remaining from such funds.



Sec.  39.105  Are additional funds available for special education?

    (a) Schools may supplement the 15 percent base academic funding 
reserved under Sec.  39.104 for special education with funds available 
under part B of the Individuals with Disabilities Education Act (IDEA). 
To obtain part B funds, the school must submit an application to OIEP. 
IDEA funds are available only if the school demonstrates that funds 
reserved under Sec.  39.104(a) are inadequate to pay for services needed 
by all eligible ISEP students with disabilities.
    (b) The Bureau will facilitate the delivery of IDEA part B funding 
by:
    (1) Providing technical assistance to schools in completing the 
application for the funds; and
    (2) Providing training to Bureau staff to improve the delivery of 
part B funds.



Sec.  39.106  Who is eligible for special education funding?

    To receive ISEP special education funding, a student must be under 
22 years old and must not have received a high school diploma or its 
equivalent on the first day of eligible attendance. The following 
minimum age requirements also apply:
    (a) To be counted as a kindergarten student, a child must be at 
least 5 years old by December 31; and
    (b) To be counted as a first grade student; a child must be at least 
6 years old by December 31.



Sec.  39.107  Are schools allotted supplemental funds for special student 
and/or school costs?

    Yes, schools are allotted supplemental funds for special student 
and/or school costs. ISEF provides additional funds to schools through 
add-on weights (called special cost factors). ISEF adds special cost 
factors as shown in the following table.

------------------------------------------------------------------------
                Cost Factor                   For more information see
------------------------------------------------------------------------
Gifted and talented students..............  Sec.  Sec.   39.110 through
                                             39.121
Students with language development needs..  Sec.  Sec.   39.130 through
                                             39.137
Small school size.........................  Sec.  Sec.   39.140 through
                                             39.156
Geographic isolation of the school........  Sec.   39.160
------------------------------------------------------------------------


[[Page 206]]

                      Gifted and Talented Programs



Sec.  39.110  Can ISEF funds be distributed for the use of gifted 
and talented students?

    Yes, ISEF funds can be distributed for the provision of services for 
gifted and talented students.



Sec.  39.111  What does the term gifted and talented mean?

    The term gifted and talented means students, children, or youth who:
    (a) Give evidence of high achievement capability in areas such as 
intellectual, creative, artistic, or leadership capacity, or in specific 
academic fields; and
    (b) Need services or activities not ordinarily provided by the 
school in order to fully develop those capabilities.



Sec.  39.112  What is the limit on the number of students 
who are gifted and talented?

    There is no limit on the number of students that a school can 
classify as gifted and talented.



Sec.  39.113  What are the special accountability requirements 
for the gifted and talented program?

    If a school identifies more than 13 percent of its student 
population as gifted and talented the Bureau will immediately audit the 
school's gifted and talented program to ensure that all identified 
students:
    (a) Meet the gifted and talented requirement in the regulations; and
    (b) Are receiving gifted and talented services.



Sec.  39.114  What characteristics may qualify a student as gifted 
and talented for purposes of supplemental funding?

    To be funded as gifted and talented under this part, a student must 
be identified as gifted and talented in at least one of the following 
areas.
    (a) Intellectual Ability means scoring in the top 5 percent on a 
statistically valid and reliable measurement tool of intellectual 
ability.
    (b) Creativity/Divergent Thinking means scoring in the top 5 percent 
of performance on a statistically valid and reliable measurement tool of 
creativity/divergent thinking.
    (c) Academic Aptitude/Achievement means scoring in the top 15 
percent of academic performance in a total subject area score on a 
statistically valid and reliable measurement tool of academic 
achievement/aptitude, or a standardized assessment, such as an NRT or 
CRT.
    (d) Leadership means the student is recognized as possessing the 
ability to lead, guide, or influence the actions of others as measured 
by objective standards that a reasonable person of the community would 
believe demonstrates that the student possess leadership skills. These 
standards include evidence from surveys, supportive documentation 
portfolios, elected or appointed positions in school, community, clubs 
and organization, awards documenting leadership capabilities. No school 
can identify more than 15 percent of its student population as gifted 
and talented through the leadership category.
    (e) Visual and Performing Arts means outstanding ability to excel in 
any imaginative art form; including, but not limited to, drawing, 
printing, sculpture, jewelry making, music, dance, speech, debate, or 
drama as documented from surveys, supportive documentation portfolios, 
awards from judged or juried competitions. No school can identify more 
than 15 percent of its student population as gifted and talented through 
the visual and performing arts category.



Sec.  39.115  How are eligible gifted and talented students 
identified and nominated?

    (a) Screening can be completed annually to identify potentially 
eligible students. A student may be nominated for gifted and talented 
designation using the criteria in Sec.  39.114 by any of the following:
    (1) A teacher or other school staff;
    (2) Another student;
    (3) A community member;
    (4) A parent or legal guardian; or
    (5) The student himself or herself.
    (b) Students can be nominated based on information regarding the 
student's abilities from any of the following sources:
    (1) Collections of work;
    (2) Audio/visual tapes;

[[Page 207]]

    (3) School grades;
    (4) Judgment of work by qualified individuals knowledgeable about 
the student's performances (e.g., artists, musicians, poets, historians, 
etc.);
    (5) Interviews or observations; or
    (6) Information from other sources.
    (c) The school must have written parental consent to collect 
documentation of gifts and talents under paragraph (b) of this section.



Sec.  39.116  How does a school determine who receives gifted 
and talented services?

    (a) To determine who receives gifted and talented funding, the 
school must use qualified professionals to perform a multi-disciplinary 
assessment. The assessment may include the examination of work samples 
or performance appropriate to the area under consideration. The school 
must have the parent or guardian's written permission to conduct 
individual assessments or evaluations. Assessments under this section 
must meet the following standards:
    (1) The assessment must use assessment instruments specified in 
Sec.  39.114 for each of the five criteria for which the student is 
nominated;
    (2) If the assessment uses a multi-criteria evaluation, that 
evaluation must be an unbiased evaluation based on student needs and 
abilities;
    (3) Indicators for visual and performing arts and leadership may be 
determined based on national, regional, or local criteria; and
    (4) The assessment may use student portfolios.
    (b) A multi-disciplinary team will review the assessment results to 
determine eligibility for gifted and talented services. The purpose of 
the team is to determine eligibility and placement to receive gifted and 
talented services.
    (1) Team members may include nominator, classroom teacher, qualified 
professional who conducted the assessment, local experts as needed, and 
other appropriate personnel such as the principal and/or a counselor.
    (2) A minimum of three team members is required to determine 
eligibility.
    (3) The team will design a specific education plan to provide gifted 
and talented services related in the areas identified.



Sec.  39.117  How does a school provide gifted and talented services 
for a student?

    Gifted and talented services are provided through or under the 
supervision of highly qualified professional teachers. To provide gifted 
and talented services for a student, a school must take the steps in 
this section.
    (a) The multi-disciplinary team formed under Sec.  39.116(b) will 
sign a statement of agreement for placement of services based on 
documentation reviewed.
    (b) The student's parent or guardian must give written permission 
for the student to participate.
    (c) The school must develop a specific education plan that contains:
    (1) The date of placement;
    (2) The date services will begin;
    (3) The criterion from Sec.  39.114 for which the student is 
receiving services and the student's performance level;
    (4) Measurable goals and objectives; and
    (5) A list of staff responsible for each service that the school is 
providing.



Sec.  39.118  How does a student receive gifted and talented services 
in subsequent years?

    For each student receiving gifted and talented services, the school 
must conduct a yearly evaluation of progress, file timely progress 
reports, and update the specific education plan.
    (a) If a school identifies a student as gifted and talented based on 
Sec.  39.114 (a), (b), or (c), then the student does not need to reapply 
for the gifted and talented program. However, the student must be 
reevaluated at least every 3 years through the 10th grade to verify 
eligibility for funding.
    (b) If a school identifies a student as gifted and talented based on 
Sec.  39.114 (d) or (e), the student must be reevaluated annually for 
the gifted and talented program.



Sec.  39.119  When must a student leave a gifted and talented program?

    A student must leave the gifted and talented program when either:

[[Page 208]]

    (a) The student has received all of the available services that can 
meet the student's needs;
    (b) The student no longer meets the criteria that have qualified him 
or her for the program; or
    (c) The parent or guardian removes the student from the program.



Sec.  39.120  How are gifted and talented services provided?

    In providing services under this section, the school must:
    (a) Provide a variety of programming services to meet the needs of 
the students;
    (b) Provide the type and duration of services identified in the 
Individual Education Plan established for each student; and
    (c) Maintain individual student files to provide documentation of 
process and services; and
    (d) Maintain confidentiality of student records under the Family 
Educational Rights and Privacy Act (FERPA).



Sec.  39.121  What is the WSU for gifted and talented students?

    The WSU for a gifted and talented student is the base academic 
weight (see Sec.  39.103) subtracted from 2.0. The following table shows 
the gifted and talented weights obtained using this procedure.

------------------------------------------------------------------------
                                                             Gifted and
                        Grade level                         talented WSU
------------------------------------------------------------------------
Kindergarten..............................................          0.85
Grades 1 to 3.............................................          0.62
Grades 4 to 6.............................................          0.85
Grades 7 to 8.............................................          0.62
Grades 9 to 12............................................          0.50
------------------------------------------------------------------------

                      Language Development Programs



Sec.  39.130  Can ISEF funds be used for Language Development Programs?

    Yes, schools can use ISEF funds to implement Language Development 
programs that demonstrate the positive effects of Native language 
programs on students' academic success and English proficiency. Funds 
can be distributed to a total aggregate instructional weight of 0.13 for 
each eligible student.



Sec.  39.131  What is a Language Development Program?

    A Language Development program is one that serves students who 
either:
    (a) Are not proficient in spoken or written English;
    (b) Are not proficient in any language;
    (c) Are learning their Native language for the purpose of 
maintenance or language restoration and enhancement;
    (d) Are being instructed in their Native language; or
    (e) Are learning non-language subjects in their Native language.



Sec.  39.132  Can a school integrate Language Development programs 
into its regular instructional program?

    A school may offer Language Development programs to students as part 
of its regular academic program. Language Development does not have to 
be offered as a stand-alone program.



Sec.  39.133  Who decides how Language Development funds can be used?

    Tribal governing bodies or local school boards decide how their 
funds for Language Development programs will be used in the 
instructional program to meet the needs of their students.



Sec.  39.134  How does a school identify a Limited English Proficient student?

    A student is identified as limited English proficient (LEP) by using 
a nationally recognized scientifically research-based test.



Sec.  39.135  What services must be provided to an LEP student?

    A school must provide services that assist each LEP student to:
    (a) Become proficient in English and, to the extent possible, 
proficient in their Native language; and
    (b) Meet the same challenging academic content and student academic 
achievement standards that all students are expected to meet under 20 
U.S.C. 6311(b)(1).



Sec.  39.136  What is the WSU for Language Development programs?

    Language Development programs are funded at 0.13 WSUs per student.

[[Page 209]]



Sec.  39.137  May schools operate a language development program 
without a specific appropriation from Congress?

    Yes, a school may operate a language development program without a 
specific appropriation from Congress, but any funds used for such a 
program must come from existing ISEP funds. When Congress specifically 
appropriates funds for Indian or Native languages, the factor to support 
the language development program will be no more than 0.25 WSU.

                         Small School Adjustment



Sec.  39.140  How does a school qualify for a Small School Adjustment?

    A school will receive a small school adjustment if either:
    (a) Its average daily membership (ADM) is less than 100 students; or
    (b) It serves lower grades and has a diploma-awarding high school 
component with an average instructional daily membership of less than 
100 students.



Sec.  39.141  What is the amount of the Small School Adjustment?

    (a) A school with a 3-year ADM of 50 or fewer students will receive 
an adjustment equivalent to an additional 12.5 base WSU; or
    (b) A school with a 3-year ADM of 51 to 99 students will use the 
following formula to determine the number of WSU for its adjustment. 
With X being the ADM, the formula is as follows:

WSU adjustment = ((100-X)/200)*X



Sec.  39.143  What is a small high school?

    For purposes of this part, a small high school:
    (a) Is accredited under 25 U.S.C. 2001(b);
    (b) Is staffed with highly qualified teachers;
    (c) Operates any combination of grades 9 through 12;
    (d) Offers high school diplomas; and
    (e) Has an ADM of fewer than 100 students.



Sec.  39.144  What is the small high school adjustment?

    (a) The small high school adjustment is a WSU adjustment given to a 
small high school that meets both of the following criteria:
    (1) It has a 3-year average daily membership (ADM) of less than 100 
students; and
    (2) It operates as part of a school that during the 2003-04 school 
year also included lower grades.
    (b) The following table shows the WSU adjustment given to small high 
schools. In the table, ``X'' stands for the ADM.

------------------------------------------------------------------------
                                                         School receives
                                                           a component
 ADM of high school component    Amount of small high     small school
                                   school adjustment    adjustment under
                                                          Sec.   39.141
------------------------------------------------------------------------
50 or fewer students..........  6.25 base WSU.........  Yes.
51 to 99 students.............  determined using the    Yes.
                                 following formula:
                                 WSU = ((100-X)/200)*X/
                                 2.
50 or fewer students..........  12.5 base WSU.........  No.
51 to 99 students.............  determined using the    No.
                                 following formula:
                                 WSU = ((100-X)/200)*X.
------------------------------------------------------------------------



Sec.  39.145  Can a school receive both a small school adjustment 
and a small high school adjustment?

    A school that meets the criteria in Sec.  39.140 can receive both a 
small school adjustment and a small high school adjustment. The 
following table shows the total amount of adjustments for eligible 
schools by average daily membership (ADM) category.

----------------------------------------------------------------------------------------------------------------
                                                     ADM--high                      Small high
               ADM--entire school                     school       Small school       school           Total
                                                     component      adjustment      adjustment      adjustment
----------------------------------------------------------------------------------------------------------------
1-50............................................              NA            12.5              NA            12.5
1-50............................................            1-50            12.5            6.25           18.75
51-99...........................................            1-50    \2\ 12.5-0.5            6.25      18.75-6.75
51-99...........................................           51-99    \1\ 12.5-0.5   \2\ 6.25-0.25       18.75-0.7

[[Page 210]]

 
99..............................................            1-50             0.5            12.5            12.5
99..............................................           51-99             0.5    \2\ 12.5-0.5       12.5-0.5
----------------------------------------------------------------------------------------------------------------
\1\ The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
  the formula in Sec.   39.141.
\2\ The amount of the adjustment is within this range. The exact figure depends upon the results obtained using
  the formula in Sec.   39.144.



Sec.  39.146  Is there an adjustment for small residential programs?

    In order to compensate for the additional costs of operating a small 
residential program, OIEP will add to the total WSUs of each qualifying 
school as shown in the following table:

------------------------------------------------------------------------
        Type of residential program             Number of WSUs added
------------------------------------------------------------------------
Residential student count of 50 or fewer    12.5.
 ISEP-eligible students.
Residential student count of between 51     Determined by the formula
 and 99 ISEP-eligible students.              ((100-X)/200))X, where X
                                             equals the residential
                                             student count.
------------------------------------------------------------------------

                     Geographic Isolation Adjustment



Sec.  39.160  Does ISEF provide supplemental funding for extraordinary costs 
related to a school's geographic isolation?

    Yes. Havasupai Elementary School, for as long as it remains in its 
present location, will be awarded an additional cost factor of 12.5 WSU.



 Subpart C_Administrative Procedures, Student Counts, and Verifications

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec.  39.200  What is the purpose of the Indian School Equalization Formula?

    OIEP uses the Indian School Equalization Formula (ISEF) to 
distribute Indian School Equalization Program (ISEP) appropriations 
equitably to Bureau-funded schools.



Sec.  39.201  Does ISEF reflect the actual cost of school operations?

    ISEF does not attempt to assess the actual cost of school operations 
either at the local school level or in the aggregate nationally. ISEF is 
a relative distribution of available funds at the local school level by 
comparison with all other Bureau-funded schools.



Sec.  39.202  What are the definitions of terms used in this subpart?

    Homebound means a student who is educated outside the classroom.
    Home schooled means a student who is not enrolled in a school and is 
receiving educational services at home at the parent's or guardian's 
initiative.
    School day means a day as defined by the submitted school calendar, 
as long as annual instructional hours are as they are reflected in Sec.  
39.213, excluding passing time, lunch, recess, and breaks.
    Three-year average means:
    (1) For academic programs, the average daily membership of the 3 
years before the current year of operation; and
    (2) For the residential programs, the count period membership of the 
3 years before the current year of operation.



Sec.  39.203  When does OIEP calculate a school's allotment?

    OIEP calculates a school's allotment no later than July 1. Schools 
must submit final ADM enrollment figures no later than June 15.



Sec.  39.204  How does OIEP calculate ADM?

    OIEP calculates ADM by:
    (a) Adding the total enrollment figures from periodic reports 
received from each Bureau-funded school; and
    (b) Dividing the total enrollment for each school by the number of 
days in the school's reporting period.



Sec.  39.205  How does OIEP calculate a school's total WSUs 
for the school year?

    (a) OIEP will add the weights obtained from the calculations in 
paragraphs (a)(1), (a)(2), and (a)(3) of this section to obtain the 
total weighted student units (WSUs) for each school.

[[Page 211]]

    (1) Each year's ADM is multiplied by the applicable weighted student 
unit for each grade level;
    (2) Calculate any supplemental WSUs generated by the students; and
    (3) Calculate any supplemental WSUs generated by the schools.
    (b) The total WSU for the school year is the sum of paragraphs 
(a)(1), (a)(2), and (a)(3) of this section.



Sec.  39.206  How does OIEP calculate the value of one WSU?

    (a) To calculate the appropriated dollar value of one WSU, OIEP 
divides the systemwide average number of WSUs for the previous 3 years 
into the current year's appropriation.
    (b) To calculate the average WSU for a 3-year period:
    (1) Step 1. Add together each year's total WSU (calculated under 
paragraph (b) of this section); and
    (2) Step 2. Divide the sum obtained in step 1 by 3.



Sec.  39.207  How does OIEP determine a school's funding for the school year?

    To determine a school's funding for the school year, OIEP uses the 
following seven-step process:
    (a) Step 1. Multiply the appropriate base academic and/or 
residential weight from Sec.  39.103 by the number of students in each 
grade level category.
    (b) Step 2. Multiply the number of students eligible for 
supplemental program funding under Sec.  39.107 by the weights for the 
program.
    (c) Step 3. Calculate the school-based supplemental weights under 
Sec.  639.107.
    (d) Step 4. Add together the sums obtained in steps 1 through 3 to 
obtain each school's total WSU.
    (e) Step 5. Add together the total WSUs for all Bureau-funded 
schools.
    (f) Step 6. Calculate the value of a WSU by dividing the current 
school year's funds by the average total WSUs as calculated under step 5 
for the previous 3 years.
    (g) Step 7. Multiply each school's WSU total by the base value of 
one WSU to determine funding for that school.



Sec.  39.208  How are ISEP funds distributed?

    (a) On July 1, schools will receive 80 percent of their funds as 
determined in Sec.  39.207.
    (b) On December 1, the balance will be distributed to all schools 
after verification of the school count and any adjustments made through 
the appeals process for the third year.



Sec.  39.209  When may a school count a student for membership purposes?

    If a student is enrolled, is in attendance during any of the first 
10 days of school, and receives at least 5 days' instruction, the 
student is deemed to be enrolled all 10 days and shall be counted for 
ADM purposes. The first 10 days of school, for purposes of this section, 
are determined by the calendar that the school submits to OIEP.
    (a) For ISEP purposes, a school can add a student to the membership 
when he or she has been enrolled and has received a full day of 
instruction from the school.
    (b) Except as provided in Sec.  39.210, to be counted for ADM, a 
student dropped under Sec.  39.209 must:
    (1) Be re-enrolled; and
    (2) Receive a full day of instruction from the school.



Sec.  39.210  When must a school drop a student from its membership?

    If a student is absent for 10 consecutive school days, the school 
must drop that student from the membership for ISEP purposes of that 
school on the 11th day.



Sec.  39.211  What other categories of students can a school count 
for membership purposes?

    A school can count other categories of students for membership 
purposes as shown in the following table.

[[Page 212]]



------------------------------------------------------------------------
                                            Circumstances under which
            Type of student               student can be included in the
                                               school's membership
------------------------------------------------------------------------
(a) Homebound..........................  (1) The student is temporarily
                                          confined to the home for some
                                          or all of the school day for
                                          medical, family emergency, or
                                          other reasons required by law
                                          or regulation;
                                         (2) The student is being
                                          provided by the school with at
                                          least 5 documented contact
                                          hours each week of academic
                                          services by certified
                                          educational personnel; and
                                         (3) Appropriate documentations
                                          is on file at the school.
(b) Located in an institutional setting  The school is either:
 outside of the school.                  (1) Paying for the student to
                                          receive educational services
                                          from the facility; or
                                         (2) Providing educational
                                          services by certified school
                                          staff for at least 5
                                          documented contact hours each
                                          week.
(c) Taking college courses during the    The student is both:
 school day.                             (1) Concurrently enrolled in,
                                          and receiving credits for both
                                          the school's courses and
                                          college courses; and
                                         (2) In physical attendance at
                                          the school at least 3
                                          documented contact hours per
                                          day.
(d) Taking distance learning courses...  The student is both:
                                         (1) Receiving high school
                                          credit for grades; and
                                         (2) In physical attendance at
                                          the school at least 3
                                          documented contact hours per
                                          day.
(e) Taking internet courses............  The student is both:
                                         (1) Receiving high school
                                          credit for grades; and
                                         (2) Taking the courses at the
                                          school site under a teacher's
                                          supervision.
------------------------------------------------------------------------



Sec.  39.212  Can a student be counted as enrolled in more than one school?

    Yes, if a student attends more than one school during an academic 
year, each school may count the student as enrolled once the student 
meets the criteria in 39.209.



Sec.  39.213  Will the Bureau fund children being home schooled?

    No, the Bureau will not fund any child that is being home schooled.



Sec.  39.214  What is the minimum number of instructional hours required 
in order to be considered a full-time educational program?

    A full time program provides the following number of instructional/
student hours to the corresponding grade level:

------------------------------------------------------------------------
                           Grade                                Hours
------------------------------------------------------------------------
K..........................................................          720
1-3........................................................          810
4-8........................................................          900
9-12.......................................................          970
------------------------------------------------------------------------



Sec.  39.215  Can a school receive funding for any part-time students?

    (a) A school can receive funding for the following part-time 
students:
    (1) Kindergarten students enrolled in a 2-hour program; and
    (2) Grade 7-12 students enrolled in at least half but less than a 
full instructional day.
    (b) The school must count students classified as part-time at 50 
percent of their basic instructional WSU value.

                          Residential Programs



Sec.  39.216  How does ISEF fund residential programs?

    Residential programs are funded on a WSU basis using a formula that 
takes into account the number of nights of service per week. Funding for 
residential programs is based on the average of the 3 previous years' 
residential WSUs.



Sec.  39.217  How are students counted for the purpose 
of funding residential services?

    For a student to be considered in residence for purposes of this 
subpart, the school must be able to document that the student was:
    (a) In residence at least one night during the first full week of 
October;
    (b) In residence at least one night during the week preceding the 
first full week in October;
    (c) In residence at least one night during the week following the 
first full week in October; and
    (d) Present for both the after school count and the midnight count 
at least one night during each week specified in this section.



Sec.  39.218  Are there different formulas for different levels 
of residential services?

    (a) Residential services are funded as shown in the following table:

------------------------------------------------------------------------
                                              Each student is funded at
  If a residential program operates . . .        the level of . . .
------------------------------------------------------------------------
(1) 4 nights per week or less.............  Total WSU x 4/7.
(2) 5, 6 or 7 nights per week.............  Total WSU x 7/7.
------------------------------------------------------------------------


[[Page 213]]

    (b) In order to qualify for residential services funding under 
paragraph (a)(2) of this section, a school must document that at least 
10 percent of residents are present on 3 of the 4 weekends during the 
count period.
    (c) At least 50 percent of the residency levels established during 
the count period must be maintained every month for the remainder of the 
school year.
    (d) A school may obtain waivers from the requirements of this 
section if there are health or safety justifications.



Sec.  39.219  What happens if a residential program does not maintain 
residency levels required by this subpart?

    Each school must maintain its declared nights of service per week as 
certified in its submitted school calendar. For each month that a school 
does not maintain 25 percent of the residency shown in its submitted 
calendar, the school will lose one-tenth of its current year allocation.



Sec.  39.220  What reports must residential programs submit to comply 
with this subpart?

    Residential programs must report their monthly counts to the 
Director on the last school day of the month. To be counted, a student 
must have been in residence at least 10 nights during each full school 
month.



Sec.  39.221  What is a full school month?

    A full school month is each 30-day period following the first day 
that residential services are provided to students based on the school 
residential calendar.

                             Phase-in Period



Sec.  39.230  How will the provisions of this subpart be phased in?

    The calculation of the three-year rolling average of ADM for each 
school and for the entire Bureau-funded school system will be phased-in 
as shown in the following table.

------------------------------------------------------------------------
               Time period                  How OIEP must calculate ADM
------------------------------------------------------------------------
(a) First school year after May 31, 2005.  Use the prior 3 years' count
                                            period to create membership
                                            for funding purposes
(b) Second school year after May 31, 2005  (1) The academic program will
                                            use the previous year's ADM
                                            school year and the 2 prior
                                            years' count periods; and
                                           (2) The residential program
                                            will use the previous year's
                                            count period and the 2 prior
                                            years' count weeks
(c) Each succeeding school year after May  Add one year of ADM or count
 31, 2005.                                  period and drop one year of
                                            prior count weeks until both
                                            systems are operating on a 3-
                                            year rolling average using
                                            the previous 3 years' count
                                            after period or ADM,
                                            respectively.
------------------------------------------------------------------------



                        Subpart D_Accountability

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec.  39.401  What is the purpose of this subpart?

    The purpose of this subpart is to ensure accountability of 
administrative officials by creating procedures that are systematic and 
can be verified by a random independent outside auditing procedures. 
These procedures will ensure the equitable distribution of funds among 
schools.



Sec.  39.402  What definitions apply to terms used in this subpart?

    Administrative officials means any persons responsible for managing 
and operating a school, including the school supervisor, the chief 
school administrator, tribal officials, Education Line Officers, and the 
Director, OIEP.
    Director means the Director of the Office of Indian Education 
Programs of the Bureau of Indian Affairs.
    Education Line Officer means the Bureau official in charge of Bureau 
education programs and functions in an Agency who reports to the 
Director.



Sec.  39.403  What certification is required?

    (a) Each school must maintain an individual file on each student 
receiving basic educational and supplemental services. The file must 
contain written documentation of the following:
    (1) Each student's eligibility and attendance records;
    (2) A complete listing of all supplemental services provided, 
including all necessary documentation required by statute and 
regulations (e.g., a current and complete Individual Education

[[Page 214]]

Plan for each student receiving supplemental services); and
    (3) Documentation of expenditures and program delivery for student 
transportation to and from school provided by commercial carriers.
    (b) The School must maintain the following files in a central 
location:
    (1) The school's ADM and supplemental program counts and residential 
count;
    (2) Transportation related documentation, such as school bus 
mileage, bus routes;
    (3) A list of students transported to and from school;
    (4) An electronic student count program or database;
    (5) Class record books;
    (6) Supplemental program class record books;
    (7) For residential programs, residential student attendance 
documentation;
    (8) Evidence of teacher certification; and
    (9) The school's accreditation certificate.
    (c) The Director must maintain a record of required certifications 
for ELOs, specialists, and school superintendents in a central location.



Sec.  39.404  What is the certification and verification process?

    (a) Each school must:
    (1) Certify that the files required by Sec.  39.403 are complete and 
accurate; and
    (2) Compile a student roster that includes a complete list of all 
students by grade, days of attendance, and supplemental services.
    (b) The chief school administrator and the president of the school 
board are responsible for certifying the school's ADM and residential 
count is true and accurate to the best of their knowledge or belief and 
is supported by appropriate documentation.
    (c) OIEP's education line officer (ELO) will annually review the 
following to verify that the information is true and accurate and is 
supported by program documentation:
    (1) The eligibility of every student;
    (2) The school's ADM and supplemental program counts and residential 
count;
    (3) Evidence of accreditation;
    (4) Documentation for all provided basic and supplemental services, 
including all necessary documentation required by statute and 
regulations (e.g., a current and complete Individual Education Plan for 
each student receiving supplemental services); and
    (5) Documentation required by subpart G of this part for student 
transportation to and from school provided by commercial carriers.



Sec.  39.405  How will verifications be conducted?

    The eligibility of every student shall be verified. The ELO will 
take a random sampling of five days with a minimum of one day per 
grading period to verify the information in Sec.  39.404(c). The ELO 
will verify the count for the count period and verify residency during 
the remainder of the year.



Sec.  39.406  What documentation must the school maintain 
for additional services it provides?

    Every school must maintain a file on each student receiving 
additional services. (Additional services include homebound services, 
institutional services, distance courses, Internet courses or college 
services.) The school must certify, and its records must show, that:
    (a) Each homebound or institutionalized student is receiving 5 
contact hours each week by certified educational personnel;
    (b) Each student taking college, distance or internet courses is in 
physical attendance at the school for at least 3 certified contact hours 
per day.



Sec.  39.407  How long must a school maintain records?

    The responsible administrative official for each school must 
maintain records relating to ISEP, supplemental services, and 
transportation-related expenditures. The official must maintain these 
records in appropriate retrievable storage for at least the four years 
prior to the current school year, unless Federal records retention 
schedules require a longer period.

[[Page 215]]



Sec.  39.408  What are the responsibilities of administrative officials?

    Administrative officials have the following responsibilities:
    (a) Applying the appropriate standards in this part for classifying 
and counting ISEP eligible Indian students at the school for formula 
funding purposes;
    (b) Accounting for and reporting student transportation 
expenditures;
    (c) Providing training and supervision to ensure that appropriate 
standards are adhered to in counting students and accounting for student 
transportation expenditures;
    (d) Submitting all reports and data on a timely basis; and
    (e) Taking appropriate disciplinary action for failure to comply 
with requirements of this part.



Sec.  39.409  How does the OIEP Director ensure accountability?

    (a) The Director of OIEP must ensure accountability in student 
counts and student transportation by doing all of the following:
    (1) Conducting annual independent and random field audits of the 
processes and reports of at least one school per OIEP line office to 
ascertain the accuracy of Bureau line officers' reviews;
    (2) Hearing and making decisions on appeals from school officials;
    (3) Reviewing reports to ensure that standards and policies are 
applied consistently, education line officers treat schools fairly and 
equitably, and the Bureau takes appropriate administrative action for 
failure to follow this part; and
    (4) Reporting the results of the findings and determinations under 
this section to the appropriate tribal governing body.
    (b) The purpose of the audit required by paragraph (a)(1) of this 
section is to ensure that the procedures outlined in these regulations 
are implemented. To conduct the audit required by paragraph (a)(1) of 
this section, OIEP will select an independent audit firm that will:
    (1) Select a statistically valid audit sample of recent student 
counts and student transportation reports; and
    (2) Analyze these reports to determine adherence to the requirements 
of this part and accuracy in reporting.



Sec.  39.410  What qualifications must an audit firm meet to be considered 
for auditing ISEP administration?

    To be considered for auditing ISEP administration under this 
subpart, an independent audit firm must:
    (a) Be a licensed Certified Public Accountant Firm that meets all 
requirements for conducting audits under the Federal Single Audit Act;
    (b) Not be under investigation or sanction for violation of 
professional audit standards or ethics;
    (c) Certify that it has conducted a conflict of interests check and 
that no conflict exists; and
    (d) Be selected through a competitive bidding process.



Sec.  39.411  How will the auditor report its findings?

    (a) The auditor selected under Sec.  39.410 must:
    (1) Provide an initial draft report of its findings to the governing 
board or responsible Federal official for the school(s) involved; and
    (2) Solicit, consider, and incorporate a response to the findings, 
where submitted, in the final audit report.
    (b) The auditor must submit a final report to the Assistant 
Secretary--Indian Affairs and all tribes served by each school involved. 
The report must include all documented exceptions to the requirements of 
this part, including those exceptions that:
    (1) The auditor regards as negligible;
    (2) The auditor regards as significant, or as evidence of 
incompetence on the part of responsible officials, and that must be 
resolved in a manner similar to significant audit exceptions in a fiscal 
audit; or
    (3) Involve fraud and abuse.
    (c) The auditor must immediately report exceptions involving fraud 
and abuse directly to the Department of the Interior Inspector General's 
office.



Sec.  39.412  What sanctions apply for failure to comply with this subpart?

    (a) The employer of a responsible administrative official must take 
appropriate personnel action if the official:

[[Page 216]]

    (1) Submits false or fraudulent ISEP-related counts;
    (2) Submits willfully inaccurate counts of student participation in 
weighted program areas; or
    (3) Certifies or verifies submissions described in paragraphs (a)(1) 
or (a)(2) of this section.
    (b) Unless prohibited by law, the employer must report:
    (1) Notice of final Federal personnel action to the tribal governing 
body and tribal school board; and
    (2) Notice of final tribal or school board personnel action to the 
Director of OIEP.



Sec.  39.413  Can a school appeal the verification of the count?

    Yes, a school may appeal to the Director any administrative action 
disallowing any academic, transportation, supplemental program or 
residential count. In this appeal, the school may provide evidence to 
indicate the student's eligibility, membership or residency or adequacy 
of a program for all or a portion of school year. The school must follow 
the applicable appeals process in 25 CFR part 2 or 25 CFR part 900, 
subpart L.



                       Subpart E_Contingency Fund

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec.  39.500  What emergency and contingency funds are available?

    The Secretary:
    (a) Must reserve 1 percent of funds from the allotment formula to 
meet emergencies and unforeseen contingencies affecting educational 
programs;
    (b) Can carry over to the next fiscal year a maximum of 1 percent 
the current year funds; and
    (c) May distribute all funds in excess of 1 percent equally to all 
schools or distribute excess as a part of ISEP.



Sec.  39.501  What is an emergency or unforeseen contingency?

    An emergency or unforeseen contingency is an event that meets all of 
the following criteria:
    (a) It could not be planned for;
    (b) It is not the result of mismanagement, malfeasance, or willful 
neglect;
    (c) It is not covered by an insurance policy in force at the time of 
the event;
    (d) The Assistant Secretary determines that Bureau cannot reimburse 
the emergency from the facilities emergency repair fund; and
    (e) It could not have been prevented by prudent action by officials 
responsible for the educational program.



Sec.  39.502  How does a school apply for contingency funds?

    To apply for contingency funds, a school must send a request to the 
ELO. The ELO must send the request to the Director for consideration 
within 48 hours of receipt. The Director will consider the severity of 
the event and will attempt to respond to the request as soon as 
possible, but in any event within 30 days.



Sec.  39.503  How can a school use contingency funds?

    Contingency funds can be used only for education services and 
programs, including repair of educational facilities.



Sec.  39.504  May schools carry over contingency funds 
to a subsequent fiscal year?

    Bureau-operated schools may carry over funds to the next fiscal 
year.



Sec.  39.505  What are the reporting requirements for the use 
of the contingency fund?

    (a) At the end of each fiscal year, Bureau/OIEP shall send an annual 
report to Congress detailing how the Contingency Funds were used during 
the previous fiscal year.
    (b) By October 1 of each year, the Bureau must send a letter to each 
school and each tribe operating a school listing the allotments from the 
Contingency Fund.



                Subpart F_School Board Training Expenses

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.

[[Page 217]]



Sec.  39.600  Are Bureau-operated school board expenses funded by ISEP limited?

    Yes. Bureau-operated schools are limited to $8,000 or one percent 
(1%) of ISEP allotted funds (not to exceed $15,000).



Sec.  39.601  Is school board training for Bureau-operated schools 
considered a school board expense subject to the limitation?

    No, school board training for Bureau-operated schools is not 
considered a school board expense subject to the limitation in Sec.  
39.600.



Sec.  39.603  Is school board training required for all Bureau-funded schools?

    Yes. Any new member of a local school board or an agency school 
board must complete 40 hours of training within one year of appointment, 
provided that such training is recommended, but is not required, for a 
tribal governing body that serves in the capacity of a school board.



Sec.  39.604  Is there a separate weight for school board training 
at Bureau-operated schools?

    Yes. There is an ISEP weight not to exceed 1.2 WSUs to cover school 
board training and expenses at Bureau-operated schools.



                    Subpart G_Student Transportation

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec.  39.700  What is the purpose of this subpart?

    (a) This subpart covers how transportation mileage and funds for 
schools are calculated under the ISEP transportation program. The 
program funds transportation of students from home to school and return.
    (b) To use this part effectively, a school should:
    (1) Determine its eligibility for funds using the provisions of 
Sec. Sec.  39.702 through 39.708;
    (2) Calculate its transportation miles using the provisions of 
Sec. Sec.  39.710 and 39.711; and
    (3) Submit the required reports as required by Sec. Sec.  39.721 and 
39.722.



Sec.  39.701  What definitions apply to terms used in this subpart?

    ISEP means the Indian School Equalization Program.
    Transportation mileage count week means the last full week in 
September.
    Unimproved roads means unengineered earth roads that do not have 
adequate gravel or other aggregate surface materials applied and do not 
have drainage ditches or shoulders.

                          Eligibility for Funds



Sec.  39.702  Can a school receive funds to transport residential students 
using commercial transportation?

    A school transporting students by commercial bus, train, airplane, 
or other commercial modes of transportation will be funded at the cost 
of the commercial ticket for:
    (a) The trip from home to school in the Fall;
    (b) The round-trip return home at Christmas; and
    (c) The return trip home at the end of the school year.



Sec.  39.703  What ground transportation costs are covered for students 
traveling by commercial transportation?

    This section applies only if a school transports residential 
students by commercial bus, train or airplane from home to school. The 
school may receive funds for the ground miles that the school has to 
drive to deliver the students or their luggage from the bus, train, or 
plane terminal to the school.



Sec.  39.704  Are schools eligible to receive chaperone expenses 
to transport residential students?

    Yes. Schools may receive funds for actual chaperone expenses, 
excluding salaries, during the transportation of students to and from 
home at the beginning and end of the school year and at Christmas.



Sec.  39.705  Are schools eligible for transportation funds 
to transport special education students?

    Yes. A school that transports a special education student from home 
to a

[[Page 218]]

treatment center and back to home on a daily basis as required by the 
student's Individual Education Plan may count those miles for day 
student funding.



Sec.  39.706  Are peripheral dormitories eligible for day transportation funds?

    Yes. If the peripheral dormitory is required to transport dormitory 
students to the public school, the dormitory may count those miles 
driven transporting students to the public school for day transportation 
funding.



Sec.  39.707  Which student transportation expenses are currently 
not eligible for Student Transportation Funding?

    (a) The following transportation expenses are currently not eligible 
for transportation funding, however the data will be collected under the 
provisions in this subpart:
    (1) Fuel and maintenance runs;
    (2) Transportation home for medical or other emergencies;
    (3) Transportation from school to treatment or special services 
programs;
    (4) Transportation to after-school programs; and
    (5) Transportation for day and boarding school students to attend 
instructional programs less than full-time at locations other than the 
school reporting the mileage.
    (b) Examples of after-school programs covered by paragraph (a)(4) of 
this section include:
    (1) Athletics;
    (2) Band;
    (3) Detention;
    (4) Tutoring, study hall and special classes; and
    (5) Extra-curricular activities such as arts and crafts.



Sec.  39.708  Are miles generated by non-ISEP eligible students eligible 
for transportation funding?

    No. Only miles generated by ISEP-eligible students enrolled in and 
attending a school are eligible for student transportation funding.

                    Calculating Transportation Miles



Sec.  39.710  How does a school calculate annual bus transportation miles 
for day students?

    To calculate the total annual bus transportation miles for day 
students, a school must use the appropriate formula from this section. 
In the formulas, Tu = Miles driven on Tuesday of the transportation 
mileage count week, W = Miles driven on Wednesday of the transportation 
mileage count week, and Th = Miles driven on Thursday of the 
transportation mileage count week.
    (a) For ISEP-eligible day students whose route is entirely over 
improved roads, calculate miles using the following formula:
[GRAPHIC] [TIFF OMITTED] TR28AP05.087

    (b) For ISEP-eligible day students whose route is partly over 
unimproved roads, calculate miles using the following three steps.
    (1) Step 1. Apply the following formula to miles driven over 
improved roads only:
[GRAPHIC] [TIFF OMITTED] TR28AP05.088

    (2) Step 2. Apply the following formula to miles driven over 
unimproved roads only:
[GRAPHIC] [TIFF OMITTED] TR28AP05.089

    (3) Step 3. Add together the sums from steps 1 and 2 to obtain the 
total annual transportation miles.



Sec.  39.711  How does a school calculate annual bus transportation miles 
for residential students?

    To calculate the total annual transportation miles for residential 
students, a school must use the procedures in paragraph (b) of this 
section.
    (a) The school can receive funds for the following trips:
    (1) Transportation to the school at the start of the school year;
    (2) Round trip home at Christmas; and

[[Page 219]]

    (3) Return trip to home at the end of the school year.
    (b) To calculate the actual miles driven to transport students from 
home to school at the start of the school year, add together the miles 
driven for all buses used to transport students from their homes to the 
school. If a school transports students over unimproved roads, the 
school must separate the number of miles driven for each bus into 
improved miles and unimproved miles. The number of miles driven is the 
sum of:
    (1) The number of miles driven on improved roads; and
    (2) The number of miles driven on unimproved roads multiplied by 
1.2.
    (c) The annual miles driven for each school is the sum of the 
mileage from paragraphs (b)(1) and (b)(2) of this section multiplied by 
4.

                         Reporting Requirements



Sec.  39.720  Why are there different reporting requirements 
for transportation data?

    In order to construct an actual cost data base, residential and day 
schools must report data required by Sec. Sec.  39.721 and 39.722.



Sec.  39.721  What transportation information must off-reservation 
boarding schools report?

    (a) Each off-reservation boarding school that provides 
transportation must report annually the information required by this 
section. The report must:
    (1) Be submitted to OIEP by August 1 and cover the preceding school 
year;
    (2) Include a Charter/Commercial and Air Transportation Form signed 
and certified as complete and accurate by the School Principal and the 
appropriate ELO; and
    (3) Include the information required by paragraph (b) of this 
section.
    (b) Each annual transportation report must include the following 
information:
    (1) Fixed vehicle costs, including: the number and type of buses, 
passenger size, and local GSA rental rate and duration of GSA contract;
    (2) Variable vehicle costs;
    (3) Mileage traveled to transport students to and from school on 
school days, to sites of special services, and to extra-curricular 
activities;
    (4) Medical trips;
    (5) Maintenance and Service costs; and
    (6) Driver costs;
    (7) All expenses referred to in Sec.  39.707.



Sec.  39.722  What transportation information must day schools, 
on-reservation boarding schools and peripheral dormitory schools report?

    (a) By August 1 of each year, all schools and peripheral dorms that 
provide transportation must submit a report that covers the preceding 
year. This report must include:
    (1) Fixed vehicle costs and other costs, including: the number and 
type of buses, passenger size, and local GSA rental rate and duration of 
GSA contract;
    (2) Variable vehicle costs;
    (3) Mileage traveled to transport students to and from school on 
school days, to sites of special services, and to extra-curricular 
activities;
    (4) Mileage driven for student medical trips;
    (5) Costs of vehicle maintenance and service cost, including cost of 
miles driven to obtain maintenance and service;
    (6) Driver costs; and
    (7) All expenses referred to in Sec.  39.707.
    (b) In addition, all day schools and on-reservation boarding schools 
must include in their report a Day Student Transportation Form signed 
and certified as complete and accurate by the School Principal and the 
appropriate ELO.

                        Miscellaneous Provisions



Sec.  39.730  Which standards must student transportation vehicles meet?

    All vehicles used by schools to transport students must meet or 
exceed all appropriate Federal motor vehicle safety standards and State 
or Tribal motor vehicle safety standards. The Bureau will not fund 
transportation mileage and costs incurred transporting students in 
vehicles that do not meet these standards.

[[Page 220]]



Sec.  39.731  Can transportation time be used as instruction time 
for day school students?

    No. Transportation time cannot be used as instruction time for day 
school students in meeting the minimum required hours for academic 
funding.



Sec.  39.732  How does OIEP allocate transportation funds to schools?

    OIEP allocates transportation funds based on the types of 
transportation programs that the school provides. To allocate 
transportation funds OIEP:
    (a) Multiplies the one-way commercial costs for all schools by four 
to identify the total commercial costs for all schools;
    (b) Subtracts the commercial cost total from the appropriated 
transportation funds and allocates the balance of the transportation 
funds to each school with a per-mile rate;
    (c) Divides the balance of funds by the sum of the annual day miles 
and the annual residential miles to identify a per-mile rate;
    (d) For day transportation, multiplies the per-mile rate times the 
annual day miles for each school; and
    (e) For residential transportation, multiplies the per mile rate 
times the annual transportation miles for each school.



  Subpart H_Determining the Amount Necessary To Sustain an Academic or 
                           Residential Program

    Source: 70 FR 22205, Apr. 28, 2005, unless otherwise noted.



Sec.  39.801  What is the formula to determine the amount necessary 
to sustain a school's academic or residential program?

    (a) The Secretary's formula to determine the minimum annual amount 
necessary to sustain a Bureau-funded school's academic or residential 
program is as follows:

Student Unit Value x Weighted Student Unit = Annual Minimum Amount per 
student.

    (b) Sections 39.802 through 39.807 explain the derivation of the 
formula in paragraph (a) of this section.
    (c) If the annual minimum amount calculated under this section and 
Sec. Sec.  39.802 through 39.807 is not fully funded, OIEP will pro rate 
funds distributed to schools using the Indian School Equalization 
Formula.



Sec.  39.802  What is the student unit value in the formula?

    The student unit value is the dollar value applied to each student 
in an academic or residential program. There are two types of student 
unit values: the student unit instructional value (SUIV) and the student 
unit residential value (SURV).
    (a) The student unit instructional value (SUIV) applies to a student 
enrolled in an instructional program. It is an annually established 
ratio of 1.0 that represents a student in grades 4 through 6 of a 
typical non-residential program.
    (b) The student unit residential value (SURV) applies to a 
residential student. It is an annually established ratio of 1.0 that 
represents a student in grades 4 through 6 of a typical residential 
program.



Sec.  39.803  What is a weighted student unit in the formula?

    A weighted student unit is an adjusted ratio using factors in the 
Indian School Equalization Formula to establish educational priorities 
and to provide for the unique needs of specific students, such as:
    (a) Students in grades kindergarten through 3 or grades 7 through 
12;
    (b) Special education students;
    (c) Gifted and talented students;
    (d) Distance education students;
    (e) Vocational and industrial education students;
    (f) Native Language Instruction students;
    (g) Small schools;
    (h) Personnel costs;
    (i) Alternative schooling; and
    (j) Early Childhood Education programs.



Sec.  39.804  How is the SUIV calculated?

    The SUIV is calculated by the following 5-step process:
    (a) Step 1. Use the adjusted national average current expenditures 
(ANACE)

[[Page 221]]

of public and private schools determined by data from the U.S. 
Department of Education-National Center of Education Statistics (NCES) 
for the last school year for which data is available.
    (b) Step 2. Subtract the average specific Federal share per student 
(title I part A and IDEA part B) of the total revenue for Bureau-funded 
elementary and secondary schools for the last school year for which data 
is available as reported by NCES (15%).
    (c) Step 3. Subtract the administrative cost grant/agency area 
technical services revenue per student as a percentage of the total 
revenue (current expenditures) of Bureau-funded schools from the last 
year data is available.
    (d) Step 4. Subtract the day transportation revenue per student as a 
percentage of the total revenue (current revenue) Bureau-funded schools 
for the last school year for which data is available.
    (e) Step 5. Add Johnson O'Malley funding. (See the table, in Sec.  
39.805)



Sec.  39.805  What was the student unit for instruction value (SUIV) 
for the school year 1999-2000?

    The process described in Sec.  39.804 is illustrated in the table 
below, using figures for the 1999-2000 school year:

Step 1.........................................     $8,030  ANACE.
Step 2.........................................      -1205  Average specific Federal share of total revenue for
                                                             Bureau-funded schools.
Step 3.........................................       -993  Cost grant/technical services revenue as a
                                                             percentage total revenue.
Step 4.........................................       -658  Transportation revenue as a percentage of the total
                                                             revenue.
Step 5.........................................         85  Johnson O'Malley funding.
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
 



Sec.  39.806  How is the SURV calculated?

    (a) The SURV is the adjusted national average current expenditures 
for residential schools (ANACER) of public and private residential 
schools. This average is determined using data from the Association of 
Boarding Schools.
    (b) Applying the procedure in paragraph (a) of this section, the 
SURV for school year 1999-2000 was $11,000.



Sec.  39.807  How will the Student Unit Value be adjusted annually?

    (a) The student unit instructional value (SUIV) and the student unit 
residential value (SURV) will be adjusted annually to derive the current 
year Student Unit Value (SUV) by dividing the calculated SUIV and the 
SURV into two parts and adjusting each one as shown in this section.
    (1) The first part consists of 85 percent of the calculated SUIV and 
the SURV. OIEP will adjust this portion using the personnel cost of 
living increase of the Department of Defense schools for each year.
    (2) The second part consists of 15 percent the calculated SUIV and 
the SURV. OIEP will adjust this portion using the Consumer Price Index-
Urban of the Department of Labor.
    (b) If the student unit value amount is not fully funded, the 
schools will receive their pro rata share using the Indian School 
Equalization Formula.



Sec.  39.808  What definitions apply to this subpart?

    Adjusted National Average Current Expenditure [ANACE] means the 
actual current expenditures for pupils in fall enrollment in public 
elementary and secondary schools for the last school year for which data 
is available. These expenditures are adjusted annually to reflect 
current year expenditures of federally financed schools' cost of day and 
residential programs.
    Current expenditures means expenses related to classroom 
instruction, classroom supplies, administration, support services-
students and other support services and operations. Current expenditures 
do not include facility operations and maintenance, buildings and 
improvements, furniture, equipment, vehicles, student activities and 
debt retirement.

[[Page 222]]



Sec.  39.809  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part involves 
collections of information subject to the PRA in Sec. Sec.  39.410 and 
39.502. These collections have been approved by OMB under control 
numbers 1076-0122, 1076-0134, and 1076-0163.



           Subpart I_Interim Maintenance and Minor Repair Fund

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, 
June 9, 2005.



Sec.  39.900  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.



Sec.  39.901  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.  39.902  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.  39.903  Use of funds.

    Funds allocated under this provision for maintenance and minor 
repair shall be used for no other purpose.



Sec.  39.904  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. 
Redesignated at 70 FR 33702, June 9, 2005.



Sec.  39.1000  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.

[[Page 223]]



Sec.  39.1001  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.  39.1002  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 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.  39.1003  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

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982. Redesignated at 70 FR 33702, 
June 9, 2005.



Sec.  39.1100  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.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Redesignated and amended at 70 FR 33702, June 9, 2005]



Sec.  39.1101  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.

[[Page 224]]



        Subpart L_Contract School Operation and Maintenance Fund

    Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted. 
Redesignated at 70 FR 33702, June 9, 2005.



Sec.  39.1200  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.  39.1201  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.  39.1202  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 if supplemental operation and 
maintenance funds were included in a school's fiscal year 1979 3100 
contract funds.

[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982. 
Redesignated and amended at 70 FR 33702, June 9, 2005]



Sec.  39.1203  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

[[Page 225]]

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 TRIBAL COLLEGES AND UNIVERSITIES AND DIN[Eacute] COLLEGE--
Table of Contents



                 Subpart A_Applicability and Definitions

Sec.
41.1 When does this subpart apply?
41.3 What definitions are needed?
41.5 How is ISC/FTE calculated?
41.7 What happens if false information is submitted?

               Subpart B_Tribal Colleges and Universities

41.9 What is the purpose of this subpart?
41.11 Who is eligible for financial assistance under this subpart?
41.13 For what activities can financial assistance to Tribal colleges 
          and universities be used?
41.15 What activities are prohibited?
41.17 What is the role of the Secretary of Education?
41.19 How can a Tribal college or university establish eligibility to 
          receive a grant?
41.21 How can a Tribe appeal the results of an eligibility study?
41.23 Can a Tribal college or university request a second eligibility 
          study?
41.25 How does the Tribal college or university apply for a grant?
41.27 When can the Tribal college or university expect a decision on its 
          application?
41.29 How will a grant be awarded?
41.31 When will the Tribal college or university receive funding?
41.33 What if there isn't enough money to pay the full grant amount?
41.35 What will happen if the Tribal college or university doesn't 
          receive its appropriate share?
41.37 Is the Tribal college or university eligible for other grants?
41.39 What reports does the Tribal college or university need to 
          provide?
41.41 Can the Tribal college or university receive technical assistance?
41.43 How must the Tribal college or university administer its grant?
41.45 How does the Tribal college or university apply for programming 
          grants?
41.47 Are Tribal colleges or universities eligible for endowments?

                      Subpart C_Din[eacute] College

41.49 What is the purpose of this subpart?
41.51 What is the scope of this subpart?
41.53 How does Din[eacute] College request financial assistance?
41.55 How are grant funds processed?
41.57 When will the application be reviewed?
41.59 When will the funds be paid?
41.61 Is Din[eacute] College eligible to receive other grants?
41.63 How can financial assistance be used?
41.65 What reports must be provided?
41.67 Can Din[eacute] College receive technical assistance?
41.69 How must Din[eacute] College administer its grant?
41.71 Can Din[eacute] College appeal an adverse decision under a grant 
          agreement by the Director?

    Authority: Public Law 95-471, Oct. 17, 1978, 92 Stat. 1325; amended 
Public Law 98-192, Dec. 1, 1983, 97 Stat. 1335; Public Law 99-428, Sept. 
30, 1986, 100 Stat. 982; Public Law 105-244, Oct. 7, 1998, 112 Stat. 
1619; Public Law 110-315, Aug. 14, 2008, 122 Stat. 3460; 25 U.S.C. 1801 
et seq.; Public Law 98-192, Dec. 15, 1971, 85 Stat. 646; and Public Law 
110-315, Aug. 14, 2008, 122 Stat. 3468; 25 U.S.C. 640a et seq.

    Source: 81 FR 38587, June 14, 2016, unless otherwise noted.



                 Subpart A_Applicability and Definitions



Sec.  41.1  When does this subpart apply?

    The provisions in this subpart A apply to subparts B and C.

[[Page 226]]



Sec.  41.3  What definitions are needed?

    As used in this part:
    Academic facilities mean structures suitable for use as:
    (1) Classrooms, laboratories, libraries, and related facilities 
necessary or appropriate for instruction of students;
    (2) Research facilities;
    (3) Facilities for administration of educational or research 
programs;
    (4) Dormitories or student services buildings; or
    (5) Maintenance, storage, support, or utility facilities essential 
to the operation of the foregoing facilities.
    Academic term means a semester, trimester, or other such period (not 
less than six weeks in duration) into which a Tribal college or 
university normally subdivides its academic year, but does not include a 
summer term.
    Academic year means a twelve month period established by a Tribal 
college or university as the annual period for the operation of the 
Tribal college's or university's education programs.
    Assistant Secretary means the Assistant Secretary--Indian Affairs of 
the Department of the Interior.
    BIE means the Bureau of Indian Education.
    College or university means an institution of higher education that 
is formally controlled, formally sanctioned, or chartered by the 
governing body of an Indian Tribe or Tribes. To qualify under this 
definition, the college or university must:
    (1) Be the only institution recognized by the Department for the 
Tribe, excluding Din[eacute] College; and
    (2) If under the control, sanction, or charter of more than one 
Tribe, be the only institution recognized by the Department for at least 
one Tribe that currently has no other formally controlled, formally 
sanctioned, or chartered college or university.
    Department means the Department of the Interior.
    Director means the Director of the Bureau of Indian Education.
    Eligible continuing education units (CEUs) means non-degree credits 
that meet the criteria established by the International Association of 
Continuing Education and Training.
    Full-time means registered for 12 or more credit hours for an 
academic term.
    Indian Student Count (ISC) or Indian Full-Time Equivalent (FTE) 
means a number equal to the total number of Indian students enrolled at 
a Tribal college or university, determined according to the formula in 
Sec.  41.5.
    Indian student means a student who is a member of an Indian Tribe, 
or a biological child of a living or deceased member of an Indian Tribe. 
Documentation is required to verify eligibility as a biological child of 
a living or deceased member of an Indian Tribe, and may include birth 
certificate and marriage license; Tribal records of student's parent; 
Indian Health Service eligibility cards; other documentation necessary 
to authenticate a student as eligible to be counted as an Indian student 
under this definition.
    Indian Tribe means an Indian Tribe, band, nation, pueblo, rancheria, 
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, to be listed in the 
Federal Register pursuant to 25 CFR 83.5(a) as recognized by and 
eligible to receive services from the Bureau of Indian Affairs.
    Institution of higher education means an institution as defined by 
section 1001(a) of Title 20 of the United States Code, except that 
clause (2) of such section is not applicable and the reference to 
Secretary in clause (5)(A) of such section will be deemed to refer to 
the Secretary of the Interior.
    National Indian organization means an organization which the 
Secretary finds to be nationally based, represents a substantial Indian 
constituency and has expertise in the fields of Tribal colleges and 
universities, and Indian higher education.
    NCCA means the Navajo Community College Act of 1978, as amended (25 
U.S.C. 640a et seq.).
    Operating expenses of education programs means the obligations and 
expenditures of a Tribal college or university for postsecondary 
education, except for obligations and expenditures

[[Page 227]]

for acquisition or construction of academic facilities. Permissible 
expenditures may include:
    (1) Administration;
    (2) Instruction;
    (3) Maintenance and repair of facilities; and
    (4) Acquisition and upgrade of equipment, technological equipment, 
and other physical resources.
    Part-time means registered for less than 12 credit hours for an 
academic term.
    Satisfactory progress means satisfactory progress toward a degree or 
certificate as defined by the Tribal college or university.
    Secretary, unless otherwise designated, means the Secretary of the 
Interior, or his/her duly authorized representative.
    TCCUA means the Tribally Controlled Colleges and Universities 
Assistance Act of 1978, as amended (25 U.S.C. 1801 et seq.).
    You or your means the Tribal college or university.



Sec.  41.5  How is ISC/FTE calculated?

    (a) ISC is calculated on the basis of eligible registrations of 
Indian students as of the conclusion of the third week of each academic 
term.
    (b) To calculate ISC for an academic term, begin by adding all 
credit hours of full-time Indian students and all credit hours of part-
time Indian students, including full-time and part-time distance 
education Indian students, who are registered at the conclusion of the 
third week of the academic term.
    (c) Credit hours earned by Indian students who have not obtained a 
high school degree or its equivalent may be added if you have 
established criteria for the admission of such students on the basis of 
their ability to benefit from the education or training offered. You 
will be presumed to have established such criteria if your admission 
procedures include counseling or testing that measures students' 
aptitude to successfully complete the courses in which they enroll.
    (d) No credit hours earned by an Indian student attending high 
school and applied towards the student's high school degree or its 
equivalent may be counted toward computation of ISC; and no credit hours 
earned by an Indian student not making satisfactory progress toward a 
degree or certificate may count toward the ISC.
    (e) If ISC is being calculated for a fall term, add to the 
calculation in paragraph (b) of this section any credits earned in 
classes offered during the preceding summer term.
    (f) Add to the calculation in paragraph (b) of this section those 
credits being earned in an eligible continuing education program at the 
conclusion of the third week of the academic term. Determine the number 
of those credits as follows:
    (1) For institutions on a semester system: One credit for every 15 
contact hours and
    (2) For institutions on a quarter system: One credit for every 10 
contact hours of participation in an organized continuing education 
experience under responsible sponsorship, capable direction, and 
qualified instruction, as described in the criteria established by the 
International Association for Continuing Education and Training. Limit 
the number of calculated eligible continuing education credits to 10 
percent of your ISC.
    (g) Divide by 12 the final calculation in paragraph (f) of this 
section. The formula for the full calculation is expressed 
mathematically as:

ISC = (FTCR + PTCR + SCR + CECR)/12

    (h) In the formula in paragraph (g) of this section, the 
abbreviations used have the following meanings:
    (1) FTCR = the number of credit hours carried by full-time Indian 
students (students carrying 12 or more credit hours at the end of the 
third week of each academic term); and
    (2) PTCR = the number of credit hours carried by part-time Indian 
students (students carrying fewer than 12 credit hours at the end of the 
third week of each academic term).
    (3) SCR = in a fall term, the number of credit hours earned during 
the preceding summer term.

[[Page 228]]

    (4) CECR = the number of credit hours being earned in an eligible 
continuing education program at the conclusion of the third week of the 
academic term, in accordance with paragraph (f)(2) of this section.



Sec.  41.7  What happens if false information is submitted?

    Persons submitting or causing to be submitted any false information 
in connection with any application, report, or other document under this 
part may be subject to criminal prosecution under provisions such as 
sections 371 or 1001 of Title 18, U.S. Code.



               Subpart B_Tribal Colleges and Universities



Sec.  41.9  What is the purpose of this subpart?

    This subpart prescribes procedures for providing financial and 
technical assistance under the TCCUA for the operation and improvement 
of Tribal colleges and universities and advancement of educational 
opportunities for Indian students. This subpart does not apply to 
Din[eacute] College.



Sec.  41.11  Who is eligible for financial assistance under this subpart?

    (a) A Tribal college or university is eligible for financial 
assistance under this subpart only if it:
    (1) Is governed by a board of directors or board of trustees, a 
majority of whom are Indians;
    (2) Demonstrates adherence to stated goals, a philosophy, or a plan 
of operation directed to meet the needs of Indians;
    (3) Has a student body that is more than 50 percent Indian (unless 
it has been in operation for less than one year);
    (4) Is either:
    (i) Accredited by a nationally recognized accrediting agency or 
association determined by the Secretary of Education to be a reliable 
authority with regard to the quality of training offered; or
    (ii) Is making reasonable progress toward accreditation according to 
such agency or association;
    (5) Has received a positive determination after completion of an 
eligibility study; and
    (6) Complies with the requirements of Sec.  41.19.
    (b) Priority in grants is given to institutions that were in 
operation on October 17, 1978, and that have a history of service to 
Indian people.



Sec.  41.13  For what activities can financial assistance to Tribal colleges 
and universities be used?

    Tribal colleges and universities may use financial assistance under 
this subpart to defray expenditures for academic, educational, and 
administrative purposes and for the operation and maintenance of the 
college or university.



Sec.  41.15  What activities are prohibited?

    Tribal colleges and universities must not use financial assistance 
awarded under this subpart in connection with religious worship or 
sectarian instruction. However, nothing in this subpart will be 
construed as barring instruction or practice in comparative religions or 
cultures or in languages of Indian Tribes.



Sec.  41.17  What is the role of the Secretary of Education?

    (a) The Secretary may enter into an agreement with the Secretary of 
Education to obtain assistance to:
    (1) Develop plans, procedures, and criteria for eligibility studies 
required under this subpart; and
    (2) Conduct such studies.
    (b) BIE must consult with the Secretary of Education to determine 
the reasonable number of students required to support a Tribal college 
or university.



Sec.  41.19  How can a Tribal college or university establish eligibility 
to receive a grant?

    (a) Before a Tribal college or university can apply for an initial 
grant under this part, the governing body of one or more Indian Tribes 
must request a determination of eligibility on the college's or 
university's behalf.
    (b) Within 30 days of receiving a resolution or other duly 
authorized request from the governing body of one or more

[[Page 229]]

Indian Tribes, BIE will initiate an eligibility study to determine 
whether there is justification to encourage and maintain a Tribal 
college or university.
    (c) The eligibility study will analyze the following factors:
    (1) Financial feasibility based upon reasonable potential 
enrollment; considering:
    (i) Tribal, linguistics, or cultural differences;
    (ii) Isolation;
    (iii) Presence of alternate educational sources;
    (iv) Proposed curriculum;
    (2) Levels of Tribal matriculation in and graduation from 
postsecondary educational institutions; and
    (3) The benefits of continued and expanded educational opportunities 
for Indian students.
    (d) Based upon results of the study, the Director will send the 
Tribe a written determination of eligibility.
    (e) The Secretary and the BIE, to the extent practicable, will 
consult with national Indian organizations and with Tribal governments 
chartering the colleges or universities being considered.



Sec.  41.21  How can a Tribe appeal the results of an eligibility study?

    If a Tribe receives a negative determination under Sec.  41.19(d), 
it may submit an appeal to the Assistant Secretary within 45 days.
    (a) Following the timely filing of a Tribe's notice of appeal, the 
Tribal college or university and the Tribe have a right to a formal 
review of the eligibility study, including a hearing upon reasonable 
notice within 60 days. At the hearing, the Tribal college or university 
and the appealing Tribe may present additional evidence or arguments to 
justify eligibility.
    (b) Within 45 days of the hearing, the Assistant Secretary will 
issue a written ruling confirming, modifying, or reversing the original 
determination. The ruling will be final and BIE will mail or deliver it 
within one week of its issuance.
    (c) If the Assistant Secretary does not reverse the original 
negative determination, the ruling will specify the grounds for the 
decision and state the manner in which the determination relates to each 
of the factors in Sec.  41.11.



Sec.  41.23  Can a Tribal college or university request 
a second eligibility study?

    If a Tribe is not successful in its appeal under Sec.  41.21, it can 
request another eligibility study 12 months or more after the date of 
the negative determination.



Sec.  41.25  How does a Tribal college or university apply for a grant?

    (a) If the Tribal college or university receives a positive 
determination of the eligibility study under Sec.  41.19(d), it is 
entitled to apply for financial assistance under this subpart.
    (b) To be considered for assistance, a Tribal college or university 
must submit an application by or before June 1st of the year preceding 
the academic year for which the Tribal college or university is 
requesting assistance. The application must contain the following:

------------------------------------------------------------------------
    Required information                   Required details
------------------------------------------------------------------------
(1) Identifying information.  (i) Name and address of the Tribal college
                               or university.
                              (ii) Names of the governing board members,
                               and the number of its members who are
                               Indian.
                              (iii) Name and address of the Tribe or
                               Tribes that control or have sanctioned or
                               chartered the Tribal college or
                               university.
(2) Eligibility verification  The date on which an eligibility
                               determination was received.
(3) Curriculum materials....  (i) A statement of goals, philosophy, or
                               plan of operation demonstrating how the
                               education program is designed to meet the
                               needs of Indians.
                              (ii) A curriculum, which may be in the
                               form of a college catalog or similar
                               publication, or information located on
                               the Tribal college or university Web
                               site.
(4) Financial information...  (i) A proposed budget showing total
                               expected education program operating
                               expenses and expected revenues from all
                               sources for the academic year to which
                               the information applies.
                              (ii) A description of record-keeping
                               procedures used to track fund
                               expenditures and to audit and monitor
                               funded programs.

[[Page 230]]

 
(5) Enrollment information..  (i) If the Tribal college or university
                               has been in operation for more than one
                               year, a statement of the total number of
                               ISC (FTE Indian students) and the total
                               number of all FTE students. Grantees may
                               exclude high school students for the
                               purpose of calculating the total number
                               of FTE students.
                              (ii) If the Tribal college or university
                               has not yet begun operations, or has been
                               in operation for less than one year, a
                               statement of expected enrollment,
                               including the total number of FTE
                               students and the ISC (FTE Indian
                               students) and may also require
                               verification of the number of registered
                               students after operations have started.
(6) Assurances and requests.  (i) Assurance that the Tribal college or
                               university will not deny admission to any
                               Indian student because that student is,
                               or is not, a member of a specific Tribe.
                              (ii) Assurance that the Tribal college or
                               university will comply with the
                               requirements in Sec.   41.39 of this
                               subpart.
                              (iii) A request and justification for a
                               specific waiver of any requirement of 25
                               CFR part 276 which a Tribal college or
                               university believe to be inappropriate.
(7) Certification...........  Certification by the chief executive that
                               the information on the application is
                               complete and correct.
------------------------------------------------------------------------

    (c) Material submitted in a Tribal college's or university's initial 
successful grant application will be retained by the BIE. A Tribal 
college or university submitting a subsequent application for a grant, 
must either confirm the information previously submitted remains 
accurate or submit updated information, as necessary.



Sec.  41.27  When can the Tribal college or university expect a decision 
on its application?

    Within 45 days of receiving an application, the Director will notify 
the Tribal college or university in writing whether or not the 
application has been approved.
    (a) If the Director approves the application, written notice will 
explain when the BIE will send the Tribal college or university a grant 
agreement under Sec.  41.19.
    (b) If the Director disapproves the application, written notice will 
include:
    (1) The reasons for disapproval; and
    (2) A statement advising the Tribal college or university of the 
right to amend or supplement the Tribal college's or university's 
application within 45 days.
    (c) The Tribal college or university may appeal a disapproval or a 
failure to act within 45 days of receipt following the procedures in 
Sec.  41.21.



Sec.  41.29  How will a grant be awarded?

    If the Director approves the Tribal college's or university's 
application, the BIE will send the Tribal college or university a grant 
agreement that incorporates the Tribal college's or university's 
application and the provisions required by Sec.  41.25. The Tribal 
college or university grant will be for the fiscal year starting after 
the approval date of the application.
    (a) The BIE will generally calculate the amount of the Tribal 
college or university grant using the following procedure:
    (1) Begin with a base amount of $8,000 (adjusted annually for 
inflation);
    (2) Multiply the base amount by the number of FTE Indian students in 
attendance during each academic term; and
    (3) Divide the resulting sum by the number of academic terms in the 
academic year.
    (b) All grants under this section are subject to availability of 
appropriations.
    (c) If there are insufficient funds to pay the amount calculated 
under paragraph (a) of this section, BIE will reduce the grant amount 
awarded to each eligible Tribal college or university on a pro rata 
basis.



Sec.  41.31  When will the Tribal college or university receive funding?

    (a) BIE will authorize payments equal to 95 percent of funds 
available for allotment by either July 1 or within 14 days after 
appropriations become available, with the remainder of the payment made 
no later than September 30.
    (b) BIE will not commingle funds appropriated for grants under this 
subpart with other funds expended by the BIE.

[[Page 231]]



Sec.  41.33  What if there isn't enough money to pay the full grant amount?

    This section applies if BIE has to reduce payments under Sec.  
41.29(c).
    (a) If additional funds have not been appropriated to pay the full 
amount of grants under this part on or before June 1st of the year, the 
BIE will notify all grant recipients in writing. The Tribal college or 
university must submit a written report to the BIE on or before July 1st 
explaining how much of the grant money remains unspent.
    (b) After receiving the Tribal college's or university's report 
under paragraph (a) of this section, BIE will:
    (1) Reallocate the unspent funds using the formula in Sec.  41.29 in 
proportion to the amount of assistance to which each grant recipient is 
entitled but has not received;
    (2) Ensure that no Tribal college or university will receive more 
than the total annual cost of its education programs;
    (3) Collect unspent funds as necessary for redistribution to other 
grantees under this section; and
    (4) Make reallocation payments on or before August 1st of the 
academic year.



Sec.  41.35  What will happen if the Tribal college or university 
doesn't receive its appropriate share?

    (a) If the BIE determines the Tribal college or university has 
received financial assistance to which the Tribal college or university 
was not entitled, BIE will:
    (1) Promptly notify the Tribal college or university; and
    (2) Reduce the amount of the Tribal college's or university's 
payments under this subpart to compensate for any overpayments or 
otherwise attempt to recover the overpayments.
    (b) If a Tribal college or university has received less financial 
assistance than the amount to which the Tribal college or university was 
entitled, the Tribal college or university should promptly notify the 
BIE. If the BIE confirms the miscalculation, BIE will adjust the amount 
of the Tribal college's or university's payments for the same or 
subsequent academic years to compensate for the underpayments. This 
adjustment will come from the Department's general funds and not from 
future appropriated funds.



Sec.  41.37  Is the Tribal college or university eligible for other grants?

    Yes. Eligibility for grants under this subpart does not bar a Tribal 
college or university from receiving financial assistance under any 
other Federal program.



Sec.  41.39  What reports does the Tribal college or university 
need to provide?

    (a) The Tribal college or university must provide the BIE, on or 
before December 1 of each year, a report that includes:
    (1) An accounting of the amounts and purposes for which the Tribal 
college or university spent assistance received under this part during 
the preceding academic year;
    (2) An accounting of the annual cost of the Tribal college's or 
university's education programs from all sources for the academic year; 
and
    (3) A final performance report based upon the criteria the Tribal 
college's or university's goals, philosophy, or plan of operation.
    (b) The Tribal college or university must report to the BIE their 
FTE Indian student enrollment for each academic term of the academic 
year within three (3) weeks of the date the Tribal college or university 
makes the FTE calculation.



Sec.  41.41  Can the Tribal college or university receive technical assistance?

    (a) If a Tribal college or university sends the BIE a written 
request for technical assistance, BIE will respond within 30 days.
    (b) The BIE will provide technical assistance either directly or 
through annual contract to a national Indian organization that the 
Tribal college or university designates.
    (c) Technical assistance may include consulting services for 
developing programs, plans, and eligibility studies and accounting, and 
other services or technical advice.

[[Page 232]]



Sec.  41.43  How must the Tribal college or university administer its grant?

    In administering any grant provided under this subpart, a Tribal 
college or university must:
    (a) Provide services or assistance under this subpart in a fair and 
uniform manner;
    (b) Not deny admission to any Indian student because they either 
are, or are not, a member of a specific Indian Tribe; and
    (c) Comply with part 276 of this chapter, unless the BIE expressly 
waives specific inappropriate provisions of part 276 in response to a 
Tribal college or university request and justification for a waiver.



Sec.  41.45  How does the Tribal college or university apply 
for programming grants?

    (a) Tribes and Tribal entities may submit a written request to the 
BIE for a grant to conduct planning activities for the purpose of 
developing proposals for the establishment of Tribally controlled 
colleges and universities, or to determine the need and potential for 
the establishment of such colleges and universities. BIE will provide 
written notice to the Tribal college or university of its determination 
on the grant request within 30 days.
    (b) Subject to the availability of appropriations, BIE may provide 
such grants to up to five Tribes and Tribal entities in the amount of 
$15,000 each.



Sec.  41.47  Are Tribal colleges or universities eligible for endowments?

    Yes. Tribal colleges and universities are eligible for endowments 
under a signed agreement between the Tribal college and university and 
the Secretary as described in 25 U.S.C. 1832. Endowments must be 
invested in a trust fund and the Tribal college or university may only 
use the interest deposited for the purpose of defraying expenses 
associated with the operation of the Tribal college or university (25 
U.S.C. 1833).



                      Subpart C_Din[eacute] College



Sec.  41.49  What is the purpose of this subpart?

    The purpose of this subpart is to assist the Navajo Nation in 
providing education to the members of the Tribe and other qualified 
applicants through a community college, established by that Tribe, known 
as Din[eacute] College. To that end, the regulations in this subpart 
prescribe procedures for providing financial and technical assistance 
for Din[eacute] College under the NCCA.



Sec.  41.51  What is the scope of this subpart?

    The regulations in this subpart are applicable to the provision of 
financial assistance to Din[eacute] College pursuant to NCCA, title II 
of the TCCUA.



Sec.  41.53  How does Din[eacute] College request financial assistance?

    To request financial assistance, Din[eacute] College must submit an 
application. The application must be certified by the Din[eacute] 
College chief executive officer and include:
    (a) A statement of Indian student enrollment and total FTE 
enrollment for the preceding academic year;
    (b) A curriculum description, which may be in the form of a college 
catalog or like publication or information located on the Din[eacute] 
College Web site; and
    (c) A proposed budget showing total expected operating expenses of 
educational programs and expected revenue from all sources for the grant 
year.



Sec.  41.55  How are grant funds processed?

    (a) BIE will identify the budget request for Din[eacute] College 
separately in its annual budget justification.
    (b) BIE will not commingle funds appropriated for grants under this 
subpart with appropriations that are historically expended by the Bureau 
of Indian Affairs for programs and projects normally provided on the 
Navajo Reservation for Navajo beneficiaries.

[[Page 233]]



Sec.  41.57  When will the application be reviewed?

    Within 45 days of receiving the application the BIE will send a 
grant agreement for signature by the Din[eacute] College president or 
his or her designee in an amount determined under Sec.  41.29(a). The 
grant agreement will incorporate the grant application and include the 
provisions required by Sec.  41.25.



Sec.  41.59  When will grant funds be paid?

    (a) Initial grant funds will be paid in an advance installment of 
not less than 40 percent of the funds available for allotment by October 
1st.
    (b) The remainder of the grant funds will be paid by July 1st after 
the BIE adjusts the amount to reflect any overpayments or underpayments 
made in the first disbursement.



Sec.  41.61  Is Din[eacute] College eligible to receive other grants?

    Yes. Eligibility for grants under this subpart does not bar 
Din[eacute] College from receiving financial assistance under any other 
Federal program.



Sec.  41.63  How can financial assistance be used?

    (a) The Din[eacute] College must use financial assistance under this 
subpart only for operation and maintenance, including educations 
programs, annual capital expenditures, major capital improvements, 
mandatory payments, supplemental student services, and improvement and 
expansion, as described in 25 U.S.C. 640c-1(b)(1);
    (b) The Din[eacute] College must not use financial assistance under 
this subpart for religious worship or sectarian instruction. However, 
this subpart does not prohibit instruction about religions, cultures or 
Indian Tribal languages.



Sec.  41.65  What reports must be provided?

    (a) Din[eacute] College must submit on or before December 1st of 
each year a report that includes:
    (1) An accounting of the amounts and purposes for which Din[eacute] 
College spent the financial assistance during the preceding academic 
year;
    (2) The annual cost of Din[eacute] College education programs from 
all sources for the academic year; and
    (3) A final report of Din[eacute] College's performance based upon 
the criteria in its stated goals, philosophy, or plan of operation.
    (b) Din[eacute] College must report its FTE Indian student 
enrollment for each academic term within six weeks of the date it makes 
the FTE calculation.



Sec.  41.67  Can Din[eacute] College receive technical assistance?

    Technical assistance will be provided to Din[eacute] College as 
noted in Sec.  41.41.



Sec.  41.69  How must Din[eacute] College administer its grant?

    In administering any grant provided under this subpart, Din[eacute] 
College must:
    (a) Provide all services or assistance under this subpart in a fair 
and uniform manner;
    (b) Not deny admission to any Indian student because the student is, 
or is not, a member of a specific Indian Tribe; and
    (c) Comply with part 276 of this chapter, unless the BIE expressly 
waives specific inappropriate provisions of part 276 in response to 
Din[eacute] College's request and its justification for a waiver.



Sec.  41.71  Can Din[eacute] College appeal an adverse decision 
under a grant agreement by the Director?

    Din[eacute] College has the right to appeal to the Assistant 
Secretary by filing a written notice of appeal within 45 days of the 
adverse decision. Within 45 days after receiving notice of appeal, the 
Assistant Secretary will conduct a formal hearing at which time the 
Din[eacute] College may present evidence and argument to support its 
appeal. Within 45 days of the hearing, the Assistant Secretary will 
issue a written ruling on the appeal confirming, modifying or reversing 
the decision of the Director. If the ruling does not reverse the adverse 
decision, the Assistant Secretary will state in detail the basis of his/
her ruling. The ruling of the Assistant Secretary on an appeal will be 
final for the Department.

[[Page 234]]



PART 42_STUDENT RIGHTS--Table of Contents



Sec.
42.1 What general principles apply to this part?
42.2 What rights do individual students have?
42.3 How should a school address alleged violations of school policies?
42.4 What are alternative dispute resolution processes?
42.5 When can a school use ADR processes to address an alleged 
          violation?
42.6 When does due process require a formal disciplinary hearing?
42.7 What does due process in a formal disciplinary proceeding include?
42.8 What are a student's due process rights in a formal disciplinary 
          proceeding?
42.9 What are victims' rights in formal disciplinary proceedings?
42.10 How must the school communicate individual student rights to 
          students, parents or guardians, and staff?
42.11 Information collection.

    Authority: 5 U.S.C. 301, Pub. L. 107-110, 115 Stat. 1425.

    Source: 70 FR 22218, Apr. 28, 2005, unless otherwise noted.



Sec.  42.1  What general principles apply to this part?

    (a) This part applies to every Bureau-funded school. The regulations 
in this part govern student rights and due process procedures in 
disciplinary proceedings in all Bureau-funded schools. To comply with 
this part, each school must:
    (1) Respect the constitutional, statutory, civil and human rights of 
individual students; and
    (2) Respect the role of Tribal judicial systems where appropriate.
    (b) All student rights, due process procedures, and educational 
practices should, where appropriate or possible, afford students 
consideration of and rights equal to the student's traditional Native 
customs and practices.



Sec.  42.2  What rights do individual students have?

    Individual students at Bureau-funded schools have, and must be 
accorded, at least the following rights:
    (a) The right to an education that may take into consideration 
Native American or Alaska Native values;
    (b) The right to an education that incorporates applicable Federal 
and Tribal constitutional and statutory protections for individuals; and
    (c) The right to due process in instances of disciplinary actions.



Sec.  42.3  How should a school address alleged violations of school policies?

    (a) In addressing alleged violations of school policies, each school 
must consider, to the extent appropriate, the reintegration of the 
student into the school community.
    (b) The school may address a student violation using alternative 
dispute resolution (ADR) processes or the formal disciplinary process.
    (1) When appropriate, the school should first attempt to use the ADR 
processes described in Sec.  42.4 that may allow resolution of the 
alleged violation without recourse to punitive action.
    (2) Where ADR processes do not resolve matters or cannot be used, 
the school must address the alleged violation through a formal 
disciplinary proceeding under Sec.  42.7 consistent with the due process 
rights described in Sec.  42.7.



Sec.  42.4  What are alternative dispute resolution processes?

    Alternative dispute resolution (ADR) processes are formal or 
informal processes that may allow resolution of the violation without 
recourse to punitive action.
    (a) ADR processes may:
    (1) Include peer adjudication, mediation, and conciliation; and
    (2) Involve appropriate customs and practices of the Indian Tribes 
or Alaska Native Villages to the extent that these practices are readily 
identifiable.
    (b) For further information on ADR processes and how to use them, 
contact the Office of Collaborative Action and Dispute Resolution by:
    (1) Sending an e-mail to: [email protected]; or
    (2) Writing to: Office of Collaborative Action and Dispute 
Resolution, Department of the Interior, 1849 C Street NW., MS 5258, 
Washington, DC 20240.



Sec.  42.5  When can a school use ADR processes to address 
an alleged violation?

    (a) The school may address an alleged violation through the ADR 
processes

[[Page 235]]

described in Sec.  42.4, unless one of the conditions in paragraph (b) 
of this section applies.
    (b) The school must not use ADR processes in any of the following 
circumstances:
    (1) Where the Act requires immediate expulsion (``zero tolerance'' 
laws);
    (2) For a special education disciplinary proceeding where use of ADR 
would not be compatible with the Individuals with Disabilities Education 
Act (Pub. L. 105-17); or
    (3) When all parties do not agree to using alternative dispute 
resolution processes.
    (c) If ADR processes do not resolve matters or cannot be used, the 
school must address alleged violations through the formal disciplinary 
proceeding described in Sec.  42.8.



Sec.  42.6  When does due process require a formal disciplinary hearing?

    Unless local school policies and procedures provide for less, a 
formal disciplinary hearing is required before a suspension in excess of 
10 days or expulsion.



Sec.  42.7  What does due process in a formal disciplinary proceeding include?

    Due process must include written notice of the charges and a fair 
and impartial hearing as required by this section.
    (a) The school must give the student written notice of charges 
within a reasonable time before the hearing required by paragraph (b) of 
this section. Notice of the charges includes:
    (1) A copy of the school policy allegedly violated;
    (2) The facts related to the alleged violation;
    (3) Information about any statements that the school has received 
relating to the charge and instructions on how to obtain copies of those 
statements; and
    (4) Information regarding those parts of the student's record that 
the school will consider in rendering a disciplinary decision.
    (b) The school must hold a fair and impartial hearing before 
imposing disciplinary action, except under the following circumstances:
    (1) If the Act requires immediate removal (such as, if the student 
brought a firearm to school) or if there is some other statutory basis 
for removal;
    (2) In an emergency situation that seriously and immediately 
endangers the health or safety of the student or others; or
    (3) If the student (or the student's parent or guardian if the 
student is less than 18 years old) chooses to waive entitlement to a 
hearing.
    (c) In an emergency situation under paragraph (b)(2) of this 
section, the school:
    (1) May temporarily remove the student;
    (2) Must immediately document for the record the facts giving rise 
to the emergency; and
    (3) Must afford the student a hearing that follows due process, as 
set forth in this part, within ten days.



Sec.  42.8  What are a student's due process rights 
in a formal disciplinary proceeding?

    A student has the following due process rights in a formal 
disciplinary proceeding:
    (a) The right to have present at the hearing the student's parents 
or guardians (or their designee);
    (b) The right to be represented by counsel (legal counsel will not 
be paid for by the Bureau-funded school or the Secretary);
    (c) The right to produce, and have produced, witnesses on the 
student's behalf and to confront and examine all witnesses;
    (d) The right to the record of the disciplinary action, including 
written findings of fact and conclusions;
    (e) The right to administrative review and appeal under school 
policy;
    (f) The right not to be compelled to testify against himself or 
herself; and
    (g) The right to have an allegation of misconduct and related 
information expunged from the student's school record if the student is 
found not guilty of the charges.



Sec.  42.9  What are victims' rights in formal disciplinary proceedings?

    In formal disciplinary proceedings, each school must consider 
victims' rights when appropriate.

[[Page 236]]

    (a) The victim's rights may include a right to:
    (1) Participate in disciplinary proceedings either in writing or in 
person;
    (2) Provide a statement concerning the impact of the incident on the 
victim; and
    (3) Have the outcome explained to the victim and to his or her 
parents or guardian by a school official, consistent with 
confidentiality.
    (b) For the purposes of this part, the victim is the actual victim, 
not his or her parents or guardians.



Sec.  42.10  How must the school communicate individual student rights 
to students, parents or guardians, and staff?

    Each school must:
    (a) Develop a student handbook that includes local school policies, 
definitions of suspension, expulsion, zero tolerance, and other 
appropriate terms, and a copy of the regulations in this part;
    (b) Provide all school staff a current and updated copy of student 
rights and responsibilities before the first day of each school year;
    (c) Provide all students and their parents or guardians a current 
and updated copy of student rights and responsibilities every school 
year upon enrollment; and
    (d) Require students, school staff, and to the extent possible, 
parents and guardians, to confirm in writing that they have received a 
copy and understand the student rights and responsibilities.



Sec.  42.11  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part in Sec. Sec.  
42.6, 42.7, and 42.9 contains collections of information subject to the 
PRA. These collections have been approved by OMB under control number 
1076-0163.



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.

[[Page 237]]

    (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.
    (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:

[[Page 238]]

    (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.
    (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.

[[Page 239]]

    (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 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:

[[Page 240]]

    (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.



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

[[Page 241]]

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.
    (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

[[Page 242]]

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.



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 44_GRANTS UNDER THE TRIBALLY CONTROLLED SCHOOLS ACT--Table of Contents



Sec.
44.101 What directives apply to a grantee under this part?
44.102 Does this part affect existing tribal rights?
44.103 Who is eligible for a grant?
44.104 How can a grant be terminated?
44.105 How does a tribal governing body retrocede a program to the 
          Secretary?
44.106 How can the Secretary revoke an eligibility determination?
44.107 Under what circumstances may the Secretary reassume a program?
44.108 How must the Secretary make grant payments?
44.109 What happens if the grant recipient is overpaid?
44.110 What Indian Self-Determination Act provisions apply to grants 
          under the Tribally Controlled Schools Act?
44.111 Does the Federal Tort Claims Act apply to grantees?
44.112 Information Collection

    Authority: Public Law 107-110, Title 10, Part D, the Native American 
Education Improvement Act, 115 Stat. 2007; Part B, Section 1138, 
Regional Meetings and Negotiated Rulemaking, 115 Stat. 2057.

    Source: 70 FR 22219, Apr. 28, 2005, unless otherwise noted.



Sec.  44.101  What directives apply to a grantee under this part?

    In making a grant under this part the Secretary will use only:
    (a) The Tribally Controlled Schools Act;
    (b) The regulations in this part; and
    (c) Guidelines, manuals, and policy directives agreed to by the 
grantee.



Sec.  44.102  Does this part affect existing tribal rights?

    This part does not:
    (a) Affect in any way the sovereign immunity from suit enjoyed by 
Indian tribes;
    (b) Terminate or change the trust responsibility of the United 
States to any Indian tribe or individual Indian;
    (c) Require an Indian tribe to apply for a grant; or
    (d) Impede awards by any other Federal agency to any Indian tribe or 
tribal organization to administer any Indian program under any other 
law.

[[Page 243]]



Sec.  44.103  Who is eligible for a grant?

    The Secretary can make grants to Indian tribes and tribal 
organizations that operate:
    (a) A school under the provisions of 25 U.S.C. 450 et seq.;
    (b) A tribally controlled school (including a charter school, 
community-generated school or other type of school) approved by tribal 
governing body; or
    (c) A Bureau-funded school approved by tribal governing body.



Sec.  44.104  How can a grant be terminated?

    A grant can be terminated only by one of the following methods:
    (a) Retrocession;
    (b) Revocation of eligibility by the Secretary; or
    (c) Reassumption by the Secretary.



Sec.  44.105  How does a tribal governing body retrocede a program 
to the Secretary?

    (a) To retrocede a program, the tribal governing body must:
    (1) Notify the Bureau in writing, by formal action of the tribal 
governing body; and
    (2) Consult with the Bureau to establish a mutually agreeable 
effective date. If no date is agreed upon, the retrocession is effective 
120 days after the tribal governing body notifies the Bureau.
    (b) The Bureau must accept any request for retrocession that meets 
the criteria in paragraph (a) of this section.
    (c) After the tribal governing body retrocedes a program:
    (1) The tribal governing body decides whether the school becomes 
Bureau-operated or contracted under 25 U.S.C. 450 et seq.; and
    (2) If the tribal governing body decides that the school is to be 
Bureau-operated, the Bureau must provide education-related services in 
at least the same quantity and quality as those that were previously 
provided.



Sec.  44.106  How can the Secretary revoke an eligibility determination?

    (a) In order to revoke eligibility, the Secretary must:
    (1) Provide the tribe or tribal organization with a written notice;
    (2) Furnish the tribe or tribal organization with technical 
assistance to take remedial action; and
    (3) Provide an appeal process.
    (b) The Secretary cannot revoke an eligibility determination if the 
tribe or tribal organization is in compliance with 25 U.S.C. 2505(c).
    (c) The Secretary can take corrective action if the school fails to 
be accredited by January 8, 2005.
    (d) In order to revoke eligibility for a grant, the Secretary must 
send the tribe or tribal organization a written notice that:
    (1) States the specific deficiencies that are the basis of the 
revocation or reassumption; and
    (2) Explains what actions the tribe or tribal organization must take 
to remedy the deficiencies.
    (e) The tribe or tribal organization may appeal a notice of 
revocation or reassumption by requesting a hearing under 25 CFR part 
900, subpart L or P.
    (f) After revoking eligibility, the Secretary will either contract 
the program under 25 U.S.C. 450 et seq. or operate the program directly.



Sec.  44.107  Under what circumstances may the Secretary reassume a program?

    The Secretary may only reassume a program in compliance with 25 
U.S.C. 450m and 25 CFR part 900, subpart P. The tribe or school board 
shall have a right to appeal the reassumption pursuant to 25 CFR part 
900, subpart L.



Sec.  44.108  How must the Secretary make grant payments?

    (a) The Secretary makes two annual grant payments.
    (1) The first payment, consisting of 80 per cent of the amount that 
the grantee was entitled to receive during the previous academic year, 
must be made no later than July 1 of each year; and
    (2) The second payment, consisting of the remainder to which the 
grantee is entitled for the academic year, must be made no later than 
December 1 of each year.

[[Page 244]]

    (b) For funds that become available for obligation on October 1, the 
Secretary must make payments no later than December 1.
    (c) If the Secretary does not make grant payments by the deadlines 
stated in this section, the Secretary must pay interest under the Prompt 
Payment Act. If the Secretary does not pay this interest, the grantee 
may pursue the remedies provided under the Prompt Payment Act.



Sec.  44.109  What happens if the grant recipient is overpaid?

    (a) If the Secretary has mistakenly overpaid the grant recipient, 
then the Secretary will notify the grant recipient of the overpayment. 
The grant recipient must return the overpayment within 30 days after the 
final determination that overpayment occurred.
    (b) When the grant recipient returns the money to the Secretary, the 
Secretary will distribute the money equally to all schools in the 
system.



Sec.  44.110  What Indian Self-Determination Act provisions apply to grants 
under the Tribally Controlled Schools Act?

    (a) The following provisions of 25 CFR part 900 apply to grants 
under the Tribally Controlled Schools Act.
    (1) Subpart F; Standards for Tribal or Tribal Organization 
Management Systems, Sec.  900.45.
    (2) Subpart H; Lease of Tribally-owned Buildings by the Secretary.
    (3) Subpart I; Property Donation Procedures.
    (4) Subpart N; Post-award Contract Disputes.
    (5) Subpart P; Retrocession and Reassumption Procedures.
    (b) To resolve any disputes arising from the Secretary's 
administration of the requirements of this part, the procedures in 
subpart N of part 900 apply if the dispute involves any of the 
following:
    (1) Any exception or problem cited in an audit;
    (2) Any dispute regarding the grant authorized;
    (3) Any dispute involving an administrative cost grant;
    (4) Any dispute regarding new construction or facility improvement 
or repair; or
    (5) Any dispute regarding the Secretary's denial or failure to act 
on a request for facilities funds.



Sec.  44.111  Does the Federal Tort Claims Act apply to grantees?

    Yes, the Federal Tort Claims Act applies to grantees.



Sec.  44.112  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part in Sec.  44.105 
contains collections of information subject to the PRA. These 
collections have been approved by OMB under control number 1076-0163.



PART 46_ADULT EDUCATION PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
46.1 Purpose and scope.
46.2 Definitions.
46.3 Information collection.
46.10 Eligible activities.
46.20 Program requirements.
46.30 Records and reporting requirements.

Subpart B [Reserved]

    Authority: 43 U.S.C. 1457; 25 U.S.C. 2, 9, 13.

    Source: 62 FR 44081, Aug. 19, 1997, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  46.1  Purpose and scope.

    The purpose of the Adult Education Program is to:
    (a) Improve educational opportunities for Indian adults who lack the 
level of literacy skills necessary for effective citizenship and 
productive employment;
    (b) Expand and improve existing programs for delivering adult 
education services, including delivery of these services to 
educationally disadvantaged Indian adults; and

[[Page 245]]

    (c) Encourage the establishment of adult education programs that 
will:
    (1) Enable Indian adults to acquire adult basic educational skills 
necessary for literate functioning;
    (2) Provide Indian adults with sufficient basic education to enable 
them to benefit from job training and retraining programs and to obtain 
and retain productive employment so that they might more fully enjoy the 
benefits and responsibilities of citizenship; and
    (3) Enable Indian adults, who so desire, to continue their education 
to at least the level of completion of adult secondary education.



Sec.  46.2  Definitions.

    As used in this part:
    Adult means an individual who has attained the age of sixteen or is 
beyond the age of compulsory school attendance under State or tribal law 
and not currently enrolled in a formal secondary or post-secondary 
educational program.
    Adult Basic Education (ABE) means instruction designed for an adult 
who:
    (1) Has minimal competence in reading, writing, and computation;
    (2) Cannot speak, read, or write the English language sufficiently 
to allow employment commensurate with the adult's real ability;
    (3) Is not sufficiently competent to meet the educational 
requirements of an adult consumer; or
    (4) In grade level measurements that would be designated as grades 0 
through 8.
    Adult Education means services or instruction below the college 
level for adults who:
    (1) Lack sufficient mastery of basic educational skills to enable 
them to function effectively in society, or
    (2) Do not have a certificate of graduation from a school providing 
secondary education and have not achieved a GED.
    Adult Education Office means the BIA or tribal office administering 
funds appropriated to the BIA, under the TPA, for Adult Education 
programs.
    Adult Secondary Education means instruction designed for an adult 
who:
    (1) Is literate and can function in everyday life, but is not 
proficient as a competitive consumer or employee; or
    (2) Does not have a certificate of graduation (or its equivalent) 
from a school providing secondary education and in grade level 
measurements that would be designated as grades 9 through 12.
    Assistant Secretary means the Assistant Secretary--Indian Affairs, 
Department of the Interior, or his/her designee.
    Bureau means the Bureau of Indian Affairs.
    Department of Education (ED) means the U.S. Department of Education.
    Director means the Director, Office of Indian Education Programs, 
Bureau of Indian Affairs.
    Indian means a person who is a member of, or is at least a one-
fourth degree Indian blood descendent of a member of, an Indian tribe, 
and is eligible for the special programs and services provided by the 
United States through the Bureau of Indian Affairs to Indians because of 
their status as Indians;
    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. 668) that is 
Federally recognized by the United States Government through the 
Secretary of the Interior for the special programs and services provided 
by the Secretary to Indians because of their status as Indians.
    Tribal Priority Allocation (TPA) means the BIA's budget formulation 
process that allows direct tribal government involvement in the setting 
of relative priorities for local operating programs.
    Secretary means the Secretary of the Department of the Interior.
    Service area means the geographic area served by the local Adult 
Education Program.



Sec.  46.3  Information collection.

    Information collection requirements contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned control number 1076-0120. This information is being 
collected to assess the need for adult education programs. The 
information collection is used to manage program resources and

[[Page 246]]

for fiscal accountability and appropriate direct services documentation. 
Response to this request is necessary to obtain or retain a benefit. 
Public reporting burden for this form is estimated to average 4 hours 
per response including time for reviewing instructions, gathering, 
maintaining data, completing and reviewing the form. Direct comments 
regarding the burden estimate or any other aspect of this form to the 
BIA Information Collection Clearance Officer, 1849 C Street NW., 
Washington, DC 20240.

[67 FR 13570, Mar. 25, 2002]



Sec.  46.10  Eligible activities.

    (a) Subject to availability of funds, funds appropriated for the 
BIA's Adult Education Program may be used to support local projects or 
programs designed to:
    (1) Enable Indian adults to acquire basic educational skills, 
including literacy;
    (2) Enable Indian adults to continue their education through the 
secondary school level;
    (3) Establish career education projects intended to improve 
employment opportunities;
    (4) Provide educational services or instruction for elderly, 
disabled, or incarcerated Indian adults;
    (5) Prepare individuals to benefit from occupational training; and
    (6) Teach employment-related skills.
    (b) Funds should not be used to support programs designed solely to 
prepare Indian adults to enter a specific occupation or cluster of 
closely related occupations.
    (c) The Adult Education Program must be implemented in accordance 
with a plan established by the tribe(s) affected by the program. The 
tribe(s) may determine to set standards in addition to those established 
in this part.



Sec.  46.20  Program requirements.

    (a) The Adult Education Office will implement the program or project 
that is designed to address the needs of the Indian adults in the 
service area. To determine the needs of Indian adults in the area, the 
Adult Education Office must consider:
    (1) Elementary/secondary school dropout or absentee rates;
    (2) Average grade level completed;
    (3) Unemployment rates; and
    (4) Other appropriate measures.
    (b) The Adult Education Office, to ensure efforts that no 
duplication of services exists, will identify other services in the 
area, including those offered by Federal, State and Tribal entities, 
that are designed to meet the same needs as those to be addressed by the 
project, and the number of Indian adults who receive those services.
    (c) The Adult Education Office must establish and maintain an 
evaluation plan.
    (1) The plan must be designed to measure the project's effectiveness 
in meeting each objective and the impact of the project on the adults 
involved; and
    (2) The plan must provide procedures for periodic assessment of the 
progress of the project and, if necessary, modification of the project 
as a result of that assessment.
    (d) Subject to the availability of funds, the project is to be 
supported under the funding level established for Adult Education in the 
formulation of the budget under the TPA process.



Sec.  46.30  Records and reporting requirements.

    (a) The Adult Education Office will annually submit a report on the 
previous project year's activities to the Director, Office of Indian 
Education Programs. The report must include the following information:
    (1) The type of eligible activity, under Sec.  46.10, conducted 
under the project(s);
    (2) The number of participants acquiring the GED, high school 
diploma, and other certificates of performance; and
    (3) A narrative summary of the activities conducted under the 
project.
    (b) Each Adult Education Office must:
    (1) Submit any records and information that the Director requires in 
connection with the administration of the program; and
    (2) Comply with any requirements that the Director may impose to 
ensure the accuracy of the reports required by this part.

[[Page 247]]

Subpart B [Reserved]



PART 47_UNIFORM DIRECT FUNDING AND SUPPORT FOR BUREAU-OPERATED SCHOOLS--
Table of Contents



Sec.
47.1 What is the purpose of this part?
47.2 What definitions apply to terms in this part?
47.3 How does a Bureau-operated school find out how much funding it will 
          receive?
47.4 When does OIEP provide funding?
47.5 What is the school supervisor responsible for?
47.6 Who has access to local education financial records?
47.7 What are the expenditure limitations for Bureau-operated schools?
47.8 Who develops the local educational financial plans?
47.9 What are the minimum requirements for the local educational 
          financial plan?
47.10 How is the local educational financial plan developed?
47.11 Can these funds be used as matching funds for other Federal 
          programs?
47.12 Information collection.

    Authority: Pub. L. 107-110, 115 Stat. 1425.

    Source: 70 FR 22221, Apr. 28, 2005, unless otherwise noted.



Sec.  47.1  What is the purpose of this part?

    This part contains the requirements for developing local educational 
financial plans that Bureau-operated schools need in order to receive 
direct funding from the Bureau of Indian Affairs under section 1127 of 
the Act.



Sec.  47.2  What definitions apply to terms in this part?

    Act means the No Child Left Behind Act, Public Law 107-110, enacted 
January 8, 2002. The No Child Left Behind Act reauthorizes and amends 
the Elementary and Secondary Education Act (ESEA) and the amended 
Education Amendments of 1978.
    Budget means that element in the local educational financial plan 
which shows all costs of the plan by discrete programs and sub-cost 
categories.
    Bureau means the Bureau of Indian Affairs in the Department of the 
Interior.
    Consultation means soliciting and recording the opinions of Bureau-
operated school boards regarding each element of the local educational 
financial plan and incorporating these opinions to the greatest degree 
feasible in the development of the local educational financial plan at 
each stage.
    Director means the Director, Office of Indian Education Programs.
    Local educational financial plan means the plan that:
    (1) Programs dollars for educational services for a particular 
Bureau-operated school; and
    (2) Has been ratified in an action of record by the local school 
board or determined by the superintendent under the appeals process in 
25 CFR part 2.
    OIEP means the Office of Indian Education Programs in the Bureau of 
Indian Affairs of the Department of the Interior.
    Secretary means the Secretary of the Interior or a designated 
representative.



Sec.  47.3  How does a Bureau-operated school find out 
how much funding it will receive?

    The Office of Indian Education Programs (OIEP) will notify each 
Bureau-operated school in writing of the annual funding amount it will 
receive as follows:
    (a) No later than July 1 OIEP will let the Bureau-operated school 
know the amount that is 80 percent of its funding; and
    (b) No later than September 30 OIEP will let the Bureau-operated 
school know the amount of the remaining 20 percent.



Sec.  47.4  When does OIEP provide funding?

    By July 1 of each year OIEP will make available for obligation 80 
percent of the funds for the fiscal year that begins on the following 
October 1.



Sec.  47.5  What is the school supervisor responsible for?

    Each Bureau-operated school's school supervisor has the 
responsibilities in this section. The school supervisor must do all of 
the following:
    (a) Ensure that the Bureau-operated school spends funds in 
accordance with the local educational financial plan, as ratified or 
amended by the school board;

[[Page 248]]

    (b) Sign all documents required to obligate or pay funds or to 
record receipt of goods and services;
    (c) Report at least quarterly to the local school board on the 
amounts spent, obligated, and currently remaining in funds budgeted for 
each program in the local educational financial plan;
    (d) Recommend changes in budget amounts to carry out the local 
educational financial plan, and incorporate these changes in the budget 
as ratified by the local school board, subject to provisions for appeal 
and overturn; and
    (e) Maintain expenditure records in accordance with financial 
planning system procedures.



Sec.  47.6  Who has access to local education financial records?

    The Comptroller General, the Assistant Secretary, the Director, or 
any of their duly authorized representatives have access for audit and 
explanation purposes to any of the local school's accounts, documents, 
papers, and records which are related to the Bureau-operated schools' 
operation.



Sec.  47.7  What are the expenditure limitations for Bureau-operated schools?

    Each Bureau-operated school must spend all allotted funds in 
accordance with applicable Federal regulations and local education 
financial plans. If a Bureau-operated school and OIEP region or Agency 
support services staff disagree over expenditures, the Bureau-operated 
school must appeal to the Director for a decision.



Sec.  47.8  Who develops the local educational financial plans?

    The local Bureau-operated school supervisor develops the local 
educational financial plan in active consultation with the local school 
board, based on the tentative allotment received.



Sec.  47.9  What are the minimum requirements for the local 
educational financial plan?

    (a) The local educational financial plan must include:
    (1) Separate funds for each group receiving a discrete program of 
services is to be provided, including each program funded through the 
Indian School Equalization Program;
    (2) A budget showing the costs projected for each program; and
    (3) A certification provision meeting the requirements of paragraph 
(b) of this section.
    (b) The certification required by paragraph (a)(3) of this section 
must provide for:
    (1) Certification by the chairman of the school board that the plan 
has been ratified in an action of record by the board; and
    (2) Certification by the Education Line Officer that he or she has 
approved the plan as shown in an action overturning the school board's 
rejection or amendment of the plan.



Sec.  47.10  How is the local educational financial plan developed?

    (a) The following deadlines apply to development of the local 
educational financial plan:
    (1) Within 15 days after receiving the tentative allotment, the 
school supervisor must consult with the local school board on the local 
educational financial plan.
    (2) Within 30 days of receiving the tentative allotment, the school 
board must review the local educational financial plan and, by a quorum 
vote, ratify, reject, or amend, the plan.
    (3) Within one week of the school board action under paragraph 
(a)(2) of this section, the supervisor must either:
    (i) Send the plan to the education line officer (ELO), along with 
the official documentation of the school board action; or
    (ii) Appeal the school board's decision to the ELO.
    (4) The ELO will review the local educational financial plan for 
compliance with laws and regulations and may refer the plan to the 
Solicitor's Office for legal review. If the ELO notes any problem with 
the plan, he or she must:
    (i) Notify the local board and local supervisor of the problem 
within two weeks of receiving the plan;
    (ii) Make arrangements to assist the local school supervisor and 
board to correct the problem; and

[[Page 249]]

    (iii) Refer the problem to the Director of the Office of Indian 
Education if it cannot be solved locally.
    (b) When consulting with the school board under paragraph (a)(1) of 
this section, the school supervisor must:
    (1) Discuss the present program of the Bureau-operated school and 
any proposed changes he or she wishes to recommend;
    (2) Give the school board members every opportunity to express their 
own ideas and views on the supervisor recommendations; and
    (3) After the discussions required by paragraphs (b)(1) and (b)(2) 
of this section, present a draft plan to the school board with 
recommendations concerning each of the elements.
    (c) If the school board does not act within the deadline in 
paragraph (a)(2) of this section, the supervisor must send the plan to 
the ELO for ratification. The school board may later amend the plan by a 
quorum vote; the supervisor must transmit this amendment in accordance 
with paragraph (a)(3) of this section.



Sec.  47.11  Can these funds be used as matching funds 
for other Federal programs?

    A Bureau-operated school may use funds that it receives under this 
part as matching funds for other Federal programs.



Sec.  47.12  Information collection.

    Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with, a collection of information subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This part contains 
collections of information subject to the PRA in Sec. Sec.  47.5, 47.7, 
47.9, and 47.10. These collections have been approved by OMB under 
control number 1076-1063.

[[Page 250]]



                     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, 1300d-3(b), 1401 et 
seq., and Pub. L. 108-270.

    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 251]]

    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 reviewed and approved the 
information collection for Sec.  61.4(k). The OMB Control Number 
assigned is 1076-0165. A federal agency may not conduct or sponsor, and 
you are not required to respond to, a collection of information unless 
it displays a currently valid OMB Control Number.

[72 FR 9840, Mar. 5, 2007]



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.

[[Page 252]]

    (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 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.

[[Page 253]]

    (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 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

[[Page 254]]

of Indians of the Reservation eligible to participate in certain 
settlement provisions is to be prepared of all persons:
    (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

[[Page 255]]

prepared comprised of persons of Coquille Indian ancestry:
    (i) Who were born on or before and living on June 28, 1989;
    (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) Western Shoshone Identifiable Group of Indians. (1) Under 
section 3(b)(1) of the Act of July 7, 2004, Pub. L. 108-270, 118 Stat. 
805, the Secretary will prepare a roll of all individuals who meet the 
eligibility criteria established under the Act and who file timely 
applications prior to a date that will be established by a notice 
published in the Federal Register. The roll will be used as the basis 
for distributing the judgment funds awarded by the Indian Claims 
Commission to the Western Shoshone Identifiable Group of Indians in 
Docket No. 326-K. To be eligible a person must:
    (i) Have at least \1/4\ degree of Western Shoshone blood;
    (ii) Be living on July 7, 2004;
    (iii) Be a citizen of the United States; and
    (iv) Not be certified by the Secretary to be eligible to receive a 
per capita payment from any other judgment fund based on an aboriginal 
land claim awarded by the Indian Claims Commission, the United States 
Claims Court, or the United States Court of Federal Claims, that was 
appropriated on or before July 7, 2004.
    (2) Indian census rolls prepared by the Agents or Superintendents at 
Carson or Western Shoshone Agencies between the years of 1885 and 1940, 
and other documents acceptable to the Secretary will be used in 
establishing proof of eligibility of an individual to:
    (i) Be listed on the judgment roll; and
    (ii) Receive a per capita payment under the Western Shoshone Claims 
Distribution Act.
    (3) Application forms for enrollment must be mailed to Tribal 
Government Services, BIA-Western Shoshone, Post

[[Page 256]]

Office Box 3838, Phoenix, Arizona 85030-3838.
    (4) The application period will remain open until further notice.
    (l)-(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.
    (s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) Persons 
meeting the criteria in this paragraph are entitled to enroll under 25 
U.S.C. 1300d-3(b) to share in the distribution of certain funds derived 
from a judgment awarded to the Mississippi Sioux Indians. To be eligible 
a person must:
    (i) Be a lineal descendent of the Sisseton and Wahpeton Mississippi 
Sioux Tribe;
    (A) Those individuals who applied for enrollment before January 1, 
1998, and whose applications were approved by the Aberdeen Area Director 
before that same date, are deemed to appear in records and rolls 
acceptable to the Secretary or have a lineal ancestor whose name appears 
in these records;
    (B) Those individuals who apply for enrollment after January 1, 
1998, or whose application was not approved by the Aberdeen Area 
Director before that same date, must be able to trace ancestry to a 
specific Sisseton or Wahpeton Mississippi Sioux Tribe lineal ancestor 
who was listed on:
    (1) The 1909 Sisseton and Wahpeton annuity roll;
    (2) The list of Sisseton and Wahpeton Sioux prisoners convicted for 
participating in the outbreak referred to as the ``1862 Minnesota 
Outbreak'';
    (3) The list of Sioux scouts, soldiers, and heirs identified as 
Sisseton and Wahpeton Sioux on the roll prepared under the Act of March 
3, 1891 (26 Stat. 989 et seq., Chapter 543); or
    (4) Any other Sisseton or Wahpeton payment or census roll that 
preceded a roll referred to in paragraphs (s)(1)(i)(B)(1), (2), or (3) 
of this section.
    (ii) Be living on October 25, 1972;
    (iii) Be a citizen of the United States;
    (iv) Not be listed on the membership rolls for the following tribes:
    (A) The Flandreau Santee Sioux Tribe of South Dakota;
    (B) The Santee Sioux Tribe of Nebraska;
    (C) The Lower Sioux Indian Community at Morton, Minnesota;
    (D) The Prairie Island Indian Community at Welch, Minnesota;
    (E) The Shakopee Mdewakanton Sioux Community of Minnesota;
    (F) The Spirit Lake Tribe (formerly known as the Devils Lake Sioux 
of North Dakota);
    (G) The Sisseton-Wahpeton Sioux Tribe of South Dakota; or
    (H) The Assiniboine and Sioux Tribes of the Fort Peck Reservation.
    (v) Not be listed on the roll of Mdewakantan and Wahpakoota lineal

[[Page 257]]

descendants prepared under 25 U.S.C. 1300d-1(b).
    (2) The initial enrollment application period that closed on 
November 1, 1973, is reopened as of May 24, 1999. The application period 
will remain open until further notice.
    (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.
    (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.

[[Page 258]]

    (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; 64 FR 19898, Apr. 23, 1999; 72 FR 
9840, Mar. 5, 2007]



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.
    (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,

[[Page 259]]

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.
    (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

[[Page 260]]

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.



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

[[Page 261]]

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.
    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.

[[Page 262]]



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 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

[[Page 263]]

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 
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

[[Page 264]]

    (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]

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.

[[Page 265]]



               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, 
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.

[[Page 266]]

    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 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 _____.



Sec. Sec.  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

[[Page 267]]

    (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 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;

[[Page 268]]

    (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
    (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.

[[Page 269]]



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 must 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.

[61 FR 32274, June 21, 1996, as amended at 64 FR 66771, Nov. 30, 1999]



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 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.

[[Page 270]]



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.



Sec. Sec.  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

[[Page 271]]

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 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.

[[Page 272]]

    (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 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.

[[Page 273]]

    (4) Assurance that persons who, in good faith, report child abuse or 
child neglect will not suffer retaliation from their employers.



Sec. Sec.  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 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;

[[Page 274]]

    (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:
    (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.

[[Page 275]]

    (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 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

[[Page 276]]

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 Sec. Sec.  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 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.

[[Page 277]]

    (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:
    (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

[[Page 278]]

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 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

[[Page 279]]

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 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

[[Page 280]]

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 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

[[Page 281]]

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 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

[[Page 282]]

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_SECRETARIAL ELECTION PROCEDURES--Table of Contents



                       Subpart A_Purpose and Scope

Sec.
81.1 What is the purpose of this part?
81.2 When does this part apply?
81.3 Information collection.

                          Subpart B_Definitions

81.4 What terms do I need to know?

      Subpart C_Provisions Applicable to All Secretarial Elections

81.5 What informal review is available to a tribe or petitioner when 
          anticipating adopting or amending a governing document?
81.6 How is a Secretarial election requested?
81.7 What technical assistance will the Bureau provide after receiving a 
          request for election?
81.8 What happens if a governing Federal statute and this part disagree?
81.9 Will the Secretary give deference to the Tribe's interpretation of 
          its own documents?
81.10 Who may cast a vote in a Secretarial election?
81.11 May a tribe establish a voting age different from 18 years of age 
          for Secretarial elections?
81.12 What type of electioneering is allowed before and during a 
          Secretarial election?
81.13 What types of voting assistance are provided for a Secretarial 
          election?
81.14 May Secretarial elections be scheduled at the same time as tribal 
          elections?
81.15 How are conflicting proposals to amend a single document handled?
81.16 Who pays for holding the Secretarial election?
81.17 May a tribe use its funds to pay non-Federal election officials?
81.18 Who can withdraw a request for a Secretarial election?

      Subpart D_The Secretarial Election Process under the Indian 
                        Reorganization Act (IRA)

81.19 How does the Bureau proceed after receiving a request for a 
          Secretarial election?
81.20 What is the first action to be taken by the Chair of the Election 
          Board?
81.21 What are the responsibilities of the Secretarial Election Board in 
          conducting a Secretarial election?
81.22 How is the Secretarial election conducted?
81.23 What documents are included in the Secretarial Election Notice 
          Packet?
81.24 What information must be included on the Secretarial election 
          notice?
81.25 Where will the Secretarial election notice be posted?
81.26 How does BIA use the information I provide on the registration 
          form?
81.27 Must I re-register if I have already registered for a tribal or 
          Secretarial election?
81.28 How do I submit my registration form?
81.29 Why does the Secretarial Election Board compile a Registered 
          Voters List?
81.30 What information is contained in the Registered Voters List?
81.31 Where is the Registered Voters List posted?
81.32 May the Registered Voters List be challenged?
81.33 How does the Secretarial Election Board respond to challenges?
81.34 How are the official ballots prepared?
81.35 When must the Secretarial Election Board send ballots to voters?
81.36 What will the mailout or absentee ballot packet include?
81.37 How do I cast my vote at a polling site?
81.38 When are ballots counted?
81.39 How does the Board determine whether the required percentage of 
          registered voters have cast ballots?
81.40 What happens if a ballot is spoiled before it is cast?
81.41 Who certifies the results of the Election?
81.42 Where are the results of the Election posted?
81.43 How are the results of the Election challenged?
81.44 What documents are sent to the Authorizing Official?
81.45 When are the results of the Secretarial election final?

  Subpart E_The Secretarial Election Process under the Oklahoma Indian 
                           Welfare Act (OIWA)

81.46 How does the Bureau proceed upon receiving a request for an OIWA 
          Election if no provisions are contrary to applicable law?
81.47 How is the OIWA Secretarial election conducted?
81.48 When are the results of the OIWA Election final?

[[Page 283]]

    Subpart F_Formulating Petitions to Request a Secretarial Election

81.49 What is the purpose of this subpart?
81.50 Who must follow these requirements?
81.51 How do tribal members circulate a petition to adopt or amend the 
          tribe's governing document?
81.52 Who may initiate a petition?
81.53 Who may sign a petition?
81.54 Who is authorized to submit a petition to the Secretary?
81.55 How is the petition formatted and signed?
81.56 Do petitions have a minimum or maximum number of pages?
81.57 How do I determine how many signatures are needed for a petition 
          to be valid?
81.58 How long do tribal members have to gather the signatures?
81.59 How does the spokesperson file a petition?
81.60 How does the Local Bureau Official process the petition?
81.61 How can signatures to the petition be challenged?
81.62 How is the petition validated?
81.63 May the same petition be used for more than one Secretarial 
          election?

    Authority: : 25 U.S.C. 473a, 476, 477, as amended, and 503.

    Source: 80 FR 63106, Oct. 19, 2015, unless otherwise noted.



                       Subpart A_Purpose and Scope



Sec.  81.1  What is the purpose of this part?

    This part prescribes the Department's procedures for authorizing and 
conducting elections when Federal statute or the terms of a tribal 
governing document require the Secretary to conduct and approve an 
election to:
    (a) Adopt, amend, or revoke tribal governing documents; or
    (b) Adopt or amend charters.



Sec.  81.2  When does this part apply?

    (a) This part applies only to federally recognized tribes, in the 
circumstances shown in the following table.

------------------------------------------------------------------------
         If a tribe wants to . . .                    And . . .
------------------------------------------------------------------------
(1) Adopt a new governing document to       The Federal statute requires
 reorganize under Federal statute.           an election before or after
                                             Secretarial approval.
(2) Adopt a new governing document to       The governing document
 reorganize outside Federal statute.         requires approval under the
                                             Secretary's general
                                             authority to approve.
(3) Amend or revoke a governing document    The Federal statute requires
 adopted under Federal statute.              an election and approval
                                             for amendment or
                                             revocation.
(4) Amend or revoke a governing document    The governing document
 adopted outside Federal statute.            requires Secretarial
                                             approval of an amendment or
                                             revocation.
(5) Ratify a federal charter of             The charter requires
 incorporation.                              Secretarial approval or is
                                             being ratified under the
                                             Oklahoma Indian Welfare Act
                                             (OIWA).
(6) Amend a federal charter of              The charter requires a
 incorporation.                              Secretarial election to
                                             amend.
(7) Take other action.....................  A Federal statute or tribal
                                             law requires a Secretarial
                                             election in order to take
                                             that action.
(8) Remove the requirement for a            A Federal statute or tribal
 Secretarial approval from a governing       law requires a Secretarial
 document.                                   election in order to take
                                             that action.
------------------------------------------------------------------------

    (b) Secretarial elections will be conducted in accordance with the 
procedures in this part unless the amendment article of the tribe's 
governing document provides otherwise and is not contrary to Federal 
voting qualifications or substantive provisions, in which case the 
provisions of those documents shall rule, where applicable.
    (c) If the amendment provisions of a tribal governing document have 
become outdated and the amendment cannot be effected under them, and the 
recognized tribal governing body requests a Secretarial election, the 
Bureau may authorize a Secretarial election under this part to amend the 
documents.



Sec.  81.3  Information collection.

    The information collection requirements contained in this part are 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3507(d), and has been assigned OMB 
control number 1076-0183. This information is collected when, under 
Federal statute or the tribe's governing documents, the Secretarial 
election is authorized to adopt, amend, or revoke governing documents; 
or adopt or amend charters. This information is required to obtain or 
retain benefits. A Federal agency may not collect or sponsor an 
information collection without a valid OMB control number.

[[Page 284]]



                          Subpart B_Definitions



Sec.  81.4  What terms do I need to know?

    For purposes of this part:
    Absentee ballot means a ballot the Secretarial Election Board 
provides to a registered voter, upon request, to allow him or her to 
vote by mail even though polling sites are used.
    Amendment means any modification or change to one or more provisions 
of an existing governing document or charter.
    Applicable law means any treaty, statute, Executive Order, 
regulation, or final decision of a Federal court, which is applicable to 
the tribe.
    Authorizing Official means the Bureau official with delegated 
Federal authority to authorize a Secretarial election.
    Bureau means the Bureau of Indian Affairs, Department of the 
Interior.
    Business day means a weekday (Monday through Friday), excluding 
Federal holidays.
    Cast means the action of a registered voter, when the ballot is 
received through the mail by the Secretarial Election Board, or placed 
in the ballot box at the polling site.
    Charter means a charter of incorporation issued under a Federal 
statute and ratified by the governing body in accordance with tribal law 
or, if adopted before May 24, 1990, by a majority vote in an election 
conducted by the Secretary.
    Day means a calendar day. A Secretarial election may be held on a 
Saturday, Sunday or Federal holiday.
    Department means the Department of the Interior.
    Director means the Director of the Bureau of Indian Affairs or his 
or her authorized representative.
    Electioneering means campaigning for or against the adoption, 
ratification, revocation or amendment of a proposed governing document 
or a charter.
    Eligible voter means a tribal member who will be 18 years of age or 
older on the date of the Secretarial election (and, if the tribe's 
governing document imposes additional requirements for voting in a 
Secretarial election, also meets those requirements).
    Eligible Voters List means a list of eligible voters, including 
their birthdates and their last known mailing addresses. The Eligible 
Voters List is compiled and certified by the tribe's governing body or 
the Bureau if the Bureau maintains the current membership roll for the 
tribe.
    Federal statute means the Indian Reorganization Act (IRA), 25 U.S.C. 
476, 477, as amended, the Oklahoma Indian Welfare Act (OIWA), 25 U.S.C. 
503, and any tribe-specific Federal statute that requires a Secretarial 
election for the adoption of a governing document.
    Final agency action means the Authorizing Official's approval or 
disapproval of a Secretarial election or acknowledgment of the tribe's 
or petitioners' withdrawal of a request for Secretarial election, and is 
final for the Department.
    Governing document means any written document that prescribes the 
extent, limitations, and manner in which the tribe exercises its 
sovereign powers.
    Local Bureau office means the local administrative office of the 
Bureau that is the primary point of contact between the Bureau and the 
tribe.
    Local Bureau Official means the Superintendent, Field 
Representative, or other official having delegated Federal 
administrative responsibility under this part.
    Mailout ballot means a ballot the Secretarial Election Board 
provides to a registered voter to allow him or her to vote by mail in an 
election conducted entirely by mail.
    Member of a tribe or tribal member means any person who meets the 
criteria for membership in a tribe and, if required by the tribe, is 
formally enrolled.
    Petition means the official document submitted by the petitioners to 
the Secretary to call a Secretarial election for the purpose of adopting 
or ratifying a new governing document, amending the tribe's existing 
governing document, or revoking the tribe's existing governing document.
    Petitioner means a tribal member who is 18 years of age or older 
(and, if the tribe's governing document imposes additional requirements 
for petitioning, also meets those requirements), and signs a petition.
    Polling site ballot means the ballot the Secretarial Election Board 
provides to

[[Page 285]]

a registered voter, allowing him or her to vote when polling sites are 
required by the amendment and adoption article of the tribe's governing 
document.
    Recognized governing body means the tribe's governing body 
recognized by the Bureau for the purposes of government-to-government 
relations.
    Registered Voter means an eligible voter who has registered to vote 
in the Secretarial election.
    Registered Voters List means the list of all Registered Voters 
showing only names and, where applicable, voting districts.
    Registration means the process by which an eligible voter signs up 
to vote in the Secretarial election.
    Revocation means that act whereby the registered voters of a tribe 
vote to revoke their current governing document.
    Secretarial election means a Federal election conducted by the 
Secretary under a Federal statute or tribal governing document under 
this part.
    Secretarial Election Board means the body of officials appointed by 
the Bureau and the tribe (and the spokesperson for petitioners, as 
applicable) to conduct the Secretarial election.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Spoiled ballot means the ballot is mismarked, mutilated, rendered 
impossible to determine the voter's intent, or marked so as to violate 
the secrecy of the ballot.
    Spokesperson for the petitioners or spokesperson means a tribal 
member who provides a document signed by other tribal members that 
provides him or her authority to speak or submit a petition on their 
behalf.
    Tribal request means a request that includes all of the components 
set out in 81.6.
    Tribe means any Indian or Alaska Native tribe, band, nation, pueblo, 
village or community that is listed in the Federal Register under 25 
U.S.C. 479a--1(a), as recognized and receiving services from the Bureau 
of Indian Affairs.
    Voting district means a geographic area established to facilitate 
the voting process, if required, by the amendment and adoption articles 
of the tribe's governing document.



      Subpart C_Provisions Applicable to All Secretarial Elections



Sec.  81.5  What informal review is available to a tribe or petitioner 
when anticipating adopting or amending a governing document?

    A tribe that plans to adopt or amend a governing document or a 
spokesperson for a petitioner may, but is not required to, submit the 
proposed document with a request for informal review to the Local Bureau 
Official.
    (a) During the informal review:
    (1) Bureau personnel will help the tribal government or petitioner 
spokesperson in drafting governing documents, bylaws, charters, 
amendments and revocations, explain the Secretarial election process, 
and provide guidance on methods for voter education, such as 
informational meetings.
    (2) The Local Bureau Official will review the proposed document and 
will offer technical assistance and comments to the tribe or petitioner 
spokesperson, including but not limited to guidance on whether any of 
the provisions of the proposed document or amendment may be contrary to 
applicable laws.
    (b) The Bureau will provide technical assistance for a petition only 
upon request of the spokesperson. Bureau personnel will provide a 
courtesy copy to the tribe's governing body of all correspondence 
regarding technical assistance to the petitioners. The spokesperson will 
be responsible for obtaining the approval of the tribal members it 
represents on changes to the content of the petition.



Sec.  81.6  How is a Secretarial election requested?

    To request a Secretarial election:
    (a) The tribe or petitioner must submit:
    (1) A duly adopted tribal resolution, tribal ordinance, other 
appropriate tribal document requesting the Secretary to call a 
Secretarial election, or, in the absence of an existing governing 
document or if authorized or required by the existing governing 
documents, a petition that has been verified by the Bureau as having the 
minimum

[[Page 286]]

number of required signatures of tribal members; and
    (2) The exact document or amended language to be voted on; and
    (b) The tribe must submit a list in an electronically sortable 
format with names, last known addresses, dates of birth, and voting 
district, if any, of all tribal members who:
    (1) Will be 18 years of age or older within 120 days of the date of 
the request; and
    (2) Meet any other voting restrictions imposed by the tribe's 
governing document for voting in the Secretarial election.



Sec.  81.7  What technical assistance will the Bureau provide 
after receiving a request for election?

    After receiving a tribal request for election under Sec.  81.6, the 
Bureau will provide the following technical assistance.
    (a) The Local Bureau Official will review and make a recommendation 
on the proposed document or amendment, prepare background information on 
the tribe, and submit to the Authorizing Official.
    (b) The Authorizing Official must do all of the following:
    (1) Review the proposed document or amendment and offer technical 
assistance to the tribe (and spokesperson, for petitions);
    (2) Consult with the Office of the Solicitor to determine whether 
any of the provisions of the proposed document or amendment may be 
contrary to applicable law; and
    (3) Notify the tribe (and spokesperson, for petitions) in writing of 
the results of the review.
    (i) If the review finds that a provision is or may be contrary to 
applicable law, the notification must explain how the provision may be 
contrary to applicable law and list changes to the document that would 
be required to allow the Authorizing Official to approve the document as 
not contrary to applicable law.
    (ii) The notification must be sent to the tribe (and spokesperson, 
for petitions) promptly but in no case less than 30 days before calling 
the election.
    (iii) For IRA elections, the tribe may choose to proceed with the 
election without incorporating required changes, but the Authorizing 
Official may not approve election results ratifying provisions that are 
contrary to applicable law.
    (iv) For OIWA elections, the Authorizing Official may not authorize 
a Secretarial election on any proposed document that contains provisions 
that may be contrary to applicable law.



Sec.  81.8  What happens if a governing Federal statute and this part disagree?

    If a conflict appears to exist between this part and a specific 
requirement of the Federal statute, this part must be interpreted to 
conform to the statute.



Sec.  81.9  Will the Secretary give deference to the Tribe's interpretation 
of its own documents?

    The Secretary will give deference to the tribe's reasonable 
interpretation of the amendment and adoption articles of the tribe's 
governing documents. The Secretary retains authority, however, to 
interpret tribal law when necessary to carry out the government-to-
government relationship with the tribe or when a provision, result, or 
interpretation may be contrary to Federal law.



Sec.  81.10  Who may cast a vote in a Secretarial election?

------------------------------------------------------------------------
                                                 Then the following
               If the tribe:                individuals may cast a vote:
------------------------------------------------------------------------
(a) Is reorganizing under Federal statute   Any member of the tribe who:
 for the first time,.                       (1) Will be 18 years of age
                                             or older on the date of the
                                             Secretarial election; and
                                            (2) Has duly registered,
                                             regardless of residence or
                                             other qualifications
                                             contained in the tribe's
                                             governing documents or
                                             charter
(b) Is already reorganized under Federal    Any member of the tribe who:
 statute,.                                  (1) Will be 18 years of age
                                             or older on the date of the
                                             Secretarial election; and
                                            (2) Otherwise meets the
                                             qualifications required by
                                             the tribe's governing
                                             documents or charter for
                                             that particular type of
                                             Secretarial election; and
                                            (3) Has duly registered.

[[Page 287]]

 
(c) Is not reorganized under a Federal      Any member of the tribe who:
 statute but tribal law requires a          (1) Will be 18 years of age
 Secretarial election.                       or older on the date of the
                                             Secretarial election; and
                                            (2) Otherwise meets the
                                             qualifications, if any,
                                             required by the tribe's
                                             governing documents or
                                             charter for that particular
                                             type of Secretarial
                                             election, if any; and
                                            (3) Has duly registered.
------------------------------------------------------------------------



Sec.  81.11  May a tribe establish a voting age different from 18 years of age 
for Secretarial elections?

    No. A Secretarial election is a Federal election. According to the 
26th Amendment of the U.S. Constitution, adopted July 1, 1971, all 
individuals 18 years of age and older must be allowed to vote in Federal 
elections.



Sec.  81.12  What type of electioneering is allowed before 
and during Secretarial election?

    There shall be no electioneering within 50 feet of the entrance of a 
polling site.



Sec.  81.13  What types of voting assistance are provided 
for a Secretarial election?

    If polling sites are required by the amendment or adoption article 
of the tribe's governing document, the Chair of the Secretarial Election 
Board will:
    (a) Appoint interpreters;
    (b) Ensure that audio or visual aids for the hearing or visually 
impaired are provided;
    (c) Ensure that reasonable accommodations are made for others with 
impairments that would impede their ability to vote; and
    (d) Allow the interpreter or Secretarial Election Board member to 
explain the election process and voting instructions. At the request of 
the voter, the interpreter or Board member may accompany the voter into 
the voting booth, but must not influence the voter in casting the 
ballot.



Sec.  81.14  May Secretarial elections be scheduled at the same time 
as tribal elections?

    The Secretarial Election Board will, generally, avoid scheduling 
Secretarial elections at the same time as tribal elections to avoid 
confusion. If the Secretarial Election Board decides to schedule a 
Secretarial election at the same time as a tribal election, the 
Secretarial Election Board must clearly inform eligible voters of any 
differences between the tribal election and the Secretarial election and 
separate ballots must be used for each type of election.



Sec.  81.15  How are conflicting proposals to amend a single document handled?

    When conflicting proposals to amend a single provision of a tribal 
governing document or charter provision are submitted, the proposal 
first received by the Local Bureau Official, if properly submitted as a 
complete tribal request, must be voted on before any consideration is 
given other proposals. Other proposals must be considered in order of 
their receipt if they are resubmitted following final agency action on 
the first submission. This procedure applies regardless of whether the 
proposal is a new or revised tribal governing document.



Sec.  81.16  Who pays for holding the Secretarial election?

    (a) A Secretarial election is a Federal election; therefore, Federal 
funding will be used to cover costs. The Bureau will pay for the costs, 
unless the tribe has received funding for this function through 
contracts or self-governance compacts entered into under the Indian 
Self-Determination and Education Assistance Act, as amended, 25 U.S.C. 
450f, et seq.
    (b) Once a tribe removes the requirement for Secretarial approval, 
all subsequent elections it holds to amend the governing document are 
tribal elections and the tribe is responsible for the costs of those 
elections.



Sec.  81.17  May a tribe use its funds to pay non-Federal election officials?

    A recognized tribal governing body may use tribal funds to 
compensate non-Federal personnel to respond to the needs of the tribal 
government in the conduct of the Secretarial election.

[[Page 288]]



Sec.  81.18  Who can withdraw a request for a Secretarial election?

    The tribe may withdraw the request for Secretarial election in the 
same manner in which the Secretarial election was requested. The 
petitioners may withdraw the request for Secretarial election by 
submitting a new petition, with signatures of at least a majority of the 
signers of the original petition, seeking withdrawal of the original 
petition. However, the request for a Secretarial election cannot be 
withdrawn after the established deadline for voter registration.



      Subpart D_The Secretarial Election Process under the Indian 
                        Reorganization Act (IRA)



Sec.  81.19  How does the Bureau proceed after receiving a request 
for a Secretarial election?

    (a) Upon receiving a request for a Secretarial election, the Local 
Bureau Official will forward the request to the Authorizing Official 
with any appropriate background information.
    (b) The Authorizing Official will issue a memorandum to the Local 
Bureau official. The memorandum will do all of the following:
    (1) Direct the Local Bureau Official to call and conduct a 
Secretarial election by one of the following deadlines:
    (i) If the tribal request is to amend an existing governing 
document, within 90 days from the date of receipt of the request;
    (ii) If the tribal request is to adopt a new governing document 
(including an amendment to a governing document in the nature of an 
entire substitute) or to revoke an existing governing document, within 
180 days after receiving the request.
    (2) Include as an attachment the document or proposed language to be 
voted upon;
    (3) Include as an attachment the Certificate of Results of Election 
with instructions to return it after the Secretarial election. The 
Certificate shall read as follows:

                   Certificate of Results of Election

    Under a Secretarial election authorized by (name and title of 
authorizing official) on (date), the attached [insert: Governing 
document and Bylaws, charter of incorporation, amendment or revocation] 
of the (official name of tribe) was submitted to the registered voters 
of the tribe and on (date) duly (insert: adopted, ratified, rejected or 
revoked) by a vote of (number) for and (number) against and (number) 
cast ballots found spoiled in an election in which at least 30 percent 
(or such ``percentages'' as may be required to amend according the 
governing document) of the (number) registered voters cast their ballot 
in accordance with (appropriate Federal statute).
Signed:_________________________________________________________________
(by the Chair of the Secretarial Election Board and Board Members)
Date: ____; and

    (4) Advise that no changes or modifications can be made to any 
attached document, without the Authorizing Official's prior approval.
    (c) The Local Bureau Official will appoint a Bureau employee to 
serve as the Chair of the Secretarial Election Board and notify the 
tribe of the need to appoint at least two tribal members, who are at 
least 18 years of age, to the Secretarial Election Board. If the 
election is to be held as the result of a petition, then the Local 
Bureau Official will appoint a Bureau employee to serve as the Chair of 
the Secretarial Election Board and notify the tribe and the spokesperson 
for the petitioners of the need to appoint one tribal member each, who 
is at least 18 years of age, to the Secretarial Election Board. If the 
tribe or spokesperson for the petitioners declines or fails for any 
reason to make the appointment(s) by close of business on the 10th day 
after the date the notice letter is issued, the Chair of the Secretarial 
Election Board must appoint the representative(s), who are tribal 
members, if available, on the 11th day after the notice letter is 
issued.



Sec.  81.20  What is the first action to be taken by the Chair 
of the Election Board?

    Within 5 days after the Secretarial Election Board representatives 
are appointed, the Chair must hold the first meeting of the Secretarial 
Election Board to set the election date.

[[Page 289]]



Sec.  81.21  What are the responsibilities of the Secretarial Election Board 
in conducting a Secretarial election?

    The Secretarial Election Board conducts the Secretarial election. 
Except as provided in Sec.  81.43, decisions of the Secretarial Election 
Board are not subject to administrative appeal.



Sec.  81.22  How is the Secretarial election conducted?

    The Secretarial Election Board:
    (a) Uses the list provided in the tribal request as the basis for 
the Eligible Voters List;
    (b) Assembles and mails the Secretarial Election Notice Packet at 
least 30 days, but no more than 60 days, before the date of the 
Secretarial election to all persons on the Eligible Voters List;
    (c) Confirms that registration forms were received on or before the 
deadline date;
    (d) Retains the completed registration form as part of the record;
    (e) Develops the Registered Voters List for posting;
    (f) Where the election is conducted entirely by mailout ballot, 
notes on a copy of the Registered Voters List, by the individual's name, 
the date the ballot was mailed, and the date the ballot was returned; 
and
    (g) Where polling sites are required and an individual requests an 
absentee ballot, notes on a copy of the Registered Voters List, by the 
individual's name, the date his or her absentee ballot request was 
received, the date the absentee ballot was mailed, and the date the 
absentee ballot was returned.



Sec.  81.23  What documents are included in the Secretarial Election 
Notice Packet?

    The Secretarial Election Notice Packet includes the following:
    (a) Mailout Balloting:
    (1) The Secretarial election notice;
    (2) A registration form with instructions for returning the 
completed form by mail;
    (3) An addressed envelope with which to return the completed 
registration form;
    (4) If the entire document is to be amended or adopted, a copy of 
the proposed document including proposed language; and if applicable, a 
copy of the current document proposed for change; and
    (5) A side-by-side comparison showing the current language to be 
changed, if applicable, in the left column and the proposed language in 
the right column.
    (b) Polling Sites (if required by the amendment or adoption articles 
of the tribe's governing document):
    (1) The Secretarial election notice;
    (2) A registration form with instructions for returning the 
completed form by mail;
    (3) An absentee ballot request form with instructions for returning 
the completed form by mail;
    (4) An addressed envelope with which to return the completed 
registration form and absentee ballot request form;
    (5) If the entire document is to be amended or adopted, a copy of 
the proposed document including proposed language; and if applicable, a 
copy of the current document proposed for change; and
    (6) A side-by-side comparison showing the current language to be 
changed, if applicable, in the left column and the proposed language in 
the right column.



Sec.  81.24  What information must be included 
on the Secretarial election notice?

    The Secretarial election notice must contain all of the following 
items.
    (a) The date of the Secretarial election;
    (b) The date which registration forms must be received by the 
Secretarial Election Board;
    (c) A description of the purpose of the Secretarial election;
    (d) A description of the statutory and tribal authority under which 
the Secretarial election is held;
    (e) The deadline for filing challenges to the Registered Voters 
List;
    (f) If polling sites are to be used, the date an absentee ballot 
request must be received by the Secretarial Election Board;
    (g) A statement as to whether the Secretarial election is being held 
entirely by mailout ballot or with polling sites, in accordance with the 
tribe's

[[Page 290]]

governing document's amendment or adoption articles; and
    (h) The locations and hours of established polling sites, if any.



Sec.  81.25  Where will the Secretarial election notice be posted?

    The Secretarial election notice will be posted at the local Bureau 
office, if any, the tribal headquarters, and other public places 
determined by the Secretarial Election Board.



Sec.  81.26  How does BIA use the information I provide 
on the registration form?

    We use the information you provide on the registration form to 
determine whether you will be registered for and vote in the Secretarial 
election. The registration form must include the following statements:
    (a) Completing and returning this registration is necessary if you 
desire to vote in the forthcoming Secretarial election;
    (b) This form, upon completion and return to the Secretarial 
Election Board, will be the basis for determining whether your name will 
be placed upon the list of registered voters, and therefore may receive 
a ballot, and
    (c) Completion and return of this form is voluntary, but failure to 
do so will prevent you from participating in the Secretarial election.



Sec.  81.27  Must I re-register if I have already registered for a tribal 
or Secretarial election?

    Yes. A Secretarial election is a Federal election and you must 
register for each Secretarial election.



Sec.  81.28  How do I submit my registration form?

    You must submit your registration form to the Secretarial Election 
Board by U.S. mail.



Sec.  81.29  Why does the Secretarial Election Board compile 
a Registered Voters List?

    The Registered Voters List is a list of eligible voters who have 
registered and are, therefore, entitled to vote in the Secretarial 
election. We use this list, after all challenges have been resolved, to 
determine whether voter participation in the Secretarial election 
satisfies the minimum requirements of the tribe's governing documents 
and Federal law.



Sec.  81.30  What information is contained in the Registered Voters List?

    The Registered Voters List must contain the names, in alphabetical 
order, of all registered voters and their voting districts, if voting 
districts are required by the tribe's governing document's amendment or 
adoption articles.



Sec.  81.31  Where is the Registered Voters List posted?

    A copy of the Registered Voters List, showing only names and, where 
applicable, voting districts, must be posted at the local Bureau office, 
the tribal headquarters, and other public places the Secretarial 
Election Board designates.



Sec.  81.32  May the Registered Voters List be challenged?

    (a) It is possible to challenge in writing the inclusion or 
exclusion or omission of a name on the Registered Voters List. The 
written challenge must be received by the Secretarial Election Board by 
the established deadline and include the following:
    (1) The name of the affected individual or individuals;
    (2) The reason why the individual's name should be added to or 
removed from the Registered Voters List; and
    (3) Supporting documentation.
    (b) If an individual failed to submit his or her registration form 
on time, that individual is precluded from challenging the omission of 
his/her name from the list.



Sec.  81.33  How does the Secretarial Election Board respond to challenges?

    All challenges must be resolved by close of business on the third 
day after the date of the challenge deadline established by the 
Secretarial Election Board and all determinations of the Secretarial 
Election Board are final for the purpose of determining who can vote in 
the Secretarial election.
    (a) If the challenge was received after the deadline, the 
Secretarial Election Board must deny the challenge.

[[Page 291]]

    (b) If the challenge was received on or before the deadline, the 
Secretarial Election Board will decide the challenge by reviewing the 
documentation submitted. Thereafter, the Secretarial Election Board will 
include the name of any individual whose name should appear or remove 
the name of any individual who should not appear on the Registered 
Voters List.



Sec.  81.34  How are the official ballots prepared?

    (a) The Secretarial Election Board must prepare the official ballot 
so that it is easy for the voters to indicate a choice between no more 
than two alternatives (i.e., adopting or rejecting the proposed 
language). Separate ballots should be prepared for each proposed 
amendment or a single ballot for adoption of a proposed document (with a 
reference to the document provided in the Secretarial election notice).
    (b) The following information must appear on the face of the mailout 
or absentee ballot:

                             OFFICIAL BALLOT

    (Facsimile Signature)

                    CHAIR, SECRETARIAL ELECTION BOARD

    (c) When polling places are required by the tribe's governing 
document, the official ballot may be a paper ballot, voting machine 
ballot, or other type of ballot supporting the secret ballot process.



Sec.  81.35  When must the Secretarial Election Board send ballots to voters?

    (a) Unless the amendment or adoption articles of the tribe's 
governing document require the use of polling sites in the election, the 
election must be conducted entirely by mailout ballots, and the 
Secretarial Election Board must send mailout ballots to registered 
voters promptly upon completion of the Registered Voters List.
    (b) When the amendment or adoption articles of the tribe's governing 
document require the use of polling sites in the election, the 
Secretarial Election Board must send an absentee ballot to every 
registered voter who requests an absentee ballot, as long as the request 
is received before the Secretarial election date.
    (c) All mailout or absentee ballot deliveries must be via U.S. Mail 
or by hand-delivery to the location identified in the Secretarial 
election notice before the date of the Secretarial election.



Sec.  81.36  What will the mailout or absentee ballot packet include?

    The mailout or absentee ballot packet contains:
    (a) A cover letter summarizing what the ballot packet contains and, 
if there is more than one ballot included in the packet, enumerating the 
ballots and advising voters to give consideration to each enumerated 
ballot;
    (b) A mailout or absentee ballot (or, if several amendments are to 
be voted on, multiple ballots, each printed on a different colored sheet 
if possible);
    (c) Instructions for voting by mailout or absentee ballot including 
the date the ballot must be received by the Secretarial Election Board;
    (d) An inner envelope with the words ``Mailout Ballot'' or 
``Absentee Ballot'' printed on the outside, as applicable;
    (e) A copy of the proposed governing document or amendment, if the 
full text is not printed on the mailout ballot and if the entire 
document is to be amended or adopted; and
    (f) A pre-addressed outer envelope with the following certification 
printed on the back:
    I, (print name of voter), hereby certify I am a registered voter of 
the (name of Tribe); I will be 18 years of age or older on the day of 
the Secretarial election; I am entitled to vote in the Secretarial 
election to be held on (date of Secretarial election). I further certify 
that I marked the enclosed mailout ballot in secret.
    Signed:
(voter's signature)_____________________________________________________



Sec.  81.37  How do I cast my vote at a polling site?

    If polling sites are required by the tribe's governing document's 
amendment or adoption articles, the Secretarial Election Board will 
establish procedures for how polling site ballots will be presented and 
collected, including, but not limited to, paper ballots, voting 
machines, or other methods supporting a secret ballot.

[[Page 292]]



Sec.  81.38  When are ballots counted?

    The ballots will be counted under the supervision of the Secretarial 
Election Board, after the deadline established for receiving all ballots 
or closing of the polls, if polling sites are required by the tribe's 
governing document's amendment or adoption articles.



Sec.  81.39  How does the Board determine whether the required percentage 
of registered voters have cast ballots?

    The Secretarial Election Board must count the number of valid 
ballots and cast spoiled ballots to determine total voter participation. 
The Board must take the total voter participation and divide it by the 
total number of Registered Voters. This total is used to determine 
whether the percentage of Registered Voters who cast votes meets the 
requirements of the tribe's governing documents or Federal statute that 
requires at least 30 percent voter participation. For example:
    (a) If there were 200 registered voters of which 75 cast valid 
ballots and 5 cast spoiled ballots for a total of 80 cast ballots (75 + 
5 = 80). The percentage of voter participation would be determined as 
follows:
    Total number of votes cast (80) divided by the total number 
registered voters (200) or 80 / 200 = 0.40 or 40 percent voter 
participation.
    (b) This example meets the Federal statutory requirement of at least 
30 percent voter participation.



Sec.  81.40  What happens if a ballot is spoiled before it is cast?

    If a ballot is spoiled before it is cast, this section applies.
    (a) The registered voter may return the spoiled ballot to the 
Secretarial Election Board by mail or in person at the local Bureau 
office with a request for a new ballot before the election date. The new 
ballot will be promptly provided to the registered voter. The 
Secretarial Election Board must retain all ``spoiled uncast ballots'' 
for recordkeeping purposes.
    (b) If polling sites are required, the voter may return the spoiled 
ballot to the polling site worker and request a new ballot. Upon 
receiving the new ballot, the voter must then complete the voting 
process. The polling site worker will mark the spoiled ballot ``spoiled 
uncast'' and record that the ballot has been spoiled. The polling site 
worker must retain all ``spoiled uncast ballots'' for recordkeeping 
purposes.



Sec.  81.41  Who certifies the results of the Election?

    The Chair and all members of the Secretarial Election Board must be 
present during the counting of the ballots and must sign the Certificate 
of Results of Election.



Sec.  81.42  Where are the results of the Election posted?

    The Secretarial Election Board must post a copy of the Certificate 
of Results of Election at the local Bureau office, the tribal 
headquarters, and at other public places listed in the election notice. 
The Board also has the discretion to publicize the results using 
additional methods, such as by posting on the tribe's Web site.



Sec.  81.43  How are the results of the Election challenged?

    Any person who was listed on the Eligible Voters List and who 
submitted a voter registration form may challenge the results of the 
Secretarial election. The written challenge, with substantiating 
evidence, must be received by the Chairman of the Secretarial Election 
Board within 5 days after the Certificate of Results of Election is 
posted, not including the day the Certificate of Results of Election is 
posted. Challenges received after the deadline for filing challenges 
will not be considered. If the third day falls on a weekend or Federal 
holiday, the challenge must be received by close of business on the next 
business day.



Sec.  81.44  What documents are sent to the Authorizing Official?

    The Chair of the Secretarial Election Board must transmit all 
documents pertaining to the Secretarial election to the Authorizing 
Official, including:
    (a) The original text of the material voted on;
    (b) The Eligible Voters List;
    (c) The Registered Voters List;
    (d) The Secretarial Election Notice Packet;

[[Page 293]]

    (e) Any challenges to the Secretarial election results; and
    (f) The Certificate of Results of Election.



Sec.  81.45  When are the results of the Secretarial election final?

    The Authorizing Official will review election results and 
challenges, if any, as follows:
    (a) If a challenge alleges errors that would invalidate the 
election, and the Authorizing Official sustains any such challenges, the 
Authorizing Official must authorize a recount or call for a new 
Secretarial election. The Authorizing Official will take the appropriate 
steps necessary to provide for a recount or a new Secretarial election.
    (b) If all challenges are denied or dismissed, the Authorizing 
Official will review and make a decision based on the following:
    (1) The percentage of total votes cast was at least 30 percent, or 
other percentages required according to the tribe's governing document's 
amendment or adoption articles.
    (2) The voters rejected or accepted the proposed document or each 
proposed amendment; and
    (3) The proposed documents or amendments are not contrary to Federal 
law.
    (c) The Authorizing Official must notify, in writing, the recognized 
governing body of the tribe, and the Director of the Bureau, of the 
following:
    (1) The decisions on challenges;
    (2) The outcome of the voting;
    (3) Whether the proposed governing document, proposed amendment(s) 
or charter or charter amendments are approved or ratified, or if the 
proposed documents contain language that is contrary to Federal law and, 
therefore, disapproved; and
    (4) That the decision is a final agency action.
    (d) The Authorizing Official must:
    (1) Forward the original text of the document, Original Certificate 
of Approval or Disapproval, and the Certificate of Results of Election 
to the tribe and a copy of all documents to the Bureau Director; and
    (2) Retain, as required by the Records Disposition Schedule, a copy 
of all document(s) relevant to the Secretarial election.
    (e) If the certified election results show that the tribal members 
ratified the documents, but the Authorizing Official does not approve or 
disapprove the governing document or amendment by close of business on 
the 45th day after the date of the Secretarial election, the Secretary's 
approval of the documents must be considered as given.
    (f) The Authorizing Official's decision to approve or disapprove the 
governing document or amendment is a final agency action.



  Subpart E_The Secretarial Election Process Under the Oklahoma Indian 
                           Welfare Act (OIWA)



Sec.  81.46  How does the Bureau proceed upon receiving a request 
for an OIWA Election if no provisions are contrary to applicable law?

    If the proposed document does not contain any provision that may be 
contrary to applicable law, the Bureau will take the following steps.
    (a) The Authorizing Official will issue a memorandum to the Local 
Bureau Official:
    (1) Approving the proposed document or proposed amendments;
    (2) Authorizing the Local Bureau Official to call and conduct a 
Secretarial election, within 90 days from the date of receiving the 
tribal request;
    (3) Attaching the document or proposed language to be voted upon;
    (4) Attaching the Certificate of Results of Election, with 
instructions to return it at the conclusion of the Secretarial election. 
The Certificate shall read as follows:

                   Certificate of Results of Election

    Under a Secretarial election authorized by (name and title of 
authorizing official) on (date), the attached [insert: Governing 
document and Bylaws, charter of incorporation, amendment or revocation] 
of the (official name of tribe) was submitted to the registered voters 
of the tribe and on (date) duly (insert: adopted, ratified, rejected or 
revoked) by a vote of (number) for and (number) against and (number) 
cast ballots found spoiled in an election in which at least 30

[[Page 294]]

percent (or such ``percentages'' as may be required to amend according 
the governing document) of the (number) registered voters cast their 
ballot in accordance with (appropriate Federal statute).
Signed: ___________________
    (by the Chair of the Secretarial Election Board and Board Members)
Date: _________________.; and
    (5) Advising that no changes or modifications can be made to any of 
the attached documents, without prior approval from the Authorizing 
Official.
    (b) The Local Bureau Official will appoint the Chair of the 
Secretarial Election Board and notify the tribe of the need to appoint 
at least two tribal members to the Secretarial Election Board. If the 
election is to be held as the result of a petition, then the Local 
Bureau Official will appoint a Bureau employee to serve as the Chair of 
the Secretarial Election Board and notify the tribe and the spokesperson 
for the petitioners of the need to appoint one tribal member each, who 
is at least 18 years of age, to the Secretarial Election Board. If the 
tribe or spokesperson declines or fails for any reason to make the 
appointment(s) by close of business on the 10th day after the date the 
notice letter is issued, the Chair of the Secretarial Election Board 
must appoint the representative(s), who are tribal members, if 
available, on the 11th day after the notice letter is issued.



Sec.  81.47  How is the OIWA Secretarial election conducted?

    After the Chair of the Election Board receives the authorization of 
the Election, the Chair of the Secretarial Election Board will conduct 
the election following the procedures set out in Sec. Sec.  81.19 
through Sec.  81.45 of subpart D.



Sec.  81.48  When are the results of the OIWA Election final?

    (a) If a challenge is sustained and has an effect on the outcome of 
the election, the Authorizing Official must authorize a recount or call 
for a new Secretarial election. The Authorizing Official will take the 
appropriate steps necessary to provide for a recount or a new 
Secretarial election.
    (b) If the challenges are denied or dismissed, the Authorizing 
Official will review and determine whether:
    (1) The percentage of total votes cast was at least 30 percent, or 
such percentages as may be required according to the tribe's governing 
document's amendment or adoption articles; and
    (2) The voters ratified or rejected the proposed document, proposed 
amendment or revocation.
    (c) The Authorizing Official must notify, in writing, the recognized 
governing body of the tribe, and the Director of the Bureau, of the 
following:
    (1) The decisions on challenges;
    (2) The outcome of the voting; and
    (3) That the proposed document, proposed amendments or revocation 
becomes effective as of the date of the Secretarial election; and
    (4) That the decision is a final agency action.
    (d) The Authorizing Official must:
    (1) Forward the original text of the document, Original Certificate 
of Approval, and the Certificate of Results of Election to the tribe and 
a copy of all documents to the Director of the Bureau; and
    (2) Retain, as required by the Records Disposition Schedule, a copy 
of all document(s) relevant to the Secretarial election.



    Subpart F_Formulating Petitions To Request a Secretarial Election



Sec.  81.49  What is the purpose of this subpart?

    This subpart establishes requirements for formulating and submitting 
petitions to request the Secretary to call a Secretarial election as 
required by the governing documents or charters of incorporation of 
tribes issued under the Indian Reorganization Act (IRA), 25 U.S.C. 476 
and 477, as amended, and the Oklahoma Indian Welfare Act (OIWA), 25 
U.S.C. 503. This Subpart may also be used by a federally recognized 
tribe that is adopting a governing document, under Federal statute, for 
the first time.



Sec.  81.50  Who must follow these requirements?

    Any tribe meeting the criteria in paragraphs (a) or (b) of this 
section must follow the requirements of this subpart.

[[Page 295]]

    (a) A tribe whose governing document or charter of incorporation 
provides for petitioning the Secretary to call a Secretarial election 
for any of the following purposes:
    (1) Amending or revoking the governing document;
    (2) Amending a charter of incorporation ratified under 25 U.S.C. 477 
of the IRA before May 24, 1990 where the amendments section or article 
specifically requires it;
    (3) Amending or ratifying a charter of incorporation under 25 U.S.C. 
503 of the OIWA; or
    (4) Taking any other action authorized by the governing document or 
charter of incorporation.
    (b) A federally recognized tribe, without an existing governing 
document, adopting a governing document under Federal statute, for the 
first time.



Sec.  81.51  How do tribal members circulate a petition to adopt 
or amend the tribe's governing document?

    Tribal members wishing to circulate a petition to adopt or amend the 
tribe's governing document may submit the proposed document to the Local 
Bureau Official for review and comment. The Local Bureau Official may 
help the petitioners in drafting governing documents, bylaws, charters, 
amendments and revocations. The Bureau may also explain the Secretarial 
election process.



Sec.  81.52  Who may initiate a petition?

    A member of the tribe who is 18 years of age or older whose tribe's 
governing document or charter of incorporation permits tribal members to 
petition the Secretary to authorize a Secretarial election.



Sec.  81.53  Who may sign a petition?

    A member of the tribe who is 18 years of age or older may sign a 
petition. Where the tribe's governing document imposes additional 
requirements (other than age requirements) on who may petition, those 
requirements also apply.



Sec.  81.54  Who is authorized to submit a petition to the Secretary?

    The petitioners must designate a spokesperson to submit the petition 
and act on their behalf for the petitioning process.



Sec.  81.55  How is the petition formatted and signed?

    (a) Each page of the petition must contain:
    (1) A summary of the purpose of the petition, or proposed document, 
or proposed amendment language;
    (2) Numbered lines for each individual to print their legal name, 
current mailing address, date, and signature, and;
    (3) The following declaration at the bottom of each page to confirm 
the collector was present when each signature was collected:

    ``I, (Collector's Printed Name) , hereby declare that each 
individual whose name appears above signed and dated the petition. To 
the best of my knowledge, the individual signing the petition is a 
member of the tribe and is 18 years or older.
    (Signature of Collector)
    (Notary Certification)'',

    (b) Each individual must print their legal name, current mailing 
address, date, and sign on a numbered line.
    (c) Each collector must complete and sign the declaration on each 
page in front of a notary, who will sign and certify.



Sec.  81.56  Do petitions have a minimum or maximum number of pages?

    A petition can have as many pages as necessary to obtain the 
required signatures. However, each page must have the information shown 
in Sec.  81.58 of this subpart.



Sec.  81.57  How do I determine how many signatures are needed 
for a petition to be valid?

    (a) For a tribe whose governing document or charter of incorporation 
provides for petitioning the Secretary to call a Secretarial election:
    (1) The spokesperson for the petitioners may ask the tribe or the 
Local Bureau Official how many signatures are required.
    (2) The Local Bureau Official will:
    (i) Contact the tribal governing body to obtain the current number 
of tribal members, 18 years of age or older, to

[[Page 296]]

determine the number of tribal members who must sign a petition as 
required by the tribe's governing document; and
    (ii) Notify the petitioners' spokesperson how many signatures are 
required and that the number is valid for 180 days from the date of this 
notification.
    (b) For a federally recognized tribe adopting a governing document 
under Federal statute for the first time, the petition must have 
signatures of 50 percent of the tribal members who are 18 years of age 
or older.



Sec.  81.58  How long do tribal members have to gather the signatures?

    Tribal members have one year from the date of the first signature to 
gather the required signatures.



Sec.  81.59  How does the spokesperson file a petition?

    The spokesperson must submit the original petition to the Local 
Bureau Official.



Sec.  81.60  How does the Local Bureau Official process the petition?

    (a) The Local Bureau Official must, on the date of receipt, date 
stamp the petition to record the Official Filing Date, and make four 
copies of the petition for use as follows:
    (1) Posting at the local Bureau office for 30 days from the Official 
Filing Date, including a statement of the proposal contained in the 
petition and instructions for filing a challenge;
    (2) Use in determining sufficiency of petition; and
    (3) For viewing at the Local Bureau Office by a member of the tribe, 
18 years of age or older.
    (b) The Local Bureau Official must, within one week of the Official 
Filing Date:
    (1) Provide the spokesperson written acknowledgment of receiving the 
petition, which contains the Official Filing Date, the exact number of 
signatures submitted on the petition, and the statement ``The 
petitioners may not add or withdraw any signatures from the petition 
after the Official Filing Date''; and
    (2) Provide a copy of the written acknowledgment of receipt and 
petition to the recognized tribal governing body.
    (c) The Local Bureau Official must:
    (1) Consult with the Office of the Solicitor to determine if any of 
the provisions that are the subject of the petition are or may be 
contrary to applicable law; and
    (2) If it appears that a provision is or may be contrary to 
applicable law, notify the petitioner's spokesperson in writing (with a 
copy to the recognized tribal governing body) how the provision may be 
contrary to applicable law.
    (d) The Local Bureau Official must promptly notify the petitioners 
(with a copy to the recognized tribal governing body) of any problems 
identified under paragraph (c) of this section at least 30 days before 
calling the election.



Sec.  81.61  How can signatures to the petition be challenged?

    Any member of the tribe, 18 years of age or older, may challenge in 
writing the signatures appearing on the petition. The challenge must be 
submitted to the Local Bureau Official, within 30 days of the Official 
Filing Date of the petition and must:
    (a) Identify the page and line on which a signature appears; and
    (b) Provide documentation supporting a challenge that at least one 
of the following is true:
    (1) A signature was forged;
    (2) An individual was ineligible to sign the petition;
    (3) A petition page is inconsistent or improperly formatted; or
    (4) A petition page contains an incomplete or un-notarized 
declaration statement.



Sec.  81.62  How is the petition validated?

    (a) The Local Bureau Official must:
    (1) Confirm the petition has the required number of signatures;
    (2) Indicate any signatures appearing more than once and include 
only one in the count;
    (3) Make recommendations regarding any challenge to the validity of 
signatures based upon the documentation provided by the challenger; and
    (4) Verify the petitioning procedures complied with this Subpart.
    (5) Transmit within 45 calendar days of the Official Filing Date the 
original

[[Page 297]]

petition, challenges, and recommendations to the Authorizing Official.
    (b) The Authorizing Official must within 60 calendar days of the 
Official Filing Date:
    (1) Determine whether the petition complies with the requirements of 
this Subpart;
    (2) Inform the spokesperson for the petitioners and the recognized 
tribal governing body, in writing, whether the petition is valid, the 
basis for that determination, and a statement that the decision of the 
Authorizing Official is a final agency action.
    (i) If the petition is determined valid for the purposes of calling 
a Secretarial election, it will be deemed a ``tribal request'' for the 
purposes of this part, and the Authorizing Official will instruct the 
Local Bureau Official to call and conduct the Secretarial election in 
accordance with Sec. Sec.  81.19 through 81.45 of subpart D.
    (ii) If the petition is determined invalid, the Authorizing Official 
will notify the spokesperson for the petitioners, with a courtesy copy 
to the tribe's governing body, that the petition was not valid and a 
Secretarial election will not be called.



Sec.  81.63  May the same petition be used for more than 
one Secretarial election?

    No. A petition may not be used for more than one Secretarial 
election. Each request for a Secretarial election requires a new 
petition.

                           PART 82 [RESERVED]



PART 83_PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES--
Table of Contents



                      Subpart A_General Provisions

Sec.
83.1 What terms are used in this part?
83.2 What is the purpose of the regulations in this part?
83.3 Who does this part apply to?
83.4 Who cannot be acknowledged under this part?
83.5 How does a petitioner obtain Federal acknowledgment under this 
          part?
83.6 What are the Department's duties?
83.7 How does this part apply to documented petitions submitted before 
          July 31, 2015?
83.8 May the deadlines in this part be extended?
83.9 How does the Paperwork Reduction Act affect the information 
          collections in this part?

              Subpart B_Criteria for Federal Acknowledgment

83.10 How will the Department evaluate each of the criteria?
83.11 What are the criteria for acknowledgment as a federally recognized 
          Indian tribe?
83.12 What are the criteria for a previously federally acknowledged 
          petitioner?

              Subpart C_Process for Federal Acknowledgment

                     Documented Petition Submission

83.20 How does an entity request Federal acknowledgment?
83.21 What must a documented petition include?
83.22 What notice will OFA provide upon receipt of a documented 
          petition?

                      Review of Documented Petition

83.23 How will OFA determine which documented petition to consider 
          first?
83.24 What opportunity will the petitioner have to respond to comments 
          before OFA reviews the petition?
83.25 Who will OFA notify when it begins review of a documented 
          petition?
83.26 How will OFA review a documented petition?
83.27 What are technical assistance reviews?
83.28 When does OFA review for previous Federal acknowledgment?
83.29 What will OFA consider in its reviews?
83.30 Can a petitioner withdraw its documented petition?
83.31 Can OFA suspend review of a documented petition?

                            Proposed Finding

83.32 When will OFA issue a proposed finding?
83.33 What will the proposed finding include?
83.34 What notice of the proposed finding will OFA provide?

                  Comment and Response Periods, Hearing

83.35 What opportunity will there be to comment after OFA issues the 
          proposed finding?
83.36 What procedure follows the end of the comment period for a 
          favorable proposed finding?
83.37 What procedure follows the end of the comment period on a negative 
          proposed finding?

[[Page 298]]

83.38 What options does the petitioner have at the end of the response 
          period on a negative proposed finding?
83.39 What is the procedure if the petitioner elects to have a hearing 
          before an ALJ?

         AS-IA Evaluation and Preparation of Final Determination

83.40 When will the Assistant Secretary begin review?
83.41 What will the Assistant Secretary consider in his/her review?
83.42 When will the Assistant Secretary issue a final determination?
83.43 How will the Assistant Secretary make the final determination 
          decision?
83.44 Is the Assistant Secretary's final determination final for the 
          Department?
83.45 When will the final determination be effective?
83.46 How is a petitioner with a positive final determination integrated 
          into Federal programs as a federally recognized Indian tribe?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 479a-1; Pub. L. 103-454 
Sec. 103 (Nov. 2, 1994); and 43 U.S.C. 1457.

    Source: 80 FR 37887, July 1, 2015, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  83.1  What terms are used in this part?

    As used in this part:
    ALJ means an administrative law judge in the Departmental Cases 
Hearings Division, Office of Hearings and Appeals (OHA), Department of 
the Interior, appointed under 5 U.S.C. 3105.
    Assistant Secretary or AS-IA means the Assistant Secretary--Indian 
Affairs within the Department of the Interior, or that officer's 
authorized representative, but does not include representatives of the 
Office of Federal Acknowledgment.
    Autonomous means independent of the control of any other Indian 
governing entity.
    Bureau means the Bureau of Indian Affairs within the Department of 
the Interior.
    Continental United States means the contiguous 48 states and Alaska.
    Department means the Department of the Interior, including the 
Assistant Secretary and OFA.
    Documented petition means the detailed arguments and supporting 
documentary evidence submitted by a petitioner claiming that it meets 
the Indian Entity Identification (Sec.  83.11(a)), Governing Document 
(Sec.  83.11(d)), Descent (Sec.  83.11(e)), Unique Membership (Sec.  
83.11(f)), and Congressional Termination (Sec.  83.11(g)) Criteria and 
claiming that it:
    (1) Demonstrates previous Federal acknowledgment under Sec.  
83.12(a) and meets the criteria in Sec.  83.12(b); or
    (2) Meets the Community (Sec.  83.11(b)) and Political Authority 
(Sec.  83.11(c)) Criteria.
    Federally recognized Indian tribe means an entity listed on the 
Department of the Interior's list under the Federally Recognized Indian 
Tribe List Act of 1994, which the Secretary currently acknowledges as an 
Indian tribe and with which the United States maintains a government-to-
government relationship.
    Historical means before 1900.
    Indigenous means native to the continental United States in that at 
least part of the petitioner's territory at the time of first sustained 
contact extended into what is now the continental United States.
    Member of a petitioner means an individual who is recognized by the 
petitioner as meeting its membership criteria and who consents to being 
listed as a member of the petitioner.
    Office of Federal Acknowledgment or OFA means the Office of Federal 
Acknowledgment within the Office of the Assistant Secretary--Indian 
Affairs, Department of the Interior.
    Petitioner means any entity that has submitted a documented petition 
to OFA requesting Federal acknowledgment as a federally recognized 
Indian tribe.
    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.
    Roll 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 roll means a list of those recognized as members by the tribe's 
governing body. In either case,

[[Page 299]]

those individuals on a roll must have affirmatively demonstrated consent 
to being listed as members.
    Secretary means the Secretary of the Interior within the Department 
of the Interior or that officer's authorized representative.
    Tribe means any Indian tribe, band, nation, pueblo, village or 
community.



Sec.  83.2  What is the purpose of the regulations in this part?

    The regulations in this part implement Federal statutes for the 
benefit of Indian tribes by establishing procedures and criteria for the 
Department to use to determine whether a petitioner is an Indian tribe 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians. A positive 
determination will result in Federal recognition status and the 
petitioner's addition to the Department's list of federally recognized 
Indian tribes. Federal recognition:
    (a) Is a prerequisite to the protection, services, and benefits of 
the Federal Government available to those that qualify as Indian tribes 
and possess a government-to-government relationship with the United 
States;
    (b) Means the tribe is entitled to the immunities and privileges 
available to other federally recognized Indian tribes;
    (c) Means the tribe has the responsibilities, powers, limitations, 
and obligations of other federally recognized Indian tribes; and
    (d) Subjects the Indian tribe to the same authority of Congress and 
the United States as other federally recognized Indian tribes.



Sec.  83.3  Who does this part apply to?

    This part applies only to indigenous entities that are not federally 
recognized Indian tribes.



Sec.  83.4  Who cannot be acknowledged under this part?

    The Department will not acknowledge:
    (a) An association, organization, corporation, or entity of any 
character formed in recent times unless the entity has only changed form 
by recently incorporating or otherwise formalizing its existing 
politically autonomous community;
    (b) A splinter group, political faction, community, or entity of any 
character that separates from the main body of a currently federally 
recognized Indian tribe, petitioner, or previous petitioner unless the 
entity can clearly demonstrate it has functioned from 1900 until the 
present as a politically autonomous community and meets Sec.  83.11(f), 
even though some have regarded them as part of or associated in some 
manner with a federally recognized Indian tribe;
    (c) An entity that is, or an entity whose members are, subject to 
congressional legislation terminating or forbidding the government-to-
government relationship; or
    (d) An entity that previously petitioned and was denied Federal 
acknowledgment under these regulations or under previous regulations in 
part 83 of this title (including reconstituted, splinter, spin-off, or 
component groups who were once part of previously denied petitioners).



Sec.  83.5  How does a petitioner obtain Federal acknowledgment 
under this part?

    To be acknowledged as a federally recognized Indian tribe under this 
part, a petitioner must meet the Indian Entity Identification (Sec.  
83.11(a)), Governing Document (Sec.  83.11(d)), Descent (Sec.  
83.11(e)), Unique Membership (Sec.  83.11(f)), and Congressional 
Termination (Sec.  83.11(g)) Criteria and must:
    (a) Demonstrate previous Federal acknowledgment under Sec.  83.12(a) 
and meet the criteria in Sec.  83.12(b); or
    (b) Meet the Community (Sec.  83.11(b)) and Political Authority 
(Sec.  83.11(c)) Criteria.



Sec.  83.6  What are the Department's duties?

    (a) The Department will publish in the Federal Register, by January 
30 each year, a list of all Indian tribes which the Secretary recognizes 
to be eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians, in 
accordance with the Federally Recognized Indian Tribe List Act of 1994. 
The list may be published more

[[Page 300]]

frequently, if the Assistant Secretary deems it necessary.
    (b) OFA will maintain guidelines limited to general suggestions on 
how and where to conduct research. The guidelines may be supplemented or 
updated as necessary. OFA will also make available examples of portions 
of documented petitions in the preferred format, though OFA will accept 
other formats.
    (c) OFA will, upon request, give prospective petitioners suggestions 
and advice on how to prepare the documented petition. OFA will not be 
responsible for the actual research on behalf of the petitioner.



Sec.  83.7  How does this part apply to documented petitions submitted 
before August 17, 2015?

    (a) Any petitioner who has not submitted a complete documented 
petition as of July 31, 2015 must proceed under these revised 
regulations. We will notify these petitioners and provide them with a 
copy of the revised regulations by July 31, 2015.
    (b) By August 31, 2015, OFA will notify each petitioner that has 
submitted complete documented petitions but has not yet received a final 
agency decision that it must proceed under these revised regulations 
unless it chooses by September 29, 2015 to complete the petitioning 
process under the previous version of the acknowledgment regulations as 
published in 25 CFR part 83, revised as of April 1, 1994.
    (c) Any petitioner who has submitted a documented petition under the 
previous version of the acknowledgment regulations and chooses to 
proceed under these revised regulations does not need to submit a new 
documented petition, but may supplement its petition.



Sec.  83.8  May the deadlines in this part be extended?

    (a) The AS-IA may extend any of the deadlines in this part upon a 
finding of good cause.
    (b) For deadlines applicable to the Department, AS-IA may extend the 
deadlines upon the consent of the petitioner.
    (c) If AS-IA grants a time extension, it will notify the petitioner 
and those listed in Sec.  83.22(d).



Sec.  83.9  How does the Paperwork Reduction Act affect 
the information collections in this part?

    The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-0104. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless the 
form or regulation requesting the information displays a currently valid 
OMB Control Number. Send comments regarding this collection of 
information, including suggestions for reducing the burden, to the 
Information Collection Clearance Officer--Indian Affairs, 1849 C Street, 
NW., Washington, DC 20240.



              Subpart B_Criteria for Federal Acknowledgment



Sec.  83.10  How will the Department evaluate each of the criteria?

    (a) The Department will consider a criterion in Sec.  83.11 to be 
met if the available evidence establishes a reasonable likelihood of the 
validity of the facts relating to that criterion.
    (1) The Department will not require conclusive proof of the facts 
relating to a criterion in order to consider the criterion met.
    (2) The Department will require existence of community and political 
influence or authority 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 will not in themselves be a cause for denial of acknowledgment 
under these criteria.
    (3) The petitioner may use the same evidence to establish more than 
one criterion.
    (4) Evidence or methodology that the Department found sufficient to 
satisfy any particular criterion in a previous decision will be 
sufficient to satisfy the criterion for a present petitioner.

[[Page 301]]

    (b) When evaluating a petition, the Department will:
    (1) Allow criteria to be met by any suitable evidence, rather than 
requiring the specific forms of evidence stated in the criteria;
    (2) Take into account historical situations and time periods for 
which evidence is demonstrably limited or not available;
    (3) Take into account the limitations inherent in demonstrating 
historical existence of community and political influence or authority;
    (4) Require a demonstration that the criteria are met on a 
substantially continuous basis, meaning without substantial 
interruption; and
    (5) Apply these criteria in context with the history, regional 
differences, culture, and social organization of the petitioner.



Sec.  83.11  What are the criteria for acknowledgment as 
a federally recognized Indian tribe?

    The criteria for acknowledgment as a federally recognized Indian 
tribe are delineated in paragraphs (a) through (g) of this section.
    (a) Indian entity identification. 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 will 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.
    (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.
    (7) Identification as an Indian entity by the petitioner itself.
    (b) Community. The petitioner comprises a distinct community and 
demonstrates that it existed as a community from 1900 until the present. 
Distinct community means an entity with consistent interactions and 
significant social relationships within its membership and whose members 
are differentiated from and distinct from nonmembers. Distinct community 
must be understood flexibly in the context of the history, geography, 
culture, and social organization of the entity. The petitioner may 
demonstrate that it meets this criterion by providing evidence for known 
adult members or by providing evidence of relationships of a reliable, 
statistically significant sample of known adult members.
    (1) The petitioner may demonstrate that it meets this criterion at a 
given point in time by some combination of two or more of the following 
forms of evidence or by other evidence to show that a significant and 
meaningful portion of the petitioner's members constituted a distinct 
community at a given point in time:
    (i) Rates or patterns of known marriages within the entity, or, as 
may be culturally required, known patterned out-marriages;
    (ii) Social relationships connecting individual members;
    (iii) Rates or patterns of informal social interaction that exist 
broadly among the members of the entity;
    (iv) Shared or cooperative labor or other economic activity among 
members;
    (v) Strong patterns of discrimination or other social distinctions 
by non-members;
    (vi) Shared sacred or secular ritual activity;
    (vii) Cultural patterns shared among a portion of the entity that 
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 system, religious beliefs 
or practices, and ceremonies;

[[Page 302]]

    (viii) The persistence of a collective identity continuously over a 
period of more than 50 years, notwithstanding any absence of or changes 
in name;
    (ix) Land set aside by a State for the petitioner, or collective 
ancestors of the petitioner, that was actively used by the community for 
that time period;
    (x) Children of members from a geographic area were placed in Indian 
boarding schools or other Indian educational institutions, to the extent 
that supporting evidence documents the community claimed; or
    (xi) A demonstration of political influence under the criterion in 
Sec.  83.11(c)(1) will be evidence for demonstrating distinct community 
for that same time period.
    (2) The petitioner will be considered to have provided more than 
sufficient evidence to demonstrate distinct community and political 
authority under Sec.  83.11(c) at a given point in time if the evidence 
demonstrates 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 
entity, and the balance of the entity maintains consistent interaction 
with some members residing in that area;
    (ii) At least 50 percent of the members of the entity were married 
to other members of the entity;
    (iii) At least 50 percent of the entity members maintain distinct 
cultural patterns such as, but not limited to, language, kinship system, 
religious beliefs and practices, or ceremonies;
    (iv) There are distinct community social institutions encompassing 
at least 50 percent of the members, such as kinship organizations, 
formal or informal economic cooperation, or religious organizations; or
    (v) The petitioner has met the criterion in Sec.  83.11(c) using 
evidence described in Sec.  83.11(c)(2).
    (c) Political influence or authority. The petitioner has maintained 
political influence or authority over its members as an autonomous 
entity from 1900 until the present. Political influence or authority 
means the entity uses a council, leadership, internal process, or other 
mechanism as a means of influencing or controlling the behavior of its 
members in significant respects, making decisions for the entity which 
substantially affect its members, and/or representing the entity in 
dealing with outsiders in matters of consequence. This process is to be 
understood flexibly in the context of the history, culture, and social 
organization of the entity.
    (1) The petitioner may demonstrate that it meets this criterion by 
some combination of two or more of the following forms of evidence or by 
other evidence that the petitioner had political influence or authority 
over its members as an autonomous entity:
    (i) The entity is able to mobilize significant numbers of members 
and significant resources from its members for entity purposes.
    (ii) Many of the membership consider issues acted upon or actions 
taken by entity leaders or governing bodies to be of importance.
    (iii) There is widespread knowledge, communication, or involvement 
in political processes by many of the entity's members.
    (iv) The entity meets the criterion in Sec.  83.11(b) at greater 
than or equal to the percentages set forth under Sec.  83.11(b)(2).
    (v) There are internal conflicts that show controversy over valued 
entity goals, properties, policies, processes, or decisions.
    (vi) The government of a federally recognized Indian tribe has a 
significant relationship with the leaders or the governing body of the 
petitioner.
    (vii) Land set aside by a State for petitioner, or collective 
ancestors of the petitioner, that is actively used for that time period.
    (viii) There is a continuous line of entity leaders and a means of 
selection or acquiescence by a significant number of the entity's 
members.
    (2) The petitioner will be considered to have provided sufficient 
evidence of political influence or authority at a given point in time if 
the evidence demonstrates any one of the following:
    (i) Entity leaders or other internal mechanisms exist or existed 
that:
    (A) Allocate entity resources such as land, residence rights, and 
the like on a consistent basis;

[[Page 303]]

    (B) Settle disputes between members or subgroups by mediation or 
other means on a regular basis;
    (C) Exert strong influence on the behavior of individual members, 
such as the establishment or maintenance of norms or the enforcement of 
sanctions to direct or control behavior; or
    (D) Organize or influence economic subsistence activities among the 
members, including shared or cooperative labor.
    (ii) The petitioner has met the requirements in Sec.  83.11(b)(2) at 
a given time.
    (d) Governing document. The petitioner must provide:
    (1) A copy of the entity's present governing document, including its 
membership criteria; or
    (2) In the absence of a governing document, a written statement 
describing in full its membership criteria and current governing 
procedures.
    (e) Descent. The petitioner's membership consists of individuals who 
descend from a historical Indian tribe (or from historical Indian tribes 
that combined and functioned as a single autonomous political entity).
    (1) The petitioner satisfies this criterion by demonstrating that 
the petitioner's members descend from a tribal roll directed by Congress 
or prepared by the Secretary on a descendancy basis for purposes of 
distributing claims money, providing allotments, providing a tribal 
census, or other purposes, unless significant countervailing evidence 
establishes that the tribal roll is substantively inaccurate; or
    (2) If no tribal roll was directed by Congress or prepared by the 
Secretary, the petitioner satisfies this criterion by demonstrating 
descent from a historical Indian tribe (or from historical Indian tribes 
that combined and functioned as a single autonomous political entity) 
with sufficient evidence including, but not limited to, one or a 
combination of the following identifying present members or ancestors of 
present members as being descendants of a historical Indian tribe (or of 
historical Indian tribes that combined and functioned as a single 
autonomous political entity):
    (i) Federal, State, or other official records or evidence;
    (ii) Church, school, or other similar enrollment records;
    (iii) Records created by historians and anthropologists in 
historical times;
    (iv) Affidavits of recognition by tribal elders, leaders, or the 
tribal governing body with personal knowledge; and
    (v) Other records or evidence.
    (f) Unique membership. The petitioner's membership is composed 
principally of persons who are not members of any federally recognized 
Indian tribe. However, a petitioner 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, a federally 
recognized Indian tribe, if the petitioner demonstrates that:
    (1) It has functioned as a separate politically autonomous community 
by satisfying criteria in paragraphs (b) and (c) of this section; and
    (2) Its members have provided written confirmation of their 
membership in the petitioner.
    (g) Congressional termination. Neither the petitioner nor its 
members are the subject of congressional legislation that has expressly 
terminated or forbidden the Federal relationship. The Department must 
determine whether the petitioner meets this criterion, and the 
petitioner is not required to submit evidence to meet it.



Sec.  83.12  What are the criteria for a previously 
federally acknowledged petitioner?

    (a) The petitioner may prove it was previously acknowledged as a 
federally recognized Indian tribe, or is a portion that evolved out of a 
previously federally recognized Indian tribe, by providing substantial 
evidence of unambiguous Federal acknowledgment, meaning that the United 
States Government recognized the petitioner as an Indian tribe eligible 
for the special programs and services provided by the United States to 
Indians because of their status as Indians with which the United States 
carried on a relationship at some prior date including, but not limited 
to, evidence that the petitioner had:

[[Page 304]]

    (1) Treaty relations with the United States;
    (2) Been denominated a tribe by act of Congress or Executive Order;
    (3) Been treated by the Federal Government as having collective 
rights in tribal lands or funds; or
    (4) Land held for it or its collective ancestors by the United 
States.
    (b) Once the petitioner establishes that it was previously 
acknowledged, it must demonstrate that it meets:
    (1) At present, the Community Criterion; and
    (2) Since the time of previous Federal acknowledgment or 1900, 
whichever is later, the Indian Entity Identification Criterion and 
Political Authority Criterion.



              Subpart C_Process for Federal Acknowledgment

                Documented Petition Submission and Review



Sec.  83.20  How does an entity request Federal acknowledgment?

    Any entity that believes it can satisfy the criteria in this part 
may submit a documented petition under this part to: Department of the 
Interior, Office of the Assistant Secretary--Indian Affairs, Attention: 
Office of Federal Acknowledgment, Mail Stop 4071 MIB, 1849 C Street NW, 
Washington, DC 20240.

[83 FR 33826, July 18, 2018]



Sec.  83.21  What must a documented petition include?

    (a) The documented petition may be in any readable form and must 
include the following:
    (1) A certification, signed and dated by the petitioner's governing 
body, stating that it is the petitioner's official documented petition;
    (2) A concise written narrative, with citations to supporting 
documentation, thoroughly explaining how the petitioner meets each of 
the criteria in Sec.  83.11, except the Congressional Termination 
Criterion (Sec.  83.11 (g))--
    (i) If the petitioner chooses to provide explanations of and 
supporting documentation for the Congressional Termination Criterion 
(Sec.  83.11 (g)), the Department will accept it; but
    (ii) The Department will conduct the research necessary to determine 
whether the petitioner meets the Congressional Termination Criterion 
(Sec.  83.11 (g)).
    (3) Supporting documentation cited in the written narrative and 
containing specific, detailed evidence that the petitioner meets each of 
the criteria in Sec.  83.11;
    (4) Membership lists and explanations, including:
    (i) An official current membership list, separately certified by the 
petitioner's governing body, of all known current members of the 
petitioner, including each member's full name (including maiden name, if 
any), date of birth, and current residential address;
    (ii) A statement describing the circumstances surrounding the 
preparation of the current membership list;
    (iii) A copy of each available former list of members based on the 
petitioner's own defined criteria; and
    (iv) A statement describing the circumstances surrounding the 
preparation of the former membership lists, insofar as possible.
    (b) If the documented petition contains any information that is 
protectable under Federal law such as the Privacy Act and Freedom of 
Information Act, the petitioner must provide a redacted version, an 
unredacted version of the relevant pages, and an explanation of the 
legal basis for withholding such information from public release. The 
Department will not publicly release information that is protectable 
under Federal law, but may release redacted information if not 
protectable under Federal law.



Sec.  83.22  What notice will OFA provide upon receipt 
of a documented petition?

    When OFA receives a documented petition, it will do all of the 
following:
    (a) Within 30 days of receipt, acknowledge receipt in writing to the 
petitioner.
    (b) Within 60 days of receipt:
    (1) Publish notice of receipt of the documented petition in the 
Federal Register and publish the following on the OFA Web site:
    (i) The narrative portion of the documented petition, as submitted 
by the

[[Page 305]]

petitioner (with any redactions appropriate under Sec.  83.21(b));
    (ii) The name, location, and mailing address of the petitioner and 
other information to identify the entity;
    (iii) The date of receipt;
    (iv) The opportunity for individuals and entities to submit comments 
and evidence supporting or opposing the petitioner's request for 
acknowledgment within 120 days of the date of the Web site posting; and
    (v) The opportunity for individuals and entities to request to be 
kept informed of general actions regarding a specific petitioner.
    (2) Notify, in writing, the following:
    (i) The governor of the State in which the petitioner is located;
    (ii) The attorney general of the State in which the petitioner is 
located;
    (iii) The government of the county-level (or equivalent) 
jurisdiction in which the petitioner is located; and
    (iv) Notify any recognized tribe and any petitioner that appears to 
have a historical or present relationship with the petitioner or that 
may otherwise be considered to have a potential interest in the 
acknowledgment determination.
    (c) Publish the following additional information to the OFA Web 
site:
    (1) Other portions of the documented petition, to the extent 
feasible and allowable under Federal law, except documentation and 
information protectable from disclosure under Federal law, as identified 
by Petitioner under Sec.  83.21(b) or otherwise;
    (2) Any comments or materials submitted by third parties to OFA 
relating to the documented petition;
    (3) Any substantive letter, proposed finding, recommended decision, 
and final determination issued by the Department;
    (4) OFA's contact list for each petitioner, including the point of 
contact for the petitioner; attorneys, and representatives; and
    (5) Contact information for any other individuals and entities that 
request to be kept informed of general actions regarding the petitioner.
    (d) All subsequent notices that the Department provides under this 
part will be provided via the most efficient means for OFA to:
    (1) The governor of the State in which the petitioner is located;
    (2) The attorney general of the State in which the petitioner is 
located;
    (3) The government of the county-level (or equivalent) jurisdiction 
in which the petitioner is located;
    (4) Any recognized tribe and any petitioner that appears to have a 
historical or present relationship with the petitioner or that may 
otherwise be considered to have a potential interest in the 
acknowledgment determination; and
    (5) Any individuals and entities that request to be kept informed of 
general actions regarding a specific petitioner.

                      Review of Documented Petition



Sec.  83.23  How will OFA determine which documented petition 
to consider first?

    (a) OFA will begin reviews of documented petitions in the order of 
their receipt.
    (1) At each successive review stage, there may be points at which 
OFA is waiting on additional information or clarification from the 
petitioner. Upon receipt of the additional information or clarification, 
OFA will return to its review of the documented petition as soon as 
possible.
    (2) To the extent possible, OFA will give highest priority to 
completing reviews of documented petitions it has already begun to 
review.
    (b) OFA will maintain a numbered register of documented petitions 
that have been received.
    (c) OFA will maintain a numbered register of any letters of intent, 
which were allowable prior to July 31, 2015, or incomplete (i.e., not 
fully documented) petitions and the original dates of their filing with 
the Department. If two or more documented petitions are ready for review 
on the same date, this register will determine the order of 
consideration.



Sec.  83.24  What opportunity will the petitioner have to respond to comments 
before OFA reviews the petition?

    Before beginning review of a documented petition, OFA will provide 
the petitioner with any comments on the petition received from 
individuals or entities under Sec.  83.22(b) and provide the petitioner 
with 90 days to respond to

[[Page 306]]

such comments. OFA will not begin review until it receives the 
petitioner's response to the comments or the petitioner requests that 
OFA proceed without its response.



Sec.  83.25  Who will OFA notify when it begins review 
of a documented petition?

    OFA will notify the petitioner and those listed in Sec.  83.22(d) 
when it begins review of a documented petition and will provide the 
petitioner and those listed in Sec.  83.22(d) with:
    (a) The name, office address, and telephone number of the staff 
member with primary administrative responsibility for the petition;
    (b) The names of the researchers conducting the evaluation of the 
petition; and
    (c) The name of their supervisor.



Sec.  83.26  How will OFA review a documented petition?

    (a) Phase I. When reviewing a documented petition, OFA will first 
determine if the petitioner meets the Governing Document Criterion 
(Sec.  83.11(d)), Descent Criterion (Sec.  83.11(e)), Unique Membership 
Criterion (Sec.  83.11(f)), and Termination Criterion (Sec.  83.11(g)), 
in accordance with the following steps.
    (1)(i) OFA will conduct a Phase I technical assistance review and 
notify the petitioner by letter of any deficiencies that would prevent 
the petitioner from meeting the Governing Document, Descent, Unique 
Membership, or Termination Criteria. Upon receipt of the letter, the 
petitioner must submit a written response that:
    (A) Withdraws the documented petition to further prepare the 
petition;
    (B) Submits additional information and/or clarification; or
    (C) Asks OFA to proceed with the review.
    (ii) If the documented petition claims previous Federal 
acknowledgment and/or includes evidence of previous Federal 
acknowledgment, the Phase I technical assistance review will include a 
review to determine whether that evidence meets the requirements of 
previous Federal acknowledgment (Sec.  83.12).
    (2) Following the receipt of the petitioner's written response to 
the Phase I technical assistance review, OFA will provide the petitioner 
with:
    (i) Any comments and evidence OFA may consider that the petitioner 
does not already have, to the extent allowable by Federal law; and
    (ii) The opportunity to respond in writing to the comments and 
evidence provided.
    (3) OFA will publish a negative proposed finding if it issues a 
deficiency letter under paragraph (a)(1)(i) of this section, and the 
petitioner:
    (i) Does not withdraw the documented petition or does not respond 
with information or clarification sufficient to address the 
deficiencies; or
    (ii) Asks OFA in writing to proceed with the review.
    (4) OFA will publish a positive proposed finding and proceed to 
Phase II if it determines that the petitioner meets the Governing 
Document, Descent, Unique Membership, and Termination criteria.
    (b) Phase II. If the petitioner meets the Governing Document, 
Descent, Unique Membership, and Termination criteria, OFA will next 
review whether the petitioner meets the Indian Entity Identification 
Criterion (Sec.  83.11(a)), the Community Criterion (Sec.  83.11(b)), 
and the Political Influence/Authority Criterion (Sec.  83.11(c)). If the 
petitioner claims previous Federal acknowledgment, the Department will 
also review whether petitioner proves previous Federal acknowledgment 
and, if so, will review whether the petitioner meets the criteria under 
Sec.  83.12(b).
    (1) OFA will conduct a Phase II technical assistance review and 
notify the petitioner by letter of any deficiencies that would prevent 
the petitioner from meeting these criteria. Upon receipt of the letter, 
the petitioner must submit a written response that:
    (i) Withdraws the documented petition to further prepare the 
petition;
    (ii) Provides additional information and/or clarification; or
    (iii) Asks OFA to proceed with the review.
    (2) Following receipt of the petitioner's written response to the 
Phase II technical assistance review, OFA will provide the petitioner 
with:
    (i) Any comments and evidence OFA may consider in preparing the 
proposed

[[Page 307]]

finding that the petitioner does not already have, to the extent 
allowable by Federal law; and
    (ii) The opportunity to respond in writing to the comments and 
evidence provided.
    (3) OFA will then review the record to determine:
    (i) For petitioners with previous Federal acknowledgment, whether 
the criteria at Sec.  83.12(b) are met; or
    (ii) For petitioners without previous Federal acknowledgment, 
whether the Indian Entity Identification (Sec.  83.11(a)), Community 
(Sec.  83.11(b)) and Political Authority (Sec.  83.11(c)) Criteria are 
met.
    (4) OFA will publish a negative proposed finding if it issues a 
deficiency letter under paragraph (a)(1) of this section, and the 
petitioner:
    (i) Does not withdraw the documented petition or does not respond 
with information or clarification sufficient to address the 
deficiencies; or
    (ii) Asks OFA in writing to proceed with the review.
    (5) OFA will publish a positive proposed finding if it determines 
that the petitioner meets the Indian Entity Identification (Sec.  
83.11(a)), Community (Sec.  83.11(b)) and Political Authority (Sec.  
83.11(c)) Criteria or, for petitioners with previous Federal 
acknowledgment, that the petitioner meets the criteria at Sec.  
83.12(b).



Sec.  83.27  What are technical assistance reviews?

    Technical assistance reviews are preliminary reviews for OFA to tell 
the petitioner where there appear to be evidentiary gaps for the 
criteria that will be under review in that phase and to provide the 
petitioner with an opportunity to supplement or revise the documented 
petition.



Sec.  83.28  When does OFA review for previous Federal acknowledgment?

    (a) OFA reviews the documented petition for previous Federal 
acknowledgment during the Phase II technical assistance review of the 
documented petition.
    (b) If OFA cannot verify previous Federal acknowledgment during this 
technical assistance review, the petitioner must provide additional 
evidence. If a petitioner claiming previous Federal acknowledgment does 
not respond or does not demonstrate the claim of previous Federal 
acknowledgment, OFA will consider its documented petition on the same 
basis as documented petitions submitted by petitioners not claiming 
previous Federal acknowledgment.



Sec.  83.29  What will OFA consider in its reviews?

    (a) In any review, OFA will consider the documented petition and 
evidence submitted by the petitioner, any comments and evidence on the 
petition received during the comment period, and petitioners' responses 
to comments and evidence received during the response period.
    (b) OFA may also:
    (1) Initiate and consider other research for any purpose relative to 
analyzing the documented petition and obtaining additional information 
about the petitioner's status; and
    (2) Request and consider timely submitted additional explanations 
and information from commenting parties to support or supplement their 
comments on the proposed finding and from the petitioner to support or 
supplement their responses to comments.
    (c) OFA must provide the petitioner with the additional material 
obtained in paragraph (b) of this section, and provide the petitioner 
with the opportunity to respond to the additional material. The 
additional material and any response by the petitioner will become part 
of the record.



Sec.  83.30  Can a petitioner withdraw its documented petition?

    A petitioner can withdraw its documented petition at any point in 
the process but the petition will be placed at the end of the numbered 
register of documented petitions upon re-submission and may not regain 
its initial priority number.



Sec.  83.31  Can OFA suspend review of a documented petition?

    (a) OFA can suspend review of a documented petition, either 
conditionally or for a stated period, upon:
    (1) A showing to the petitioner that there are technical or 
administrative

[[Page 308]]

problems that temporarily preclude continuing review; and
    (2) Approval by the Assistant Secretary.
    (b) Upon resolution of the technical or administrative problems that 
led to the suspension, the documented petition will have the same 
priority on the numbered register of documented petitions to the extent 
possible.
    (1) OFA will notify the petitioner and those listed in Sec.  
83.22(d) when it suspends and when it resumes review of the documented 
petition.
    (2) Upon the resumption of review, OFA will have the full six months 
to issue a proposed finding.

                            Proposed Finding



Sec.  83.32  When will OFA issue a proposed finding?

    (a) OFA will issue a proposed finding as shown in the following 
table:

------------------------------------------------------------------------
                 OFA must                           within . . .
------------------------------------------------------------------------
(1) Complete its review under Phase I and   six months after notifying
 either issue a negative proposed finding    the petitioner under Sec.
 and publish a notice of availability in     83.25 that OFA has begun
 the Federal Register, or proceed to         review of the petition.
 review under Phase II.
(2) Complete its review under Phase II and  six months after the
 issue a proposed finding and publish a      deadline in paragraph
 notice of availability in the Federal       (a)(1) of this section.
 Register.
------------------------------------------------------------------------

    (b) The times set out in paragraph (a) of this section will be 
suspended any time the Department is waiting for a response or 
additional information from the petitioner.
    (c) OFA will strive to limit the proposed finding and any reports to 
no more than 100 pages, cumulatively, excluding source documents.



Sec.  83.33  What will the proposed finding include?

    The proposed finding will summarize the evidence, reasoning, and 
analyses that are the basis for OFA's proposed finding regarding whether 
the petitioner meets the applicable criteria.
    (a) A Phase I negative proposed finding will address that the 
petitioner fails to meet any one or more of the following criteria: 
Governing Document (Sec.  83.11(d)), Descent (Sec.  83.11(e)), Unique 
Membership (Sec.  83.11(f)), or Congressional Termination (Sec.  
83.11(g)).
    (b) A Phase II proposed finding will address whether the petitioner 
meets the following criteria: Indian Entity Existence (Sec.  83.11(a)), 
Community (Sec.  83.11(b)), and Political Influence/Authority (Sec.  
83.11(c)).



Sec.  83.34  What notice of the proposed finding will OFA provide?

    In addition to publishing notice of the proposed finding in the 
Federal Register, OFA will:
    (a) Provide copies of the proposed finding and any supporting 
reports to the petitioner and those listed in Sec.  83.22(d); and
    (b) Publish the proposed finding and reports on the OFA Web site.

         Proposed Finding--Comment and Response Periods, Hearing



Sec.  83.35  What opportunity to comment will there be after OFA issues 
the proposed finding?

    (a) Publication of notice of the proposed finding will be followed 
by a 120-day comment period. During this comment period, the petitioner 
or any individual or entity may submit the following to OFA to rebut or 
support the proposed finding:
    (1) Comments, with citations to and explanations of supporting 
evidence; and
    (2) Evidence cited and explained in the comments.
    (b) Any individual or entity that submits comments and evidence must 
provide the petitioner with a copy of their submission.



Sec.  83.36  What procedure follows the end of the comment period 
on a favorable proposed finding?

    (a) At the end of the comment period for a favorable proposed 
finding, AS-IA will automatically issue a final determination 
acknowledging the petitioner as a federally recognized Indian tribe if 
OFA does not receive a timely objection with evidence challenging the 
proposed finding that the petitioner meets the acknowledgment criteria.
    (b) If OFA has received a timely objection and evidence challenging 
the favorable proposed finding, then the petitioner will have 60 days to 
submit a written response, with citations to and explanations of 
supporting evidence,

[[Page 309]]

and the supporting evidence cited and explained in the response. The 
Department will not consider additional comments or evidence on the 
proposed finding submitted by individuals or entities during this 
response period.



Sec.  83.37  What procedure follows the end of the comment period 
on a negative proposed finding?

    If OFA has received comments on the negative proposed finding, then 
the petitioner will have 60 days to submit a written response, with 
citations to and explanations of supporting evidence, and the supporting 
evidence cited and explained in the response. The Department will not 
consider additional comments or evidence on the proposed finding 
submitted by individuals or entities during this response period.



Sec.  83.38  What options does the petitioner have at the end 
of the response period on a negative proposed finding?

    (a) At the end of the response period for a negative proposed 
finding, the petitioner will have 60 days to elect to challenge the 
proposed finding before an ALJ by sending to the Departmental Cases 
Hearings Division, Office of Hearings and Appeals, with a copy to OFA a 
written election of hearing that lists:
    (1) Grounds for challenging the proposed finding, including issues 
of law and issues of material fact; and
    (2) The witnesses and exhibits the petitioner intends to present at 
the hearing, other than solely for impeachment purposes, including:
    (i) For each witness listed, his or her name, address, telephone 
number, and qualifications and a brief narrative summary of his or her 
expected testimony; and
    (ii) For each exhibit listed, a statement confirming that the 
exhibit is in the administrative record reviewed by OFA or is a previous 
final determination of a petitioner issued by the Department.
    (b) The Department will not consider additional comments or evidence 
on the proposed finding submitted by individuals or entities during this 
period.



Sec.  83.39  What is the procedure if the petitioner elects 
to have a hearing before an ALJ?

    (a) If the petitioner elects a hearing to challenge the proposed 
finding before an ALJ, OFA will provide to the Departmental Cases 
Hearings Division, Office of Hearings and Appeals, copies of the 
negative proposed finding, critical documents from the administrative 
record that are central to the portions of the negative proposed finding 
at issue, and any comments and evidence and responses sent in response 
to the proposed finding.
    (1) Within 5 business days after receipt of the petitioner's hearing 
election, OFA will send notice of the election to each of those listed 
in Sec.  83.22(d) and the Departmental Cases Hearings Division by 
express mail or courier service for delivery on the next business day.
    (2) OFA will retain custody of the entire, original administrative 
record.
    (b) Hearing process. The assigned ALJ will conduct the hearing 
process in accordance with 43 CFR part 4, subpart K.
    (c) Hearing record. The hearing will be on the record before an ALJ. 
The hearing record will become part of the record considered by AS-IA in 
reaching a final determination.
    (d) Recommended decision. The ALJ will issue a recommended decision 
and forward it along with the hearing record to the AS-IA in accordance 
with the timeline and procedures in 43 CFR part 4, subpart K.

         AS-IA Evaluation and Preparation of Final Determination



Sec.  83.40  When will the Assistant Secretary begin review?

    (a) AS-IA will begin his/her review in accordance with the following 
table:

----------------------------------------------------------------------------------------------------------------
              If the PF was:                            And:                   AS-IA will begin review upon:
----------------------------------------------------------------------------------------------------------------
(1) Negative.............................  The petitioner did not elect a  Expiration of the period for the
                                            hearing.                        petitioner to elect a hearing.
(2) Negative.............................  The petitioner elected a        Receipt of the ALJ's recommended
                                            hearing.                        decision.
(3) Positive.............................  No objections with evidence     Expiration of the comment period for
                                            were received.                  the positive PF.
(4) Positive.............................  Objections with evidence were   Expiration of the period for the
                                            received.                       petitioner to respond to comments on
                                                                            the positive PF.
----------------------------------------------------------------------------------------------------------------


[[Page 310]]

    (b) AS-IA will notify the petitioner and those listed in Sec.  
83.22(d) of the date he/she begins consideration.



Sec.  83.41  What will the Assistant Secretary consider in his/her review?

    (a) AS-IA will consider all the evidence in the administrative 
record, including any comments and responses on the proposed finding and 
any the hearing transcript and recommended decision.
    (b) AS-IA will not consider comments submitted after the close of 
the comment period in Sec.  83.35, the response period in Sec.  83.36 or 
Sec.  83.37, or the hearing election period in Sec.  83.38.



Sec.  83.42  When will the Assistant Secretary issue a final determination?

    (a) AS-IA will issue a final determination and publish a notice of 
availability in the Federal Register within 90 days from the date on 
which he/she begins its review. AS-IA will also
    (1) Provide copies of the final determination to the petitioner and 
those listed in Sec.  83.22(d); and
    (2) Make copies of the final determination available to others upon 
written request.
    (b) AS-IA will strive to limit the final determination and any 
reports to no more than 100 pages, cumulatively, excluding source 
documents.



Sec.  83.43  How will the Assistant Secretary make the determination decision?

    (a) AS-IA will issue a final determination granting acknowledgment 
as a federally recognized Indian tribe when AS-IA finds that the 
petitioner meets the Governing Document (Sec.  83.11(d)), Descent (Sec.  
83.11(e)), Unique Membership (Sec.  83.11(f)), and Congressional 
Termination (Sec.  83.11(g)) Criteria and:
    (1) Demonstrates previous Federal acknowledgment under Sec.  
83.12(a) and meets the criteria in Sec.  83.12(b); or
    (2) Meets the Indian Entity Identification (Sec.  83.11(a)), 
Community (Sec.  83.11(b)) and Political Authority (Sec.  83.11(c)) 
Criteria.
    (b) AS-IA will issue a final determination declining acknowledgement 
as a federally recognized Indian tribe when he/she finds that the 
petitioner:
    (1) In Phase I, does not meet the Governing Document (Sec.  
83.11(d)), Descent (Sec.  83.11(e)), Unique Membership (Sec.  83.11(f)), 
or Congressional Termination (Sec.  83.11(g)) Criteria: or
    (2) In Phase II, does not:
    (i) Demonstrate previous Federal acknowledgment under Sec.  83.12(a) 
and meet the criteria in Sec.  83.12(b); or
    (ii) Meet the Indian Entity Identification (Sec.  83.11(a)), 
Community (Sec.  83.11(b)) and Political Authority (Sec.  83.11(c)) 
Criteria.



Sec.  83.44  Is the Assistant Secretary's final determination final 
for the Department?

    Yes. The AS-IA's final determination is final for the Department and 
is a final agency action under the Administrative Procedure Act (5 
U.S.C. 704).



Sec.  83.45  When will the final determination be effective?

    The final determination will become immediately effective. Within 10 
business days of the decision, the Assistant Secretary will submit to 
the Federal Register a notice of the final determination to be published 
in the Federal Register.



Sec.  83.46  How is a petitioner with a positive final determination 
integrated into Federal programs as a federally recognized Indian tribe?

    (a) Upon acknowledgment, the petitioner will be a federally 
recognized Indian tribe entitled to the privileges and immunities 
available to federally recognized Indian tribes. It will be included on 
the list of federally recognized Indian tribes in the next scheduled 
publication.
    (b) Within six months after acknowledgment, the appropriate Bureau 
of Indian Affairs Regional Office will consult with the newly federally 
recognized Indian tribe and develop, in cooperation with the federally 
recognized Indian tribe, a determination of needs and a recommended 
budget. These will be forwarded to the Assistant Secretary. The 
recommended budget will then be considered with other recommendations by 
the Assistant Secretary in the usual budget request process.
    (c) While the newly federally acknowledged Indian tribe is eligible 
for

[[Page 311]]

benefits and services available to federally recognized Indian tribes, 
acknowledgment as a federally recognized Indian tribe does not create 
immediate access to existing programs. The newly federally acknowledged 
Indian 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 will follow a determination of 
the needs of the newly federally acknowledged Indian tribe.



PART 84_ENCUMBRANCES OF TRIBAL LAND_CONTRACT APPROVALS--Table of Contents



Sec.
84.001 What is the purpose of this part?
84.002 What terms must I know?
84.003 What types of contracts and agreements require Secretarial 
          approval under this part?
84.004 Are there types of contracts and agreements that do not require 
          Secretarial approval under this part?
84.005 Will the Secretary approve contracts or agreements even where 
          such approval is not required under this part?
84.006 Under what circumstances will the Secretary disapprove a contract 
          or agreement that requires Secretarial approval under this 
          part?
84.007 What is the status of a contract or agreement that requires 
          Secretarial approval under this part but has not yet been 
          approved?
84.008 What is the effect of the Secretary's disapproval of a contract 
          or agreement that requires Secretarial approval under this 
          part?

    Authority: 25 U.S.C. 81, Pub. L. 106-179.

    Source: 66 FR 38923, July 26, 2001, unless otherwise noted.



Sec.  84.001  What is the purpose of this part?

    The purpose of this part is to implement the provisions of the 
Indian Tribal Economic Development and Contract Encouragement Act of 
2000, Public Law 106-179, which amends section 2103 of the Revised 
Statutes, found at 25 U.S.C. 81.



Sec.  84.002  What terms must I know?

    The Act means the Indian Tribal Economic Development and Contract 
Encouragement Act of 2000, Public Law 106-179, which amends section 2103 
of the Revised Statutes, found at 25 U.S.C. 81.
    Encumber means to attach a claim, lien, charge, right of entry or 
liability to real property (referred to generally as encumbrances). 
Encumbrances covered by this part may include leasehold mortgages, 
easements, and other contracts or agreements that by their terms could 
give to a third party exclusive or nearly exclusive proprietary control 
over tribal land.
    Indian tribe, as defined by the Act, means any Indian tribe, nation, 
or other organized group or community, including any Alaska 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 special programs and services provided by the Secretary to 
Indians because of their status as Indians.
    Secretary means the Secretary of the Interior or his or her 
designated representative.
    Tribal lands means those lands held by the United States in trust 
for an Indian tribe or those lands owned by an Indian tribe subject to 
federal restrictions against alienation, as referred to Public Law 106-
179 as ``Indian lands.''



Sec.  84.003  What types of contracts and agreements require 
Secretarial approval under this part?

    Unless otherwise provided in this part, contracts and agreements 
entered into by an Indian tribe that encumber trial lands for a period 
of seven or more years require Secretarial approval under this part.



Sec.  84.004  Are there types of contracts and agreements that do not require 
Secretarial approval under this part?

    Yes, the following types of contracts or agreements do not require 
Secretarial approval under this part:
    (a) Contracts or agreements otherwise reviewed and approved by the 
Secretary under this title or other federal law or regulation. See, for 
example, 25 CFR parts 152 (patents in fee, certificates or competency); 
162 (non-mineral leases, leasehold mortgages); 163 (timber contracts); 
166 (grazing permits); 169 (rights-of-way); 200 (coal leases); 211 
(mineral leases); 216 (surface mining

[[Page 312]]

permits and leases); and 225 (mineral development agreements);
    (b) Leases of tribal land that are exempt from approval by the 
Secretary under 25 U.S.C. 415 or 25 U.S.C. 477;
    (c) Sublease and assignments of leases of tribal land that do not 
require approval by the Secretary under part 162 of this title;
    (d) Contracts or agreements that convey to tribal members any rights 
for temporary use of tribal lands, assigned by Indian tribes in 
accordance with tribal laws or custom;
    (e) Contracts or agreements that do not convey exclusive or nearly 
exclusive proprietary control over tribal lands for a period of seven 
years or more;
    (f) Contracts or agreements that are exempt from Secretarial 
approval under the terms of a corporate charter authorized by 25 U.S.C. 
477;
    (g) Tribal attorney contracts, including those for the Five 
Civilized Tribes that are subject to our approval under 25 U.S.C. 82a;
    (h) Contracts or agreements entered into in connection with a 
contract under the Indian Self-Determination Act, 25 U.S.C. 450f, or a 
compact under the Tribal Self-Governance Act, 25 U.S.C. 458aa.
    (i) Contracts or agreements that are subject to approval by the 
National Indian Gaming Commission under the Indian Gaming Regulatory 
Act, 25 U.S.C. 2701 et seq., and the Commission's regulations; or
    (j) Contracts or agreements relating to the use of tribal lands for 
hydropower projects where the tribal lands meet the definition of a 
``reservation'' under the Federal Power Act (FPA), provided that:
    (1) Federal Energy Regulatory Commission (FERC) has issued a license 
or an exemption;
    (2) FERC has made the finding under section 4(e) of the FPA (16 
U.S.C. 797(e)) that the license or exemption will not interfere or be 
inconsistent with the purpose for which such reservation was created or 
acquired; and
    (3) FERC license or exemption includes the Secretary's conditions 
for protection and utilization of the reservation under section 4(e) and 
payment of annual use charges to the tribe under section 10(e) of the 
FPA (16 U.S.C. 803(e)).



Sec.  84.005  Will the Secretary approve contracts or agreements 
even where such approval is not required under this part?

    No, the Secretary will not approve contracts or agreements that do 
not encumber tribal lands for a period of seven or more years. Within 
thirty days after receipt of final, executed documents, the Secretary 
will return such contracts and agreements with a statement explaining 
why Secretarial approval is not required. The provisions of the Act will 
not apply to those contracts or agreements the Secretary determines are 
not covered by the Act.



Sec.  84.006  Under what circumstances will the Secretary 
disapprove a contract or agreement that requires Secretarial approval 
under this part?

    (a) The Secretary will disapprove a contract or agreement that 
requires Secretarial approval under this part if the Secretary 
determines that such contract or agreement:
    (1) Violates federal law; or
    (2) Does not contain at least one of the following provisions that:
    (i) Provides for remedies in the event the contract or agreement is 
breached;
    (ii) References a tribal code, ordinance or ruling of a court of 
competent jurisdiction that discloses the right of the tribe to assert 
sovereign immunity as a defense in an action brought against the tribe; 
or
    (iii) Includes an express waiver of the right of the tribe to assert 
sovereign immunity as a defense in any action brought against the tribe, 
including a waiver that limits the nature of relief that may be provided 
or the jurisdiction of a court with respect to such an action.
    (b) The Secretary will consult with the Indian tribe as soon as 
practicable before disapproving a contract or agreement regarding the 
elements of the contract or agreement that may lead to disapproval.

[[Page 313]]



Sec.  84.007  What is the status of a contract or agreement 
that requires Secretarial approval under this part but 
has not yet been approved?

    A contract or agreement that requires Secretarial approval under 
this part is not valid until the Secretary approves it.



Sec.  84.008  What is the effect of the Secretary's disapproval 
of a contract or agreement that requires Secretarial approval 
under this part?

    If the Secretary disapproves a contract or agreement that requires 
Secretarial approval under this part, the contract or agreement is 
invalid as a matter of law.



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 Programing 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.
    (l) Per capita payment means that aspect of a plan which pertains to 
the individualization of the judgment funds

[[Page 314]]

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 programming, 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 him, shall hold a hearing of record to

[[Page 315]]

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 programming 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 316]]

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  Programming aspects of plans.

    In assessing any tribal programming 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 
programming 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 programming 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:

[[Page 317]]

    (i) The tribal governing body specifically requests the 
establishment of 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 programming 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 programming 
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

[[Page 318]]

capita distribution, and the expenditure of all programming 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.
89.1-89.26 [Reserved]

                          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.
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. 89.30 to 89.35 also issued under 25 
U.S.C. 2, 9, and 82a; 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. Sec.  89.1-89.26  [Reserved]

                          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,

[[Page 319]]

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]



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.

[[Page 320]]



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 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

[[Page 321]]

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 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. * * *

[[Page 322]]

                               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 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

[[Page 323]]

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 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.

[[Page 324]]



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 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

[[Page 325]]

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:

                             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

[[Page 326]]

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 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

[[Page 327]]

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 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

[[Page 328]]

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]



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

[[Page 329]]

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 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

[[Page 330]]

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.
    (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.

[[Page 331]]



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]



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 332]]



                    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 Uncollectable loans made by the United States.
101.18 Uncollectable 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 333]]

    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 334]]

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 335]]

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 336]]

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 337]]

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 338]]

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 339]]

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 
security 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 
thirty 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 340]]

    (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 of principal and interest 
owing on

[[Page 341]]

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 342]]

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 343]]

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 Sec. Sec.  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



                      Subpart A_General Provisions

Sec.
103.1 What does this part do?
103.2 Who does the Program help?
103.3 Who administers the Program?
103.4 What kinds of loans will BIA guarantee or insure?
103.5 What size loan will BIA guarantee or insure?
103.6 To what extent will BIA guarantee or insure a loan?
103.7 Must the borrower have equity in the business being financed?
103.8 Is there any cost for a BIA guaranty or insurance coverage?

  Subpart B_How a Lender Obtains a Loan Guaranty or Insurance Coverage

103.9 Who applies to BIA under the Program?
103.10 What lenders are eligible under the Program?
103.11 How does BIA approve lenders for the Program?
103.12 How does a lender apply for a loan guaranty?
103.13 How does a lender apply for loan insurance coverage?
103.14 Can BIA request additional information?
103.15 Are there any prohibited loan terms?
103.16 How does BIA approve or reject a loan guaranty or insurance 
          application?
103.17 Must the lender follow any special procedures to close the loan?
103.18 How does BIA issue a loan guaranty or confirm loan insurance?
103.19 When must the lender pay BIA the loan guaranty or insurance 
          premium?

                       Subpart C_Interest Subsidy

103.20 What is interest subsidy?
103.21 Who applies for interest subsidy payments, and what is the 
          application procedure?
103.22 How does BIA determine the amount of interest subsidy?
103.23 How does BIA make interest subsidy payments?
103.24 How long will BIA make interest subsidy payments?

[[Page 344]]

               Subpart D_Provisions Relating to Borrowers

103.25 What kind of borrower is eligible under the Program?
103.26 What must the borrower supply the lender in its loan application?
103.27 Can the borrower get help preparing its loan application or 
          putting its loan funds to use?

                        Subpart E_Loan Transfers

103.28 What if the lender transfers part of the loan to another person?
103.29 What if the lender transfers the entire loan?

                  Subpart F_Loan Servicing Requirements

103.30 What standard of care must a lender meet?
103.31 What loan servicing requirements apply to BIA?
103.32 What sort of loan documentation does BIA expect the lender to 
          maintain?
103.33 Are there reporting requirements?
103.34 What if the lender and borrower decide to change the terms of the 
          loan?

                  Subpart G_Default and Payment by BIA

103.35 What must the lender do if the borrower defaults on the loan?
103.36 What options and remedies does the lender have if the borrower 
          defaults on the loan?
103.37 What must the lender do to collect payment under its loan 
          guaranty certificate or loan insurance coverage?
103.38 Is there anything else for BIA or the lender to do after BIA 
          makes payment?
103.39 When will BIA refuse to pay all or part of a lender's claim?
103.40 Will BIA make exceptions to its criteria for denying payment?
103.41 What happens if a lender violates provisions of this part?
103.42 How long must a lender comply with Program requirements?
103.43 What must the lender do after repayment in full?

           Subpart H_Definitions and Miscellaneous Provisions

103.44 What certain terms mean in this part.
103.45 Information collection.

    Authority: 25 U.S.C. 1498, 1511.

    Source: 66 FR 3867, Jan. 17, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  103.1  What does this part do?

    This part explains how to obtain and use a BIA loan guaranty or loan 
insurance agreement under the Program, and who may do so. It also 
describes how to obtain and use interest subsidy payments under the 
Program, and who may do so.



Sec.  103.2  Who does the Program help?

    The purpose of the Program is to encourage eligible borrowers to 
develop viable Indian businesses through conventional lender financing. 
The direct function of the Program is to help lenders reduce excessive 
risks on loans they make. That function in turn helps borrowers secure 
conventional financing that might otherwise be unavailable.



Sec.  103.3  Who administers the Program?

    Authority for administering the Program ultimately rests with the 
Secretary, who may exercise that authority directly at any time. Absent 
a direct exercise of authority, however, the Secretary delegates Program 
authority to BIA officials through the U.S. Department of Interior 
Departmental Manual. A lender should submit all applications and 
correspondence to the BIA office serving the borrower's location.



Sec.  103.4  What kinds of loans will BIA guarantee or insure?

    In general, BIA may guarantee or insure any loan made by an eligible 
lender to an eligible borrower to conduct a lawful business organized 
for profit. There are several important exceptions:
    (a) The business must contribute to the economy of an Indian 
reservation or tribal service area recognized by BIA;
    (b) The borrower may not use the loan for relending purposes;
    (c) If any portion of the loan is used to refinance an existing 
loan, the borrower must be current on the existing loan; and
    (d) BIA may not guarantee or insure a loan if it believes the lender 
would be

[[Page 345]]

willing to extend the requested financing without a BIA guaranty or 
insurance coverage.



Sec.  103.5  What size loan will BIA guarantee or insure?

    BIA can guarantee or insure a loan or combination of loans of up to 
$500,000 for an individual Indian, or more for an acceptable Indian 
business entity, Tribe, or tribal enterprise involving two or more 
persons. No individual Indian may have an outstanding principal balance 
of more than $500,000 in guaranteed or insured loans at any time. BIA 
can limit the size of loans it will guarantee or insure, depending on 
the resources BIA has available.



Sec.  103.6  To what extent will BIA guarantee or insure a loan?

    (a) BIA can guarantee up to 90 percent of the unpaid principal and 
accrued interest due on a loan.
    (b) BIA can insure up to the lesser of:
    (1) 90 percent of the unpaid principal and accrued interest due on a 
loan; or
    (2) 15 percent of the aggregate outstanding principal amount of all 
loans the lender has insured under the Program as of the date the lender 
makes a claim under its insurance coverage.
    (c) BIA's guaranty certificate or loan insurance agreement should 
reflect the lowest guaranty or insurance percentage rate that satisfies 
the lender's risk management requirements.
    (d) Absent exceptional circumstances, BIA will allow no more than:
    (1) Two simultaneous guarantees under the Program covering 
outstanding loans from the same lender to the same borrower; or
    (2) One loan guaranty under the Program when the lender 
simultaneously has one or more outstanding loans insured under the 
Program to the same borrower.



Sec.  103.7  Must the borrower have equity in the business being financed?

    The borrower must be projected to have at least 20 percent equity in 
the business being financed, immediately after the loan is funded. If a 
substantial portion of the loan is for construction or renovation, the 
borrower's equity may be calculated based upon the reasonable estimated 
value of the borrower's assets after completion of the construction or 
renovation.



Sec.  103.8  Is there any cost for a BIA guaranty or insurance coverage?

    BIA charges the lender a premium for a guaranty or insurance 
coverage.
    (a) The premium is:
    (1) Two percent of the portion of the original loan principal amount 
that BIA guarantees; or
    (2) One percent of the portion of the original loan principal amount 
that BIA insures, without considering the 15 percent aggregate 
outstanding principal limitation on the lender's insured loans.
    (b) Lenders may pass the cost of the premium on to the borrower, 
either by charging a one-time fee or by adding the cost to the principal 
amount of the borrower's loan. Adding the premium to the principal 
amount of the loan will not make any further premium due. BIA will 
guarantee or insure the additional principal to the same extent as the 
original approved principal amount.



  Subpart B_How a Lender Obtains a Loan Guaranty or Insurance Coverage



Sec.  103.9  Who applies to BIA under the Program?

    The lender is responsible for determining whether it will require a 
BIA guaranty or insurance coverage, based upon the loan application it 
receives from an eligible borrower. If the lender requires a BIA 
guaranty or insurance coverage, the lender is responsible for completing 
and submitting a guaranty application or complying with a loan insurance 
agreement under the Program.



Sec.  103.10  What lenders are eligible under the Program?

    (a) Except as specified in paragraph (b) of this section, a lender 
is eligible under the Program, and may be considered for BIA approval, 
if the lender is:
    (1) Regularly engaged in the business of making loans;

[[Page 346]]

    (2) Capable of evaluating and servicing loans in accordance with 
reasonable and prudent industry standards; and
    (3) Otherwise reasonably acceptable to BIA.
    (b) The following lenders are not qualified to issue loans under the 
Program:
    (1) An agency or instrumentality of the Federal Government;
    (2) A lender that borrows money from any Federal Government source, 
other than the Federal Reserve Bank System, for purposes of relending;
    (3) A lender that does not include the interest on loans it makes in 
gross income, for purposes of chapter 1, title 26 of the United States 
Code; and
    (4) A lender that does not keep any ownership interest in loans it 
originates.



Sec.  103.11  How does BIA approve lenders for the Program?

    (a) BIA approves each lender by entering into a loan guaranty 
agreement and/or a loan insurance agreement with it. BIA may provide up 
to three different levels of approval for a lender making guaranteed 
loans, depending on factors such as:
    (1) The number of loans the lender makes under the Program;
    (2) The total principal balance of the lender's Program loans;
    (3) The number of years the lender has been involved with the 
Program;
    (4) The relative benefits and opportunities the lender has given to 
Indian business efforts through the Program; and
    (5) The lender's historical compliance with Program requirements.
    (b) BIA will consider a lender's loan guaranty agreement and/or loan 
insurance agreement suspended as of:
    (1) The effective date of a change in the lender's corporate 
structure;
    (2) The effective date of a merger between the lender and any other 
entity, when the lender is not the surviving entity; or
    (3) The start of any legal proceeding in which substantially all of 
the lender's assets may be subject to disposition through laws governing 
bankruptcy, insolvency, or receivership.
    (c) A change in a lender's name, without any other change specified 
under paragraph (b) of this section, will not cause a suspension of the 
lender's loan guaranty agreement and/or loan insurance agreement. The 
lender should notify BIA of its name change as soon as possible.
    (d) If a lender's loan guaranty agreement and/or loan insurance 
agreement is suspended under paragraph (b) of this section, the lender, 
or its successor in interest, must enter into a new loan guaranty 
agreement and/or loan insurance agreement with BIA in order to secure 
any new BIA loan guarantees or insurance coverage.
    (e) The suspension of a loan guaranty agreement and/or loan 
insurance agreement does not affect the validity of any guaranty 
certificate or insurance coverage in effect before the date of the 
suspension. Any such certificate or insurance coverage will remain 
governed by applicable terms of the suspended loan guaranty agreement 
and/or loan insurance agreement.



Sec.  103.12  How does a lender apply for a loan guaranty?

    To apply for a loan guaranty, a BIA-approved lender must submit to 
BIA a loan guaranty application request form, together with each of the 
following:
    (a) A written explanation from the lender indicating why it needs a 
BIA guaranty for the loan, and the minimum loan guarantee percentage it 
will accept;
    (b) A copy of the borrower's complete loan application;
    (c) A description of the borrower's equity in the business being 
financed;
    (d) A copy of the lender's independent credit analysis of the 
borrower's business, repayment ability, and loan collateral (including 
insurance);
    (e) An original report from a nationally-recognized credit bureau, 
dated within 90 days of the date of the lender's loan guaranty 
application package, outlining the credit history of the borrower, and 
to the extent permitted by law, each co-maker or guarantor of the loan 
(if any);
    (f) A copy of the lender's loan commitment letter to the borrower, 
showing at a minimum the proposed loan

[[Page 347]]

amount, purpose, interest rate, schedule of payments, and security 
(including insurance requirements), and the lender's terms and 
conditions for funding;
    (g) The lender's good faith estimate of any loan-related fees and 
costs it will charge the borrower, as authorized under this part;
    (h) If any significant portion of the loan will be used to finance 
construction, renovation, or demolition work, the lender's:
    (1) Insurance and bonding requirements for the work;
    (2) Proposed draw requirements; and
    (3) Proposed work inspection procedures;
    (i) If any significant portion of the loan will be used to refinance 
or otherwise retire existing indebtedness:
    (1) A clear description of all loans being paid off, including the 
names of all makers, cosigners and guarantors, maturity dates, payment 
schedules, uncured delinquencies, collateral, and payoff amounts as of a 
specific date; and
    (2) A comparison of the terms of the loan or loans being paid off 
and the terms of the new loan, identifying the advantages of the new 
loan over the loan being paid off.



Sec.  103.13  How does a lender apply for loan insurance coverage?

    BIA-approved lenders can make loans insured under the Program in two 
ways, depending on the size of the loan:
    (a) For loans in an original principal amount of up to $100,000 per 
borrower, the lender can make each loan in accordance with the lender's 
loan insurance agreement, without specific prior approval from BIA.
    (b) For loans in an original principal amount of over $100,000, the 
lender must seek BIA's specific prior approval in each case. The lender 
must submit a loan insurance coverage application request form, together 
with the same information required for a loan guaranty under Sec.  
103.12, except for the information required by Sec.  103.12(a).
    (c) The lender must submit a loan insurance application package even 
for a loan of less than $100,000 if:
    (1) The total outstanding balance of all insured loans the lender is 
extending to the borrower under the Program exceeds $100,000; or
    (2) the lender makes a request for interest subsidy, pursuant to 
Sec.  103.21.



Sec.  103.14  Can BIA request additional information?

    BIA may require the lender to provide additional information, 
whenever BIA believes it needs the information to properly evaluate a 
new lender, guaranty application, or insurance application. After BIA 
issues a loan guaranty or insurance coverage, the lender must let BIA 
inspect the lender's records at any reasonable time for information 
concerning the Program.



Sec.  103.15  Are there any prohibited loan terms?

    A loan agreement guaranteed or insured under the Program may not 
contain:
    (a) Charges by the lender styled as ``points,'' loan origination 
fees, or any similar fees (however named), except that if authorized in 
the loan agreement, the lender may charge the borrower a reasonable 
annual loan servicing fee that:
    (1) Is not included as part of the loan principal; and
    (2) Does not bear interest;
    (b) Charges of any kind by the lender or by any third party except 
for the reasonable and customary cost of legal and architectural 
services, broker commissions, surveys, compliance inspections, title 
inspection and/or insurance, lien searches, appraisals, recording costs, 
premiums for required hazard, liability, key man life, and other kinds 
of insurance, and such other charges as BIA may approve in writing;
    (c) A loan repayment term of over 30 years;
    (d) Payments scheduled less frequently than annually;
    (e) A prepayment penalty, unless the terms of the penalty are 
clearly specified in BIA's loan guaranty or loan insurance conditions;
    (f) An interest rate greater than what BIA considers reasonable, 
taking into account the range of rates prevailing in the private market 
for similar loans;
    (g) A variable interest rate, unless the rate is tied to a specific 
prime rate

[[Page 348]]

published from time to time by a nationally recognized financial 
institution or news source;
    (h) An increased rate of interest based on default;
    (i) A fee imposed for the late repayment of any installment due, 
except for a late fee that:
    (1) Is imposed only after the borrower is at least 30 days late with 
payment;
    (2) Does not bear interest; and
    (3) Equals no more than 5 percent of the late installment;
    (j) An ``insecurity'' clause, or any similar provision permitting 
the lender to declare a loan default solely on the basis of its 
subjective view of the borrower's changed repayment prospects;
    (k) A requirement that the borrower take title to any real or 
personal property purchased with loan proceeds by a title instrument 
containing restrictions on alienation, control or use of the property, 
unless otherwise required by applicable law; or
    (l) A requirement that a borrower which is a tribe provide as 
security a general assignment of the tribe's trust income. If otherwise 
lawful, a tribe may provide as loan security an assignment of trust 
income from a specific source.



Sec.  103.16  How does BIA approve or reject a loan guaranty 
or insurance application?

    (a) BIA reviews each guaranty or insurance application, and may 
evaluate each loan application independently from the lender. BIA bases 
its loan guaranty or insurance decisions on many factors, including 
compliance with this part, and whether there is a reasonable prospect of 
loan repayment from business cash flow, or if necessary, from 
liquidating loan collateral. Lenders are expected to obtain a first lien 
security interest in enough collateral to reasonably secure repayment of 
each loan guaranteed or insured under the Program, to the extent that 
collateral is available.
    (b) BIA approves applications by issuing an approval letter, 
followed by the procedures in Sec.  103.18. If the guaranty or insurance 
application is incomplete, BIA may return the application to the lender, 
or hold the application while the lender submits the missing 
information. If BIA denies the application, it will provide the lender 
with a written explanation, with a copy to the borrower.



Sec.  103.17  Must the lender follow any special procedures to close the loan?

    (a) BIA officials or their representatives may attend the closing of 
any loan or loan modification that BIA agrees to guarantee or insure. 
For guaranteed loans, and insured loans that BIA must individually 
review under this part, the lender must give BIA notice of the date of 
closing at least 5 business days before closing occurs.
    (b) At or prior to closing, the lender must obtain appropriate, 
satisfactory title and/or lien searches for each asset to be used as 
loan collateral.
    (c) At or prior to closing, the lender must obtain recent appraisals 
for all real property and improvements to be used as collateral for the 
loan, to the extent required by law.
    (d) At or prior to closing, the lender must document that the lender 
and borrower have complied with all applicable Federal, State, local, 
and tribal laws implicated by financing the borrower's business, for 
example by securing:
    (1) Copies of all permits and licenses required to operate the 
borrower's business;
    (2) Environmental studies required for construction and/or business 
operations under NEPA and other environmental laws;
    (3) Archeological or historical studies required by law; and
    (4) Certification by a registered surveyor or appropriate BIA 
official indicating that the proposed business will not be located in a 
special flood hazard area, as defined by applicable law.
    (e) The lender must supply BIA with copies of all final, signed loan 
closing documents within 30 days following closing. To the extent 
applicable, loan closing documents must include the following:
    (1) Promissory notes;
    (2) Security agreements, including pledge and similar agreements, 
and related financing statements (together

[[Page 349]]

with BIA's written approval of any assignment of specific tribal trust 
assets under Sec.  103.15(l), or of any security interest in an 
individual Indian money account);
    (3) Mortgage instruments or deeds of trust (together with BIA's 
written approval, if required by 25 U.S.C. 483a, or if the mortgage is 
of a leasehold interest in tribal trust property);
    (4) Guarantees (other than from BIA);
    (5) Construction contracts, and plans and specifications;
    (6) Leases related to the business (together with BIA's written 
approval, if required under 25 CFR part 162);
    (7) Attorney opinion letters;
    (8) Resolutions made by a Tribe or business entity;
    (9) Waivers or partial waivers of sovereign immunity; and
    (10) Similar instruments designed to document the loan, establish 
the basis for a security interest in loan collateral, and comply with 
applicable law.
    (f) Unless BIA indicates otherwise in writing, the lender must close 
a guaranteed or insured loan within 90 days of any approval provided 
under Sec.  103.16.



Sec.  103.18  How does BIA issue a loan guaranty or confirm loan insurance?

    (a) A loan is guaranteed under the Program when all of the following 
occur:
    (1) BIA issues a signed loan guaranty certificate bearing a series 
number, an authorized signature, a guaranty percentage rate, the 
lender's name, the borrower's name, the original principal amount of the 
loan, and such other terms and conditions as BIA may require;
    (2) The loan closes and funds;
    (3) The lender pays BIA the applicable loan guaranty premium; and
    (4) The lender meets all of the conditions listed in the loan 
guaranty certificate.
    (b) A loan is insured under the Program when all of the following 
occur:
    (1) The loan's purpose and terms meet the requirements of the 
Program and the lender's loan insurance agreement with BIA;
    (2) The loan closes and funds;
    (3) The lender notifies BIA of the borrower's identity and 
organizational structure, the amount of the loan, the interest rate, the 
payment schedule, and the date on which the loan closing and funding 
occurred;
    (4) The lender pays BIA the applicable loan insurance premium;
    (5) If over $100,000 or if the loan requires interest subsidy, BIA 
approves the loan in writing; and
    (6) If over $100,000 or if the loan requires interest subsidy, the 
lender meets all of the conditions listed in BIA's written loan 
approval.



Sec.  103.19  When must the lender pay BIA the loan guaranty 
or insurance premium?

    The premium is due within 30 calendar days of the loan closing. If 
not paid on time, BIA will send the lender written notice by certified 
mail (return receipt requested), or by a nationally-recognized overnight 
delivery service (signature of recipient required), stating that the 
premium is due immediately. If the lender fails to make the premium 
payment within 30 calendar days of the date of BIA's notice, BIA's 
guaranty certificate or insurance coverage with respect to that 
particular loan is void, without further action.



                       Subpart C_Interest Subsidy



Sec.  103.20  What is interest subsidy?

    Interest subsidy is a payment BIA makes for the benefit of the 
borrower, to reimburse part of the interest payments the borrower has 
made on a loan guaranteed or insured under the Program. It is available 
to borrowers whose projected or historical earnings before interest and 
taxes, after adjustment for extraordinary items, is less than the 
industry norm.



Sec.  103.21  Who applies for interest subsidy payments, 
and what is the application procedure?

    (a) An eligible lender must request interest subsidy payments on 
behalf of an eligible borrower, after determining that the borrower 
qualifies. Typically, the lender should include a request for interest 
subsidy at the time it applies for a guaranty or insurance coverage 
under the Program. A request for interest subsidy must be supported by 
the information required in Sec. Sec.  103.12 and

[[Page 350]]

103.13 (relating to loan guaranty and insurance coverage applications). 
BIA approves, returns, or rejects interest subsidy requests in the same 
manner indicated in Sec.  103.16, based on the factors in Sec.  103.20 
and BIA's available resources.
    (b) BIA's approval of interest subsidy for an insured loan may 
provide for specific limitations on the manner in which the lender and 
borrower can modify the loan.



Sec.  103.22  How does BIA determine the amount of interest subsidy?

    Interest subsidy payments should equal the difference between the 
lender's rate of interest and the rate determined in accordance with 25 
U.S.C. 1464. BIA will fix the amount of interest subsidy as of the date 
it approves the interest subsidy request.

[66 FR 3867, Jan. 17, 2001, as amended at 67 FR 63543, Oct. 15, 2002]



Sec.  103.23  How does BIA make interest subsidy payments?

    The lender must send BIA reports at least quarterly on the 
borrower's loan payment history, together with a calculation of the 
interest subsidy then due. The lender's reports and calculation do not 
have to be in any specific format, but in addition to the calculation 
the reports must contain at least the information required by Sec.  
103.33(a). Based on the lender's reports and calculation, BIA will send 
interest subsidy payments to the borrower in care of the lender. The 
payments belong to the borrower, but the borrower and lender may agree 
in advance on how the borrower will use interest subsidy payments. BIA 
may verify and correct interest subsidy calculations and payments at any 
time.



Sec.  103.24  How long will BIA make interest subsidy payments?

    (a) BIA will issue interest subsidy payments for the term of the 
loan, up to 3 years. If interest subsidy payments still are justified, 
the lender may apply for up to two 1-year extensions of this initial 
term. BIA will make interest subsidy payments on a single loan for no 
more than 5 years.
    (b) BIA will choose the date from which it calculates interest 
subsidy years, usually the date the lender first extends the loan funds. 
Interest subsidy payments will apply to all loan payments made in the 
calendar years following that date.
    (c) Interest subsidy payments will not be due for any loan payment 
made after the corresponding loan guaranty or insurance coverage stops 
under the Program, regardless of the circumstances.



               Subpart D_Provisions Relating to Borrowers



Sec.  103.25  What kind of borrower is eligible under the Program?

    (a) A borrower is eligible for a BIA-guaranteed or insured loan if 
the borrower is:
    (1) An Indian individual;
    (2) An Indian-owned business entity organized under Federal, State, 
or tribal law, with an organizational structure reasonably acceptable to 
BIA;
    (3) A tribe; or
    (4) A business enterprise established and recognized by a tribe.
    (b) To be eligible for a BIA-guaranteed or insured loan, a business 
entity or tribal enterprise must be at least 51 percent owned by 
Indians. If at any time a business entity or tribal enterprise becomes 
less than 51 percent Indian owned, the lender either may declare a 
default as of the date the borrower stopped being at least 51 percent 
Indian owned and exercise its remedies under this part, or else continue 
to extend the loan to the borrower and allow BIA's guaranty or insurance 
coverage to become invalid.

[66 FR 3867, Jan. 17, 2001; 66 FR 46307, Sept. 4, 2001]



Sec.  103.26  What must the borrower supply the lender in its loan application?

    The lender may use any form of loan application it chooses. However, 
the borrower must supply the lender the information listed in this 
section in order for BIA to process a guaranty or insurance coverage 
application:
    (a) The borrower's precise legal name, address, and tax 
identification number or social security number;
    (b) Proof of the borrower's eligibility under the Program;

[[Page 351]]

    (c) A statement signed by the borrower, indicating that it is not 
delinquent on any Federal tax or other debt obligation;
    (d) The borrower's business plan, including resumes of all 
principals and a detailed discussion of the product or service to be 
offered, market factors, the borrower's marketing strategy, and any 
technical assistance the borrower may require;
    (e) A detailed description of the borrower's equity in the business 
being financed, including the method(s) of valuation;
    (f) The borrower's balance sheets and operating statements for the 
preceding 3 years, or so much of that period that the borrower has been 
in business;
    (g) The borrower's current financial statement, and the financial 
statements of all co-makers and guarantors of the loan (other than BIA);
    (h) At least 3 years of financial projections for the borrower's 
business, consisting of pro-forma balance sheets, operating statements, 
and cash flow statements;
    (i) A detailed list of all proposed collateral for the loan, 
including asset values and the method(s) of valuation;
    (j) A detailed list of all proposed hazard, liability, key man life, 
and other kinds of insurance the borrower will maintain on its business 
assets and operations;
    (k) If any significant portion of the loan will be used to finance 
construction, renovation, or demolition work:
    (1) Written quotes for the work from established and reputable 
contractors; and
    (2) To the extent available, copies of all construction and 
architectural contracts for the work, plans and specifications, and 
applicable building permits;
    (l) If the borrower is a tribe or a tribal enterprise, resolutions 
by the tribe and proof of authority under tribal law permitting the 
borrower to borrow the loan amount and offer the proposed loan 
collateral; and
    (m) If the borrower is a business entity, resolutions by the 
appropriate governing officials and proof of authority under its 
organizing documents permitting the borrower to borrow the loan amount 
and offer the proposed loan collateral.



Sec.  103.27  Can the borrower get help preparing its loan application 
or putting its loan funds to use?

    A borrower may seek BIA's assistance when preparing a loan 
application or when planning business operations, including assistance 
identifying and complying with applicable laws as indicated by Sec.  
103.17(d). The borrower should contact the BIA field or agency office 
serving the area in which the borrower's business is to be located, or 
if there is no separate field or agency office serving the area, then 
the borrower should contact the BIA regional office serving the area.



                        Subpart E_Loan Transfers



Sec.  103.28  What if the lender transfers part of the loan to another person?

    (a) A lender may transfer one or more interests in a guaranteed loan 
to another person or persons, as long as the parties have in place an 
agreement that designates one person to perform all of the duties 
required of the lender under the Program and the loan guaranty 
certificate. Starting on the date of the transfer, only the person 
designated to perform the duties of the lender will be entitled to 
exercise the rights conferred by BIA's loan guaranty certificate, and 
will from that point forward be considered the lender for purposes of 
the Program. A lender under the Program must both service the guaranteed 
loan and own at least a 10 percent interest in the guaranteed loan. BIA 
will not consider more than one person at any given time to be the 
lender with respect to any loan guaranty certificate. If the person 
designated to perform the duties of the lender in an agreement among 
loan participants is not the original lender, then the provisions of 
Sec.  103.29(a) will apply (relating to sale or assignment of guaranteed 
loans), and the person designated to perform the duties of the lender 
must give BIA notice of its interest in the loan. Failure to provide 
notice in accordance with Sec.  103.29(a) will void BIA's loan guaranty 
certificate, without further action.

[[Page 352]]

    (b) Transferring any interest in an insured loan to another person 
will void the insurance coverage for that loan, except where the 
transfer is effected by a merger.



Sec.  103.29  What if the lender transfers the entire loan?

    (a) A lender may transfer all of its rights in a guaranteed loan to 
any other person. The acquiring person must send BIA written notice of 
the transfer, describing the borrower, the loan, BIA's loan guaranty 
certificate number, and the acquiring person's name and address. 
Starting on the date of the transfer, only the acquiring person will be 
entitled to exercise the rights conferred by BIA's loan guaranty 
certificate, and will from that point forward be considered the lender 
for purposes of the Program. The acquiring person must service the 
guaranteed loan and otherwise perform all of the duties required of the 
lender under the Program and the loan guaranty certificate. Except when 
a transfer is effected by a merger, any failure by the acquiring person 
to send BIA proper notice of the transfer within 30 calendar days of the 
transfer date will void BIA's loan guaranty certificate, without further 
action.
    (b) Transferring an insured loan to another person will void the 
insurance coverage for that loan, except where the transfer is effected 
by a merger.
    (c) If a lender is not the surviving entity after a merger, the 
lender's successor must notify BIA in writing of the change within 30 
calendar days of the merger. The lender also must re-apply to become an 
approved lender under the Program, as indicated in Sec.  103.11.



                  Subpart F_Loan Servicing Requirements



Sec.  103.30  What standard of care must a lender meet?

    Lenders must service all loans guaranteed or insured under the 
Program in a commercially reasonable manner, in accordance with 
standards and procedures adopted by prudent lenders in the BIA region in 
which the borrower's business is located, and in accordance with this 
part. If the lender fails to follow any of these standards, BIA may 
reduce or eliminate entirely the amount payable under its guaranty or 
insurance coverage to the extent BIA can reasonably attribute the loss 
to the lender's failure. BIA also may deny payment completely if the 
lender gets a loan guaranty or insurance coverage through fraud, or 
negligently allows a borrower's fraudulent loan application or use of 
loan funds to go undetected. In particular, and without limitation, 
lenders must:
    (a) Check and verify information contained in the borrower's loan 
application, such as the borrower's eligibility, the authority of 
persons acting on behalf of the borrower, and the title status of any 
proposed collateral;
    (b) Take reasonable precautions to assure that loan proceeds are 
used as specified in BIA's guaranty certificate or written insurance 
approval, or if not so specified, then in descending order of 
importance:
    (1) BIA's written loan guaranty approval;
    (2) The loan documents;
    (3) The terms of the lender's final loan commitment to the borrower; 
or
    (4) The borrower's loan application;
    (c) When feasible, require the borrower to use automatic bank 
account debiting to make loan payments;
    (d) Require the borrower to take title to real and personal property 
purchased with loan proceeds in the borrower's own name, except for real 
property to be held in trust by the United States for the benefit of a 
borrower that is a tribe;
    (e) Promptly record all security interests and subsequently keep 
them in effect. Lenders must record all mortgages and other security 
interests in accordance with State and local law, including the laws of 
any tribe that may have jurisdiction. Lenders also must record any 
leasehold mortgages or assignments of income involving individual Indian 
or tribal trust land with the BIA office having responsibility for 
maintaining records on that trust land;
    (f) Assure, to the extent reasonably practicable, that the borrower 
and any guarantor of the loan (other than BIA) keep current on all taxes 
levied on real

[[Page 353]]

and personal property used in the borrower's business or as collateral 
for the loan, and on all applicable payroll taxes;
    (g) Assure, to the extent reasonably practicable, that all required 
insurance policies remain in effect, including hazard, liability, key 
man life, and other kinds of insurance, in amounts reasonably necessary 
to protect the interests of the borrower, the borrower's business, and 
the lender;
    (h) Assure, to the extent reasonably practicable, that the borrower 
remains in compliance with all applicable Federal, State, local and 
tribal laws, including environmental laws and laws concerning the 
preservation of historical and archeological sites and data;
    (i) Assure, to the extent reasonably practicable, that the borrower 
causes any construction, renovation, or demolition work funded by the 
loan to proceed in accordance with approved construction contracts and 
plans and specifications, which must be sufficient in scope and detail 
to adequately govern the work;
    (j) Reserve for itself and BIA the right to inspect the borrower's 
business records and all loan collateral at any reasonable time;
    (k) Promptly notify the borrower in writing of any material breach 
by the borrower of the terms of its loan, with specific instructions on 
how to cure the breach and a deadline for doing so;
    (l) Participate in any probate, receivership, bankruptcy, or similar 
proceeding involving the borrower and any guarantor or co-maker of the 
borrower's debt, to the extent necessary to maintain the greatest 
possible rights to repayment; and
    (m) Otherwise seek to avoid and mitigate any potential loss arising 
from the loan, using at least that level of care the lender would use if 
it did not have a BIA loan guaranty or insurance coverage.



Sec.  103.31  What loan servicing requirements apply to BIA?

    Once a lender extends a loan that is guaranteed or insured under the 
Program, BIA has no responsibility for decisions concerning it, except 
for:
    (a) Any approvals required under this part;
    (b) Any decisions reserved to BIA under conditions of BIA's guaranty 
certificate or insurance coverage; and
    (c) Decisions concerning a loan that the lender has assigned to BIA 
or to which BIA is subrogated by virtue of paying a claim based on a 
guaranty certificate or insurance coverage.



Sec.  103.32  What sort of loan documentation does BIA 
expect the lender to maintain?

    For every loan guaranteed or insured under the Program, the lender 
must maintain:
    (a) BIA's original loan guaranty certificate or insurance coverage 
approval letter, if applicable;
    (b) Original signed and/or certified counterparts of all final loan 
documents, including those listed in Sec.  103.17 (concerning documents 
required for loan closing), all renewals, modifications, and additions 
to those documents, and signed settlement statements;
    (c) Originals or copies, as appropriate, of all documents gathered 
by the lender under Sec. Sec.  103.12, 103.13 and 103.26 (concerning 
information submitted by the borrower in its loan application, and 
information supplied to BIA in the lender's loan guaranty or insurance 
coverage application);
    (d) Originals or copies, as appropriate, of all applicable insurance 
binders or certificates, including without limitation hazard, liability, 
key man life, and title insurance;
    (e) A complete and current history of all loan transactions, 
including dated disbursements, payments, adjustments, and notes 
describing all contacts with the borrower;
    (f) Originals or copies, as appropriate, of all correspondence with 
the borrower, including default notices and evidence of receipt;
    (g) Originals or copies, as appropriate, of all correspondence, 
notices, news items or other information concerning the borrower, 
whether gathered by the lender or furnished to it, containing material 
information about the borrower and its business operations;
    (h) Originals or copies, as appropriate, of all advertisements, 
notices, title instruments, accountings, and

[[Page 354]]

other documentation of efforts to liquidate loan collateral; and
    (i) Originals or copies, as appropriate, of all notices, pleadings, 
motions, orders, and other documents associated with any legal 
proceeding involving the lender and the borrower or its assets, 
including without limitation judicial or non-judicial foreclosure 
proceedings, suits to collect payment, bankruptcy proceedings, probate 
proceedings, and any settlement associated with threatened or actual 
litigation.



Sec.  103.33  Are there reporting requirements?

    (a) The lender must periodically report the borrower's loan payment 
history so that BIA can recalculate the government's contingent 
liability. Loan payment history reports must be quarterly unless BIA 
provides otherwise for a particular loan. These reports can be in any 
format the lender desires, as long as they contain:
    (1) The lender's name;
    (2) The borrower's name;
    (3) A reference to BIA's Loan Guaranty Certificate or Loan Insurance 
Agreement number;
    (4) The lender's internal loan number; and
    (5) The date and amount of all loan balance activity for the 
reporting period.
    (b) If applicable, the lender must supply a calculation of any 
interest subsidy payments that are due, as indicated in Sec.  103.23.
    (c) If there is a transfer of any or all of the lender's ownership 
interest in the loan, the party receiving the ownership interest may be 
required to notify BIA, as indicated in Sec. Sec.  103.28 and 103.29.
    (d) If there is a default on the loan, the lender must notify BIA, 
as indicated in Sec. Sec.  103.35 and 103.36.
    (e) If the borrower ceases to qualify for a BIA-guaranteed or 
insured loan under Sec.  103.25(b), the lender must promptly notify BIA 
even if the lender does not pursue default remedies under Sec. Sec.  
103.35 and 103.36. This notice allows BIA to eliminate the guaranty or 
insurance coverage from its active recordkeeping system.
    (f) If the loan is prepaid in full, the lender must promptly notify 
BIA in writing so that BIA can eliminate the guaranty or insurance 
coverage from its active recordkeeping system.
    (g) If a lender changes its name, it should notify BIA in accordance 
with Sec.  103.11(c).



Sec.  103.34  What if the lender and borrower decide to change 
the terms of the loan?

    (a) The lender must obtain written BIA approval before modifying a 
loan guaranteed or insured under the Program, if the change will:
    (1) Increase the borrower's outstanding principal amount (if a term 
loan), or maximum available credit (if a revolving loan).
    (i) BIA will approve or disapprove a loan increase based upon the 
lender's explanation of the borrower's need for additional funding, and 
updated information of the sort required under Sec. Sec.  103.12, 
103.13, and 103.26, as applicable.
    (ii) Upon approval by BIA and payment of an additional guaranty or 
insurance premium in accordance with Sec. Sec.  103.8 and 103.19 and 
this section, the entire outstanding loan amount, as modified, will be 
guaranteed or insured (as the case may be) to the extent BIA specifies. 
The lender must pay the additional premium only on the increase in the 
outstanding principal amount of the loan (if a term loan) or the 
increase in the credit limit available to the borrower (if a revolving 
loan).
    (iii) Lenders may not increase the outstanding principal amount of a 
loan guaranteed or insured under the Program if a significant purpose of 
doing so would be to allow the borrower to pay accrued loan interest it 
otherwise would have difficulty paying.
    (2) Permanently adjust the loan repayment schedule.
    (3) Increase a fixed interest rate, convert a fixed interest rate to 
an adjustable interest rate, or convert an adjustable interest rate to a 
fixed interest rate.
    (4) Allow any changes in the identity or organizational structure of 
the borrower.
    (5) Allow any material change in the use of loan proceeds or the 
nature of the borrower's business.
    (6) Release any collateral taken as security for the loan, except 
items sold

[[Page 355]]

in the ordinary course of business and promptly replaced by similar 
items of collateral, such as inventory.
    (7) Allow the borrower to move any significant portion of its 
business operations to a location that is not on or near an Indian 
reservation or tribal service area recognized by BIA.
    (8) Be likely to materially increase the risk of a claim on BIA's 
guaranty or insurance coverage, or materially reduce the aggregate value 
of the collateral securing the loan.
    (9) Cure a default for which BIA is to receive notice under Sec.  
103.35(b).
    (b) In the case of an insured loan, the amount of which will not 
exceed $100,000 when combined with all other insured loans from the 
lender to the borrower, the lender need not obtain BIA's prior approval 
to make any of the loan modifications indicated in Sec.  103.34(a), 
except as provided in Sec.  103.21(b). However, all loan modifications 
must remain consistent with the lender's loan insurance agreement with 
BIA, and in the event of an increase in the borrower's outstanding 
principal amount (if a term loan), or maximum available credit (if a 
revolving loan), the lender must send BIA an additional premium payment 
in accordance with Sec. Sec.  103.8, 103.19 and this section. The lender 
must pay the additional premium only on the increase in the outstanding 
principal amount of the loan (if a term loan) or the increase in the 
credit limit available to the borrower (if a revolving loan). To the 
extent a loan modification changes any of the information supplied to 
BIA under Sec.  103.18(b)(3), the lender also must promptly notify BIA 
of the new information.
    (c) Subject to any applicable BIA loan guaranty or insurance 
coverage conditions, a lender may extend additional loans to a borrower 
without BIA approval, if the additional loans are not to be guaranteed 
or insured under the Program.



                  Subpart G_Default and Payment by BIA



Sec.  103.35  What must the lender do if the borrower defaults on the loan?

    (a) The lender must send written notice of the default to the 
borrower, and otherwise meet the standard of care established for the 
lender in this part. The lender's notice to the borrower should be sent 
as soon as possible after the default, but in any event before the 
lender's notice to BIA under paragraph (b) of this section. For purposes 
of the Program, ``default'' will mean a default as defined in this part.
    (b) The lender also must send written notice of the default to BIA 
by certified mail (return receipt requested), or by a nationally-
recognized overnight delivery service (signature of recipient required) 
within 60 calendar days of the default, unless the default is fully 
cured before that deadline. This notice is required even if the lender 
grants the borrower a forbearance under Sec.  103.36(a). One purpose of 
the notice is to give BIA the opportunity to intervene and seek 
assistance for the borrower, even though BIA has no duty, either to the 
lender or the borrower, to do so. Another purpose of the notice is to 
permit BIA to plan for a possible loss claim from the lender, under 
Sec.  103.36(d). The lender's notice must clearly indicate:
    (1) The identity of the borrower;
    (2) The applicable Program guaranty certificate or insurance 
agreement number;
    (3) The date and nature of all bases for default;
    (4) If a monetary default, the amount of past due principal and 
interest, the date through which interest has been calculated, and the 
amount of any late fees, precautionary advances, or other amounts the 
lender claims;
    (5) The nature and outcome of any correspondence or other contacts 
with the borrower concerning the default; and
    (6) The precise nature of any action the borrower could take to cure 
the default.



Sec.  103.36  What options and remedies does the lender have 
if the borrower defaults on the loan?

    (a) The lender may grant the borrower a temporary forbearance, even 
beyond any default cure periods specified in the loan documents, if 
doing so

[[Page 356]]

is likely to result in the borrower curing the default. However, BIA 
must approve in writing any forbearance or other agreement that:
    (1) Permanently modifies the terms of the loan in any manner 
indicated by Sec.  103.34(a);
    (2) Would allow the borrower's default to extend beyond the deadline 
established in Sec.  103.36(d) for the lender to elect a remedy; or
    (3) Is not likely to result in the borrower curing the default.
    (b) The lender may make precautionary advances on the borrower's 
behalf during the default, if doing so is reasonably necessary to ensure 
that loan recovery prospects do not significantly deteriorate. Items for 
which the lender may make precautionary advances include, for example:
    (1) Hazard, liability, or key man life insurance premiums;
    (2) Security measures to safeguard abandoned business assets;
    (3) Real or personal property taxes;
    (4) Corrective actions required by court or administrative orders; 
or
    (5) Essential maintenance.
    (c) BIA will guaranty or insure the amount of precautionary advances 
from the date of each advance to the same extent as other amounts due 
under the loan, if:
    (1) The borrower has demonstrated its inability or unwillingness to 
make the payment or perform the duty that jeopardizes loan recovery, 
including by undue delay in making the payment or performing the duty;
    (2) The total expense of all precautionary advances by the lender 
does not at the time of the advance exceed 10 percent of the outstanding 
principal balance of the loan;
    (3) Where loan document provisions do not require the borrower to 
repay precautionary advances (however termed) when made by the lender, 
or where the total expense of all precautionary advances by the lender 
will exceed 10 percent of the outstanding principal balance of the loan 
when made, the lender secures BIA's prior written approval; and
    (4) The lender properly claims and documents all precautionary 
advances, if and when it submits a claim for loss under Sec.  103.37.
    (d) If the default remains uncured, the lender must send BIA a 
written notice by certified mail (return receipt requested), or by a 
nationally-recognized overnight delivery service (signature of recipient 
required) within 90 calendar days of the default to select one of the 
following remedies:
    (1) In the case of a guaranteed loan, the lender may submit a claim 
to BIA for its loss;
    (2) In the case of either a guaranteed or insured loan, the lender 
may liquidate all collateral securing the loan, and upon completion, if 
it has a residual loss on the loan, it may submit a claim to BIA for 
that loss; or
    (3) The lender may negotiate a loan modification agreement with the 
borrower to permanently change the terms of the loan in a manner that 
will cure the default. If the lender chooses this remedy, it may take no 
longer than 45 calendar days from the date BIA receives the notice of 
remedy selection to finalize a loan modification agreement and secure 
BIA's written approval of it, unless BIA specifically extends this 
deadline in writing. However, the lender may at any time before the 
expiration of the 45-day period (or any extension thereof) change its 
choice of remedy by sending BIA a notice otherwise complying with Sec.  
103.36(d)(1) or (2). If the lender fails to send BIA a notice changing 
its choice of remedy and does not finalize an approved loan modification 
agreement within the 45-day period (or any extension thereof), the 
lender's only permissible remedy under the Program will be to pursue the 
procedure specified in Sec.  103.36(d)(2).
    (e) Failure by the lender to provide BIA with notice of the lender's 
election of remedy within 90 calendar days of the default, as indicated 
in Sec.  103.36(d), will invalidate BIA's loan guaranty certificate or 
insurance coverage for that particular loan, absent an express waiver of 
this provision by BIA. BIA may preserve the validity of a loan guaranty 
certificate or insurance coverage through waiver of this provision only 
when BIA determines, in its discretion, that:
    (1) The lender consistently has acted in good faith, and

[[Page 357]]

    (2) The lender's failure to provide timely notice either:
    (i) Has not caused any actual or potential prejudice to BIA; or
    (ii) Was the result of the lender relying upon specific written 
advice from a BIA official.



Sec.  103.37  What must the lender do to collect payment 
under its loan guaranty certificate or loan insurance coverage?

    (a) For guaranteed loans, the lender must submit a claim for its 
loss on a form approved by BIA.
    (1) If the lender makes an immediate claim under Sec.  103.36(d)(1), 
it must send BIA the claim for loss within 90 calendar days of the 
default by certified mail (return receipt requested), or by a 
nationally-recognized overnight delivery service (signature of recipient 
required). The lender's claim for loss may include interest that has 
accrued on the outstanding principal amount of the loan only through the 
date it submits the claim.
    (2) If the lender elects first to liquidate the collateral securing 
the loan under Sec.  103.36(d)(2), and has a residual loss after doing 
so, it must send BIA the claim for loss within 30 calendar days of 
completing all liquidation efforts. The lender must perform collateral 
liquidation as expeditiously and thoroughly as is reasonably possible, 
within the standards established by this part. The lender's claim for 
loss may include interest that has accrued on the outstanding principal 
amount of the loan only through the earlier of:
    (i) The date it submits the claim;
    (ii) The date the lender gets a judgment of foreclosure or sale (or 
the non-judicial equivalent) on the principal collateral securing the 
loan; or
    (iii) One hundred eighty calendar days after the date of the 
default.
    (b) For insured loans, after liquidating all loan collateral, the 
lender must submit a claim for its loss (if any) on a form approved by 
BIA. The lender must send BIA the claim for loss by certified mail 
(return receipt requested), or by a nationally-recognized overnight 
delivery service (signature of recipient required) within 30 calendar 
days of completing all liquidation efforts. The lender must perform 
collateral liquidation as expeditiously and thoroughly as is reasonably 
possible, within the standards established by this part. The lender's 
claim for loss may include interest that has accrued on the outstanding 
principal amount of the loan through the earlier of:
    (1) The date it submits the claim;
    (2) The date the lender gets a judgment of foreclosure or sale (or 
the non-judicial equivalent) on the principal collateral securing the 
loan; or
    (3) One hundred eighty calendar days after the date of the default.
    (c) Whenever the lender liquidates loan collateral under Sec.  
103.36(d)(2), it must vigorously pursue all reasonable methods of 
collection concerning the loan collateral before submitting a claim for 
its residual loss (if any) to BIA. Without limiting the generality of 
the preceding sentence, the lender must:
    (1) Foreclose, either judicially or non-judicially, all rights of 
redemption the borrower or any co-maker or guarantor of the loan (other 
than BIA) may have in collateral under any mortgage securing the loan;
    (2) Gather and dispose of all personal property pledged as 
collateral under the loan, in accordance with applicable law;
    (3) Exercise all set-off rights the lender may have under contract 
or applicable law;
    (4) Make demand for payment on the borrower, all co-makers, and all 
guarantors of the loan (other than BIA); and
    (5) Participate fully in all bankruptcy proceedings that may arise 
involving the borrower and any co-maker or guarantor of the loan. Full 
participation might include, for example, filing a proof of claim in the 
case, attending creditors' meetings, and seeking a court order releasing 
the automatic stay of collection efforts so that the lender can 
liquidate affected loan collateral.
    (d) BIA may require further information, including without 
limitation copies of any documents the lender is to maintain under Sec.  
103.32 and all documentation of liquidation efforts, to help BIA 
evaluate the lender's claim for loss.

[[Page 358]]

    (e) BIA will pay the lender the guaranteed or insured portion of the 
lender's claim for loss, to the extent the claim is based upon 
reasonably sufficient evidence of the loss and compliance with the 
requirements of this part. BIA will render a decision on a claim for 
loss within 90 days of receiving all information it requires to properly 
evaluate the loss.



Sec.  103.38  Is there anything else for BIA or the lender to do 
after BIA makes payment?

    When BIA pays the lender on its claim for loss, the lender must sign 
and deliver to BIA an assignment of rights to its loan agreement with 
the borrower, in a document acceptable to BIA. Immediately upon payment, 
BIA is subrogated to all rights of the lender under the loan agreement 
with the borrower, and must pursue collection efforts against the 
borrower and any co-maker and guarantor, as required by law.



Sec.  103.39  When will BIA refuse to pay all or part of a lender's claim?

    BIA may deny all or part of a lender's claim for loss when:
    (a) The loan is not guaranteed or insured as indicated in Sec.  
103.18;
    (b) The guarantee or insurance coverage has become invalid under 
Sec. Sec.  103.28, 103.29, or 103.36(e);
    (c) The lender has not met the standard of care indicated in Sec.  
103.30;
    (d) The lender presents a claim for a residual loss after attempting 
to liquidate loan collateral, and:
    (1) The lender has not made a reasonable effort to liquidate all 
security for the loan;
    (2) The lender has taken an unreasonable amount of time to complete 
its liquidation efforts, the probable consequence of which has been to 
reduce overall prospects of loss recovery; or
    (3) The lender's loss claim is inflated by unreasonable liquidation 
expenses or unjustifiable deductions from collateral liquidation 
proceeds applied to the loan balance; or
    (e) The lender has otherwise failed in any material respect to 
follow the requirements of this part, and BIA can reasonably attribute 
some or all of the lender's loss to that failure.



Sec.  103.40  Will BIA make exceptions to its criteria for denying payment?

    (a) BIA will not reduce or deny payment solely on the basis of 
Sec. Sec.  103.39(c) or (e) when the lender making the claim for loss:
    (1) Is a person to whom a previous lender transferred the loan under 
Sec. Sec.  103.28 or 103.29 before maturity for value;
    (2) Notified BIA of its acquisition of the loan interest as required 
by Sec. Sec.  103.28 or 103.29;
    (3) Had no involvement in or knowledge of the actions or 
circumstances that would have allowed BIA to reduce or deny payment to a 
previous lender; and
    (4) Has not itself violated the standards set forth in Sec. Sec.  
103.39(c) or (e).
    (b) If BIA makes payment to a lender under this section, it may seek 
reimbursement from the previous lender or lenders who contributed to the 
loss by violating Sec. Sec.  103.39(c) or (e).



Sec.  103.41  What happens if a lender violates provisions of this part?

    In addition to reducing or eliminating payment on a specific claim 
for loss, BIA may either temporarily suspend, or permanently bar, a 
lender from making or acquiring loans under the Program if the lender 
repeatedly fails to abide by the requirements of this part, or if the 
lender significantly violates the requirements of this part on any 
single occasion.



Sec.  103.42  How long must a lender comply with Program requirements?

    (a) A lender must comply in general with Program requirements 
during:
    (1) The effective period of its loan guaranty agreement or loan 
insurance agreement; and
    (2) Whatever additional period is necessary to resolve any 
outstanding loan guaranty or insurance claims or coverage the lender may 
have.
    (b) Except as otherwise required by law, a lender must maintain 
records with respect to a particular loan for 6 years after either:
    (1) The loan is repaid in full; or
    (2) The lender accepts payment from BIA for a loss on the loan, 
pursuant to a guaranty certificate or an insurance agreement.

[[Page 359]]

    (c) At any time 2 years or more following one of the events 
specified in paragraphs (b)(1) or (2) of this section, a lender may 
convert its records for corresponding loans to any electronic format 
that is readily retrievable and that provides an accurate, detailed 
image of the original records. Upon converting its records in this 
manner, the lender may dispose of its original loan records.
    (d) This section does not restrict any claims BIA may have against 
the lender or any other party arising from the lender's participation in 
the Program.



Sec.  103.43  What must the lender do after repayment in full?

    The lender must completely and promptly release of record all 
remaining collateral for a guaranteed or insured loan after the loan has 
been paid in full. The release must be at the lender's sole cost. In 
addition, if the loan is prepaid the lender must notify BIA in 
accordance with Sec.  103.33(f).



           Subpart H_Definitions and Miscellaneous Provisions



Sec.  103.44  What certain terms mean in this part.

    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior.
    Default means:
    (1) The borrower's failure to make a scheduled loan payment when it 
is due;
    (2) The borrower's failure to meet a material condition of the loan 
agreement;
    (3) The borrower's failure to comply with any other condition, 
covenant or obligation under the terms of the loan agreement within 
applicable grace or cure periods;
    (4) The borrower's failure to remain at least 51 percent Indian 
owned, as provided in Sec.  103.25(b);
    (5) The filing of a voluntary or involuntary petition in bankruptcy 
listing the borrower as debtor;
    (6) The imposition of a Federal, State, local, or tribal government 
lien on any assets of the borrower or assets otherwise used as 
collateral for the loan, except real property tax liens imposed by law 
to secure payments that are not yet due;
    (7) Any default defined in the loan agreement, to the extent the 
definition is not inconsistent with this part.
    Equity means the value, after deducting all debt, of the borrower's 
tangible assets in the business being financed, on which a lender can 
perfect a first lien security interest. It can include cash, securities, 
or other cash equivalent instruments, but cannot include the value of 
contractual options, the right to pay below market rental rates, or 
similar rights if those rights:
    (1) Are unassignable; or
    (2) Can expire before maturity of the loan.
    Indian means a person who is a member of a tribe as defined in this 
part.
    Loan agreement means the collective terms and conditions under which 
the lender extends a loan to a borrower, as reflected by the documents 
that evidence the loan.
    Mortgage means a consensual lien on real or personal property in 
favor of the lender, given by the borrower or a co-maker or guarantor of 
the loan (other than BIA), to secure loan repayment. The term 
``mortgage'' includes ``deed of trust.''
    NEPA means the National Environmental Policy Act of 1969, 42 U.S.C. 
4321 et seq.
    Person means any individual or distinct legal entity.
    Program means the BIA's Loan Guaranty, Insurance, and Interest 
Subsidy Program, established under 25 U.S.C. 1481 et seq., 25 U.S.C. 
1511 et seq., and this part 103.
    Reservation means any land that is an Indian reservation, California 
rancheria, public domain Indian allotment, pueblo, Indian colony, former 
Indian reservation in Oklahoma, or land held by an Alaska Native 
corporation under the provisions of the Alaska Native Claims Settlement 
Act (85 Stat. 688), as amended.
    Secretary means the Secretary of the United States Department of the 
Interior, or his authorized representative.
    Tribe means any Indian or Alaska Native tribe, band, nation, pueblo, 
rancheria, village, community or corporation that the Secretary 
acknowledges to exist as an Indian tribe, and that is eligible for 
services from BIA.

[[Page 360]]



Sec.  103.45  Information collection.

    (a) The information collection requirements of Sec. Sec.  103.11, 
103.12, 103.13, 103.14, 103.17, 103.21, 103.23, 103.26, 103.32, 103.33, 
103.34, 103.35, 103.36, 103.37, and 103.38 have been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq., and 
assigned approval number 1076-0020. The information will be used to 
approve and make payments on Federal loan guarantees, insurance 
agreements, and interest subsidy awards. Response is required to obtain 
a benefit.
    (b) The burden on the public to report this information is estimated 
to average from 15 minutes to 2 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 Information Collection Control Officer, Bureau of 
Indian Affairs, MS 4613, 1849 C Street, NW., Washington, DC 20240.



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
    (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 subpart G of part 11 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

[[Page 361]]

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 114_SPECIAL DEPOSITS [RESERVED]



PART 115_TRUST FUNDS FOR TRIBES AND INDIVIDUAL INDIANS--Table of Contents



         Subpart A_Purpose, Definitions, and Public Information

Sec.
115.001 What is the purpose of this part?
115.002 What definitions do I need to know?

                         Subpart B_IIM Accounts

115.100 Osage Agency.
115.101 Individual accounts.
115.102 Adults under legal disability.
115.103 Payments by other Federal agencies.
115.104 Restrictions.
115.105 Funds of deceased Indians of the Five Civilized Tribes.
115.106 Assets of members of the Agua Caliente Band of Mission Indians.
115.107 Appeals.

                     Subpart C_IIM Accounts: Minors

115.400 Will a minor's IIM account always be supervised?
115.401 What is a minor's supervised account?
115.402 Will a minor have access to information about his or her 
          account?
115.403 Who will receive information regarding a minor's supervised 
          account?
115.404 What information will be provided in a minor's statement of 
          performance?
115.405 How frequently will a minor's statement of performance be 
          mailed?
115.406 Who provides an address of record for a minor's supervised 
          account?
115.407 How is an address of record for a minor's supervised account 
          changed?
115.408 May a minor's supervised account have more than one address on 
          file with the BIA?
115.409 How is an address for a minor's residence changed?
115.410 What types of identification will the BIA or OTFM accept as 
          ``verifiable photo identification''?
115.411 What if the individual making a request regarding a minor's 
          supervised account does not have any verifiable photo 
          identification?
115.412 Will child support payments be accepted for deposit into a 
          minor's supervised account?
115.413 Who may receive funds from a minor's supervised account?
115.414 What is an authorized disbursement request?
115.415 How will an authorized disbursement from a minor's supervised 
          account be sent?
115.416 Will the United States post office forward mail regarding a 
          minor's supervised account to a forwarding address left with 
          the United States post office?
115.417 What portion of funds in a minor's supervised account may be 
          withdrawn under a distribution plan?
115.418 What types of trust funds may a minor have?
115.419 Who develops a minor's distribution plan?
115.420 When developing a minor's distribution plan, what information 
          must be considered and included in the evaluation?
115.421 What information will be included in the copy of the minor's 
          distribution plan that will be provided to OTFM?
115.422 As a custodial parent, the legal guardian, the person who BIA 
          has recognized as having control and custody of the minor, or 
          an emancipated minor, what are your responsibilities if you 
          receive trust funds from a minor's supervised account?
115.423 If you are a custodial parent, a legal guardian, or an 
          emancipated minor, may BIA authorize the disbursement of funds 
          from a minor's supervised account without your knowledge?
115.424 Who receives a copy of the BIA-approved distribution plan and 
          any amendments to the plan?
115.425 What will we do if we find that a distribution plan has not been 
          followed or

[[Page 362]]

          an individual has acted improperly in regard to his or her 
          duties involving a minor's trust funds?
115.426 What is the BIA's responsibility regarding the management of a 
          minor's supervised account?
115.427 What is the BIA's annual review process for a minor's supervised 
          account?
115.428 Will you automatically receive all of your trust funds when you 
          reach the age of 18?
115.429 What do you need to do when you reach 18 years of age to access 
          your trust funds?
115.430 Will your account lose its supervised status when you reach the 
          age of 18?
115.431 If you are an emancipated minor may you withdraw trust funds 
          from your account?

                 Subpart D_IIM Accounts: Estate Accounts

115.500 When is an estate account established?
115.501 How long will an estate account remain open?
115.502 Who inherits the money in an IIM account when an account holder 
          dies?
115.503 May money in an IIM account be withdrawn after the death of an 
          account holder but prior to the end of the probate 
          proceedings?
115.504 If you have a life estate interest in income-producing trust 
          assets, how will you receive the income?

 Subpart E_IIM Accounts: Hearing Process for Restricting an IIM Account

115.600 If BIA decides to restrict your IIM account under Sec.  115.102 
          or Sec.  115.104, what procedures must the BIA follow?
115.601 Under what circumstances may the BIA restrict your IIM account 
          through supervision or an encumbrance?
115.602 How will the BIA notify you or your guardian, as applicable, of 
          its decision to restrict your IIM account?
115.603 What happens if BIA's notice of its decision to place a 
          restriction on your IIM account that is sent by United States 
          certified mail is returned to the BIA as undeliverable for any 
          reason?
115.604 When will BIA authorize OTFM to place a restriction on your IIM 
          account?
115.605 What information will the BIA include in its notice of the 
          decision to restrict your IIM account?
115.606 What happens if you do not request a hearing to challenge BIA's 
          decision to restrict your IIM account during the allotted time 
          period?
115.607 How do you request a hearing to challenge the BIA's decision to 
          restrict your IIM account?
115.608 If you request a hearing to challenge BIA's decision to restrict 
          your IIM account, when will BIA conduct the hearing?
115.609 Will you be allowed to present testimony and/or evidence at the 
          hearing?
115.610 Will you be allowed to present witnesses during a hearing?
115.611 Will you be allowed to question opposing witnesses during a 
          hearing?
115.612 May you be represented by an attorney during your hearing?
115.613 Will the BIA record the hearing?
115.614 Why is the BIA hearing recorded?
115.615 How long after the hearing will BIA make its final decision?
115.616 What information will be included in BIA's final decision?
115.617 What happens when the BIA decides to supervise or encumber your 
          IIM account after your hearing?
115.618 What happens if at the conclusion of the notice and hearing 
          process we decide to encumber your IIM account because of an 
          administrative error which resulted in funds that you do not 
          own being deposited in your account or distributed to you or 
          to a third party on your behalf?
115.619 If the BIA decides that the restriction on your IIM account will 
          be continued after your hearing, do you have the right to 
          appeal that decision?
115.620 If you decide to appeal the BIA's final decision pursuant to 
          Sec.  115.107, will the BIA restrict your IIM account during 
          the appeal?

           Subpart F_Trust Fund Accounts: General Information

115.700 Why is money held in trust for tribes and individual Indians?
115.701 What types of accounts are maintained for Indian trust funds?
115.702 What specific sources of money will be accepted for deposit into 
          a trust account?
115.703 May we accept for deposit into a trust account money not 
          specified in Sec.  115.702?
115.704 May we accept for deposit into a trust account retirement 
          checks/payments or pension fund checks/payments even though 
          those funds are not specified in Sec.  115.702?
115.705 May we accept for deposit into a trust account money awarded or 
          assessed by a court of competent jurisdiction?
115.706 When funds are awarded or assessed by a court of competent 
          jurisdiction in a cause of action involving trust assets, what 
          documentation is required to deposit the trust funds into a 
          trust account?
115.707 Will the Secretary accept administrative fees for deposit into a 
          trust account?
115.708 How quickly will trust funds received by the Secretary on behalf 
          of

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          tribes or individual Indians be deposited into a trust 
          account?
115.709 Will an annual audit be conducted on trust funds?

                        Investments and Interests

115.710 Does money in a trust account earn interest?
115.711 How is money in a trust account invested?
115.712 What is the interest rate earned on money in a trust account?
115.713 When does money in a trust account start earning interest?

                        Subpart G_Tribal Accounts

115.800 When does OTFM open a tribal account?
115.801 How often will a tribe receive information about its trust 
          account(s)?
115.802 May a tribe make a request to OTFM to receive information about 
          its trust account more frequently?
115.803 What information will be provided in a statement of performance?
115.804 Will we account to a tribe for those trust funds the tribe 
          receives through direct pay?
115.805 If a tribe is paid directly under a contract for the sale or use 
          of trust assets, will we accept those trust funds for deposit 
          into a tribal trust account?
115.806 How will the BIA assist in the administration of tribal judgment 
          fund accounts?

                Investing and Managing Tribal Trust Funds

115.807 Will OTFM consult with tribes about investments of tribal trust 
          funds?
115.808 Could trust fund investments made by OTFM lose money?
115.809 May a tribe recommend to OTFM how to invest the tribe's trust 
          funds?
115.810 May a tribe directly invest and manage its trust funds?
115.811 Under what conditions may a tribe redeposit funds with OTFM that 
          were previously withdrawn under the Trust Reform Act?
115.812 Is a tribe responsible for its expenditures of trust funds that 
          are not made in compliance with statutory language or other 
          federal law?
115.813 Is there a limit to the amount of trust funds OTFM will disburse 
          from a tribal trust account?
115.814 If a tribe withdraws money from its trust account for a 
          particular purpose or project, may the tribe redeposit any 
          money that was not used for its intended purpose?

                     Withdrawing Tribal Trust Funds

115.815 How does a tribe request trust funds from a tribal trust 
          account?
115.816 May a tribe's request for a withdrawal of trust funds from its 
          trust account be delayed or denied?
115.817 How does OTFM disburse money to a tribe?

                       Unclaimed Per Capita Funds

115.818 What happens if an Indian adult does not cash his or her per 
          capita check?
115.819 What steps will be taken to locate an individual whose per 
          capita check is returned as undeliverable or not cashed within 
          twelve (12) months of issuance?
115.820 May OTFM transfer money in a returned per capita account to a 
          tribal account?

                   Subpart H_Special Deposit Accounts

115.900 Who receives the interest earned on trust funds in a special 
          deposit account?
115.901 When will the trust funds in a special deposit account be 
          credited or paid out to the owner of the funds?
115.902 May administrative or land conveyance fees paid as federal 
          reimbursements be deposited in a special deposit account?
115.903 May cash bonds (e.g., performance bonds, appeal bonds, etc.) be 
          deposited into a special deposit account?
115.904 Where earnest money is paid prior to Secretarial approval of a 
          conveyance or contract instrument involving trust assets, may 
          the BIA deposit that earnest money into a special deposit 
          account?

                            Subpart I_Records

115.1000 Who owns the records associated with this part?
115.1001 How must records associated with this part be preserved?

    Authority: R.S. 441, as amended, R.S. 463, R.S. 465; 5 U.S.C. 301; 
25 U.S.C. 2; 25 U.S.C. 9; 43 U.S.C. 1457; 25 U.S.C. 4001; 25 U.S.C. 
161(a); 25 U.S.C. 162a; 25 U.S.C. 164; Pub. L. 87-283; Pub. L. 97-100; 
Pub. L. 97-257; Pub. L. 103-412; Pub. L. 97-458; 44 U.S.C. 3101 et seq.

    Source: 66 FR 7094, Jan. 22, 2001, unless otherwise noted.



         Subpart A_Purpose, Definitions, and Public Information



Sec.  115.001  What is the purpose of this part?

    This part sets forth guidelines for the Secretary of the Interior, 
including any tribe or tribal organization if that entity is 
administering specific programs, functions, services or activities,

[[Page 364]]

previously administered by the Secretary of the Interior, but now 
authorized under a Self-Determination Act contract (pursuant to 25 
U.S.C. Sec.  450f) or a Self-Governance compact (pursuant to 25 U.S.C. 
Sec.  558cc), to carry out the trust duties owed to tribes and 
individual Indians to manage and administer trust assets for the 
exclusive benefit of tribal and individual Indian beneficiaries pursuant 
to federal law, including the American Indian Trust Fund Management 
Reform Act of 1994, Public Law 103-412, 108 Stat. 4239, 25 U.S.C. Sec.  
4001 (Trust Reform Act).



Sec.  115.002  What definitions do I need to know?

    As used in this part:
    Account holder means a tribe or a person who owns the funds in a 
tribal or Individual Indian Money (IIM) account that is maintained by 
the Secretary.
    Account means a record of trust funds that is maintained by the 
Secretary for the benefit of a tribe or a person.
    Administratively restricted account means an IIM account that is 
placed on temporary hold by OTFM where an account holder's current 
address of record is unknown or where more documentation is needed to 
make a distribution from an account.
    Adult means an individual who has reached 18 years of age, except 
when the individual's tribe has determined the age for adulthood to be 
older than 18 for access to tribal trust fund per capita proceeds.
    Adult in need of assistance means an individual who has been 
determined to be ``incapable of managing or administering his or her 
property, including his or her financial affairs'' either (a) through a 
BIA administrative process that is based on a finding by a licensed 
medical professional or licensed mental health professional, or (b) by 
an order or judgment of a court of competent jurisdiction.
    BIA means the Bureau of Indian Affairs, Department of the Interior, 
or its authorized representative.
    Bond means security for the performance of certain obligations or a 
guaranty of such performance as furnished by a third-party surety. As 
used in this part, bonds may include cash bonds, performance bonds, and 
surety bonds.
    Court of competent jurisdiction means a federal or tribal court with 
jurisdiction; however, if there is no tribal court with jurisdiction, 
then a state court with jurisdiction.
    Day means a calendar day unless otherwise specified.
    Department means the Department of the Interior or its authorized 
representative.
    Deposits mean receiving funds, ordinarily through a Federal Reserve 
Bank, for credit to a trust fund account.
    Emancipated minor means a person under 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself.
    Encumber or encumbrance means to attach trust assets held by the 
Secretary with a claim, lien, or charge that has been approved by the 
Secretary.
    Encumbered account means a trust fund account where some portion of 
the proceeds are obligated to another party.
    Estate account means an account for a deceased IIM account holder.
    FOIA means the Freedom of Information Act, 5 U.S.C. Sec.  552.
    Guardian means a person who is legally responsible for the care and 
management of an individual and his or her estate. This definition 
includes, but is not limited to, conservator or guardian of the 
property. However, this definition does not apply to property subject to 
Sec.  115.106 of this part.
    Individual Indian Money (IIM) accounts means an interest bearing 
account for trust funds held by the Secretary that belong to a person 
who has an interest in trust assets. These accounts are under the 
control and management of the Secretary. There are three types of IIM 
accounts: unrestricted, restricted, and estate accounts.
    Legal disability means the lack of legal capability to perform an 
act which includes the ability to manage or administer his or her 
financial affairs as determined by a court of competent jurisdiction or 
another federal agency where the federal agency has determined that the 
adult requires a representative payee and there is no

[[Page 365]]

legal guardian to receive federal benefits on his or her behalf.
    MSW means a Master of Social Work degree from an accredited college 
or university.
    Minor means an individual who is not an adult as defined in this 
part.
    Non-compos mentis means a person who has been determined by a court 
of competent jurisdiction to be of unsound mind or incapable of managing 
his or her own affairs.
    OST means the Office of the Special Trustee for American Indians, 
Department of the Interior, or its authorized representative.
    OTFM means the Office of Trust Funds Management, within the Office 
of the Special Trustee for American Indians, Department of the Interior, 
or its authorized representative.
    Privacy Act means the Federal Privacy Act, 5 U.S.C. Sec.  552a.
    Restricted fee land(s) 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.
    Secretary means the Secretary of the Interior or an authorized 
representative; it also means a tribe or tribal organization if that 
entity is administering specific programs, functions, services or 
activities, previously administered by the Secretary of the Interior, 
but now authorized under a Self-Determination Act contract (pursuant to 
25 U.S.C. Sec.  450f) or a Self-Governance compact (pursuant to 25 
U.S.C. Sec.  558cc).
    Special deposit account means a temporary account for the deposit of 
trust funds that cannot immediately be credited to the rightful account 
holders.
    Supervised account means a restricted IIM account, from which all 
disbursements must be approved by the BIA, that is maintained for 
minors, emancipated minors, adults who are in need of assistance, adults 
who under legal disability, or adults who are non-compos mentis.
    Tribal account or tribal trust account generally means a trust fund 
account for a federally recognized tribe that is maintained and held in 
trust by the Secretary.
    Tribe means any Indian tribe, nation, band, pueblo, rancheria, 
colony, or community, including any Alaska Native Village or regional or 
village corporation as defined or established under the Alaska Native 
Claims Settlement Act which is federally recognized by the United States 
government for special programs and services provided by the Secretary 
to Indians because of their status as Indians. Tribe also means two or 
more tribes joined for any purpose, the joint assets of which include 
funds held in trust by the Secretary.
    Trust account means a tribal account, an IIM account, or a special 
deposit account for trust funds maintained by the Secretary.
    Trust assets mean trust lands, natural resources, trust funds, or 
other assets held by the federal government in trust for Indian tribes 
and individual Indians.
    Trust funds means money derived from the sale or use of trust lands, 
restricted fee lands, or trust resources and any other money that the 
Secretary must accept into trust.
    Trust land(s) means any tract or interest therein, that the United 
States holds in trust status for the benefit of a tribe or an individual 
Indian.
    Trust Reform Act means the American Indian Trust Fund Management 
Reform Act of 1994, Pub. L. 103-412, 108 Stat. 4239, 25 U.S.C. Sec.  
4001.
    Trust resources means any element or matter directly derived from 
Indian trust property.
    Unrestricted account means an IIM account in which an Indian account 
holder may determine the timing and amount of disbursements from the 
account.
    Voluntary hold means a request by an individual Indian with an 
unrestricted IIM account to keep his or her trust funds in a trust 
account instead of having the trust funds automatically disbursed.
    We or Us or Our means the Secretary as defined in this part.
    You or Your means an IIM account holder.

[[Page 366]]



                         Subpart B_IIM Accounts



Sec.  115.100  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.  115.101  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.  115.102  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.  115.103  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.  115.104  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 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. For 
rules governing the payment of judgments from individual Indian money 
accounts, see Sec.  11.208 of this chapter.



Sec.  115.105  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 or 
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.



Sec.  115.106  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.

[[Page 367]]

    (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.



Sec.  115.107  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 
subpart E.



                     Subpart C_IIM Accounts: Minors



Sec.  115.400  Will a minor's IIM account always be supervised?

    Yes, all IIM accounts established by BIA for minors will be a 
supervised by the BIA.



Sec.  115.401  What is a minor's supervised account?

    A minor's supervised account is a restricted IIM account from which 
all disbursements must be made pursuant to a distribution plan approved 
by the BIA that is established for:
    (a) A minor, or
    (b) An emancipated minor.



Sec.  115.402  Will a minor have access to information 
about his or her account?

    A minor will not have access to information about his or her IIM 
account without approval of the custodial parent(s) or legal guardian. 
However, an emancipated minor will have access to information about his 
or her IIM account.



Sec.  115.403  Who will receive information regarding 
a minor's supervised account?

    (a) The parent(s) with legal custody of the minor or the minor's 
legal guardian will receive a minor's statement of performance at the 
address of record for the minor's supervised account.
    (b) An emancipated minor will receive his or her statement of 
performance at the address of record for the minor's supervised account.



Sec.  115.404  What information will be provided in a minor's 
statement of performance?

    A minor's statement of performance will identify the source, type, 
and status of the funds deposited and held in the account; the beginning 
balance; the gains and losses; receipts and disbursements, if any; and 
the ending balance of the quarterly statement period for the minor's 
supervised account.



Sec.  115.405  How frequently will a minor's statement of performance 
be mailed?

    We will mail a minor's statement of performance to the address of 
record quarterly, within and no later than 20 business days after the 
close of the quarterly statement period.



Sec.  115.406  Who provides an address of record for a minor's 
supervised account?

    (a) The custodial parent or the legal guardian must provide an 
address to the BIA and this address will be the address of record for 
the minor's supervised account. Where applicable, a parent or legal 
guardian must provide a copy of the custodial order or guardianship 
order from a court of competent jurisdiction when providing the address 
of record for the minor's supervised IIM account.
    (b) The emancipated minor must provide his or her address of record 
to the BIA.
    (c) Upon receipt of the change of address of record from the parent 
or legal guardian, the BIA must provide the change of the address of 
record to the OTFM.

[[Page 368]]



Sec.  115.407  How is an address of record for a minor's 
supervised account changed?

    (a) To change an address of record for a minor's supervised IIM 
account, a custodial parent(s), legal guardian, or emancipated minor 
must provide BIA with the following information:
    (1) The minor's or emancipated minor's name;
    (2) The name of the custodial parent(s) or legal guardian, if 
applicable;
    (3) A custody order from a court of competent jurisdiction or a copy 
of a guardianship, if applicable;
    (4) The new address of the custodial parent(s), legal guardian, or 
emancipated minor; and
    (5) The signature, mark or thumb print of a custodial parent, legal 
guardian, or emancipated minor that has been notarized by a notary 
public and/or witnessed by a DOI employee who has been shown verifiable 
photo identification. See Sec.  115.410
    (b) When requesting a change of an address of record, the following 
information will further assist us to identify the minor's account:
    (1) The minor's or emancipated minor's IIM account number;
    (2) The minor's or emancipated minor's date of birth;
    (3) The minor's or emancipated minor's tribal enrollment number; and
    (4) The minor's or emancipated minor's social security number.



Sec.  115.408  May a minor's supervised account have more than one address 
on file with the BIA?

    Yes, a minor's supervised account may have more than one address on 
file with the BIA. We request that the parent, legal guardian, or the 
person who has been recognized by the BIA as having control and custody 
of the minor, notify us of the following addresses for the minor:
    (a) The minor's residence;
    (b) The address of record where the statement of performance will be 
mailed;
    (c) The address where disbursement checks will be mailed or 
financial institution information for direct deposits of trust funds as 
authorized under an approved distribution plan.



Sec.  115.409  How is an address for a minor's residence changed?

    (a) To change an address for a minor's residence, the custodial 
parent, legal guardian, or the person who has been recognized by the BIA 
as having control and custody of the minor must provide BIA with the 
following information:
    (1) The minor's name;
    (2) The name of the custodial parent(s) or legal guardian;
    (3) A copy of a custodial order from a court of competent 
jurisdiction or a guardianship order, where applicable;
    (4) The new address of the minor's residence; and
    (5) The signature, mark or thumb print of the individual who is 
providing the updated address for the minor's residence that has been 
notarized by a notary public and/or witnessed by a DOI employee who has 
been shown verifiable photo identification. See Sec.  115.410
    (b) When requesting a change of an address for a minor's residence, 
the following information will further assist us to identify the minor's 
account:
    (1) The minor's IIM account number;
    (2) The minor's date of birth;
    (3) The minor's tribal enrollment number (if known); and
    (4) The minor's social security number (where known).



Sec.  115.410  What types of identification will the BIA or OTFM accept as 
``verifiable photo identification''?

    BIA or OTFM will accept the following forms of identification as 
``verifiable photo identification'':
    (a) A valid driver's license;
    (b) A government-issued photo identification card, such as a 
passport, security badge, etc.; or
    (c) A tribal photo identification card.



Sec.  115.411  What if the individual making a request regarding a minor's 
supervised account does not have any verifiable photo identification?

    If the individual making a request regarding a minor's supervised 
account does not have any verifiable photo identification, the 
individual may make a request in person at the BIA and we will talk with 
the individual and review information in the minor's

[[Page 369]]

file to see if we can attest to the individual's identity. If we cannot 
establish the identity of the individual, we will not accept the 
request.



Sec.  115.412  Will child support payments be accepted for deposit 
into a minor's supervised account?

    The Secretary will not accept child support payments for deposit 
into a minor's supervised account.



Sec.  115.413  Who may receive funds from a minor's supervised account?

    A custodial parent, a legal guardian, a person who has been 
recognized by the BIA as having control and custody of the minor, or an 
emancipated minor may be eligible to withdraw funds from a minor's 
supervised account if there is an authorized disbursement request that 
is based upon the terms of a BIA-approved distribution plan.



Sec.  115.414  What is an authorized disbursement request?

    An authorized disbursement request is the form or letter that must 
be approved by the BIA that specifies the funds to be disbursed from an 
IIM account. The authorized disbursement request may not be issued to 
disburse funds from a minor's supervised account unless an approved 
distribution plan exists, the amount to be disbursed is in conformity 
with the distribution plan and the disbursement will be made to an 
individual or third party specified in the plan.



Sec.  115.415  How will an authorized disbursement from a minor's 
supervised account be sent?

    OTFM will make an authorized disbursement based on the approved 
distribution plan from a minor's supervised account by:
    (a) Making a direct deposit to a specified account at a financial 
institution (a direct deposit into the specified account will eliminate 
lost, stolen or damaged checks and will also eliminate delays associated 
with mailing the check);
    (b) Mailing a check to the address of record or to a specified 
disbursement address; or
    (c) Mailing a check to a specified third party's address.



Sec.  115.416  Will the United States post office forward mail regarding 
a minor's supervised account to a forwarding address left 
with the United States post office?

    (a) Federal law does not allow the United States post office to 
forward checks that are issued by the federal government. Therefore, a 
check from a minor's supervised account will not be forwarded to an 
address left with the United States post office. The new address of 
record must be provided directly to BIA.
    (b) Where a forwarding address has been provided to the United 
States post office, the United States post office will forward a 
statement of performance and general correspondence regarding a minor's 
supervised account that is mailed to the minor's address of record for a 
limited time period. However, it is the responsibility of a custodial 
parent, legal guardian, or emancipated minor to give BIA the new address 
of record for the minor's supervised account.



Sec.  115.417  What portion of funds in a minor's supervised account 
may be withdrawn under a distribution plan?

    Trust money in a minor's supervised account will not be distributed 
without a review of other resources that may be available to meet the 
needs of the minor. Any trust funds of a minor that are distributed must 
be used for the direct benefit of the minor and in accordance with any 
additional limitations (e.g., statutory, court order, tribal resolution, 
etc.) placed on the use of specific trust funds. Allowable uses may 
include health, education, or welfare when based upon a justified unmet 
need. The BIA will require receipts for expenditures of funds disbursed 
from a minor's account to a custodial parent, legal guardian, person who 
has been recognized by the BIA as having control and custody of the 
minor, or an emancipated minor.



Sec.  115.418  What types of trust funds may a minor have?

    A minor may have one or more of the following types of trust funds:
    (a) Judgment per capita funds: Withdrawals may only be made upon BIA

[[Page 370]]

approval of an application made under Public Law 97-458. See 25 CFR 1.2.
    (b) Tribal per capita funds: Withdrawals may only be made under a 
BIA approved distribution plan and in accordance with the terms of the 
tribe's per capita resolution/document.
    (c) Other trust funds: Withdrawals may only be made under a minor's 
BIA-approved distribution plan that is based on a justified unmet need 
for the minor's health, education, or welfare.
    (d) Funds from other federal agencies (e.g., SSA, SSI, VA) received 
for the benefit of the minor: Withdrawals must be made only under a BIA-
approved distribution plan that must be consistent with the disbursing 
agency's (e.g., SSA, SSI, VA) allowable uses for the funds.



Sec.  115.419  Who develops a minor's distribution plan?

    A social service provider will develop a minor's distribution plan 
for approval by the BIA after evaluating the needs of the minor in 
consultation with a custodial parent, a legal guardian, the person who 
has been recognized by the BIA as having control and custody of the 
minor, or emancipated minor. A minor's distribution plan may only 
provide for those expenditures outlined in part Sec.  115.417.



Sec.  115.420  When developing a minor's distribution plan, what information 
must be considered and included in the evaluation?

    When developing a minor's distribution plan, the following 
information must be considered and included in the evaluation:
    (a) Documentation which establishes who has physical custody of the 
minor (e.g., home visits, school records, medical records, etc.);
    (b) A copy of any custodial orders or guardianship orders from a 
court of competent jurisdiction;
    (c) The name(s) of the person and his or her relationship to the 
minor, if any, who make a request for a disbursement from the minor's 
account;
    (d) An evaluation of other resources, including parental income, 
that may be available to meet the unmet needs of the minor;
    (e) A list of the amounts, purposes, and dates for which 
disbursements will be made;
    (f) The name(s) of the person to whom disbursements may be made, 
including, as applicable:
    (1) A custodial parent;
    (2) A legal guardian;
    (3) The person who has been recognized by the BIA as having control 
and custody of the minor;
    (4) An emancipated minor; and/or
    (5) Any third parties to whom the BIA will make direct payment for 
goods or services provided to the minor and supported by an invoice or 
bill of sale;
    (g) The date(s) (at least every six months) when the custodial 
parent, the legal guardian, the person who has been recognized by the 
BIA as having control and custody of the minor, or the emancipated minor 
must provide receipts to the BIA to show that expenditures were made in 
accordance with the approved distribution plan;
    (h) Additional requirements and justification for those 
requirements, as necessary to ensure that any distribution(s) will 
benefit the minor;
    (i) The dates the disbursement plan was developed, approved, and 
reviewed, and the date for the next scheduled review;
    (j) The date(s) the distribution plan was amended and an explanation 
for any amendment(s) to the distribution plan, when an amendment is 
necessary;
    (k) The signature of the BIA official approving the plan with the 
certification that the plan is in the best interest of the account 
holder; and
    (l) The signature(s) of the custodial parent, legal guardian, with 
date(s) signed, certifying that he or she has been consulted and has 
agreed to the terms of the evaluation and the distribution plan.



Sec.  115.421  What information will be included in the copy of the minor's 
distribution plan that will be provided to OTFM?

    A minor's distribution plan must contain the following:
    (a) A copy of any custodial order or guardianship order from a court 
of competent jurisdiction;

[[Page 371]]

    (b) A list of the amounts, purposes, and dates for which 
disbursements will be made;
    (c) The name(s) of the person(s) to whom disbursements may be made, 
including, as applicable:
    (1) A custodial parent;
    (2) A legal guardian;
    (3) The person who has been recognized by the BIA as having control 
and custody of the minor and the address of that person;
    (4) An emancipated minor; and/or
    (5) Any third parties and the address(es) of the third parties to 
whom the direct payment will be made for goods or services provided to 
the minor and supported by an invoice or bill of sale, where applicable;
    (d) The date that the disbursement plan was approved and the 
expiration date of the distribution plan; and
    (e) The date and signature of the BIA official approving the plan 
with a certification that the plan is in the best interest of the 
account holder.



Sec.  115.422  As a custodial parent, the legal guardian, the person who BIA 
has recognized as having control and custody of the minor, 
or an emancipated minor, what are your responsibilities if you receive 
trust funds from a minor's supervised account?

    If you are a custodial parent, the legal guardian, the person who 
BIA has recognized as having control and custody of the minor, or an 
emancipated minor who receives funds from a minor's supervised account, 
you must:
    (a) Consult with the social service provider on the development of 
an evaluation;
    (b) Sign an acknowledgment that you have reviewed the evaluation;
    (c) Follow the terms of a distribution plan approved by the BIA;
    (d) Follow any applicable court order;
    (e) Provide receipts to the social services provider in accordance 
with terms of the evaluation for all expenses paid out of the minor's 
IIM funds;
    (f) Review the statements of performance for the supervised account 
for discrepancies, if applicable;
    (g) File tax returns on behalf of the account holder, if applicable; 
and
    (h) Notify the social service provider of any change in 
circumstances that impairs your performance of your obligations under 
this part or inform the social service provider of any information 
regarding misuse of a minor's trust funds.



Sec.  115.423  If you are a custodial parent, a legal guardian, 
or an emancipated minor, may BIA authorize the disbursement of funds 
from a minor's supervised account without your knowledge?

    At the Secretary's discretion, the BIA may authorize the 
disbursement of funds from a minor's supervised account for the benefit 
of the minor.



Sec.  115.424  Who receives a copy of the BIA-approved distribution plan 
and any amendments to the plan?

    The BIA-approved distribution plan will be provided to:
    (a) The custodial parent; or
    (b) A legal guardian; or
    (c) At the Secretary's discretion, in unusual circumstances, to a 
family member who has been recognized as having control and custody of 
the minor; or
    (d) An emancipated minor; and
    (e) OTFM.



Sec.  115.425  What will we do if we find that a distribution plan 
has not been followed or an individual has acted improperly 
in regard to his or her duties involving a minor's trust funds?

    If we find that a distribution plan has not been followed or that a 
custodial parent, a legal guardian, or the person who has been 
recognized by the BIA as having control and custody of the minor has 
failed to satisfactorily account for expenses or has not used the 
minor's funds for the primary benefit of the minor, we will:
    (a) Notify the individual; and
    (b) Take action to protect the interests of the minor, which may 
include:
    (1) Referring the matter for civil or criminal legal action;
    (2) Demanding repayment from the individual who has improperly 
expended trust funds or failed to account for the use of trust funds;
    (3) Liquidating a bond posted by the legal guardian, where 
applicable, to recover improperly expended trust funds up to the amount 
of the bond; or

[[Page 372]]

    (4) Immediately modifying the distribution plan for up to sixty 
days, including suspending the authority of the individual to receive 
further disbursements.



Sec.  115.426  What is the BIA's responsibility regarding the management 
of a minor's supervised account?

    The BIA's responsibility in regard to the management of a minor's 
supervised account is to:
    (a) Review and approve the evaluation and the distribution plan;
    (b) Authorize OTFM to disburse IIM funds in accordance with an 
approved distribution plan; and
    (c) Conduct annual reviews of case records for minors' supervised 
accounts to ensure that the social service providers have managed the 
accounts in accordance with the approved evaluation and distribution 
plan.



Sec.  115.427  What is the BIA's annual review process 
for a minor's supervised account?

    A BIA social worker with an MSW will conduct an annual review of 
minors' supervised accounts by:
    (a) Verifying that all receipts for disbursements made under a 
distribution plan were collected in accordance with the terms specified 
in the evaluation;
    (b) Reviewing the receipts for disbursements made from a minor's 
supervised account to ensure that all expenditures were made in 
accordance with the distribution plan;
    (c) Reviewing all case worker reports and notes;
    (d) Reviewing account records to insure that withdrawals and 
payments were made in accordance with the distribution plan;
    (e) Verifying current addresses, including the address of record, 
the address of the minor's residence, and the disbursement address; and
    (f) Deciding whether the distribution plan needs to be modified.



Sec.  115.428  Will you automatically receive all of your trust funds 
when you reach the age of 18?

    No, we will not automatically send your trust funds to you when you 
reach the age of 18.



Sec.  115.429  What do you need to do when you reach 18 years of age 
to access your trust funds?

    You must contact OTFM to request withdrawal of any or all of your 
trust funds that may be available to you. OTFM may require certain 
information from you to verify your identity, etc. prior to the release 
of your trust funds. All signatures must be notarized by a notary public 
or witnessed by a DOI employee. In addition, if you choose to have a 
check mailed to you, you must provide us with your address of record. If 
you choose to have your trust funds electronically transferred to you, 
you must provide your financial institution account information to OTFM.



Sec.  115.430  Will your account lose its supervised status 
when you reach the age of 18?

    Your account will no longer be supervised when you reach the age of 
18 unless statutory language or a tribal resolution specifies an age 
other than 18 years of age for access to specific trust funds. However, 
if a court of competent jurisdiction has found you to be non-compos 
mentis, under legal disability, or the BIA has determined you to be an 
adult in need of assistance, your account will remain supervised and you 
will be notified in accordance with subpart E.



Sec.  115.431  If you are an emancipated minor may you withdraw trust funds 
from your account?

    If you are an emancipated minor, you may have access to some or all 
of your trust funds as follows:
    (a) For judgment per capita funds: you may not make withdrawals from 
your account until you have reached the age specified in the judgment. 
Exceptions are only granted upon the approval of an application made 
under Public Law 97-458. See 25 CFR 1.2.
    (b) Tribal per capita funds: access to these funds will be 
determined by tribal resolution.
    (c) Other trust funds: You may be able to have supervised access to 
some or all of your funds, but the BIA must approve all requests for 
withdrawals from your account. You must work with the BIA to develop a 
distribution

[[Page 373]]

plan to access the funds in your account. In no instance will the BIA 
allow an emancipated minor to make unsupervised withdrawals.
    (d) For funds from other federal agencies (e.g., SSA, SSI, VA), you 
may be able to receive funds directly, but you must contact and make 
arrangements with the other federal agency. Direct receipt of funds from 
another federal agency will not change the supervised status of an 
emancipated minor's trust account.



                 Subpart D_IIM Accounts: Estate Accounts



Sec.  115.500  When is an estate account established?

    An estate account is established when we receive notice of an 
account holder's death.



Sec.  115.501  How long will an estate account remain open?

    An estate account will remain open until the funds have been 
distributed in accordance with the distribution and/or probate order.



Sec.  115.502  Who inherits the money in an IIM account 
when an account holder dies?

    At the end of all probate procedures, funds remaining in a 
decedent's estate account will be distributed from the decedent's estate 
account and paid directly to or deposited into an IIM account of the 
decedent's heirs, beneficiaries, or other persons or entities entitled 
by law to receive the funds, where applicable. See 25 CFR part 15.



Sec.  115.503  May money in an IIM account be withdrawn after the death 
of an account holder but prior to the end of the probate proceedings?

    (a) If you are responsible for making the funeral arrangements of a 
decedent who had an IIM account and you have an immediate need for 
emergency assistance to pay for funeral arrangements prior to burial, 
you may make a request to the BIA for up to $1,000 from the decedent's 
IIM account if the decedent's IIM account has more than $2,500 in the 
account at the date of death.
    (b) You must apply for this assistance and submit to the BIA an 
original itemized estimate of the cost of the service to be rendered and 
the identification of the service provider.
    (c) We may approve reasonable costs up to $1,000 that are necessary 
for the burial services.
    (d) We will make payments directly to the providers of the 
service(s).



Sec.  115.504  If you have a life estate interest 
in income-producing trust assets, how will you receive the income?

    If you have a life estate interest in income-producing trust assets, 
which is earning income, OTFM will open an IIM-life estate account for 
you and funds will be distributed after BIA has certified ownership of 
the trust funds.



 Subpart E_IIM Accounts: Hearing Process for Restricting an IIM Account



Sec.  115.600  If BIA decides to restrict your IIM account 
under Sec.  115.102 or Sec.  115.104, what procedures must the BIA follow?

    If under Sec.  115.102 or Sec.  115.104, the BIA has decided to 
limit your access to your IIM account (i.e., decided to supervise the 
IIM account), or if the BIA has decided to pay creditors with funds from 
your IIM account, including creditors with judgments from Courts of 
Indian Offenses for which preliminary procedures are prescribed in 25 
CFR 11.208, the BIA must notify you or your guardian, as applicable, to 
provide you or your guardian, as applicable, with an opportunity to 
challenge the BIA's decision to restrict your IIM account as specified 
in subpart E.



Sec.  115.601  Under what circumstances may the BIA restrict your IIM account 
through supervision or an encumbrance?

    (a) The BIA may restrict your IIM account through supervision if the 
BIA:
    (1) Receives an order from a court of competent jurisdiction that 
you are non-compos mentis; or
    (2) Receives an order or judgment from a court of competent 
jurisdiction that you are an adult in need of assistance because you are 
``incapable of

[[Page 374]]

managing or administering property, including your financial affairs;'' 
or
    (3) Determines through an administrative process that you are an 
adult in need of assistance based on a finding by a licensed medical or 
mental health professional that you are ``incapable of managing or 
administering property, including your financial affairs;'' or
    (4) Receives information from another federal agency that you are 
under a legal disability and that the agency has appointed a 
representative payee to receive federal benefits on your behalf.
    (b) The BIA may restrict your IIM account through an encumbrance if 
the BIA:
    (1) Receives an order from a court of competent jurisdiction 
awarding child support from your IIM account; or
    (2) Receives from a third party:
    (i) A copy of the original contract between you and the third party 
in which you used your IIM funds as security/collateral for the 
transaction;
    (ii) A copy of the document showing that the BIA approved in advance 
the use of your IIM funds as security/collateral for the contract;
    (iii) Proof of your default on the contract according to the terms 
of the contract; and
    (iv) A copy of the original assignment of IIM income as security/
collateral for the contract that is signed and dated by you and is 
notarized;
    (3) Receives a money judgment from a Court of Indian Offenses 
pursuant to 25 CFR 11.208 or under any tribal law and order code;
    (4) Is provided documentation showing that BIA or OTFM caused an 
administrative error which resulted in a deposit into your IIM account, 
or a disbursement to you, or to a third party on your behalf; or
    (5) Is provided with proof of debts owed to the United States 
pursuant to Sec.  115.104 of this part.



Sec.  115.602  How will the BIA notify you or your guardian, as applicable, 
of its decision to restrict your IIM account?

    The BIA will notify you or your guardian, as applicable, of its 
decision to restrict your IIM account by:
    (a) United States certified mail to your address of record;
    (b) Personal delivery to you or your guardian, as applicable, or to 
your address of record;
    (c) Publication for four consecutive weeks in your tribal newspaper 
if your whereabouts are unknown and in the local newspaper serving your 
last known address of record; or
    (d) United States certified mail to you in care of the warden, if 
you are incarcerated. The BIA may send a copy of the notification to 
your attorney, if known.



Sec.  115.603  What happens if BIA's notice of its decision to place 
a restriction on your IIM account that is sent by United States 
certified mail is returned to the BIA as undeliverable for any reason?

    If BIA's notice of its decision to place a restriction on your IIM 
account that is sent by United States certified mail is returned to the 
BIA as undeliverable for any reason, the BIA will remove the restriction 
on your account, which was placed five days after the notice was mailed, 
and will publish a notice in accordance with Sec.  115.602(c) and Sec.  
115.605(b).



Sec.  115.604  When will BIA authorize OTFM to place a restriction 
on your IIM account?

    BIA will authorize OTFM to place a restriction on your IIM account 
after providing OTFM with supporting documentation (i.e., receipts, 
notice of publication, etc.) of the following:
    (a) Five (5) days after the date BIA mails you or your guardian, as 
applicable, notice of its decision to restrict your account by United 
States certified mail to your address of record;
    (b) One (1) day after BIA has made personal delivery to you or your 
guardian, as applicable, or to your address of record of its notice of 
the BIA's decision to restrict your account; or
    (c) Five (5) days after the fourth publication of the public notice 
of BIA's decision to restrict your account.

[[Page 375]]



Sec.  115.605  What information will the BIA include in its notice 
of the decision to restrict your IIM account?

    (a) When the BIA provides notice of its decision to restrict your 
IIM account by certified mail or personal delivery to you or your 
guardian, as applicable, the notice must contain:
    (1) The name on the IIM account;
    (2) The reason for the restriction;
    (3) The amount to be encumbered, if applicable;
    (4) A statement that your IIM account will be restricted 5 days 
after the date the notice was sent United States certified mail to your 
address of record;
    (5) An explanation that you have 40 days from the date the notice 
was sent United States certified mail to request a hearing to challenge 
BIA's decision to restrict your IIM account;
    (6) An explanation of how to request a hearing;
    (7) A statement that the BIA will conduct the hearing and that you 
are assured a fair hearing;
    (8) A copy of the fair hearing guidelines;
    (9) A statement that you may contact the BIA to authorize immediate 
payment from your IIM account to pay the claim, if applicable;
    (10) The address and phone number of the BIA office that made the 
decision to restrict your IIM account and provided the notice; and
    (11) Other information as may be determined appropriate by the BIA.
    (b) When the BIA provides public notice of its decision to restrict 
your account, the only information the public notice will include is:
    (1) The name on the account;
    (2) The date of first publication of the public notice;
    (3) A statement that the BIA has decided to place a restriction on 
your IIM account;
    (4) A statement that the public notice will be published once a week 
for four consecutive weeks;
    (5) A statement that the BIA will place a restriction on your 
account five (5) days after the date of the fourth publication of the 
public notice;
    (6) A statement that your opportunity to request a hearing to 
challenge BIA's decision to restrict your account will expire 30 days 
after the date of the fourth publication of the public notice; and
    (7) An address and telephone number of the BIA office publishing the 
notice to request further information and instructions on how to request 
a hearing.



Sec.  115.606  What happens if you do not request a hearing to challenge 
BIA's decision to restrict your IIM account during the allotted time period?

    If you or your guardian, as applicable, do not request a hearing to 
challenge BIA's decision to restrict your IIM account during the 
allotted time period, BIA's decision to restrict your IIM account will 
become final. BIA will follow the procedures outlined in Sec.  115.616 
through Sec.  115.618, and Sec.  115.620, as applicable.



Sec.  115.607  How do you request a hearing to challenge the BIA's decision 
to restrict your IIM account?

    You or your guardian, as applicable, must request a hearing to 
challenge the BIA's decision to restrict your IIM account from the BIA 
office that made the decision and notified you of the restriction. Your 
request must:
    (a) Be in writing;
    (b) Specifically request a hearing to challenge the restriction; and
    (c) Be hand delivered to the BIA office or postmarked within:
    (i) 40 days of the date that BIA's notice was sent United States 
certified mail or personally delivered to the address of record, or
    (ii) 30 days of the date of the final publication of the public 
notice.



Sec.  115.608  If you request a hearing to challenge BIA's decision 
to restrict your IIM account, when will BIA conduct the hearing?

    BIA will conduct a hearing within ten (10) working days from its 
receipt of a written request from you or your guardian, as applicable, 
for a hearing to challenge the decision to restrict your IIM account.



Sec.  115.609  Will you be allowed to present testimony 
and/or evidence at the hearing?

    Yes, you or your guardian, as applicable, will be provided the 
opportunity

[[Page 376]]

to present testimony and/or evidence as to the reasons the BIA should 
not restrict your IIM account, including information showing how an 
encumbrance may create an undue financial hardship, if applicable. You 
may not challenge a court order or judgment in this proceeding. However, 
if you have appealed an order or judgment from a court of competent 
jurisdiction, you or your guardian, as applicable, may present evidence 
of your appeal and the BIA hearing will be postponed until there is a 
final order from the court. The restriction on your IIM account will 
remain in place until after the hearing is concluded.



Sec.  115.610  Will you be allowed to present witnesses during a hearing?

    Yes, you or your guardian, as applicable, may present witnesses 
during a hearing. You are responsible for any and all expenses which may 
be associated with presenting witnesses.



Sec.  115.611  Will you be allowed to question opposing witnesses 
during a hearing?

    Yes, you or your guardian, as applicable, may question all opposing 
witnesses testifying during your hearing. You may also present witnesses 
to challenge opposing witness testimony.



Sec.  115.612  May you be represented by an attorney during your hearing?

    Yes, you may have an attorney or other person represent you during 
your hearing. However, you are responsible for any and all expenses 
associated with having an attorney or other person represent you.



Sec.  115.613  Will the BIA record the hearing?

    Yes, the BIA will record the hearing.



Sec.  115.614  Why is the BIA hearing recorded?

    The BIA hearing will be recorded so that it will be available for 
review if the hearing process is appealed under Sec.  115.107. The BIA 
hearing record must be preserved as a trust record.



Sec.  115.615  How long after the hearing will BIA make its final decision?

    BIA will make its final decision within 10 business days of the end 
of the hearing.



Sec.  115.616  What information will be included in BIA's final decision?

    BIA's final written decision to the parties involved in the 
proceeding will include:
    (a) BIA's decision to remove or retain the restriction on the IIM 
account;
    (b) A detailed justification for the supervision or encumbrance of 
the IIM account, where applicable;
    (c) The amount(s) to be paid, the name and address of a third party 
to whom payment will be made, and the time period for repayment 
established under 617(a) of this part, where applicable;
    (d) Any provision to allow for distributions to the account holder 
because of an undue financial hardship created by the encumbrance, if 
applicable; and
    (e) Any other information the hearing officer deems necessary.



Sec.  115.617  What happens when the BIA decides to supervise 
or encumber your IIM account after your hearing?

    BIA will provide OTFM with a copy of the distribution plan, after 
the BIA decides to:
    (a) Supervise your IIM account. BIA social services staff will 
consult with you and/or your guardian to develop a distribution plan. 
Upon BIA approval, the distribution plan will be valid for one year.
    (b) Encumber your IIM account. BIA will review your account balance 
and your future IIM income to develop a distribution plan that 
establishes the amount(s) to be paid and the dates payment(s) will be 
made to the specified party. Payments may need to be made over the 
course of one or more years if the amount owed to the specified party is 
greater than your current IIM account balance.

[[Page 377]]



Sec.  115.618  What happens if at the conclusion of the notice 
and hearing process we decide to encumber your IIM account because of 
an administrative error which resulted in funds that you do not own 
being deposited in your account or distributed to you or to a third party 
on your behalf?

    If we decide at the conclusion of the notice and hearing process to 
encumber your account because of an administrative error which resulted 
in funds that you do not own being deposited into your IIM account or 
distributed to you or to a third party on your behalf, we will consult 
with you or your guardian, as applicable, to determine how the funds 
will be re-paid.



Sec.  115.619  If the BIA decides that the restriction on your IIM account 
will be continued after your hearing, do you have the right 
to appeal that decision?

    Yes, if the BIA decides after your hearing to continue the 
restriction on your IIM account, you or your guardian, as applicable, 
have the right to appeal the decision under the procedures proscribed in 
Sec.  115.107.



Sec.  115.620  If you decide to appeal the BIA's final decision 
pursuant to Sec.  115.107, will the BIA restrict your IIM account 
during the appeal?

    Yes, if under Sec.  115.107 you or your guardian, as applicable, 
decide to appeal the BIA's final decision to:
    (a) Supervise your IIM account, your IIM account will remain 
restricted during the appeal period.
    (b) Encumber your IIM account, your IIM account will remain 
restricted up to the amount at issue during the appeal period. If your 
account balance is greater than the amount encumbered, those funds will 
be available to you upon request to and by approval of the Secretary.



           Subpart F_Trust Fund Accounts: General Information



Sec.  115.700  Why is money held in trust for tribes and individual Indians?

    Congress has passed a number of laws that require the Secretary to 
establish and administer trust fund accounts for Indian tribes and 
certain individual Indians who have an interest(s) in trust lands, trust 
resources, or trust assets.

[[Page 378]]



Sec.  115.701  What types of accounts are maintained for Indian trust funds?

    Indian trust funds are deposited in tribal accounts, Individual 
Indian Money (IIM) accounts, and special deposit accounts. The 
illustration below provides information on each of these trust accounts.
[GRAPHIC] [TIFF OMITTED] TR22JA01.172


[66 FR 7094, Jan. 22, 2001, as amended at 66 FR 8768, Feb. 2, 2001]

[[Page 379]]



Sec.  115.702  What specific sources of money will be accepted for deposit 
into a trust account?

    We must accept proceed on behalf of tribes or individuals from the 
following sources:
[GRAPHIC] [TIFF OMITTED] TR22JA01.173


[[Page 380]]


[GRAPHIC] [TIFF OMITTED] TR22JA01.174


[[Page 381]]


[GRAPHIC] [TIFF OMITTED] TR22JA01.175


[66 FR 7094, Jan. 22, 2001. Redesignated at 66 FR 8768, Feb. 2, 2001]



Sec.  115.703  May we accept for deposit into a trust account money 
not specified in Sec.  115.702?

    No, we will not accept funds from sources that are not identified in 
the table in Sec.  115.702 for deposit into a trust account.



Sec.  115.704  May we accept for deposit into a trust account 
retirement checks/payments or pension fund checks/payments even though 
those funds are not  specified in Sec.  115.702?

    No, we will not accept retirement checks/payments or pension fund 
checks/payments or any funds from sources that are not identified in the 
table in Sec.  115.702 for deposit into a trust account.



Sec.  115.705  May we accept for deposit into a trust account money awarded 
or assessed by a court of competent jurisdiction?

    We will accept money awarded or assessed by a court of competent 
jurisdiction for a cause of action directly related to trust assets to 
be deposited into a trust account. Other funds awarded by a court of 
competent jurisdiction may not be deposited into a trust account.



Sec.  115.706  When funds are awarded or assessed by a court 
of competent jurisdiction in a cause of action involving trust assets, 
what documentation is required to deposit the trust funds into a trust account?

    When funds are awarded or assessed by a court of competent 
jurisdiction in a cause of action involving trust assets, we must 
receive the funds awarded as stipulated in the court order and a copy of 
the court's order.



Sec.  115.707  Will the Secretary accept administrative fees for deposit 
into a trust account?

    No. The Secretary will not accept administrative fees for deposit 
into a trust account because administrative fees are not trust funds. 
However, administrative fees may be deposited into a non-interest 
bearing, non-trust account with the BIA.



Sec.  115.708  How quickly will trust funds received by the Secretary 
on behalf of tribes or individual Indians be deposited into a trust account?

    Trust funds received by the Secretary on behalf of a tribe or 
individual Indians will be deposited into a trust account within twenty-
four hours, or no later than the close of business on the next business 
day following the receipt of funds at a location with a designated 
federal depository.



Sec.  115.709  Will an annual audit be conducted on trust funds?

    Yes, in accordance with the Trust Reform Act an annual audit will be 
conducted on trust funds. Each tribe and IIM account holder will be 
notified when the Secretary has conducted an annual audit on a fiscal 
year basis of all the trust funds held by the United States for the 
benefit of tribes and individual Indians. This notice will be provided 
in the first quarterly statement of performance following the 
publication of the audit.

[[Page 382]]

                        Investments and Interests



Sec.  115.710  Does money in a trust account earn interest?

    Yes, all money deposited in a trust account is invested and earns 
interest or yield returns, or both.



Sec.  115.711  How is money in a trust account invested?

    OTFM manages trust fund investments and its investment decisions are 
governed by federal statute. See 25 U.S.C. Sec. Sec.  161(a) and 162a.



Sec.  115.712  What is the interest rate earned on money in a trust account?

    The rate of interest on a trust account changes based on how the 
money is invested and how those investments perform.



Sec.  115.713  When does money in a trust account start earning interest?

    Funds must remain on deposit at least one business day before 
interest is earned. Interest earnings of less than one cent are not 
credited to any account.



                        Subpart G_Tribal Accounts



Sec.  115.800  When does OTFM open a tribal account?

    A tribal account is opened when OTFM receives income from the 
sources described in Sec.  115.702.



Sec.  115.801  How often will a tribe receive information 
about its trust account(s)?

    The OTFM is required to provide each tribe with a statement of 
performance quarterly, within or no later than 20 business days after 
the close of every quarterly statement period.



Sec.  115.802  May a tribe make a request to OTFM to receive information 
about its trust account more frequently?

    Yes, a tribe may contact OTFM at any time to:
    (a) Request information about account transactions and balances;
    (b) Make arrangements to access account information electronically; 
or
    (c) Receive a monthly statement.



Sec.  115.803  What information will be provided in a statement of performance?

    The statement of performance will identify the source, type, and 
status of the trust funds deposited and held in a trust account; the 
beginning balance; the gains and losses; receipts and disbursements; and 
the ending account balance of the quarterly statement period.



Sec.  115.804  Will we account to a tribe for those trust funds the tribe 
receives through direct pay?

    No, under the Trust Reform Act we are only responsible for 
accounting for those trust funds received into, and maintained by, the 
Department's trust funds management system.



Sec.  115.805  If a tribe is paid directly under a contract for the sale 
or use of trust assets, will we accept those trust funds for deposit 
into a tribal trust account?

    If a contract for the sale or use of trust assets specifies that 
payments are to be made directly to a tribe, we will not accept these 
trust funds into a tribal trust account. Where a tribe under 25 U.S.C. 
450f et seq. has contracted or compacted with the federal government to 
operate a federal program and the tribe, operating the federal program 
on behalf of the Secretary, receives trust funds for the sale or use of 
trust assets pursuant to a contract that specifies that payments are to 
be made to the Secretary on behalf of a tribe or an individual [the 
owner of the trust assets], the tribe must follow Sec.  115.708 for the 
deposit of the trust funds into the trust account.



Sec.  115.806  How will the BIA assist in the administration 
of tribal judgment fund accounts?

    (a) If the tribe requests assistance or if Congress directs the 
Secretary to provide assistance, BIA will provide technical assistance 
on developing a judgment use and distribution plan to a tribe.
    (b) BIA will review all tribal requests for distribution of tribal 
judgment funds to ensure that each request complies with any 
requirements associated with the use of that money found in

[[Page 383]]

statutory language, congressional directives, court orders, court-
approved settlements, settlement agreements, use and distribution plans, 
or bond or loan payments.

                Investing and Managing Tribal Trust Funds



Sec.  115.807  Will OTFM consult with tribes about investments 
of tribal trust funds?

    Upon the request of a tribe, OTFM will consult with the tribe 
annually to develop investment strategies to accommodate the cash flow 
needs of the tribe.



Sec.  115.808  Could trust fund investments made by OTFM lose money?

    The value of trust fund investments made by OTFM will vary depending 
on the type of investment and, including but not limited to, the 
following:
    (a) Current interest rates;
    (b) Whether the security/investment is held to its maturity; and
    (c) Original purchase price.
    However, as long as the purchase price of the security/investment is 
made at or below face value and the security/investment is held until 
maturity or payoff, the security/investment will not lose principal 
invested funds.



Sec.  115.809  May a tribe recommend to OTFM how to invest 
the tribe's trust funds?

    Tribes may recommend certain investments to OTFM, but the 
recommendations must be in accordance with the statutory requirements 
set forth in 25 U.S.C. Sec. Sec.  161a and 162a. The OTFM will make the 
final investment decision based on prudent investment practices.



Sec.  115.810  May a tribe directly invest and manage its trust funds?

    A tribe may apply to withdraw its trust funds from OTFM for 
investment and management by the tribe. The tribe's request to withdraw 
funds must be in accordance with the requirements of the Trust Reform 
Act and 25 CFR part 1200, subpart B, unless otherwise specified by 
statutory language or the controlling document which governs the use of 
the trust funds.



Sec.  115.811  Under what conditions may a tribe redeposit funds with OTFM 
that were previously withdrawn under the Trust Reform Act?

    Tribal trust funds withdrawn under the Trust Reform Act may be 
returned to OTFM under the following conditions:
    (a) A tribe must make a written request to OTFM to redeposit all or 
part of the withdrawn trust funds;
    (b) No tribal trust funds may be redeposited to a tribal trust 
account during the first six months after being withdrawn, except with 
the approval of the Secretary;
    (c) Tribal trust funds may only be returned to OTFM a maximum of 
twice a year, except with the approval of the Secretary; and
    (d) A tribe must return withdrawn trust funds in accordance with the 
requirements of the Trust Reform Act in 25 CFR, part 1200, subpart C.



Sec.  115.812  Is a tribe responsible for its expenditures of trust funds 
that are not made in compliance with statutory language or other federal law?

    If a tribe's use of trust funds is limited by statutory language or 
other federal law(s) and a tribe uses those trust funds in direct 
violation of those laws, absent an approved modification which allows 
for the expenditures, we will require the tribe to reimburse its trust 
fund account.



Sec.  115.813  Is there a limit to the amount of trust funds OTFM 
will disburse from a tribal trust account?

    OTFM will only disburse the available balance of the trust funds in 
a tribal trust account in accordance with a use and distribution plan, 
if applicable, and will not overdraw a tribal trust account. If a 
tribe's trust funds are invested in securities that have not matured, 
OTFM will only sell the asset to make cash available to the tribe if:
    (a) There are no restrictions against the sale, and
    (b) A tribe provides OTFM with a tribal resolution stating that:
    (1) The security must be sold;
    (2) The tribe acknowledges that they may incur a penalty when the 
security is sold; and

[[Page 384]]

    (3) The tribe acknowledges that the security may lose value if it is 
sold prior to maturity.



Sec.  115.814  If a tribe withdraws money from its trust account 
for a particular purpose or project, may the tribe redeposit any money 
that was not used for its intended purpose?

    A tribe may redeposit funds not used for a particular purpose or 
project if:
    (a) The funds were withdrawn in accordance with:
    (1) The terms of Trust Reform Act;
    (2) The terms of the legislative settlement; or
    (3) The terms of a judgment use and distribution plan; and
    (b) The tribe can provide documentation showing the source of the 
funds to be redeposited.

                     Withdrawing Tribal Trust Funds



Sec.  115.815  How does a tribe request trust funds 
from a tribal trust account?

    To request trust funds from a tribal trust account, a tribe may:
    (a) Make a written request to the BIA or the OTFM that is signed by 
the proper authorizing official(s), list the amount of trust funds to be 
withdrawn, provide any additional documentation or information required 
by law to withdraw certain trust funds, and must include a tribal 
resolution approving the withdrawal of the specified amount of trust 
funds; or
    (b) Contact the OTFM to withdraw funds in accordance with the Trust 
Reform Act and 25 CFR part 1200.



Sec.  115.816  May a tribe's request for a withdrawal of trust funds 
from its trust account be delayed or denied?

    (a) Action on a tribe's request for a withdrawal of trust funds may 
be delayed or denied if:
    (1) The tribe did not submit all the necessary documentation;
    (2) The tribe's request is not signed by the proper authorizing 
official(s);
    (3) OTFM does not have documentation from the tribe certifying its 
recognized, authorizing officials;
    (4) The tribe's request is in conflict with statutory language or 
the controlling document governing the use of the trust funds; or
    (5) The BIA or OTFM requires clarification regarding the tribe's 
request.
    (b) If action on a tribe's request to withdraw trust funds will be 
delayed or denied, the BIA or the OTFM will:
    (1) Notify the tribe within ten (10) working days of the date of a 
request made under Sec.  115.815(a);
    (2) Notify the tribe under the time frames established in 25 CFR 
part 1200 for requests made under the Trust Reform Act; and
    (3) Provide technical assistance to the tribe to address any 
problems.



Sec.  115.817  How does OTFM disburse money to a tribe?

    Upon receipt of all necessary documentation, OTFM will process the 
request for disbursement and send the tribe the requested amount of 
trust funds within one business day. Whenever possible, trust funds will 
be disbursed electronically to an account in a financial institution 
designated by the tribe. If there are circumstances that preclude 
electronic payments, OTFM will mail a check.

                       Unclaimed Per Capita Funds



Sec.  115.818  What happens if an Indian adult does not cash his 
or her per capita check?

    (a) If an Indian adult does not cash his or her per capita check 
within twelve (12) months of the date the check was issued, the check 
will be canceled and the trust funds will be deposited into a ``returned 
per capita account'' where the funds will be maintained until we receive 
a request for disbursement by the Indian adult or for disposition by a 
tribe pursuant to Sec.  115.820.
    (b) If an Indian adult's per capita check is returned to us as 
undeliverable, the trust funds will be immediately deposited into a 
``returned per capita account'' where the funds will be maintained until 
we receive a request for disbursement by the individual or for 
disposition by a tribe pursuant to Sec.  115.820.

[[Page 385]]



Sec.  115.819  What steps will be taken to locate an individual 
whose per capita check is returned as undeliverable or not cashed 
within twelve (12) months of issuance?

    The OTFM will notify a tribe of the names of the individuals whose 
per capita checks were returned as undeliverable or not cashed within 
twelve (12) months of issuance and will take reasonable action, 
including utilizing electronic search tools, to locate the individual 
entitled to receive the per capita funds.



Sec.  115.820  May OTFM transfer money in a returned per capita account 
to a tribal account?

    Funds in a returned per capita account will not automatically be 
returned to a tribe. However, a tribe may apply under 25 U.S.C. 164 and 
Public Law 87-283, 75 Stat. 584 (1961), to have the unclaimed per capita 
funds transferred to its account for the tribe's use after six years 
have passed from the date of distribution.



                   Subpart H_Special Deposit Accounts



Sec.  115.900  Who receives the interest earned on trust funds 
in a special deposit account?

    Generally, any interest earned on trust funds in a special deposit 
account will follow the principal (i.e., the tribe or individual who 
owns the trust funds in the special deposit account will receive the 
interest earned).



Sec.  115.901  When will the trust funds in a special deposit account 
be credited or paid out to the owner of the funds?

    OTFM will disburse the trust funds from a special deposit account 
and deposit the trust funds in the owner's trust account following the 
BIA certification of the ownership of the funds and OTFM's receipt of 
such certification.



Sec.  115.902  May administrative or land conveyance fees paid 
as federal reimbursements be deposited in a special deposit account?

    No, administrative or land conveyance fees paid as federal 
reimbursements may not be deposited with OTFM, which includes special 
deposit accounts. These fees must be deposited in the Federal Financial 
System.



Sec.  115.903  May cash bonds (e.g., performance bonds, appeal bonds, etc.) 
be deposited into a special deposit account?

    No, cash bonds may not be deposited with OTFM, which includes the 
special deposit accounts at OTFM. Cash bonds held by the Secretary are 
to be deposited in non-interest bearing accounts until the term of the 
bonds expire.



Sec.  115.904  Where earnest money is paid prior to Secretarial approval 
of a conveyance or contract instrument involving trust assets, 
may the BIA deposit that earnest money into a special deposit account?

    No, any money received prior to Secretarial approval of conveyance 
or contract instrument involving trust assets must be deposited into a 
non-interest bearing, non-trust account. After the Secretary approves 
the conveyance or contract instrument involving trust assets, the money 
designated by the conveyance or contract instrument will be deposited 
into a trust fund account.



                            Subpart I_Records



Sec.  115.1000  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under this part, including the 
operation of a trust program pursuant to 25 U.S.C. 450f et seq.; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.
    (b) Records not covered by paragraph (a) of this section that are 
made or received by a tribe or tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the tribe.



Sec.  115.1001  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have

[[Page 386]]

records identified in Sec.  115.1000(a) must preserve the records in 
accordance with approved Departmental records retention procedures under 
the Federal Records Act, 44 U.S.C. Chapters 29, 31 and 33. These records 
and related records management practices and safeguards required under 
the Federal Records Act are subject to inspection by the Secretary and 
the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec.  115.1000(b) for the period of time authorized by the 
Archivist of the United States for similar Department of the Interior 
records in accordance with 44 U.S.C. Chapter 33. If a tribe or tribal 
organization does not preserve records associated with its conduct of 
business with the Department of the Interior under this part, the tribe 
or tribal organization may be prevented from being able to adequately 
document essential transactions or furnish information necessary to 
protect its legal and financial rights or those of persons directly 
affected by its activities.



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

[[Page 387]]

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 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.

[[Page 388]]



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 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

[[Page 389]]

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 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.

[[Page 390]]



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:
    (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

[[Page 391]]

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 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

[[Page 392]]

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''.



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.

[[Page 393]]

    (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 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

[[Page 394]]

unable to attach his thumb mark for physical reasons.



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 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 Sec. Sec.  
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,

[[Page 395]]

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.



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

[[Page 396]]

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.
    (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 124_DEPOSITS OF PROCEEDS FROM LANDS WITHDRAWN FOR NATIVE SELECTION--
Table of Contents



Sec.
124.1 What is the purpose of this part?
124.2 Who should an agency or the State of Alaska contact for 
          information?

    Authority: 43 U.S.C. 1601 et seq.; Pub. L. 92-203, 85 Stat. 688; 25 
U.S.C. 4001 et seq.; Pub L. 103-402, 108 Stat. 4239.

    Source: 70 FR 40661, July 14, 2005, unless otherwise noted.

[[Page 397]]



Sec.  124.1  What is the purpose of this part?

    This part provides contact information on depositing proceeds from 
contracts, leases, permits, rights-of-way, or easements pertaining to 
lands withdrawn for Native selection under the Alaska Native Claims 
Settlement Act. All Federal agencies and the State of Alaska must use 
this part when making deposits of this type.



Sec.  124.2  Who should an agency or the State of Alaska 
contact for information?

    When a Federal agency or the State of Alaska receives proceeds 
covered by this part, it must deposit the proceeds to the credit of the 
United States Department of the Interior, Office of the Special Trustee 
for American Indians. For further information including depositing 
instructions, contact: Office of the Special Trustee for American 
Indians, Attention: Division of Trust Funds Accounting, 4400 Masthead 
Street NE., Albuquerque, New Mexico 87109.



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.
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.

[[Page 398]]



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. 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

[[Page 399]]

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.



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

[[Page 400]]

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 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

[[Page 401]]

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.



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.

[[Page 402]]



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.



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

[[Page 403]]

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 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

[[Page 404]]

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.

    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.

[[Page 405]]



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.
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; 5 
U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless 
otherwise noted.

    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.

    Source: 22 FR 10670, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



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)

[[Page 406]]



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 $1,296: 
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)

[22 FR 10670, Dec. 24, 1957, as amended at 81 FR 42481, June 30, 2016; 
82 FR 7652, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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 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 representative 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

[[Page 407]]

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 conveyance 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.
    (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 Washington, District of Columbia, Central Office or at an Area 
Office other than that with authority over the employee's reservation, 
agency, or service unit.

[[Page 408]]

    (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 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

[[Page 409]]

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.



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.

[[Page 410]]

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 regulations pertaining to archaeological 
resources, see part 262 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.
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.

[[Page 411]]

          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 and 9; and Sec. 701, Pub. L. 
114-74, 129 Stat. 599, unless otherwise noted.

    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:
    (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

[[Page 412]]

    (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.



             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]

[[Page 413]]



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.
    (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.

[[Page 414]]



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 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]

[[Page 415]]



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.
    (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,

[[Page 416]]

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 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.

[[Page 417]]



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 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)


[[Page 418]]


______________(Title)

swear (or affirm) that I have not exercised 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]



                     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 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

[[Page 419]]

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.
    (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.

[[Page 420]]

    (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 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.

[[Page 421]]

    (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.



         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.

[[Page 422]]



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 Sec. Sec.  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 $1,296. 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.

[40 FR 39835, Aug. 29, 1975, as amended at 81 FR 42481, June 30, 2016; 
82 FR 7652, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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

[[Page 423]]

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 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.

[[Page 424]]

    (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.
    (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_ALASKA RESUPPLY OPERATION--Table of Contents



Sec.
142.1 Definitions.
142.2 What is the purpose of the Alaska Resupply Operation?
142.3 Who is responsible for the Alaska Resupply Operation?
142.4 For whom is the Alaska Resupply Operation operated?
142.5 Who determines the rates and conditions of service of the Alaska 
          Resupply Operation?
142.6 How are the rates and conditions for the Alaska Resupply Operation 
          established?
142.7 How are transportation and scheduling determined?
142.8 Is economy of operation a requirement for the Alaska Resupply 
          Operation?
142.9 How are orders accepted?
142.10 How is freight to be prepared?
142.11 How is payment made?
142.12 What is the liability of the United States for loss or damage?
142.13 Information collection.


[[Page 425]]


    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.

    Source: 62 FR 18516, Apr. 16, 1997, unless otherwise noted.



Sec.  142.1  Definitions.

    Area Director means the Area Director, Juneau Area Office, Bureau of 
Indian Affairs.
    Bureau means Bureau of Indian Affairs.
    Department means Department of the Interior.
    Manager means Manager of the Seattle Support Center.
    Must is used in place of shall and indicates a mandatory or 
imperative act or requirement.
    Indian means any individual who is a member of an Indian tribe.
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village, or community that the Secretary of the Interior 
acknowledges to exist as an Indian tribe pursuant to Public Law 103-454, 
108 Stat. 4791.
    Alaska Native means a member of an Alaska Native village or a Native 
shareholder in a corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.



Sec.  142.2  What is the purpose of the Alaska Resupply Operation?

    The Alaska Resupply Operation provides consolidated purchasing, 
freight handling and distribution, and necessary transportation services 
from Seattle, Washington to and from other points in Alaska or en route 
in support of the Bureau's mission and responsibilities.



Sec.  142.3  Who is responsible for the Alaska Resupply Operation?

    The Seattle Support Center, under the direction of the Juneau Area 
Office, is responsible for the operation of the Alaska Resupply 
Operation, including the management of all facilities and equipment, 
personnel, and procurement of goods and services.
    (a) The Seattle Support Center is responsible for publishing the 
rates and conditions that must be published in a tariff.
    (b) All accounts receivable and accounts payable are handled by the 
Seattle Support Center.
    (c) The Manager must make itineraries for each voyage in conjunction 
with contracted carriers. Preference is to be given to the work of the 
Bureau.
    (d) The Area Director is authorized to direct the Seattle Support 
Center to perform special services that may arise and to act in any 
emergency.



Sec.  142.4  For whom is the Alaska Resupply Operation operated?

    The Manager is authorized to purchase and resell food, fuel, 
clothing, supplies and materials, and to order, receive, stage, package, 
store and transport these goods and materials for:
    (a) Alaska Native Tribes, Alaska Natives, Indian or Native owned 
businesses, profit or nonprofit Alaska Native corporations, Native 
cooperatives or organizations, or such other groups or individuals as 
may be sponsored by any Native or Indian organization.
    (b) Other Federal agencies and the State of Alaska and its 
subsidiaries, as long as the ultimate beneficiaries are the Alaska 
Natives or their communities.
    (c) Non-Indians and Non-Natives and commercial establishments that 
economically or materially benefit Alaska Natives or Indians.
    (d) The Manager must make reasonable efforts to restrict competition 
with private enterprise.



Sec.  142.5  Who determines the rates and conditions of service 
of the Alaska Resupply Operation?

    The general authority of the Assistant Secretary--Indian Affairs to 
establish rates and conditions for users of the Alaska Resupply 
Operation is delegated to the Area Director.
    (a) The Manager must develop a tariff that establishes rates and 
conditions for charging users.
    (1) The tariff must be approved by the Area Director.
    (2) The tariff must be published on or before March 1 of each year.
    (3) The tariff must not be altered, amended, or published more 
frequently

[[Page 426]]

than once each year, except in an extreme emergency.
    (4) The tariff must be published, circulated and posted throughout 
Alaska, particularly in the communities commonly and historically served 
by the resupply operation.
    (b) The tariff must include standard freight categories and rate 
structures that are recognized within the industry, as well as any 
appropriate specialized warehouse, handling and storage charges.
    (c) The tariff must specify rates for return cargo and cargo hauled 
between ports.
    (1) The rates and conditions for the Bureau, other Federal agencies, 
the State of Alaska and its subsidiaries must be the same as that for 
Native entities.
    (2) Different rates and conditions may be established for non-Indian 
and non-Native commercial establishments, if those establishments do not 
meet the standard in Sec.  142.4(c) and no other service is available to 
that location.



Sec.  142.6  How are the rates and conditions 
for the Alaska Resupply Operation established?

    The Manager must develop tariff rates using the best modeling 
techniques available to ensure the most economical service to the Alaska 
Natives, Indian or Native owned businesses, profit or nonprofit Alaska 
Native corporations, Native cooperatives or organizations, or such other 
groups or individuals as may be sponsored by any Native or Indian 
organization, without enhancing the Federal treasury.
    (a) The Area Director's approval of the tariff constitutes a final 
action for the Department for the purpose of establishing billing rates.
    (b) The Bureau must issue a supplemental bill to cover excess cost 
in the event that the actual cost of a specific freight substantially 
exceeds the tariff price.
    (c) If the income from the tariff substantially exceeds actual 
costs, a prorated payment will be issued to the shipper.



Sec.  142.7  How are transportation and scheduling determined?

    (a) The Manager must arrange the most economical and efficient 
transportation available, taking into consideration lifestyle, timing 
and other needs of the user. Where practical, shipping must be by 
consolidated shipment that takes advantage of economies of scale and 
consider geographic disparity and distribution of sites.
    (b) Itineraries and scheduling for all deliveries must be in keeping 
with the needs of the users to the maximum extent possible. Planned 
itineraries with dates set as to the earliest and latest anticipated 
delivery dates must be provided to users prior to final commitment by 
them to utilize the transportation services. Each shipping season the 
final departure and arrival schedules must be distributed prior to the 
commencement of deliveries.



Sec.  142.8  Is economy of operation a requirement 
for the Alaska Resupply Operation?

    Yes. The Manager must ensure that purchasing, warehousing and 
transportation services utilize the most economical delivery. This may 
be accomplished by memoranda of agreement, formal contracts, or 
cooperative arrangements. Whenever possible joint arrangements for 
economy will be entered into with other Federal agencies, the State of 
Alaska, Alaska Native cooperatives or other entities providing services 
to rural Alaska communities.



Sec.  142.9  How are orders accepted?

    (a) The Manager must make a formal determination to accept an order, 
for goods or services, and document the approval by issuing a permit or 
similar instrument.
    (b) The Seattle Support Center must prepare proper manifests of the 
freight accepted at the facility or other designated location. The 
manifest must follow industry standards to ensure a proper legal 
contract of carriage is executed, upon which payment can be exacted upon 
the successful delivery of the goods and services.

[[Page 427]]



Sec.  142.10  How is freight to be prepared?

    All freight must be prepared in accordance with industry standards, 
unless otherwise specified, for overseas shipment, including any pickup, 
delivery, staging, sorting, consolidating, packaging, crating, boxing, 
containerizing, and marking that may be deemed necessary by the Manager.



Sec.  142.11  How is payment made?

    (a) Unless otherwise provided in this part, all regulations 
implementing the Financial Integrity Act, Anti-Deficiency Act, Prompt 
Payments Act, Debt Collection Act of 1982, 4 CFR Ch. II--Federal Claims 
Collection Standards, and other like acts apply to the Alaska Resupply 
Operation.
    (b) Payment for all goods purchased and freight or other services 
rendered by the Seattle Support Center are due and payable upon final 
receipt of the goods or services. If payment is not received within the 
time specified on the billing document, interest and penalty fees at the 
current treasury rate will be charged, and handling and administrative 
fees may be applied.
    (c) Where fuel and other goods are purchased on behalf of commercial 
enterprises, payment for those goods must be made within 30 days of 
delivery to the Seattle Support Center Warehouse. Payment for freight 
must be made within 30 days from receipt of the goods by the shipper.



Sec.  142.12  What is the liability of the United States for loss or damage?

    (a) The liability of the United States for any loss or damage to, or 
non-delivery of freight is limited by 46 U.S.C. 746 and the Carriage of 
Goods by Sea Act (46 U.S.C. 1300 et seq.). The terms of such limitation 
of liability must be contained in any document of title relating to the 
carriage of goods by sea. This liability may be further restricted in 
specialized instances as specified in the tariff.
    (b) In addition to the standards of conduct and ethics applicable to 
all government employees, the employees of the Seattle Support Center 
shall not conduct any business with, engage in trade with, or accept any 
gifts or items of value from any shipper or permittee.
    (c) The Seattle Support Center will continue to function only as 
long as the need for assistance to Native village economies exits. To 
that end, a review of the need for the serve must be conducted every 
five years.



Sec.  142.13  Information collection.

    In accordance with Office of Management and Budget regulations in 5 
CFR 1320.4, approval of information collections contained in this 
regulation is not required.



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.

[[Page 428]]



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.
    (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

[[Page 429]]

for payment for goods/services provided.
    (e) Once service has been discontinued based on delinquency of 
payment, the discontinuance may be appealed under part 2 of this title.

[[Page 430]]



                       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 Locations 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.)

    Cross Reference: For further regulations pertaining to proceedings 
in Indian probate, see 43 CFR part 4, subpart D.

    Source: 46 FR 47537, Sept. 29, 1981, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



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 document; 
and to give constructive notice of the ownership and change of ownership 
and

[[Page 431]]

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 432]]

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 official seal was created for the use of the Commissioner 
of Indian Affairs in authenticating and certifying copies of Bureau 
records. Managers of Land

[[Page 433]]

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 review.
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.

    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 900 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 Sec. Sec.  117.8 and 
158.54 of this title.

    Source: 45 FR 62036, Sept. 18, 1980, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



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.

[79 FR 76897, Dec. 23, 2014]

[[Page 434]]



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 land in trust or restricted 
status, land may be acquired for an individual Indian in trust status:

[[Page 435]]

    (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 the 
land is located within or contiguous to an Indian reservation, and the 
acquisition is not mandated:

[[Page 436]]

    (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 each request and may request any 
additional information or justification deemed necessary to reach a 
decision.
    (b) The Secretary's decision to approve or deny a request shall be 
in writing and state the reasons for the decision.
    (c) A decision made by the Secretary, or the Assistant Secretary--
Indian Affairs pursuant to delegated authority, is a final agency action 
under 5 U.S.C. 704 upon issuance.
    (1) If the Secretary or Assistant Secretary denies the request, the 
Assistant Secretary shall promptly provide the applicant with the 
decision.
    (2) If the Secretary or Assistant Secretary approves the request, 
the Assistant Secretary shall:
    (i) Promptly provide the applicant with the decision;
    (ii) Promptly publish in the Federal Register a notice of the 
decision to acquire land in trust under this part; and
    (iii) Immediately acquire the land in trust under Sec.  151.14 on or 
after the date

[[Page 437]]

such decision is issued and upon fulfillment of the requirements of 
Sec.  151.13 and any other Departmental requirements.
    (d) A decision made by a Bureau of Indian Affairs official pursuant 
to delegated authority is not a final agency action of the Department 
under 5 U.S.C. 704 until administrative remedies are exhausted under 
part 2 of this chapter or until the time for filing a notice of appeal 
has expired and no administrative appeal has been filed.
    (1) If the official denies the request, the official shall promptly 
provide the applicant with the decision and notification of any right to 
file an administrative appeal under part 2 of this chapter.
    (2) If the official approves the request, the official shall:
    (i) Promptly provide the applicant with the decision;
    (ii) Promptly provide written notice of the decision and the right, 
if any, to file an administrative appeal of such decision pursuant to 
part 2 of this chapter, by mail or personal delivery to:
    (A) Interested parties who have made themselves known, in writing, 
to the official prior to the decision being made; and
    (B) The State and local governments having regulatory jurisdiction 
over the land to be acquired;
    (iii) Promptly publish a notice in a newspaper of general 
circulation serving the affected area of the decision and the right, if 
any, of interested parties who did not make themselves known, in 
writing, to the official to file an administrative appeal of the 
decision under part 2 of this chapter; and
    (iv) Immediately acquire the land in trust under Sec.  151.14 upon 
expiration of the time for filing a notice of appeal or upon exhaustion 
of administrative remedies under part 2 of this title, and upon the 
fulfillment of the requirements of Sec.  151.13 and any other 
Departmental requirements.
    (3) The administrative appeal period under part 2 of this chapter 
begins on:
    (i) The date of receipt of written notice by the applicant or 
interested parties entitled to notice under paragraphs (d)(1) and 
(d)(2)(ii) of this section;
    (ii) The date of first publication of the notice for unknown 
interested parties under paragraph (d)(2)(iii) of this section.
    (4) Any party who wishes to seek judicial review of an official's 
decision must first exhaust administrative remedies under 25 CFR part 2.

[78 FR 67937, Nov. 13, 2013]



Sec.  151.13  Title review.

    (a) If the Secretary determines that she will approve a request for 
the acquisition of land from unrestricted fee status to trust status, 
she shall require the applicant to furnish title evidence as follows:
    (1) The deed or other conveyance instrument providing evidence of 
the applicant's title or, if the applicant does not yet have title, the 
deed providing evidence of the transferor's title and a written 
agreement or affidavit from the transferor, that title will be 
transferred to the United States on behalf of the applicant to complete 
the acquisition in trust; and
    (2) Either:
    (i) A current title insurance commitment; or
    (ii) The policy of title insurance issued to the applicant or 
current owner and an abstract of title dating from the time the policy 
of title insurance was issued to the applicant or current owner to the 
present.
    (3) The applicant may choose to provide title evidence meeting the 
title standards issued by the U.S. Department of Justice, in lieu of the 
evidence required by paragraph (a)(2) of this section.
    (b) After reviewing submitted title evidence, the Secretary shall 
notify the applicant of any liens, encumbrances, or infirmities that the 
Secretary identified and may seek additional information from the 
applicant needed to address such issues. The Secretary may require the 
elimination of any such liens, encumbrances, or infirmities prior to 
taking final approval action on the acquisition, and she shall require 
elimination prior to such approval if she determines that the liens, 
encumbrances or infirmities make title to the land unmarketable.

[81 FR 30177, May 16, 2016]

[[Page 438]]



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 Sec. Sec.  
151.9; 151.10; 151.11(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; 64 FR 13895, Mar. 23, 1999]



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.

      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 mortgages and deeds of trust.
152.35 Deferred payment sales.


[[Page 439]]


    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.

    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 subpart G of part 11 of this chapter.

    Source: 38 FR 10080, Apr. 24, 1973, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



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 Removing 
                              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 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.

[[Page 440]]



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 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

[[Page 441]]

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.



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.

[[Page 442]]



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 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.

[[Page 443]]



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.)
    (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).

[[Page 444]]



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 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

[[Page 445]]

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 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

[[Page 446]]

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 
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

[[Page 447]]

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;
    (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

[[Page 448]]

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 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, 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.

[[Page 449]]



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 Sec. Sec.  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.



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

[[Page 450]]

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 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 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

[[Page 451]]

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 Sec. Sec.  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 161_NAVAJO PARTITIONED LANDS GRAZING PERMITS--Table of Contents



           Subpart A_Definitions, Authority, Purpose and Scope

Sec.
161.1 What definitions do I need to know?
161.2 What are the Secretary's authorities under this part?
161.3 What is the purpose of this part?
161.4 To what lands does this part apply?
161.5 Can BIA waive the application of this part?
161.6 Are there any other restrictions on information given to BIA?

        Subpart B_Tribal Policies and Laws Pertaining to Permits

161.100 Do tribal laws apply to grazing permits?
161.101 How will tribal laws be enforced on the Navajo Partitioned 
          Lands?
161.102 What notifications are required that tribal laws apply to 
          grazing permits on the Navajo Partitioned Lands?

                      Subpart C_General Provisions

161.200 Is an Indian agricultural resource management plan required?
161.201 Is environmental compliance required?
161.202 How are range units established?
161.203 Are range management plans required?
161.204 How are carrying capacities and stocking rates established?
161.205 How are range improvements treated?
161.206 What must a permittee do to protect livestock from exposure to 
          disease?
161.207 What livestock are authorized to graze?

                      Subpart D_Permit Requirements

161.300 When is a permit needed to authorize grazing use?
161.301 What will a grazing permit contain?
161.302 What restrictions are placed on grazing permits?
161.303 How long is a permit valid?
161.304 Must a permit be recorded?
161.305 When is a decision by BIA regarding a permit effective?
161.306 When are permits effective?
161.307 When may a permittee commence grazing on Navajo Partitioned 
          Land?
161.308 Must a permittee comply with standards of conduct if granted a 
          permit?

                 Subpart E_Reissuance of Grazing Permits

161.400 What are the criteria for reissuing grazing permits?
161.401 Will new permits be granted after the initial reissuance of 
          permits?
161.402 What are the procedures for reissuing permits?
161.403 How are grazing permits allocated within each range unit?

                      Subpart F_Modifying A Permit

161.500 May permits be transferred, assigned or modified?
161.501 When will a permit modification be effective?
161.502 Will a special land use require permit modification?

                       Subpart G_Permit Violations

161.600 What permit violations are addressed by this subpart?
161.601 How will BIA monitor permit compliance?

[[Page 452]]

161.602 Will my permit be canceled for non-use?
161.603 Can mediation be used in the event of a permit violation or 
          dispute?
161.604 What happens if a permit violation occurs?
161.605 What will a written notice of a permit violation contain?
161.606 What will BIA do if the permitee doesn't cure a violation on 
          time?
161.607 What appeal bond provisions apply to permit cancellation 
          decisions?
161.608 When will a permit cancellation be effective?
161.609 Can BIA take emergency action if the rangeland is threatened?
161.610 What will BIA do if livestock is not removed when a permit 
          expires or is cancelled?

                           Subpart H_Trespass

161.700 What is trespass?
161.701 What is BIA's trespass policy?
161.702 Who will enforce this subpart?

                              Notification

161.703 How are trespassers notified of a trespass determination?
161.704 What can a permittee do if they receive a trespass notice?
161.705 How long will a written trespass notice remain in effect?

                                 Actions

161.706 What actions does BIA take against trespassers?
161.707 When will BIA impound unauthorized livestock or other property?
161.708 How are trespassers notified of impoundments?
161.709 What happens after unauthorized livestock or other property are 
          impounded?
161.710 How can impounded livestock or other property be redeemed?
161.711 How will BIA sell impounded livestock or other property?

                      Penalties, Damages, and Costs

161.712 What are the penalties, damages, and costs payable by 
          trespassers?
161.713 How will BIA determine the amount of damages to Navajo 
          Partitioned Lands?
161.714 How will BIA determine the costs associated with enforcement of 
          the trespass?
161.715 What will BIA do if a trespasser fails to pay penalties, damages 
          and costs?
161.716 How are the proceeds from trespass distributed?
161.717 What happens if BIA does not collect enough money to satisfy the 
          penalty?

                Subpart I_Concurrence/Appeals/Amendments

161.800 How does the Navajo Nation provide concurrence to BIA?
161.801 May decisions under this part be appealed?
161.802 How will the Navajo Nation recommend amendments to this part?

    Authority: 25 U.S.C. 2; 5 U.S.C. 301; 25 U.S.C. 640d et seq.

    Source: 70 FR 58888, Oct. 7, 2005, unless otherwise noted.



          Subpart A_Definitions, Authority, Purpose, and Scope



Sec.  161.1  What definitions do I need to know?

    Agricultural Act means the American Indians Agricultural Resource 
Management Act (AIARMA) of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 
3701 et seq.), and amended on November 2, 1994 (108 Stat. 4572).
    Agricultural resource management plan means a 10-year plan developed 
through the public review process specifying the tribal management goals 
and objectives developed for tribal agricultural and grazing resources. 
Plans developed and approved under AIARMA will govern the management and 
administration of Indian agricultural resources and Indian agricultural 
lands by BIA and Indian tribal governments.
    Allocation means the number of animal units authorized in each 
grazing permit.
    Animal Unit (AU) means one adult cow and her 6-month-old calf or the 
equivalent thereof based on comparable forage consumption. Thus as 
defined in the following:
    (1) One adult sheep or goat is equivalent to one-fifth (0.20) of an 
AU;
    (2) One adult horse, mule, or burro is equivalent to one and one 
quarter (1.25) AU; or
    (3) One adult llama is equivalent to three-fifths (0.60) of an AU.
    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.
    Appeal Bond means a bond posted upon filing of an appeal that 
provides a

[[Page 453]]

security or guaranty if an appeal creates a delay in implementing our 
decision that could cause a significant and measurable financial loss to 
another party.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Bond means security for the performance of certain permit 
obligations, as furnished by the permittee, or a guaranty of such 
performance as furnished by a third-party surety.
    Business day means Monday through Friday, excluding federally or 
tribally recognized holidays.
    Carrying capacity means the number of livestock and/or wildlife, 
which may be sustained on a management unit compatible with management 
objectives for the unit.
    Concurrence means the written agreement of the Navajo Nation with a 
policy, action, decision or finding submitted for consideration by BIA.
    Conservation practice refers to any management measure taken to 
maintain or improve the condition, productivity, sustainability, or 
usability of targeted resources.
    Customary Use Area refers to an area to which an individual 
traditionally confined his or her traditional grazing use and occupancy 
and/or an area traditionally inhabited by his or her ancestors.
    Day means a calendar day, unless otherwise specified.
    Enumeration means the list of persons living on and identified 
improvements located within the Former Joint Use Area obtained through 
interviews conducted by BIA in 1974 and 1975.
    Former Joint Use Area means the area that was divided between the 
Navajo Nation and the Hopi Tribe by the Judgment of Partition issued 
April 18, 1979, by the United States District Court for the District of 
Arizona. This area was established by the United States District Court 
for the District of Arizona in Healing v. Jones, 210 F. Supp. 125 
(1962), aff'd. 373 U.S. 758 (1963) and is located:
    (1) Inside the Executive Order area (Executive Order of December 16, 
1882); and
    (2) Outside Land Management District 6.
    Grazing Committee means the District Grazing Committee established 
by the Navajo Nation Council, that is responsible for enforcing and 
implementing tribal grazing regulations on the Navajo Partitioned Lands.
    Grazing Permit means a revocable privilege granted in writing and 
limited to entering on and utilizing forage by domestic livestock on a 
specified range unit. The term as used herein shall include 
authorizations issued to enable the crossing or trailing of domestic 
livestock within an assigned range unit.
    Historical Land Use see Customary Use Area.
    Improvement means any structure or excavation to facilitate 
management of the range for livestock, such as: Fences, cattle guards, 
spring developments, windmills, stock ponds, and corrals.
    Livestock means horses, cattle, sheep, goats, mules, burros, 
donkeys, and llamas.
    Management Unit is a subdivision of a geographic area where unique 
resource conditions, goals, concerns, or opportunities require specific 
and separate management planning.
    Navajo Nation means all offices/entities/programs under the direct 
jurisdiction of the Navajo Nation Government.
    Navajo Partitioned Lands (NPL) means that portion of the Former 
Joint Use Area awarded to the Navajo Nation under the Judgment of 
Partition issued April 18, 1979, by the United States District Court for 
the District of Arizona, and now a separate administrative entity within 
the Navajo Indian Reservation.
    Non-Concurrence means the official written denial of approval by the 
Navajo Nation of a policy, action, decision, or finding submitted for 
consideration by BIA.
    Range management plan is a statement of management objectives for 
grazing, farming, or other agriculture management including contract 
stipulations defining required uses, operations, and improvements.
    Range Unit means a tract of land designated as a separate management 
subdivision for the administration of grazing.

[[Page 454]]

    Resident means a person who lives on the Navajo Partitioned Lands.
    Resources Committee means the oversight committee for the Division 
of Natural Resources within the Navajo Nation Government. The Resources 
Committee of the Navajo Nation Council to whom authority is delegated to 
exercise the powers of the Navajo Nation with regards to the range 
development and grazing management of the Navajo Partitioned Lands.
    Secretary means the Secretary of the Interior or his or her 
designated representative.
    Settlement Act means the Navajo Hopi Settlement Act of December 22, 
1974 (88 Stat. 1712, 25 U.S.C. 64d et seq., as amended).
    Sheep Unit means an adult ewe with un-weaned lamb. It is also the 
basic unit in which forage allocations are expressed.
    Special land use means all land usage for purposes other than for 
grazing withdrawn in accordance with Navajo Nation laws, Federal laws, 
and BIA policies and procedures, such as but not limited to: Housing 
permits, farm leases, governmental facilities, rights-of-way, schools, 
parks, business leases, etc.
    Stocking rate means the maximum number of sheep units, or animal 
units authorized to graze on a particular pasture, management unit, or 
range unit during a specified period of time.
    Trespass means any unauthorized occupancy, grazing, use of, or 
action on the Navajo Partitioned Lands.



Sec.  161.2  What are the Secretary's authorities under this part?

    (a) Under Section 640d-9(e) of the Settlement Act, lands partitioned 
under the Settlement Act are subject to the jurisdiction of the tribe to 
whom partitioned. The laws of the tribe apply to the partitioned lands 
as in paragraphs (a)(1) and (a)(2) of this section.
    (1) Effective October 6, 1980:
    (i) All conservation practices on the Navajo Partitioned Lands, 
including control and range restoration activities, must be coordinated 
and executed with the concurrence of the Navajo Nation; and
    (ii) All grazing and range restoration matters on the Navajo 
Reservation lands must be administered by BIA, under applicable laws and 
regulations.
    (2) Effective April 18, 1981, the Navajo Nation has jurisdiction and 
authority over any lands partitioned to it and over all persons on these 
lands. This jurisdiction and authority apply:
    (i) To the same extent as is applicable to those other portions of 
the Navajo reservation; and
    (ii) Notwithstanding any provision of law to the contrary, except 
where there is a conflict with the laws and regulations referred to in 
paragraph (a) of this section.
    (b) Under the Agricultural Act, the Secretary is authorized to:
    (1) Carry out the trust responsibility of the United States and 
promote Indian tribal self-determination by providing for management of 
Indian agricultural lands and renewable resources consistent with tribal 
goals and priorities for conservation, multiple use, and sustained 
yield;
    (2) Take part in managing Indian agricultural lands, with the 
participation of the land's beneficial owners, in a manner consistent 
with the Secretary's trust responsibility and with the objectives of the 
beneficial owners;
    (3) Provide for the development and management of Indian 
agricultural lands; and
    (4) Improve the expertise and technical abilities of Indian tribes 
and their members by increasing the educational and training 
opportunities available to Indian people and communities in the 
practical, technical, and professional aspects of agricultural and land 
management.



Sec.  161.3  What is the purpose of this part?

    The purpose of this part is to describe the goals and objectives of 
grazing management on the Navajo Partitioned Lands:
    (a) To respect and recognize the importance that livestock and land 
have in sustaining Navajo tradition and culture.
    (b) Provide resources to rehabilitate range resources in the 
preservation of forage, soil, and water on the Navajo Partitioned Lands;
    (c) Monitor the recovery of those resources where they have 
deteriorated;

[[Page 455]]

    (d) Protect, conserve, utilize, and maintain the highest productive 
potential on the Navajo Partitioned Lands through the application of 
sound conservation practices and techniques. These practices and 
techniques will be applied to planning, development, inventorying, 
classification, and management of agricultural resources;
    (e) Increase production and expand the diversity and availability of 
agricultural products for subsistence, income, and employment of 
Indians, through the development of agricultural resources on the Navajo 
Partitioned Lands;
    (f) Manage agricultural resources consistent with integrated 
resource management plans in order to protect and maintain other values 
such as wildlife, fisheries, cultural resources, recreation and to 
regulate water runoff and minimize soil erosion;
    (g) Enable the Navajo Nation to maximize the potential benefits 
available to its members from their lands by providing technical 
assistance, training, and education in conservation practices, 
management and economics of agribusiness, sources and use of credit and 
marketing of agricultural products, and other applicable subject areas;
    (h) Develop the Navajo Partitioned Lands to promote self-sustaining 
communities; and
    (i) Assist the Navajo Nation with permitting the Navajo Partitioned 
Lands, consistent with prudent management and conservation practices, 
and community goals as expressed in the tribal management plans and 
appropriate tribal ordinances.



Sec.  161.4  To what lands does this part apply?

    The grazing regulations in this part apply to the Navajo Partitioned 
Lands within the boundaries of the Navajo Indian Reservation held in 
trust by the United States for the Navajo Nation. Contiguous areas 
outside of the Navajo Partitioned Lands may be included under this part 
for management purposes by BIA in consultation with the affected 
permittees and other affected land users, and with the concurrence of 
the Resources Committee. Other affected land users include those holding 
approved assignments, permits, leases, and rights of way for activities 
such as: home sites, farm plots, roads, utilities, businesses, and 
schools.



Sec.  161.5  Can BIA waive the application of this part?

    Yes. If a provision of this part conflicts with the objectives of 
the agricultural resource management plan provided for in Sec.  161.200, 
or with a tribal law, BIA may waive the application of this part unless 
the waiver would either:
    (a) Constitute a violation of a federal statute or judicial 
decision; or
    (b) Conflict with BIA's general trust responsibility under federal 
law.



Sec.  161.6  Are there any other restrictions on information given to BIA?

    Information that the BIA collects in connection with permits for NPL 
in sections 161.102, 161.206, 161.301, 161.302, 161.304, 161.402, 
161.500, 161.502, 161.604, 161.606, 161.703, 161.704, 161.708, 161.717, 
161.800, 161.801, and 161.802 have been reviewed and approved by the 
Office of Management and Budget. The OMB Control Number assigned is 
1076-0162. Please note that a federal agency may not conduct or sponsor, 
and you are not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.



        Subpart B_Tribal Policies and Laws Pertaining to Permits



Sec.  161.100  Do tribal laws apply to grazing permits?

    Navajo Nation laws generally apply to land under the jurisdiction of 
the Navajo Nation, except to the extent that those Navajo Nation laws 
are inconsistent with this part or other applicable federal law. This 
part may be superseded or modified by Navajo Nation laws with 
Secretarial approval, however, so long as:
    (a) The Navajo Nation laws are consistent with the enacting Navajo 
Nation's governing documents;
    (b) The Navajo Nation has notified BIA of the superseding or 
modifying effect of the Navajo Nation laws;
    (c) The superseding or modifying of the regulation would not violate 
a federal statute or judicial decision, or

[[Page 456]]

conflict with the Secretary's general trust responsibility under federal 
law; and
    (d) The superseding or modifying of the regulation applies only to 
Navajo Partitioned Lands.



Sec.  161.101  How will tribal laws be enforced 
on the Navajo Partitioned Lands?

    (a) Unless prohibited by federal law, BIA will recognize and comply 
with tribal laws regulating activities on the Navajo Partitioned Lands, 
including tribal laws relating to land use, environmental protection, 
and historic or cultural preservation.
    (b) While the Navajo Nation is primarily responsible for enforcing 
tribal laws pertaining to the Navajo Partitioned Lands, BIA will:
    (1) Assist in the enforcement of Navajo Nation laws;
    (2) Provide notice of Navajo Nation laws to persons or entities 
undertaking activities on the Navajo Partitioned Lands; and
    (3) Require appropriate federal officials to appear in tribal forums 
when requested by the tribe, so long as the appearance would not:
    (i) Be inconsistent with the restrictions on employee testimony set 
forth at 43 CFR part 2, subpart E;
    (ii) Constitute a waiver of the sovereign immunity of the United 
States; or
    (iii) Authorize or result in a review of (BIA) actions by the tribal 
court.
    (c) Where the provisions in this subpart are inconsistent with a 
Navajo Nation law, but the provisions cannot be superseded or modified 
by the Navajo Nation laws under Sec.  161.5, BIA may waive the 
provisions under part 1 of 25 CFR, so long as the new waiver does not 
violate a federal statute or judicial decision or conflict with the 
Secretary's trust responsibility under federal law.



Sec.  161.102  What notifications are required that tribal laws apply to 
grazing permits on the Navajo Partitioned Lands?

    (a) The Navajo Nation must provide BIA with an official copy of any 
tribal law or tribal policy that relates to this part. The Navajo Nation 
must notify BIA of the content and effective dates of tribal laws.
    (b) BIA will then notify affected permittees of the effect of the 
Navajo Nation law on their grazing permits. BIA will:
    (1) Provide individual written notice; or
    (2) Post public notice. This notice will be posted at the tribal 
community building, U.S. Post Office, announced on local radio station, 
and/or published in the local newspaper nearest to the permitted Navajo 
Partitioned Lands where activities are occurring.



                      Subpart C_General Provisions



Sec.  161.200  Is an Indian agricultural resource management plan required?

    (a) Yes, Navajo Partitioned Lands must be managed in accordance with 
the goals and objectives in the agricultural resource management plan 
developed by the Navajo Nation, or by BIA in close consultation with the 
Navajo Nation, under the Agricultural Act.
    (b) The 10-year agricultural resource management and monitoring plan 
must be developed through public meetings and completed within 3 years 
of the initiation of the planning activity. The plan must be based on 
the public meeting records and existing survey documents, reports, and 
other research from Federal agencies, tribal community colleges, and 
land grant universities. When completed, the plan must:
    (1) Determine available agricultural resources;
    (2) Identify specific tribal agricultural resource goals and 
objectives;
    (3) Establish management objectives for the resources;
    (4) Define critical values of the tribe and its members and provide 
identified resource management objectives; and
    (5) Identify actions to be taken to reach established objectives.
    (c) Where the provisions in this subpart are inconsistent with the 
Navajo Nation's agricultural resource management plan, the Secretary may 
waive the provisions under part 1 of this title, so long as the waiver 
does not violate a federal statute or judicial decision or conflict with 
the Secretary's trust responsibility under federal law.

[[Page 457]]



Sec.  161.201  Is environmental compliance required?

    Actions taken by BIA under this part must comply with the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., applicable 
provisions of the Council on Environmental Quality, 40 CFR part 1500, 
and applicable tribal laws and provisions of the Navajo Nation 
Environmental Policy Act CAP-47-95, where the tribal laws and provisions 
do not violate a federal or judicial decision or conflict with the 
Secretary's trust responsibility under federal law.



Sec.  161.202  How are range units established?

    (a) BIA, with the concurrence of the Navajo Nation, will establish 
range units on the Navajo Partitioned Lands to provide unified areas for 
which range management plans can be developed to improve and maintain 
soil and forage resources. Physical land features, watersheds, drainage 
patterns, vegetation, soil, resident concentration, problem areas, 
historical land use patterns, chapter boundaries, special land uses and 
comprehensive land use planning will be considered in the determination 
of range unit boundaries.
    (b) BIA may modify range unit boundaries with the concurrence of the 
Navajo Nation. This may include small and/or isolated portions of Navajo 
Partitioned Lands contiguous to Navajo tribal lands in order to develop 
more efficient land management.



Sec.  161.203  Are range management plans required?

    Yes. BIA will:
    (a) Consult with the Navajo Nation in planning conservation 
practices, including grazing control and range restoration activities 
for the Navajo Partitioned Lands.
    (b) Develop range management plans with the concurrence of the 
Navajo Nation.
    (c) Approve the range management plans, after concurrence with the 
Navajo Nation, and the implementation of the plan may begin immediately. 
The plan will address, but is not limited to, the following issues:
    (1) Goals for improving vegetative productivity and diversity;
    (2) Stocking rates;
    (3) Grazing schedules;
    (4) Wildlife management;
    (5) Needs assessment for range and livestock improvements;
    (6) Schedule for operation and maintenance of existing range 
improvements and development for cooperative funded projects;
    (7) Cooperation in the implementation of range studies;
    (8) Control of livestock diseases and parasites;
    (9) Fencing or other structures necessary to implement any of the 
other provisions in the range management plan;
    (10) Special land uses; and
    (11) Water development and management.



Sec.  161.204  How are carrying capacities and stocking rates established?

    (a) BIA, with the concurrence of the Navajo Nation, will prescribe, 
review and adjust the carrying capacity of each range unit by 
determining the number of livestock, and/or wildlife, that can be grazed 
on the Navajo Partitioned Lands 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 agricultural resource management plan and 
range unit management plan.
    (b) BIA, with the concurrence of the Navajo Nation, will establish 
the stocking rate of each range or management unit. The stocking rate 
will be based on forage production, range utilization, the application 
of land management practices, and range improvements in place to achieve 
uniformity of grazing under sustained yield management principles on 
each range or management unit.
    (c) BIA will review the carrying capacity of the grazing units on a 
continuing basis and, in consultation with the Grazing Committee and 
affected permittees, adjust the stocking rate for each range or 
management unit as conditions warrant.
    (d) Any adjustments in stocking rates will be applied equally to 
each permittee within the management unit requiring adjustment.

[[Page 458]]



Sec.  161.205  How are range improvements treated?

    (a) Improvements placed on the Navajo Partitioned Lands will be 
considered affixed to the land unless specifically exempted in the 
permit. No improvement may be constructed or removed from Navajo 
Partitioned Lands without the written consent of BIA and the Navajo 
Nation.
    (b) Before undertaking an improvement, BIA, Navajo Nation and 
permittee will negotiate who will complete and maintain improvements. 
The improvement agreement will be reflected in the permit.



Sec.  161.206  What must a permittee do to protect livestock 
from exposure to disease?

    In accordance with applicable law, permittees must:
    (a) Vaccinate livestock;
    (b) Treat all livestock exposed to or infected with contagious or 
infectious diseases; and
    (c) Restrict the movement of exposed or infected livestock.



Sec.  161.207  What livestock are authorized to graze?

    The following livestock are authorized to graze on the Navajo 
Partitioned Lands: horses, cattle, sheep, goats, mules, burros, donkeys, 
and llamas.



                      Subpart D_Permit Requirements



Sec.  161.300  When is a permit needed to authorize grazing use?

    Unless otherwise provided for in this part, any person or legal 
entity, including an independent legal entity owned and operated by the 
Navajo Nation, must obtain a permit under this part before using Navajo 
Partitioned Land for grazing purposes.



Sec.  161.301  What will a grazing permit contain?

    (a) All grazing permits will contain the following provisions:
    (1) Name of permit holder;
    (2) Range management plan requirements;
    (3) Applicable stocking rate;
    (4) Range unit number and description of the permitted area;
    (5) Animal identification requirements (i.e., brand, microchip, 
freeze brand, earmark, tattoo, etc.);
    (6) Term of permit (including beginning and ending dates of the term 
allowed, as well as an option to renew, or extend);
    (7) A provision stating that the permittee agrees that he or she 
will not use, cause, or allow to be used any part of the permitted area 
for any unlawful conduct or purpose;
    (8) A provision stating that the permit authorizes no other 
privilege than grazing use;
    (9) A provision stating that no person is allowed to hold a grazing 
permit in more than one range unit of the Navajo Partitioned Lands, 
unless the customary use area extends beyond the range unit boundary;
    (10) A provision reserving a right of entry by BIA and the Navajo 
Nation for range survey, inventory and inspection or compliance 
purposes;
    (11) A provision prohibiting the creation of a nuisance, any illegal 
activity, and negligent use or waste of resources;
    (12) A provision stating how trespass proceeds are to be 
distributed;
    (13) A provision stating whether mediation will be used in the event 
of a permit violation; and
    (14) A provision stating that the permit cannot be subdivided once 
it has been issued.
    (b) Grazing permits will contain any other provision that in the 
discretion of BIA with the concurrence of the Navajo Nation is necessary 
to protect the land and/or resources.
    (c) Grazing permits containing any special land use authorized under 
Sec.  161.503 of this part must be included on the permit.



Sec.  161.302  What restrictions are placed on grazing permits?

    Only a grazing permit issued under this part authorizes the grazing 
of livestock within the Navajo Partitioned Lands. Grazing permits are 
subject to the following restrictions:
    (a) Grazing permits should not be issued for less than 2 animal 
units (10 sheep units) or exceed 70 animal units (350 sheep units). 
However, all grazing permits issued before the adoption of

[[Page 459]]

this regulation will be honored and reissued with an adjusted stocking 
rate if the permittee meets the eligibility and priority criteria found 
in Sec.  161.400 of this part, and only if the carrying capacity and 
stocking rate as determined under Sec. Sec.  161.204 and 161.403 allows.
    (b) A grazing permit will be issued in the name of one individual.
    (c) Only two horses will be permitted on a grazing permit.
    (d) Grazing permits may contain additional conditions authorized by 
Federal law or Navajo Nation law.
    (e) A state/tribal brand only identifies the owner of the livestock, 
but does not authorize the grazing of any livestock within the Navajo 
Partitioned Lands.
    (f) A permit cannot be subdivided once it has been issued.



Sec.  161.303  How long is a permit valid?

    After its initial issuance, each grazing permit is valid for one 
year beginning on the following January 1. All permits will be 
automatically renewed annually if the permittee is in compliance with 
all applicable laws including tallies and permit requirements.



Sec.  161.304  Must a permit be recorded?

    A permit must be recorded by BIA following approval under this 
subpart.



Sec.  161.305  When is a decision by BIA regarding a permit effective?

    BIA approval of a permit will be effective immediately upon 
signature, notwithstanding any appeal, which may be filed under part 2 
of this title. Copies of the approved permit will be provided to the 
permittee and made available to the Navajo Nation upon request.



Sec.  161.306  When are permits effective?

    Unless otherwise provided in the permit, a permit will be effective 
on the date on which BIA approves the permit.



Sec.  161.307  When may a permittee commence grazing 
on Navajo Partitioned Land?

    The permittee may graze on Navajo Partitioned Land on the date 
specified in the permit as the beginning date of the term, but not 
before BIA approves the permit.



Sec.  161.308  Must a permittee comply with standards of conduct 
if granted a permit?

    Yes. Permittees are expected to:
    (a) Conduct grazing operations in accordance with the principles of 
sustained yield management, agricultural resource management planning, 
sound conservation practices, and other community goals as expressed in 
Navajo Nation laws, agricultural resource management plans, and similar 
sources.
    (b) Comply with all applicable laws, ordinances, rules, provisions, 
and other legal requirements. Permittee must also pay all applicable 
penalties that may be assessed for non-compliance.
    (c) Fulfill all financial permit obligations owed to the Navajo 
Nation and the United States.
    (d) Conduct only those activities authorized by the permit.



                 Subpart E_Reissuance of Grazing Permits



Sec.  161.400  What are the criteria for reissuing grazing permits?

    (a) The Navajo Nation may prescribe eligibility requirements for 
grazing allocations within 180 days following the effective date of this 
part. BIA will prescribe the eligibility requirements after expiration 
of the 180-day period if the Navajo Nation does not prescribe 
eligibility requirements, or if satisfactory action is not taken by the 
Navajo Nation.
    (b) With the written concurrence of the Navajo Nation, BIA will 
prescribe the following eligibility requirements, where only those 
applicants who meet the following criteria are eligible to receive 
permits to graze livestock:
    (1) Those who had grazing permits on Navajo Partitioned Lands under 
25 CFR part 167 (formerly part 152), and whose permits were canceled on 
October 14, 1973;
    (2) Those who are listed in the 1974 and 1975 Former Joint Use Area 
enumeration;
    (3) Those who are current residents on Navajo Partitioned Lands; and

[[Page 460]]

    (4) Those who have a customary use area on Navajo Partitioned Lands.
    (c) Permits re-issued to applicants under this section may be 
granted by BIA based on the following priority criteria:
    (1) The first priority will go to individuals currently the age of 
65 or older; and
    (2) The second priority will go to individuals under the age of 65.
    (d) Upon the recommendation of the NPL District Grazing Committee 
and Resources Committee, BIA or Navajo Nation will have authority to 
waive one of the eligibility or priority criteria.



Sec.  161.401  Will new permits be granted after 
the initial reissuance of permits?

    (a) Following the initial reissuance of permits under Sec.  161.400, 
the Navajo Nation can grant new permits, subject to BIA approval, if:
    (1) Additional permits become available; and
    (2) The carrying capacity and stocking rates as determined under 
Sec. Sec.  161.204 and 161.403 allow.
    (b) The Navajo Nation must inform BIA if it grants any permits under 
paragraph (a) of this section.



Sec.  161.402  What are the procedures for reissuing permits?

    BIA, with the concurrence of the Navajo Nation, will reissue grazing 
permits only to individuals that meet the eligibility requirements in 
Sec.  161.400. Responsibilities for reissuance of grazing permits are as 
follows:
    (a) BIA will develop a complete list consisting of all former 
permittees whose permits were cancelled and the number of animal units 
previously authorized in prior grazing permits. This list will be 
provided to the Grazing Committee and Resources Committee for their 
review. BIA will also provide the Grazing Committee and Resources 
Committee with the current carrying capacity and stocking rate for each 
range unit within the Navajo Partitioned Lands, as determined under 
Sec.  161.204.
    (b) Within 90 days of receipt, the Grazing Committee will review the 
list developed under Sec.  161.402(a), and make recommendations to the 
Resources Committee for the granting of grazing permits according to the 
eligibility and priority criteria in Sec.  161.400.
    (c) If the Grazing Committee fails to make its recommendation to the 
Resources Committee within 90 days after receiving the list of potential 
permittees, BIA will submit its recommendations to the Resources 
Committee.
    (d) The Resources Committee will review and concur with the list of 
proposed permit grantees, and then forward a final list to BIA for the 
reissuance of grazing permits. If the Resources Committee does not 
concur, the procedures outlined in Sec.  161.800 will govern.
    (e) The final determination list of eligible permittees will be 
published. Permits will not be issued sooner than 90 days following 
publication of the final list.



Sec.  161.403  How are grazing permits allocated within each range unit?

    (a) Initial allocation of the number of animal units authorized in 
each grazing permit will be determined by considering the number of 
animal units previously authorized in prior grazing permits and the 
current authorized stocking rate on a given range unit.
    (b) Grazing permit allocations may vary from range unit to range 
unit depending on the stocking rate of each unit, the range management 
plan, and the number of eligible grazing permittees in the unit.



                      Subpart F_Modifying A Permit



Sec.  161.500  May permits be transferred, assigned or modified?

    (a) Grazing permits may be transferred, assigned, or modified only 
as provided in this section. Permits may only be transferred or assigned 
as a single permit under Navajo Nation procedures and with the approval 
of BIA. Permittees must reside within the same range unit as the 
original permittee.
    (b) Permits may be transferred, assigned, or modified with the 
written consent of the permittee, District Grazing Committee and/or 
Resources Committee and approved by BIA.

[[Page 461]]

    (c) BIA must record each transfer, assignment, or modification that 
it approves under a permit.



Sec.  161.501  When will a permit modification be effective?

    BIA approval of a transfer, assignment, or modification under a 
permit will be effective immediately, notwithstanding any appeal, which 
may be filed under part 2 of this title. Copies of approved documents 
will be provided to the permittee and made available to the Navajo 
Nation upon request.



Sec.  161.502  Will a special land use require permit modification?

    Yes. When the Navajo Nation and BIA approve a special land use, the 
grazing permit will be modified to reflect the change in available 
forage. If a special land use is inconsistent with grazing activities 
authorized in the permit, the special land use area will be withdrawn 
from the permit, and grazing cannot take place on that part of the range 
unit.



                       Subpart G_Permit Violations



Sec.  161.600  What permit violations are addressed by this subpart?

    This subpart addresses violations of permit provisions other than 
trespass. Trespass is addressed under subpart H.



Sec.  161.601  How will BIA monitor permit compliance?

    Unless the permit provides otherwise, BIA and/or Navajo Nation may 
enter the range unit at any reasonable time, without prior notice, to 
protect the interests of the Navajo Nation and ensure that the permittee 
is in compliance with the operating requirements of the permit.



Sec.  161.602  Will my permit be canceled for non-use?

    (a) If a grazing permit is not used by the permittee for a 2-year 
period, BIA may cancel the permit upon the recommendation of the Grazing 
Committee and with the concurrence of the Resources Committee under 
Sec.  161.606(c). Non-use consists of, but is not limited to, absence of 
livestock on the range unit, and/or abandonment of a permittee's grazing 
permit.
    (b) Unused grazing permits or portions of grazing permits that are 
set aside for range recovery will not be cancelled for non-use.



Sec.  161.603  Can mediation be used in the event 
of a permit violation or dispute?

    A permit may provide for permit disputes or violations to be 
resolved with the District Grazing Committee through mediation.
    (a) The District Grazing Committee will conduct the mediation before 
the Navajo Nation's appropriate hearing body, before BIA invokes any 
cancellation remedies.
    (b) Conducting the mediation may substitute for permit cancellation. 
However, BIA retains the authority to cancel the permit under Sec.  
161.606.
    (c) The Navajo Nation's appropriate hearing body decision will be 
final, unless it is appealed to the Navajo Nation Supreme Court on a 
question of law. BIA will defer to any ongoing proceedings, as 
appropriate, in deciding whether to exercise any of the remedies 
available to BIA under Sec.  161.606.



Sec.  161.604  What happens if a permit violation occurs?

    (a) If the Resources Committee notifies BIA that a specific permit 
violation has occurred, BIA will initiate an appropriate investigation 
within 5 business days of that notification.
    (b) Unless otherwise provided under tribal law, when BIA has reason 
to believe that a permit violation has occurred, BIA or the authorized 
tribal representative will provide written notice to the permittee 
within 5 business days.



Sec.  161.605  What will a written notice of a permit violation contain?

    The written notice of a permit violation will provide the permittee 
with 10 days from the receipt of the written notice to:
    (a) Cure the permit violation and notify BIA that the violation is 
cured;
    (b) Explain why BIA should not cancel the permit;
    (c) Request in writing additional time to complete corrective 
actions. If

[[Page 462]]

additional time is granted, BIA may require that certain actions be 
taken immediately; or
    (d) Request mediation under Sec.  161.603.



Sec.  161.606  What will BIA do if the permittee doesn't cure 
a violation on time?

    (a) If the permittee does not cure a violation within the required 
time period, or if the violation is not referred to District Grazing 
Committee for mediation, BIA will consult with the Navajo Nation, as 
appropriate, and determine whether:
    (1) The permit may be canceled by BIA under paragraph (c) of this 
section and Sec. Sec.  161.607 through 161.608;
    (2) BIA may invoke any other remedies available to BIA under the 
permit;
    (3) The Navajo Nation may invoke any remedies available to them 
under the permit; or
    (4) The permittee may be granted additional time in which to cure 
the violation.
    (b) If BIA grants a permittee a time extension to cure a violation, 
the permittee must proceed diligently to complete the necessary 
corrective actions within a reasonable or specified time from the date 
on which the extension is granted.
    (c) If BIA cancels the permit, BIA will send the permittee and the 
District Grazing Committee a written notice of cancellation within 5 
business days of the decision. BIA will also provide actual or 
constructive notice of the cancellation to the Navajo Nation, as 
appropriate. The written notice of cancellation will:
    (1) Explain the grounds for cancellation;
    (2) Notify the permittee of the amount of any unpaid fees and other 
financial obligations due under the permit;
    (3) Notify the permittee of his or her right to appeal under 25 CFR 
part 2 of this title, as modified by Sec.  161.607, including the amount 
of any appeal bond that must be posted with an appeal of the 
cancellation decision; and
    (4) Order the permittee to cease grazing livestock on the next 
anniversary date of the grazing permit or 180 days following the receipt 
of the written notice of cancellation, whichever is sooner.



Sec.  161.607  What appeal bond provisions apply 
to permit cancellation decisions?

    (a) The appeal bond provisions in Sec.  2.5 of part 2 of this title 
will not apply to appeals from permit cancellation decision. Instead, 
when BIA decides to cancel a permit, BIA may require the permittee to 
post an appeal bond with an appeal of the cancellation decision. The 
requirement to post an appeal bond will apply in addition to all of the 
other requirements in part 2 of this title.
    (b) An appeal bond should be set in an amount necessary to protect 
the Navajo Nation against financial losses that will likely result from 
the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
permit cancellation decision.



Sec.  161.608  When will a permit cancellation be effective?

    A cancellation decision involving a permit will not be effective for 
30 days after the permittee receives a written notice of cancellation 
from BIA. The cancellation decision will remain ineffective if the 
permittee files an appeal under Sec.  161.607 and part 2 of this title, 
unless the decision is made immediately effective under part 2. While a 
cancellation decision is ineffective, the permittee must continue to 
comply with the other terms of the permit. If an appeal is not filed in 
accordance with Sec.  161.607 and part 2 of this title, the cancellation 
decision will be effective on the 31st day after the permittee receives 
the written notice of cancellation from BIA.



Sec.  161.609  Can BIA take emergency action if the rangeland is threatened?

    Yes, if a permittee or any other party causes or threatens to cause 
immediate, significant and irreparable harm to the Navajo Nation land 
during the term of a permit, BIA will take appropriate emergency action. 
Emergency action may include trespass proceedings under subpart H, or 
judicial action seeking immediate cessation of

[[Page 463]]

the activity resulting in or threatening harm. Reasonable efforts will 
be made to notify the Navajo Nation, either before or after the 
emergency action is taken.



Sec.  161.610  What will BIA do if livestock is not removed 
when a permit expires or is cancelled?

    If the livestock is not removed after the expiration or cancellation 
of a permit, BIA will treat the unauthorized use as a trespass. BIA may 
remove the livestock on behalf of the Navajo Nation, and pursue any 
additional remedies available under applicable law, including the 
assessment of civil penalties and costs under subpart H.



                           Subpart H_Trespass



Sec.  161.700  What is trespass?

    Under this part, trespass is any unauthorized use of, or action on, 
Navajo partitioned grazing lands.



Sec.  161.701  What is BIA's trespass policy?

    BIA will:
    (a) Investigate accidental, willful, and/or incidental trespass on 
Navajo Partitioned Lands;
    (b) Respond to alleged trespass in a prompt, efficient manner;
    (c) Assess trespass penalties for the value of products used or 
removed, cost of damage to the Navajo Partitioned Lands, and enforcement 
costs incurred as a consequence of the trespass; and
    (d) Ensure, to the extent possible, that damage to Navajo 
Partitioned Lands resulting from trespass is rehabilitated and 
stabilized at the expense of the trespasser.



Sec.  161.702  Who will enforce this subpart?

    (a) BIA enforces the provisions of this subpart. If the Navajo 
Nation adopts the provisions of this subpart, the Navajo Nation will 
have concurrent jurisdiction to enforce this subpart. Additionally, if 
the Navajo Nation so requests, BIA will defer to tribal prosecution of 
trespass on Navajo Partitioned Lands.
    (b) Nothing in this subpart will be construed to diminish the 
sovereign authority of the Navajo Nation with respect to trespass.

                              Notification



Sec.  161.703  How are trespassers notified of a trespass determination?

    (a) Unless otherwise provided under tribal law, when BIA has reason 
to believe that a trespass on Navajo Partitioned Lands has occurred, BIA 
or the authorized tribal representative will provide written notice 
within 5 business days to:
    (1) The alleged trespasser;
    (2) The possessor of trespass property; and
    (3) Any known lien holder.
    (b) The written notice under paragraph (a) of this section will 
include the following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of ownership of unauthorized property (e.g., 
brands in the State Brand Book for cases of livestock trespass, if 
applicable);
    (4) Corrective actions that must be taken;
    (5) Time frames for taking the corrective actions;
    (6) Potential consequences and penalties for failure to take 
corrective action; and
    (7) A statement that unauthorized livestock or other property may 
not be removed or disposed of unless authorized by BIA under paragraph 
(b)(4) of this section.
    (c) If BIA determines that the alleged trespasser or possessor of 
trespass property is unknown or refuses delivery of the written notice, 
a public trespass notice will be posted at the tribal community 
building, U.S. Post Office, and published in the local newspaper nearest 
to the Indian agricultural lands where the trespass is occurring.
    (d) Trespass notices under this subpart are not subject to appeal 
under part 2 of this title.



Sec.  161.704  What can a permittee do if they receive a trespass notice?

    The trespasser will within the time frame specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact BIA in writing to explain why the trespass notice is in 
error. The

[[Page 464]]

trespasser may contact BIA by telephone but any explanation of trespass 
must be provided in writing. If BIA determines that a trespass notice 
was issued in error, the notice will be withdrawn.



Sec.  161.705  How long will a written trespass notice remain in effect?

    A written trespass notice will remain in effect for the same action 
identified in that written notice for a period of one year from the date 
of receipt of the written notice by the trespasser.

                                 Actions



Sec.  161.706  What actions does BIA take against trespassers?

    If the trespasser fails to take the corrective action as specified, 
BIA may take one or more of the following actions, as appropriate:
    (a) Seize, impound, sell or dispose of unauthorized livestock or 
other property involved in the trespass. BIA may keep the property 
seized for use as evidence.
    (b) Assess penalties, damages, and costs under Sec.  161.712.



Sec.  161.707  When will BIA impound unauthorized livestock or other property?

    BIA will impound unauthorized livestock or other property under the 
following conditions:
    (a) Where there is imminent danger of severe injury to growing or 
harvestable crop or destruction of the range forage.
    (b) When the known owner or the owner's representative of the 
unauthorized livestock or other property refuses to accept delivery of a 
written notice of trespass and the unauthorized livestock or other 
property are not removed within the period prescribed in the written 
notice.
    (c) Any time after 5 days of providing notice of impoundment if the 
trespasser failed to correct the trespass.



Sec.  161.708  How are trespassers notified of impoundments?

    (a) If the trespass is not corrected in the time specified in the 
initial trespass notice, BIA will send written notice of its intent to 
impound unauthorized livestock or other property to:
    (1) The unauthorized livestock or property owner or representative; 
and
    (2) Any known lien holder of the unauthorized livestock or other 
property.
    (b) If BIA determines that the owner of the unauthorized livestock 
or other property or the owner's representative is unknown or refuses 
delivery of the written notice, a public notice of intent to impound 
will be posted at the tribal community building, U.S. Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) After BIA has given notice as described in Sec.  161.707, 
unauthorized livestock or other property will be impounded without any 
further notice.



Sec.  161.709  What happens after unauthorized livestock 
or other property are impounded?

    Following the impoundment of unauthorized livestock or other 
property, BIA will provide notice that the impounded property will be 
sold as follows:
    (a) BIA will provide written notice of the sale to the owner, the 
owner's representative, and any known lien holder. The written notice 
must include the procedure by which the impounded property may be 
redeemed before the sale.
    (b) BIA will provide public notice of sale of impounded property by 
posting at the tribal community building, U.S. Post Office, and 
publishing in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring. The public notice will include a 
description of the impounded property, and the date, time, and place of 
the public sale. The sale date must be at least 5 days after the 
publication and posting of notice.



Sec.  161.710  How can impounded livestock or other property be redeemed?

    Impounded livestock or other property may be redeemed by submitting 
proof of ownership and paying all penalties, damages, and costs under 
Sec.  161.712 and completing all corrective actions identified by BIA 
under Sec.  161.704.

[[Page 465]]



Sec.  161.711  How will BIA sell impounded livestock or other property?

    (a) Unless the owner or known lien holder of the impounded livestock 
or other property redeems the property before the time set by the sale, 
by submitting proof of ownership and settling all obligations under 
Sec. Sec.  161.704 and 161.712, the property will be sold by public sale 
to the highest bidder.
    (b) If a satisfactory bid is not received, the livestock or property 
may be re-offered for sale, returned to the owner, condemned and 
destroyed, or otherwise disposed of.
    (c) BIA will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

                      Penalties, Damages, and Costs



Sec.  161.712  What are the penalties, damages, 
and costs payable by trespassers?

    Trespassers on Navajo Partitioned Lands must pay the following 
penalties and costs:
    (a) Collection of the value of the products illegally used or 
removed plus a penalty of double their values;
    (b) Costs associated with any damage to Navajo Partitioned Lands 
and/or property;
    (c) The costs associated with enforcement of the provisions, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees;
    (d) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under Sec.  
161.707; and
    (e) All other penalties authorized by law.



Sec.  161.713  How will BIA determine the amount of damages 
to Navajo Partitioned Lands?

    (a) BIA will determine the damages by considering the costs of 
rehabilitation and re-vegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.
    (b) BIA will determine the value of forage or crops consumed or 
destroyed based upon the average rate received per month for comparable 
property or grazing privileges, or the estimated commercial value or 
replacement costs of the products or property.
    (c) BIA will determine the value of the products or property 
illegally used or removed based upon a valuation of similar products or 
property.



Sec.  161.714  How will BIA determine the costs associated with enforcement 
of the trespass?

    Costs of enforcement may include detection and all actions taken by 
us through prosecution and collection of damages. This includes field 
examination and survey, damage appraisal, investigation assistance and 
report preparation, witness expenses, demand letters, court costs, 
attorney fees, and other costs.



Sec.  161.715  What will BIA do if a trespasser fails to pay penalties, 
damages and costs?

    This section applies if a trespasser fails to pay the assessed 
penalties, damages, and costs as directed. Unless otherwise provided by 
applicable Navajo Nation law, BIA will:
    (a) Refuse to issue the permittee a permit for any use of Navajo 
Partitioned Lands; and
    (b) Forward the case for appropriate legal action.



Sec.  161.716  How are the proceeds from trespass distributed?

    Unless otherwise provided by Navajo Nation law:
    (a) BIA will treat any amounts recovered under Sec.  161.712 as 
proceeds from the sale of agricultural property from the Navajo 
Partitioned Lands upon which the trespass occurred.
    (b) Proceeds recovered under Sec.  161.712 may be distributed to:
    (1) Repair damages of the Navajo Partitioned Lands and property; or
    (2) Reimburse the affected parties, including the permittee for loss 
due to the trespass, as negotiated and provided in the permit.
    (c) Reimburse for costs associated with the enforcement.
    (d) If any money is left over after the distribution of the proceeds 
described in paragraph (b) of this section, BIA will return it to the 
trespasser or, where the owner of the impounded property cannot be 
identified within

[[Page 466]]

180 days, the net proceeds of the sale will be deposited into the 
appropriate Navajo Nation account or transferred to the Navajo Nation 
under applicable tribal law.



Sec.  161.717  What happens if BIA does not collect enough money 
to satisfy the penalty?

    BIA will send written notice to the trespasser demanding immediate 
settlement and advising the trespasser that unless settlement is 
received within 5 business days from the date of receipt, BIA will 
forward the case for appropriate legal action. BIA may send a copy of 
the notice to the Navajo Nation, permittee, and any known lien holders.



                Subpart I_Concurrence/Appeals/Amendments



Sec.  161.800  How does the Navajo Nation provide concurrence to BIA?

    (a) Actions taken by BIA under this part require concurrence of the 
Navajo Nation under section 640d-9(e)(1)(A) of the Settlement Act.
    (b) For any action requiring the concurrence of the Resources 
Committee, the following procedures will apply:
    (1) Unless a longer time is specified in a particular section, or 
unless BIA grants an extension of time, the Resources Committee will 
have 45 days to review and concur with the proposed action;
    (2) If the Resources Committee concurs in writing with all or part 
of BIA proposed action, the action or a portion of it may be immediately 
implemented;
    (3) If the Resources Committee does not concur with all or part of 
the proposed action within the time prescribed in paragraph (b)(1) of 
this section, BIA will submit to the Resources Committee a written 
declaration of non-concurrence. BIA will then notify the Resources 
Committee in writing of a formal hearing to be held not sooner than 30 
days from the date of the non-concurrence declaration;
    (4) The formal hearing on non-concurrence will permit the submission 
of written evidence and argument concerning the proposal. BIA will take 
minutes of the hearing. Following the hearing, BIA may amend, alter, or 
otherwise change the proposed action. If, following a hearing, BIA 
alters or amends portions of the proposed plan of action, BIA will 
submit the altered or amended portions of the plan to the Resources 
Committee for its concurrence; and
    (5) If the Resources Committee fails or refuses to give its 
concurrence to the proposal, BIA may implement the proposal only after 
issuing a written order, based upon findings of fact, that the proposed 
action is necessary to protect the land under the Settlement Act and the 
Agricultural Act.



Sec.  161.801  May decisions under this part be appealed?

    (a) Appeals of BIA decisions issued under this part may be taken in 
accordance with procedures in part 2 of 25 CFR.
    (b) All appeals of decisions by the Grazing Committee and Resources 
Committee will be forwarded to the Navajo Nation's Office of Hearings 
and Appeals.



Sec.  161.802  How will the Navajo Nation recommend amendments to this part?

    The Resources Committee will have final authority on behalf of the 
Navajo Nation to approve amendments to the Navajo Partitioned Lands 
grazing provisions, upon the recommendation of the Grazing Committee and 
the Navajo-Hopi Land Commission, and the concurrence of BIA.



PART 162_LEASES AND PERMITS--Table of Contents



                      Subpart A_General Provisions

                     Purpose, Definitions, and Scope

Sec.
162.001 What is the purpose of this part?
162.002 How is this part subdivided?
162.003 What key terms do I need to know?
162.004 To what land does this part apply?

                           When To Get a Lease

162.005 When do I need a lease to authorize possession of Indian land?
162.006 To what types of land use agreements does this part apply?
162.007 To what permits does this part apply?

[[Page 467]]

162.008 Does this part apply to lease documents I submitted for approval 
          before January 4, 2013?
162.009 Do I need BIA approval of a subleasehold mortgage?

                           How To Get a Lease

162.010 How do I obtain a lease?
162.011 How does a prospective lessee identify and contact individual 
          Indian landowners to negotiate a lease?
162.012 What are the consent requirements for a lease?
162.013 Who is authorized to consent to a lease?

                          Lease Administration

162.014 What laws apply to leases approved under this part?
162.015 May a lease contain a preference consistent with tribal law for 
          employment of tribal members?
162.016 Will BIA comply with tribal laws in making lease decisions?
162.017 What taxes apply to leases approved under this part?
162.018 May tribes administer this part on BIA's behalf?
162.019 May a lease address access to the leased premises by roads or 
          other infrastructure?
162.020 May a lease combine tracts with different Indian landowners?
162.021 What are BIA's responsibilities in approving leases?
162.022 What are BIA's responsibilities in administering and enforcing 
          leases?
162.023 What if an individual or entity takes possession of or uses 
          Indian land without an approved lease or other proper 
          authorization?
162.024 May BIA take emergency action if Indian land is threatened?
162.025 May decisions under this part be appealed?
162.026 Who can answer questions about leasing?
162.027 What documentation may BIA require in approving, administering, 
          and enforcing leases?
162.028 How may an Indian tribe obtain information about leases on its 
          land?
162.029 How does BIA provide notice to the parties to a lease?

                      Subpart B_Agricultural Leases

162.101 What key terms do I need to know for this subpart?
162.105 Can tracts with different Indian landowners be unitized for 
          agricultural leasing purposes?
162.106 What will BIA do if possession is taken without an approved 
          agricultural lease or other proper authorization?
162.107 What are BIA's objectives in granting and approving agricultural 
          leases?
162.108 What are BIA's responsibilities in administering and enforcing 
          agricultural leases?
162.109 What laws, other than these regulations, will apply to 
          agricultural leases granted or approved under this part?
162.110 Can these regulations be administered by tribes, on the 
          Secretary's or on BIA's behalf?
162.111 Who owns the records associated with this subpart?
162.112 How must records associated with this part be preserved?
162.113 May decisions under this subpart be appealed?

                           General Provisions

162.200 What types of leases are covered by this subpart?
162.201 Must agricultural land be managed in accordance with a tribe's 
          agricultural resource management plan?
162.202 How will tribal laws be enforced on agricultural land?
162.203 When can the regulations in this subpart be superseded or 
          modified by tribal laws and leasing policies?
162.204 Must notice of applicable tribal laws and leasing policies be 
          provided?
162.205 Can individual Indian landowners exempt their agricultural land 
          from certain tribal leasing policies?

                          How To Obtain a Lease

162.206 Can the terms of an agricultural lease be negotiated with the 
          Indian landowners?
162.207 When can the Indian landowners grant an agricultural lease?
162.208 Who can represent the Indian landowners in negotiating or 
          granting an agricultural lease?
162.209 When can BIA grant an agricultural lease on behalf of an Indian 
          landowner?
162.210 When can BIA grant a permit covering agricultural land?
162.211 What type of valuation or evaluation methods will be applied in 
          estimating the fair annual rental of Indian land?
162.212 When will the BIA advertise Indian land for agricultural leases?
162.213 What supporting documents must be provided prior to BIA's grant 
          or approval of an agricultural lease?
162.214 How and when will BIA decide whether to approve an agricultural 
          lease?
162.215 When will an agricultural lease be effective?
162.216 When will a BIA decision to approve an agricultural lease be 
          effective?
162.217 Must an agricultural lease or permit be recorded?

[[Page 468]]

                           Lease Requirements

162.218 Is there a standard agricultural lease form?
162.219 Are there any provisions that must be included in an 
          agricultural lease?
162.220 Are there any formal requirements that must be satisfied in the 
          execution of an agricultural lease?
162.221 How should the land be described in an agricultural lease?
162.222 How much rent must be paid under an agricultural lease?
162.223 Must the rent be adjusted under an agricultural lease?
162.224 When are rent payments due under an agricultural lease?
162.225 Will untimely rent payments made under an agricultural lease be 
          subject to interest charges or late payment penalties?
162.226 To whom can rent payments be made under an agricultural lease?
162.227 What form of rent payment can be accepted under an agricultural 
          lease?
162.228 What other types of payments are required under an agricultural 
          lease?
162.229 How long can the term of an agricultural lease run?
162.230 Can an agricultural lease be amended, assigned, sublet, or 
          mortgaged?
162.231 How can the land be used under an agricultural lease?
162.232 Can improvements be made under an agricultural lease?
162.233 Who will own the improvements made under an agricultural lease?
162.234 Must a tenant provide a bond under an agricultural lease?
162.235 What form of bond can be accepted under an agricultural lease?
162.236 How will a cash bond be administered?
162.237 What insurance is required under an agricultural lease?
162.238 What indemnities are required under an agricultural lease?
162.239 How will payment rights and obligations relating to agricultural 
          land be allocated between the Indian landowners and the 
          tenant?
162.240 Can an agricultural lease provide for negotiated remedies in the 
          event of a violation?

                          Lease Administration

162.241 Will administrative fees be charged for actions relating to 
          agricultural leases?
162.242 How will BIA decide whether to approve an amendment to an 
          agricultural lease?
162.243 How will BIA decide whether to approve an assignment or sublease 
          under an agricultural lease?
162.244 How will BIA decide whether to approve a leasehold mortgage 
          under an agricultural lease?
162.245 When will a BIA decision to approve an amendment, assignment, 
          sublease, or mortgage under an agricultural lease be 
          effective?
162.246 Must an amendment, assignment, sublease, or mortgage approved 
          under an agricultural lease be recorded?

                            Lease Enforcement

162.247 Will BIA notify a tenant when a rent payment is due under an 
          agricultural lease?
162.248 What will BIA do if rent payments are not made in the time and 
          manner required by an agricultural lease?
162.249 Will any special fees be assessed on delinquent rent payments 
          due under an agricultural lease?
162.250 How will BIA determine whether the activities of a tenant under 
          an agricultural lease are in compliance with the terms of the 
          lease?
162.251 What will BIA do in the event of a violation under an 
          agricultural lease?
162.252 What will BIA do if a violation of an agricultural lease is not 
          cured within the requisite time period?
162.253 Will BIA's regulations concerning appeal bonds apply to 
          cancellation decisions involving agricultural leases?
162.254 When will a cancellation of an agricultural lease be effective?
162.255 Can BIA take emergency action if the leased premises are 
          threatened with immediate and significant harm?
162.256 What will BIA do if a tenant holds over after the expiration or 
          cancellation of an agricultural lease?

                      Subpart C_Residential Leases

                 Residential Leasing General Provisions

162.301 What types of leases does this subpart cover?
162.302 Is there a model residential lease form?
162.303 Who needs a lease for housing for public purposes?

                           Lease Requirements

162.311 How long may the term of a residential lease run?
162.312 What must the lease include if it contains an option to renew?
162.313 Are there mandatory provisions that a residential lease must 
          contain?
162.314 May permanent improvements be made under a residential lease?
162.315 How must a residential lease address ownership of permanent 
          improvements?
162.316 How will BIA enforce removal requirements in a residential 
          lease?

[[Page 469]]

162.317 How must a residential lease describe the land?

                           Rental Requirements

162.320 How much rent must be paid under a residential lease of tribal 
          land?
162.321 How much rent must be paid under a residential lease of 
          individually owned Indian land?
162.322 How will BIA determine fair market rental for a residential 
          lease?
162.323 When are rental payments due under a residential lease?
162.324 Must a residential lease specify who receives rental payments?
162.325 What form of payment is acceptable under a residential lease?
162.326 May a residential lease provide for non-monetary or varying 
          types of compensation?
162.327 Will BIA notify a lessee when a payment is due under a 
          residential lease?
162.328 Must a residential lease provide for rental reviews or 
          adjustments?
162.329 What other types of payments are required under a residential 
          lease?

                          Bonding and Insurance

162.334 Is a performance bond required for a residential lease document?
162.335 Is insurance required for a residential lease document?
162.336-162.337 [Reserved]

                                Approval

162.338 What documents are required for BIA approval of a residential 
          lease?
162.339 Will BIA review a proposed residential lease before or during 
          preparation of the NEPA review documentation?
162.340 What is the approval process for a residential lease?
162.341 How will BIA decide whether to approve a residential lease?
162.342 When will a residential lease be effective?
162.343 Must a residential lease document be recorded?
162.344 Will BIA require an appeal bond for an appeal of a decision on a 
          residential lease document?

                               Amendments

162.345 May the parties amend a residential lease?
162.346 What are the consent requirements for an amendment of a 
          residential lease?
162.347 What is the approval process for an amendment of a residential 
          lease?
162.348 How will BIA decide whether to approve an amendment of a 
          residential lease?

                               Assignments

162.349 May a lessee assign a residential lease?
162.350 What are the consent requirements for an assignment of a 
          residential lease?
162.351 What is the approval process for an assignment of a residential 
          lease?
162.352 How will BIA decide whether to approve an assignment of a 
          residential lease?

                                Subleases

162.353 May a lessee sublease a residential lease?
162.354 What are the consent requirements for a sublease of a 
          residential lease?
162.355 What is the approval process for a sublease of a residential 
          lease?
162.356 How will BIA decide whether to approve a sublease of a 
          residential lease?

                           Leasehold Mortgages

162.357 May a lessee mortgage a residential lease?
162.358 What are the consent requirements for a leasehold mortgage of a 
          residential lease?
162.359 What is the approval process for a leasehold mortgage of a 
          residential lease?
162.360 How will BIA decide whether to approve a leasehold mortgage of a 
          residential lease?

               Effectiveness, Compliance, and Enforcement

162.361 When will an amendment, assignment, sublease, or leasehold 
          mortgage of a residential lease be effective?
162.362 What happens if BIA disapproves an amendment, assignment, 
          sublease, or leasehold mortgage?
162.363 What happens if BIA does not meet a deadline for issuing a 
          decision on a lease document?
162.364 May BIA investigate compliance with a residential lease?
162.365 May a residential lease provide for negotiated remedies if there 
          is a violation?
162.366 What will BIA do about a violation of a residential lease?
162.367 What will BIA do if the lessee does not cure a violation of a 
          residential lease on time?
162.368 Will late payment charges or special fees apply to delinquent 
          payments due under a residential lease?
162.369 How will payment rights relating to a residential lease be 
          allocated?
162.370 When will a cancellation of a residential lease be effective?
162.371 What will BIA do if a lessee remains in possession after a 
          residential lease expires or is terminated or cancelled?
162.372 Will BIA appeal bond regulations apply to cancellation decisions 
          involving residential leases?

[[Page 470]]

162.373 When will BIA issue a decision on an appeal from a residential 
          leasing decision?
162.374 What happens if the lessee abandons the leased premises?

                        Subpart D_Business Leases

                   Business Leasing General Provisions

162.401 What types of leases does this subpart cover?
162.402 Is there a model business lease form?

                           Lease Requirements

162.411 How long may the term of a business lease run?
162.412 What must the lease include if it contains an option to renew?
162.413 Are there mandatory provisions that a business lease must 
          contain?
162.414 May permanent improvements be made under a business lease?
162.415 How must a business lease address ownership of permanent 
          improvements?
162.416 How will BIA enforce removal requirements in a business lease?
162.417 What requirements for due diligence must a business lease 
          include?
162.418 How must a business lease describe the land?
162.419 May a business lease allow compatible uses?

                   Monetary Compensation Requirements

162.420 How much monetary compensation must be paid under a business 
          lease of tribal land?
162.421 How much monetary compensation must be paid under a business 
          lease of individually owned Indian land?
162.422 How will BIA determine fair market rental for a business lease?
162.423 When are monetary compensation payments due under a business 
          lease?
162.424 Must a business lease specify who receives monetary compensation 
          payments?
162.425 What form of monetary compensation payment is acceptable under a 
          business lease?
162.426 May the business lease provide for non-monetary or varying types 
          of compensation?
162.427 Will BIA notify a lessee when a payment is due under a business 
          lease?
162.428 Must a business lease provide for compensation reviews or 
          adjustments?
162.429 What other types of payments are required under a business 
          lease?

                          Bonding and Insurance

162.434 Must a lessee provide a performance bond for a business lease?
162.435 What forms of security are acceptable under a business lease?
162.436 What is the release process for a performance bond or 
          alternative form of security under a business lease?
162.437 Must a lessee provide insurance for a business lease?

                                Approval

162.438 What documents are required for BIA approval of a business 
          lease?
162.439 Will BIA review a proposed business lease before or during 
          preparation of the NEPA review documentation?
162.440 What is the approval process for a business lease?
162.441 How will BIA decide whether to approve a business lease?
162.442 When will a business lease be effective?
162.443 Must a business lease document be recorded?
162.444 Will BIA require an appeal bond for an appeal of a decision on a 
          business lease document?

                               Amendments

162.445 May the parties amend a business lease?
162.446 What are the consent requirements for an amendment to a business 
          lease?
162.447 What is the approval process for an amendment to a business 
          lease?
162.448 How will BIA decide whether to approve an amendment to a 
          business lease?

                               Assignments

162.449 May a lessee assign a business lease?
162.450 What are the consent requirements for an assignment of a 
          business lease?
162.451 What is the approval process for an assignment of a business 
          lease?
162.452 How will BIA decide whether to approve an assignment of a 
          business lease?

                                Subleases

162.453 May a lessee sublease a business lease?
162.454 What are the consent requirements for a sublease of a business 
          lease?
162.455 What is the approval process for a sublease of a business lease?
162.456 How will BIA decide whether to approve a sublease of a business 
          lease?

                           Leasehold Mortgages

162.457 May a lessee mortgage a business lease?
162.458 What are the consent requirements for a leasehold mortgage of a 
          business lease?
162.459 What is the approval process for a leasehold mortgage of a 
          business lease?
162.460 How will BIA decide whether to approve a leasehold mortgage of a 
          business lease?

[[Page 471]]

               Effectiveness, Compliance, and Enforcement

162.461 When will an amendment, assignment, sublease, or leasehold 
          mortgage of a business lease be effective?
162.462 What happens if BIA disapproves an amendment, assignment, 
          sublease, or leasehold mortgage of a business lease?
162.463 What happens if BIA does not meet a deadline for issuing a 
          decision on a lease document?
162.464 May BIA investigate compliance with a business lease?
162.465 May a business lease provide for negotiated remedies if there is 
          a violation?
162.466 What will BIA do about a violation of a business lease?
162.467 What will BIA do if the lessee does not cure a violation of a 
          business lease on time?
162.468 Will late payment charges or special fees apply to delinquent 
          payments due under a business lease?
162.469 How will payment rights relating to a business lease be 
          allocated?
162.470 When will a cancellation of a business lease be effective?
162.471 What will BIA do if a lessee remains in possession after a 
          business lease expires or is terminated or cancelled?
162.472 Will BIA appeal bond regulations apply to cancellation decisions 
          involving business leases?
162.473 When will BIA issue a decision on an appeal from a business 
          leasing decision?
162.474 What happens if the lessee abandons the leased premises?

                Subpart E_Wind and Solar Resource Leases

          General Provisions Applicable to WEELs and WSR Leases

162.501 What types of leases does this subpart cover?
162.502 Who must obtain a WEEL or WSR lease?
162.503 Is there a model WEEL or WSR lease?

                                  WEELs

162.511 What is the purpose of a WEEL?
162.512 How long may the term of a WEEL run?
162.513 Are there mandatory provisions a WEEL must contain?
162.514 May permanent improvements be made under a WEEL?
162.515 How must a WEEL address ownership of permanent improvements?
162.516 How will BIA enforce removal requirements in a WEEL?
162.517 What requirements for due diligence must a WEEL include?
162.518 How must a WEEL describe the land?
162.519 May a WEEL allow for compatible uses by the Indian landowner?
162.520 Who owns the energy resource information obtained under the 
          WEEL?
162.521 May a lessee incorporate its WEEL analyses into its WSR lease 
          analyses?
162.522 May a WEEL contain an option for a lessee to enter into a WSR 
          lease?

                 WEEL Monetary Compensation Requirements

162.523 How much compensation must be paid under a WEEL?
162.524 Will BIA require a valuation for a WEEL?

                       WEEL Bonding and Insurance

162.525 Must a lessee provide a performance bond for a WEEL?
162.526 [Reserved]
162.527 Must a lessee provide insurance for a WEEL?

                              WEEL Approval

162.528 What documents are required for BIA approval of a WEEL?
162.529 Will BIA review a proposed WEEL before or during preparation of 
          the NEPA review documentation?
162.530 What is the approval process for a WEEL?
162.531 How will BIA decide whether to approve a WEEL?
162.532 When will a WEEL be effective?
162.533 Must a WEEL lease document be recorded?

                           WEEL Administration

162.534 May the parties amend, assign, sublease, or mortgage a WEEL?

                     WEEL Compliance and Enforcement

162.535 What effectiveness, compliance, and enforcement provisions apply 
          to WEELs?
162.536 Under what circumstance may a WEEL be terminated?
162.537 [Reserved]

                               WSR Leases

162.538 What is the purpose of a WSR lease?
162.539 Must I obtain a WEEL before obtaining a WSR lease?
162.540 How long may the term of a WSR lease run?
162.541 What must the lease include if it contains an option to renew?
162.542 Are there mandatory provisions a WSR lease must contain?
162.543 May permanent improvements be made under a WSR lease?
162.544 How must a WSR lease address ownership of permanent 
          improvements?
162.545 How will BIA enforce removal requirements in a WSR lease?
162.546 What requirements for due diligence must a WSR lease include?

[[Page 472]]

162.547 How must a WSR lease describe the land?
162.548 May a WSR lease allow compatible uses?

              WSR Lease Monetary Compensation Requirements

162.549 How much monetary compensation must be paid under a WSR lease of 
          tribal land?
162.550 How much monetary compensation must be paid under a WSR lease of 
          individually owned Indian land?
162.551 How will BIA determine fair market rental for a WSR lease?
162.552 When are monetary compensation payments due under a WSR lease?
162.553 Must a WSR lease specify who receives monetary compensation 
          payments?
162.554 What form of monetary compensation payment is acceptable under a 
          WSR lease?
162.555 May a WSR lease provide for non-monetary or varying types of 
          compensation?
162.556 Will BIA notify a lessee when a payment is due under a WSR 
          lease?
162.557 Must a WSR lease provide for compensation reviews or 
          adjustments?
162.558 What other types of payments are required under a WSR lease?

                     WSR Lease Bonding and Insurance

162.559 Must a lessee provide a performance bond for a WSR lease?
162.560 What forms of security are acceptable under a WSR lease?
162.561 What is the release process for a performance bond or 
          alternative form of security under a WSR lease?
162.562 Must a lessee provide insurance for a WSR lease?

                           WSR Lease Approval

162.563 What documents are required for BIA approval of a WSR lease?
162.564 Will BIA review a proposed WSR lease before or during 
          preparation of the NEPA review documentation?
162.565 What is the approval process for a WSR lease?
162.566 How will BIA decide whether to approve a WSR lease?
162.567 When will a WSR lease be effective?
162.568 Must a WSR lease document be recorded?
162.569 Will BIA require an appeal bond for an appeal of a decision on a 
          WSR lease document?

                          WSR Lease Amendments

162.570 May the parties amend a WSR lease?
162.571 What are the consent requirements for an amendment to a WSR 
          lease?
162.572 What is the approval process for an amendment to a WSR lease?
162.573 How will BIA decide whether to approve an amendment to a WSR 
          lease?

                          WSR Lease Assignments

162.574 May a lessee assign a WSR lease?
162.575 What are the consent requirements for an assignment of a WSR 
          lease?
162.576 What is the approval process for an assignment of a WSR lease?
162.577 How will BIA decide whether to approve an assignment of a WSR 
          lease?

                           WSR Lease Subleases

162.578 May a lessee sublease a WSR lease?
162.579 What are the consent requirements for a sublease of a WSR lease?
162.580 What is the approval process for a sublease of a WSR lease?
162.581 How will BIA decide whether to approve a sublease of a WSR 
          lease?

                      WSR Lease Leasehold Mortgages

162.582 May a lessee mortgage a WSR lease?
162.583 What are the consent requirements for a leasehold mortgage of a 
          WSR lease?
162.584 What is the approval process for a leasehold mortgage of a WSR 
          lease?
162.585 How will BIA decide whether to approve a leasehold mortgage of a 
          WSR lease?

          WSR Lease--Effectiveness, Compliance, and Enforcement

162.586 When will an amendment, assignment, sublease, or leasehold 
          mortgage of a WSR lease be effective?
162.587 What happens if BIA disapproves an amendment, assignment, 
          sublease, or leasehold mortgage of a WSR lease?
162.588 What happens if BIA does not meet a deadline for issuing a 
          decision on a lease document?
162.589 May BIA investigate compliance with a WSR lease?
162.590 May a WSR lease provide for negotiated remedies if there is a 
          violation?
162.591 What will BIA do about a violation of a WSR lease?
162.592 What will BIA do if a lessee does not cure a violation of a WSR 
          lease on time?
162.593 Will late payment charges or special fees apply to delinquent 
          payments due under a WSR lease?
162.594 How will payment rights relating to WSR leases be allocated?
162.595 When will a cancellation of a WSR lease be effective?
162.596 What will BIA do if a lessee remains in possession after a WSR 
          lease expires or is terminated or cancelled?
162.597 Will BIA appeal bond regulations apply to cancellation decisions 
          involving WSR leases?

[[Page 473]]

162.598 When will BIA issue a decision on an appeal from a WSR leasing 
          decision?
162.599 What happens if the lessee abandons the leased premises?

         Subpart F_Special Requirements for Certain Reservations

162.600 Crow Reservation.
162.601 Fort Belknap Reservation.
162.602 Cabazon, Augustine, and Torres-Martinez Reservations, 
          California.
162.603 San Xavier and Salt River Pima-Maricopa Reservations.

                            Subpart G_Records

162.701 Who owns the records associated with this part?
162.702 How must records associated with this part be preserved?
162.703 How does the Paperwork Reduction Act affect this part?

    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, 107 Stat. 2011, 108 Stat. 4572, March 20, 1996, 110 Stat. 4016; 25 
U.S.C. 380, 393, 393a, 394, 395, 397, 402, 402a, 403, 403a, 403b, 403c, 
409a, 413, 415, 415a, 415b, 415c, 415d, 416, 477, 635, 2201 et seq., 
3701, 3702, 3703, 3712, 3713, 3714, 3715, 3731, 3733, 4211; 44 U.S.C. 
3101 et seq.

    Source: 66 FR 7109, Jan. 22, 2001, unless otherwise noted.



                      Subpart A_General Provisions

    Source: 77 FR 72467, Dec. 5, 2012, unless otherwise noted.

                     Purpose, Definitions, and Scope



Sec.  162.001  What is the purpose of this part?

    (a) The purpose of this part is to promote leasing on Indian land 
for housing, economic development, and other purposes.
    (b) This part specifies:
    (1) Conditions and authorities under which we will approve leases of 
Indian land and may issue permits on Government land;
    (2) How to obtain leases;
    (3) Terms and conditions required in leases;
    (4) How we administer and enforce leases; and
    (5) Special requirements for leases made under special acts of 
Congress that apply only to certain Indian reservations.
    (c) If any section, paragraph, or provision of this part is stayed 
or held invalid, the remaining sections, paragraphs, or provisions of 
this part remain in full force and effect.



Sec.  162.002  How is this part subdivided?

    (a) This part includes multiple subparts relating to:
    (1) General Provisions (Subpart A);
    (2) Agricultural Leases (Subpart B);
    (3) Residential Leases (Subpart C);
    (4) Business Leases (Subpart D);
    (5) Wind Energy Evaluation, Wind Resource, and Solar Resource Leases 
(Subpart E);
    (6) Special Requirements for Certain Reservations (Subpart F); and
    (7) Records (Subpart G).
    (b) Leases covered by subpart B are not subject to the provisions in 
subpart A. Leases covered by subpart B are subject to the provisions in 
subpart G, except that if a provision in subpart B conflicts with a 
provision of subpart G, then the provision in subpart B will govern.
    (c) Subpart F applies only to leases made under special acts of 
Congress covering particular Indian reservations. Leases covered by 
subpart F are also subject to the provisions in subparts A through G, 
except to the extent that subparts A through G are inconsistent with the 
provisions in subpart F or any act of Congress under which the lease is 
made, in which case the provisions in subpart F or any act of Congress 
under which the lease is made will govern.



Sec.  162.003  What key terms do I need to know?

    Adult means a person who is 18 years of age or older.
    Appeal bond means a bond posted upon filing of an appeal.
    Approval means written authorization by the Secretary or a delegated 
official or, where applicable, the

[[Page 474]]

``deemed approved'' authorization of an amendment or sublease.
    Assignment means an agreement between a lessee and an assignee, 
whereby the assignee acquires all or some of the lessee's rights, and 
assumes all or some of the lessee's obligations, under a lease.
    BIA means the Secretary of the Interior or the Bureau of Indian 
Affairs within the Department of the Interior and any tribe acting on 
behalf of the Secretary or Bureau of Indian Affairs under Sec.  162.018.
    Business day means Monday through Friday, excluding federally 
recognized holidays and other days that the applicable office of the 
Federal Government is closed to the public.
    Cancellation means BIA action to end a lease.
    Consent or consenting means written authorization by an Indian 
landowner to a specified action.
    Constructive notice means notice:
    (1) Posted at the tribal government office, tribal community 
building, and/or the United States Post Office; and
    (2) Published in the local newspaper(s) nearest to the affected land 
and/or announced on a local radio station(s).
    Court of competent jurisdiction means a Federal, tribal, or State 
court with jurisdiction.
    Day means a calendar day, unless otherwise specified.
    Emancipated minor means a person less than 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself.
    Equipment installation plan means a plan that describes the type and 
location of any improvements to be installed by the lessee to evaluate 
the wind resources and a schedule showing the tentative commencement and 
completion dates for installation of those improvements.
    Fair market rental means the amount of rental income that a leased 
tract of Indian land would most probably command in an open and 
competitive market, or as determined by competitive bidding.
    Fee interest means an interest in land that is owned in unrestricted 
fee status, and is thus freely alienable by the fee owner.
    Fractionated tract means a tract of Indian land owned in common by 
Indian landowners and/or fee owners holding undivided interests therein.
    Government land means any tract, or interest therein, in which the 
surface estate is owned and administered by the United States, not 
including Indian land.
    Holdover means circumstances in which a lessee remains in possession 
of the leased premises after the lease term expires.
    Housing for public purposes means multi-family developments, single-
family residential developments, and single-family residences:
    (1) Administered by a tribe or tribally designated housing entity 
(TDHE); or
    (2) Substantially financed using a tribal, Federal, or State housing 
assistance program or TDHE.
    Immediate family means, in the absence of a definition under 
applicable tribal law, a spouse, brother, sister, aunt, uncle, niece, 
nephew, first cousin, lineal ancestor, lineal descendant, or member of 
the household.
    Indian means:
    (1) Any person who is a member of any Indian tribe, is eligible to 
become a member of any Indian tribe, or is an owner as of October 27, 
2004, of a trust or restricted interest in land;
    (2) Any person meeting the definition of Indian under the Indian 
Reorganization Act (25 U.S.C. 479) and the regulations promulgated 
thereunder; and
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or restricted interest in a parcel of such land 
in that State.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status and includes both individually owned Indian land and tribal land.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land.

[[Page 475]]

    Individually owned Indian land means any tract, or interest therein, 
in which the surface estate is owned by an individual Indian in trust or 
restricted status.
    Indian tribe means an Indian tribe under section 102 of the 
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
    Interest, when used with respect to Indian land, means an ownership 
right to the surface estate of Indian land.
    Lease means a written contract between Indian landowners and a 
lessee, whereby the lessee is granted a right to possess Indian land, 
for a specified purpose and duration. The lessee's right to possess will 
limit the Indian landowners' right to possess the leased premises only 
to the extent provided in the lease.
    Lease document means a lease, amendment, assignment, sublease, or 
leasehold mortgage.
    Leasehold mortgage means a mortgage, deed of trust, or other 
instrument that pledges a lessee's leasehold interest as security for a 
debt or other obligation owed by the lessee to a lender or other 
mortgagee.
    Lessee means person or entity who has acquired a legal right to 
possess Indian land by a lease under this part.
    Life estate means an interest in property held only for the duration 
of a designated person(s)' life. A life estate may be created by a 
conveyance document or by operation of law.
    LTRO means the Land Titles and Records Office of the BIA.
    Mail means to send something by U.S. Postal Service or commercial 
delivery service.
    Minor means an individual who is less than 18 years of age.
    Mortgagee means the holder of a leasehold mortgage.
    NEPA means the National Environmental Policy Act of 1969, 42 U.S.C. 
4321 et seq.
    Nominal rental or nominal compensation means a rental amount that is 
so insignificant that it bears no relationship to the value of the 
property that is being leased.
    Non compos mentis means that the person to whom the term is applied 
has been legally determined by a court of competent jurisdiction to be 
of unsound mind or incapable of managing his or her own affairs.
    Notice of violation means a letter notifying the lessee of a 
violation of the lease and providing the lessee with a specified period 
of time to show cause why the lease should not be cancelled for the 
violation. A 10-day show cause letter is one type of notice of 
violation.
    Orphaned minor means a minor whose parents are deceased.
    Performance bond means security for the performance of certain lease 
obligations, as furnished by the lessee, or a guaranty of such 
performance as furnished by a third-party surety.
    Permanent improvements means buildings, other structures, and 
associated infrastructure attached to the leased premises.
    Permit means a written, non-assignable agreement between Indian 
landowners or BIA and the permittee, whereby the permittee is granted a 
temporary, revocable privilege to use Indian land or Government land, 
for a specified purpose.
    Permittee means a person or entity who has acquired a privilege to 
use Indian land or Government land by a permit.
    Power of attorney means an authority by which one person enables 
another to act for him or her as attorney-in-fact.
    Remainder interest means an interest in Indian land that is created 
at the same time as a life estate, for the use and enjoyment of its 
owner after the life estate terminates.
    Restoration and reclamation plan means a plan that defines the 
reclamation, revegetation, restoration, and soil stabilization 
requirements for the project area, and requires the expeditious 
reclamation of construction areas and revegetation of disturbed areas to 
reduce invasive plant infestation and erosion.
    Secretary means the Secretary of the Interior.
    Single-family residence means a building with one to four dwelling 
units on a tract of land under a single residential lease, or as defined 
by applicable tribal law or other tribal authorization.

[[Page 476]]

    Single-family residential development means two or more single-
family residences owned, managed, or developed by a single entity.
    Sublease means a written agreement by which the lessee grants to an 
individual or entity a right to possession no greater than that held by 
the lessee under the lease.
    Surety means one who guarantees the performance of another.
    TDHE means a tribally designated housing entity under 25 U.S.C. 
4103(22), a tribally-sponsored or tribally sanctioned not-for-profit 
entity, or any limited partnership or other entity organized for the 
purpose of developing or improving low-income housing utilizing tax 
credits.
    Termination means action by Indian landowners to end a lease.
    Trespass means any unauthorized occupancy, use of, or action on any 
Indian land or Government land.
    Tribal authorization means a duly adopted tribal resolution, tribal 
ordinance, or other appropriate tribal document authorizing the 
specified action.
    Tribal land means any tract, or interest therein, in which the 
surface estate is owned by one or more tribes in trust or restricted 
status, and includes such lands reserved for BIA administrative 
purposes. The term also includes the surface estate of 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).
    Tribal land assignment means a contract or agreement that conveys to 
tribal members or wholly owned tribal corporations any rights for the 
use of tribal lands, assigned by an Indian tribe in accordance with 
tribal laws or customs.
    Tribal law means the body of non-Federal law that governs lands and 
activities under the jurisdiction of a tribe, including ordinances or 
other enactments by the tribe, and tribal court rulings.
    Trust or restricted land means any tract, or interest therein, held 
in trust or restricted status.
    Trust or restricted status means:
    (1) That the United States holds title to the tract or interest in 
trust for the benefit of one or more tribes or individual Indians; or
    (2) That one or more tribes or individual Indians holds title to the 
tract or interest, but can alienate or encumber it only with the 
approval of the United States because of limitations in the conveyance 
instrument under Federal law or limitations in Federal law.
    Undivided interest means a fractional share in the surface estate of 
Indian land, where the surface estate is owned in common with other 
Indian landowners or fee owners.
    USPAP means the Uniform Standards of Professional Appraisal Practice 
promulgated by the Appraisal Standards Board of the Appraisal Foundation 
to establish requirements and procedures for professional real property 
appraisal practice.
    Us/we/our means the BIA.
    Violation means a failure to take an action, including payment of 
compensation, when required by the lease, or to otherwise not comply 
with a term of the lease. This definition applies for purposes of our 
enforcement of a lease under this part no matter how ``violation'' or 
``default'' is defined in the lease.



Sec.  162.004  To what land does this part apply?

    (a) This part applies to Indian land and Government land, including 
any tract in which an individual Indian or Indian tribe owns an interest 
in trust or restricted status.
    (1) We will not take any action on a lease of fee interests or 
collect rent on behalf of fee interest owners. We will not condition our 
approval of a lease of the trust and restricted interests on your having 
obtained a lease from the owners of any fee interests. The lessee will 
be responsible for accounting to the owners of any fee interests that 
may exist in the property being leased.
    (2) We will not include the fee interests in a tract in calculating 
the applicable percentage of interests required for consent to a lease 
document.
    (b) This paragraph (b) applies if there is a life estate on the land 
to be leased.
    (1) When all of the trust or restricted interests in a tract are 
subject to a single life estate, the life tenant may lease the land 
without the consent of

[[Page 477]]

the owners of the remainder interests or our approval, for the duration 
of the life estate.
    (i) The lease will terminate upon the death of the life tenant.
    (ii) The life tenant must record the lease in the LTRO.
    (iii) The lessee must pay rent directly to the life tenant under the 
terms of the lease unless the whereabouts of the life tenant are 
unknown, in which case we may collect rents on behalf of the life 
tenant.
    (iv) We may monitor the use of the land on behalf of the owners of 
the remainder interests, as appropriate, but will not be responsible for 
enforcing the lease on behalf of the life tenant.
    (v) We will not lease the remainder interests or join in a lease by 
the life tenant on behalf of the owners of the remainder interests 
except as needed to preserve the value of the land.
    (vi) We will be responsible for enforcing the terms of the lease on 
behalf of the owners of the remainder interests.
    (2) When less than all of the trust or restricted interests in a 
tract are subject to a single life estate, the life tenant may lease his 
or her interest without the consent of the owners of the remainder 
interests, but must obtain the consent of the co-owners and our 
approval.
    (i) We will not lease on the life tenant's behalf.
    (ii) The lease must provide that the lessee pays the life tenant 
directly, unless the life tenant's whereabouts are unknown in which case 
we may collect rents on behalf of the life tenant.
    (iii) The lease must be recorded in the LTRO, even where our 
approval is not required.
    (iv) We will be responsible for enforcing the terms of the lease on 
behalf of the owners of the remainder interests.
    (3) Where the remaindermen and the life tenant have not entered into 
a lease or other written agreement approved by the Secretary providing 
for the distribution of rent monies under the lease, the life tenant 
will receive payment in accordance with the distribution and calculation 
scheme set forth in Part 179 of this chapter.
    (4) The life tenant may not cause or allow permanent injury to the 
land.
    (5) The life tenant must provide a copy of the executed lease to all 
owners of the remainder interests.

                           When to Get a Lease



Sec.  162.005  When do I need a lease to authorize possession of Indian land?

    (a) You need a lease under this part to possess Indian land if you 
meet one of the criteria in the following table, unless you are 
authorized to possess or use the Indian land by a land use agreement not 
subject to this part under Sec.  162.006(b) or by a permit.

------------------------------------------------------------------------
                                            then you must obtain a lease
             If you are . . .                  under this part . . .
------------------------------------------------------------------------
(1) A person or legal entity (including    from the owners of the land
 an independent legal entity owned and      before taking possession of
 operated by a tribe) who is not an owner   the land or any portion
 of the Indian land.                        thereof.
(2) An Indian landowner of a fractional    from the owners of other
 interest in the land.                      trust and restricted
                                            interests in the land,
                                            unless all of the owners
                                            have given you permission to
                                            take or continue in
                                            possession without a lease.
------------------------------------------------------------------------

    (b) You do not need a lease to possess Indian land if:
    (1) You are an Indian landowner who owns 100 percent of the trust or 
restricted interests in a tract; or
    (2) You meet any of the criteria in the following table.

------------------------------------------------------------------------
                                            but the following conditions
 You do not need a lease if you are . . .            apply . . .
------------------------------------------------------------------------
(i) A parent or guardian of a minor child   We may require you to
 who owns 100 percent of the trust or        provide evidence of a
 restricted interests in the land.           direct benefit to the minor
                                             child and when the child is
                                             no longer a minor, you must
                                             obtain a lease to authorize
                                             continued possession.
(ii) A 25 U.S.C. 477 corporate entity that  You must record documents in
 manages or has the power to manage the      accordance with Sec.
 tribal land directly under its Federal      162.343, Sec.   162.443,
 charter or under a tribal authorization     and Sec.   162.568.
 (not under a lease from the Indian tribe).
------------------------------------------------------------------------



Sec.  162.006  To what types of land use agreements does this part apply?

    (a) This part applies to leases of Indian land entered into under 25 
U.S.C. 380, 25 U.S.C. 415(a), and 25 U.S.C. 4211, and other tribe-
specific statutes authorizing surface leases of Indian land with our 
approval.

[[Page 478]]

    (b) This part does not apply to:
    (1) Land use agreements entered into under other statutory 
authority, such as the following:

------------------------------------------------------------------------
     This part does not apply to . . .       which are covered by . . .
------------------------------------------------------------------------
(i) Contracts or agreements that encumber   25 CFR part 84.
 tribal land under 25 U.S.C. 81.
(ii) Traders' licenses....................  25 CFR part 140.
(iii) Timber contracts....................  25 CFR part 163.
(iv) Grazing permits......................  25 CFR part 166.
(v) Rights-of-way.........................  25 CFR part 169.
(vi) Mineral leases, prospecting permits,   25 CFR parts 211, 212, 213,
 or mineral development agreements.          225, 226, 227.
(vii) Tribal land assignments and similar   tribal laws.
 instruments authorizing uses of tribal
 land.
------------------------------------------------------------------------

    (2) Leases of water rights associated with Indian land, except to 
the extent the use of water rights is incorporated in a lease of the 
land itself.
    (3) The following leases, which do not require our approval, except 
that you must record these leases in accordance with Sec. Sec.  162.343, 
162.443, and 162.568:
    (i) A lease of tribal land by a 25 U.S.C. 477 corporate entity under 
its charter to a third party for a period not to exceed 25 years; and
    (ii) A lease of Indian land under a special act of Congress 
authorizing leasing without our approval.



Sec.  162.007  To what permits does this part apply?

    (a) Permits for the use of Indian land do not require our approval; 
however, you must fulfill the following requirements:
    (1) Ensure that permitted activities comply with all applicable 
environmental and cultural resource laws; and
    (2) Submit all permits to the appropriate BIA office to allow us to 
maintain a copy of the permit in our records. If we determine within 10 
days of submission that the document does not meet the definition of 
``permit'' and grants a legal interest in Indian land, we will notify 
you that a lease is required.
    (b) The following table provides examples of some common 
characteristics of permits versus leases.

------------------------------------------------------------------------
                  Permit                                Lease
------------------------------------------------------------------------
Does not grant a legal interest in Indian   Grants a legal interest in
 land.                                       Indian land.
Shorter term..............................  Longer term.
Limited use...............................  Broader use with associated
                                             infrastructure.
Permittee has non-possessory right of       Lessee has right of
 access.                                     possession, ability to
                                             limit or prohibit access by
                                             others.
Indian landowner may terminate at any time  Indian landowner may
                                             terminate under limited
                                             circumstances.
------------------------------------------------------------------------

    (c) We will not administer or enforce permits on Indian land.
    (d) We may grant permits for the use of Government land. The leasing 
regulations in this part will apply to such permits, as appropriate.



Sec.  162.008  Does this part apply to lease documents I submitted 
for approval before January 4, 2013?

    This part applies to all lease documents, except as provided in 
Sec.  162.006. If you submitted your lease document to us for approval 
before January 4, 2013, the qualifications in paragraphs (a) and (b) of 
this section also apply.
    (a) If we approved your lease document before January 4, 2013, this 
part applies to that lease document; however, if the provisions of the 
lease document conflict with this part, the provisions of the lease 
govern.
    (b) If you submitted a lease document but we did not approve it 
before January 4, 2013, then:
    (1) We will review the lease document under the regulations in 
effect at the time of your submission; and
    (2) Once we approve the lease document, this part applies to that 
lease document; however, if the provisions of the lease document 
conflict with this part, the provisions of the lease document govern.



Sec.  162.009  Do I need BIA approval of a subleasehold mortgage?

    Unless the lease provides otherwise, sublease, or by request of the 
parties, you do not need our approval of a subleasehold mortgage. If the 
lease or sublease requires, or parties request, our approval, we will 
use the procedures governing our review of leasehold mortgages.

                           How to Get a Lease



Sec.  162.010  How do I obtain a lease?

    (a) This section establishes the basic steps to obtain a lease.

[[Page 479]]

    (1) Prospective lessees must:
    (i) Directly negotiate with Indian landowners for a lease; and
    (ii) For fractionated tracts, notify all Indian landowners and 
obtain the consent of the Indian landowners of the applicable percentage 
of interests, under Sec.  162.012; and
    (2) Prospective lessees and Indian landowners must:
    (i) Prepare the required information and analyses, including 
information to facilitate our analysis under applicable environmental 
and cultural resource requirements; and
    (ii) Ensure the lease complies with the requirements in subpart C 
for residential leases, subpart D for business leases, or subpart E for 
wind energy evaluation, wind resource, or solar resource leases; and
    (3) Prospective lessees or Indian landowners must submit the lease, 
and required information and analyses, to the BIA office with 
jurisdiction over the lands covered by the lease, for our review and 
approval.
    (b) Generally, residential, business, wind energy evaluation, wind 
resource, and solar resource leases will not be advertised for 
competitive bid.



Sec.  162.011  How does a prospective lessee identify and contact 
individual Indian landowners to negotiate a lease?

    (a) Prospective lessees may submit a written request to us to obtain 
the following information. The request must specify that it is for the 
purpose of negotiating a lease:
    (1) Names and addresses of the individual Indian landowners or their 
representatives;
    (2) Information on the location of the parcel; and
    (3) The percentage of undivided interest owned by each individual 
Indian landowner.
    (b) We may assist prospective lessees in contacting the individual 
Indian landowners or their representatives for the purpose of 
negotiating a lease, upon request.
    (c) We will assist individual Indian landowners in lease 
negotiations, upon their request.



Sec.  162.012  What are the consent requirements for a lease?

    (a) For fractionated tracts:
    (1) Except in Alaska, the owners of the following percentage of 
undivided trust or restricted interests in a fractionated tract of 
Indian land must consent to a lease of that tract:

------------------------------------------------------------------------
                                            Then the required percentage
 If the number of owners of the undivided     of the undivided trust or
 trust or restricted interest in the tract  restricted interest is . . .
                 is . . .
------------------------------------------------------------------------
(i) One to five,..........................  90 percent;
(ii) Six to 10,...........................  80 percent;
(iii) 11 to 19,...........................  60 percent;
(iv) 20 or more,..........................  Over 50 percent.
------------------------------------------------------------------------

    (2) Leases in Alaska require consent of all of the Indian landowners 
in the tract.
    (3) If the prospective lessee is also an Indian landowner, his or 
her consent will be included in the percentages in paragraphs (a)(1) and 
(2) of this section.
    (4) Where owners of the applicable percentages in paragraph (a)(1) 
of this section consent to a lease document:
    (i) That lease document binds all non-consenting owners to the same 
extent as if those owners also consented to the lease document; and
    (ii) That lease document will not bind a non-consenting Indian 
tribe, except with respect to the tribally owned fractional interest, 
and the non-consenting Indian tribe will not be treated as a party to 
the lease. Nothing in this paragraph affects the sovereignty or 
sovereign immunity of the Indian tribe.
    (5) We will determine the number of owners of, and undivided 
interests in, a fractionated tract of Indian land, for the purposes of 
calculating the percentages in paragraph (a)(1) of this section based on 
our records on the date on which the lease is submitted to us for 
approval.
    (b) Tribal land subject to a tribal land assignment may only be 
leased with the consent of the tribe.



Sec.  162.013  Who is authorized to consent to a lease?

    (a) Indian tribes, adult Indian landowners, and emancipated minors, 
may consent to a lease of their land, including undivided interests in 
fractionated tracts.

[[Page 480]]

    (b) The following individuals or entities may consent on behalf of 
an individual Indian landowner:
    (1) An adult with legal custody acting on behalf of his or her minor 
children;
    (2) A guardian, conservator, or other fiduciary appointed by a court 
of competent jurisdiction to act on behalf of an individual Indian 
landowner;
    (3) Any person who is authorized to practice before the Department 
of the Interior under 43 CFR 1.3(b) and has been retained by the Indian 
landowner for this purpose;
    (4) BIA, under the circumstances in paragraph (c) of this section; 
or
    (5) An adult or legal entity who has been given a written power of 
attorney that:
    (i) Meets all of the formal requirements of any applicable law under 
Sec.  162.014;
    (ii) Identifies the attorney-in-fact; and
    (iii) Describes the scope of the powers granted, to include leasing 
land, and any limits on those powers.
    (c) BIA may give written consent to a lease, and that consent must 
be counted in the percentage ownership described in Sec.  162.012, on 
behalf of:
    (1) The individual owner if the owner is deceased and the heirs to, 
or devisees of, the interest of the deceased owner have not been 
determined;
    (2) An individual whose whereabouts are unknown to us, after we make 
a reasonable attempt to locate the individual;
    (3) An individual who is found to be non compos mentis or determined 
to be an adult in need of assistance who does not have a guardian duly 
appointed by a court of competent jurisdiction, or an individual under 
legal disability as defined in part 115 of this chapter;
    (4) An orphaned minor who does not have a guardian duly appointed by 
a court of competent jurisdiction;
    (5) An individual who has given us a written power of attorney to 
lease their land; and
    (6) The individual Indian landowners of a fractionated tract where:
    (i) We have given the Indian landowners written notice of our intent 
to consent to a lease on their behalf;
    (ii) The Indian landowners are unable to agree upon a lease during a 
3 month negotiation period following the notice; and
    (iii) The land is not being used by an Indian landowner under Sec.  
162.005(b)(1).

                          Lease Administration



Sec.  162.014  What laws will apply to leases approved under this part?

    (a) In addition to the regulations in this part, leases approved 
under this part:
    (1) Are subject to applicable Federal laws and any specific Federal 
statutory requirements that are not incorporated in this part;
    (2) Are subject to tribal law, subject to paragraph (b) of this 
section; and
    (3) Are not subject to State law or the law of a political 
subdivision thereof except that:
    (i) State law or the law of a political subdivision thereof may 
apply in the specific areas and circumstances in Indian country where 
the Indian tribe with jurisdiction has made it expressly applicable;
    (ii) State law may apply in the specific areas and circumstances in 
Indian country where Congress has made it expressly applicable; and
    (iii) State law may apply where a Federal court has expressly 
applied State law to a specific area or circumstance in Indian country 
in the absence of Federal or tribal law.
    (b) Tribal laws generally apply to land under the jurisdiction of 
the tribe enacting the laws, except to the extent that those tribal laws 
are inconsistent with these regulations or other applicable Federal law. 
However, these regulations may be superseded or modified by tribal laws, 
as long as:
    (1) The tribe has notified us of the superseding or modifying effect 
of the tribal laws;
    (2) The superseding or modifying of the regulation would not violate 
a Federal statute or judicial decision, or conflict with our general 
trust responsibility under Federal law; and
    (3) The superseding or modifying of the regulation applies only to 
tribal land.
    (c) Unless prohibited by Federal law, the parties to a lease may 
subject that

[[Page 481]]

lease to State or local law in the absence of Federal or tribal law, if:
    (1) The lease includes a provision to this effect; and
    (2) The Indian landowners expressly agree to the application of 
State or local law.
    (d) An agreement under paragraph (c) of this section does not waive 
a tribe's sovereign immunity unless the tribe expressly states its 
intention to waive sovereign immunity in the lease of tribal land.



Sec.  162.015  May a lease contain a preference consistent 
with tribal law for employment of tribal members?

    A lease of Indian land may include a provision, consistent with 
tribal law, requiring the lessee to give a preference to qualified 
tribal members, based on their political affiliation with the tribe.



Sec.  162.016  Will BIA comply with tribal laws in making lease decisions?

    Unless contrary to Federal law, BIA will comply with tribal laws in 
making decisions regarding leases, including tribal laws regulating 
activities on leased land under tribal jurisdiction, including, but not 
limited to, tribal laws relating to land use, environmental protection, 
and historic or cultural preservation.



Sec.  162.017  What taxes apply to leases approved under this part?

    (a) Subject only to applicable Federal law, permanent improvements 
on the leased land, without regard to ownership of those improvements, 
are not subject to any fee, tax, assessment, levy, or other charge 
imposed by any State or political subdivision of a State. Improvements 
may be subject to taxation by the Indian tribe with jurisdiction.
    (b) Subject only to applicable Federal law, activities under a lease 
conducted on the leased premises are not subject to any fee, tax, 
assessment, levy, or other charge (e.g., business use, privilege, public 
utility, excise, gross revenue taxes) imposed by any State or political 
subdivision of a State. Activities may be subject to taxation by the 
Indian tribe with jurisdiction.
    (c) Subject only to applicable Federal law, the leasehold or 
possessory interest is not subject to any fee, tax, assessment, levy, or 
other charge imposed by any State or political subdivision of a State. 
Leasehold or possessory interests may be subject to taxation by the 
Indian tribe with jurisdiction.



Sec.  162.018  May tribes administer this part on BIA's behalf?

    A tribe or tribal organization may contract or compact under the 
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f 
et seq.) to administer any portion of this part that is not an approval 
or disapproval of a lease document, waiver of a requirement for lease 
approval (including but not limited to waivers of fair market rental and 
valuation, bonding, and insurance), cancellation of a lease, or an 
appeal.



Sec.  162.019  May a lease address access to the leased premises 
by roads or other infrastructure?

    A lease may address access to the leased premises by roads or other 
infrastructure, as long as the access complies with applicable statutory 
and regulatory requirements, including 25 CFR part 169. Roads or other 
infrastructure within the leased premises do not require compliance with 
25 CFR part 169 during the term of the lease, unless otherwise stated in 
the lease.



Sec.  162.020  May a lease combine tracts with different Indian landowners?

    (a) We may approve a lease that combines multiple tracts of Indian 
land into a unit, if we determine that unitization is:
    (1) In the Indian landowners' best interest; and
    (2) Consistent with the efficient administration of the land.
    (b) For a lease that covers multiple tracts, the minimum consent 
requirements apply to each tract separately.
    (c) Unless the lease provides otherwise, the rent or other 
compensation will be prorated in proportion to the acreage each tract 
contributes to the entire lease. Once prorated per tract,

[[Page 482]]

the rent will be distributed to the owners of each tract based upon 
their respective percentage interest in that particular tract.



Sec.  162.021  What are BIA's responsibilities in approving leases?

    (a) We will work to provide assistance to Indian landowners in 
leasing their land, either through negotiations or advertisement.
    (b) We will promote tribal control and self-determination over 
tribal land and other land under the tribe's jurisdiction, including 
through contracts and self-governance compacts entered into under the 
Indian Self-Determination and Education Assistance Act, as amended, 25 
U.S.C. 450f et. seq.
    (c) We will promptly respond to requests for BIA approval of leases, 
as specified in Sec. Sec.  162.340, 162.440, 162.530, and 162.565.
    (d) We will work to ensure that the use of the land is consistent 
with the Indian landowners' wishes and applicable tribal law.



Sec.  162.022  What are BIA's responsibilities in administering 
and enforcing leases?

    (a) Upon written notification from an Indian landowner that the 
lessee has failed to comply with the terms and conditions of the lease, 
we will promptly take appropriate action, as specified in Sec. Sec.  
162.364, 162.464, and 162.589. Nothing in this part prevents an Indian 
landowner from exercising remedies available to the Indian landowners 
under the lease or applicable law.
    (b) We will promptly respond to requests for BIA approval of 
amendments, assignments, leasehold mortgages, and subleases, as 
specified in subparts C, D, and E.
    (c) We will respond to Indian landowners' concerns regarding the 
management of their land.
    (d) We will take emergency action as needed to preserve the value of 
the land under Sec.  162.024.



Sec.  162.023  What if an individual or entity takes possession of 
or uses Indian land without an approved lease or other proper authorization?

    If an individual or entity takes possession of, or uses, Indian land 
without a lease and a lease is required, the unauthorized possession or 
use is a trespass. We may take action to recover possession, including 
eviction, on behalf of the Indian landowners and pursue any additional 
remedies available under applicable law. The Indian landowners may 
pursue any available remedies under applicable law.



Sec.  162.024  May BIA take emergency action if Indian land is threatened?

    (a) We may take appropriate emergency action if there is a natural 
disaster or if an individual or entity causes or threatens to cause 
immediate and significant harm to Indian land. Emergency action may 
include judicial action seeking immediate cessation of the activity 
resulting in or threatening the harm.
    (b) We will make reasonable efforts to notify the individual Indian 
landowners before and after taking emergency action. In all cases, we 
will notify the Indian landowners after taking emergency action by 
actual or constructive notice. We will provide written notification of 
our action to the Indian tribe exercising jurisdiction over the Indian 
land before and after taking emergency action.



Sec.  162.025  May decisions under this part be appealed?

    Appeals from BIA decisions under this part may be taken under part 2 
of this chapter, except for deemed approvals and as otherwise provided 
in this part. For purposes of appeals from BIA decisions under this 
part, ``interested party'' is defined as any person whose own direct 
economic interest is adversely affected by an action or decision. Our 
decision to disapprove a lease may be appealed only by an Indian 
landowner. Our decision to disapprove any other lease document may be 
appealed only by the Indian landowners or the lessee.



Sec.  162.026  Who can answer questions about leasing?

    An Indian landowner or prospective lessee may contact the local BIA 
realty office (or of any tribe acting on behalf of BIA under Sec.  
162.018) with jurisdiction over the land for answers to questions about 
the leasing process.

[[Page 483]]



Sec.  162.027  What documentation may BIA require in approving, 
administering, and enforcing leases?

    (a) We may require that the parties provide any pertinent 
environmental and technical records, reports, and other information 
(e.g., records of lease payments), related to approval of lease 
documents and enforcement of leases.
    (b) We will adopt environmental assessments and environmental impact 
statements prepared by another Federal agency, Indian tribe, entity, or 
person under 43 CFR 46.320 and 42 CFR 1506.3, including those prepared 
under 25 U.S.C. 4115 and 25 CFR part 1000, but may require a supplement. 
We will use any reasonable evidence that another Federal agency has 
accepted the environmental report, including but not limited to, letters 
of approval or acceptance.
    (c) Upon our request, the parties must make appropriate records, 
reports, or information available for our inspection and duplication. We 
will keep confidential any information that is marked confidential or 
proprietary and will exempt it from public release to the extent allowed 
by law and in accordance with 43 CFR part 2. We may, at our discretion, 
treat a lessee's failure to cooperate with such request, provide data, 
or grant access to information or records as a lease violation.



Sec.  162.028  How may an Indian tribe obtain information about leases 
on its land?

    Upon request of the Indian tribe with jurisdiction, BIA will 
promptly provide information on the status of leases on tribal land, 
without requiring a Freedom of Information Act request.



Sec.  162.029  How does BIA provide notice to the parties to a lease?

    (a) When this part requires us to notify the parties of the status 
of our review of a lease document (including but not limited to, 
providing notice to the parties of the date of receipt of a lease 
document, informing the parties of the need for additional review time, 
and informing the parties that a lease proposal package is not 
complete):
    (1) For leases of tribal land, we will notify the lessee and the 
tribe by mail; and
    (2) For leases of individually owned Indian land, we will notify the 
lessee by mail and, where feasible, the individual Indian landowners 
either by constructive notice or by mail.
    (b) When this part requires us to notify the parties of our 
determination to approve or disapprove a lease document, and to provide 
any right of appeal:
    (1) For leases of tribal land, we will notify the lessee and the 
tribe by mail; and
    (2) For leases of individually owned Indian land, we will notify the 
lessee by mail and the individual Indian landowners either by 
constructive notice or by mail.



                      Subpart B_Agricultural Leases



Sec.  162.101  What key terms do I need to know for this subpart?

    For purposes of this subpart:
    Adult means an individual who is 18 years of age or older.
    Agricultural land means Indian land or Government land suited or 
used for the production of crops, livestock or other agricultural 
products, or Indian land suited or used for a business that supports the 
surrounding agricultural community.
    Agricultural lease means a lease of agricultural land for farming 
and/or grazing purposes.
    AIARMA means the American Indian Agricultural Resources Management 
Act of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), as 
amended on November 2, 1994 (108 Stat. 4572).
    Assignment means an agreement between a tenant and an assignee, 
whereby the assignee acquires all of the tenant's rights, and assumes 
all of the tenant's obligations, under a lease.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior and any tribe acting on behalf of BIA under Sec.  162.109 of 
this part.
    Bond means security for the performance of certain lease 
obligations, as furnished by the tenant, or a guaranty of such 
performance as furnished by a third-party surety.
    Day means a calendar day.
    Emancipated minor means a person under 18 years of age who is 
married or

[[Page 484]]

who is determined by a court of competent jurisdiction to be legally 
able to care for himself or herself.
    Fair annual rental means the amount of rental income that a leased 
tract of Indian land would most probably command in an open and 
competitive market.
    Fee interest means an interest in land that is owned in unrestricted 
fee status, and is thus freely alienable by the fee owner.
    Fractionated tract means a tract of Indian land owned in common by 
Indian landowners and/or fee owners holding undivided interests therein.
    Government land means any tract, or interest therein, in which the 
surface estate is owned by the United States and administered by BIA, 
not including tribal land that has been reserved for administrative 
purposes.
    Immediate family means a spouse, brother, sister, lineal ancestor, 
lineal descendant, or member of the household of an individual Indian 
landowner.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land in trust or restricted status.
    Individually-owned land means any tract, or interest therein, in 
which the surface estate is owned by an individual Indian in trust or 
restricted status.
    Interest, when used with respect to Indian land, means an ownership 
right to the surface estate of Indian land that is unlimited or 
uncertain in duration, including a life estate.
    Lease means a written agreement between Indian landowners and a 
tenant or lessee, whereby the tenant or lessee is granted a right to 
possession of Indian land, for a specified purpose and duration. Unless 
otherwise provided, the use of this term will also include permits, as 
appropriate.
    Lessee means tenant, as defined in this section.
    Life estate means an interest in Indian land that is limited, in 
duration, to the life of the life tenant holding the interest, or the 
life of some other person.
    Majority interest means more than 50% of the trust or restricted 
interests in a tract of Indian land.
    Minor means an individual who is less than 18 years of age.
    Mortgage means a mortgage, deed of trust or other instrument that 
pledges a tenant's leasehold interest as security for a debt or other 
obligation owed by the tenant to a lender or other mortgagee.
    NEPA means the National Environmental Policy Act (42 U.S.C. Sec.  
4321, et seq.)
    Non compos mentis means a person who has been legally determined by 
a court of competent jurisdiction to be of unsound mind or incapable of 
managing his or her own affairs.
    Permit means a written agreement between Indian landowners and the 
applicant for the permit, also referred to as a permittee, whereby the 
permittee is granted a revocable privilege to use Indian land or 
Government land, for a specified purpose.
    Remainder means an interest in Indian land that is created at the 
same time as a life estate, for the use and enjoyment of its owner after 
the life estate terminates.
    Restricted land or 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.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Sublease means a written agreement by which the tenant grants to an 
individual or entity a right to possession no greater than that held by 
the tenant under the lease.
    Surety means one who guarantees the performance of another.
    Tenant means a person or entity who has acquired a legal right of 
possession to Indian land by a lease or permit under this part.
    Trespass means an unauthorized possession, occupancy or use of 
Indian land.
    Tribal land means the surface estate of land or any interest therein 
held by the United States in trust for a tribe,

[[Page 485]]

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 BIA 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. Sec.  476).
    Tribal laws means the body of law that governs land and activities 
under the jurisdiction of a tribe, including ordinances and other 
enactments by the tribe, tribal court rulings, and tribal common law.
    Trust land means any tract, or interest therein, that the United 
States holds in trust status for the benefit of a tribe or individual 
Indian.
    Undivided interest means a fractional share in the surface estate of 
Indian land, where the surface estate is owned in common with other 
Indian landowners or fee owners.
    Us/We/Our means the Secretary or BIA and any tribe acting on behalf 
of the Secretary or BIA under Sec.  162.110 of this part.
    USPAP means the Uniform Standards of Professional Appraisal 
Practice, as promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012]



Sec.  162.105  Can tracts with different Indian landowners be unitized 
for agricultural leasing purposes?

    (a) An agricultural lease negotiated by Indian landowners may cover 
more than one tract of Indian land, but the minimum consent requirements 
for leases granted by Indian landowners under subparts B through D of 
this part will apply to each tract separately. We may combine multiple 
tracts into a unit for leases negotiated or advertised by us, if we 
determine that unitization is in the Indian landowners' best interests 
and consistent with the efficient administration of the land.
    (b) Unless otherwise provided in the agricultural lease, the rent or 
other consideration derived from a unitized agricultural lease will be 
distributed based on the size of each landowner's interest in proportion 
to the acreage within the entire unit.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012; 78 
FR 19100, Mar. 29, 2013]



Sec.  162.106  What will BIA do if possession is taken without an approved 
agricultural lease or other proper authorization?

    (a) If an agricultural lease is required, and possession is taken 
without an agricultural lease by a party other than an Indian landowner 
of the tract, we will treat the unauthorized use as a trespass. Unless 
we have reason to believe that the party in possession is engaged in 
negotiations with the Indian landowners to obtain an agricultural lease, 
we will take action to recover possession on behalf of the Indian 
landowners, and pursue any additional remedies available under 
applicable law.
    (b) Where a trespass involves Indian agricultural land, we will also 
assess civil penalties and costs under part 166, subpart I, of this 
chapter.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012; 78 
FR 19100, Mar. 29, 2013]



Sec.  162.107  What are BIA's objectives in granting 
or approving agricultural leases?

    We will assist Indian landowners in leasing their land for 
agricultural purposes. For the purposes of Sec. Sec.  162.102 through 
162.256:
    (a) We will assist Indian landowners in leasing their land, either 
through negotiations or advertisement. In reviewing a negotiated lease 
for approval, we will defer to the landowners' determination that the 
lease is in their best interest, to the maximum extent possible. In 
granting a lease on the landowners' behalf, we will obtain a fair annual 
rental and attempt to ensure (through proper notice) that the use of the 
land is consistent with the landowners' wishes. We will also recognize 
the rights of Indian landowners to

[[Page 486]]

use their own land, so long as their Indian co-owners are in agreement 
and the value of the land is preserved.
    (b) We will recognize the governing authority of the tribe having 
jurisdiction over the land to be leased, preparing and advertising 
leases in accordance with applicable tribal laws and policies. We will 
promote tribal control and self-determination over tribal land and other 
land under the tribe's jurisdiction, through contracts and self-
governance compacts entered into under the Indian Self-Determination and 
Education Assistance Act, as amended, 25 U.S.C. Sec.  450f et seq.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012]



Sec.  162.108  What are BIA's responsibilities in administering 
and enforcing agricultural leases?

    (a) We will ensure that tenants meet their payment obligations to 
Indian landowners, through the collection of rent on behalf of the 
landowners and the prompt initiation of appropriate collection and 
enforcement actions. We will also assist landowners in the enforcement 
of payment obligations that run directly to them, and in the exercise of 
any negotiated remedies that apply in addition to specific remedies made 
available to us under these or other regulations.
    (b) We will ensure that tenants comply with the operating 
requirements in their agricultural leases, through appropriate 
inspections and enforcement actions as needed to protect the interests 
of the Indian landowners and respond to concerns expressed by them. We 
will take immediate action to recover possession from trespassers 
operating without an agricultural lease, and take other emergency action 
as needed to preserve the value of the land.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012]



Sec.  162.109  What laws, other than these regulations, will apply to 
agricultural leases granted or approved under this part?

    (a) Agricultural leases granted or approved under this part will be 
subject to federal laws of general applicability and any specific 
federal statutory requirements that are not incorporated in these 
regulations.
    (b) Tribal laws generally apply to land under the jurisdiction of 
the tribe enacting such laws, except to the extent that those tribal 
laws are inconsistent with these regulations or other applicable federal 
law. These regulations may be superseded or modified by tribal laws, 
however, so long as:
    (1) The tribal laws are consistent with the enacting tribe's 
governing documents;
    (2) The tribe has notified us of the superseding or modifying effect 
of the tribal laws;
    (3) The superseding or modifying of the regulation would not violate 
a federal statute or judicial decision, or conflict with our general 
trust responsibility under federal law; and
    (4) The superseding or modifying of the regulation applies only to 
tribal land.
    (c) State law may apply to agricultural lease disputes or define the 
remedies available to the Indian landowners in the event of an 
agricultural lease violation by the tenant, if the agricultural lease so 
provides and the Indian landowners have expressly agreed to the 
application of state law.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012]



Sec.  162.110  Can these regulations be administered by tribes, 
on the Secretary's or on BIA's behalf?

    Except insofar as these regulations provide for the granting, 
approval, or enforcement of agricultural leases and permits, the 
provisions in these regulations that authorize or require us to take 
certain actions will extend to any tribe or tribal organization that is 
administering specific programs or providing specific services under a 
contract or self-governance compact entered into under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. Sec.  450f et 
seq.).

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012]



Sec.  162.111  Who owns the records associated with this subpart?

    (a) Records associated with this subpart are the property of the 
United States if they:

[[Page 487]]

    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under 25 U.S.C. Sec.  450f et seq., 
including the operation of a trust program; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.
    (b) Records associated with this subpart not covered by paragraph 
(a) of this section that are made or received by a tribe or tribal 
organization in the conduct of business with the Department of the 
Interior under this subpart are the property of the tribe.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012]



Sec.  162.112  How must records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have records identified in Sec.  162.111(a) must preserve the 
records in accordance with approved Departmental records retention 
procedures under the Federal Records Act, 44 U.S.C. Chapters 29, 31 and 
33. These records and related records management practices and 
safeguards required under the Federal Records Act are subject to 
inspection by the Secretary and the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec.  162.111(b) for the period of time authorized by the 
Archivist of the United States for similar Department of the Interior 
records in accordance with 44 U.S.C. Chapter 33. If a tribe or tribal 
organization does not preserve records associated with its conduct of 
business with the Department of the Interior under this part, it may 
prevent the tribe or tribal organization from being able to adequately 
document essential transactions or furnish information necessary to 
protect its legal and financial rights or those of persons directly 
affected by its activities.



Sec.  162.113  May decisions under this subpart be appealed?

    Yes. Except where otherwise provided in this subpart, appeals from 
decisions by the BIA under this subpart may be taken pursuant to 25 CFR 
subpart 2.

[66 FR 7109, Jan. 22, 2001, as amended at 77 FR 72474, Dec. 5, 2012]

                           General Provisions



Sec.  162.200  What types of leases are covered by this subpart?

    The regulations in this subpart apply to agricultural leases, as 
defined in this part. The regulations in this subpart may also apply to 
business leases on agricultural land, where appropriate.



Sec.  162.201  Must agricultural land be managed in accordance 
with a tribe's agricultural resource management plan?

    (a) Agricultural land under the jurisdiction of a tribe must be 
managed in accordance with the goals and objectives in any agricultural 
resource management plan developed by the tribe, or by us in close 
consultation with the tribe, under AIARMA.
    (b) A ten-year agricultural resource management and monitoring plan 
must be developed through public meetings and completed within three 
years of the initiation of the planning activity. Such a plan must be 
developed through public meetings, and be based on the public meeting 
records and existing survey documents, reports, and other research from 
federal agencies, tribal community colleges, and land grant 
universities. When completed, the plan must:
    (1) Determine available agricultural resources;
    (2) Identify specific tribal agricultural resource goals and 
objectives;
    (3) Establish management objectives for the resources;
    (4) Define critical values of the Indian tribe and its members and 
identify holistic management objectives; and
    (5) Identify actions to be taken to reach established objectives.
    (c) Where the regulations in this subpart are inconsistent with a 
tribe's agricultural resource management plan, we may waive the 
regulations under part 1 of this title, so long as the waiver does not 
violate a federal statute or judicial decision or conflict with our

[[Page 488]]

general trust responsibility under federal law.



Sec.  162.202  How will tribal laws be enforced on agricultural land?

    (a) Unless prohibited by federal law, we will recognize and comply 
with tribal laws regulating activities on agricultural land, including 
tribal laws relating to land use, environmental protection, and historic 
or cultural preservation.
    (b) While the tribe is primarily responsible for enforcing tribal 
laws pertaining to agricultural land, we will:
    (1) Assist in the enforcement of tribal laws;
    (2) Provide notice of tribal laws to persons or entities undertaking 
activities on agricultural land, under Sec.  162.204(c) of this subpart; 
and
    (3) Require appropriate federal officials to appear in tribal forums 
when requested by the tribe, so long as such an appearance would not:
    (i) Be inconsistent with the restrictions on employee testimony set 
forth at 43 CFR Part 2, Subpart E;
    (ii) Constitute a waiver of the sovereign immunity of the United 
States; or
    (iii) Authorize or result in a review of our actions by a tribal 
court.
    (c) Where the regulations in this subpart are inconsistent with a 
tribal law, but such regulations cannot be superseded or modified by the 
tribal law under Sec.  162.109 of this part, we may waive the 
regulations under part 1 of this chapter, so long as the waiver does not 
violate a federal statute or judicial decision or conflict with our 
general trust responsibility under federal law.



Sec.  162.203  When can the regulations in this subpart be superseded 
or modified by tribal laws and leasing policies?

    (a) The regulations in this subpart may be superseded or modified by 
tribal laws, under the circumstances described in Sec.  162.109(b) of 
this part.
    (b) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for the leasing of tribal and 
individually-owned agricultural land, we will:
    (1) Waive the general prohibition against tenant preferences in 
leases advertised for bid under Sec.  162.212 of this subpart, by 
allowing prospective Indian tenants to match the highest responsible bid 
(unless the tribal leasing policy specifies some other manner in which 
the preference must be afforded);
    (2) Waive the requirement that a tenant post a bond under Sec.  
162.234 of this subpart;
    (3) Modify the requirement that a tenant post a bond in a form 
described in Sec.  162.235 of this subpart;
    (4) Approve leases of tribal land at rates established by the tribe, 
as provided in Sec.  162.222(b) of this subpart.
    (c) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for the leasing of ``highly fractionated 
undivided heirship lands'' (as defined in the tribal leasing policy), we 
may waive or modify the three-month notice requirement in Sec.  
162.209(b) of this subpart, so long as:
    (1) The tribal law or leasing policy adopts an alternative plan for 
providing notice to Indian landowners, before an agricultural lease is 
granted by us on their behalf; and
    (2) A waiver or modification of the three-month notice requirement 
is needed to prevent waste, reduce idle land acreage, and ensure lease 
income to the Indian landowners.
    (d) Tribal leasing policies of the type described in paragraphs (b) 
through (c) of this section will not apply to individually-owned land 
that has been made exempt from such laws or policies under Sec.  162.205 
of this subpart.



Sec.  162.204  Must notice of applicable tribal laws 
and leasing policies be provided?

    (a) A tribe must provide us with an official copy of any tribal law 
or leasing policy that supersedes or modifies these regulations under 
Sec. Sec.  162.109 or 162.203 of this part. If the tribe has not already 
done so, we will provide notice of such a tribal law or leasing policy 
to affected Indian landowners and persons or entities undertaking 
activities on agricultural land. Such notice will be provided in the 
manner described in paragraphs (b) through (c) of this section.
    (b) We will provide notice to Indian landowners, as to the 
superseding or modifying effect of any tribal leasing policy and their 
right to exempt their

[[Page 489]]

land from such a policy. Such notice will be provided by:
    (1) Written notice included in a notice of our intent to lease the 
land, issued under Sec.  162.209(b) of this subpart; or
    (2) Public notice posted at the tribal community building or the 
United States Post Office, or published in the local newspaper that 
serves the area in which the Indian owners' land is located, at the time 
the tribal leasing policy is adopted.
    (c) We will provide notice to persons or entities undertaking 
activities on agricultural land, as to the general applicability of 
tribal laws and the superseding or modifying effect of particular tribal 
laws and leasing policies. Such notice will be provided by:
    (1) Written notice included in advertisements for lease, issued 
under Sec.  162.212 of this subpart; or
    (2) Public notice posted at the tribal community building or the 
United States Post Office, or published in a local newspaper of general 
circulation, at the time the tribal law is enacted or the leasing policy 
adopted.



Sec.  162.205  Can individual Indian landowners exempt their agricultural land 
from certain tribal leasing policies?

    (a) Individual Indian landowners may exempt their agricultural land 
from the application of a tribal leasing policy of a type described in 
Sec.  162.203(b) through (c) of this subpart, if the Indian owners of at 
least 50% of the trust or restricted interests in the land submit a 
written objection to us before a lease is granted or approved.
    (b) Upon our receipt of a written objection from the Indian 
landowners that satisfies the requirements of paragraph (a) of this 
section, we will notify the tribe that the owners' land has been 
exempted from a specific tribal leasing policy. If the exempted land is 
part of a unitized lease tract, such land will be removed from the unit 
and leased separately, if appropriate.
    (c) The procedures described in paragraphs (a) and (b) of this 
section will also apply to withdrawing an approved exemption.

                          How to Obtain a Lease



Sec.  162.206  Can the terms of an agricultural lease be negotiated 
with the Indian landowners?

    An agricultural lease may be obtained through negotiation. We will 
assist prospective tenants in contacting the Indian landowners or their 
representatives for the purpose of negotiating a lease, and we will 
assist the landowners in those negotiations upon request.



Sec.  162.207  When can the Indian landowners grant an agricultural lease?

    (a) Tribes grant leases of tribally-owned agricultural land, 
including any tribally-owned undivided interest(s) in a fractionated 
tract, subject to our approval. Where tribal land is subject to a land 
assignment made to a tribal member or some other individual under tribal 
law or custom, the individual and the tribe must both grant the lease, 
subject to our approval.
    (b) Adult Indian owners, or emancipated minors, may grant 
agricultural leases of their land, including undivided interests in 
fractionated tracts, subject to our approval.
    (c) An agricultural lease of a fractionated tract may be granted by 
the owners of a majority interest in the tract, subject to our approval. 
Although prior notice to non-consenting individual Indian landowners is 
generally not needed prior to our approval of such a lease, a right of 
first refusal must be offered to any non-consenting Indian landowner who 
is using the entire lease tract at the time the lease is entered into by 
the owners of a majority interest. Where the owners of a majority 
interest grant such a lease on behalf of all of the Indian owners of a 
fractionated tract, the non-consenting Indian landowners must receive a 
fair annual rental.
    (d) As part of the negotiation of a lease, Indian landowners may 
advertise their land to identify potential tenants with whom to 
negotiate.

[[Page 490]]



Sec.  162.208  Who can represent the Indian landowners in negotiating 
or granting an agricultural lease?

    The following individuals or entities may represent an individual 
Indian landowner:
    (a) An adult with custody acting on behalf of his or her minor 
children;
    (b) A guardian, conservator, or other fiduciary appointed by a court 
of competent jurisdiction to act on behalf of an individual Indian 
landowner;
    (c) An adult or legal entity who has been given a written power of 
attorney that:
    (1) Meets all of the formal requirements of any applicable tribal or 
state law;
    (2) Identifies the attorney-in-fact and the land to be leased; and
    (3) Describes the scope of the power granted and any limits thereon.



Sec.  162.209  When can BIA grant an agricultural lease on behalf of 
an Indian landowner?

    (a) We may grant an agricultural lease on behalf of:
    (1) Individuals who are found to be non compos mentis by a court of 
competent jurisdiction;
    (2) Orphaned minors;
    (3) The undetermined heirs and devisees of deceased Indian owners;
    (4) Individuals who have given us a written power of attorney to 
lease their land; and
    (5) Individuals whose whereabouts are unknown to us, after 
reasonable attempts are made to locate such individuals; and
    (6) The individual Indian landowners of fractionated Indian land, 
when necessary to protect the interests of the individual Indian 
landowners.
    (b) We may grant an agricultural lease on behalf of all of the 
individual Indian owners of a fractionated tract, where:
    (1) We have provided the Indian landowners with written notice of 
our intent to grant a lease on their behalf, but the Indian landowners 
are unable to agree upon a lease during a three-month negotiation period 
immediately following such notice, or any other notice period 
established by a tribe under Sec.  162.203(c) of this subpart; and
    (2) The land is not being used by an Indian landowner under Sec.  
162.104(b) of this part.



Sec.  162.210  When can BIA grant a permit covering agricultural land?

    (a) We may grant a permit covering agricultural land in the same 
manner as we would grant an agricultural lease under Sec.  162.209 of 
this part. We may also grant a permit on behalf of individual Indian 
landowners, without prior notice, if it is impractical to provide notice 
to the owners and no substantial injury to the land will occur.
    (b) We may grant a permit covering agricultural land, but not an 
agricultural lease, on government land.
    (c) We will not grant a permit on tribal agricultural land, but a 
tribe may grant a permit, subject to our approval, in the same manner as 
it would grant a lease under Sec.  162.207(a) of this subpart.



Sec.  162.211  What type of valuation or evaluation methods will be applied 
in estimating the fair annual rental of Indian land?

    (a) To support the Indian landowners in their negotiations, and to 
assist in our consideration of whether an agricultural lease is in the 
Indian landowners' best interest, we must determine the fair annual 
rental of the land prior to our grant or approval of the lease, unless 
the land may be leased at less than a fair annual rental under Sec.  
162.222(b) through (c) of this subpart.
    (b) A fair annual rental may be determined by competitive bidding, 
appraisal, or any other appropriate valuation method. Where an appraisal 
or other valuation is needed to determine the fair annual rental, the 
appraisal or valuation must be prepared in accordance with USPAP.



Sec.  162.212  When will the BIA advertise Indian land for agricultural leases?

    (a) We will generally advertise Indian land for agricultural 
leasing:
    (1) At the request of the Indian landowners; or
    (2) Before we grant a lease under Sec.  162.209(b) of this subpart.

[[Page 491]]

    (b) Advertisements will provide prospective tenants with notice of 
any superseding tribal laws and leasing policies that have been made 
applicable to the land under Sec. Sec.  162.109 and 162.203 of this 
part, along with certain standard terms and conditions to be included in 
the lease. Advertisements will prohibit tenant preferences, and bidders 
at lease sales will not be afforded any preference, unless a preference 
in favor of individual Indians is required by a superseding tribal law 
or leasing policy.
    (c) Advertisements will require sealed bids, and they may also 
provide for further competitive bidding among the prospective tenants at 
the conclusion of the bid opening. Competitive bidding should be 
supported, at a minimum, by a market study or rent survey that is 
consistent with USPAP.



Sec.  162.213  What supporting documents must be provided prior to BIA's grant 
or approval of an agricultural lease?

    (a) If the tenant is a corporation, partnership or other legal 
entity, it must provide organizational and financial documents, as 
needed to show that the lease will be enforceable against the tenant and 
the tenant will be able to perform all of its lease obligations.
    (b) Where a bond is required under Sec.  162.234 of this subpart, 
the bond must be furnished before we grant or approve the lease.
    (c) The tenant must provide environmental and archaeological 
reports, surveys, and site assessments, as needed to document compliance 
with NEPA and other applicable federal and tribal land use requirements.



Sec.  162.214  How and when will BIA decide whether to approve 
an agricultural lease?

    (a) Before we approve a lease, we must determine in writing that the 
lease is in the best interest of the Indian landowners. In making that 
determination, we will:
    (1) Review the lease and supporting documents;
    (2) Identify potential environmental impacts and ensure compliance 
with all applicable environmental laws, land use laws, and ordinances 
(including preparation of the appropriate review documents under NEPA);
    (3) Assure ourselves that adequate consideration has been given, as 
appropriate, to:
    (i) The relationship between the use of the leased premises and the 
use of neighboring lands;
    (ii) The height, quality, and safety of any structures or other 
facilities to be constructed on the leased premises;
    (iii) The availability of police and fire protection, utilities, and 
other essential community services;
    (iv) The availability of judicial forums for all criminal and civil 
matters arising on the leased premises; and
    (v) The effect on the environment of the proposed land use.
    (4) Require any lease modifications or mitigation measures that are 
needed to satisfy any requirements of this subpart, or any other federal 
or tribal land use requirements.
    (b) Where an agricultural lease is in a form that has previously 
been accepted or approved by us, and all of the documents needed to 
support the findings required by paragraph (a) of this section have been 
received, we will decide whether to approve the lease within 30 days of 
the date of our receipt of the lease and supporting documents. If we 
decide to approve or disapprove a lease, we will notify the parties 
immediately and advise them of their right to appeal the decision under 
part 2 of this chapter. Copies of agricultural leases that have been 
approved will be provided to the tenant, and made available to the 
Indian landowners upon request.



Sec.  162.215  When will an agricultural lease be effective?

    Unless otherwise provided in the lease, an agricultural lease will 
be effective on the date on which the lease is approved by us. An 
agricultural lease may be made effective on some past or future date, by 
agreement, but such a lease may not be approved more than one year prior 
to the date on which the lease term is to commence.



Sec.  162.216  When will a BIA decision to approve an agricultural lease 
be effective?

    Our decision to approve an agricultural lease will be effective 
immediately, notwithstanding any appeal

[[Page 492]]

that may be filed under part 2 of this chapter.



Sec.  162.217  Must an agricultural lease or permit be recorded?

    (a) An agricultural lease or permit must be recorded in our Land 
Titles and Records Office with jurisdiction over the land. We will 
record the lease or permit immediately following our approval under this 
subpart.
    (b) Agricultural leases of tribal land that do not require our 
approval, under Sec.  162.102 of this part, must be recorded by the 
tribe in our Land Titles and Records Office with jurisdiction over the 
land.

                           Lease Requirements



Sec.  162.218  Is there a standard agricultural lease form?

    Based on the need for flexibility in advertising, negotiating and 
drafting of appropriate lease terms and conditions, there is no standard 
agricultural lease form that must be used. We will assist the Indian 
landowners in drafting lease provisions that conform to the requirements 
of this part.



Sec.  162.219  Are there any provisions that must be included 
in an agricultural lease?

    In addition to the other requirements of this part, all agricultural 
leases must provide that:
    (a) The obligations of the tenant and its sureties to the Indian 
landowners will also be enforceable by the United States, so long as the 
land remains in trust or restricted status;
    (b) 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;
    (c) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, or negligent use or waste of the leased premises; and
    (d) The tenant must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements, including tribal laws 
and leasing policies.



Sec.  162.220  Are there any formal requirements that must be satisfied 
in the execution of an agricultural lease?

    (a) An agricultural lease must identify the Indian landowners and 
their respective interests in the leased premises, and the lease must be 
granted by or on behalf of each of the Indian landowners. One who 
executes a lease in a representative capacity under Sec.  162.208 of 
this subpart must identify the owner being represented and the authority 
under which such action is being taken.
    (b) An agricultural lease must be executed by individuals having the 
necessary capacity and authority to bind the tenant under applicable 
law.
    (c) An agricultural lease must include a citation of the provisions 
in this subpart that authorize our approval, along with a citation of 
the formal documents by which such authority has been delegated to the 
official taking such action.



Sec.  162.221  How should the land be described in an agricultural lease?

    An agricultural lease should describe the leased premises by 
reference to a public or private survey, if possible. If the land cannot 
be so described, the lease must include a legal description or other 
description that is sufficient to identify the leased premises, subject 
to our approval. Where there are undivided interests owned in fee 
status, the aggregate portion of trust and restricted interests should 
be identified in the description of the leased premises.



Sec.  162.222  How much rent must be paid under an agricultural lease?

    (a) An agricultural lease must provide for the payment of a fair 
annual rental at the beginning of the lease term, unless a lesser amount 
is permitted under paragraphs (b) through (d) of this section. The 
tenant's rent payments may be:
    (1) In fixed amounts; or
    (2) Based on a share of the agricultural products generated by the 
lease,

[[Page 493]]

or a percentage of the income to be derived from the sale of such 
agricultural products.
    (b) We will approve an agricultural lease of tribal land at a 
nominal rent, or at less than a fair annual rental, if such a rent is 
negotiated or established by the tribe.
    (c) We will approve an agricultural lease of individually-owned land 
at a nominal rent or at less than a fair annual rental, if:
    (1) The tenant is a member of the Indian landowner's immediate 
family, or a co-owner in the lease tract; or
    (2) The tenant is a cooperative or other legal entity in which the 
Indian landowners directly participate in the revenues or profits 
generated by the lease.
    (d) We will grant or approve a lease at less than a fair annual 
rental, as previously determined by an appraisal or some other 
appropriate valuation method, if the land is subsequently advertised and 
the tenant is the highest responsible bidder.



Sec.  162.223  Must the rent be adjusted under an agricultural lease?

    (a) Except as provided in paragraph (c) of this section, an 
agricultural lease must provide for one or more rental adjustments if 
the lease term runs more than five years, unless the lease provides for 
the payment of:
    (1) Less than a fair annual rental, as permitted under Sec.  
162.222(b) through (c) of this part; or
    (2) A rental based primarily on a share of the agricultural products 
generated by the lease, or a percentage of the income derived from the 
sale of agricultural products.
    (b) If rental adjustments are required, the lease must specify:
    (1) How adjustments are made;
    (2) Who makes the adjustments;
    (3) When the adjustments are effective; and
    (4) How disputes about the adjustments are resolved.
    (c) An agricultural lease of tribal land may run for a term of more 
than five years, without providing for a rental adjustment, if the tribe 
establishes such a policy under Sec.  162.203(b)(4) and negotiates such 
a lease.



Sec.  162.224  When are rent payments due under an agricultural lease?

    An agricultural lease must specify the dates on which all rent 
payments are due. Unless otherwise provided in the lease, rent payments 
may not be made or accepted more than one year in advance of the due 
date. Rent payments are due at the time specified in the lease, 
regardless of whether the tenant receives an advance billing or other 
notice that a payment is due.



Sec.  162.225  Will untimely rent payments made under an agricultural lease 
be subject to interest charges or late payment penalties?

    An agricultural lease must specify the rate at which interest will 
accrue on any rent payment not made by the due date or any other date 
specified in the lease. A lease may also identify additional late 
payment penalties that will apply if a rent payment is not made by a 
specified date. Unless otherwise provided in the lease, such interest 
charges and late payment penalties will apply in the absence of any 
specific notice to the tenant from us or the Indian landowners, and the 
failure to pay such amounts will be treated as a lease violation under 
Sec.  162.251 of this subpart.



Sec.  162.226  To whom can rent payments be made under an agricultural lease?

    (a) An agricultural lease must specify whether rent payments will be 
made directly to the Indian landowners or to us on behalf of the Indian 
landowners. If the lease provides for payment to be made directly to the 
Indian landowners, the lease must also require that the tenant retain 
specific documentation evidencing proof of payment, such as canceled 
checks, cash receipt vouchers, or copies of money orders or cashier's 
checks, consistent with the provisions of Sec. Sec.  162.112 and 162.113 
of this part.
    (b) Rent payments made directly to the Indian landowners must be 
made to the parties specified in the lease, unless the tenant receives 
notice of a change of ownership. Unless otherwise provided in the lease, 
rent payments may not be made payable directly to

[[Page 494]]

anyone other than the Indian landowners.
    (c) A lease that provides for rent payments to be made directly to 
the Indian landowners must also provide for such payments to be 
suspended and the rent thereafter paid to us, rather than directly to 
the Indian landowners, if:
    (1) An Indian landowner dies;
    (2) An Indian landowner requests that payment be made to us;
    (3) An Indian landowner is found by us to be in need of assistance 
in managing his/her financial affairs; or
    (4) We determine, in our discretion and after consultation with the 
Indian landowner(s), that direct payment should be discontinued.



Sec.  162.227  What form of rent payment can be accepted 
under an agricultural lease?

    (a) When rent payments are made directly to the Indian landowners, 
the form of payment must be acceptable to the Indian landowners.
    (b) Payments made to us may be delivered in person or by mail. We 
will not accept cash, foreign currency, or third-party checks. We will 
accept:
    (1) Personal or business checks drawn on the account of the tenant;
    (2) Money orders;
    (3) Cashier's checks;
    (4) Certified checks; or
    (5) Electronic funds transfer payments.



Sec.  162.228  What other types of payments are required 
under an agricultural lease?

    (a) The tenant may be required to pay additional fees, taxes, and/or 
assessments associated with the use of the land, as determined by the 
tribe having jurisdiction over the land. The tenant must pay these 
amounts to the appropriate tribal official.
    (b) Except as otherwise provided in part 171 of this chapter, if the 
leased premises are within an Indian irrigation project or drainage 
district, the tenant must pay all operation and maintenance charges that 
accrue during the lease term. The tenant must pay these amounts to the 
appropriate official in charge of the irrigation project or drainage 
district. Failure to make such payments will constitute a violation of 
the lease under Sec.  162.251.



Sec.  162.229  How long can the term of an agricultural lease run?

    (a) An agricultural lease must provide for a definite lease term, 
specifying the commencement date. The commencement date of the lease may 
not be more than one year after the date on which the lease is approved.
    (b) The lease term must be reasonable, given the purpose of the 
lease and the level of investment required. Unless otherwise provided by 
statute, the maximum term may not exceed ten years, unless a substantial 
investment in the improvement of the land is required. If such a 
substantial investment is required, the maximum term may be up to 25 
years.
    (c) Where all of the trust or restricted interests in a tract are 
owned by a deceased Indian whose heirs and devisees have not yet been 
determined, the maximum term may not exceed two years.
    (d) An agricultural lease may not provide the tenant with an option 
to renew, and such a lease may not be renewed or extended by holdover.



Sec.  162.230  Can an agricultural lease be amended, assigned, 
sublet, or mortgaged?

    (a) An agricultural lease may authorize amendments, assignments, 
subleases, or mortgages of the leasehold interest, but only with the 
written consent of the parties to the lease in the same manner the 
original lease was approved, and our approval. An attempt by the tenant 
to mortgage the leasehold interest or authorize possession by another 
party, without the necessary consent and approval, will be treated as a 
lease violation under Sec.  162.251 of this subpart.
    (b) An agricultural lease may authorize us, one or more of the 
Indian landowners, or a designated representative of the Indian 
landowners, to consent to an amendment, assignment, sublease, mortgage, 
or other type of agreement, on the landowners' behalf. A designated 
landowner or representative may not negotiate or consent to an 
amendment, assignment, or sublease that would:
    (1) Reduce the rentals payable to the other Indian landowners; or

[[Page 495]]

    (2) Terminate or modify the term of the lease.
    (c) Where the Indian landowners have not designated a representative 
for the purpose of consenting to an amendment, assignment, sublease, 
mortgage, or other type of agreement, such consent may be granted by or 
on behalf of the landowners in the same manner as a new lease, under 
Sec. Sec.  162.207 through 162.209 of this subpart.



Sec.  162.231  How can the land be used under an agricultural lease?

    (a) An agricultural lease must describe the authorized uses of the 
leased premises. Any use of the leased premises for an unauthorized 
purpose, or a failure by the tenant to maintain continuous operations 
throughout the lease term, will be treated as a lease violation under 
Sec.  162.251 of this subpart.
    (b) An agricultural lease must require that farming and grazing 
operations be conducted in accordance with recognized principles of 
sustained yield management, integrated resource management planning, 
sound conservation practices, and other community goals as expressed in 
applicable tribal laws, leasing policies, or agricultural resource 
management plans. Appropriate stipulations or conservation plans must be 
developed and incorporated in all agricultural leases.



Sec.  162.232  Can improvements be made under an agricultural lease?

    An agricultural lease must generally describe the type and location 
of any improvements to be constructed by the lessee. Unless otherwise 
provided in the lease, any specific plans for the construction of those 
improvements will not require the consent of the Indian owners or our 
approval.



Sec.  162.233  Who will own the improvements made under an agricultural lease?

    (a) An agricultural lease may specify who will own any improvements 
constructed by the tenant, during the lease term. The lease must 
indicate whether any improvements constructed by the tenant will remain 
on the leased premises upon the expiration or termination of the lease, 
providing for the improvements to either:
    (1) Remain on the leased premises, in a condition satisfactory to 
the Indian landowners and us; or
    (2) Be removed within a time period specified in the lease, at the 
tenant's expense, with the leased premises to be restored as close as 
possible to their condition prior to construction of such improvements.
    (b) If the lease allows the tenant to remove the improvements, it 
must also provide the Indian landowners with an option to waive the 
removal requirement and take possession of the improvements if they are 
not removed within the specified time period. If the Indian landowners 
choose not to exercise this option, we will take appropriate enforcement 
action to ensure removal at the tenant's expense.



Sec.  162.234  Must a tenant provide a bond under an agricultural lease?

    Unless otherwise provided by a tribe under Sec.  162.203 of this 
subpart, or waived by us at the request of the owners of a majority 
interest in an agricultural lease tract, the tenant must provide a bond 
to secure:
    (a) The payment of one year's rental;
    (b) The construction of any required improvements;
    (c) The performance of any additional lease obligations, including 
the payment of operation and maintenance charges under Sec.  162.228(b) 
of this subpart; and
    (d) The restoration and reclamation of the leased premises, to their 
condition at the commencement of the lease term or some other specified 
condition.



Sec.  162.235  What form of bond can be accepted under an agricultural lease?

    (a) Except as provided in paragraph (b) of this section, a bond must 
be deposited with us and made payable only to us, and such a bond may 
not be modified or withdrawn without our approval. We will only accept a 
bond in one of the following forms:
    (1) Cash;
    (2) Negotiable Treasury securities that:
    (i) Have a market value at least equal to the bond amount; and
    (ii) Are accompanied by a statement granting full authority to us to 
sell

[[Page 496]]

such securities in case of a violation of the terms of the lease.
    (3) Certificates of deposit that indicate on their face that our 
approval is required prior to redemption by any party;
    (4) Irrevocable letters of credit issued by federally-insured 
financial institutions authorized to do business in the United States. A 
letter of credit must:
    (i) Contain a clause that grants us the authority to demand 
immediate payment if the tenant violates the lease or fails to replace 
the letter of credit at least 30 days prior to its expiration date;
    (ii) Be payable to us;
    (iii) Be irrevocable during its term and have an initial expiration 
date of not less than one year following the date of issuance; and
    (iv) Be automatically renewable for a period of not less than one 
year, unless the issuing financial institution provides us with written 
notice that it will not be renewed, at least 90 calendar days before the 
letter of credit's expiration date.
    (5) A surety bond issued by a company approved by the U.S. 
Department of the Treasury; or
    (6) Any other form of highly liquid, non-volatile security that is 
easily convertible to cash and for which our approval is required prior 
to redemption by any party.
    (b) A tribe may accept and hold any form of bond described in 
paragraph (a) of this section, to secure performance under an 
agricultural lease of tribal land.



Sec.  162.236  How will a cash bond be administered?

    (a) If a cash bond is submitted, we will retain the funds in an 
account established in the name of the tenant.
    (b) We will not pay interest on a cash performance bond.
    (c) If the bond is not forfeited under Sec.  162.252(a) of this 
subpart, we will refund the bond to the tenant upon the expiration or 
termination of the lease.



Sec.  162.237  What insurance is required under an agricultural lease?

    When necessary to protect the interests of the Indian landowners, an 
agricultural lease must require that a tenant provide insurance. Such 
insurance may include property, crop, liability and/or casualty 
insurance. If insurance is required, it must identify both the Indian 
landowners and the United States as insured parties, and be sufficient 
to protect all insurable improvements on the leased premises.



Sec.  162.238  What indemnities are required under an agricultural lease?

    (a) An agricultural lease must require that the tenant indemnify and 
hold the United States and the Indian landowners harmless from any loss, 
liability, or damages resulting from the tenant's use or occupation of 
the leased premises, unless:
    (1) The tenant would be prohibited by law from making such an 
agreement; or (2) The interests of the Indian landowners are adequately 
protected by insurance.
    (b) Unless the tenant would be prohibited by law from making such an 
agreement, an agricultural lease must specifically require that the 
tenant indemnify the United States and the Indian landowners against all 
liabilities or costs relating to the use, handling, treatment, removal, 
storage, transportation, or disposal of hazardous materials, or the 
release or discharge of any hazardous materials from the leased premises 
that occurs during the lease term, regardless of fault.



Sec.  162.239  How will payment rights and obligations relating to 
agricultural land be allocated between the Indian landowners and the tenant?

    (a) Unless otherwise provided in an agricultural lease, the Indian 
landowners will be entitled to receive any settlement funds or other 
payments arising from certain actions that diminish the value of the 
land or the improvements thereon. Such payments may include (but are not 
limited to) :
    (1) Insurance proceeds;
    (2) Trespass damages; and
    (3) Condemnation awards.
    (b) An agricultural lease may provide for the tenant to assume 
certain cost-share or other payment obligations that have attached to 
the land through past farming and grazing operations, so long as those 
obligations are specified

[[Page 497]]

in the lease and considered in any determination of fair annual rental 
made under this subpart.



Sec.  162.240  Can an agricultural lease provide for negotiated remedies 
in the event of a violation?

    (a) A lease of tribal agricultural land may provide the tribe with 
certain negotiated remedies in the event of a lease violation, including 
the power to terminate the lease. An agricultural lease of individually-
owned land may provide the individual Indian landowners with similar 
remedies, so long as the lease also specifies the manner in which those 
remedies may be exercised by or on behalf of the landowners.
    (b) The negotiated remedies described in paragraph (a) of this 
section will apply in addition to the cancellation remedy available to 
us under Sec.  162.252(c) of this subpart. If the lease specifically 
authorizes us to exercise any negotiated remedies on behalf of the 
Indian landowners, the exercise of such remedies may substitute for 
cancellation.
    (c) An agricultural lease may provide for lease disputes to be 
resolved in tribal court or any other court of competent jurisdiction, 
or through arbitration or some other alternative dispute resolution 
method. We may not be bound by decisions made in such forums, but we 
will defer to ongoing proceedings, as appropriate, in deciding whether 
to exercise any of the remedies available to us under Sec.  162.252 of 
this subpart.

                          Lease Administration



Sec.  162.241  Will administrative fees be charged for actions relating to 
agricultural leases?

    (a) We will charge an administrative fee each time we approve an 
agricultural lease, amendment, assignment, sublease, mortgage, or 
related document. These fees will be paid by the tenant, assignee, or 
subtenant, to cover our costs in preparing or processing the documents 
and administering the lease.
    (b) Except as provided in paragraph (c) of this section, we will 
charge administrative fees based on the rent payable under the lease. 
The fee will be 3% of the annual rent payable, including any percentage-
based rent that can be reasonably estimated.
    (c) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00, and any administrative fees that have 
been paid will be non-refundable. However, we may waive all or part of 
these administrative fees, in our discretion.
    (d) If all or part of the expenses of the work are paid from tribal 
funds, the tribe may establish an additional or alternate schedule of 
fees.



Sec.  162.242  How will BIA decide whether to approve an amendment 
to an agricultural lease?

    We will approve an agricultural lease amendment if:
    (a) The required consents have been obtained from the parties to the 
lease under Sec.  162.230 and any sureties; and
    (b) We find the amendment to be in the best interest of the Indian 
landowners, under the standards set forth in Sec.  162.213 of this 
subpart.



Sec.  162.243  How will BIA decide whether to approve an assignment 
or sublease under an agricultural lease?

    (a) We will approve an assignment or sublease under an agricultural 
lease if:
    (1) The required consents have been obtained from the parties to the 
lease under Sec.  162.230 and the tenant's sureties;
    (2) The tenant is not in violation of the lease;
    (3) The assignee agrees to be bound by, or the subtenant agrees to 
be subordinated to, the terms of the lease; and
    (4) We find no compelling reason to withhold our approval in order 
to protect the best interests of the Indian owners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The Indian landowners should receive any income derived by the 
tenant from the assignment or sublease, under the terms of the lease;
    (2) The proposed use by the assignee or subtenant will require an 
amendment of the lease;
    (3) The value of any part of the leased premises not covered by the 
assignment or sublease would be adversely affected; and

[[Page 498]]

    (4) The assignee or subtenant has bonded its performance and 
provided supporting documents that demonstrate that the lease or 
sublease will be enforceable against the assignee or subtenant, and that 
the assignee or subtenant will be able to perform its obligations under 
the lease or sublease.



Sec.  162.244  How will BIA decide whether to approve a leasehold mortgage 
under an agricultural lease?

    (a) We will approve a leasehold mortgage under an agricultural lease 
if:
    (1) The required consents have been obtained from the parties to the 
lease under Sec.  162.230 and the tenant's sureties;
    (2) The mortgage covers only the tenant's interest in the leased 
premises, and no unrelated collateral;
    (3) The loan being secured by the mortgage will be used only in 
connection with the development or use of the leased premises, and the 
mortgage does not secure any unrelated debts owed by the tenant to the 
mortgagee; and
    (4) We find no compelling reason to withhold our approval in order 
to protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The tenant's ability to comply with the lease would be adversely 
affected by any new loan obligations;
    (2) Any lease provisions would be modified by the mortgage;
    (3) The remedies available to us or to the Indian landowners would 
be limited (beyond any additional notice and cure rights to be afforded 
to the mortgagee), in the event of a lease violation; and
    (4) Any rights of the Indian landowners would be subordinated or 
adversely affected in the event of a loan default by the tenant.



Sec.  162.245  When will a BIA decision to approve an amendment, assignment, 
sublease, or mortgage under an agricultural lease be effective?

    Our decision to approve an amendment, assignment, sublease, or 
mortgage under an agricultural lease will be effective immediately, 
notwithstanding any appeal that may be filed under part 2 of this 
chapter. Copies of approved documents will be provided to the party 
requesting approval, and made available to the Indian landowners upon 
request.



Sec.  162.246  Must an amendment, assignment, sublease, or mortgage approved 
under an agricultural lease be recorded?

    An amendment, assignment, sublease, or mortgage approved under an 
agricultural lease must be recorded in our Land Titles and Records 
Office that has jurisdiction over the leased premises. We will record 
the document immediately following our approval under this subpart.

                            Lease Enforcement



Sec.  162.247  Will BIA notify a tenant when a rent payment is due 
under an agricultural lease?

    We may issue bills or invoices to a tenant in advance of the dates 
on which rent payments are due under an agricultural lease, but the 
tenant's obligation to make such payments in a timely manner will not be 
excused if such bills or invoices are not delivered or received.



Sec.  162.248  What will BIA do if rent payments are not made in the time 
and manner required by an agricultural lease?

    (a) A tenant's failure to pay rent in the time and manner required 
by an agricultural lease will be a violation of the lease, and a notice 
of violation will be issued under Sec.  162.251 of this subpart. If the 
lease requires that rent payments be made to us, we will send the tenant 
and its sureties a notice of violation within five business days of the 
date on which the rent payment was due. If the lease provides for 
payment directly to the Indian landowners, we will send the tenant and 
its sureties a notice of violation within five business days of the date 
on which we receive actual notice of non-payment from the landowners.
    (b) If a tenant fails to provide adequate proof of payment or cure 
the violation within the requisite time period described in Sec.  
162.251(b) of this subpart, and the amount due is not in dispute, we may 
immediately take action to recover the amount of the unpaid rent and any 
associated interest charges or

[[Page 499]]

late payment penalties. We may also cancel the lease under Sec.  162.252 
of this subpart, or invoke any other remedies available under the lease 
or applicable law, including collection on any available bond or 
referral of the debt to the Department of the Treasury for collection. 
An action to recover any unpaid amounts will not be conditioned on the 
prior cancellation of the lease or any further notice to the tenant, nor 
will such an action be precluded by a prior cancellation.
    (c) Partial payments may be accepted by the Indian landowners or us, 
but acceptance will not operate as a waiver with respect to any amounts 
remaining unpaid or any other existing lease violations. Unless 
otherwise provided in the lease, overpayments may be credited as an 
advance against future rent payments, or refunded.
    (d) If a personal or business check is dishonored, and a rent 
payment is therefore not made by the due date, the failure to make the 
payment in a timely manner will be a violation of the lease, and a 
notice of violation will be issued under Sec.  162.251 of this subpart. 
Any payment made to cure such a violation, and any future payments by 
the same tenant, must be made by one of the alternative payment methods 
listed in Sec.  162.227(b) of this subpart.



Sec.  162.249  Will any special fees be assessed on delinquent rent payments 
due under an agricultural lease?

    The following special fees will be assessed if rent is not paid in 
the time and manner required, in addition to any interest or late 
payment penalties that must be paid to the Indian landowners under an 
agricultural lease. The following special fees will be assessed to cover 
administrative costs incurred by the United States in the collection of 
the debt:

------------------------------------------------------------------------
       The tenant will pay * * *                    For * * *
------------------------------------------------------------------------
(a) $50.00.............................  Administrative fee for
                                          dishonored checks.
(b) $15.00.............................  Administrative fee for BIA
                                          processing of each notice or
                                          demand letter.
(c) 18% of balance due.................  Administrative fee charged by
                                          Treasury following referral
                                          for collection of delinquent
                                          debt.
------------------------------------------------------------------------



Sec.  162.250  How will BIA determine whether the activities of a tenant 
under an agricultural lease are in compliance with the terms of the lease?

    (a) Unless an agricultural lease provides otherwise, we may enter 
the leased premises at any reasonable time, without prior notice, to 
protect the interests of the Indian landowners and ensure that the 
tenant is in compliance with the operating requirements of the lease.
    (b) If an Indian landowner notifies us that a specific lease 
violation has occurred, we will initiate an appropriate investigation 
within five business days of that notification.



Sec.  162.251  What will BIA do in the event of a violation 
under an agricultural lease?

    (a) If we determine that an agricultural lease has been violated, we 
will send the tenant and its sureties a notice of violation within five 
business days of that determination. The notice of violation must be 
provided by certified mail, return receipt requested.
    (b) Within ten business days of the receipt of a notice of 
violation, the tenant must:
    (1) Cure the violation and notify us in writing that the violation 
has been cured;
    (2) Dispute our determination that a violation has occurred and/or 
explain why we should not cancel the lease; or
    (3) Request additional time to cure the violation.



Sec.  162.252  What will BIA do if a violation of an agricultural lease 
is not cured within the requisite time period?

    (a) If the tenant does not cure a violation of an agricultural lease 
within the requisite time period, we will consult with the Indian 
landowners, as appropriate, and determine whether:
    (1) The lease should be canceled by us under paragraph (c) of this 
section and Sec. Sec.  162.253 through 162.254 of this subpart;
    (2) We should invoke any other remedies available to us under the 
lease, including collecting on any available bond;

[[Page 500]]

    (3) The Indian landowners wish to invoke any remedies available to 
them under the lease; or
    (4) The tenant should be granted additional time in which to cure 
the violation.
    (b) If we decide to grant a tenant additional time in which to cure 
a violation, the tenant must proceed diligently to complete the 
necessary corrective actions within a reasonable or specified time 
period from the date on which the extension is granted.
    (c) If we decide to cancel the lease, we will send the tenant and 
its sureties a cancellation letter within five business days of that 
decision. The cancellation letter must be sent to the tenant by 
certified mail, return receipt requested. We will also provide actual or 
constructive notice of a cancellation decision to the Indian landowners, 
as appropriate. The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) Notify the tenant of the amount of any unpaid rent, interest 
charges, or late payment penalties due under the lease;
    (3) Notify the tenant of its right to appeal under part 2 of this 
chapter, as modified by Sec.  162.253 of this subpart, including the 
amount of any appeal bond that must be posted with an appeal of the 
cancellation decision; and
    (4) Order the tenant to vacate the property within 30 days of the 
date of receipt of the cancellation letter, if an appeal is not filed by 
that time.



Sec.  162.253  Will BIA's regulations concerning appeal bonds apply to 
cancellation decisions involving agricultural leases?

    (a) The appeal bond provisions in Sec.  2.5 of part 2 of this 
chapter will not apply to appeals from lease cancellation decisions made 
under Sec.  162.252 of this subpart. Instead, when we decide to cancel 
an agricultural lease, we may require that the tenant post an appeal 
bond with an appeal of the cancellation decision. The requirement to 
post an appeal bond will apply in addition to all of the other 
requirements in part 2 of this chapter.
    (b) An appeal bond should be set in an amount necessary to protect 
the Indian landowners against financial losses that will likely result 
from the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
lease cancellation decision.



Sec.  162.254  When will a cancellation of an agricultural lease be effective?

    A cancellation decision involving an agricultural lease will not be 
effective until 30 days after the tenant receives a cancellation letter 
from us. The cancellation decision will remain ineffective if the tenant 
files an appeal under Sec.  162.253 of this subpart and part 2 of this 
chapter, unless the decision is made immediately effective under part 2. 
While a cancellation decision is ineffective, the tenant must continue 
to pay rent and comply with the other terms of the lease. If an appeal 
is not filed in accordance with Sec.  162.253 of this subpart and part 2 
of this chapter, the cancellation decision will be effective on the 31st 
day after the tenant receives the cancellation letter from us.



Sec.  162.255  Can BIA take emergency action if the leased premises 
are threatened with immediate and significant harm?

    If a tenant or any other party causes or threatens to cause 
immediate and significant harm to the leased premises during the term of 
an agricultural lease, we will take appropriate emergency action. 
Emergency action may include trespass proceedings under part 166, 
subpart I, of this chapter, or judicial action seeking immediate 
cessation of the activity resulting in or threatening the harm. 
Reasonable efforts will be made to notify the Indian landowners, either 
before or after the emergency action is taken.



Sec.  162.256  What will BIA do if a tenant holds over after the expiration 
or cancellation of an agricultural lease?

    If a tenant remains in possession after the expiration or 
cancellation of an agricultural lease, we will treat the unauthorized 
use as a trespass. Unless we have reason to believe that the tenant is 
engaged in negotiations with the Indian landowners to obtain a new 
lease, we will take action to recover

[[Page 501]]

possession on behalf of the Indian landowners, and pursue any additional 
remedies available under applicable law, including the assessment of 
civil penalties and costs under part 166, subpart I, of this chapter.



                      Subpart C_Residential Leases

    Source: 77 FR 72474, Dec. 5, 2012, unless otherwise noted.

                 Residential Leasing General Provisions



Sec.  162.301  What types of leases does this subpart cover?

    (a) This subpart covers both ground leases (undeveloped land) and 
leases of developed land (together with the permanent improvements 
thereon) on Indian land, for housing purposes. Leases covered by this 
subpart would authorize the construction or use of:
    (1) A single-family residence; and
    (2) Housing for public purposes, which may include office space 
necessary to administer programs for housing for public purposes.
    (b) Leases for other residential development (for example, single-
family residential developments and multi-family developments that are 
not housing for public purposes) are covered under subpart D of this 
part.



Sec.  162.302  Is there a model residential lease form?

    (a) We will make available one or more model lease forms that 
satisfy the formal requirements of this part, including, as appropriate, 
the model tribal lease form jointly developed by BIA, the Department of 
Housing and Urban Development, the Department of Veterans' Affairs, and 
the Department of Agriculture. Use of a model lease form is not 
mandatory, provided all requirements of this part are met.
    (b) If a model lease form prepared by us is not used by the parties 
to a residential lease, we will assist the Indian landowners, upon their 
request, in drafting lease provisions or in using tribal lease forms 
that conform to the requirements of this part.



Sec.  162.303  Who needs a lease for housing for public purposes?

    A TDHE or tribal housing authority must obtain an approved 
residential lease under this subpart from the Indian landowners if, 
under the terms of its charter, it is a legal entity independent from 
the tribe, regardless of whether it is owned and operated by the tribe. 
A TDHE or tribal housing authority does not need an approved residential 
lease under this subpart if the tribe has authorized the TDHE's or 
tribal housing authority's possession through a tribal land assignment.

                           Lease Requirements



Sec.  162.311  How long may the term of a residential lease run?

    (a) A residential lease must provide for a definite lease term, 
state if there is an option to renew, and if so, provide for a definite 
term for the renewal period.
    (1) The maximum term of a lease approved under 25 U.S.C. 4211 may 
not exceed 50 years or may be month-to-month. The lease may provide for 
an initial term of less than 50 years with a provision for one or more 
renewals, so long as the maximum term, including all renewals, does not 
exceed 50 years.
    (2) The maximum term of a lease approved under 25 U.S.C. 415(a) may 
not exceed 50 years (consisting of an initial term not to exceed 25 
years and one renewal not to exceed 25 years), unless a Federal statute 
provides for a longer maximum term (e.g., 25 U.S.C. 415(a) allows for a 
maximum term of 99 years for certain tribes), a different initial term, 
renewal term, or number of renewals.
    (b) For tribal land, we will defer to the tribe's determination that 
the lease term, including any renewal, is reasonable. For individually 
owned Indian land, we will review the lease term, including any renewal, 
to ensure it is reasonable, given the:
    (1) Purpose of the lease;
    (2) Type of financing; and
    (3) Level of investment.
    (c) Unless the lease provides otherwise, a residential lease may not 
be extended by holdover.

[[Page 502]]



Sec.  162.312  What must the lease include if it contains an option to renew?

    (a) If the lease provides for an option to renew, the lease must 
specify:
    (1) The time and manner in which the option must be exercised or is 
automatically effective;
    (2) That confirmation of the renewal will be submitted to us, unless 
the lease provides for automatic renewal;
    (3) Whether Indian landowner consent to the renewal is required;
    (4) That the lessee must provide notice of the renewal to the Indian 
landowners and any mortgagees;
    (5) The additional consideration, if any, that will be due upon the 
exercise of the option to renew or the start of the renewal term; and
    (6) Any other conditions for renewal (e.g., that the lessee not be 
in violation of the lease at the time of renewal).
    (b) We will record any renewal of a lease in the LTRO.



Sec.  162.313  Are there mandatory provisions that a residential lease 
must contain?

    (a) All residential leases must identify:
    (1) The tract or parcel of land being leased;
    (2) The purpose of the lease and authorized uses of the leased 
premises;
    (3) The parties to the lease;
    (4) The term of the lease;
    (5) The ownership of permanent improvements and the responsibility 
for constructing, operating, maintaining, and managing permanent 
improvements under Sec.  162.315; and
    (6) Payment requirements and late payment charges, including 
interest.
    (b) Where a representative executes a lease on behalf of an Indian 
landowner or lessee, the lease must identify the landowner or lessee 
being represented and the authority under which the action is taken.
    (c) All residential leases must include the following provisions:
    (1) The obligations of the lessee to the Indian landowners are also 
enforceable by the United States, so long as the land remains in trust 
or restricted status;
    (2) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, or negligent use or waste of the leased premises;
    (3) The lessee must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements under Sec.  162.014;
    (4) If historic properties, archeological resources, human remains, 
or other cultural items not previously reported are encountered during 
the course of any activity associated with this lease, all activity in 
the immediate vicinity of the properties, resources, remains, or items 
will cease and the lessee will contact BIA and the tribe with 
jurisdiction to determine how to proceed and appropriate disposition;
    (5) BIA has the right, at any reasonable time during the term of the 
lease and upon reasonable notice in accordance with Sec.  162.364, to 
enter the leased premises for inspection and to ensure compliance; and
    (6) BIA may, at its discretion, treat as a lease violation any 
failure by the lessee to cooperate with a BIA request to make 
appropriate records, reports, or information available for BIA 
inspection and duplication.
    (d) Unless the lessee would be prohibited by law from doing so, the 
lease must also contain the following provisions:
    (1) The lessee holds the United States and the Indian landowners 
harmless from any loss, liability, or damages resulting from the 
lessee's use or occupation of the leased premises; and
    (2) The lessee indemnifies the United States and the Indian 
landowners against all liabilities or costs relating to use, handling, 
treatment, removal, storage, transportation, or disposal of hazardous 
materials, or release or discharge of any hazardous material from the 
leased premises that occurs during the lease term, regardless of fault, 
with the exception that the lessee is not required to indemnify the 
Indian landowners for liability or cost arising from the Indian 
landowners' negligence or willful misconduct.
    (e) We may treat any provision of a lease document that violates 
Federal law as a violation of the lease.

[[Page 503]]



Sec.  162.314  May permanent improvements be made under a residential lease?

    (a) The lessee may construct permanent improvements under a 
residential lease if the residential lease authorizes the construction 
and generally describes the type and location of the permanent 
improvements to be constructed during the lease term.
    (b) The lessee must provide reasonable notice to the Indian 
landowners of the construction of any permanent improvements not 
generally described in the lease.



Sec.  162.315  How must a residential lease address ownership 
of permanent improvements?

    (a) A residential lease must specify who will own any permanent 
improvements the lessee constructs during the lease term. In addition, 
the lease must indicate whether each specific permanent improvement the 
lessee constructs will:
    (1) Remain on the leased premises upon expiration, termination, or 
cancellation of the lease, in a condition satisfactory to the Indian 
landowners and become the property of the Indian landowners;
    (2) Be removed within a time period specified in the lease, at the 
lessee's expense, with the leased premises to be restored as closely as 
possible to their condition before construction of the permanent 
improvements; or
    (3) Be disposed of by other specified means.
    (b) A lease that requires the lessee to remove the permanent 
improvements must also provide the Indian landowners with an option to 
take possession of and title to the permanent improvements if the 
improvements are not removed within the specified time period.



Sec.  162.316  How will BIA enforce removal requirements 
in a residential lease?

    We may take appropriate enforcement action to ensure removal of the 
permanent improvements and restoration of the premises at the lessee's 
expense:
    (a) In consultation with the tribe for tribal land or, where 
feasible, with Indian landowners for individually owned Indian land; and
    (b) Before or after expiration, termination, or cancellation of the 
lease.



Sec.  162.317  How must a residential lease describe the land?

    (a) A residential lease must describe the leased premises by 
reference to a public or private survey, if possible. If the land cannot 
be so described, the lease must include one or more of the following:
    (1) A legal description;
    (2) A survey-grade global positioning system description; or
    (3) Another description prepared by a registered land surveyor that 
is sufficient to identify the leased premises.
    (b) If the tract is fractionated, we will identify the undivided 
trust or restricted interests in the leased premises.

                           Rental Requirements



Sec.  162.320  How much rent must be paid under a residential lease 
of tribal land?

    (a) A residential lease of tribal land may allow for any payment 
amount negotiated by the tribe, and we will defer to the tribe and not 
require a valuation, if:
    (1) The lease is for housing for public purposes; or
    (2) The tribe submits a signed certification or tribal authorization 
stating that it has determined the negotiated amount to be in its best 
interest.
    (b) The tribe may request, in writing, that we determine fair market 
rental, in which case we will use a valuation in accordance with Sec.  
162.322. After providing the tribe with the fair market rental, we will 
defer to a tribe's decision to allow for any payment amount negotiated 
by the tribe.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, we will require that the lease provide for fair market rental 
based on a valuation in accordance with Sec.  162.322.

[[Page 504]]



Sec.  162.321  How much rent must be paid under a residential lease 
of individually owned Indian land?

    (a) A residential lease of individually owned Indian land must 
require payment of not less than fair market rental except that we may 
approve a lease of individually owned Indian land that provides for the 
payment of nominal rent, or less than a fair market rental, if:
    (1) One hundred percent of the Indian landowners execute a written 
waiver of the right to receive fair market rental; or
    (2) We waive the requirement under paragraph (c) of this section.
    (b) We will require a valuation in accordance with Sec.  162.322, 
unless:
    (1) One hundred percent of the Indian landowners submit to us a 
written request to waive the valuation requirement; or
    (2) We waive the requirement under paragraph (c) of this section.
    (c) If the owners of the applicable percentage of interests under 
Sec.  162.012 consent to a residential lease on behalf of all the Indian 
landowners of a fractionated tract, the lease must provide that the non-
consenting Indian landowners (and those on whose behalf we have 
consented) receive fair market rental, as determined by a valuation, 
unless we waive the requirement because:
    (1) The lessee is a co-owner who, as of January 4, 2013, has been 
residing on the tract for at least 7 years, and no other co-owner raises 
an objection to BIA by July 3, 2013 to the lessee's continued possession 
of the tract; or
    (2) The tribe or lessee will construct infrastructure improvements 
on, or serving, the leased premises, and we determine it is in the best 
interest of all the landowners.



Sec.  162.322  How will BIA determine fair market rental 
for a residential lease?

    (a) We will use a market analysis, appraisal, or other appropriate 
valuation method to determine the fair market rental for residential 
leases of individually owned Indian land. We will also do this, at the 
request of the tribe, for tribal land.
    (b) We will either:
    (1) Prepare, or have prepared, a market analysis, appraisal, or 
other appropriate valuation method; or
    (2) Use an approved market analysis, appraisal, or other appropriate 
valuation method from the Indian landowners or lessee.
    (c) We will use or approve a market analysis, appraisal, or other 
appropriate valuation method for use only if it:
    (1) Has been prepared in accordance with USPAP or a valuation method 
developed by the Secretary under 25 U.S.C. 2214; and
    (2) Complies with Department policies regarding appraisals, 
including third-party appraisals.



Sec.  162.323  When are rental payments due under a residential lease?

    (a) A residential lease must specify the dates on which payments are 
due.
    (b) Unless the lease provides otherwise, payments may not be made or 
accepted more than one year in advance of the due date.
    (c) Payments are due at the time specified in the lease, regardless 
of whether the lessee receives an advance billing or other notice that a 
payment is due.



Sec.  162.324  Must a residential lease specify who receives rental payments?

    (a) A residential lease must specify whether the lessee will make 
payments directly to the Indian landowners (direct pay) or to us on 
their behalf.
    (b) The lessee may make payments directly to the Indian landowners 
if:
    (1) The Indian landowners' trust accounts are unencumbered;
    (2) There are 10 or fewer beneficial owners; and
    (3) One hundred percent of the beneficial owners (including those on 
whose behalf we have consented) agree to receive payment directly from 
the lessee at the start of the lease.
    (c) If the lease provides that the lessee will directly pay the 
Indian landowners, then:
    (1) The lease must include provisions for proof of payment upon our 
request.
    (2) When we consent on behalf of an Indian landowner, the lessee 
must

[[Page 505]]

make payment to us on behalf of that landowner.
    (3) The lessee must send direct payments to the parties and 
addresses specified in the lease, unless the lessee receives notice of a 
change of ownership or address.
    (4) Unless the lease provides otherwise, payments may not be made 
payable directly to anyone other than the Indian landowners.
    (5) Direct payments must continue through the duration of the lease, 
except that:
    (i) The lessee must make all Indian landowners' payments to us if 
100 percent of the Indian landowners agree to suspend direct pay and 
provide us with documentation of their agreement; and
    (ii) The lessee must make an individual Indian landowner's payment 
to us if that individual Indian landowner who dies, is declared non 
compos mentis, owes a debt resulting in a trust account encumbrance, or 
his or her whereabouts become unknown.



Sec.  162.325  What form of payment is acceptable under a residential lease?

    (a) When payments are made directly to Indian landowners, the form 
of payment must be acceptable to the Indian landowners.
    (b) When payments are made to us, our preferred method of payment is 
electronic funds transfer payments. We will also accept:
    (1) Money orders;
    (2) Personal checks;
    (3) Certified checks; or
    (4) Cashier's checks.
    (c) We will not accept cash or foreign currency.
    (d) We will accept third-party checks only from financial 
institutions or Federal agencies.



Sec.  162.326  May a residential lease provide for non-monetary 
or varying types of compensation?

    (a) A lease may provide for the following, subject to the conditions 
in paragraphs (b) and (c) of this section:
    (1) Alternative forms of rental, including, but not limited to in-
kind consideration; or
    (2) Varying types of compensation at specific stages during the life 
of the lease.
    (b) For tribal land, we will defer to the tribe's determination that 
the compensation under paragraph (a) of this section is in its best 
interest, if either:
    (1) The lease is for housing for public purposes; or
    (2) The tribe submits a signed certification or tribal authorization 
stating that it has determined the compensation under paragraph (a) of 
this section to be in its best interest.
    (c) For individually owned Indian land, we may approve a lease that 
provides for compensation under paragraph (a) of this section if we 
determine that it is in the best interest of the Indian landowners.



Sec.  162.327  Will BIA notify a lessee when a payment is due 
under a residential lease?

    Upon request of the Indian landowners, we may issue invoices to a 
lessee in advance of the dates on which payments are due under a 
residential lease. The lessee's obligation to make these payments in a 
timely manner will not be excused if invoices are not issued, delivered, 
or received.



Sec.  162.328  Must a residential lease provide for rental reviews 
or adjustments?

    (a) For a residential lease of tribal land, unless the lease 
provides otherwise, no periodic review of the adequacy of rent or rental 
adjustment is required if:
    (1) The tribe states in a tribal certification or authorization that 
it has determined that not having rental reviews and/or adjustments is 
in its best interest; or
    (2) The lease is for housing for public purposes.
    (b) For a residential lease of individually Indian owned land, 
unless the lease provides otherwise, no periodic review of the adequacy 
of rent or rental adjustment is required if:
    (1) The lease is for housing for public purposes;
    (2) The term of the lease is 5 years or less;
    (3) The lease provides for automatic rental adjustments; or
    (4) We determine it is in the best interest of the Indian landowners 
not to

[[Page 506]]

require a review or automatic adjustment based on circumstances 
including, but not limited to, the following:
    (i) The lease provides for payment of less than fair market rental; 
or
    (ii) The lease provides for most or all rent to be paid during the 
first 5 years of the lease term or before the date the review would be 
conducted.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, a review of the adequacy of rent must occur at least every 
fifth year, in the manner specified in the lease. The lease must 
specify:
    (1) When adjustments take effect;
    (2) Who can make adjustments;
    (3) What the adjustments are based on; and
    (4) How to resolve disputes arising from the adjustments.
    (d) When a review results in the need for adjustment of rent, the 
Indian landowners must consent to the adjustment in accordance with 
Sec.  162.012, unless the lease provides otherwise.



Sec.  162.329  What other types of payments are required 
under a residential lease?

    (a) The lessee may be required to pay additional fees, taxes, and 
assessments associated with the use of the land, as determined by 
entities having jurisdiction, except as provided in Sec.  162.017. The 
lessee must pay these amounts to the appropriate office.
    (b) If the leased premises are within an Indian irrigation project 
or drainage district, except as otherwise provided in part 171 of this 
chapter, the lessee must pay all operation and maintenance charges that 
accrue during the lease term. The lessee must pay these amounts to the 
appropriate office in charge of the irrigation project or drainage 
district. We will treat failure to make these payments as a violation of 
the lease.

                          Bonding and Insurance



Sec.  162.334  Is a performance bond required for a residential lease document?

    We will not require a lessee or assignee to provide a performance 
bond or alternative form of security for a residential lease document.



Sec.  162.335  Is insurance required for a residential lease document?

    We will not require a lessee or assignee to provide insurance for a 
residential lease document.



Sec. Sec.  162.336-162.337  [Reserved]

                                Approval



Sec.  162.338  What documents are required for BIA approval 
of a residential lease?

    A lessee or the Indian landowners must submit the following 
documents to us to obtain BIA approval of a residential lease:
    (a) A lease executed by the Indian landowners and the lessee that 
meets the requirements of this part;
    (b) For tribal land, a tribal authorization for the lease and, if 
applicable, meeting the requirements of Sec. Sec.  162.320(a), 
162.326(b), and 162.328(a), or a separate signed certification meeting 
the requirements of Sec. Sec.  162.320(a), 162.326(b), and 162.328(a);
    (c) A valuation, if required under Sec.  162.320 or Sec.  162.321;
    (d) A statement from the appropriate tribal authority that the 
proposed use is in conformance with applicable tribal law, if required 
by the tribe;
    (e) Reports, surveys, and site assessments as needed to facilitate 
compliance with applicable Federal and tribal environmental and land use 
requirements, including any documentation prepared under Sec.  
162.027(b);
    (f) A preliminary site plan identifying the proposed location of 
residential development, roads, and utilities, if applicable, unless the 
lease is for housing for public purposes;
    (g) A legal description of the land under Sec.  162.317;
    (h) If the lease is being approved under 25 U.S.C. 415, information 
to assist us in our evaluation of the factors in 25 U.S.C. 415(a); and
    (i) If the lessee is a corporation, limited liability company, 
partnership, joint venture, or other legal entity, except a tribal 
entity, information such as organizational documents, certificates, 
filing records, and resolutions, that demonstrates that:
    (1) The representative has authority to execute a lease;

[[Page 507]]

    (2) The lease will be enforceable against the lessee; and
    (3) The legal entity is in good standing and authorized to conduct 
business in the jurisdiction where the land is located.



Sec.  162.339  Will BIA review a proposed residential lease before 
or during preparation of the NEPA review documentation?

    Upon request of the Indian landowners, we will review the proposed 
residential lease after negotiation by the parties, before or during 
preparation of the NEPA review documentation and any valuation. Within 
10 days of receiving the proposed lease, we will provide an 
acknowledgement of the terms of the lease and identify any provisions 
that, based on this acknowledgment review, would justify disapproval of 
the lease, pending results of the NEPA review and any valuation.



Sec.  162.340  What is the approval process for a residential lease?

    (a) Before we approve a residential lease, we must determine that 
the lease is in the best interest of the Indian landowners. In making 
that determination, we will:
    (1) Review the lease and supporting documents;
    (2) Ensure compliance with applicable laws and ordinances;
    (3) If the lease is being approved under 25 U.S.C. 415, assure 
ourselves that adequate consideration has been given to the factors in 
25 U.S.C. 415(a); and
    (4) Require any lease modifications or mitigation measures necessary 
to satisfy any requirements including any other Federal or tribal land 
use requirements.
    (b) Upon receiving a residential lease package, we will promptly 
notify the parties whether the package is or is not complete. A complete 
package includes all the information and supporting documents required 
under this subpart, including but not limited to, NEPA review 
documentation and valuation documentation, where applicable.
    (1) If the residential lease package is not complete, our letter 
will identify the missing information or documents required for a 
complete package. If we do not respond to the submission of a 
residential lease package, the parties may take action under Sec.  
162.363.
    (2) If the residential lease package is complete, we will notify the 
parties of the date of receipt. Within 30 days of the receipt date, we 
will approve or disapprove the lease or return the package for revision.
    (c) If we do not meet the deadlines in this section, then the 
parties may take action under Sec.  162.363.
    (d) We will provide any lease approval or disapproval and the basis 
for the determination, along with notification of any appeal rights 
under part 2 of this chapter, in writing to the parties to the lease.
    (e) Any residential lease issued under the authority of the Native 
American Housing Assistance and Self-Determination Act, 25 U.S.C 
4211(a), whether on tribal land or on individually owned Indian land, 
must be approved by us and by the affected tribe.
    (f) We will provide approved residential leases on tribal land to 
the lessee and provide a copy to the tribe. We will provide approved 
residential leases on individually owned Indian land to the lessee, and 
make copies available to the Indian landowners upon written request.



Sec.  162.341  How will BIA decide whether to approve a residential lease?

    (a) We will approve a residential lease unless:
    (1) The required consents have not been obtained from the parties to 
the lease;
    (2) The requirements of this subpart have not been met; or
    (3) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the residential lease is in their best 
interest.
    (c) We may not unreasonably withhold approval of a lease.



Sec.  162.342  When will a residential lease be effective?

    (a) A residential lease will be effective on the date that we 
approve the

[[Page 508]]

lease, even if an appeal is filed under part 2 of this chapter.
    (b) The lease may specify a date on which the obligations between 
the parties to a residential lease are triggered. Such date may be 
before or after the approval date under paragraph (a) of this section.



Sec.  162.343  Must a residential lease document be recorded?

    (a) Any residential lease, amendment, assignment, or leasehold 
mortgage must be recorded in the LTRO with jurisdiction over the leased 
land. A residential sublease need not be recorded.
    (1) We will record the lease or other document immediately following 
our approval.
    (2) When our approval of an assignment is not required, the parties 
must record the assignment in the LTRO with jurisdiction over the leased 
land.
    (b) The tribe must record lease documents for the following types of 
leases in the LTRO with jurisdiction over the leased lands, even though 
BIA approval is not required:
    (1) Leases of tribal land that a corporate entity leases to a third 
party under 25 U.S.C. 477; and
    (2) Leases of tribal land under a special act of Congress 
authorizing leases without our approval under certain conditions.



Sec.  162.344  Will BIA require an appeal bond for an appeal of a decision 
on a residential lease document?

    BIA will not require an appeal bond for an appeal of a decision on a 
residential lease document.

                               Amendments



Sec.  162.345  May the parties amend a residential lease?

    The parties may amend a residential lease by obtaining:
    (a) The lessee's signature;
    (b) The Indian landowners' consent under the requirements in Sec.  
162.346; and
    (c) BIA approval of the amendment under Sec. Sec.  162.347 and 
162.348.



Sec.  162.346  What are the consent requirements for an amendment 
of a residential lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed amendment.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to an amendment of a residential lease in the same 
percentages and manner as a new residential lease under Sec.  162.012, 
unless the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented if they do not object in writing to the amendment within a 
specified period of time following Indian landowners' receipt of the 
amendment and the lease meets the requirements of paragraph (c) of this 
section;
    (2) Authorizes one or more representatives to consent to an 
amendment on behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consent to an amendment.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed amendment or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the amendment to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for review.
    (d) Unless specifically authorized in the lease, a written power of 
attorney, or a court document, Indian landowners may not be deemed to 
have consented to, and an Indian landowner's designated representative 
may not negotiate or consent to, an amendment that would:
    (1) Reduce the payment obligations to the Indian landowners;
    (2) Increase or decrease the lease area; or
    (3) Terminate or change the term of the lease.



Sec.  162.347  What is the approval process for an amendment 
of a residential lease?

    (a) When we receive an amendment that meets the requirements of this

[[Page 509]]

subpart, we will notify the parties of the date we receive it. We have 
30 days from receipt of the executed amendment, proof of required 
consents, and required documentation to approve or disapprove the 
amendment. Our determination whether to approve the amendment will be in 
writing and will state the basis for our approval or disapproval.
    (b) If we do not send a determination within 30 days from receipt of 
the required documents, the amendment is deemed approved to the extent 
consistent with Federal law. Unless the lease provides otherwise, 
provisions of the amendment that are inconsistent with Federal law will 
be severed and unenforceable; all other provisions of the amendment will 
remain in force.



Sec.  162.348  How will BIA decide whether to approve an amendment 
of a residential lease?

    (a) We may disapprove a residential lease amendment only if at least 
one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees have not consented;
    (3) The lessee is in violation of the lease;
    (4) The requirements of this subpart have not been met; or
    (5) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the amendment is in their best interest.
    (c) We may not unreasonably withhold approval of an amendment.

                               Assignments



Sec.  162.349  May a lessee assign a residential lease?

    (a) A lessee may assign a residential lease by meeting the consent 
requirements in Sec.  162.350 and obtaining our approval of the 
assignment under Sec. Sec.  162.351 and 162.352 or by meeting the 
conditions in paragraph (b) of this section.
    (b) The lessee may assign the lease without our approval or meeting 
consent requirements if:
    (1) The lease is for housing for public purposes, or the assignee is 
a leasehold mortgagee or its designee, acquiring the lease either 
through foreclosure or by conveyance;
    (2) The assignee agrees in writing to assume all of the obligations 
and conditions of the lease; and
    (3) The assignee agrees in writing that any transfer of the lease 
will be in accordance with applicable law under Sec.  162.014.



Sec.  162.350  What are the consent requirements for an assignment 
of a residential lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed assignment.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to an assignment of a residential lease in the 
same percentages and manner as a new residential lease under Sec.  
162.012, unless the lease:
    (1) Provides for assignments without further consent of the Indian 
landowners or with consent in specified percentages and manner;
    (2) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the assignment within a 
specified period of time following the landowners' receipt of the 
assignment and the lease meets the requirements of paragraph (c) of this 
section;
    (3) Authorizes one or more of the Indian landowners to consent on 
behalf of all Indian landowners; or
    (4) Designates us as the Indian landowners' representative for the 
purposes of consenting to an assignment.
    (c) If the lease provides for deemed consent under paragraph (b)(2) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed assignment or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the assignment to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for us to review.

[[Page 510]]

    (d) The lessee must obtain the consent of the holders of any 
mortgages.



Sec.  162.351  What is the approval process for an assignment 
of a residential lease?

    (a) When we receive an assignment that meets the requirements of 
this subpart, we will notify the parties of the date we receive it. If 
our approval is required, we have 30 days from receipt of the executed 
assignment, proof of required consents, and required documentation to 
approve or disapprove the assignment. Our determination whether to 
approve the assignment will be in writing and will state the basis for 
our approval or disapproval.
    (b) If we do not meet the deadline in this section, the lessee or 
Indian landowners may take appropriate action under Sec.  162.363.



Sec.  162.352  How will BIA decide whether to approve an assignment 
of a residential lease?

    (a) We may disapprove an assignment of a residential lease only if 
at least one of the following is true:
    (1) The Indian landowners have not consented, and their consent is 
required;
    (2) The lessee's mortgagees have not consented;
    (3) The lessee is in violation of the lease;
    (4) The assignee does not agree to be bound by the terms of the 
lease;
    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(6) of this 
section, we may consider whether the value of any part of the leased 
premises not covered by the assignment would be adversely affected.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the assignment is in their best interest.
    (d) We may not unreasonably withhold approval of an assignment.

                                Subleases



Sec.  162.353  May a lessee sublease a residential lease?

    (a) A lessee may sublease a residential lease by meeting the consent 
requirements in Sec.  162.354 and obtaining our approval of the sublease 
under Sec. Sec.  162.355 and 162.356, or by meeting the conditions in 
paragraph (b) of this section.
    (b) The lessee may sublease without meeting consent requirements or 
obtaining BIA approval of the sublease, if:
    (1) The lease provides for subleasing without meeting consent 
requirements or obtaining BIA approval; and
    (2) The sublease does not relieve the lessee/sublessor of any 
liability.



Sec.  162.354  What are the consent requirements for a sublease 
of a residential lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed sublease.
    (b) The Indian landowners must consent to a sublease of a 
residential lease in the same percentages and manner as a new 
residential lease under Sec.  162.012, unless the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the sublease within a 
specified period of time following the landowners' receipt of the 
sublease and the lease meets the requirements of paragraph (c) of this 
section;
    (2) Authorizes one or more of the Indian landowners to consent on 
behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consenting to a sublease.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed sublease or other documentation of any 
landowner's actual consent;
    (2) Proof of mailing of the sublease to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for us to review.

[[Page 511]]

    (d) The lessee must obtain the consent of any mortgagees.



Sec.  162.355  What is the approval process for a sublease 
of a residential lease?

    (a) When we receive a sublease that meets the requirements of this 
subpart, we will notify the parties of the date we receive it. If our 
approval is required, we have 30 days from receipt of the executed 
sublease, proof of required consents, and required documentation to 
approve or disapprove the sublease.
    (b) If we do not send a determination within 30 days from receipt of 
required documents, the sublease is deemed approved to the extent 
consistent with Federal law. Unless the lease provides otherwise, 
provisions of the sublease that are inconsistent with Federal law will 
be severed and unenforceable; all other provisions of the sublease will 
remain in force.



Sec.  162.356  How will BIA decide whether to approve a sublease 
of a residential lease?

    (a) We may disapprove a sublease of a residential lease only if at 
least one of the following is true:
    (1) The Indian landowners have not consented, and their consent is 
required;
    (2) The lessee's mortgagees have not consented;
    (3) The lessee is in violation of the lease;
    (4) The lessee will not remain liable under the lease;
    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(6) of this 
section, we may consider whether the value of any part of the leased 
premises not covered by the sublease would be adversely affected.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the sublease is in their best interest.
    (d) We may not unreasonably withhold approval of a sublease.

                           Leasehold Mortgages



Sec.  162.357  May a lessee mortgage a residential lease?

    (a) A lessee may mortgage a residential lease by meeting the consent 
requirements in Sec.  162.358 and obtaining BIA approval of the 
leasehold mortgage under in Sec. Sec.  162.359 and 162.360.
    (b) Refer to Sec.  162.349(b) for information on what happens if a 
sale or foreclosure under an approved mortgage of the leasehold interest 
occurs.



Sec.  162.358  What are the consent requirements for a leasehold mortgage 
of a residential lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed leasehold mortgage.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to a leasehold mortgage of a residential lease in 
the same percentages and manner as a new residential lease under Sec.  
162.012, unless the lease:
    (1) States that landowner consent is not required for a leasehold 
mortgage and identifies what law would apply in case of foreclosure;
    (2) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the leasehold mortgage 
within a specified period of time following the landowners' receipt of 
the leasehold mortgage and the lease meets the requirements of paragraph 
(c) of this section;
    (3) Authorizes one or more representatives to consent to a leasehold 
mortgage on behalf of all Indian landowners; or
    (4) Designates us as the Indian landowners' representative for the 
purposes of consenting to a leasehold mortgage.
    (c) If the lease provides for deemed consent under paragraph (b)(2) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed leasehold mortgage or other documentation 
of any Indian landowners' actual consent;
    (2) Proof of mailing of the leasehold mortgage to any Indian 
landowners who are deemed to have consented; and
    (3) Any other pertinent information for us to review.

[[Page 512]]



Sec.  162.359  What is the approval process for a leasehold mortgage 
of a residential lease?

    (a) When we receive leasehold mortgage that meets the requirements 
of this subpart, we will notify the parties of the date we receive it. 
We have 20 days from receipt of the executed leasehold mortgage, proof 
of required consents, and required documentation to approve or 
disapprove the leasehold mortgage. Our determination whether to approve 
the leasehold mortgage will be in writing and will state the basis for 
our approval or disapproval.
    (b) If we do not meet the deadline in this section, the lessee may 
take appropriate action under Sec.  162.363.



Sec.  162.360  How will BIA decide whether to approve a leasehold mortgage 
of a residential lease?

    (a) We may disapprove a leasehold mortgage of a residential lease 
only if at least one of the following is true:
    (1) The Indian landowners have not consented, and their consent is 
required;
    (2) The requirements of this subpart have not been met; or
    (3) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(3) of this 
section, we may consider whether:
    (1) The leasehold mortgage proceeds would be used for purposes 
unrelated to the leased premises; and
    (2) The leasehold mortgage is limited to the leasehold.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the leasehold mortgage is in their best 
interest.
    (d) We may not unreasonably withhold approval of a leasehold 
mortgage.

               Effectiveness, Compliance, and Enforcement



Sec.  162.361  When will an amendment, assignment, sublease, 
or leasehold mortgage of a residential lease be effective?

    (a) An amendment, assignment, sublease, or leasehold mortgage of a 
residential lease will be effective when approved, even if an appeal is 
filed under part 2 of this chapter, except:
    (1) If the amendment or sublease was deemed approved under Sec.  
162.347(b) or Sec.  162.355(b), the amendment or sublease becomes 
effective 45 days from the date the parties mailed or delivered the 
document to us for our review; and
    (2) An assignment that does not require our approval under Sec.  
162.349(b) or a sublease that does not require our approval under Sec.  
162.353(b) becomes effective on the effective date specified in the 
assignment or sublease. If the assignment or sublease does not specify 
the effective date, it becomes effective upon execution by the parties.
    (b) We will provide copies of approved documents to the party 
requesting approval, to the tribe for tribal land, and upon request, to 
other parties to the lease document.



Sec.  162.362  What happens if BIA disapproves an amendment, assignment, 
sublease, or leasehold mortgage?

    If we disapprove an amendment, assignment, sublease, or leasehold 
mortgage of a residential lease, we will notify the parties immediately 
and advise the landowners of their right to appeal the decision under 
part 2 of this chapter.



Sec.  162.363  What happens if BIA does not meet a deadline 
for issuing a decision on a lease document?

    (a) If a Superintendent does not meet a deadline for issuing a 
decision on a lease, assignment, or leasehold mortgage, the parties may 
file a written notice to compel action with the appropriate Regional 
Director.
    (b) The Regional Director has 15 days from receiving the notice to:
    (1) Issue a decision; or
    (2) Order the Superintendent to issue a decision within the time set 
out in the order.
    (c) The parties may file a written notice to compel action with the 
BIA Director if:
    (1) The Regional Director does not meet the deadline in paragraph 
(b) of this section;
    (2) The Superintendent does not issue a decision within the time set 
by the Regional Director under paragraph (b)(2) of this section; or

[[Page 513]]

    (3) The initial decision on the lease, assignment, or leasehold 
mortgage is with the Regional Director, and he or she does not meet the 
deadline for such decision.
    (d) The BIA Director has 15 days from receiving the notice to:
    (1) Issue a decision; or
    (2) Order the Regional Director or Superintendent to issue a 
decision within the time set out in the order.
    (e) If the Regional Director or Superintendent does not issue a 
decision within the time set out in the order under paragraph (d)(2) of 
this section, then the BIA Director must issue a decision within 15 days 
from the expiration of the time set out in the order.
    (f) The parties may file an appeal from our inaction to the Interior 
Board of Indian Appeals if the Director does not meet the deadline in 
paragraph (d) or (e) of this section.
    (g) The provisions of 25 CFR 2.8 do not apply to the inaction of BIA 
officials with respect to a decision on a lease, amendment, assignment, 
sublease, or leasehold mortgage under this subpart.



Sec.  162.364  May BIA investigate compliance with a residential lease?

    (a) We may enter the leased premises at any reasonable time, upon 
reasonable notice, and consistent with any notice requirements under 
applicable tribal law and applicable lease documents, to protect the 
interests of the Indian landowners and ensure that the lessee is in 
compliance with the requirements of the lease.
    (b) If an Indian landowner notifies us that a specific lease 
violation has occurred, we will promptly initiate an appropriate 
investigation.



Sec.  162.365  May a residential lease provide for negotiated remedies 
if there is a violation?

    (a) A residential lease of tribal land may provide either or both 
parties with negotiated remedies in the event of a lease violation, 
including, but not limited to, the power to terminate the lease. If the 
lease provides one or both parties with the power to terminate the 
lease:
    (1) BIA approval of the termination is not required;
    (2) The termination is effective without BIA cancellation; and
    (3) The Indian landowners must notify us of the termination so that 
we may record it in the LTRO.
    (b) A residential lease of individually owned Indian land may 
provide either or both parties with negotiated remedies, so long as the 
lease also specifies the manner in which those remedies may be exercised 
by or on behalf of the Indian landowners of the applicable percentage of 
interests under Sec.  162.012 of this part. If the lease provides one or 
both parties with the power to terminate the lease:
    (1) BIA concurrence with the termination is required to ensure that 
the Indian landowners of the applicable percentage of interests have 
consented; and
    (2) BIA will record the termination in the LTRO.
    (c) The parties must notify any mortgagee of any violation that may 
result in termination and the termination of a residential lease.
    (d) Negotiated remedies may apply in addition to, or instead of, the 
cancellation remedy available to us, as specified in the lease. The 
landowners may request our assistance in enforcing negotiated remedies.
    (e) A residential lease may provide that lease violations will be 
addressed by the tribe, and that lease disputes will be resolved by a 
tribal court, any other court of competent jurisdiction, or by a tribal 
governing body in the absence of a tribal court, or through an 
alternative dispute resolution method. We may not be bound by decisions 
made in such forums, but we will defer to ongoing actions or 
proceedings, as appropriate, in deciding whether to exercise any of the 
remedies available to us.



162.366  What will BIA do about a violation of a residential lease?

    (a) In the absence of actions or proceedings described in Sec.  
162.365(e), or if it is not appropriate for us to defer to the actions 
or proceedings, we will follow the procedures in paragraphs (b), (c), 
and (d) of this section and, as applicable, ensure consistency with 25 
U.S.C. 4137.

[[Page 514]]

    (b) If we determine there has been a violation of the conditions of 
a residential lease other than a violation of payment provisions covered 
by paragraph (c) of this section, we will promptly send the lessee and 
any mortgagee a notice of violation by certified mail, return receipt 
requested.
    (1) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to Indian landowners for 
individually owned Indian land.
    (2) The notice of violation will advise the lessee that, within 10 
business days of the receipt of a notice of violation, the lessee must:
    (i) Cure the violation and notify us, and the tribe for tribal land, 
in writing that the violation has been cured;
    (ii) Dispute our determination that a violation has occurred; or
    (iii) Request additional time to cure the violation.
    (3) The notice of violation may order the lessee to cease operations 
under the lease.
    (c) A lessee's failure to pay rent in the time and manner required 
by a residential lease is a violation of the lease, and we will issue a 
notice of violation in accordance with this paragraph.
    (1) We will send the lessee and any mortgagee a notice of violation 
by certified mail, return receipt requested:
    (i) Promptly following the date on which the payment was due, if the 
lease requires that rental payments be made to us; or
    (ii) Promptly following the date on which we receive actual notice 
of non-payment from the Indian landowners, if the lease provides for 
payment directly to the Indian landowners.
    (2) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to Indian landowners for 
individually owned Indian land.
    (3) The notice of violation will require the lessee to provide 
adequate proof of payment.
    (d) The lessee will continue to be responsible for the obligations 
in the lease until the lease expires or is terminated or cancelled.



Sec.  162.367  What will BIA do if the lessee does not cure a violation 
of a residential lease on time?

    (a) If the lessee does not cure a violation of a residential lease 
within the required time period, or provide adequate proof of payment as 
required in the notice of violation, we will consult with the tribe for 
tribal land or, where feasible, with Indian landowners for individually 
owned Indian land, and determine whether:
    (1) We should cancel the lease;
    (2) The Indian landowners wish to invoke any remedies available to 
them under the lease;
    (3) We should invoke other remedies available under the lease or 
applicable law, including collection on any available performance bond 
or, for failure to pay rent, referral of the debt to the Department of 
the Treasury for collection; or
    (4) The lessee should be granted additional time in which to cure 
the violation.
    (b) Following consultation with the tribe for tribal land or, where 
feasible, with Indian landowners for individually owned Indian land, we 
may take action to recover unpaid rent and any associated late payment 
charges.
    (1) We do not have to cancel the lease or give any further notice to 
the lessee before taking action to recover unpaid rent.
    (2) We may still take action to recover any unpaid rent if we cancel 
the lease.
    (c) If we decide to cancel the lease, we will send the lessee and 
any mortgagee a cancellation letter by certified mail, return receipt 
requested within 5 business days of our decision. We will send a copy of 
the cancellation letter to the tribe for tribal land, and will provide 
Indian landowners for individually owned Indian land with actual or 
constructive notice of the cancellation. The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) If applicable, notify the lessee of the amount of any unpaid 
rent or late payment charges due under the lease;
    (3) Notify the lessee of the lessee's right to appeal under part 2 
of this chapter;

[[Page 515]]

    (4) Order the lessee to vacate the property within 31 days of the 
date of receipt of the cancellation letter, if an appeal is not filed by 
that time; and
    (5) Order the lessee to take any other action BIA deems necessary to 
protect the Indian landowners.
    (d) We may invoke any other remedies available to us under the 
lease, including collecting on any available performance bond, and the 
Indian landowners may pursue any available remedies under tribal law.
    (e) We will ensure that any action we take is consistent with 25 
U.S.C. 4137, as applicable.



Sec.  162.368  Will late payment charges or special fees apply to 
delinquent payments due under a residential lease?

    (a) Late payment charges will apply as specified in the lease. The 
failure to pay these amounts will be treated as a lease violation.
    (b) We may assess the following special fees to cover administrative 
costs incurred by the United States in the collection of the debt, if 
rent is not paid in the time and manner required, in addition to late 
payment charges that must be paid to the Indian landowners under the 
lease:

------------------------------------------------------------------------
        The lessee will pay . . .                    For . . .
------------------------------------------------------------------------
(1) $50.00..............................  Any dishonored check.
(2) $15.00..............................  Processing of each notice or
                                           demand letter.
(3) 18 percent of balance due...........  Treasury processing following
                                           referral for collection of
                                           delinquent debt.
------------------------------------------------------------------------



Sec.  162.369  How will payment rights relating to a residential lease 
be allocated?

    The residential lease may allocate rights to payment for insurance 
proceeds, trespass damages, condemnation awards, settlement funds, and 
other payments between the Indian landowners and the lessee. If not 
specified in the lease, insurance policy, order, award, judgment, or 
other document, the Indian landowners will be entitled to receive these 
payments.



Sec.  162.370  When will a cancellation of a residential lease be effective?

    (a) A cancellation involving a residential lease will not be 
effective until 31 days after the lessee receives a cancellation letter 
from us, or 41 days from the date we mailed the letter, whichever is 
earlier.
    (b) The cancellation decision will not be effective if an appeal is 
filed unless the cancellation is made immediately effective under part 2 
of this chapter. While a cancellation decision is ineffective, the 
lessee must continue to pay rent and comply with the other terms of the 
lease.



Sec.  162.371  What will BIA do if a lessee remains in possession 
after a residential lease expires or is terminated or cancelled?

    If a lessee remains in possession after the expiration, termination, 
or cancellation of a residential lease, we may treat the unauthorized 
possession as a trespass under applicable law in consultation with the 
Indian landowners. Unless the Indian landowners of the applicable 
percentage of interests under Sec.  162.012 have notified us in writing 
that they are engaged in good faith negotiations with the holdover 
lessee to obtain a new lease, we may take action to recover possession 
on behalf of the Indian landowners, and pursue any additional remedies 
available under applicable law, such as a forcible entry and detainer 
action.



Sec.  162.372  Will BIA appeal bond regulations apply to 
cancellation decisions involving residential leases?

    (a) Except as provided in paragraph (b) of this section, the appeal 
bond provisions in part 2 of this chapter will apply to appeals from 
lease cancellation decisions.
    (b) The lessee may not appeal the appeal bond decision. The lessee 
may, however, request that the official to whom the appeal is made 
reconsider the appeal bond decision, based on extraordinary 
circumstances. Any reconsideration decision is final for the Department.



Sec.  162.373  When will BIA issue a decision on an appeal 
from a residential leasing decision?

    BIA will issue a decision on an appeal from a leasing decision 
within 30 days of receipt of all pleadings.

[[Page 516]]



Sec.  162.374  What happens if the lessee abandons the leased premises?

    If a lessee abandons the leased premises, we will treat the 
abandonment as a violation of the lease. The lease may specify a period 
of non-use after which the lease premises will be considered abandoned.



                        Subpart D_Business Leases

    Source: 77 FR 72474, Dec. 5, 2012, unless otherwise noted.

                   Business Leasing General Provisions



Sec.  162.401  What types of leases does this subpart cover?

    (a) This subpart covers both ground leases (undeveloped land) and 
leases of developed land (together with the permanent improvements 
thereon) on Indian land that are not covered in another subpart of this 
part, including:
    (1) Leases for residential purposes that are not covered in subpart 
C;
    (2) Leases for business purposes that are not covered in subpart E;
    (3) Leases for religious, educational, recreational, cultural, or 
other public purposes; and
    (4) Commercial or industrial leases for retail, office, 
manufacturing, storage, biomass, waste-to-energy, or other business 
purposes.
    (b) Leases covered by this subpart may authorize the construction of 
single-purpose or mixed-use projects designed for use by any number of 
lessees or occupants.



Sec.  162.402  Is there a model business lease form?

    There is no model business lease form because of the need for 
flexibility in negotiating and writing business leases; however, we may:
    (a) Provide other guidance, such as checklists and sample lease 
provisions, to assist in the lease negotiation process; and
    (b) Assist the Indian landowners, upon their request, in developing 
appropriate lease provisions or in using tribal lease forms that conform 
to the requirements of this part.

                           Lease Requirements



Sec.  162.411  How long may the term of a business lease run?

    (a) A business lease must provide for a definite term, state if 
there is an option to renew, and if so, provide for a definite term for 
the renewal period. The maximum term of a lease approved under 25 U.S.C. 
415(a) may not exceed 50 years (consisting of an initial term not to 
exceed 25 years and one renewal not to exceed 25 years), unless a 
Federal statute provides for a longer maximum term (e.g., 25 U.S.C. 
415(a) allows for a maximum term of 99 years for certain tribes), a 
different initial term, renewal term, or number of renewals.
    (b) For tribal land, we will defer to the tribe's determination that 
the lease term, including any renewal, is reasonable. For individually 
owned Indian land, we will review the lease term, including any renewal, 
to ensure it is reasonable, given the:
    (1) Purpose of the lease;
    (2) Type of financing; and
    (3) Level of investment.
    (c) The lease may not be extended by holdover.



Sec.  162.412  What must the lease include if it contains an option to renew?

    (a) If the lease provides for an option to renew, the lease must 
specify:
    (1) The time and manner in which the option must be exercised or is 
automatically effective;
    (2) That confirmation of the renewal will be submitted to us, unless 
the lease provides for automatic renewal;
    (3) Whether Indian landowner consent to the renewal is required;
    (4) That the lessee must provide notice of the renewal to the Indian 
landowners and any sureties and mortgagees;
    (5) The additional consideration, if any, that will be due upon the 
exercise of the option to renew or the start of the renewal term; and
    (6) Any other conditions for renewal (e.g., that the lessee not be 
in violation of the lease at the time of renewal).
    (b) We will record any renewal of a lease in the LTRO.

[[Page 517]]



Sec.  162.413  Are there mandatory provisions that a business lease 
must contain?

    (a) All business leases must identify:
    (1) The tract or parcel of land being leased;
    (2) The purpose of the lease and authorized uses of the leased 
premises;
    (3) The parties to the lease;
    (4) The term of the lease;
    (5) The ownership of permanent improvements and the responsibility 
for constructing, operating, maintaining, and managing permanent 
improvements under Sec.  162.415;
    (6) Payment requirements and late payment charges, including 
interest;
    (7) Due diligence requirements under Sec.  162.417 (unless the lease 
is for religious, educational, recreational, cultural, or other public 
purposes);
    (8) Insurance requirements under Sec.  162.437; and
    (9) Bonding requirements under Sec.  162.434. If a performance bond 
is required, the lease must state that the lessee must obtain the 
consent of the surety for any legal instrument that directly affects 
their obligations and liabilities.
    (b) Where a representative executes a lease on behalf of an Indian 
landowner or lessee, the lease must identify the landowner or lessee 
being represented and the authority under which the action is taken.
    (c) All business leases must include the following provisions:
    (1) The obligations of the lessee and its sureties to the Indian 
landowners are also enforceable by the United States, so long as the 
land remains in trust or restricted status;
    (2) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, or negligent use or waste of the leased premises;
    (3) The lessee must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements under Sec.  162.014;
    (4) If historic properties, archeological resources, human remains, 
or other cultural items not previously reported are encountered during 
the course of any activity associated with this lease, all activity in 
the immediate vicinity of the properties, resources, remains, or items 
will cease and the lessee will contact BIA and the tribe with 
jurisdiction over the land to determine how to proceed and appropriate 
disposition;
    (5) BIA has the right, at any reasonable time during the term of the 
lease and upon reasonable notice, in accordance with Sec.  162.464, to 
enter the leased premises for inspection and to ensure compliance; and
    (6) BIA may, at its discretion, treat as a lease violation any 
failure by the lessee to cooperate with a BIA request to make 
appropriate records, reports, or information available for BIA 
inspection and duplication.
    (d) Unless the lessee would be prohibited by law from doing so, the 
lease must also contain the following provisions:
    (1) The lessee holds the United States and the Indian landowners 
harmless from any loss, liability, or damages resulting from the 
lessee's use or occupation of the leased premises; and
    (2) The lessee indemnifies the United States and the Indian 
landowners against all liabilities or costs relating to the use, 
handling, treatment, removal, storage, transportation, or disposal of 
hazardous materials, or the release or discharge of any hazardous 
material from the leased premises that occurs during the lease term, 
regardless of fault, with the exception that the lessee is not required 
to indemnify the Indian landowners for liability or cost arising from 
the Indian landowners' negligence or willful misconduct.
    (e) We may treat any provision of a lease document that violates 
Federal law as a violation of the lease.



Sec.  162.414  May permanent improvements be made under a business lease?

    The lessee may construct permanent improvements under a business 
lease if the business lease specifies, or provides for the development 
of:
    (a) A plan that describes the type and location of any permanent 
improvements to be constructed by the lessee; and
    (b) A general schedule for construction of the permanent 
improvements, including dates for commencement and completion of 
construction.

[[Page 518]]



Sec.  162.415  How must a business lease address ownership 
of permanent improvements?

    (a) A business lease must specify who will own any permanent 
improvements the lessee constructs during the lease term and may specify 
under what conditions, if any, permanent improvements the lessee 
constructs may be conveyed to the Indian landowners during the lease 
term. In addition, the lease must indicate whether each specific 
permanent improvement the lessee constructs will:
    (1) Remain on the leased premises, upon the expiration, 
cancellation, or termination of the lease, in a condition satisfactory 
to the Indian landowners, and become the property of the Indian 
landowners;
    (2) Be removed within a time period specified in the lease, at the 
lessee's expense, with the leased premises to be restored as closely as 
possible to their condition before construction of the permanent 
improvements; or
    (3) Be disposed of by other specified means.
    (b) A lease that requires the lessee to remove the permanent 
improvements must also provide the Indian landowners with an option to 
take possession of and title to the permanent improvements if the 
improvements are not removed within the specified time period.



Sec.  162.416  How will BIA enforce removal requirements in a business lease?

    (a) We may take appropriate enforcement action to ensure removal of 
the permanent improvements and restoration of the premises at the 
lessee's expense:
    (1) In consultation with the tribe, for tribal land or, where 
feasible, with Indian landowners for individually owned Indian land; and
    (2) Before or after expiration, termination, or cancellation of the 
lease.
    (b) We may collect and hold the performance bond or alternative form 
of security until removal and restoration are completed.



Sec.  162.417  What requirements for due diligence 
must a business lease include?

    (a) If permanent improvements are to be constructed, the business 
lease must include due diligence requirements that require the lessee to 
complete construction of any permanent improvements within the schedule 
specified in the lease or general schedule of construction, and a 
process for changing the schedule by mutual consent of the parties. If 
construction does not occur, or is not expected to be completed, within 
the time period specified in the lease, the lessee must provide the 
Indian landowners and BIA with an explanation of good cause as to the 
nature of any delay, the anticipated date of construction of facilities, 
and evidence of progress toward commencement of construction.
    (b) Failure of the lessee to comply with the due diligence 
requirements of the lease is a violation of the lease and may lead to 
cancellation of the lease under Sec.  162.467.
    (c) BIA may waive the requirements in this section if such waiver is 
in the best interest of the Indian landowners.
    (d) The requirements of this section do not apply to leases for 
religious, educational, recreational, cultural, or other public 
purposes.



Sec.  162.418  How must a business lease describe the land?

    (a) A business lease must describe the leased premises by reference 
to an official or certified survey, if possible. If the land cannot be 
so described, the lease must include one or more of the following:
    (1) A legal description;
    (2) A survey-grade global positioning system description; or
    (3) Another description prepared by a registered land surveyor that 
is sufficient to identify the leased premises.
    (b) If the tract is fractionated we will identify the undivided 
trust or restricted interests in the leased premises.



Sec.  162.419  May a business lease allow compatible uses?

    A business lease may provide for the Indian landowners to use, or 
authorize others to use, the leased premises for

[[Page 519]]

other uses compatible with the purpose of the business lease and 
consistent with the terms of the business lease. Any such use or 
authorization by the Indian landowners will not reduce or offset the 
monetary compensation for the business lease.

                   Monetary Compensation Requirements



Sec.  162.420  How much monetary compensation must be paid 
under a business lease of tribal land?

    (a) A business lease of tribal land may allow for any payment amount 
negotiated by the tribe, and we will defer to the tribe and not require 
a valuation if the tribe submits a tribal authorization expressly 
stating that it:
    (1) Has negotiated compensation satisfactory to the tribe;
    (2) Waives valuation; and
    (3) Has determined that accepting such negotiated compensation and 
waiving valuation is in its best interest.
    (b) The tribe may request, in writing, that we determine fair market 
rental, in which case we will use a valuation in accordance with Sec.  
162.422. After providing the tribe with the fair market rental, we will 
defer to a tribe's decision to allow for any payment amount negotiated 
by the tribe.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, we will require that the lease provide for fair market rental 
based on a valuation in accordance with Sec.  162.422.



Sec.  162.421  How much monetary compensation must be paid 
under a business lease of individually owned Indian land?

    (a) A business lease of individually owned Indian land must require 
payment of not less than fair market rental before any adjustments, 
based on a fixed amount, a percentage of the projected income, or some 
other method, unless paragraphs (b) or (c) of this section permit a 
lesser amount. The lease must establish how the fixed amount, 
percentage, or combination will be calculated and the frequency at which 
the payments will be made.
    (b) We may approve a lease of individually owned Indian land that 
provides for the payment of nominal compensation, or less than a fair 
market rental, if:
    (1) The Indian landowners execute a written waiver of the right to 
receive fair market rental; and
    (2) We determine it is in the Indian landowners' best interest, 
based on factors including, but not limited to:
    (i) The lessee is a member of the immediate family, as defined in 
Sec.  162.003, of an individual Indian landowner;
    (ii) The lessee is a co-owner in the leased tract;
    (iii) A special relationship or circumstances exist that we believe 
warrant approval of the lease;
    (iv) The lease is for religious, educational, recreational, 
cultural, or other public purposes;
    (v) We have waived the requirement for a valuation under paragraph 
(e) of this section.
    (c) We may approve a lease that provides for payment of less than a 
fair market rental during the pre-development or construction periods, 
if we determine it is in the Indian landowners' best interest. The lease 
must specify the amount of the compensation and the applicable periods.
    (d) We will require a valuation in accordance with Sec.  162.422, 
unless:
    (1) 100 percent of the Indian landowners submit to us a written 
request to waive the valuation requirement; or
    (2) We waive the requirement under paragraph (e) of this section.
    (e) If the owners of the applicable percentage of interests under 
Sec.  162.012 of this part execute a business lease on behalf of all of 
the Indian landowners of a fractionated tract, the lease must provide 
that the non-consenting Indian landowners, and those on whose behalf we 
have consented, receive a fair market rental, as determined by a 
valuation, unless we waive the requirement because the tribe or lessee 
will construct infrastructure improvements on, or serving, the leased 
premises, and we determine it is in the best interest of all the 
landowners.



Sec.  162.422  How will BIA determine fair market rental for a business lease?

    (a) We will use a market analysis, appraisal, or other appropriate 
valuation method to determine the fair market rental before we approve a 
business

[[Page 520]]

lease of individually owned Indian land or, at the request of the tribe, 
for tribal land.
    (b) We will either:
    (1) Prepare, or have prepared, a market analysis, appraisal, or 
other appropriate valuation method; or
    (2) Use an approved market analysis, appraisal, or other appropriate 
valuation method from the Indian landowners or lessee.
    (c) We will use or approve use of a market analysis, appraisal, or 
other appropriate valuation method only if it:
    (1) Has been prepared in accordance with USPAP or a valuation method 
developed by the Secretary under 25 U.S.C. 2214; and
    (2) Complies with Departmental policies regarding appraisals, 
including third-party appraisals.
    (d) Indian landowners may use competitive bidding as a valuation 
method.



Sec.  162.423  When are monetary compensation payments due 
under a business lease?

    (a) A business lease must specify the dates on which all payments 
are due.
    (b) Unless the lease provides otherwise, payments may not be made or 
accepted more than one year in advance of the due date.
    (c) Payments are due at the time specified in the lease, regardless 
of whether the lessee receives an advance billing or other notice that a 
payment is due.



Sec.  162.424  Must a business lease specify who receives 
monetary compensation payments?

    (a) A business lease must specify whether the lessee will make 
payments directly to the Indian landowners (direct pay) or to us on 
their behalf.
    (b) The lessee may make payments directly to the Indian landowners 
if:
    (1) The Indian landowners' trust accounts are unencumbered;
    (2) There are 10 or fewer beneficial owners; and
    (3) One hundred percent of the beneficial owners (including those on 
whose behalf we have consented) agree to receive payment directly from 
the lessee at the start of the lease.
    (c) If the lease provides that the lessee will directly pay the 
Indian landowners, then:
    (1) The lease must include provisions for proof of payment upon our 
request.
    (2) When we consent on behalf of an Indian landowner, the lessee 
must make payment to us on behalf of that landowner.
    (3) The lessee must send direct payments to the parties and 
addresses specified in the lease, unless the lessee receives notice of a 
change of ownership or address.
    (4) Unless the lease provides otherwise, compensation payments may 
not be made payable directly to anyone other than the Indian landowners.
    (5) Direct payments must continue through the duration of the lease, 
except that:
    (i) The lessee must make all Indian landowners' payments to us if 
100 percent of the Indian landowners agree to suspend direct pay and 
provide us with documentation of their agreement; and
    (ii) The lessee must make that individual Indian landowner's payment 
to us if any individual Indian landowner who dies, is declared non 
compos mentis, owes a debt resulting in a trust account encumbrance, or 
his or her whereabouts become unknown.



Sec.  162.425  What form of monetary compensation payment is acceptable 
under a business lease?

    (a) When payments are made directly to Indian landowners, the form 
of payment must be acceptable to the Indian landowners.
    (b) When payments are made to us, our preferred method of payment is 
electronic funds transfer payments. We will also accept:
    (1) Money orders;
    (2) Personal checks;
    (3) Certified checks; or
    (4) Cashier's checks.
    (c) We will not accept cash or foreign currency.
    (d) We will accept third-party checks only from financial 
institutions or Federal agencies.

[[Page 521]]



Sec.  162.426  May the business lease provide for non-monetary 
or varying types of compensation?

    (a) A lease may provide for the following, subject to the conditions 
in paragraphs (b) and (c) of this section:
    (1) Alternative forms of compensation, including but not limited to, 
in-kind consideration and payments based on percentage of income; or
    (2) Varying types of compensation at specific stages during the life 
of the lease, including but not limited to fixed annual payments during 
construction, payments based on income during an operational period, and 
bonuses.
    (b) For tribal land, we will defer to the tribe's determination that 
the compensation under paragraph (a) of this section is in its best 
interest, if the tribe submits a signed certification or tribal 
authorization stating that it has determined the compensation under 
paragraph (a) of this section to be in its best interest.
    (c) For individually owned land, we may approve a lease that 
provides for compensation under paragraph (a) of this section if we 
determine that it is in the best interest of the Indian landowners.



Sec.  162.427  Will BIA notify a lessee when a payment is due 
under a business lease?

    Upon request of the Indian landowners, we may issue invoices to a 
lessee in advance of the dates on which payments are due under a 
business lease. The lessee's obligation to make these payments in a 
timely manner will not be excused if invoices are not issued, delivered, 
or received.



Sec.  162.428  Must a business lease provide for compensation reviews 
or adjustments?

    (a) For a business lease of tribal land, unless the lease provides 
otherwise, no periodic review of the adequacy of compensation or 
adjustment is required if the tribe states in its tribal certification 
or authorization that it has determined that not having compensation 
reviews and/or adjustments is in its best interest.
    (b) For a business lease of individually owned Indian land, unless 
the lease provides otherwise, no periodic review of the adequacy of 
compensation or adjustment is required if:
    (1) If the term of the lease is 5 years or less;
    (2) The lease provides for automatic adjustments; or
    (3) We determine it is in the best interest of the Indian landowners 
not to require a review or automatic adjustment based on circumstances 
including, but not limited to, the following:
    (i) The lease provides for payment of less than fair market rental;
    (ii) The lease is for religious, educational, recreational, 
cultural, or other public purposes;
    (iii) The lease provides for most or all of the compensation to be 
paid during the first 5 years of the lease term or before the date the 
review would be conducted; or
    (iv) The lease provides for graduated rent or non-monetary or 
various types of compensation.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, a review of the adequacy of compensation must occur at least 
every fifth year, in the manner specified in the lease. The lease must 
specify:
    (1) When adjustments take effect;
    (2) Who can make adjustments;
    (3) What the adjustments are based on; and
    (4) How to resolve disputes arising from the adjustments.
    (d) When a review results in the need for adjustment of 
compensation, the Indian landowners must consent to the adjustment in 
accordance with Sec.  162.012, unless the lease provides otherwise.



Sec.  162.429  What other types of payments are required 
under a business lease?

    (a) The lessee may be required to pay additional fees, taxes, and 
assessments associated with the use of the land, as determined by 
entities having jurisdiction, except as provided in Sec.  162.017. The 
lessee must pay these amounts to the appropriate office.
    (b) If the leased premises are within an Indian irrigation project 
or drainage district, except as otherwise provided in part 171 of this 
chapter, the lessee must pay all operation and maintenance charges that 
accrue during the

[[Page 522]]

lease term. The lessee must pay these amounts to the appropriate office 
in charge of the irrigation project or drainage district. We will treat 
failure to make these payments as a violation of the lease.
    (c) Where the property is subject to at least one other lease for 
another compatible use, the lessees may agree among themselves how to 
allocate payment of the Indian irrigation operation and maintenance 
charges.

                          Bonding and Insurance



Sec.  162.434  Must a lessee provide a performance bond for a business lease?

    The lessee must provide a performance bond or alternative form of 
security, except as provided in paragraph (f) of this section.
    (a) The performance bond or alternative form of security must be in 
an amount sufficient to secure the contractual obligations including:
    (1) No less than:
    (i) The highest annual rental specified in the lease, if 
compensation is paid annually; or
    (ii) If the compensation is not paid annually, another amount 
established by BIA in consultation with the tribe for tribal land or, 
where feasible, with Indian landowners for individually owned Indian 
land;
    (2) The construction of any required permanent improvements;
    (3) The operation and maintenance charges for any land located 
within an irrigation project; and
    (4) The restoration and reclamation of the leased premises, to their 
condition at the start of the lease term or some other specified 
condition.
    (b) The performance bond or other security:
    (1) Must be deposited with us and made payable only to us, and may 
not be modified without our approval, except as provided in paragraph 
(b)(2) of this section; and
    (2) For tribal land, if the lease so provides, may be deposited with 
the tribe and made payable to the tribe, and may not be modified without 
the approval of the tribe.
    (c) The lease must specify the conditions under which we may adjust 
security or performance bond requirements to reflect changing 
conditions, including consultation with the tribal landowner for tribal 
land before the adjustment.
    (d) We may require that the surety provide any supporting documents 
needed to show that the performance bond or alternative forms of 
security will be enforceable, and that the surety will be able to 
perform the guaranteed obligations.
    (e) The performance bond or other security instrument must require 
the surety to provide notice to us at least 60 days before canceling a 
performance bond or other security. This will allow us to notify the 
lessee of its obligation to provide a substitute performance bond or 
other security and require collection of the bond or security before the 
cancellation date. Failure to provide a substitute performance bond or 
security is a violation of the lease.
    (f) We may waive the requirement for a performance bond or 
alternative form of security if either:
    (1) The lease is for religious, educational, recreational, cultural, 
or other public purposes; or
    (2) The Indian landowners request it and we determine a waiver is in 
the Indian landowners' best interest.
    (g) For tribal land, we will defer, to the maximum extent possible, 
to the tribe's determination that a waiver of a performance bond or 
alternative form of security is in its best interest.



Sec.  162.435  What forms of security are acceptable under a business lease?

    (a) We will accept a performance bond only in one of the following 
forms:
    (1) Certificates of deposit issued by a federally insured financial 
institution authorized to do business in the United States;
    (2) Irrevocable letters of credit issued by a federally insured 
financial institution authorized to do business in the United States;
    (3) Negotiable Treasury securities; or
    (4) Surety bonds issued by a company approved by the U.S. Department 
of the Treasury.
    (b) We may accept an alternative form of security approved by us 
that provides adequate protection for the Indian landowners and us, 
including

[[Page 523]]

but not limited to an escrow agreement and assigned savings account.
    (c) All forms of performance bonds or alternative security must, if 
applicable:
    (1) Indicate on their face that BIA approval is required for 
redemption;
    (2) Be accompanied by a statement granting full authority to BIA to 
make an immediate claim upon or sell them if the lessee violates the 
lease;
    (3) Be irrevocable during the term of the performance bond or 
alternative security; and
    (4) Be automatically renewable during the term of the lease.
    (d) We will not accept cash bonds.



Sec.  162.436  What is the release process for a performance bond 
or alternative form of security under a business lease?

    (a) Upon expiration, termination, or cancellation of the lease, the 
lessee may ask BIA in writing to release the performance bond or 
alternative form of security.
    (b) Upon receiving a request under paragraph (a) of this section, 
BIA will:
    (1) Confirm with the tribe, for tribal land or, where feasible, with 
the Indian landowners for individually owned Indian land, that the 
lessee has complied with all lease obligations; and
    (2) Release the performance bond or alternative form of security to 
the lessee, unless we determine that the bond or security must be 
redeemed to fulfill the contractual obligations.



Sec.  162.437  Must a lessee provide insurance for a business lease?

    Except as provided in paragraph (c) of this section, a lessee must 
provide insurance necessary to protect the interests of the Indian 
landowners and in the amount sufficient to protect all insurable 
permanent improvements on the premises.
    (a) The insurance may include property, crop, liability, and 
casualty insurance, depending on the Indian landowners' interests to be 
protected.
    (b) Both the Indian landowners and the United States must be 
identified as additional insured parties.
    (c) We may waive the requirement for insurance upon the request of 
the Indian landowner, if a waiver is in the best interest of the Indian 
landowner, including if the lease is for less than fair market rental or 
nominal compensation. For tribal land, we will defer, to the maximum 
extent possible, to the tribe's determination that a waiver is in its 
best interest.

                                Approval



Sec.  162.438  What documents are required for BIA approval 
of a business lease?

    A lessee or the Indian landowners must submit the following 
documents to us to obtain BIA approval of a business lease:
    (a) A lease executed by the Indian landowners and the lessee that 
meets the requirements of this part;
    (b) For tribal land, a tribal authorization for the lease and, if 
applicable, meeting the requirements of Sec. Sec.  162.420(a), 
162.426(b), and 162.428(a), or a separate signed certification meeting 
the requirements of Sec. Sec.  162.426(b) and 162.428(a));
    (c) A valuation, if required under Sec.  162.420 or Sec.  162.421;
    (d) Proof of insurance, if required under Sec.  162.437;
    (e) A performance bond or other security, if required under Sec.  
162.434;
    (f) Statement from the appropriate tribal authority that the 
proposed use is in conformance with applicable tribal law, if required 
by the tribe;
    (g) Environmental and archeological reports, surveys, and site 
assessments as needed to facilitate compliance with applicable Federal 
and tribal environmental and land use requirements, including any 
documentation prepared under Sec.  162.027(b);
    (h) A restoration and reclamation plan (and any subsequent 
modifications to the plan), if appropriate;
    (i) Where the lessee is not an entity owned and operated by the 
tribe, documents that demonstrate the technical capability of the lessee 
or lessee's agent to construct, operate, maintain, and terminate the 
proposed project and the lessee's ability to successfully design, 
construct, or obtain the funding for a project similar to the proposed 
project, if appropriate;
    (j) A preliminary plan of development that describes the type and 
location of any permanent improvements the lessee plans to construct and 
a

[[Page 524]]

schedule showing the tentative commencement and completion dates for 
those improvements, if appropriate;
    (k) A legal description of the land under Sec.  162.418;
    (l) If the lease is being approved under 25 U.S.C. 415, information 
to assist us in our evaluation of the factors in 25 U.S.C. 415(a); and
    (m) If the lessee is a corporation, limited liability company, 
partnership, joint venture, or other legal entity, except a tribal 
entity, information such as organizational documents, certificates, 
filing records, and resolutions, that demonstrates that:
    (1) The representative has authority to execute a lease;
    (2) The lease will be enforceable against the lessee; and
    (3) The legal entity is in good standing and authorized to conduct 
business in the jurisdiction where the land is located.



Sec.  162.439  Will BIA review a proposed business lease before 
or during preparation of the NEPA review documentation?

    Upon request of the Indian landowners, we will review the proposed 
business lease after negotiation by the parties, before or during 
preparation of the NEPA review documentation and any valuation. Within 
60 days of receiving the proposed lease, we will provide an 
acknowledgement of the terms of the lease and identify any provisions 
that, based on this acknowledgment review, would justify disapproval of 
the lease, pending results of the NEPA review and any valuation.



Sec.  162.440  What is the approval process for a business lease?

    (a) Before we approve a business lease, we must determine that the 
lease is in the best interest of the Indian landowners. In making that 
determination, we will:
    (1) Review the lease and supporting documents;
    (2) Identify potential environmental impacts and ensure compliance 
with all applicable environmental laws, land use laws, and ordinances;
    (3) If the lease is being approved under 25 U.S.C. 415, assure 
ourselves that adequate consideration has been given to the factors in 
25 U.S.C. 415(a); and
    (4) Require any lease modifications or mitigation measures necessary 
to satisfy any requirements including any other Federal or tribal land 
use requirements.
    (b) Upon receiving a business lease package, we will promptly notify 
the parties whether the package is or is not complete. A complete 
package includes all the information and supporting documents required 
under this subpart, including but not limited to, NEPA review 
documentation and valuation documentation, where applicable.
    (1) If the business lease package is not complete, our letter will 
identify the missing information or documents required for a complete 
package. If we do not respond to the submission of a business lease 
package, the parties may take action under Sec.  162.463.
    (2) If the business lease package is complete, we will notify the 
parties of the date of our receipt. Within 60 days of the receipt date, 
we will approve or disapprove the lease, return the package for 
revision, or inform the parties in writing that we need additional 
review time. If we inform the parties in writing that we need additional 
time, then:
    (i) Our letter informing the parties that we need additional review 
time must identify our initial concerns and invite the parties to 
respond within 15 days of the date of the letter; and
    (ii) We have 30 days from sending the letter informing the parties 
that we need additional time to approve or disapprove the lease.
    (c) If we do not meet the deadlines in this section, then the 
parties may take appropriate action under Sec.  162.463.
    (d) We will provide any lease approval or disapproval and the basis 
for the determination, along with notification of any appeal rights 
under part 2 of this chapter, in writing to the parties to the lease.
    (e) We will provide approved business leases on tribal land to the 
lessee and provide a copy to the tribe. We will provide approved 
business leases on individually owned Indian land to the lessee, and 
make copies available to the Indian landowners upon written request.

[[Page 525]]



Sec.  162.441  How will BIA decide whether to approve a business lease?

    (a) We will approve a business lease unless:
    (1) The required consents have not been obtained from the parties to 
the lease;
    (2) The requirements of this subpart have not been met; or
    (3) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the lease is in their best interest.
    (c) We may not unreasonably withhold approval of a lease.



Sec.  162.442  When will a business lease be effective?

    (a) A business lease will be effective on the date that we approve 
the lease, even if an appeal is filed under part 2 of this chapter.
    (b) The lease may specify a date on which the obligations between 
the parties to the business lease are triggered. Such date may be before 
or after the approval date under paragraph (a) of this section.



Sec.  162.443  Must a business lease document be recorded?

    (a) Any business lease document must be recorded in our LTRO with 
jurisdiction over the leased land.
    (1) We will record the lease document immediately following our 
approval.
    (2) If our approval of an assignment or sublease is not required, 
the parties must record the assignment or sublease in the LTRO with 
jurisdiction over the leased land.
    (b) The tribe must record lease documents for the following types of 
leases in the LTRO with jurisdiction over the leased lands, even though 
BIA approval is not required:
    (1) Leases of tribal land a corporate entity leases to a third party 
under 25 U.S.C. 477; and
    (2) Leases of tribal land under a special act of Congress 
authorizing leases without our approval under certain conditions.



Sec.  162.444  Will BIA require an appeal bond for an appeal of a decision 
on a business lease document?

    (a) If a party appeals our decision on a lease, assignment, 
amendment, or sublease, then the official to whom the appeal is made may 
require the appellant to post an appeal bond in accordance with part 2 
of this chapter. We will not require an appeal bond:
    (1) For an appeal of a decision on a leasehold mortgage; or
    (2) If the tribe is a party to the appeal and requests a waiver of 
the appeal bond.
    (b) The appellant may not appeal the appeal bond decision. The 
appellant may, however, request that the official to whom the appeal is 
made reconsider the bond decision, based on extraordinary circumstances. 
Any reconsideration decision is final for the Department.

                               Amendments



Sec.  162.445  May the parties amend a business lease?

    The parties may amend a business lease by obtaining:
    (a) The lessee's signature;
    (b) The Indian landowners' consent under the requirements in Sec.  
162.446; and
    (c) BIA approval of the amendment under Sec. Sec.  162.447 and 
162.448.



Sec.  162.446  What are the consent requirements for an amendment 
to a business lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed amendment.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to an amendment of a business lease in the same 
percentages and manner as a new business lease under Sec.  162.012, 
unless the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the amendment within a 
specified period of time following the landowners' receipt of the 
amendment and the lease meets the requirements of paragraph (c) of this 
section;

[[Page 526]]

    (2) Authorizes one or more representatives to consent to an 
amendment on behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consenting to an amendment.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed amendment or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the amendment to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for us to review.
    (d) Unless specifically authorized in the lease, a written power of 
attorney, or a court document, Indian landowners may not be deemed to 
have consented to, and an Indian landowner's designated representative 
may not negotiate or consent to, an amendment that would:
    (1) Reduce the payment obligations to the Indian landowners;
    (2) Increase or decrease the lease area;
    (3) Terminate or change the term of the lease; or
    (4) Modify the dispute resolution procedures.



Sec.  162.447  What is the approval process for an amendment 
to a business lease?

    (a) When we receive an amendment that meets the requirements of this 
subpart, we will notify the parties of the date we receive it. We have 
30 days from receipt of the executed amendment, proof of required 
consents, and required documentation to approve or disapprove the 
amendment or inform the parties in writing that we need additional 
review time. Our determination whether to approve the amendment will be 
in writing and will state the basis for our approval or disapproval.
    (b) Our letter informing the parties that we need additional review 
time must identify our initial concerns and invite the parties to 
respond within 15 days of the date of the letter. We have 30 days from 
sending the letter informing the parties that we need additional time to 
approve or disapprove the amendment.
    (c) If we do not meet the deadline in paragraph (a) or this section, 
or paragraph (b) of this section if applicable, the amendment is deemed 
approved to the extent consistent with Federal law. Unless the lease 
provides otherwise, provisions of the amendment that are inconsistent 
with Federal law will be severed and unenforceable; all other provisions 
of the amendment will remain in force.



Sec.  162.448  How will BIA decide whether to approve an amendment 
to a business lease?

    (a) We may disapprove a business lease amendment only if at least 
one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The lessee is in violation of the lease;
    (4) The requirements of this subpart have not been met; or
    (5) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible to the Indian 
landowners' determination that the amendment is in their best interest.
    (c) We may not unreasonably withhold approval of an amendment.

                               Assignments



Sec.  162.449  May a lessee assign a business lease?

    (a) A lessee may assign a business lease by meeting the consent 
requirements in Sec.  162.450 and obtaining our approval of the 
assignment under Sec. Sec.  162.451 and 162.452, or by meeting the 
conditions in paragraphs (b) or (c) of this section.
    (b) Where provided in the lease, the lessee may assign the lease to 
the following without meeting consent requirements or obtaining BIA 
approval of the assignment, as long as the lessee notifies BIA of the 
assignment within 30 days after it is executed:
    (1) Not more than three distinct legal entities specified in the 
lease; or

[[Page 527]]

    (2) The lessee's wholly owned subsidiaries.
    (c) The lessee may assign the lease without our approval or meeting 
consent requirements if:
    (1) The assignee is a leasehold mortgagee or its designee, acquiring 
the lease either through foreclosure or by conveyance;
    (2) The assignee agrees in writing to assume all of the obligations 
and conditions of the lease; and
    (3) The assignee agrees in writing that any transfer of the lease 
will be in accordance with applicable law under Sec.  162.014.



Sec.  162.450  What are the consent requirements for an assignment 
of a business lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed assignment.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to an amendment of a business lease in the same 
percentages and manner as a new business lease under Sec.  162.012, 
unless the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the amendment within a 
specified period of time following the landowners' receipt of the 
amendment and the lease meets the requirements of paragraph (c) of this 
section;
    (2) Authorizes one or more representatives to consent to an 
amendment on behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consenting to an amendment.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed amendment or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the amendment to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for us to review.
    (d) The lessee must obtain the consent of the holders of any bonds 
or mortgages.



Sec.  162.451  What is the approval process for an assignment 
of a business lease?

    (a) When we receive an assignment that meets the requirements of 
this subpart, we will notify the parties of the date we receive it. If 
our approval is required, we have 30 days from receipt of the executed 
assignment, proof of required consents, and required documentation to 
approve or disapprove the assignment. Our determination whether to 
approve the assignment will be in writing and will state the basis for 
our approval or disapproval.
    (b) If we do not meet the deadline in this section, the lessee or 
Indian landowners may take appropriate action under Sec.  162.463.



Sec.  162.452  How will BIA decide whether to approve an assignment 
of a business lease?

    (a) We may disapprove an assignment of a business lease only if at 
least one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The lessee is in violation of the lease;
    (4) The assignee does not agree to be bound by the terms of the 
lease;
    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(6) of this 
section, we may consider whether:
    (1) The value of any part of the leased premises not covered by the 
assignment would be adversely affected; and
    (2) If a performance bond is required, the assignee has posted the 
bond or security and provided supporting documents that demonstrate 
that:
    (i) The lease will be enforceable against the assignee; and
    (ii) The assignee will be able to perform its obligations under the 
lease or assignment.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners'

[[Page 528]]

determination that the assignment is in their best interest.
    (d) We may not unreasonably withhold approval of an assignment.

                                Subleases



Sec.  162.453  May a lessee sublease a business lease?

    (a) A lessee may sublease a business lease by meeting the consent 
requirements in Sec.  162.454 and obtaining our approval of the sublease 
under Sec. Sec.  162.455 and 162.456, or by meeting the conditions in 
paragraph (b) of this section.
    (b) Where the sublease is part of a commercial development or 
residential development, the lessee may sublease without meeting consent 
requirements or obtaining BIA approval of the sublease, if:
    (1) The lease provides for subleasing without meeting consent 
requirements or obtaining BIA approval;
    (2) The sublease does not relieve the lessee/sublessor of any 
liability; and
    (3) The parties provide BIA with a copy of the sublease within 30 
days after it is executed.



Sec.  162.454  What are the consent requirements for a sublease 
of a business lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed sublease.
    (b) The Indian landowners must consent to a sublease of a business 
lease in the same percentages and manner as a new business lease under 
Sec.  162.012, unless the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the sublease within a 
specified period of time following the landowners' receipt of the 
sublease and the lease meets the requirements of paragraph (c) of this 
section;
    (2) Authorizes one or more representatives to consent to a sublease 
on behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consenting to a sublease.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed sublease or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the sublease to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for us to review.



Sec.  162.455  What is the approval process for a sublease of a business lease?

    (a) When we receive a sublease that meets the requirements of this 
subpart, we will notify the parties of the date we receive it. If our 
approval is required, we have 30 days from receipt of the executed 
sublease, proof of required consents, and required documentation to 
approve or disapprove the sublease or inform the parties in writing that 
we need additional review time. Our determination whether to approve the 
sublease will be in writing and will state the basis for our approval or 
disapproval.
    (b) Our letter informing the parties that we need additional review 
time must identify our initial concerns and invite the parties to 
respond within 15 days of the date of the letter. We have 30 days from 
sending the letter informing the parties that we need additional time to 
approve or disapprove the sublease.
    (c) If we do not meet the deadline in paragraph (a) of this section, 
or paragraph (b) of this section if applicable, the sublease is deemed 
approved to the extent consistent with Federal law. Unless the lease 
provides otherwise, provisions of the sublease that are inconsistent 
with Federal law will be severed and unenforceable; all other provisions 
of the sublease will remain in force.



Sec.  162.456  How will BIA decide whether to approve a sublease 
of a business lease?

    (a) We may disapprove a sublease of a business lease only if at 
least one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The lessee is in violation of the lease;

[[Page 529]]

    (4) The lessee will not remain liable under the lease;
    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(6) of this 
section, we may consider whether the value of any part of the leased 
premises not covered by the sublease would be adversely affected.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the sublease is in their best interest.
    (d) We may not unreasonably withhold approval of a sublease.

                           Leasehold Mortgages



Sec.  162.457  May a lessee mortgage a business lease?

    (a) A lessee may mortgage a business lease by meeting the consent 
requirements in Sec.  162.458 and obtaining our approval of the 
leasehold mortgage under Sec. Sec.  162.459 and 162.460.
    (b) Refer to Sec.  162.449(c) for information on what happens if a 
sale or foreclosure under an approved mortgage of the leasehold interest 
occurs.



Sec.  162.458  What are the consent requirements for a leasehold mortgage 
of a business lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed leasehold mortgage.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to a leasehold mortgage of a business lease in the 
same percentages and manner as a new business lease under Sec.  162.012, 
unless the lease:
    (1) States that landowner consent is not required for a leasehold 
mortgage and identifies what law would apply in case of foreclosure;
    (2) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the leasehold mortgage 
within a specified period of time following the landowners' receipt of 
the leasehold mortgage and the lease meets the requirements of paragraph 
(c) of this section;
    (3) Authorizes one or more representatives to consent to a leasehold 
mortgage on behalf of all Indian landowners; or
    (4) Designates us as the Indian landowners' representative for the 
purposes of consenting to a leasehold mortgage.
    (c) If the lease provides for deemed consent under paragraph (b)(2) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed leasehold mortgage or other documentation 
of any Indian landowners' actual consent;
    (2) Proof of mailing of the leasehold mortgage to any Indian 
landowners who are deemed to have consented; and
    (3) Any other pertinent information for us to review.



Sec.  162.459  What is the approval process for a leasehold mortgage 
of a business lease?

    (a) When we receive a leasehold mortgage that meets the requirements 
of this subpart, we will notify the parties of the date we receive it. 
We have 20 days from receipt of the executed leasehold mortgage, proof 
of required consents, and required documentation to approve or 
disapprove the leasehold mortgage. Our determination whether to approve 
the leasehold mortgage will be in writing and will state the basis for 
our approval or disapproval.
    (b) If we do not meet the deadline in this section, the lessee may 
take appropriate action under Sec.  162.463.



Sec.  162.460  How will BIA decide whether to approve a leasehold mortgage 
of a business lease?

    (a) We may disapprove a leasehold mortgage of a business lease only 
if at least one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The requirements of this subpart have not been met; or
    (4) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.

[[Page 530]]

    (b) In making the finding required by paragraph (a)(4) of this 
section, we may consider whether:
    (1) The leasehold mortgage proceeds would be used for purposes 
unrelated to the leased premises; and
    (2) The leasehold mortgage is limited to the leasehold.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the leasehold mortgage is in their best 
interest.
    (d) We may not unreasonably withhold approval of a leasehold 
mortgage.

               Effectiveness, Compliance, and Enforcement



Sec.  162.461  When will an amendment, assignment, sublease, 
or leasehold mortgage of a business lease be effective?

    (a) An amendment, assignment, sublease, or leasehold mortgage of a 
business lease will be effective when approved, even if an appeal is 
filed under part 2 of this chapter, except:
    (1) If the amendment or sublease was deemed approved under Sec.  
162.447(c) or Sec.  162.455(c), the amendment or sublease becomes 
effective 45 days from the date the parties mailed or delivered the 
document to us for our review or, if we sent a letter informing the 
parties that we need additional time to approve or disapprove the lease, 
the amendment or sublease becomes effective 45 days from the date of the 
letter informing the parties that we need additional time to approve or 
disapprove the lease; and
    (2) An assignment that does not require our approval under Sec.  
162.449(b) or Sec.  162.449(c) or a sublease that does not require our 
approval under Sec.  152.453(b) becomes effective on the effective date 
specified in the assignment or sublease. If the assignment or sublease 
does not specify the effective date, it becomes effective upon execution 
by the parties.
    (b) We will provide copies of approved documents to the party 
requesting approval, to the tribe for tribal land, and upon request, to 
other parties to the lease document.



Sec.  162.462  What happens if BIA disapproves an amendment, assignment, 
sublease, or leasehold mortgage of a business lease?

    If we disapprove an amendment, assignment, sublease, or leasehold 
mortgage of a business lease, we will notify the parties immediately and 
advise the landowners of their right to appeal the decision under part 2 
of this chapter.



Sec.  162.463  What happens if BIA does not meet a deadline for issuing 
a decision on a lease document?

    (a) If a Superintendent does not meet a deadline for issuing a 
decision on a lease, assignment, or leasehold mortgage, the parties may 
file a written notice to compel action with the appropriate Regional 
Director.
    (b) The Regional Director has 15 days from receiving the notice to:
    (1) Issue a decision; or
    (2) Order the Superintendent to issue a decision within the time set 
out in the order.
    (c) The parties may file a written notice to compel action with the 
BIA Director if:
    (1) The Regional Director does not meet the deadline in paragraph 
(b) of this section;
    (2) The Superintendent does not issue a decision within the time set 
by the Regional Director under paragraph (b)(2) of this section; or
    (3) The initial decision on the lease, assignment, or leasehold 
mortgage is with the Regional Director, and he or she does not meet the 
deadline for such decision.
    (d) The BIA Director has 15 days from receiving the notice to:
    (1) Issue a decision; or
    (2) Order the Regional Director or Superintendent to issue a 
decision within the time set out in the order.
    (e) If the Regional Director or Superintendent does not issue a 
decision within the time set out in the order under paragraph (d)(2), 
then the BIA Director must issue a decision within 15 days from the 
expiration of the time set out in the order.
    (f) The parties may file an appeal from our inaction to the Interior 
Board of Indian Appeals if the Director does not meet the deadline in 
paragraph (d) or (e) of this section.

[[Page 531]]

    (g) The provisions of 25 CFR 2.8 do not apply to the inaction of BIA 
officials with respect to a decision on a lease, amendment, assignment, 
sublease, or leasehold mortgage under this subpart.



Sec.  162.464  May BIA investigate compliance with a business lease?

    (a) We may enter the leased premises at any reasonable time, upon 
reasonable notice, and consistent with any notice requirements under 
applicable tribal law and applicable lease documents, to protect the 
interests of the Indian landowners and to determine if the lessee is in 
compliance with the requirements of the lease.
    (b) If an Indian landowner notifies us that a specific lease 
violation has occurred, we will promptly initiate an appropriate 
investigation.



Sec.  162.465  May a business lease provide for negotiated remedies 
if there is a violation?

    (a) A business lease of tribal land may provide either or both 
parties with negotiated remedies in the event of a lease violation, 
including, but not limited to, the power to terminate the lease. If the 
lease provides one or both parties with the power to terminate the 
lease:
    (1) BIA approval of the termination is not required;
    (2) The termination is effective without BIA cancellation; and
    (3) The Indian landowners must notify us of the termination so that 
we may record it in the LTRO.
    (b) A business lease of individually owned Indian land may provide 
either or both parties with negotiated remedies, so long as the lease 
also specifies the manner in which those remedies may be exercised by or 
on behalf of the Indian landowners of the applicable percentage of 
interests under Sec.  162.012 of this part. If the lease provides one or 
both parties with the power to terminate the lease:
    (1) BIA concurrence with the termination is required to ensure that 
the Indian landowners of the applicable percentage of interests have 
consented; and
    (2) BIA will record the termination in the LTRO.
    (c) The parties must notify any surety or mortgagee of any violation 
that may result in termination and the termination of a business lease.
    (d) Negotiated remedies may apply in addition to, or instead of, the 
cancellation remedy available to us, as specified in the lease. The 
landowners may request our assistance in enforcing negotiated remedies.
    (e) A business lease may provide that lease violations will be 
addressed by a tribe, and that lease disputes will be resolved by a 
tribal court, any other court of competent jurisdiction, or by a tribal 
governing body in the absence of a tribal court, or through an 
alternative dispute resolution method. We may not be bound by decisions 
made in such forums, but we will defer to ongoing actions or 
proceedings, as appropriate, in deciding whether to exercise any of the 
remedies available to us.



Sec.  162.466  What will BIA do about a violation of a business lease?

    (a) In the absence of actions or proceedings described in Sec.  
162.465(e), or if it is not appropriate for us to defer to the actions 
or proceedings, we will follow the procedures in paragraphs (b) and (c) 
of this section.
    (b) If we determine there has been a violation of the conditions of 
a business lease, other than a violation of payment provisions covered 
by paragraph (c) of this section, we will promptly send the lessee and 
any surety and mortgagee a notice of violation by certified mail, return 
receipt requested.
    (1) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to Indian landowners for 
individually owned Indian land.
    (2) The notice of violation will advise the lessee that, within 10 
business days of the receipt of a notice of violation, the lessee must:
    (i) Cure the violation and notify us, and the tribe for tribal land, 
in writing that the violation has been cured;
    (ii) Dispute our determination that a violation has occurred; or
    (iii) Request additional time to cure the violation.

[[Page 532]]

    (3) The notice of violation may order the lessee to cease operations 
under the lease.
    (c) A lessee's failure to pay compensation in the time and manner 
required by a business lease is a violation of the lease, and we will 
issue a notice of violation in accordance with this paragraph.
    (1) We will send the lessees and any surety and mortgagee a notice 
of violation by certified mail, return receipt requested:
    (i) Promptly following the date on which the payment was due, if the 
lease requires that payments be made to us; or
    (ii) Promptly following the date on which we receive actual notice 
of non-payment from the Indian landowners, if the lease provides for 
payment directly to the Indian landowners.
    (2) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to the Indian landowners for 
individually owned Indian land.
    (3) The notice of violation will require the lessee to provide 
adequate proof of payment.
    (d) The lessee and its sureties will continue to be responsible for 
the obligations in the lease until the lease expires, or is terminated 
or cancelled.



Sec.  162.467  What will BIA do if the lessee does not cure 
a violation of a business lease on time?

    (a) If the lessee does not cure a violation of a business lease 
within the required time period, or provide adequate proof of payment as 
required in the notice of violation, we will consult with the tribe for 
tribal land or, where feasible, with Indian landowners for individually 
owned Indian land, and determine whether:
    (1) We should cancel the lease;
    (2) The Indian landowners wish to invoke any remedies available to 
them under the lease;
    (3) We should invoke other remedies available under the lease or 
applicable law, including collection on any available performance bond 
or, for failure to pay compensation, referral of the debt to the 
Department of the Treasury for collection; or
    (4) The lessee should be granted additional time in which to cure 
the violation.
    (b) Following consultation with the tribe for tribal land or, where 
feasible, with Indian landowners for individually owned Indian land, we 
may take action to recover unpaid compensation and any associated late 
payment charges.
    (1) We do not have to cancel the lease or give any further notice to 
the lessee before taking action to recover unpaid compensation.
    (2) We may still take action to recover any unpaid compensation if 
we cancel the lease.
    (c) If we decide to cancel the lease, we will send the lessee and 
any surety and mortgagee a cancellation letter by certified mail, return 
receipt requested, within 5 business days of our decision. We will send 
a copy of the cancellation letter to the tribe for tribal land, and will 
provide Indian landowners for individually owned Indian land with actual 
or constructive notice of the cancellation. The cancellation letter 
will:
    (1) Explain the grounds for cancellation;
    (2) If applicable, notify the lessee of the amount of any unpaid 
compensation or late payment charges due under the lease;
    (3) Notify the lessee of the lessee's right to appeal under part 2 
of this chapter, including the possibility that the official to whom the 
appeal is made may require the lessee to post an appeal bond;
    (4) Order the lessee to vacate the property within 31 days of the 
date of receipt of the cancellation letter, if an appeal is not filed by 
that time; and
    (5) Order the lessee to take any other action BIA deems necessary to 
protect the Indian landowners.
    (d) We may invoke any other remedies available to us under the 
lease, including collecting on any available performance bond, and the 
Indian landowners may pursue any available remedies under tribal law.

[[Page 533]]



Sec.  162.468  Will late payment charges or special fees apply to 
delinquent payments due under a business lease?

    (a) Late payment charges will apply as specified in the lease. The 
failure to pay these amounts will be treated as a lease violation.
    (b) We may assess the following special fees to cover administrative 
costs incurred by the United States in the collection of the debt, if 
compensation is not paid in the time and manner required, in addition to 
the late payment charges that must be paid to the Indian landowners 
under the lease:

------------------------------------------------------------------------
        The lessee will pay . . .                    For . . .
------------------------------------------------------------------------
(1) $50.00...............................  Any dishonored check.
(2) $15.00...............................  Processing of each notice or
                                            demand letter.
(3) 18 percent of balance due............  Treasury processing following
                                            referral for collection of
                                            delinquent debt.
------------------------------------------------------------------------



Sec.  162.469  How will payment rights relating to a business lease 
be allocated?

    The business lease may allocate rights to payment for insurance 
proceeds, trespass damages, condemnation awards, settlement funds, and 
other payments between the Indian landowners and the lessee. If not 
specified in the lease, insurance policy, order, award, judgment, or 
other document, the Indian landowners or lessees will be entitled to 
receive these payments.



Sec.  162.470  When will a cancellation of a business lease be effective?

    (a) A cancellation involving a business lease will not be effective 
until 31 days after the lessee receives a cancellation letter from us, 
or 41 days from the date we mailed the letter, whichever is earlier.
    (b) The cancellation decision will not be effective if an appeal is 
filed unless the cancellation is made immediately effective under part 2 
of this chapter. While a cancellation decision is ineffective, the 
lessee must continue to pay compensation and comply with the other terms 
of the lease.



Sec.  162.471  What will BIA do if a lessee remains in possession 
after a business lease expires or is terminated or cancelled?

    If a lessee remains in possession after the expiration, termination, 
or cancellation of a business lease, we may treat the unauthorized 
possession as a trespass under applicable law in consultation with the 
Indian landowners. Unless the Indian landowners of the applicable 
percentage of interests under Sec.  162.012 have notified us in writing 
that they are engaged in good faith negotiations with the holdover 
lessee to obtain a new lease, we may take action to recover possession 
on behalf of the Indian landowners, and pursue any additional remedies 
available under applicable law, such as a forcible entry and detainer 
action.



Sec.  162.472  Will BIA appeal bond regulations apply to 
cancellation decisions involving business leases?

    (a) Except as provided in paragraph (b) of this section, the appeal 
bond provisions in part 2 of this chapter will apply to appeals from 
lease cancellation decisions
    (b) The lessee may not appeal the appeal bond decision. The lessee 
may, however, request that the official to whom the appeal is made 
reconsider the appeal bond decision, based on extraordinary 
circumstances. Any reconsideration decision is final for the Department.



Sec.  162.473  When will BIA issue a decision on an appeal 
from a business leasing decision?

    BIA will issue a decision on an appeal from a business leasing 
decision within 60 days of receipt of all pleadings.



Sec.  162.474  What happens if the lessee abandons the leased premises?

    If a lessee abandons the leased premises, we will treat the 
abandonment as a violation of the lease. The lease may specify a period 
of non-use after which the lease premises will be considered abandoned.

[[Page 534]]



                Subpart E_Wind and Solar Resource Leases

    Source: 77 FR 72494, Dec. 5, 2012, unless otherwise noted.

          General Provisions Applicable to WEELs and WSR Leases



Sec.  162.501  What types of leases does this subpart cover?

    (a) This subpart covers:
    (1) Wind energy evaluation leases (WEELs), which are short-term 
leases that authorize possession of Indian land for the purpose of 
installing, operating, and maintaining instrumentation, and associated 
infrastructure, such as meteorological towers, to evaluate wind 
resources for electricity generation; and
    (2) Wind and solar resource (WSR) leases, which are leases that 
authorize possession of Indian land for the purpose of installing, 
operating, and maintaining instrumentation, facilities, and associated 
infrastructure, such as wind turbines and solar panels, to harness wind 
and/or solar energy to generate and supply electricity:
    (i) For resale on a for-profit or non-profit basis;
    (ii) To a utility grid serving the public generally; or
    (iii) To users within the local community (e.g., on and adjacent to 
a reservation).
    (b) If the generation of electricity is solely to support a use 
approved under subpart B, Agricultural Leases; subpart C, Residential 
Leases; or subpart D Business Leases (including religious, educational, 
recreational, cultural, or other public purposes), for the same parcel 
of land, then the installation, operation, and maintenance of 
instrumentation, facilities, and associated infrastructure are governed 
by subpart B, C, or D, as appropriate.



Sec.  162.502  Who must obtain a WEEL or WSR lease?

    (a) Anyone seeking to possess Indian land to conduct activities 
associated with the evaluation of wind resources must obtain a WEEL, 
except that a WEEL is not required if use or possession of the Indian 
land to conduct wind energy evaluation activities is authorized:
    (1) Under Sec.  162.005(b);
    (2) By a permit from the Indian landowners under Sec.  162.007; or
    (3) By a tribe on its land under 25 U.S.C. 81.
    (b) Except as provided in Sec. Sec.  162.005(b), 162.501, and 
paragraph (c) of this section, anyone seeking to possess Indian land to 
conduct activities associated with the development of wind and/or solar 
resources must obtain a WSR lease.
    (c) A tribe that conducts wind and solar resource activities on its 
tribal land does not need a WEEL or WSR under this subpart.



Sec.  162.503  Is there a model WEEL or WSR lease?

    There is no model WEEL or WSR lease because of the need for 
flexibility in negotiating and writing WEELs and WSR leases; however, we 
may:
    (a) Provide other guidance, such as checklists and sample lease 
provisions, to assist in the lease negotiation process; and
    (b) Assist the Indian landowners, upon their request, in developing 
appropriate lease provisions or in using tribal lease forms that conform 
to the requirements of this part.

                                  WEELs



Sec.  162.511  What is the purpose of a WEEL?

    A WEEL is a short-term lease that allows the lessee to possess trust 
or restricted lands for the purpose of evaluating wind resources. The 
lessee may use information collected under the WEEL to assess the 
potential for wind energy development, and determine future placement 
and type of wind energy technology to use in developing the energy 
resource potential of the leased area.



Sec.  162.512  How long may the term of a WEEL run?

    (a) A WEEL must provide for a definite term, state if there is an 
option to renew and if so, provide for a definite term for the renewal 
period. WEELs are for project evaluation purposes, and therefore may 
have:

[[Page 535]]

    (1) An initial term that is no longer than 3 years; and
    (2) One renewal period not to exceed 3 years.
    (b) The exercise of the option to renew must be in writing and the 
WEEL must specify:
    (1) The time and manner in which the option must be exercised or is 
automatically effective;
    (2) That confirmation of the renewal will be submitted to us, unless 
the WEEL provides for automatic renewal; and
    (3) Additional consideration, if any, that will be due upon the 
exercise of the option to renew or the start of the renewal term.



Sec.  162.513  Are there mandatory provisions a WEEL must contain?

    (a) All WEELs must identify:
    (1) The tract or parcel of land being leased;
    (2) The purpose of the WEEL and authorized uses of the leased 
premises;
    (3) The parties to the WEEL;
    (4) The term of the WEEL;
    (5) The ownership of permanent improvements and the responsibility 
for constructing, operating, maintaining, and managing permanent 
improvements, under Sec.  162.515;
    (6) Payment requirements and late payment charges, including 
interest;
    (7) Due diligence requirements, under Sec.  162.517; and
    (8) Insurance requirements, under Sec.  162.527.
    (b) Where a representative executes a lease on behalf of an Indian 
landowner or lessee, the lease must identify the landowner or lessee 
being represented and the authority under which the action is taken.
    (c) All WEELs must include the following provisions:
    (1) The obligations of the lessee and its sureties to the Indian 
landowners are also enforceable by the United States, so long as the 
land remains in trust or restricted status;
    (2) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, or negligent use or waste of leased premises;
    (3) The lessee must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements under Sec.  162.014;
    (4) If historic properties, archeological resources, human remains, 
or other cultural items, not previously reported are encountered during 
the course of any activity associated with this lease, all activity in 
the immediate vicinity of the properties, resources, remains, or items 
will cease, and the lessee will contact BIA and the tribe with 
jurisdiction to determine how to proceed and appropriate disposition;
    (5) BIA has the right, at any reasonable time during the term of the 
lease, and upon reasonable notice, in accordance with Sec.  162.589, to 
enter the leased premises for inspection; and
    (6) BIA may, at its discretion, treat as a lease violation any 
failure by the lessee to cooperate with a BIA request to make 
appropriate records, reports, or information available for BIA 
inspection and duplication.
    (d) Unless the lessee would be prohibited by law from doing so, the 
lease must also contain the following provisions:
    (1) The lessee holds the United States and the Indian landowners 
harmless from any loss, liability, or damages resulting from the 
lessee's use or occupation of the leased premises;
    (2) The lessee indemnifies the United States and the Indian 
landowners against all liabilities or costs relating to the use, 
handling, treatment, removal, storage, transportation, or disposal of 
hazardous materials, or the release or discharge of any hazardous 
material from the leased premises that occurs during the lease term, 
regardless of fault, with the exception that the lessee is not required 
to indemnify the Indian landowners for liability or cost arising from 
the Indian landowners' negligence or willful misconduct.
    (e) We may treat any provision of a lease document that violates 
Federal law as a violation of the lease.

[77 FR 72494, Dec. 5, 2012, as amended at 78 FR 19100, Mar. 29, 2013]

[[Page 536]]



Sec.  162.514  May permanent improvements be made under a WEEL?

    (a) A WEEL anticipates the installation of facilities and associated 
infrastructure of a size and magnitude necessary for evaluation of wind 
resource capacity and potential effects of development. These facilities 
and associated infrastructure are considered permanent improvements. An 
equipment installation plan must be submitted with the lease under Sec.  
162.528(g).
    (b) If any of the following changes are made to the equipment 
installation plan, the Indian landowners must approve the revised plan 
and the lessee must provide a copy of the revised plan to BIA:
    (1) Location of permanent improvements;
    (2) Type of permanent improvements; or
    (3) Delay of 90 days or more in any phase of development.



Sec.  162.515  How must a WEEL address ownership of permanent improvements?

    (a) A WEEL must specify who will own any permanent improvements the 
lessee installs during the lease term. In addition, the WEEL must 
indicate whether any permanent improvements the lessee installs:
    (1) Will remain on the premises upon expiration, termination, or 
cancellation of the lease whether or not the WEEL is followed by a WSR 
lease, in a condition satisfactory to the Indian landowners;
    (2) May be conveyed to the Indian landowners during the WEEL term 
and under what conditions the permanent improvements may be conveyed;
    (3) Will be removed within a time period specified in the WEEL, at 
the lessee's expense, with the leased premises to be restored as closely 
as possible to their condition before installation of the permanent 
improvements; or
    (4) Will be disposed of by other specified means.
    (b) A WEEL that requires the lessee to remove the permanent 
improvements must also provide the Indian landowners with an option to 
take possession and title to the permanent improvements if the 
improvements are not removed within the specified time period.



Sec.  162.516  How will BIA enforce removal requirements in a WEEL?

    We may take appropriate enforcement action to ensure removal of the 
permanent improvements and restoration of the premises at the lessee's 
expense:
    (a) In consultation with the tribe, for tribal land or, where 
feasible, with Indian landowners for individually owned Indian land; and
    (b) After termination, cancellation, or expiration of the WEEL.



Sec.  162.517  What requirements for due diligence must a WEEL include?

    (a) A WEEL must include due diligence requirements that require the 
lessee to:
    (1) Install testing and monitoring facilities within 12 months after 
the effective date of the WEEL or other period designated in the WEEL 
and consistent with the plan of development; and
    (2) If installation does not occur, or is not expected to be 
completed, within the time period specified in paragraph (a)(1) of this 
section, provide the Indian landowners and BIA with an explanation of 
good cause for any delay, the anticipated date of installation of 
facilities, and evidence of progress toward installing or completing 
testing and monitoring facilities.
    (b) Failure of the lessee to comply with the due diligence 
requirements of the WEEL is a violation of the WEEL and may lead to:
    (1) Cancellation of the WEEL under Sec.  162.592; and
    (2) Application of the requirement that the lessee transfer 
ownership of energy resource information collected under the WEEL to the 
Indian landowners under Sec.  162.520.



Sec.  162.518  How must a WEEL describe the land?

    (a) A WEEL must describe the leased premises by reference to a 
public or private survey, if possible. If the land cannot be so 
described, the lease must include one or more of the following:
    (1) A legal description;

[[Page 537]]

    (2) A survey-grade global positioning system description; or
    (3) Another description prepared by a registered land surveyor that 
is sufficient to identify the leased premises.
    (b) If the tract is fractionated, we will identify the undivided 
trust or restricted interests in the leased premises.



Sec.  162.519  May a WEEL allow for compatible uses by the Indian landowner?

    The WEEL may provide for the Indian landowners to use, or authorize 
others to use, the leased premises for other noncompeting uses 
compatible with the purpose of the WEEL. This may include the right to 
lease the premises for other compatible purposes. Any such use by the 
Indian landowners will not reduce or offset the monetary compensation 
for the WEEL.



Sec.  162.520  Who owns the energy resource information 
obtained under the WEEL?

    (a) The WEEL must specify the ownership of any energy resource 
information the lessee obtains during the WEEL term.
    (b) Unless otherwise specified in the WEEL, the energy resource 
information the lessee obtains through the leased activity becomes the 
property of Indian landowners at the expiration, termination, or 
cancellation of the WEEL or upon failure by the lessee to diligently 
install testing and monitoring facilities on the leased premises in 
accordance with Sec.  162.517.
    (c) BIA will keep confidential any information it is provided that 
is marked confidential or proprietary and that is exempt from public 
release, to the extent allowed by law.



Sec.  162.521  May a lessee incorporate its WEEL analyses 
into its WSR lease analyses?

    Any analyses a lessee uses to bring a WEEL activity into compliance 
with applicable laws, ordinances, rules, regulations under Sec.  162.014 
and any other legal requirements may be incorporated by reference, as 
appropriate, into the analyses of a proposed WSR lease.



Sec.  162.522  May a WEEL contain an option for the lessee to enter 
into a WSR lease?

    (a) A WEEL may provide for an option period following the expiration 
of the WEEL term during which the lessee and the Indian landowners may 
enter into a WSR lease.
    (b) Our approval of a WEEL that contains an option to enter into a 
WSR lease does not guarantee or imply our approval of any WSR lease.

                 WEEL Monetary Compensation Requirements



Sec.  162.523  How much compensation must be paid under a WEEL?

    (a) The WEEL must state how much compensation will be paid.
    (b) A WEEL must specify the date on which compensation will be due.
    (c) Failure to make timely payments is a violation of the WEEL and 
may lead to cancellation of the WEEL.
    (d) The lease compensation requirements of Sec. Sec.  162.552 
through 162.558 also apply to WEELs.



Sec.  162.524  Will BIA require a valuation for a WEEL?

    We will not require a valuation for a WEEL.

                       WEEL Bonding and Insurance



Sec.  162.525  Must a lessee provide a performance bond for a WEEL?

    We will not require the lessee to provide a performance bond or 
alternative form of security for a WEEL.



Sec.  162.526  [Reserved]



Sec.  162.527  Must a lessee provide insurance for a WEEL?

    Except as provided in paragraph (d) of this section, a lessee must 
provide insurance necessary to protect the interests of Indian 
landowners and in the amount sufficient to protect all insurable 
permanent improvements on the leased premises.
    (a) The insurance may include property, crop, liability, and 
casualty insurance, depending on the Indian landowners' interests to be 
protected.
    (b) Both the Indian landowners and the United States must be 
identified as additional insured parties.

[[Page 538]]

    (c) Lease insurance may be increased and extended for use as the 
required WSR lease insurance.
    (d) We may waive the requirement for insurance upon the request of 
the Indian landowner, if a waiver is in the best interest of the Indian 
landowner, including if the lease is for less than fair market rental or 
nominal compensation. For tribal land, we will defer, to the maximum 
extent possible, to the tribe's determination that a waiver is in its 
best interest.

                              WEEL Approval



Sec.  162.528  What documents are required for BIA approval of a WEEL?

    A lessee or the Indian landowners must submit the following 
documents to us to obtain BIA approval of a WEEL:
    (a) A WEEL executed by the Indian landowners and the lessee that 
meets the requirements of this part;
    (b) For tribal land, a tribal authorization for the WEEL;
    (c) Proof of insurance, as required by Sec.  162.527;
    (d) Statement from the appropriate tribal authority that the 
proposed use is in conformance with applicable tribal law, if required 
by the tribe;
    (e) Environmental and archeological reports, surveys, and site 
assessments as needed to facilitate compliance with applicable Federal 
and tribal environmental and land use requirements, including any 
documentation prepared under Sec.  162.027(b);
    (f) An equipment installation plan;
    (g) A restoration and reclamation plan (and any subsequent 
modifications to the plan);
    (h) Where the lessee is not an entity owned and operated by the 
tribe, documents that demonstrate the technical capability of the lessee 
or lessee's agent to construct, operate, maintain, and terminate the 
proposed project and the lessee's ability to successfully design, 
construct, or obtain the funding for a project similar to the proposed 
project, if appropriate;
    (i) A legal description of the land under Sec.  162.518;
    (j) If the lease is being approved under 25 U.S.C. 415, information 
to assist us in our evaluation of the factors in 25 U.S.C. 415(a); and
    (k) If the lessee is a corporation, limited liability company, 
partnership, joint venture, or other legal entity, except a tribal 
entity, information such as organizational documents, certificates, 
filing records, and resolutions, that demonstrates that:
    (1) The representative has authority to execute a lease;
    (2) The lease will be enforceable against the lessee; and
    (3) The legal entity is in good standing and authorized to conduct 
business in the jurisdiction where the land is located.



Sec.  162.529  Will BIA review a proposed WEEL before or during preparation 
of the NEPA review documentation?

    Upon request of the Indian landowners, we will review the proposed 
WEEL after negotiation by the parties, before or during preparation of 
the NEPA review documentation. Within 10 days of receiving the proposed 
WEEL, we will provide an acknowledgement of the terms of the lease and 
identify any provisions that, based on this acknowledgment review, would 
justify disapproval of the lease, pending results of the NEPA review.



Sec.  162.530  What is the approval process for a WEEL?

    (a) Before we approve a WEEL, we must determine that the WEEL is in 
the best interest of the Indian landowners. In making that 
determination, we will:
    (1) Review the WEEL and supporting documents;
    (2) Identify potential environmental impacts and ensure compliance 
with all applicable environmental laws, land use laws, and ordinances;
    (3) If the lease is being approved under 25 U.S.C. 415, assure 
ourselves that adequate consideration has been given to the factors in 
25 U.S.C. 415(a); and
    (4) Require any lease modifications or mitigation measures necessary 
to satisfy any requirements including any other Federal or tribal land 
use requirements.
    (b) Upon receiving the WEEL package, we will promptly notify the 
parties whether the package is or is not

[[Page 539]]

complete. A complete package includes all the information and supporting 
documents required for a WEEL, including but not limited to, NEPA review 
documentation, where applicable.
    (1) If the WEEL package is not complete, our letter will identify 
the missing information or documents required for a complete package. If 
we do not respond to the submission of a WEEL package, the parties may 
take action under Sec.  162.588.
    (2) If the WEEL package is complete, we will notify the parties of 
the date we receive the complete package, and, within 20 days of the 
date of receipt of the package at the appropriate BIA office, approve or 
disapprove the WEEL or return the package for revision.
    (c) If we do not meet the deadline in this section, then the parties 
may take appropriate action under Sec.  162.588.
    (d) We will provide any WEEL approval determination and the basis 
for the determination, along with notification of appeal rights under 
part 2 of this chapter, in writing to the parties to the WEEL.
    (e) We will provide any WEEL disapproval determination and the basis 
for the determination, along with notification of rights to an informal 
conference, in writing to the parties. Within 30 days of receipt of the 
disapproval determination, the parties may request an informal 
conference with the official who issued the determination. Within 30 
days of receiving this request, the official must hold the informal 
conference with the parties. Within 10 days of the informal conference, 
the official must issue a decision and the basis for the decision, along 
with a notification of appeal rights under part 2 of this chapter, in 
writing to the parties to the WEEL.
    (f) We will provide the approved WEEL on tribal land to the lessee 
and provide a copy to the tribe. We will provide the approved WEEL on 
individually owned Indian land to the lessee, and make copies available 
to the Indian landowners upon written request.



Sec.  162.531  How will BIA decide whether to approve a WEEL?

    (a) We will approve a WEEL unless:
    (1) The required consents have not been obtained from the parties to 
the WEEL;
    (2) The requirements applicable to WEELs have not been met; or
    (3) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the WEEL is in their best interest.
    (c) We may not unreasonably withhold approval of a WEEL.



Sec.  162.532  When will a WEEL be effective?

    (a) A WEEL will be effective on the date on which we approve the 
WEEL, even if an appeal is filed under part 2 of this chapter.
    (b) The WEEL may specify a date on which the obligations between the 
parties to a WEEL are triggered. Such date may be before or after the 
approval date under paragraph (a) of this section.
    (c) WEEL lease documents not requiring our approval are effective 
upon execution by the parties, or on the effective date specified in the 
lease document. If the WEEL lease document does not specify an effective 
date, it becomes effective upon execution by the parties.



Sec.  162.533  Must a WEEL lease document be recorded?

    (a) Any WEEL lease document must be recorded in our LTRO with 
jurisdiction over the leased land.
    (1) We will record the lease document immediately following our 
approval.
    (2) If our approval of an assignment or sublease is not required, 
the parties must record the assignment or sublease in the LTRO with 
jurisdiction over the leased land.
    (b) The tribe must record lease documents for the following types of 
leases in the LTRO with jurisdiction over the tribal lands, even though 
BIA approval is not required:
    (1) Leases of tribal land that a corporate entity leases to a third 
party under 25 U.S.C. 477; and

[[Page 540]]

    (2) Leases of tribal land under a special act of Congress 
authorizing leases without our approval.

                           WEEL Administration



Sec.  162.534  May the parties amend, assign, sublease, or mortgage a WEEL?

    The parties may amend, assign, sublease, or mortgage a WEEL by 
following the procedures and requirements for amending, assigning, 
subleasing, or mortgaging a WSR lease.

                     WEEL Compliance and Enforcement



Sec.  162.535  What effectiveness, compliance, and enforcement provisions 
apply to WEELs?

    (a) The provisions at Sec.  162.586 apply to WEEL lease documents.
    (b) The provisions at Sec. Sec.  162.587 through 162.589 and 162.591 
through 162.599 apply to WEELs, except that any references to Sec.  
162.590 will apply instead to Sec.  162.536.



Sec.  162.536  Under what circumstances may a WEEL be terminated?

    A WEEL must state whether, and under what conditions, the Indian 
landowners may terminate the WEEL.



Sec.  162.537  [Reserved]

                               WSR Leases



Sec.  162.538  What is the purpose of a WSR lease?

    A WSR lease authorizes a lessee to possess Indian land to conduct 
activities related to the installation, operation, and maintenance of 
wind and/or solar energy resource development projects. Activities 
include installing instrumentation facilities and infrastructure 
associated with the generation, transmission, and storage of electricity 
and other related activities. Leases for biomass or waste-to-energy 
purposes are governed by subpart D of this part.



Sec.  162.539  Must I obtain a WEEL before obtaining a WSR lease?

    You may enter into a WSR lease without a WEEL. While you may enter 
into a lease as a direct result of energy resource information gathered 
from a WEEL activity, obtaining a WEEL is not a precondition to entering 
into a WSR lease.



Sec.  162.540  How long may the term of a WSR lease run?

    (a) A WSR lease must provide for a definite lease term, state if 
there is an option to renew, and if so, provide for a definite term for 
the renewal period. The maximum term of a lease approved under 25 U.S.C. 
415(a) may not exceed 50 years (consisting of an initial term not to 
exceed 25 years and one renewal not to exceed 25 years), unless a 
Federal statute provides for a longer maximum term (e.g., 25 U.S.C. 
415(a) allows for a maximum term of 99 years for certain tribes), a 
different initial term, renewal term, or number of renewals.
    (b) For tribal land, we will defer to the tribe's determination that 
the lease term, including any renewal, is reasonable. For individually 
owned Indian land, we will review the lease term, including any renewal, 
to ensure it is reasonable, given the:
    (1) Purpose of the lease;
    (2) Type of financing; and
    (3) Level of investment.
    (c) The lease may not be extended by holdover.



Sec.  162.541  What must the lease include if it contains an option to renew?

    (a) If the lease provides for an option to renew, the lease must 
specify:
    (1) The time and manner in which the option must be exercised or is 
automatically effective;
    (2) That confirmation of the renewal will be submitted to us, unless 
the lease provides for automatic renewal;
    (3) Whether Indian landowner consent to the renewal is required;
    (4) That the lessee must provide notice of the renewal to the Indian 
landowners and any sureties and mortgagees;
    (5) The additional consideration, if any, that will be due upon the 
exercise of the option to renew or the start of the renewal term; and
    (6) Any other conditions for renewal (e.g., that the lessee not be 
in violation of the lease at the time of renewal).
    (b) We will record any renewal of a lease in the LTRO.

[[Page 541]]



Sec.  162.542  Are there mandatory provisions a WSR lease must contain?

    (a) All WSR leases must identify:
    (1) The tract or parcel of land being leased;
    (2) The purpose of the lease and authorized uses of the leased 
premises;
    (3) The parties to the lease;
    (4) The term of the lease;
    (5) The ownership of permanent improvements and the responsibility 
for constructing, operating, maintaining, and managing, WSR equipment, 
roads, transmission lines and related facilities under Sec.  162.543;
    (6) Who is responsible for evaluating the leased premises for 
suitability; purchasing, installing, operating, and maintaining WSR 
equipment; negotiating power purchase agreements; and transmission;
    (7) Payment requirements and late payment charges, including 
interest;
    (8) Due diligence requirements, under Sec.  162.546;
    (9) Insurance requirements, under Sec.  162.562; and
    (10) Bonding requirements under Sec.  162.559. If a performance bond 
is required, the lease must state that the lessee must obtain the 
consent of the surety for any legal instrument that directly affects 
their obligations and liabilities.
    (b) Where a representative executes a lease on behalf of an Indian 
landowner or lessee, the lease must identify the landowner or lessee 
being represented and the authority under which such action is taken.
    (c) All WSR leases must include the following provisions:
    (1) The obligations of the lessee and its sureties to the Indian 
landowners are also enforceable by the United States, so long as the 
land remains in trust or restricted status;
    (2) There must not be any unlawful conduct, creation of a nuisance, 
illegal activity, or negligent use or waste of the leased premises;
    (3) The lessee must comply with all applicable laws, ordinances, 
rules, regulations, and other legal requirements under Sec.  162.014;
    (4) If historic properties, archeological resources, human remains, 
or other cultural items not previously reported are encountered during 
the course of any activity associated with the lease, all activity in 
the immediate vicinity of the properties, resources, remains, or items 
will cease and the lessee will contact BIA and the tribe with 
jurisdiction to determine how to proceed and appropriate disposition;
    (5) BIA has the right, at any reasonable time during the term of the 
lease and upon reasonable notice, in accordance with Sec.  162.589, to 
enter the leased premises for inspection and to ensure compliance; and
    (6) BIA may, at its discretion, treat as a lease violation any 
failure by the lessee to cooperate with a BIA request to make 
appropriate records, reports, or information available for BIA 
inspection and duplication.
    (d) Unless the lessee would be prohibited by law from doing so, the 
lease must also contain the following provisions:
    (1) The lessee holds the United States and the Indian landowners 
harmless from any loss, liability, or damages resulting from the 
lessee's use or occupation of the leased premises; and
    (2) The lessee indemnifies the United States and the Indian 
landowners against all liabilities or costs relating to the use, 
handling, treatment, removal, storage, transportation, or disposal of 
hazardous materials, or the release or discharge of any hazardous 
material from the leased premises that occurs during the lease term, 
regardless of fault, with the exception that the lessee is not required 
to indemnify the Indian landowners for liability or cost arising from 
the Indian landowners' negligence or willful misconduct.
    (e) We may treat any provision of a lease document that violates 
Federal law as a violation of the lease.



Sec.  162.543  May permanent improvements be made under a WSR lease?

    (a) A WSR lease must provide for the installation of a facility and 
associated infrastructure of a size and magnitude necessary for the 
generation and delivery of electricity, in accordance with Sec.  
162.019. These facilities and associated infrastructure are considered 
permanent improvements. A resource development plan must be submitted 
for approval with the lease under Sec.  162.563(h).

[[Page 542]]

    (b) If the parties agree to any of the following changes to the 
resource development plan after lease approval, they must submit the 
revised plan to BIA for the file:
    (1) Location of permanent improvements;
    (2) Type of permanent improvements; or
    (3) Delay of 90 days or more in any phase of development.



Sec.  162.544  How must a WSR lease address ownership 
of permanent improvements?

    (a) A WSR lease must specify who will own any permanent improvements 
the lessee installs during the lease term and may specify under what 
conditions, if any, permanent improvements the lessee constructs may be 
conveyed to the Indian landowners during the lease term. In addition, 
the lease must indicate whether each specific permanent improvement the 
lessee installs will:
    (1) Remain on the leased premises upon the expiration, termination, 
or cancellation of the lease, in a condition satisfactory to the Indian 
landowners and become the property of the Indian landowners;
    (2) Be removed within a time period specified in the lease, at the 
lessee's expense, with the leased premises to be restored as closely as 
possible to their condition before installation of the permanent 
improvements; or
    (3) Be disposed of by other specified means.
    (b) A lease that requires the lessee to remove the permanent 
improvements must also provide the Indian landowners with an option to 
take possession of and title to the permanent improvements if the 
improvements are not removed within the specified time period.



Sec.  162.545  How will BIA enforce removal requirements in a WSR lease?

    (a) We may take appropriate enforcement action to ensure removal of 
the permanent improvements and restoration of the premises at the 
lessee's expense:
    (1) In consultation with the tribe, for tribal land or, where 
feasible, with Indian landowners for individually owned Indian land; and
    (2) Before or after expiration, termination, or cancellation of the 
lease.
    (b) We may collect and hold the performance bond until removal and 
restoration are completed.



Sec.  162.546  What requirements for due diligence must a WSR lease include?

    (a) A WSR lease must include due diligence requirements that require 
the lessee to:
    (1) Commence installation of energy facilities within 2 years after 
the effective date of the lease or consistent with a timeframe in the 
resource development plan;
    (2) If installation does not occur, or is not expected to be 
completed, within the time period specified in paragraph (a)(1) of this 
section, provide the Indian landowners and BIA with an explanation of 
good cause as to the nature of any delay, the anticipated date of 
installation of facilities, and evidence of progress toward commencement 
of installation;
    (3) Maintain all on-site electrical generation equipment and 
facilities and related infrastructure in accordance with the design 
standards in the resource development plan; and
    (4) Repair, place into service, or remove from the site within a 
time period specified in the lease any idle, improperly functioning, or 
abandoned equipment or facilities that have been inoperative for a 
continuous period specified in the lease (unless the equipment or 
facilities were idle as a result of planned suspension of operations, 
for example, for grid operations or during bird migration season).
    (b) Failure of the lessee to comply with the due diligence 
requirements of the lease is a violation of the lease and may lead to 
cancellation of the lease under Sec.  162.592.



Sec.  162.547  How must a WSR lease describe the land?

    (a) A WSR lease must describe the leased premises by reference to a 
private or public survey, if possible. If the land cannot be so 
described, the lease must include one or more of the following:

[[Page 543]]

    (1) A legal description;
    (2) A survey-grade global positioning system description; or
    (3) Another description prepared by a registered land surveyor that 
is sufficient to identify the leased premises.
    (b) If the tract is fractionated, we will identify the undivided 
trust or restricted interests in the leased premises.



Sec.  162.548  May a WSR lease allow compatible uses?

    The lease may provide for the Indian landowners to use, or authorize 
others to use, the leased premises for other uses compatible with the 
purpose of the WSR lease and consistent with the terms of the WSR lease. 
This may include the right to lease the premises for other compatible 
purposes. Any such use or authorization by the Indian landowners will 
not reduce or offset the monetary compensation for the WSR lease.

              WSR Lease Monetary Compensation Requirements



Sec.  162.549  How much monetary compensation must be paid 
under a WSR lease of tribal land?

    (a) A WSR lease of tribal land may allow for any payment negotiated 
by the tribe, and we will defer to the tribe and not require a valuation 
if the tribe submits a tribal authorization expressly stating that it:
    (1) Has negotiated compensation satisfactory to the tribe;
    (2) Waives valuation; and
    (3) Has determined that accepting such negotiated compensation and 
waiving valuation is in its best interest.
    (b) The tribe may request, in writing, that we determine fair market 
rental, in which case we will use a valuation in accordance with Sec.  
162.551. After providing the tribe with the fair market rental, we will 
defer to a tribe's decision to allow for any payment amount negotiated 
by the tribe.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, we will require that the lease provide for fair market rental 
based on a valuation in accordance with Sec.  162.551.



Sec.  162.550  How much monetary compensation must be paid 
under a WSR lease of individually owned Indian land?

    (a) A WSR lease of individually owned Indian land must require 
payment of not less than fair market rental before any adjustments, 
based on a fixed amount, a percentage of the projected gross income, 
megawatt capacity fee, or some other method, unless paragraphs (b) or 
(c) of this section permit a lesser amount. The lease must establish how 
the fixed amount, percentage or combination will be calculated and the 
frequency at which the payments will be made.
    (b) We may approve a lease of individually owned Indian land that 
provides for the payment of nominal compensation, or less than a fair 
market rental, if:
    (1) The Indian landowners execute a written waiver of the right to 
receive fair market rental; and
    (2) We determine it is in the Indian landowners' best interest, 
based on factors including, but not limited to:
    (i) The lessee is a member of the immediate family, as defined in 
Sec.  162.003, of an Indian landowner;
    (ii) The lessee is a co-owner of the leased tract;
    (iii) A special relationship or circumstances exist that we believe 
warrant approval of the lease;
    (iv) The lease is for public purposes; or
    (v) We have waived the requirement for a valuation under paragraph 
(e) of this section.
    (c) We may approve a lease that provides for the payment of less 
than a fair market rental during the periods before the generation and 
transmission of electricity begins, if we determine it is in the Indian 
landowners' best interest. The lease must specify the amount of the 
compensation and the applicable periods.
    (d) We will require a valuation in accordance with Sec.  162.422, 
unless:
    (1) 100 percent of the landowners submit to us a written request to 
waive the valuation requirement; or
    (2) We waive the requirement under paragraph (e) of this section; or

[[Page 544]]

    (3) We determine it is in the best interest of the Indian landowners 
to accept an economic analysis in lieu of an appraisal and:
    (i) The Indian landowners submit an economic analysis that is 
approved by the Office of Indian Energy & Economic Development (IEED); 
or
    (ii) IEED prepares an economic analysis at the request of the Indian 
landowners.
    (e) If the owners of the applicable percentage of interests under 
Sec.  162.011 of this part grant a WSR lease on behalf of all of the 
Indian landowners of a fractionated tract, the lease must provide that 
the non-consenting Indian landowners, and those on whose behalf we have 
consented, receive a fair market rental, as determined by a valuation, 
unless we waive the requirement because the tribe or lessee will 
construct infrastructure improvements on, or serving, the leased 
premises, and we determine it is in the best interest of all the 
landowners.



Sec.  162.551  How will BIA determine fair market rental for a WSR lease?

    (a) We will use a market analysis, appraisal, or other appropriate 
valuation method to determine the fair market rental before we approve a 
WSR lease of individually owned Indian land or, at the request of the 
tribe, for tribal land.
    (b) We will either:
    (1) Prepare, or have prepared, a market analysis, appraisal, or 
other appropriate valuation method; or
    (2) Use an approved market analysis, appraisal, or other appropriate 
valuation method from the Indian landowners or lessee.
    (c) We will use or approve use of a market analysis, appraisal, or 
other appropriate valuation method only if it:
    (1) Has been prepared in accordance with USPAP or a valuation method 
developed by the Secretary under 25 U.S.C. 2214; and
    (2) Complies with Department policies regarding appraisals, 
including third-party appraisals.
    (d) Indian landowners may use competitive bidding as a valuation 
method.



Sec.  162.552  When are monetary compensation payments due under a WSR lease?

    (a) A WSR lease must specify the dates on which all payments are 
due.
    (b) Unless the lease provides otherwise, payments may not be made or 
accepted more than one year in advance of the due date.
    (c) Payments are due at the time specified in the lease, regardless 
of whether the lessee receives an advance billing or other notice that a 
payment is due.



Sec.  162.553  Must a WSR lease specify who receives monetary 
compensation payments?

    (a) A WSR lease must specify whether the lessee will make payments 
directly to the Indian landowners (direct pay) or to us on their behalf.
    (b) The lessee may make payments directly to the Indian landowners 
if:
    (1) The Indian landowners' trust accounts are unencumbered;
    (2) There are 10 or fewer beneficial owners; and
    (3) One hundred percent of the beneficial owners (including those on 
whose behalf we have consented) agree to receive payment directly from 
the lessee at the start of the lease.
    (c) If the lease provides that the lessee will directly pay the 
Indian landowners, then:
    (1) The lease must include provisions for proof of payment upon our 
request.
    (2) When we consent on behalf of an Indian landowner, the lessee 
must make payment to us on behalf of that landowner.
    (3) The lessee must send direct payments to the parties and 
addresses specified in the lease, unless the lessee receives notice of a 
change of ownership or address.
    (4) Unless the lease provides otherwise, payments may not be made 
payable directly to anyone other than the Indian landowners.
    (5) Direct payments must continue through the duration of the lease, 
except that:
    (i) The lessee must make all Indian landowners' payments to us if 
100 percent of the Indian landowners agree to suspend direct pay and 
provide us with documentation of their agreement; and

[[Page 545]]

    (ii) The lessee must make that individual Indian landowner's payment 
to us if any individual Indian landowner who dies, is declared non 
compos mentis, owes a debt resulting in a trust account encumbrance, or 
his or her whereabouts become unknown.



Sec.  162.554  What form of monetary compensation payment is acceptable 
under a WSR lease?

    (a) When payments are made directly to Indian landowners, the form 
of payment must be acceptable to the Indian landowners.
    (b) When payments are made to us, our preferred method of payment is 
electronic funds transfer payments. We will also accept:
    (1) Money orders;
    (2) Personal checks;
    (3) Certified checks; or
    (4) Cashier's checks.
    (c) We will not accept cash or foreign currency.
    (d) We will accept third-party checks only from financial 
institutions or Federal agencies.



Sec.  162.555  May a WSR lease provide for non-monetary 
or varying types of compensation?

    (a) A WSR lease may provide for the following, subject to the 
conditions in paragraphs (b) and (c) of this section:
    (1) Alternative forms of compensation, including but not limited to, 
in-kind consideration and payments based on percentage of income; or
    (2) Varying types of consideration at specific stages during the 
life of the lease, including but not limited to fixed annual payments 
during installation, payments based on income during an operational 
period, and bonuses.
    (b) For tribal land, we will defer to the tribe's determination that 
the compensation in paragraph (a) of this section is in its best 
interest, if the tribe submits a signed certification or tribal 
authorization stating that it has determined the compensation in 
paragraph (a) of this section to be in its best interest.
    (c) For individually owned land, we may approve a lease that 
provides for compensation under paragraph (a) of this section if we 
determine that it is in the best interest of the Indian landowners.



Sec.  162.556  Will BIA notify a lessee when a payment is due 
under a WSR lease?

    Upon request of the Indian landowners, we may issue invoices to a 
lessee in advance of the dates on which payments are due under a WSR 
lease. The lessee's obligation to make these payments in a timely manner 
will not be excused if invoices are not delivered or received.



Sec.  162.557  Must a WSR lease provide for compensation reviews 
or adjustments?

    (a) For a WSR lease of tribal land, unless the lease provides 
otherwise, no periodic review of the adequacy of compensation or 
adjustment is required if the tribe states in its tribal certification 
or authorization that it has determined that not having reviews and/or 
adjustments is in its best interest.
    (b) For a WSR lease of individually owned Indian land, unless the 
lease provides otherwise, no periodic review of the adequacy of 
compensation or adjustment is required if:
    (1) If the term of the lease is 5 years or less;
    (2) The lease provides for automatic adjustments; or
    (3) We determine it is in the best interest of the Indian landowners 
not to require a review or automatic adjustment based on circumstances 
including, but not limited to, the following:
    (i) The lease provides for payment of less than fair market rental;
    (ii) The lease is for public purposes;
    (iii) The lease provides for most or all of the compensation to be 
paid during the first 5 years of the lease term or before the date the 
review would be conducted; or
    (iv) The lease provides for graduated rent or non-monetary or 
various types of compensation.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, a review of the adequacy of compensation must occur at least 
every fifth year, in the manner specified in the lease. The lease must 
specify:
    (1) When adjustments take effect;
    (2) Who can make adjustments;
    (3) What the adjustments are based on; and

[[Page 546]]

    (4) How to resolve disputes arising from the adjustments.
    (d) When a review results in the need for adjustment of 
compensation, the Indian landowners must consent to the adjustment in 
accordance with Sec.  162.012, unless the lease provides otherwise.



Sec.  162.558  What other types of payments are required under a WSR lease?

    (a) The lessee may be required to pay additional fees, taxes, and 
assessments associated with the use of the land, as determined by 
entities having jurisdiction, except as provided in Sec.  162.017. The 
lessee must pay these amounts to the appropriate office.
    (b) If the leased premises are within an Indian irrigation project 
or drainage district, except as otherwise provided in part 171 of this 
chapter, the lessee must pay all operation and maintenance charges that 
accrue during the lease term. The lessee must pay these amounts to the 
appropriate office in charge of the irrigation project or drainage 
district. We will treat failure to make these payments as a violation of 
the lease.
    (c) Where the property is subject to at least one other lease for 
another compatible use, such as grazing, the lessees may agree among 
themselves how to allocate payment of the operation and maintenance 
charges.

                     WSR Lease Bonding and Insurance



Sec.  162.559  Must a lessee provide a performance bond for a WSR lease?

    The lessee must provide a performance bond or alternative form of 
security, except as provided in paragraph (f) of this section.
    (a) The performance bond or alternative form of security must be in 
an amount sufficient to secure the contractual obligations including:
    (1) No less than:
    (i) The highest annual rental specified in the lease, if the 
compensation is paid annually; or
    (ii) If the compensation is not paid annually, another amount 
established by BIA in consultation with the tribe for tribal land or, 
where feasible, with Indian landowners for individually owned Indian 
land;
    (2) The installation of any required permanent improvements;
    (3) The operation and maintenance charges for any land located 
within an irrigation project; and
    (4) The restoration and reclamation of the leased premises, to their 
condition at the start of the lease term or some other specified 
condition.
    (b) The performance bond or other security:
    (1) Must be deposited with us and made payable only to us, and may 
not be modified without our approval, except as provided in paragraph 
(b)(2) of this section; and
    (2) For tribal land, if the lease so provides, may be deposited with 
the tribe and made payable to the tribe, and may not be modified without 
the approval of the tribe.
    (c) The lease must specify the conditions under which we may adjust 
security or performance bond requirements to reflect changing 
conditions, including consultation with the tribal landowner for tribal 
land before adjustment.
    (d) We may require that the surety provide any supporting documents 
needed to show that the performance bond or alternative forms of 
security will be enforceable, and that the surety will be able to 
perform the guaranteed obligations.
    (e) The performance bond or other security instrument must require 
the surety to provide notice to us at least 60 days before canceling a 
performance bond or other security. This will allow us to notify the 
lessee of its obligation to provide a substitute performance bond or 
other security and require collection of the bond or security before the 
cancellation date. Failure to provide a substitute performance bond or 
security is a violation of the lease.
    (f) We may waive the requirement for a performance bond or 
alternative forms of security if:
    (1) The lease is for public purposes; or
    (2) The Indian landowners request it and we determine a waiver is in 
the Indian landowners' best interest.
    (g) For tribal land, we will defer to the tribe's determination that 
a waiver of the performance bond or alternative form of security is in 
its best interest, to the maximum extent possible.

[[Page 547]]



Sec.  162.560  What forms of security are acceptable under a WSR lease?

    (a) We will accept a performance bond only in one of the following 
forms:
    (1) Certificates of deposit issued by a federally insured financial 
institution authorized to do business in the United States;
    (2) Irrevocable letters of credit issued by a federally insured 
financial institution authorized to do business in the United States;
    (3) Negotiable Treasury securities; or
    (4) Surety bonds issued by a company approved by the U.S. Department 
of the Treasury.
    (b) We may accept an alternative form of security approved by us 
that provides adequate protection for the Indian landowners and us, 
including but not limited to an escrow agreement and assigned savings 
account.
    (c) All forms of performance bonds or alternative security must, if 
applicable:
    (1) Indicate on their face that BIA approval is required for 
redemption;
    (2) Be accompanied by a statement granting full authority to BIA to 
make an immediate claim upon or sell them if the lessee violates the 
terms of the lease;
    (3) Be irrevocable during the term of the performance bond or 
alternative security; and
    (4) Be automatically renewable during the term of the lease.
    (d) We will not accept cash bonds.



Sec.  162.561  What is the release process for a performance bond 
or alternative form of security under a WSR lease?

    (a) Upon expiration, termination, or cancellation of the lease, the 
lessee must ask BIA in writing to release the performance bond or 
alternative form of security.
    (b) Upon receiving the request under paragraph (a) of this section, 
BIA will:
    (1) Confirm with the tribe, for tribal land or, where feasible, with 
the Indian landowners for individually owned Indian land, that the 
lessee has complied with all lease obligations; and
    (2) Release the performance bond or alternative form of security to 
the lessee unless we determine that the bond or security must be 
redeemed to fulfill the contractual obligations.



Sec.  162.562  Must a lessee provide insurance for a WSR lease?

    Except as provided in paragraph (c) of this section, a lessee must 
provide insurance when necessary to protect the interests of Indian 
landowners and in the amount sufficient to protect all insurable 
permanent improvements on the leased premises.
    (a) The insurance may include property, liability, and casualty 
insurance, depending on the Indian landowners' interests to be 
protected.
    (b) Both the Indian landowners and the United States must be 
identified as additional insured parties.
    (c) We may waive the requirement for insurance upon the request of 
the Indian landowner, if a waiver is in the best interest of the Indian 
landowner, including if the lease is for less than fair market rental or 
nominal compensation. For tribal land, we will defer, to the maximum 
extent possible, to the tribe's determination that a waiver is in its 
best interest.

                           WSR Lease Approval



Sec.  162.563  What documents are required for BIA approval of a WSR lease?

    A lessee or the Indian landowners must submit the following 
documents to us to obtain BIA approval of a WSR lease:
    (a) A lease executed by the Indian landowners and the lessee that 
meets the requirements of this part;
    (b) For tribal land, a tribal authorization for the lease and, if 
applicable, meeting the requirements of Sec. Sec.  162.549(a), 
162.555(b), and 162.557(a), or a separate signed certification meeting 
the requirements of Sec. Sec.  162.555(b) and 162.557(a));
    (c) A valuation, if required under Sec.  162.549 or Sec.  162.550;
    (d) Proof of insurance, if required under Sec.  162.562;
    (e) A performance bond or other security, if required under Sec.  
162.559;
    (f) Statement from the appropriate tribal authority that the 
proposed use is in conformance with applicable tribal law, if required 
by the tribe;

[[Page 548]]

    (g) Environmental and archeological reports, surveys, and site 
assessments as needed to facilitate compliance with applicable Federal 
and tribal environmental and land use requirements, including any 
documentation prepared under Sec.  162.027(b);
    (h) A resource development plan that describes the type and location 
of any permanent improvements the lessee plans to install and a schedule 
showing the tentative commencement and completion dates for those 
improvements;
    (i) A restoration and reclamation plan (and any subsequent 
modifications to the plan);
    (j) Where the lessee is not an entity owned and operated by the 
tribe, documents that demonstrate the technical capability of the lessee 
or lessee's agent to construct, operate, maintain, and terminate the 
proposed project and the lessee's ability to successfully design, 
construct, or obtain the funding for a project similar to the proposed 
project, if appropriate;
    (k) A legal description of the land under Sec.  162.547;
    (l) If the lease is being approved under 25 U.S.C. 415, information 
to assist us in our evaluation of the factors in 25 U.S.C. 415(a); and
    (m) If the lessee is a corporation, limited liability company, 
partnership, joint venture, or other legal entity, except a tribal 
entity, information such as organizational documents, certificates, 
filing records, and resolutions, that demonstrates that:
    (1) The representative has authority to execute a lease;
    (2) The lease will be enforceable against the lessee; and
    (3) The legal entity is in good standing and authorized to conduct 
business in the jurisdiction where the land is located.



Sec.  162.564  Will BIA review a proposed WSR lease before or during 
preparation of the NEPA review documentation?

    Upon request of the Indian landowners, we will review the proposed 
WSR lease after negotiation by the parties, before or during preparation 
of the NEPA review documentation and any valuation. Within 60 days of 
receiving the proposed lease, we will provide an acknowledgement of the 
terms of the lease and identify any provisions that, based on this 
acknowledgment review, would justify disapproval of the lease, pending 
results of the NEPA review and any valuation.



Sec.  162.565  What is the approval process for a WSR lease?

    (a) Before we approve a WSR lease, we must determine that the lease 
is in the best interest of the Indian landowners. In making that 
determination, we will:
    (1) Review the lease and supporting documents;
    (2) Identify potential environmental impacts and ensure compliance 
with all applicable environmental laws, land use laws, and ordinances;
    (3) If the lease is being approved under 25 U.S.C. 415, assure 
ourselves that adequate consideration has been given to the factors in 
25 U.S.C. 415(a); and
    (4) Require any lease modifications or mitigation measures necessary 
to satisfy any requirements including any other Federal or tribal land 
use requirements.
    (b) Upon receiving a WSR lease package, we will promptly notify the 
parties whether the package is or is not complete. A complete package 
includes all the information and supporting documents required under 
this subpart, including but not limited to, NEPA review documentation 
and valuation documentation, where applicable.
    (1) If the WSR lease package is not complete, our letter will 
identify the missing information or documents required for a complete 
package. If we do not respond to the submission of a WSR lease package, 
the parties may take action under Sec.  162.588.
    (2) If the WSR lease package is complete, we will notify the parties 
of the date of receipt. Within 60 days of the receipt date, we will 
approve or disapprove the lease, return the package for revision, or 
inform the parties in writing that we need additional review time. If we 
inform the parties in writing that we need additional time, then:
    (i) Our letter informing the parties that we need additional review 
time must identify our initial concerns and

[[Page 549]]

invite the parties to respond within 15 days of the date of the letter; 
and
    (ii) We have 30 days from sending the letter informing the parties 
that we need additional time to approve or disapprove the lease.
    (c) If we do not meet the deadlines in this section, then the 
parties may take appropriate action under Sec.  162.588.
    (d) We will provide any lease approval or disapproval and the basis 
for the determination, along with notification of any appeal rights 
under part 2 of this chapter, in writing to the parties to the lease.
    (e) We will provide approved WSR leases on tribal land to the lessee 
and provide a copy to the tribe. We will provide approved WSR leases on 
individually owned Indian land to the lessee, and make copies available 
to the Indian landowners upon written request.



Sec.  162.566  How will BIA decide whether to approve a WSR lease?

    (a) We will approve a WSR lease unless:
    (1) The required consents have not been obtained from the parties to 
the lease;
    (2) The requirements of this subpart have not been met; or
    (3) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the WSR lease is in their best interest.
    (c) We may not unreasonably withhold approval of a WSR lease.



Sec.  162.567  When will a WSR lease be effective?

    (a) A WSR lease will be effective on the date that we approve the 
lease, even if an appeal is filed under part 2 of this chapter.
    (b) The lease may specify a date on which the obligations between 
the parties to the lease are triggered. Such date may be before or after 
the approval date under paragraph (a) of this section.



Sec.  162.568  Must a WSR lease document be recorded?

    (a) Any WSR lease document must be recorded in the LTRO with 
jurisdiction over the leased land.
    (1) We will record the lease document immediately following our 
approval.
    (2) If our approval of an assignment or sublease is not required, 
the parties must record the assignment or sublease in the LTRO with 
jurisdiction over the leased land.
    (b) The tribe must record lease documents for the following types of 
leases in the LTRO with jurisdiction over the tribal lands, even though 
BIA approval is not required:
    (1) Leases of tribal land that a corporate entity leases to a third 
party under 25 U.S.C. 477; and
    (2) Leases of tribal land under a special act of Congress 
authorizing leases without our approval.



Sec.  162.569  Will BIA require an appeal bond for an appeal of a decision 
on a WSR lease document?

    (a) If a party appeals our decision on a WSR lease, assignment, 
amendment, or sublease, then the official to whom the appeal is made may 
require the appellant to post an appeal bond in accordance with part 2 
of this chapter. We will not require an appeal bond:
    (1) For an appeal of a decision on a leasehold mortgage; or
    (2) If the tribe is a party to the appeal and requests a waiver of 
the appeal bond.
    (b) The appellant may not appeal the appeal bond decision. The 
appellant may, however, request that the official to whom the appeal is 
made reconsider the bond decision, based on extraordinary circumstances. 
Any reconsideration decision is final for the Department.

                          WSR Lease Amendments



Sec.  162.570  May the parties amend a WSR lease?

    The parties may amend a WSR lease by obtaining:
    (a) The lessee's signature;
    (b) The Indian landowners' consent under the requirements in Sec.  
162.571; and
    (c) BIA approval of the amendment under Sec. Sec.  162.572 and 
162.573.

[[Page 550]]



Sec.  162.571  What are the consent requirements 
for an amendment to a WSR lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed amendment.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to an amendment of a WSR lease in the same 
percentages and manner as a new WSR lease under Sec.  162.012, unless 
the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented if they do not object in writing to the amendment within a 
specified period of time following the landowners' receipt of the 
amendment and the lease meets the requirements of paragraph (c) of this 
section;
    (2) Authorizes one or more representatives to consent to an 
amendment on behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consenting to an amendment.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed amendment or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the amendment to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for review.
    (d) Unless specifically authorized in the lease, a written power of 
attorney, or a court document, Indian landowners may not be deemed to 
have consented to, and an Indian landowner's designated representative 
may not negotiate or consent to, an amendment that would:
    (1) Reduce the payment obligations to the Indian landowners;
    (2) Increase or decrease the lease area;
    (3) Terminate or change the term of the lease; or
    (4) Modify dispute resolution procedures.



Sec.  162.572  What is the approval process for an amendment to a WSR lease?

    (a) When we receive an amendment that meets the requirements of this 
subpart, we will notify the parties of the date we receive it. We have 
30 days from receipt of the executed amendment, proof of required 
consents, and required documentation to approve or disapprove the 
amendment or inform the parties in writing that we need additional 
review time. Our determination whether to approve the amendment will be 
in writing and will state the basis for our approval or disapproval.
    (b) Our letter informing the parties that we need additional review 
time must identify our initial concerns and invite the parties to 
respond within 15 days of the date of the letter. We have 30 days from 
sending the letter informing the parties that we need additional time to 
approve or disapprove the amendment.
    (c) If we do not meet the deadline in paragraph (a) of this section, 
or paragraph (b) of this section if applicable, the amendment is deemed 
approved to the extent consistent with Federal law. Unless the lease 
provides otherwise, provisions of the amendment that are inconsistent 
with Federal law will be severed and unenforceable; all other provisions 
of the amendment will remain in force.



Sec.  162.573  How will BIA decide whether to approve an amendment 
to a WSR lease?

    (a) We may disapprove a WSR lease amendment only if at least one of 
the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The lessee is in violation of the lease;
    (4) The requirements of this subpart have not been met; or
    (5) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.

[[Page 551]]

    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the amendment is in their best interest.
    (c) We may not unreasonably withhold approval of an amendment.

                          WSR Lease Assignments



Sec.  162.574  May a lessee assign a WSR lease?

    (a) A lessee may assign a WSR lease by meeting the consent 
requirements in Sec.  162.575 and obtaining our approval of the 
assignment under Sec. Sec.  162.576 and 162.577 or by meeting the 
conditions in paragraphs (b) or (c) of this section.
    (b) Where provided in the lease, the lessee may assign the lease to 
the following without meeting consent requirements or obtaining BIA 
approval of the assignment, as long as the lessee notifies BIA of the 
assignment within 30 days after it is executed:
    (1) Not more than three distinct legal entities specified in the 
lease; or
    (2) The lessee's wholly owned subsidiaries.
    (c) The lessee may assign the lease without our approval or meeting 
consent requirements if:
    (1) The assignee is a leasehold mortgagee or its designee, acquiring 
the lease either through foreclosure or by conveyance;
    (2) The assignee agrees in writing to assume all of the obligations 
and conditions of the lease; and
    (3) The assignee agrees in writing that any transfer of the lease 
will be in accordance with applicable law under Sec.  162.014.



Sec.  162.575  What are the consent requirements for an assignment 
of a WSR lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed assignment.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to an assignment in the same percentages and 
manner as a new WSR lease under Sec.  162.012, unless the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the assignment within a 
specified period of time following the landowners' receipt of the 
assignment and the lease meets the requirements of paragraph (c) of this 
section;
    (2) Authorizes one or more representatives to consent to an 
assignment on behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consenting to an assignment.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed assignment or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the assignment to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for us to review.
    (d) The lessee must obtain the consent of the holders of any bonds 
or mortgages.



Sec.  162.576  What is the approval process for an assignment of a WSR lease?

    (a) When we receive an assignment that meets the requirements of 
this subpart, we will notify the parties of the date we receive it. If 
our approval is required, we have 30 days from receipt of the executed 
assignment, proof of required consents, and required documentation to 
approve or disapprove the assignment. Our determination whether to 
approve the assignment will be in writing and will state the basis for 
our approval or disapproval.
    (b) If we do not meet any of the deadlines in this section, the 
lessee or Indian landowners may take appropriate action under Sec.  
162.588.



Sec.  162.577  How will BIA decide whether to approve an assignment 
of a WSR lease?

    (a) We may disapprove an assignment of a WSR lease only if at least 
one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The lessee is in violation of the lease;
    (4) The assignee does not agree to be bound by the terms of the 
lease;

[[Page 552]]

    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(6) of this 
section, we may consider whether:
    (1) The value of any part of the leased premises not covered by the 
assignment would be adversely affected; and
    (2) If a performance bond is required, the assignee has posted the 
bond or security and provided supporting documents that demonstrate 
that:
    (i) The lease will be enforceable against the assignee; and
    (ii) The assignee will be able to perform its obligations under the 
lease or assignment.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the assignment is in their best interest.
    (d) We may not unreasonably withhold approval of an assignment.

                           WSR Lease Subleases



Sec.  162.578  May a lessee sublease a WSR lease?

    (a) A lessee may sublease a WSR lease by meeting the consent 
requirements in Sec.  162.579 and obtaining our approval of the sublease 
under Sec. Sec.  162.580 and 162.581, or by meeting the conditions in 
paragraph (b) of this section.
    (b) The lessee may sublease without meeting consent requirements or 
obtaining BIA approval of the sublease, if:
    (1) The lease provides for subleasing without meeting consent 
requirements or obtaining BIA approval;
    (2) The sublease does not relieve the lessee/sublessor of any 
liability; and
    (3) The parties provide BIA with a copy of the sublease within 30 
days after it is executed.



Sec.  162.579  What are the consent requirements for a sublease of a WSR lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed sublease.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to a sublease in the same percentages and manner 
as a new WSR lease under Sec.  162.012, unless the lease:
    (1) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the sublease within a 
specified period of time following the landowners' receipt of the 
sublease and the lease meets the requirements in paragraph (c) of this 
section;
    (2) Authorizes one or more representatives to consent to a sublease 
on behalf of all Indian landowners; or
    (3) Designates us as the Indian landowners' representative for the 
purposes of consenting to a sublease.
    (c) If the lease provides for deemed consent under paragraph (b)(1) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed sublease or other documentation of any 
Indian landowners' actual consent;
    (2) Proof of mailing of the sublease to any Indian landowners who 
are deemed to have consented; and
    (3) Any other pertinent information for us to review.



Sec.  162.580  What is the approval process for a sublease of a WSR lease?

    (a) When we receive a sublease that meets the requirements of this 
subpart, we will notify the parties of the date we receive it. If our 
approval is required, we have 30 days from receipt of the executed 
sublease, proof of required consents, and required documentation to 
approve or disapprove the sublease or inform the parties to the sublease 
and Indian landowners in writing that we need additional review time. 
Our determination whether to approve the sublease will be in writing and 
will state the basis for our approval or disapproval.
    (b) Our letter informing parties that we need additional review time 
must identify our initial concerns and invite the parties to respond 
within 15 days of the date of the letter. We have 30 days from sending 
the letter informing the parties that we need additional time to approve 
or disapprove the sublease.
    (c) If we do not meet the deadline in paragraph (a) of this section, 
or paragraph (b) of this section if applicable, the sublease is deemed 
approved to the extent consistent with Federal law.

[[Page 553]]

Unless the lease provides otherwise, provisions of the sublease that are 
inconsistent with Federal law will be severed and unenforceable; all 
other provisions of the sublease will remain in force.



Sec.  162.581  How will BIA decide whether to approve a sublease 
of a WSR lease?

    (a) We may disapprove a sublease of a WSR lease only if at least one 
of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The lessee is in violation of the lease;
    (4) The lessee will not remain liable under the lease; and
    (5) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(5) of this 
section, we may consider whether the value of any part of the leased 
premises not covered by the sublease would be adversely affected.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the sublease is in their best interest.
    (d) We may not unreasonably withhold approval of a sublease.

                         WSR Leasehold Mortgages



Sec.  162.582  May a lessee mortgage a WSR lease?

    (a) A lessee may mortgage a WSR lease by meeting the consent 
requirements in Sec.  162.583 and obtaining our approval of the 
leasehold mortgage under Sec. Sec.  162.584 and 162.585.
    (b) Refer to Sec.  162.574(c) for information on what happens if a 
sale or foreclosure under an approved mortgage of the leasehold interest 
occurs.



Sec.  162.583  What are the consent requirements for a leasehold mortgage 
of a WSR lease?

    (a) Unless the lease provides otherwise, the lessee must notify all 
Indian landowners of the proposed leasehold mortgage.
    (b) The Indian landowners, or their representatives under Sec.  
162.013, must consent to a leasehold mortgage in the same percentages 
and manner as a new WSR lease under Sec.  162.012, unless the lease:
    (1) States that landowner consent is not required for a leasehold 
mortgage and identifies what law would apply in case of foreclosure;
    (2) Provides that individual Indian landowners are deemed to have 
consented where they do not object in writing to the leasehold mortgage 
within a specified period of time following the landowners' receipt of 
the leasehold mortgage and the lease meets the requirements of paragraph 
(c) of this section;
    (3) Authorizes one or more representatives to consent to a leasehold 
mortgage on behalf of all Indian landowners; or
    (4) Designates us as the Indian landowners' representative for the 
purposes of consenting to a leasehold mortgage.
    (c) If the lease provides for deemed consent under paragraph (b)(2) 
of this section, it must require the parties to submit to us:
    (1) A copy of the executed leasehold mortgage or other documentation 
of any Indian landowners' actual consent;
    (2) Proof of mailing of the leasehold mortgage to any Indian 
landowners who are deemed to have consented; and
    (3) Any other pertinent information for us to review.



Sec.  162.584  What is the approval process for a leasehold mortgage 
of a WSR lease?

    (a) When we receive a leasehold mortgage that meets the requirements 
of this subpart, we will notify the parties of the date we receive it. 
We have 20 days from receipt of the executed leasehold mortgage, proof 
of required consents, and required documentation to approve or 
disapprove the leasehold mortgage. Our determination whether to approve 
the leasehold mortgage will be in writing and will state the basis for 
our approval or disapproval.
    (b) If we do not meet the deadline in this section, the lessee may 
take appropriate action under Sec.  162.588.

[[Page 554]]



Sec.  162.585  How will BIA decide whether to approve a leasehold mortgage 
of a WSR lease?

    (a) We may disapprove a leasehold mortgage of a WSR lease only if at 
least one of the following is true:
    (1) The Indian landowners have not consented and their consent is 
required;
    (2) The lessee's mortgagees or sureties have not consented;
    (3) The requirements of this subpart have not been met; or
    (4) We find a compelling reason to withhold our approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we may consider whether:
    (1) The leasehold mortgage proceeds would be used for purposes 
unrelated to the leased premises; and
    (2) The leasehold mortgage is limited to the leasehold.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the leasehold mortgage is in their best 
interest.
    (d) We may not unreasonably withhold approval of a leasehold 
mortgage.

          WSR Lease Effectiveness, Compliance, and Enforcement



Sec.  162.586  When will an amendment, assignment, sublease, 
or leasehold mortgage of a WSR lease be effective?

    (a) An amendment, assignment, sublease, or leasehold mortgage of a 
WSR lease will be effective when approved, even if an appeal is filed 
under part 2 of this chapter, except:
    (1) If the amendment or sublease was deemed approved under Sec.  
162.572(b) or Sec.  162.580(b), the amendment or sublease becomes 
effective 45 days from the date the parties mailed or delivered the 
document to us for our review or, if we sent a letter informing the 
parties that we need additional time to approve or disapprove the lease, 
the amendment or sublease becomes effective 45 days from the date of the 
letter informing the parties that we need additional time to approve or 
disapprove the lease; and
    (2) An assignment that does not require our approval under Sec.  
162.574(b) or a sublease that does not require our approval under Sec.  
162.578(b) becomes effective on the effective date specified in the 
assignment or sublease. If the assignment or sublease does not specify 
the effective date, it becomes effective upon execution by the parties.
    (b) We will provide copies of approved documents to the party 
requesting approval, to the tribe for tribal land, and upon request, to 
other parties to the lease document.



Sec.  162.587  What happens if BIA disapproves an amendment, assignment, 
sublease, or leasehold mortgage of a WSR lease?

    If we disapprove an amendment, assignment, sublease, or leasehold 
mortgage of a WSR lease, we will notify the parties immediately and 
advise the landowners of their right to appeal the decision under part 2 
of this chapter.



Sec.  162.588  What happens if BIA does not meet a deadline 
for issuing a decision on a lease document?

    (a) If a Superintendent does not meet a deadline for issuing a 
decision on a lease, assignment, or leasehold mortgage, the parties may 
file a written notice to compel action with the appropriate Regional 
Director.
    (b) The Regional Director has 15 days from receiving the notice to:
    (1) Issue a decision; or
    (2) Order the Superintendent to issue a decision within the time set 
out in the order.
    (c) The parties may file a written notice to compel action with the 
BIA Director if:
    (1) The Regional Director does not meet the deadline in paragraph 
(b) of this section;
    (2) The Superintendent does not issue a decision within the time set 
by the Regional Director under paragraph (b)(2) of this section; or
    (3) The initial decision on the lease, assignment, or leasehold 
mortgage is with the Regional Director, and he or she does not meet the 
deadline for such decision.
    (d) The BIA Director has 15 days from receiving the notice to:
    (1) Issue a decision; or
    (2) Order the Regional Director or Superintendent to issue a 
decision within the time set out in the order.

[[Page 555]]

    (e) If the Regional Director or Superintendent does not issue a 
decision within the time set out in the order under paragraph (d)(2), 
then the BIA Director must issue a decision within 15 days from the 
expiration of the time set out in the order.
    (f) The parties may file an appeal from our inaction to the Interior 
Board of Indian Appeals if the Director does not meet the deadline in 
paragraph (d) or (e) of this section.
    (g) The provisions of 25 CFR 2.8 do not apply to the inaction of BIA 
officials with respect to a decision on a lease, amendment, assignment, 
sublease, or leasehold mortgage under this subpart.



Sec.  162.589  May BIA investigate compliance with a WSR lease?

    (a) We may enter the leased premises at any reasonable time, upon 
reasonable notice, and consistent with any notice requirements under 
applicable tribal law and applicable lease documents, to protect the 
interests of the Indian landowners and to determine if the lessee is in 
compliance with the requirements of the lease.
    (b) If an Indian landowner notifies us that a specific lease 
violation has occurred, we will promptly initiate an appropriate 
investigation.



Sec.  162.590  May a WSR lease provide for negotiated remedies 
if there is a violation?

    (a) A WSR lease of tribal land may provide either or both parties 
with negotiated remedies in the event of a lease violation, including, 
but not limited to, the power to terminate the lease. If the lease 
provides one or both parties with the power to terminate the lease:
    (1) BIA approval of the termination is not required;
    (2) The termination is effective without BIA cancellation; and
    (3) The Indian landowners must notify us of the termination so that 
we may record it in the LTRO.
    (b) A WSR lease of individually owned Indian land may provide either 
or both parties with negotiated remedies, so long as the lease also 
specifies the manner in which those remedies may be exercised by or on 
behalf of the Indian landowners of the applicable percentage of 
interests under Sec.  162.012 of this part. If the lease provides one or 
both parties with the power to terminate the lease:
    (1) BIA concurrence with the termination is required to ensure that 
the Indian landowners of the applicable percentage of interests have 
consented; and
    (2) BIA will record the termination in the LTRO.
    (c) The parties must notify any surety or mortgagee of any violation 
that may result in termination and the termination of a WSR lease.
    (d) Negotiated remedies may apply in addition to, or instead of, the 
cancellation remedy available to us, as specified in the lease. The 
landowners may request our assistance in enforcing negotiated remedies.
    (e) A WSR lease may provide that lease violations will be addressed 
by the tribe, and that lease disputes will be resolved by a tribal 
court, any other court of competent jurisdiction, or by a tribal 
governing body in the absence of a tribal court, or through an 
alternative dispute resolution method. We may not be bound by decisions 
made in such forums, but we will defer to ongoing actions and 
proceedings, as appropriate, in deciding whether to exercise any of the 
remedies available to us.



Sec.  162.591  What will BIA do about a violation of a WSR lease?

    (a) In the absence of actions or proceedings described in Sec.  
162.590(e), or if it is not appropriate for us to defer to the actions 
or proceedings, we will follow the procedures in paragraphs (b) and (c) 
of this section.
    (b) If we determine there has been a violation of the conditions of 
a WSR lease, other than a violation of payment provisions covered by 
paragraph (c) of this section, we will promptly send the lessee and any 
surety and mortgagee a notice of violation by certified mail, return 
receipt requested.
    (1) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to Indian landowners for 
individually owned Indian land.
    (2) The notice of violation will advise the lessee that, within 10 
business days

[[Page 556]]

of the receipt of a notice of violation, the lessee must:
    (i) Cure the violation and notify us, and the tribe for tribal land, 
in writing that the violation has been cured;
    (ii) Dispute our determination that a violation has occurred; or
    (iii) Request additional time to cure the violation.
    (3) The notice of violation may order the lessee to cease operations 
under the lease.
    (c) A lessee's failure to pay compensation in the time and manner 
required by a WSR lease is a violation of the lease, and we will issue a 
notice of violation in accordance with this paragraph.
    (1) We will send the lessees and any surety and mortgagee a notice 
of violation by certified mail, return receipt requested:
    (i) Promptly following the date on which payment was due, if the 
lease requires that payments be made to us; or
    (ii) Promptly following the date on which we receive actual notice 
of non-payment from the Indian landowners, if the lease provides for 
payment directly to the Indian landowners.
    (2) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to the Indian landowners for 
individually owned Indian land.
    (3) The notice of violation will require the lessee to provide 
adequate proof of payment.
    (d) The lessee and its sureties will continue to be responsible for 
the obligations in the lease until the lease expires or is terminated or 
cancelled.



Sec.  162.592  What will BIA do if a lessee does not cure a violation 
of a WSR lease on time?

    (a) If the lessee does not cure a violation of a WSR lease within 
the required time period, or provide adequate proof of payment as 
required in the notice of violation, we will consult with the tribe for 
tribal land or, where feasible, with Indian landowners for individually 
owned Indian land, and determine whether:
    (1) We should cancel the lease;
    (2) The Indian landowners wish to invoke any remedies available to 
them under the lease;
    (3) We should invoke other remedies available under the lease or 
applicable law, including collection on any available performance bond 
or, for failure to pay compensation, referral of the debt to the 
Department of the Treasury for collection; or
    (4) The lessee should be granted additional time in which to cure 
the violation.
    (b) Following consultation with the tribe for tribal land or, where 
feasible, with Indian landowners for individually owned Indian land, we 
may take action to recover unpaid compensation and any associated late 
payment charges.
    (1) We do not have to cancel the lease or give any further notice to 
the lessee before taking action to recover unpaid compensation.
    (2) We may still take action to recover any unpaid compensation if 
we cancel the lease.
    (c) If we decide to cancel the lease, we will send the lessee and 
any surety and mortgagee a cancellation letter by certified mail, return 
receipt requested, within 5 business days of our decision. We will send 
a copy of the cancellation letter to the tribe for tribal land, and will 
provide Indian landowners for individually owned Indian land with actual 
or constructive notice of the cancellation. The cancellation letter 
will:
    (1) Explain the grounds for cancellation;
    (2) If applicable, notify the lessee of the amount of any unpaid 
compensation or late payment charges due under the lease;
    (3) Notify the lessee of the lessee's right to appeal under part 2 
of this chapter, including the possibility that the official to whom the 
appeal is made may require the lessee to post an appeal bond;
    (4) Order the lessee to vacate the property within 31 days of the 
date of receipt of the cancellation letter, if an appeal is not filed by 
that time; and
    (5) Order the lessee to take any other action BIA deems necessary to 
protect the Indian landowners.
    (d) We may invoke any other remedies available to us under the 
lease, including collecting on any available

[[Page 557]]

performance bond, and the Indian landowners may pursue any available 
remedies under tribal law.



Sec.  162.593  Will late payment charges or special fees apply to 
delinquent payments due under a WSR lease?

    (a) Late payment charges will apply as specified in the lease. The 
failure to pay these amounts will be treated as a lease violation.
    (b) We may assess the following special fees to cover administrative 
costs incurred by the United States in the collection of the debt, if 
compensation is not paid in the time and manner required, in addition to 
late payment charges that must be paid to the Indian landowners under 
the lease:

------------------------------------------------------------------------
       The lessee will pay . . .                    For . . .
------------------------------------------------------------------------
(1) $50.00.............................  Any dishonored check.
(2) $15.00.............................  Processing of each notice or
                                          demand letter.
(3) 18 percent of balance due..........  Treasury processing following
                                          referral for collection of
                                          delinquent debt.
------------------------------------------------------------------------



Sec.  162.594  How will payment rights relating to WSR leases be allocated?

    The WSR lease may allocate rights to payment for insurance proceeds, 
trespass damages, compensation awards, settlement funds, and other 
payments between the Indian landowners and the lessee. If not specified 
in the lease, insurance policy, order, award, judgment, or other 
document, the Indian landowners will be entitled to receive these 
payments.



Sec.  162.595  When will a cancellation of a WSR lease be effective?

    (a) A cancellation involving a WSR lease will not be effective until 
31 days after the lessee receives a cancellation letter from us, or 41 
days from the date we mailed the letter, whichever is earlier.
    (b) The cancellation decision will not be effective if an appeal is 
filed unless the cancellation is made immediately effective under part 2 
of this chapter. While a cancellation decision is ineffective, the 
lessee must continue to pay compensation and comply with the other terms 
of the lease.



Sec.  162.596  What will BIA do if a lessee remains in possession 
after a WSR lease expires or is terminated or cancelled?

    If a lessee remains in possession after the expiration, termination, 
or cancellation of a WSR lease, we may treat the unauthorized possession 
as a trespass under applicable law in consultation with the Indian 
landowners. Unless the Indian landowners of the applicable percentage of 
interests under Sec.  162.012 have notified us in writing that they are 
engaged in good faith negotiations with the holdover lessee to obtain a 
new lease, we may take action to recover possession on behalf of the 
Indian landowners, and pursue any additional remedies available under 
applicable law, such as a forcible entry and detainer action.



Sec.  162.597  Will BIA appeal bond regulations apply to 
cancellation decisions involving WSR leases?

    (a) Except as provided in paragraph (b) of this section, the appeal 
bond provisions in part 2 of this chapter will apply to appeals from 
lease cancellation decisions.
    (b) The lessee may not appeal the appeal bond decision. The lessee 
may, however, request that the official to whom the appeal is made 
reconsider the appeal bond decision, based on extraordinary 
circumstances. Any reconsideration decision is final for the Department.



Sec.  162.598  When will BIA issue a decision on an appeal 
from a WSR leasing decision?

    BIA will issue a decision on an appeal from a WSR leasing decision 
within 60 days of receipt of all pleadings.



Sec.  162.599  What happens if the lessee abandons the leased premises?

    If a lessee abandons the leased premises, we will treat the 
abandonment as a violation of the lease. The lease may specify a period 
of non-use after which the lease premises will be considered abandoned.

[[Page 558]]



         Subpart F_Special Requirements for Certain Reservations



Sec.  162.600  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 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

[[Page 559]]

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 of such damage, the matter will be referred to the 
Secretary whose determination will be final as to the amount of said 
damage.

[66 FR 7109, Jan. 22, 2001. Redesignated at 77 FR 72494, Dec. 5, 2012 
and correctly redesignated at 78 FR 27860, May 13, 2013]



Sec.  162.601  Fort Belknap Reservation.

    Not to exceed 20,000 acres of allotted and tribal lands (non-
irrigable 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 ten years.

[66 FR 7109, Jan. 22, 2001. Redesignated at 77 FR 72494, Dec. 5, 2012 
and correctly redesignated at 78 FR 27860, May 13, 2013]



Sec.  162.602  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 county 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).

[66 FR 7109, Jan. 22, 2001. Redesignated at 77 FR 72494, Dec. 5, 2012 
and correctly redesignated at 78 FR 27860, May 13, 2013]



Sec.  162.603  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, Arizona, 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 part 162 
apply. The purpose of this section is to provide regulations for 
implementation of the 1966 Act. The 1966 Act does not apply to 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 ten 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 ten 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

[[Page 560]]

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 in part 162 
of this title shall apply to leases made under the 1966 Act except where 
such regulations are inconsistent with this section.
    (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.

[66 FR 7109, Jan. 22, 2001. Redesignated at 77 FR 72494, Dec. 5, 2012 
and correctly redesignated at 78 FR 27860, May 13, 2013]



                            Subpart G_Records

    Source: 77 FR 72494, Dec. 5, 2012, unless otherwise noted.



Sec.  162.701  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a Federal trust function under 25 U.S.C. 450f et seq., 
including the operation of a trust program; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a Federal trust function under this part.
    (b) Records not covered by paragraph (a) of this section that are 
made or received by a tribe or tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the tribe.



Sec.  162.702  How must records associated with this part be preserved?

    (a) Any organization, including a tribe or tribal organization, that 
has records identified in Sec.  162.701(a) of this part, must preserve 
the records in accordance with approved Departmental records retention 
procedures under the Federal Records Act, 44 U.S.C. chapters 29, 31 and 
33. These records and related records management practices and 
safeguards required under the Federal Records Act are subject to 
inspection by the Secretary and the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec.  162.701(b) of this part, for the period of time 
authorized by the Archivist of the United States for similar Department 
of the Interior records under 44 U.S.C. chapter 33. If a tribe or tribal 
organization does not preserve records associated with its conduct of 
business with the Department of the Interior under this part, it may 
prevent the tribe or tribal organization from being able to adequately 
document essential transactions or furnish information necessary to 
protect its legal and financial rights or those of persons directly 
affected by its activities.



Sec.  162.703  How does the Paperwork Reduction Act affect this part?

    The collections of information in this part have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-0155. Response is required to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it

[[Page 561]]

displays a currently valid OMB Control Number.



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.

  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.

[[Page 562]]

    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.
    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;

[[Page 563]]

    (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 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

[[Page 564]]

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, 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:

[[Page 565]]

    (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, 
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

[[Page 566]]

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 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

[[Page 567]]

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 Sec. Sec.  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 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.

[[Page 568]]



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.



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

[[Page 569]]

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. 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

[[Page 570]]

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 
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

[[Page 571]]

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 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 Sec. Sec.  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.

[[Page 572]]

    (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 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.

[[Page 573]]



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 
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

[[Page 574]]

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 Sec. Sec.  
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 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

[[Page 575]]

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 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.

[[Page 576]]



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.
    (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.

[[Page 577]]



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 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

[[Page 578]]

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:
    (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.

[[Page 579]]



  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 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

[[Page 580]]

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.
    (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,

[[Page 581]]

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 Sec. Sec.  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 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.

[[Page 582]]

    (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 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

[[Page 583]]

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 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

[[Page 584]]

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 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,

[[Page 585]]

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 
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.

[[Page 586]]



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 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.

[[Page 587]]



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_GRAZING PERMITS--Table of Contents



                Subpart A_Purpose, Scope, and Definitions

Sec.
166.1 What is the purpose and scope of this part?
166.2 Can the BIA waive the application of these regulations?
166.3 May decisions under this part be appealed?
166.4 What terms do I need to know?

        Subpart B_Tribal Policies and Laws Pertaining to Permits

166.100 What special tribal policies will we apply to permitting on 
          Indian agricultural lands?
166.101 May individual Indian landowners exempt their land from certain 
          tribal policies for permitting on Indian agricultural lands?
166.102 Do tribal laws apply to permits?
166.103 How will tribal laws be enforced on Indian agricultural land?
166.104 What notifications are required that tribal laws apply to 
          permits on Indian agricultural lands?

                      Subpart C_Permit Requirements

                          General Requirements

166.200 When is a permit needed to authorize possession of Indian land 
          for grazing purposes?
166.201 Must parents or guardians of Indian minors who own Indian land 
          obtain a permit before using land for grazing purposes?
166.202 May an emancipated minor grant a permit?
166.203 When can the Indian landowners grant a permit?
166.204 Who may represent an individual Indian landowner in granting a 
          permit?
166.205 When can the BIA grant a permit on behalf of Indian landowners?
166.206 What requirements apply to a permit on a fractionated tract?
166.207 What provisions will be contained in a permit?
166.208 How long is a permit term?
166.209 Must a permit be recorded?
166.210 When is a decision by the BIA regarding a permit effective?
166.211 When are permits effective?
166.212 When may a permittee take possession of permitted Indian land?
166.213 Must I comply with any standards of conduct if I am granted a 
          permit?
166.214 Will the BIA notify the permittee of any change in land title 
          status?

                           Obtaining a Permit

166.215 How can I find Indian land available for grazing?
166.216 Who is responsible for permitting Indian land?
166.217 In what manner may a permit on Indian land be granted?
166.218 How do I acquire a permit through tribal allocation?
166.219 How do I acquire a permit through negotiation?
166.220 What are the basic steps for acquiring a permit through 
          negotiation?
166.221 How do I acquire an advertised permit through competitive 
          bidding?
166.222 Are there standard permit forms?

                       Permit (Leasehold) Mortgage

166.223 Can I use a permit as collateral for a loan?
166.224 What factors does the BIA consider when reviewing a leasehold 
          mortgage?
166.225 May a permittee voluntarily assign a leasehold interest under an 
          approved encumbrance?
166.226 May the holder of a leasehold mortgage assign the leasehold 
          interest after a sale or foreclosure of an approved 
          encumbrance?

[[Page 588]]

                           Modifying a Permit

166.227 How can Indian land be removed from an existing permit?
166.228 How will the BIA provide notice if Indian land is removed from 
          an existing permit?
166.229 Other than to remove land, how can a permit be amended, 
          assigned, subpermitted, or mortgaged?
166.230 When will a BIA decision to approve an amendment, assignment, 
          subpermit, or mortgage under a permit be effective?
166.231 Must an amendment, assignment, subpermit, or mortgage approved 
          under a permit be recorded?

                Subpart D_Land and Operations Management

166.300 How is Indian agricultural land managed?
166.301 How is Indian land for grazing purposes described?
166.302 How is a range unit created?
166.303 Can more than one parcel of Indian land be combined into one 
          permit?
166.304 Can there be more than one permit for each range unit?
166.305 When is grazing capacity determined?
166.306 Can the BIA adjust the grazing capacity?
166.307 Will the grazing capacity be increased if I graze adjacent trust 
          or non-trust rangelands not covered by the permit?
166.308 Can the number of animals and/or season of use be modified on 
          the permitted land if I graze adjacent trust or non-trust 
          rangelands under an on-and-off grazing permit?
166.309 Who determines livestock class and livestock ownership 
          requirements on permitted Indian land?
166.310 What must a permittee do to protect livestock from exposure to 
          disease?

              Management Plans and Environmental Compliance

166.311 Is an Indian agricultural resource management plan required?
166.312 Is a conservation plan required?
166.313 Is environmental compliance required?

                 Conservation Practices and Improvements

166.314 Can a permittee apply a conservation practice on permitted 
          Indian land?
166.315 Who is responsible for the completion and maintenance of a 
          conservation practice if the permit expires or is canceled 
          before the completion of the conservation practice?
166.316 Can a permittee construct improvements on permitted Indian land?
166.317 What happens to improvements constructed on Indian lands when 
          the permit has been terminated?

 Subpart E_Grazing Rental Rates, Payments, and Late Payment Collections

                Rental Rate Determination and Adjustment

166.400 Who establishes grazing rental rates?
166.401 How does the BIA establish grazing rental rates?
166.402 Why must the BIA determine the fair annual rental of Indian 
          land?
166.403 Will the BIA ever grant or approve a permit at less than fair 
          annual rental?
166.404 Whose grazing rental rate will be applicable for a permit on 
          tribal land?
166.405 Whose grazing rental rate will be applicable for a permit on 
          individually-owned Indian land?
166.406 Whose grazing rental rate will be applicable for a permit on 
          government land?
166.407 If a range unit consists of tribal and individually-owned Indian 
          lands, what is the grazing rental rate?
166.408 Is the grazing rental rate established by the BIA adjusted 
          periodically?

                             Rental Payments

166.409 How is my grazing rental payment determined?
166.410 When are grazing rental payments due?
166.411 Will a permittee be notified when a grazing rental payment is 
          due?
166.412 What if the permittee does not receive an invoice that a grazing 
          rental payment is due?
166.413 To whom are grazing rental payments made?
166.414 What forms of grazing rental payments are acceptable?
166.415 What will the BIA do if the permittee fails to make a direct 
          payment to an Indian landowner?
166.416 May a permittee make a grazing rental payment in advance of the 
          due date?
166.417 May an individual Indian landowner modify the terms of the 
          permit on a fractionated tract for advance grazing rental 
          payment?
166.418 When is a grazing rental payment late?

                     Late Rental Payment Collections

166.419 What will the BIA do if grazing rental payments are not made in 
          the time and manner required by the permit?
166.420 Will any special fees be assessed on delinquent grazing rental 
          payments due under a permit?

[[Page 589]]

166.421 If a permit is canceled for non-payment, does that extinguish 
          the permittee's debt?

                    Compensation to Indian Landowners

166.422 What does the BIA do with grazing rental payments received from 
          permittees?
166.423 How do Indian landowners receive grazing rental payments that 
          the BIA has received from permittees?
166.424 How will the BIA determine the grazing rental payment amount to 
          be distributed to each Indian landowner?

                Subpart F_Administrative and Tribal Fees

166.500 Are there administrative fees for a permit?
166.501 How are annual administrative fees determined?
166.502 Are administrative fees refundable?
166.503 May the BIA waive administrative fees?
166.504 Are there any other administrative or tribal fees, taxes, or 
          assessments that must be paid?

              Subpart G_Bonding and Insurance Requirements

166.600 Must a permittee provide a bond for a permit?
166.601 How is the amount of the bond determined?
166.602 What form of bonds will the BIA accept?
166.603 If cash is submitted as a bond, how is it administered?
166.604 Is interest paid on a cash performance bond?
166.605 Are cash performance bonds refunded?
166.606 What happens to a bond if a violation occurs?
166.607 Is insurance required for a permit?
166.608 What types of insurance may be required?

                       Subpart H_Permit Violations

166.700 What permit violations are addressed by this subpart?
166.701 How will the BIA determine whether the activities of a permittee 
          under a permit are in compliance with the terms of the permit?
166.702 Can a permit provide for negotiated remedies in the event of a 
          permit violation?
166.703 What happens if a permit violation occurs?
166.704 What will a written notice of a permit violation contain?
166.705 What will the BIA do if a permit violation is not cured within 
          the required time period?
166.706 Will the BIA's regulations concerning appeal bonds apply to 
          cancellation decisions involving permits?
166.707 When will a cancellation of a permit be effective?
166.708 Can the BIA take emergency action if the rangeland is threatened 
          with immediate, significant, and irreparable harm?
166.709 What will the BIA do if a permittee holds over after the 
          expiration or cancellation of a permit?

                           Subpart I_Trespass

166.800 What is trespass?
166.801 What is the BIA's trespass policy?
166.802 Who can enforce this subpart?

                              Notification

166.803 How are trespassers notified of a trespass determination?
166.804 What can I do if I receive a trespass notice?
166.805 How long will a written trespass notice remain in effect?

                                 Actions

166.806 What actions does the BIA take against trespassers?
166.807 When will we impound unauthorized livestock or other property?
166.808 How are trespassers notified if their unauthorized livestock or 
          other property are to be impounded?
166.809 What happens after my unauthorized livestock or other property 
          are impounded?
166.810 How do I redeem my impounded livestock or other property?
166.811 How will the sale of impounded livestock or other property be 
          conducted?

                      Penalties, Damages, and Costs

166.812 What are the penalties, damages, and costs payable by 
          trespassers on Indian agricultural land?
166.813 How will the BIA determine the value of forage or crops consumed 
          or destroyed?
166.814 How will the BIA determine the value of the products or property 
          illegally used or removed?
166.815 How will the BIA determine the amount of damages to Indian 
          agricultural land?
166.816 How will the BIA determine the costs associated with enforcement 
          of the trespass?
166.817 What happens if I do not pay the assessed penalties, damages and 
          costs?
166.818 How are the proceeds from trespass distributed?

[[Page 590]]

166.819 What happens if the BIA does not collect enough money to satisfy 
          the penalty?

Subpart J_Agriculture Education, Education Assistance, Recruitment, and 
                                Training

166.900 How are the Indian agriculture education programs operated?
166.901 How will the BIA select an agriculture intern?
166.902 How can I become an agriculture educational employment student?
166.903 How can I get an agriculture scholarship?
166.904 What is agriculture education outreach?
166.905 Who can get assistance for postgraduate studies?
166.906 What can happen if we recruit you after graduation?
166.907 Who can be an intern?
166.908 Who can participate in continuing education and training?
166.909 What are my obligations to the BIA after I participate in an 
          agriculture education program?
166.910 What happens if I do not fulfill my obligation to the BIA?

                            Subpart K_Records

166.1000 Who owns the records associated with this part?
166.1001 How must records associated with this part be preserved?

    Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 
9; Sec. 6, 96 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; Sec. 16, 17, 48 Stat. 987, 988, 25 U.S.C. 476, 477; Sec. 
1, 2, 4, 5, 6, 69 Stat. 539, 540, 25 U.S.C. 415, 415a, 415b, 415c, 415d, 
25 U.S.C. 3701, 3702, 3703, 3711, 3712, 3713, 3714, 3731, 3732, 3733, 
3734, 3741, 3742, 3743, 3744, 3745, 107 Stat. 2011; 44 U.S.C. Sec.  
3101, et seq.)

    Source: 66 FR 7126, Jan. 22, 2001, unless otherwise noted.



                Subpart A_Purpose, Scope, and Definitions



Sec.  166.1  What is the purpose and scope of this part?

    (a) The purpose of this part is to describe the authorities, 
policies, and procedures the BIA uses to approve, grant, and administer 
a permit for grazing on tribal land, individually-owned Indian land, or 
government land.
    (b) If the BIA's approval is not required for a permit, these 
regulations will not apply.
    (c) These regulations do not apply to any tribal land which is 
permitted under a corporate charter issued by us pursuant to 25 U.S.C. 
Sec.  477, or under a special act of Congress authorizing permits 
without our approval under certain conditions, except to the extent that 
the authorizing statutes require us to enforce such permits on behalf of 
the Indian landowners.
    (d) To the extent that any provisions of this part conflict with 
Section 213 of the Indian Land Consolidation Act Amendments of 2000, the 
provisions of that act will govern.
    (e) In approving a permit on behalf of the Indian landowners, the 
BIA will not permit for fee interest owners nor will we collect rent on 
behalf of fee interest owners. Our permitting of the trust and 
restricted interests of the Indian landowners will not be conditioned on 
a permit having been obtained from any fee interest owners. However, 
where all of the trust or restricted interests in a tract are subject to 
a life estate held in fee status, we will approve a permit of the 
remainder interests of the Indian landowners only if such action is 
necessary to preserve the value of the land or protect the interests of 
the Indian landowners. Where a life estate and remainder interest are 
both owned in trust or restricted status, the life estate and remainder 
interest must both be permitted under these regulations, unless the 
permit is for less than one year in duration. Unless otherwise provided 
by the document creating the life estate or by agreement, rent payable 
under the permit must be paid to the holder of the life estate under 
part 179 of this title.



Sec.  166.2  Can the BIA waive the application of these regulations?

    Yes. In any case in which these regulations conflict with the 
objectives of the agricultural resource management plan provided for in 
Sec.  166.311 of this part, or with a tribal law, the BIA may

[[Page 591]]

waive the application of such regulations unless the waiver would 
constitute a violation of a federal statute or judicial decision or 
would conflict with the BIA's general trust responsibility under federal 
law.



Sec.  166.3  May decisions under this part be appealed?

    Yes. Except where otherwise provided in this part, appeals from 
decisions by the BIA under this part may be taken pursuant to 25 CFR 
part 2.



Sec.  166.4  What terms do I need to know?

    Adult means an individual Indian who is 18 years of age or older.
    Agency means the agency or field office or any other designated 
office in the Bureau of Indian Affairs (BIA) having jurisdiction over 
trust or restricted property or money.
    Agricultural product means:
    (1) Crops grown under cultivated conditions whether used for 
personal consumption, subsistence, or sold for commercial benefit;
    (2) Domestic livestock, including cattle, sheep, goats, horses, 
buffalo, swine, reindeer, fowl, or other animals specifically raised and 
used for food or fiber or as a beast of burden;
    (3) Forage, hay, fodder, food grains, crop residues and other items 
grown or harvested for the feeding and care of livestock, sold for 
commercial profit, or used for other purposes; and
    (4) Other marketable or traditionally used materials authorized for 
removal from Indian agricultural lands.
    Agricultural resource management plan means a ten-year plan 
developed through the public review process specifying the tribal 
management goals and objectives developed for tribal agricultural and 
grazing resources. Plans developed and approved under AIARMA will govern 
the management and administration of Indian agricultural resources and 
Indian agricultural lands by the BIA and Indian tribal governments.
    AIARMA means American Indian Agricultural Resources Management Act 
of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), and 
amended on November 2, 1994 (108 Stat. 4572).
    Allocation means the apportionment of grazing privileges without 
competition to tribal members or tribal entities, including the tribal 
designation of permittees and the number and kind of livestock to be 
grazed.
    Animal Unit Month (AUM) means the amount of forage required to 
sustain one cow or one cow with one calf for one month.
    Approving/approval means the action taken by the BIA to approve a 
permit.
    Assign/assignment means an agreement between a permittee and an 
assignee, whereby the assignee acquires all of the permittee's rights, 
and assumes all of the permittee's obligations under a permit.
    Assignee means the person to whom the permit rights for use of 
Indian land are assigned.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior and any tribe acting on behalf of the BIA under this part.
    Bond means security for the performance of certain permit 
obligations, as furnished by the permitee, or a guaranty of such 
performance as furnished by a third-party surety.
    Conservation plan means a statement of management objectives for 
grazing, including contract stipulations defining required uses, 
operations, and improvements.
    Conservation practice means a management action to protect, 
conserve, utilize, and maintain the sustained yield productivity of 
Indian agricultural land.
    Day means a calendar day.
    Encumbrance means mortgage, deed of trust or other instrument which 
secures a debt owed by a permittee to a lender or other holder of a 
leasehold mortgage on the permit interest.
    Emancipated minor means a person under 18 years of age who is 
married or who is determined by a court of competent jurisdiction to be 
legally able to care for himself or herself.
    Fair annual rental means the amount of rental income that a 
permitted parcel of Indian land would most probably command in an open 
and competitive market.
    Farmland means Indian land, excluding Indian forest land, that is 
used for production of food, feed, fiber, forage, and seed, oil crops, 
or other agricultural products, and may be either dry

[[Page 592]]

land, irrigated land, or irrigated pasture.
    Fee interest means an interest in land that is owned in unrestricted 
fee status, and is thus freely alienable by the fee owner.
    Fractionated tract means a tract of Indian land owned in common by 
Indian landowners and/or fee owners holding undivided interests therein.
    Government land means any tract, or interest therein, in which the 
surface estate is owned by the United States and administered by the 
BIA, not including tribal land which has been reserved for 
administrative purposes.
    Grant/granting means the process of the BIA or the Indian landowner 
agreeing or consenting to a permit.
    Grazing capacity means the maximum sustainable number of livestock 
that may be grazed on a defined area and within a defined period, 
usually expressed in an Animal Unit Month (AUM).
    Grazing rental payment means the total of the grazing rental rate 
multiplied by the number of AUMs or acres in the permit.
    Grazing rental rate means the amount you must pay for an AUM or acre 
based on the fair annual rental.
    I/You means the person to whom these regulations directly apply.
    Immediate family means the spouse, brothers, sisters, lineal 
ancestors, lineal descendants, or members of the household of an 
individual Indian landowner.
    Indian agricultural land means Indian land, including farmland and 
rangeland, excluding Indian forest land, that is used for production of 
agricultural products, and Indian lands occupied by industries that 
support the agricultural community, regardless of whether a formal 
inspection and land classification has been conducted.
    Indian land means any tract in which any interest in the surface 
estate is owned by a tribe or individual Indian in trust or restricted 
status.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land in trust or restricted status.
    Individually-owned Indian land means any tract, or interest therein, 
in which the surface estate is owned by an individual Indian in trust or 
restricted status.
    Interest means, when used with respect to Indian land, an ownership 
right to the surface estate of Indian land that is unlimited or 
uncertain in duration, including a life estate.
    Life estate means an interest in Indian land which is limited in 
duration to the life of the permittor holding the interest, or the life 
of some other person.
    Majority interest means the ownership interest(s) that are greater 
than 50 percent of the trust or restricted ownership interest(s) in a 
tract of Indian land.
    Minor means an individual who is less than 18 years of age.
    Mortgage means a mortgage, deed of trust or other instrument which 
pledges a permittee's permit (leasehold) interest as security for a debt 
or other obligation owed by the permittee to a lender or other 
mortgagee.
    Non compos mentis means a person who has been legally determined by 
a court of competent jurisdiction to be of unsound mind or incapable of 
transacting or conducting business and managing one's own affairs.
    On-and-off grazing permit means a written agreement with a permittee 
for additional grazing capacity for other rangeland not covered by the 
permit.
    Permit means a written agreement between Indian landowners and a 
permittee, whereby the permittee is granted a revocable privilege to use 
Indian land or Government land, for a specified purpose.
    Permittee means an a person or entity who has acquired a legal right 
of possession to Indian land by a permit for grazing purposes under this 
part.
    Range unit means rangelands consolidated to form a unit of land for 
the management and administration of grazing under a permit. A range 
unit may consist of a combination of tribal, individually-owned Indian, 
and/or government land.
    Rangeland means Indian land, excluding Indian forest land, on which 
native vegetation is predominantly grasses, grass-like plants, half-
shrubs or shrubs suitable for grazing or browsing use, and includes 
lands re-vegetated naturally or artificially to provide a forage

[[Page 593]]

cover that is managed as native vegetation.
    Restricted land or 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.
    Subpermit means a written agreement, whereby the permittee grants to 
an individual or entity a right to possession (i.e., pasturing 
authorization), no greater than that held by the permittee under the 
permit.
    Surety means one who guarantees the performance of another.
    Sustained yield means the yield of agricultural products that a unit 
of land can produce continuously at a given level of use.
    Trespass means any unauthorized occupancy, use of, or action on 
Indian lands.
    Tribal land means the surface estate of 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 BIA 
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).
    Tribal law means the body of non-federal law that governs lands and 
activities under the jurisdiction of a tribe, including ordinances or 
other enactments by the tribe, tribal court rulings, and tribal common 
law.
    Trust land means any tract, or interest therein, that the United 
States holds in trust status for the benefit of a tribe or individual 
Indian.
    Undivided interest means a fractional share in the surface estate of 
Indian land, where the surface estate is owned in common with other 
Indian landowners or fee owners.
    Us/We/Our means the BIA and any tribe acting on behalf of the BIA 
under 166.1 of this part.
    Uniform Standards of Professional Appraisal Practices (USPAP) means 
the standards promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.
    Written notice means a written letter mailed by way of United States 
mail, certified return receipt requested, postage prepaid, or hand-
delivered letter.



        Subpart B_Tribal Policies and Laws Pertaining to Permits



Sec.  166.100  What special tribal policies will we apply to permitting 
on Indian agricultural lands?

    (a) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for permitting of Indian agricultural 
lands, the BIA will:
    (1) Waive the general prohibition against Indian operator 
preferences in permits advertised for bid under Sec.  166.221 of this 
part, by allowing prospective Indian operators to match the highest 
responsible bid (unless the tribal law or leasing policy specifies some 
other manner in which the preference must be afforded);
    (2) Waive or modify the requirement that a permittee post a surety 
or performance bond;
    (3) Provide for posting of other collateral or security in lieu of 
surety or other bonds; and
    (4) Approve permits of tribally-owned agricultural lands at rates 
determined by the tribal governing body.
    (b) When specifically authorized by an appropriate tribal resolution 
establishing a general policy for permitting of Indian agricultural 
lands, and subject to paragraph (c) of this section, the BIA may:
    (1) Waive or modify any general notice requirement of federal law; 
and
    (2) Grant or approve a permit on ``highly fractionated undivided 
heirship lands'' as defined by tribal law.
    (c) The BIA may take the action specified in paragraph (b) of this 
section only if:
    (1) The tribe defines by resolution what constitutes ``highly 
fractionated undivided heirship lands'';

[[Page 594]]

    (2) The tribe adopts an alternative plan for notifying individual 
Indian landowners; and
    (3) The BIA's action is necessary to prevent waste, reduce idle land 
acreage and ensure income.



Sec.  166.101  May individual Indian landowners exempt their land 
from certain tribal policies for permitting on Indian agricultural lands?

    (a) The individual Indian landowners of Indian land may exempt their 
land from our application of a tribal policy referred to under Sec.  
166.100 of this part if:
    (1) The Indian landowners have at least a 50% interest in such 
fractionated tract; and
    (2) The Indian landowners submit a written objection to the BIA of 
all or any part of such tribal policies to the permitting of such parcel 
of land.
    (b) Upon verification of the written objection we will notify the 
tribe of the Indian landowners' exemption from the specific tribal 
policy.
    (c) The procedures described in paragraphs (a) and (b) of this 
section will also apply to withdrawing an approved exemption.



Sec.  166.102  Do tribal laws apply to permits?

    Tribal laws will apply to permits of Indian land under the 
jurisdiction of the tribe enacting such laws, unless those tribal laws 
are inconsistent with applicable federal law.



Sec.  166.103  How will tribal laws be enforced on Indian agricultural land?

    (a) Unless prohibited by federal law, we will recognize and comply 
with tribal laws regulating activities on Indian agricultural land, 
including tribal laws relating to land use, environmental protection, 
and historic or cultural preservation.
    (b) While the tribe is primarily responsible for enforcing tribal 
laws pertaining to Indian agricultural land, we will:
    (1) Assist in the enforcement of tribal laws;
    (2) Provide notice of tribal laws to persons or entities undertaking 
activities on Indian agricultural land, under Sec.  166.104(b) of this 
part; and
    (3) Require appropriate federal officials to appear in tribal forums 
when requested by the tribe, so long as such an appearance would not:
    (i) Be inconsistent with the restrictions on employee testimony set 
forth at 43 CFR Part 2, Subpart E;
    (ii) Constitute a waiver of the sovereign immunity of the United 
States; or
    (iii) Authorize or result in a review of our actions by a tribal 
court.
    (c) Where the regulations in this subpart are inconsistent with a 
tribal law, but such regulations cannot be superseded or modified by the 
tribal law under Sec.  166.2 of this part, we may waive the regulations 
under part 1 of this title, so long as the waiver does not violate a 
federal statute or judicial decision or conflict with our general trust 
responsibility under federal law.



Sec.  166.104  What notifications are required that tribal laws apply 
to permits on Indian agricultural lands?

    (a) Tribes must notify us of the content and effective dates of new 
tribal laws.
    (b) We will then notify affected Indian landowners and any persons 
or entities undertaking activities on Indian agricultural lands of the 
superseding or modifying effect of the tribal law. We will:
    (1) Provide individual written notice; or
    (2) Post public notice. This notice will be posted at the tribal 
community building, U.S. Post Office, and/or published in the local 
newspaper nearest to the Indian lands where activities are occurring.



                      Subpart C_Permit Requirements

                          General Requirements



Sec.  166.200  When is a permit needed to authorize possession of Indian land 
for grazing purposes?

    (a) Unless otherwise provided for in this part, any person or legal 
entity, including an independent legal entity owned and operated by a 
tribe, must obtain a permit under these regulations before taking 
possession of Indian land for grazing purposes.

[[Page 595]]

    (b) An Indian landowner who owns 100% of the trust or restricted 
interests in a tract may take possession of that Indian land without a 
permit or any other prior authorization from us.
    (c) If an Indian landowner does not own 100 percent (%) of his or 
her Indian land and wants to use the Indian land for grazing purposes, a 
permit must be granted by the majority interest of the fractionated 
tract.



Sec.  166.201  Must parents or guardians of Indian minors who own Indian land 
obtain a permit before using land for grazing purposes?

    Parents or guardians need not obtain a permit for Indian lands owned 
by their minor Indian children if:
    (a) Those minor children own 100 percent (%) of the land; and
    (b) The minor children directly benefit from the use of the land. We 
may require the user to provide evidence of the direct benefits to the 
minor children. When one of the minor children becomes an adult, the 
permit will have to be obtained from the majority interest.



Sec.  166.202  May an emancipated minor grant a permit?

    Yes. An emancipated minor may grant a permit.



Sec.  166.203  When can the Indian landowners grant a permit?

    (a) Tribes grant permits of tribal land, including any tribally-
owned undivided interest(s) in a fractionated tract. A permit granted by 
the tribe must be approved by us, unless the permit is authorized by a 
charter approved by us under 25 U.S.C. Sec.  477, or unless our approval 
is not required under other applicable federal law. In order to permit 
tribal land in which the beneficial interest has been assigned to 
another party, the assignee and the tribe must both grant the permit, 
subject to our approval.
    (b) Individual Indian landowners may grant a permit of their land, 
including their undivided interest in a fractionated tract, subject to 
our approval. Except as otherwise provided in this part, these Indian 
landowners may include the owner of a life estate holding 100 percent 
(%) interest in their land.
    (c) The owners of a majority interest in the Indian ownership of a 
fractionated tract may grant a permit, subject to our approval, without 
giving prior notice to the minority Indian landowners as long as the 
minority interest owners receive fair annual rental.



Sec.  166.204  Who may represent an individual Indian landowner 
in granting a permit?

    The following individuals or entities may represent an individual 
Indian landowner in granting a permit:
    (a) An adult with custody acting on behalf of their minor children;
    (b) A guardian, conservator, or other fiduciary appointed by a court 
of competent jurisdiction to act on behalf of an individual Indian 
landowner;
    (c) An adult or legal entity who has been given a written power of 
attorney that:
    (1) Meets all of the formal requirements of any applicable tribal or 
state law;
    (2) Identifies the attorney-in-fact and the land to be permitted; 
and
    (3) Describes the scope of the power granted and any limits thereon.



Sec.  166.205  When can the BIA grant a permit on behalf of Indian landowners?

    (a) We may grant a permit on behalf of:
    (1) An individual who is adjudicated to be non compos mentis by a 
court of competent jurisdiction;
    (2) An orphaned minor;
    (3) An Indian landowner who has granted us written authority to 
permit his or her land;
    (4) The undetermined heirs and devisees of a deceased Indian 
landowner;
    (5) An Indian landowner whose whereabouts are unknown to us after a 
reasonable attempt is made to locate the Indian landowner;
    (6) Indian landowners, where:
    (i) We have provided written notice of our intent to grant a permit 
on their behalf, but the Indian landowners are unable to agree upon a 
permit during a three-month negotiation period immediately following 
such notice, or any other notice period established by a

[[Page 596]]

tribe under Sec.  166.100(c)(2) of this part; and
    (ii) The land is not being used by an individual Indian landowner 
under Sec.  166.200 of this part.
    (7) The individual Indian owners of fractionated Indian land, when 
necessary to protect the interests of the individual Indian landowners.



Sec.  166.206  What requirements apply to a permit on a fractionated tract?

    We may grant a permit on behalf of all Indian landowners of a 
fractionated tract as long as the owners receive fair annual rental. 
Before granting such a permit, we may offer a preference right to any 
Indian landowner who:
    (a) Is in possession of the entire tract;
    (b) Submits a written offer to permit the land, subject to any 
required or negotiated terms and conditions, prior to our granting a 
permit to another party; and
    (c) Provides any supporting documents needed to demonstrate the 
ability to perform all of the obligations under the proposed permit.



Sec.  166.207  What provisions will be contained in a permit?

    A permit, at a minimum, must include:
    (a) Authorized user(s);
    (b) Conservation plan requirements;
    (c) Prohibition against creating a nuisance, any illegal activity, 
and negligent use or waste or resources;
    (d) Numbers and types of livestock allowed;
    (e) Season(s) of use;
    (f) Grazing rental payment, payment schedule, and late payment 
interest and penalties;
    (g) Administrative fees;
    (h) Tribal fees, if applicable;
    (i) Payment method;
    (j) Range unit number or name;
    (k) Animal identification requirements;
    (l) A description (preferably a legal description) of the permitted 
area;
    (m) Term of permit (including beginning and ending dates of the term 
allowed, as well as any option to renew, extend or terminate);
    (n) Conditions for making improvements, if any;
    (o) A right of entry by the BIA for purposes of inspection or 
enforcement purposes;
    (p) A provision concerning the applicability of tribal jurisdiction;
    (q) A provision stating how trespass proceeds are to be distributed; 
and
    (r) A provision for the permittee to indemnify the United States and 
the Indian landowners against all liabilities or costs relating to the 
use, handling, treatment, removal, storage, transportation, or disposal 
of hazardous materials or the release or discharge of any hazardous 
material from the permitted premises that occur during the permit term, 
regardless of fault.



Sec.  166.208  How long is a permit term?

    (a) The duration must be reasonable given the purpose of the permit 
and the level of investment required by the permittee to place the 
property into productive use.
    (b) On behalf of the undetermined heirs of an individual Indian 
decedent owning 100 percent (%) interest in the land, we will grant or 
approve permits for a maximum term of two years.
    (c) Permits granted for agricultural purposes will not usually 
exceed ten years. A term longer than ten years, but not to exceed 25 
years unless authorized by other federal law, may be authorized when a 
longer term is determined by us to be in the best interest of the Indian 
landowners and when such permit requires substantial investment in the 
development of the lands by the permittee.
    (d) A tribe may determine the duration of permits composed entirely 
of its tribal land or in combination with government land, subject to 
the same limitations provided in paragraph (d) of this section.
    (e) A permit will specify the beginning and ending dates of the term 
allowed, as well as any option to renew, extend, or terminate.
    (f) Permits granted by us for protection of the Indian land will be 
for no more than two years.



Sec.  166.209  Must a permit be recorded?

    A permit must be recorded in our Land Titles and Records Office 
which has jurisdiction over the land. We will

[[Page 597]]

record the permit immediately following our approval under this subpart.



Sec.  166.210  When is a decision by the BIA regarding a permit effective?

    Our decision to approve a permit will be effective immediately, 
notwithstanding any appeal which may be filed under Part 2 of this 
title. Copies of the approved permit will be provided to the permitee 
and made available to the Indian landowners upon request.



Sec.  166.211  When are permits effective?

    Unless otherwise provided in the permit, a permit will be effective 
on the date on which the permit is approved by us. A permit may be made 
effective on some past or future date, by agreement, but such a permit 
may not be granted or approved more than one year prior to the date on 
which the permit term is to commence.



Sec.  166.212  When may a permittee take possession of permitted Indian land?

    The permittee may take possession of permitted Indian land on the 
date specified in the permit as the beginning date of the term, but not 
before we approve the permit.



Sec.  166.213  Must I comply with any standards of conduct 
if I am granted a permit?

    Yes. Permittees are expected to:
    (a) Conduct grazing operations in accordance with the principles of 
sustained yield management, agricultural resource management planning, 
sound conservation practices, and other community goals as expressed in 
tribal laws, agricultural resource management plans, and similar 
sources.
    (b) Comply with all applicable laws, ordinances, rules, regulations, 
and other legal requirements. You must also pay all applicable penalties 
that may be assessed for non-compliance.
    (c) Fulfill all financial obligations of your permit owed to the 
Indian landowners and the United States.
    (d) Conduct only those activities authorized by the permit.



Sec.  166.214  Will the BIA notify the permittee of any change 
in land title status?

    Yes. We will notify the permittee if a fee patent is issued or if 
restrictions are removed. After we notify the permittee our obligation 
under Sec.  166.228 of this part ceases.

                           Obtaining A Permit



Sec.  166.215  How can I find Indian land available for grazing?

    You may contact a local BIA office or tribal office to determine 
what Indian land may be available for grazing permits.



Sec.  166.216  Who is responsible for permitting Indian land?

    The Indian landowner is primarily responsible for granting permits 
on their Indian land, with the assistance and approval of the BIA, 
except where otherwise provided by law. You may contact the local BIA or 
tribal office for assistance in obtaining a permit for grazing purposes 
on Indian land.



Sec.  166.217  In what manner may a permit on Indian land be granted?

    (a) A tribe may grant a permit on tribal land through tribal 
allocation, negotiation, or advertisement in accordance with Sec.  
166.203 of this part. We must approve all permits of tribal land in 
order for the permit to be valid, except where otherwise provided by 
law.
    (b) Individual Indian landowners may grant a permit on their Indian 
land through negotiation or advertisement in accordance with Sec.  
166.203 of this part. We must approve all permits of Individual Indian 
land in order for the permit to be valid.
    (c) We will grant permits through negotiation or advertisement for 
range units containing, in whole or part, individually-owned Indian land 
and range units that consist of, or in combination with individually-
owned Indian land, tribal or government land, under Sec.  166.205 of 
this part. We will consult with tribes prior to granting permits for 
range units that include tribal land.

[[Page 598]]



Sec.  166.218  How do I acquire a permit through tribal allocation?

    (a) A tribe may allocate grazing privileges on range units 
containing trust or restricted land which is entirely tribally-owned or 
which contains only tribal and government land under the control of the 
tribe.
    (b) A tribe may allocate grazing privileges to its members and to 
tribally-authorized entities without competitive bidding on tribal and 
tribally-controlled government land.
    (c) We will implement the tribe's allocation procedure by 
authorizing the grazing privileges on individually-owned Indian land and 
government land, subject to the rental rate provisions in Sec.  
166.400(b) and (c) of this part.
    (d) A tribe may prescribe the eligibility requirements for 
allocations 60 days before granting a new permit or before an existing 
permit expires.
    (e) 120 days before the expiration of existing permits, we will 
notify the tribe of the 60-day period during which the tribe may 
prescribe eligibility requirements.
    (f) We will prescribe the eligibility requirements after the 
expiration of the 60-day period in the event satisfactory action is not 
taken by the tribe.
    (g) Grazing rental rates for grazing privileges allocated from an 
existing permit, in whole or in part, must equal or exceed the rates 
paid by the preceding permittee(s). Tribal members will pay grazing 
rental rates established by the tribe on tribal lands.



Sec.  166.219  How do I acquire a permit through negotiation?

    (a) Permits may be negotiated and granted by the Indian landowners 
with the permittee of their choice. The BIA may negotiate and grant 
permits on behalf of Indian landowners pursuant to Sec.  166.205 of this 
part.
    (b) Upon the conclusion of negotiations with the Indian landowners 
or their representatives, and the satisfaction of any applicable 
conditions, you may submit an executed permit and any required 
supporting documents to us for appropriate action. Where a permit is in 
a form that has previously been accepted or approved by us, and all of 
the documents needed to support the findings required by this part have 
been received, we will decide whether to approve the permit within 30 
days of the date of our receipt of the permit and supporting documents. 
If we decide to approve or disapprove a permit, we will notify the 
parties immediately and advise them of their right to appeal the 
decision under part 2 of this title.
    (c) In negotiating a permit, the Indian landowners may choose to 
include their land in the permit in exchange for their receipt of a 
share of the revenues or profits generated by the permit. Under such an 
arrangement, the permit may be granted to a joint venture or other legal 
entity owned, in part, by the Indian landowners.
    (d) Receipt of permit payments based upon income received from the 
land will not, of itself, make the Indian landowner a partner, joint 
venturer, or associate of the permittees.
    (e) We will assist prospective permittees in contacting the Indian 
landowners or their representatives, for the purpose of negotiating a 
permit.



Sec.  166.220  What are the basic steps for acquiring a permit 
through negotiation?

    The basic steps for acquiring a permit by negotiation are as 
follows:
    (a) The BIA or the Indian landowner will:
    (1) Receive a request to permit from an Indian landowner or the 
potential permittee;
    (2) Prepare the permit documents; and
    (3) Grant the permit.
    (b) A potential permittee will complete the requirements for 
securing a permit, (e.g., bond, insurance, payment of administrative 
fee, etc.);
    (c) We will:
    (1) Review the permit for proper documentation and compliance with 
all applicable laws and regulations;
    (2) Approve the permit after our review;
    (3) Send the approved permit to the permittee and, upon request, to 
the Indian landowner; and
    (4) Record and maintain the approved permit.

[[Page 599]]



Sec.  166.221  How do I acquire an advertised permit 
through competitive bidding?

    (a) As part of the negotiation of a permit, Indian landowners may 
advertise their Indian land to identify potential permittees with whom 
to negotiate.
    (b) When the BIA grants and approves a permit on behalf of an 
individual Indian landowner using an advertisement for bids, we will:
    (1) Prepare and distribute an advertisement of lands available for 
permit that identifies the terms and conditions of the permit sale, 
including, for agricultural permits, any preference rights;
    (2) Solicit sealed bids and conduct the public permit sale;
    (3) Determine and accept the highest or best responsible bidder(s), 
which may require further competitive bidding after the bid opening; and
    (4) Prepare permits for successful bidders.
    (c) After completion of the steps in paragraph (b) of this section, 
the successful bidder must complete and submit the permit and satisfy 
all applicable requirements, (e.g., bond, insurance, payment of 
administrative fee, etc.).
    (d) After review of the permit documentation for proper completion 
and compliance with all applicable laws and regulations, within 30 days 
we will:
    (1) Grant and approve the permit on behalf of Indian landowners 
where we are authorized to do so by law;
    (2) Distribute the approved permit to the permittee(s) and, upon 
request, to the Indian landowner(s); and
    (3) Record and maintain the approved permit.



Sec.  166.222  Are there standard permit forms?

    Yes. Standard permit forms, including bid forms, permit forms, and 
permit modification forms are available at our agency offices.

                       Permit (Leasehold) Mortgage



Sec.  166.223  Can I use a permit as collateral for a loan?

    We may approve a permit containing a provision that authorizes the 
permittee to encumber the permit interest, known as a leasehold 
mortgage, for the development and improvement of the permitted Indian 
land. We must approve the leasehold mortgage that encumbers the permit 
interest before it can be effective. We will record the approved 
leasehold mortgage instrument.



Sec.  166.224  What factors does the BIA consider when reviewing 
a leasehold mortgage?

    (a) We will approve the leasehold mortgage if:
    (1) All consents required in the permit have been obtained from the 
Indian landowners and any surety or guarantor;
    (2) The mortgage covers only the permit interest, and no unrelated 
collateral belonging to the permittee;
    (3) The financing being obtained will be used only in connection 
with the development or use of the permitted premises, and the mortgage 
does not secure any unrelated obligations owed by the permittee to the 
mortgagee; and
    (4) We find no compelling reason to withhold our approval, in order 
to protect the best interests of the Indian landowner.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we will consider whether:
    (1) The ability to perform the permit obligations would be adversely 
affected by the cumulative mortgage obligations;
    (2) Any negotiated permit provisions as to the allocation or control 
of insurance or condemnation proceeds would be modified;
    (3) The remedies available to us or the Indian landowners would be 
limited (beyond the additional notice and cure rights to be afforded to 
the mortgagee), if the permittee defaults on the permit;
    (4) Any rights of the Indian landowners would be subordinated or 
adversely affected in the event of a foreclosure, assignment in lieu of 
foreclosure, or issuance of a ``new permit'' to the mortgagee.
    (c) We will notify the Indian landowners of our approval of the 
leasehold mortgage.

[[Page 600]]



Sec.  166.225  May a permittee voluntarily assign a leasehold interest 
under an approved encumbrance?

    With our approval, under an approved encumbrance, a permittee 
voluntarily may assign the leasehold interest to someone other than the 
holder of a leasehold mortgage if the assignee agrees in writing to be 
bound by the terms of the permit. A permit may provide the Indian 
landowners with a right of first refusal on the conveyance of the 
leasehold interest.



Sec.  166.226  May the holder of a leasehold mortgage assign 
the leasehold interest after a sale or foreclosure of an approved encumbrance?

    Yes. The holder of a leasehold mortgage may assign a leasehold 
interest obtained by a sale or foreclosure of an approved encumbrance 
without our approval if the assignee agrees in writing to be bound by 
the terms of the permit. A permit may provide the Indian landowners with 
a right of first refusal on the conveyance of the permit interest 
(leasehold).

                           Modifying a Permit



Sec.  166.227  How can Indian land be removed from an existing permit?

    (a) We will remove Indian land from the permit if:
    (1) The trust status of the Indian land terminates;
    (2) The Indian landowners request removal of their interest, with 
the written approval of the majority interest of the fractionated tract 
to be removed, and we determine that the removal is beneficial to such 
interests;
    (3) A tribe allocates grazing privileges for Indian land covered by 
your permit under Sec.  166.218 of this part;
    (4) The permittee requests removal of the Indian land, the owners of 
the majority interest of the Indian land provides written approval of 
the removal of the Indian land, and we determine that the removal is 
warranted; or
    (5) We determine that removal of the Indian land is appropriate, 
with the written approval of the owners of the majority interest of the 
Indian land.
    (b) We will revise the grazing capacity to reflect the removal of 
Indian land and show it on the permit.



Sec.  166.228  How will the BIA provide notice if Indian land is removed 
from an existing permit?

    If the reason for removal is:
    (a) Termination of trust status. We will notify the parties to the 
permit in writing within 30 days. The removal will be effective on the 
next anniversary date of the permit.
    (b) A request from Indian landowners or the permittee, or our 
determination. We will notify the parties to the permit in writing 
within 30 days of such request. The removal will be effective 
immediately if all sureties, Indian landowners, and permittee agree. 
Otherwise, the removal will be effective upon the next anniversary date 
of the permit. If our written notice is within 180 days of the 
anniversary date of the permit, the removal of Indian land will be 
effective 180 days after the written notice.
    (c) Tribal allocation under Sec.  166.218 of this part. We will 
notify the parties to the permit in writing within 180 days of such 
action. The removal of tribal land will be effective on the next 
anniversary date of the permit. If our written notice is within 180 days 
of the anniversary date of the permit, the removal of Indian land will 
be effective 180 days after the written notice.



Sec.  166.229  Other than to remove land, how can a permit be amended, 
assigned, subpermitted, or mortgaged?

    (a) We must approve an amendment, assignment, subpermit, or mortgage 
with the written consent of the parties to the permit in the same manner 
that the permit was approved, and the consent of the sureties.
    (b) Indian landowners may designate in writing one or more of their 
co-owners or representatives to negotiate and/or agree to amendments on 
their behalf.
    (1) The designated landowner or representative may:
    (i) Negotiate or agree to amendments; and
    (ii) Consent to or approve other items as necessary.
    (2) The designated landowner or representative may not:

[[Page 601]]

    (i) Negotiate or agree to amendments that reduce the grazing rental 
payments payable to the other Indian landowners; or
    (ii) Terminate the permit or modify the term of the permit.
    (c) We may approve a permit for tribal land to individual members of 
a tribe which contains a provision permitting the assignment of the 
permit by the permittee or the lender without our approval when a 
lending institution or an agency of the United States:
    (1) Accepts the interest in the permit (leasehold) as security for 
the loan; and
    (2) Obtains the interest in the permit (leasehold) through 
foreclosure or otherwise.
    (d) We will revise the grazing capacity and modify the permit.



Sec.  166.230  When will a BIA decision to approve an amendment, assignment, 
subpermit, or mortgage under a permit be effective?

    Our decision to approve an amendment, assignment, subpermit, or 
mortgage under a permit will be effective immediately, notwithstanding 
any appeal which may be filed under Part 2 of this title. Copies of 
approved documents will be provided to the party requesting approval, 
and made available to the Indian landowners upon request.



Sec.  166.231  Must an amendment, assignment, subpermit, or mortgage approved 
under a permit be recorded?

    An amendment, assignment, subpermit, or mortgage approved under a 
permit must be recorded in our Land Titles and Records Office which has 
jurisdiction over the Indian land. We will record the document 
immediately following our approval.



                Subpart D_Land and Operations Management



Sec.  166.300  How is Indian agricultural land managed?

    Tribes, individual Indian landowners, and the BIA will manage Indian 
agricultural land either directly or through contracts, compacts, 
cooperative agreements, or grants under the Indian Self-Determination 
and Education Assistance Act (Public Law 93-638, as amended).



Sec.  166.301  How is Indian land for grazing purposes described?

    Indian land for grazing purposes should be described by legal 
description (e.g., aliquot parts, metes and bounds) or other acceptable 
description. Where there are undivided interests owned in fee status, 
the aggregate portion of trust and restricted interests should be 
identified in the description of the permitted land.



Sec.  166.302  How is a range unit created?

    We create a range unit after we consult with the Indian landowners 
of rangeland, by designating units of compatible size, availability, and 
location.



Sec.  166.303  Can more than one parcel of Indian land be combined 
into one permit?

    Yes. A permit may include more than one parcel of Indian land. 
Permits may include tribal land, individually-owned Indian land, or 
government land, or any combination thereof.



Sec.  166.304  Can there be more than one permit for each range unit?

    Yes. There can be more than one permit for each range unit.



Sec.  166.305  When is grazing capacity determined?

    Before we grant, modify, or approve a permit, in consultation with 
the Indian landowners, we will establish the total grazing capacity for 
each range unit based on the summation of each parcel's productivity. We 
will also establish the season(s) of use on Indian lands.



Sec.  166.306  Can the BIA adjust the grazing capacity?

    Yes. In consultation with the Indian landowners or in the BIA's 
discretion based on good cause, we may adjust the grazing capacity using 
the best evaluation method(s) relevant to the ecological region.



Sec.  166.307  Will the grazing capacity be increased if I graze 
adjacent trust or non-trust rangelands not covered by the permit?

    No. You will not receive an increase in grazing capacity in the 
permit if you graze trust or non-trust rangeland in

[[Page 602]]

common with the permitted land. Grazing capacity will be established 
only for Indian land covered by your permit.



Sec.  166.308  Can the number of animals and/or season of use be modified 
on the permitted land if I graze adjacent trust or non-trust rangelands 
under an on-and-off grazing permit?

    Yes. The number of animals and/or season of use may be modified on 
permitted Indian land with an on-and-off grazing permit only when a 
conservation plan includes the use of adjacent trust or non-trust 
rangelands not covered by the permit and when that land is used in 
common with permitted land.



Sec.  166.309  Who determines livestock class and livestock ownership 
requirements on permitted Indian land?

    (a) Tribes determine the class of livestock and livestock ownership 
requirements for livestock that may be grazed on range units composed 
entirely of tribal land or which include government land, subject to the 
grazing capacity prescribed by us under Sec.  166.305 of this part.
    (b) For permits on range units containing, in whole or part, 
individually-owned Indian land, we will adopt the tribal determination 
in paragraph (a) of this section.



Sec.  166.310  What must a permittee do to protect livestock 
from exposure to disease?

    In accordance with applicable law, permittees must:
    (a) Vaccinate livestock;
    (b) Treat all livestock exposed to or infected with contagious or 
infectious diseases; and
    (c) Restrict the movement of exposed or infected livestock.

              Management Plans and Environmental Compliance



Sec.  166.311  Is an Indian agricultural resource management plan required?

    (a) Indian agricultural land under the jurisdiction of a tribe must 
be managed in accordance with the goals and objectives in any 
agricultural resource management plan developed by the tribe, or by us 
in close consultation with the tribe, under the AIARMA.
    (b) The ten-year agricultural resource management and monitoring 
plan must be developed through public meetings and completed within 
three years of the initiation of the planning activity. Such a plan must 
be developed through public meetings, and be based on the public meeting 
records and existing survey documents, reports, and other research from 
federal agencies, tribal community colleges, and land grant 
universities. When completed, the plan must:
    (1) Determine available agricultural resources;
    (2) Identify specific tribal agricultural resource goals and 
objectives;
    (3) Establish management objectives for the resources;
    (4) Define critical values of the tribe and its members and provide 
identified holistic management objectives; and
    (5) Identify actions to be taken to reach established objectives.
    (c) Where the regulations in this subpart are inconsistent with a 
tribe's agricultural resource management plan, we may waive the 
regulations under part 1 of this title, so long as the waiver does not 
violate a federal statute or judicial decision or conflict with our 
general trust responsibility under federal law.



Sec.  166.312  Is a conservation plan required?

    A conservation plan must be developed for each permit with the 
permittee and approved by us prior to the issuance of the permit. The 
conservation plan must be consistent with the tribe's agricultural 
resource management plan and must address the permittee's management 
objectives regarding animal husbandry and resource conservation. The 
conservation plan must cover the entire permit period and reviewed by us 
on an annual basis.



Sec.  166.313  Is environmental compliance required?

    Actions taken by the BIA under the regulations in this part must 
comply with the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.), applicable regulations of the Council on Environmental 
Quality (40 CFR part

[[Page 603]]

1500), and applicable tribal laws and regulations.

                 Conservation Practices and Improvements



Sec.  166.314  Can a permittee apply a conservation practice 
on permitted Indian land?

    Yes. A permittee can apply a conservation practice on permitted 
Indian land as long as the permittee has approval from the BIA and 
majority interest and the conservation practice is consistent with the 
conservation plan.



Sec.  166.315  Who is responsible for the completion and maintenance 
of a conservation practice if the permit expires or is canceled 
before the completion of the conservation practice?

    Prior to undertaking a conservation practice, the BIA, landowner, 
and permittee will negotiate who will complete and maintain a 
conservation practice if the permit expires or is canceled before the 
conservation practice is completed. That conservation practice agreement 
will be reflected in the conservation plan and permit.



Sec.  166.316  Can a permittee construct improvements on permitted Indian land?

    Improvements may be constructed on permitted Indian land if the 
permit contains a provision allowing improvements.



Sec.  166.317  What happens to improvements constructed on Indian lands 
when the permit has been terminated?

    (a) If improvements are to be constructed on Indian land, the permit 
must contain a provision that improvements will either:
    (1) Remain on the land upon termination of the permit, in a 
condition that is in compliance with applicable codes, to become the 
property of the Indian landowner; or
    (2) Be removed and the land restored within a time period specified 
in the permit. The land must be restored as close as possible to the 
original condition prior to construction of such improvements. At the 
request of the permittee we may, at our discretion, grant an extension 
of time for the removal of improvements and restoration of the land for 
circumstances beyond the control of the permittee.
    (b) If the permittee fails to remove improvements within the time 
allowed in the permit, the permittee may forfeit the right to remove the 
improvements and the improvements may become the property of the Indian 
landowner or at the request of the Indian landowner, we will apply the 
bond for the removal of the improvement and restoration of the land.



 Subpart E_Grazing Rental Rates, Payments, and Late Payment Collections

                Rental Rate Determination and Adjustment



Sec.  166.400  Who establishes grazing rental rates?

    (a) For tribal lands, a tribe may establish a grazing rental rate 
that is less or more than the grazing rental rate established by us. We 
will assist a tribe to establish a grazing rental rate by providing the 
tribe with available information concerning the value of grazing on 
tribal lands.
    (b) We will establish the grazing rental rate by determining the 
fair annual rental for:
    (1) Individually-owned Indian lands; and
    (2) Tribes that have not established a rate under paragraph (a) of 
this section.
    (c) Indian landowners may give us written authority to grant grazing 
privileges on their individually-owned Indian land at a grazing rental 
rate that is:
    (1) Above the grazing rental rate set by us; or
    (2) Below the grazing rental rate set by us, subject to our 
approval, when the permittee is a member of the Indian landowner's 
immediate family as defined in this part.



Sec.  166.401  How does the BIA establish grazing rental rates?

    An appraisal can be used to determine the rental value of real 
property. The development and reporting of the

[[Page 604]]

valuation will be completed in accordance with the Uniform Standards of 
Professional Appraisal Practices (USPAP). If an appraisal is not 
desired, competitive bids, negotiations, advertisements, or any other 
method can be used in conjunction with a market study, rent survey, or 
feasibility analysis developed in accordance with the USPAP.



Sec.  166.402  Why must the BIA determine the fair annual rental 
of Indian land?

    The BIA must determine the fair annual rental of Indian land to:
    (a) Assist the Indian landowner in negotiating a permit with 
potential permittees; and
    (b) Enable us to determine whether a permit is in the best interests 
of the Indian landowner.



Sec.  166.403  Will the BIA ever grant or approve a permit at less than 
fair annual rental?

    (a) We will grant a permit for grazing on individually-owned Indian 
land at less than fair annual rental if, after competitive bidding of 
the permit, we determine that such action would be in the best interests 
of the individual Indian landowners.
    (b) We may approve a permit for grazing on individually-owned Indian 
land at less than fair annual rental if:
    (1) The permit is for the Indian landowner's immediate family or co-
owner; or
    (2) We determine it is in the best interest of the Indian 
landowners.
    (c) We may approve a permit for grazing on tribal land at less than 
fair annual rental if the tribe sets the rate.



Sec.  166.404  Whose grazing rental rate will be applicable 
for a permit on tribal land?

    The following grazing rental rate schedule will apply for tribal 
land:

------------------------------------------------------------------------
                                                       Then you will pay
        If you are * * *             And if * * *            * * *
------------------------------------------------------------------------
(a) Grazing livestock on tribal   The tribe           The rate set by
 land.                             established the     the tribe.
                                   grazing rental
                                   rate.
(b) Grazing livestock on tribal   No tribal grazing   The rate set by
 land.                             rental rate has     the BIA.
                                   been established.
(c) The successful bidder for                         Your rental rate
 use of any of these specific                          bid, but not less
 parcels of Indian land.                               than the minimum
                                                       bid rate
                                                       advertised.
------------------------------------------------------------------------



Sec.  166.405  Whose grazing rental rate will be applicable for a permit 
on individually-owned Indian land?

    The following grazing rental rate schedule will apply for 
individually-owned Indian land:

------------------------------------------------------------------------
       If you are * * *                 Then you will pay * * *
------------------------------------------------------------------------
(a) Grazing livestock on       The rate set by the BIA or by the
 Individually-owned Indian      individual Indian landowner and approved
 land.                          by us.
(b) The successful bidder for  Your rental rate bid, but not less than
 use of any of these specific   the minimum bid rate advertised, unless
 parcels of Indian land.        the permit is granted at less than fair
                                annual rental under Sec.   166.403.
(c) The recipient of an        The bid rate or the appraised rate,
 allocation from a bid unit.    whichever is higher.
------------------------------------------------------------------------



Sec.  166.406  Whose grazing rental rate will be applicable for a permit 
on government land?

    The following grazing rental rate schedule will apply for government 
land:

------------------------------------------------------------------------
                                                       Then you will pay
        If you are * * *             And if * * *            * * *
------------------------------------------------------------------------
(a) Grazing livestock on          The tribe has       The rate set by
 government land.                  control over the    the tribe.
                                   land or the tribe
                                   has authority to
                                   set the rate.
(b) Grazing livestock on          Government          The rate set by
 government land.                  controls all use    the BIA.
                                   of the land.
------------------------------------------------------------------------


[[Page 605]]



Sec.  166.407  If a range unit consists of tribal and individually-owned 
Indian lands, what is the grazing rental rate?

    The grazing rental rate for tribal land will be the rate set by the 
tribe. The grazing rental rate for individually-owned Indian land will 
be the grazing rental rate set by us.



Sec.  166.408  Is the grazing rental rate established by the BIA 
adjusted periodically?

    Yes. To ensure that Indian landowners are receiving the fair annual 
return, we may adjust the grazing rental rate established by the BIA, 
based upon an appropriate valuation method, taking into account the 
value of improvements made under the permit, unless the permit provides 
otherwise, following the Uniform Standards of Professional Appraisal 
Practice.
    (a) We will:
    (1) Review the grazing rental rate prior to each anniversary date or 
when specified by the permit.
    (2) Provide you with written notice of any adjustment of the grazing 
rental rate 60 days prior to each anniversary date.
    (3) Allow the adjusted grazing rental rate to be less than the fair 
annual rental if we determine that such a rate is in the best interest 
of the Indian landowner.
    (b) If adjusted, the grazing rental rate will become effective on 
the next anniversary date of the permit.
    (c) These adjustments will be retroactive, if they are not made at 
the time specified in the permit.
    (d) For permits granted by tribes, we will consult with the granting 
tribe to determine whether an adjustment of the grazing rental payment 
should be made. The permit must be modified to document the granting 
tribe's waiver of the adjustment. A tribe may grant a permit without 
providing for a rental adjustment, if the tribe establishes such a 
policy under Sec.  166.100(a)(4) of this part and negotiates such a 
permit.

                             Rental Payments



Sec.  166.409  How is my grazing rental payment determined?

    The grazing rental payment is the total of the grazing rental rate 
multiplied by the number of AUMs or acres covered by the permit.



Sec.  166.410  When are grazing rental payments due?

    The initial grazing rental payment is due and payable as specified 
in the permit or 15 days after the BIA approves the permit, whichever is 
later. Subsequent payments are due as specified in the permit.



Sec.  166.411  Will a permittee be notified when a grazing rental 
payment is due?

    Each permit states the schedule of rental payments agreed to by the 
parties. We will issue an invoice to the permittee 30 to 60 days prior 
to the rental payment due date.



Sec.  166.412  What if the permittee does not receive an invoice 
that a grazing rental payment is due?

    If we fail to send an invoice or if we send an invoice and the 
permittee does not receive it, the permittee is still responsible for 
making timely payment of all amounts due under the permit.



Sec.  166.413  To whom are grazing rental payments made?

    (a) A permit must specify whether grazing rental payments will be 
made directly to the Indian landowners or to us on behalf of the Indian 
landowners. If the permit provides for payment to be made directly to 
the Indian landowners, the permit must also require that the permittee 
retain specific documentation evidencing proof of payment, such as 
canceled checks, cash receipt vouchers, or copies of money orders or 
cashier's checks, consistent with the provisions of Sec. Sec.  166.1000 
and 166.1001 of this part.
    (b) Grazing rental payments made directly to the Indian landowners 
must be made to the parties specified in the permit, unless the 
permittee receives a notice of a change of ownership. Unless otherwise 
provided in the permit, grazing rental payments may not be made

[[Page 606]]

payable directly to anyone other than the Indian landowners.
    (c) A permit which provides for grazing rental payments to be made 
directly to the Indian landowners must also provide for such payments to 
be suspended and rent thereafter paid to us, rather than directly than 
to the Indian landowners, if:
    (1) An Indian landowner dies;
    (2) An Indian landowner requests that payment be made to us;
    (3) An Indian landowner is found by us to be in need of assistance 
in managing his/her financial affairs; or
    (4) We determine, in our discretion and after consultation with the 
Indian landowner(s), that direct payment should be discontinued.



Sec.  166.414  What forms of grazing rental payments are acceptable?

    (a) When grazing rental payments are made directly to the Indian 
landowners, the form of payment must be acceptable to the Indian 
landowners.
    (b) Payments made to us may be delivered in person or by mail. We 
will not accept cash, foreign currency, or third-party checks. We will 
accept:
    (1) Personal or business checks drawn on the account of the 
permittee;
    (2) Money orders;
    (3) Cashier's checks;
    (4) Certified checks; or
    (5) Electronic funds transfer payments.



Sec.  166.415  What will the BIA do if the permittee fails to make 
a direct payment to an Indian landowner?

    Within five business days of the Indian landowner's notification to 
us that a payment has not been received, we will contact the permittee 
either in writing or by telephone requesting that the permittee provide 
documentation (e.g., canceled check, cash receipt voucher, copy of a 
money order or cashier's check) showing that payment has been made to 
the Indian landowner. If the permitee fails to provide such 
documentation, we will follow the procedures identified in Sec.  166.419 
of this part to collect the money on behalf of the Indian landowner or 
to cancel the permit.



Sec.  166.416  May a permittee make a grazing rental payment 
in advance of the due date?

    Rent may be paid no more than 30 days in advance, unless otherwise 
specified in the permit.



Sec.  166.417  May an individual Indian landowner modify the terms 
of the permit on a fractionated tract for advance grazing rental payment?

    No. An individual Indian landowner of a fractionated tract may not 
modify a permit to allow a grazing rental payment in advance of the due 
date specified in the initial approved permit.



Sec.  166.418  When is a grazing rental payment late?

    A grazing rental payment is late if it is not received on or before 
the due date.

                     Late Rental Payment Collections



Sec.  166.419  What will the BIA do if grazing rental payments are not made 
in the time and manner required by the permit?

    (a) A permitee's failure to pay grazing rental payments in the time 
and manner required by a permit will be a violation of the permit, and a 
notice of violation will be issued under Sec.  166.703 of this part. If 
the permit requires that grazing rental payments be made to us, we will 
send the permittee and its sureties a notice of violation within five 
business days of the date on which the grazing rental payment was due. 
If the permit provides for payment directly to the Indian landowner(s), 
we will send the permittee and its sureties a notice of violation within 
five business days of the date on which we receive actual notice of non-
payment from the Indian landowner(s).
    (b) If a permittee fails to provide adequate proof of payment or 
cure the violation within the requisite time period described in Sec.  
166.704 of this part, and the amount due is not in dispute, we may 
immediately take action to recover the amount of the unpaid rent and any 
associated interest charges or late payment penalties. We may also 
cancel the permit under Sec.  166.705 of this part, or invoke any other 
remedies available under the permit or applicable law, including 
collection on any

[[Page 607]]

available bond or referral of the debt to the Department of the Treasury 
for collection. An action to recover any unpaid amounts will not be 
conditioned on the prior cancellation of the permit or any further 
notice to the permittee, nor will such an action be precluded by a prior 
cancellation.
    (c) Partial payments may be accepted, under special circumstances, 
by the Indian landowners or us, but acceptance will not operate as a 
waiver with respect to any amounts remaining unpaid or any other 
existing permit violations. Unless otherwise provided in the permit, 
overpayments may be credited as an advance against future grazing rental 
payments.
    (d) If a personal or business check is dishonored, and a grazing 
rental payment is therefore not made by the due date, the failure to 
make the payment in a timely manner will be a violation of the permit, 
and a written notice of violation will be issued under Sec.  166.703 of 
this part. Any payment made to cure such a default, and any future 
payments by the same permittee, must be made by one of the alternative 
payment methods listed in Sec.  166.414(b) of this part.



Sec.  166.420  Will any special fees be assessed on delinquent 
grazing rental payments due under a permit?

    The following special fees will be assessed if a grazing rental 
payment is not paid in the time and manner required, in addition to any 
interest or late payment penalties which must be paid to the Indian 
landowners under a permit. The following special fees will be assessed 
to cover administrative costs incurred by the United States in the 
collection of the debt:

------------------------------------------------------------------------
    The permittee will pay * * *                   For * * *
------------------------------------------------------------------------
(a) $50.00..........................  Administrative fee for checks
                                       returned by the bank for
                                       insufficient funds.
(b) $15.00..........................  Administrative fee for the BIA
                                       processing of each demand letter.
(c) 18% of balance due..............  Administrative fee charged by the
                                       Department of Treasury for
                                       collection.
------------------------------------------------------------------------



Sec.  166.421  If a permit is canceled for non-payment, 
does that extinguish the permittee's debt?

    No. The permittee remains liable for any delinquent payment. No 
future permits will be issued until all outstanding debts related to 
Indian agricultural lands are paid.

                    Compensation to Indian Landowners



Sec.  166.422  What does the BIA do with grazing rental payments received 
from permittees?

    Unless arrangements for direct payment to the Indian landowners has 
been provided, the rent will be deposited to the appropriate account 
maintained by the Office of Trust Funds Management in accordance with 
part 115 of this title.



Sec.  166.423  How do Indian landowners receive grazing rental payments 
that the BIA has received from permittees?

    Funds will be paid to the Indian landowners by the Office of Trust 
Funds Management in accordance with 25 CFR part 115.



Sec.  166.424  How will the BIA determine the grazing rental payment amount 
to be distributed to each Indian landowner?

    Unless otherwise specified in the permit, the grazing rental payment 
will be distributed to each Indian landowner according to the forage 
production that each parcel of Indian land contributes to the permit, 
annual rental rate of each parcel, and the Indian landowner's interest 
in each parcel.



                Subpart F_Administrative and Tribal Fees



Sec.  166.500  Are there administrative fees for a permit?

    Yes. We will charge an administrative fee before approving any 
permit, subpermit, assignment, encumbrance, modification, or other 
related document.



Sec.  166.501  How are annual administrative fees determined?

    (a) Except as provided in subsection (b), we will charge a three 
percent (%) administrative fee based on the annual grazing rent.
    (b) The minimum administrative fee is $10.00 and the maximum 
administrative fee is $500.00.

[[Page 608]]

    (c) If a tribe performs all or part of the administrative duties for 
this part, the tribe may establish, collect, and use reasonable fees to 
cover its costs associated with the performance of administrative 
duties.



Sec.  166.502  Are administrative fees refundable?

    No. We will not refund administrative fees.



Sec.  166.503  May the BIA waive administrative fees?

    Yes. We may waive the administrative fee for a justifiable reason.



Sec.  166.504  Are there any other administrative or tribal fees, taxes, 
or assessments that must be paid?

    Yes. The permittee may be required to pay additional fees, taxes, 
and/or assessments associated with the use of the land as determined by 
us or by the tribe. Failure to make such payments will constitute a 
permit violation under subpart H of this part.



              Subpart G_Bonding and Insurance Requirements



Sec.  166.600  Must a permittee provide a bond for a permit?

    Yes. A permittee, assignee or subpermittee must provide a bond for 
each permit interest acquired. Upon request by an Indian landowner, we 
may waive the bond requirement.



Sec.  166.601  How is the amount of the bond determined?

    (a) The amount of the bond for each permit is based on the:
    (1) Value of one year's grazing rental payment;
    (2) Value of any improvements to be constructed;
    (3) Cost of performance of any additional obligations; and
    (4) Cost of performance of restoration and reclamation.
    (b) Tribal policy made applicable by Sec.  166.100 of this part may 
establish or waive specific bond requirements for permits.



Sec.  166.602  What form of bonds will the BIA accept?

    (a) We will only accept bonds in the following forms:
    (1) Cash;
    (2) Negotiable Treasury securities that:
    (i) Have a market value equal to the bond amount; and
    (ii) Are accompanied by a statement granting full authority to the 
BIA to sell such securities in case of a violation of the terms of the 
permit.
    (3) Certificates of deposit that indicate on their face that 
Secretarial approval is required prior to redemption by any party;
    (4) Irrevocable letters of credit (LOC) issued by federally-insured 
financial institutions authorized to do business in the United States. 
LOC's must:
    (i) Contain a clause that grants the BIA authority to demand 
immediate payment if the permittee defaults or fails to replace the LOC 
within 30 calendar days prior to its expiration date;
    (ii) Be payable to the ``Department of the Interior, BIA'';
    (iii) Be irrevocable during its term and have an initial expiration 
date of not less than one year following the date we receive it; and
    (iv) Be automatically renewable for a period of not less than one 
year, unless the issuing financial institution provides the BIA with 
written notice at least 90 calendar days before the letter of credit's 
expiration date that it will not be renewed;
    (5) Surety bond; or
    (6) Any other form of highly liquid, non-volatile security 
subsequently approved by us that is easily convertible to cash by us and 
for which our approval is required prior to redemption by any party.
    (b) Indian landowners may negotiate a permit term that specifies the 
use of any of the bond forms described in paragraph (a) of this section.
    (c) A tribe may accept and hold any form of bond described in 
paragraph (a) of this section, to secure performance under a permit of 
tribal land.

[[Page 609]]



Sec.  166.603  If cash is submitted as a bond, how is it administered?

    If cash is submitted as a bond, we will establish an account in the 
name of the permittee and retain it.



Sec.  166.604  Is interest paid on a cash performance bond?

    No. Interest will not be paid on a cash performance bond.



Sec.  166.605  Are cash performance bonds refunded?

    If the cash performance bond has not been forfeited for cause, the 
amount deposited will be refunded to the depositor at the end of the 
permit period.



Sec.  166.606  What happens to a bond if a violation occurs?

    We may apply the bond to remedy the violation, in which case we will 
require the permittee to submit a replacement bond of an appropriate 
amount.



Sec.  166.607  Is insurance required for a permit?

    When we determine it to be in the best interest of the Indian 
landowners, we will require a permittee to provide insurance. If 
insurance is required, it must:
    (a) Be provided in an amount sufficient to:
    (1) Protect any improvements on the permit premises;
    (2) Cover losses such as personal injury or death; and
    (3) Protect the interest of the Indian landowner.
    (b) Identify the tribe, individual Indian landowners, and United 
States as insured parties.



Sec.  166.608  What types of insurance may be required?

    We may require liability or casualty insurance (such as for fire, 
hazard, or flood), depending upon the activity conducted under the 
permit.



                       Subpart H_Permit Violations



Sec.  166.700  What permit violations are addressed by this subpart?

    This subpart addresses violations of permit provisions other than 
trespass. Trespass is addressed under subpart I of this part.



Sec.  166.701  How will the BIA determine whether the activities 
of a permittee under a permit are in compliance with the terms of the permit?

    Unless the permit provides otherwise, we may enter the range unit at 
any reasonable time, without prior notice, to protect the interests of 
the Indian landowners and ensure that the permittee is in compliance 
with the operating requirements of the permit.



Sec.  166.702  Can a permit provide for negotiated remedies 
in the event of a permit violation?

    (a) A permit of tribal land may provide the tribe with certain 
negotiated remedies in the event of a permit violation, including the 
power to terminate the permit. A permit of individually-owned Indian 
land may provide the individual Indian landowners with similar remedies, 
so long as the permit also specifies the manner in which those remedies 
may be exercised by or on behalf of the Indian landowners. Any notice of 
violation must be provided by written notice.
    (b) The negotiated remedies described in paragraph (a) of this 
section will apply in addition to the cancellation remedy available to 
us under Sec.  166.705(c) of this subpart. If the permit specifically 
authorizes us to exercise any negotiated remedies on behalf of the 
Indian landowners, the exercise of such remedies may substitute for 
cancellation.
    (c) A permit may provide for permit disputes to be resolved in 
tribal court or any other court of competent jurisdiction, or through 
arbitration or some other alternative dispute resolution method. We may 
not be bound by decisions made in such forums, but we will defer to any 
ongoing proceedings, as appropriate, in deciding whether to exercise any 
of the remedies available to us under Sec.  166.705 of this subpart.



Sec.  166.703  What happens if a permit violation occurs?

    (a) If an Indian landowner notifies us that a specific permit 
violation has occurred, we will initiate an appropriate

[[Page 610]]

investigation within five business days of that notification.
    (b) If we determine that a permit violation has occurred based on 
facts known to us, we will provide written notice to the permittee and 
the sureties of the violation within five business days.



Sec.  166.704  What will a written notice of a permit violation contain?

    The written notice of a permit violation will provide the permittee 
with ten days from the receipt of the written notice to:
    (a) Cure the permit violation and notify us that the violation is 
cured.
    (b) Explain why we should not cancel the permit; or
    (c) Request in writing additional time to complete corrective 
actions. If additional time is granted, we may require that certain 
corrective actions be taken immediately.



Sec.  166.705  What will the BIA do if a permit violation is not cured 
within the required time period?

    (a) If the permittee does not cure a violation within the required 
time period, we will consult with the Indian landowners, as appropriate, 
and determine whether:
    (1) The permit should be canceled by us under paragraph (c) of this 
section and Sec. Sec.  166.706 through 166.707 of this subpart;
    (2) We should invoke any other remedies available to us under the 
permit, including collecting on any available bond;
    (3) The Indian landowners wish to invoke any remedies available to 
them under the permit; or
    (4) The permittee should be granted additional time in which to cure 
the violation.
    (b) If we decide to grant a permittee additional time in which to 
cure a violation, the permittee must proceed diligently to complete the 
necessary corrective actions within a reasonable or specified time 
period from the date on which the extension is granted.
    (c) If we decide to cancel the permit, we will send the permittee 
and its sureties a written notice of cancellation within five business 
days of that decision. We will also provide actual or constructive 
notice of a cancellation decision to the Indian landowners, as 
appropriate. The written notice of cancellation will:
    (1) Explain the grounds for cancellation;
    (2) Notify the permittee of the amount of any unpaid rent, interest 
charges, or late payment penalties due under the permit;
    (3) Notify the permittee of its right to appeal under Part 2 of this 
chapter, as modified by Sec.  166.706 of this subpart, including the 
amount of any appeal bond that must be posted with an appeal of the 
cancellation decision; and
    (4) Order the permittee to vacate the property within 30 days of the 
date of receipt of the written notice of cancellation, if an appeal is 
not filed by that time.



Sec.  166.706  Will the BIA's regulations concerning appeal bonds 
apply to cancellation decisions involving permits?

    (a) The appeal bond provisions in Sec.  2.5 of part 2 of this 
chapter will not apply to appeals from permit cancellation decisions 
made under Sec.  166.705 of this subpart. Instead, when we decide to 
cancel a permit, we may require the permittee to post an appeal bond 
with an appeal of the cancellation decision. The requirement to post an 
appeal bond will apply in addition to all of the other requirements in 
part 2 of this chapter.
    (b) An appeal bond should be set in an amount necessary to protect 
the Indian landowners against financial losses that will likely result 
from the delay caused by an appeal. Appeal bond requirements will not be 
separately appealable, but may be contested during the appeal of the 
permit cancellation decision.



Sec.  166.707  When will a cancellation of a permit be effective?

    A cancellation decision involving a permit will not be effective for 
30 days after the permittee receives a written notice of cancellation 
from us. The cancellation decision will remain ineffective if the 
permittee files an appeal under Sec.  166.706 of this subpart and part 2 
of this chapter, unless the decision is made immediately effective under 
part

[[Page 611]]

2. While a cancellation decision is ineffective, the permittee must 
continue to pay rent and comply with the other terms of the permit. If 
an appeal is not filed in accordance with Sec.  166.706 of this subpart 
and part 2 of this chapter, the cancellation decision will be effective 
on the 31st day after the permittee receives the written notice of 
cancellation from us.



Sec.  166.708  Can the BIA take emergency action if the rangeland 
is threatened with immediate, significant, and irreparable harm?

    Yes. If a permittee or any other party causes or threatens to cause 
immediate, significant and irreparable harm to the Indian land during 
the term of a permit, we will take appropriate emergency action. 
Emergency action may include trespass proceedings under subpart I of 
this part, or judicial action seeking immediate cessation of the 
activity resulting in or threatening the harm. Reasonable efforts will 
be made to notify the Indian landowners, either before or after the 
emergency action is taken.



Sec.  166.709  What will the BIA do if a permittee holds over 
after the expiration or cancellation of a permit?

    If a permittee remains in possession of Indian land after the 
expiration or cancellation of a permit, we will treat the unauthorized 
use as a trespass. Unless we have reason to believe that the permittee 
is engaged in negotiations with the Indian landowners to obtain a new 
permit, we will take action to recover possession of the Indian land on 
behalf of the Indian landowners, and pursue any additional remedies 
available under applicable law, including the assessment of civil 
penalties and costs under subpart I of this part.



                           Subpart I_Trespass



Sec.  166.800  What is trespass?

    Under this part, trespass is any unauthorized occupancy, use of, or 
action on Indian agricultural lands. These provisions also apply to 
Indian agricultural land managed under an agricultural lease or permit 
under part 162 of this title.



Sec.  166.801  What is the BIA's trespass policy?

    We will:
    (a) Investigate accidental, willful, and/or incidental trespass on 
Indian agricultural land;
    (b) Respond to alleged trespass in a prompt, efficient manner;
    (c) Assess trespass penalties for the value of products used or 
removed, cost of damage to the Indian agricultural land, and enforcement 
costs incurred as a consequence of the trespass.
    (d) Ensure that damage to Indian agricultural lands resulting from 
trespass is rehabilitated and stabilized at the expense of the 
trespasser.



Sec.  166.802  Who can enforce this subpart?

    (a) The BIA enforces the provisions of this subpart. If the tribe 
adopts the provisions of this subpart, the tribe will have concurrent 
jurisdiction to enforce this subpart. Additionally, if the tribe so 
requests, we will defer to tribal prosecution of trespass on Indian 
agricultural lands.
    (b) Nothing in this subpart shall be construed to diminish the 
sovereign authority of Indian tribes with respect to trespass.

                              Notification



Sec.  166.803  How are trespassers notified of a trespass determination?

    (a) Unless otherwise provided under tribal law, when we have reason 
to believe that a trespass on Indian agricultural land has occurred, 
within five business days, we or the authorized tribal representative 
will provide written notice to the alleged trespasser, the possessor of 
trespass property, any known lien holder, and beneficial Indian 
landowner, as appropriate. The written notice will include the 
following:
    (1) The basis for the trespass determination;
    (2) A legal description of where the trespass occurred;
    (3) A verification of ownership of unauthorized property (e.g., 
brands in the State Brand Book for cases of livestock trespass, if 
applicable);
    (4) Corrective actions that must be taken;

[[Page 612]]

    (5) Time frames for taking the corrective actions;
    (6) Potential consequences and penalties for failure to take 
corrective action; and
    (7) A statement that unauthorized livestock or other property may 
not be removed or disposed of unless authorized by us.
    (b) If we determine that the alleged trespasser or possessor of 
trespass property is unknown or refuses delivery of the written notice, 
a public trespass notice will be posted at the tribal community 
building, U.S. Post Office, and published in the local newspaper nearest 
to the Indian agricultural lands where the trespass is occurring.
    (c) Trespass notices under this subpart are not subject to appeal 
under 25 CFR part 2.



Sec.  166.804  What can I do if I receive a trespass notice?

    If you receive a trespass notice, you will within the time frame 
specified in the notice:
    (a) Comply with the ordered corrective actions; or
    (b) Contact us in writing to explain why the trespass notice is in 
error. You may contact us by telephone but any explanation of trespass 
you wish to provide must be in writing. If we determine that we issued 
the trespass notice in error, we will withdraw the notice.



Sec.  166.805  How long will a written trespass notice remain in effect?

    A written trespass notice will remain in effect for the same conduct 
identified in that written notice for a period of one year from the date 
of receipt of the written notice by the trespasser.

                                 Actions



Sec.  166.806  What actions does the BIA take against trespassers?

    If the trespasser fails to take the corrective action specified by 
us, we may take one or more of the following actions, as appropriate:
    (a) Seize, impound, sell or dispose of unauthorized livestock or 
other property involved in the trespass. We may keep such property we 
seize for use as evidence.
    (b) Assess penalties, damages, and costs, under Sec.  166.812 of 
this subpart.



Sec.  166.807  When will we impound unauthorized livestock or other property?

    We will impound unauthorized livestock or other property under the 
following conditions:
    (a) Where there is imminent danger of severe injury to growing or 
harvestable crop or destruction of the range forage.
    (b) When the known owner or the owner's representative of the 
unauthorized livestock or other property refuses to accept delivery of a 
written notice of trespass and the unauthorized livestock or other 
property are not removed within the period prescribed in the written 
notice.
    (c) Any time after five days of providing notice of impoundment if 
you failed to correct the trespass.



Sec.  166.808  How are trespassers notified if their unauthorized livestock 
or other property are to be impounded?

    (a) If the trespass is not corrected in the time specified in the 
initial trespass notice, we will send written notice of our intent to 
impound unauthorized livestock or other property to the unauthorized 
livestock or property owner or representative, and any known lien holder 
of the unauthorized livestock or other property.
    (b) If we determine that the owner of the unauthorized livestock or 
other property or the owner's representative is unknown or refuses 
delivery of the written notice, we will post a public notice of intent 
to impound at the tribal community building, U.S. Post Office, and 
published in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring.
    (c) After we have given notice as described above, we will impound 
unauthorized livestock or other property without any further notice.



Sec.  166.809  What happens after my unauthorized livestock 
or other property are impounded?

    Following the impoundment of unauthorized livestock or other 
property, we will provide notice that we will sell the impounded 
property as follows:

[[Page 613]]

    (a) We will provide written notice of the sale to the owner, the 
owner's representative, and any known lien holder. The written notice 
must include the procedure by which the impounded property may be 
redeemed prior to the sale.
    (b) We will provide public notice of sale of impounded property by 
posting at the tribal community building, U.S. Post Office, and 
publishing in the local newspaper nearest to the Indian agricultural 
lands where the trespass is occurring. The public notice will include a 
description of the impounded property, and the date, time, and place of 
the public sale. The sale date must be at least five days after the 
publication and posting of notice.



Sec.  166.810  How do I redeem my impounded livestock or other property?

    You may redeem impounded livestock or other property by submitting 
proof of ownership and paying all penalties, damages, and costs under 
Sec.  166.812 of this subpart and completing all corrective actions 
identified by us under Sec.  166.804 of this subpart.



Sec.  166.811  How will the sale of impounded livestock 
or other property be conducted?

    (a) Unless the owner or known lien holder of the impounded livestock 
or other property redeems the property prior to the time set by the 
sale, by submitting proof of ownership and settling all obligations 
under Sec.  166.804 and Sec.  166.812 of this subpart, the property will 
be sold by public sale to the highest bidder.
    (b) If a satisfactory bid is not received, the livestock or property 
may be re-offered for sale, returned to the owner, condemned and 
destroyed, or otherwise disposed of.
    (c) We will give the purchaser a bill of sale or other written 
receipt evidencing the sale.

                      Penalties, Damages, and Costs



Sec.  166.812  What are the penalties, damages, and costs payable 
by trespassers on Indian agricultural land?

    Trespassers on Indian agricultural land must pay the following 
penalties and costs:
    (a) Collection of the value of the products illegally used or 
removed plus a penalty of double their values;
    (b) Costs associated with any damage to Indian agricultural land 
and/or property;
    (c) The costs associated with enforcement of the regulations, 
including field examination and survey, damage appraisal, investigation 
assistance and reports, witness expenses, demand letters, court costs, 
and attorney fees;
    (d) Expenses incurred in gathering, impounding, caring for, and 
disposal of livestock in cases which necessitate impoundment under Sec.  
166.807 of this subpart; and
    (e) All other penalties authorized by law.



Sec.  166.813  How will the BIA determine the value of forage 
or crops consumed or destroyed?

    We will determine the value of forage or crops consumed or destroyed 
based upon the average rate received per month for comparable property 
or grazing privileges, or the estimated commercial value or replacement 
costs of such products or property.



Sec.  166.814  How will the BIA determine the value of the products 
or property illegally used or removed?

    We will determine the value of the products or property illegally 
used or removed based upon a valuation of similar products or property.



Sec.  166.815  How will the BIA determine the amount of damages 
to Indian agricultural land?

    We will determine the damages by considering the costs of 
rehabilitation and revegetation, loss of future revenue, loss of 
profits, loss of productivity, loss of market value, damage to other 
resources, and other factors.

[[Page 614]]



Sec.  166.816  How will the BIA determine the costs associated 
with enforcement of the trespass?

    Costs of enforcement may include detection and all actions taken by 
us through prosecution and collection of damages. This includes field 
examination and survey, damage appraisal, investigation assistance and 
report preparation, witness expenses, demand letters, court costs, 
attorney fees, and other costs.



Sec.  166.817  What happens if I do not pay the assessed penalties, 
damages and costs?

    Unless otherwise provided by applicable tribal law:
    (a) We will refuse to issue you a permit for use, development, or 
occupancy of Indian agricultural lands; and
    (b) We will forward your case for appropriate legal action.



Sec.  166.818  How are the proceeds from trespass distributed?

    Unless otherwise provided by tribal law:
    (a) We will treat any amounts recovered under Sec.  166.812 of this 
subpart as proceeds from the sale of agricultural property from the 
Indian agricultural land upon which the trespass occurred.
    (b) Proceeds recovered under Sec.  166.812 of this subpart may be 
distributed to:
    (1) Repair damages of the Indian agricultural land and property;
    (2) Reimburse the affected parties, including the permittee for loss 
due to the trespass, as negotiated and provided in the permit; and
    (3) Reimburse for costs associated with the enforcement of this 
subpart.
    (c) If any money is left over after the distribution of the proceeds 
described in paragraph (b) of this section, we will return it to the 
trespasser or, where we cannot identify the owner of the impounded 
property within 180 days, we will deposit the net proceeds of the sale 
into the accounts of the landowners where the trespass occurred.



Sec.  166.819  What happens if the BIA does not collect enough money 
to satisfy the penalty?

    We will send written notice to the trespasser demanding immediate 
settlement and advising the trespasser that unless settlement is 
received within five business days from the date of receipt, we will 
forward the case for appropriate legal action. We may send a copy of the 
notice to the Indian landowner, permittee, and any known lien holders.



Subpart J_Agriculture Education, Education Assistance, Recruitment, and 
                                Training



Sec.  166.900  How are the Indian agriculture education programs operated?

    (a) The purpose of the Indian agriculture education programs is to 
recruit and develop promising Indian and Alaska Natives who are enrolled 
in secondary schools, tribal or Alaska Native community colleges, and 
other post-secondary schools for employment as professional resource 
managers and other agriculture-related professionals by approved 
organizations.
    (b) We will operate the student educational employment program as 
part of our Indian agriculture education programs in accordance with the 
provisions of 5 CFR 213.3202(a) and (b).
    (c) We will establish an education committee to coordinate and carry 
out the agriculture education assistance programs and to select 
participants for all agriculture education assistance programs. The 
committee will include at least one Indian professional educator in the 
field of natural resources or agriculture, a personnel specialist, a 
representative of the Intertribal Agriculture Council, and a natural 
resources or agriculture professional from the BIA and a representative 
from American Indian Higher Education Consortium. The committee's duties 
will include the writing of a manual for the Indian and Alaska Native 
Agriculture Education and Assistance Programs.
    (d) We will monitor and evaluate the agriculture education 
assistance programs to ensure that there are adequate Indian and Alaska 
Native natural resources and agriculture-related professionals to manage 
Indian natural resources and agriculture programs by or for tribes and 
Alaska Native Corporations. We will identify the number of participants 
in the intern, student

[[Page 615]]

educational employment program, scholarship, and outreach programs; the 
number of participants who completed the requirements to become a 
natural resources or agriculture-related professional; and the number of 
participants completing advanced degree requirements.



Sec.  166.901  How will the BIA select an agriculture intern?

    (a) The purpose of the agriculture intern program is to ensure the 
future participation of trained, professional Indians and Alaska Natives 
in the management of Indian and Alaska Native agricultural land. In 
keeping with this purpose, we will work with tribes and Alaska Natives:
    (1) To obtain the maximum degree of participation from Indians and 
Alaska Natives in the agriculture intern program;
    (2) To encourage agriculture interns to complete an undergraduate 
degree program in natural resources or agriculture-related field; and
    (3) To create an opportunity for the advancement of natural 
resources and agriculture-related technicians to professional resource 
management positions with the BIA, other federal agencies providing an 
agriculture service to their respective tribe, a tribe, or tribal 
agriculture enterprise.
    (b) Subject to restrictions imposed by agency budgets, we will 
establish and maintain in the BIA at least 20 positions for the 
agriculture intern program. All Indians and Alaska Natives who satisfy 
the qualification criteria may compete for positions.
    (c) Applicants for intern positions must meet the following 
criteria:
    (1) Be eligible for Indian preference as defined in 25 CFR part 5;
    (2) Possess a high school diploma or its recognized equivalent;
    (3) Be able to successfully complete the intern program within a 
three-year period; and
    (4) Possess a letter of acceptance to an accredited post-secondary 
school or demonstrate that one will be sent within 90 days.
    (d) We will advertise vacancies for agriculture intern positions 
semi-annually, no later than the first day of April and October, to 
accommodate entry into school.
    (e) In selecting agriculture interns, we will seek to identify 
candidates who:
    (1) Have the greatest potential for success in the program;
    (2) Will take the shortest time period to complete the intern 
program; and
    (3) Provide the letter of acceptance required by paragraph (c)(4) of 
this section.
    (f) Agriculture interns must:
    (1) Maintain full-time status in an agriculture-related curriculum 
at an accredited post-secondary school;
    (2) Maintain good academic standing;
    (3) Enter into an obligated service agreement to serve as a 
professional resource manager or agriculture-related professional with 
an approved organization for one year in exchange for each year in the 
program; and
    (4) Report for service with the approved organization during any 
break in attendance at school of more than three weeks.
    (g) The education committee will evaluate annually the performance 
of the agriculture intern program participants against requirements to 
ensure that they are satisfactorily progressing toward completion of 
program requirements.
    (h) We will pay all costs for tuition, books, fees, and living 
expenses incurred by an agriculture intern while attending an accredited 
post-secondary school.



Sec.  166.902  How can I become an agriculture educational employment student?

    (a) To be considered for selection, applicants for the student 
educational employment program must:
    (1) Meet the eligibility requirements in 5 CFR part 308; and
    (2) Be accepted into or enrolled in a course of study at an 
accredited post-secondary institution which grants degrees in natural 
resources or agriculture-related curricula.
    (b) Student educational employment steering committees established 
at the field level will select program participants based on eligibility 
requirements without regard to applicants' financial needs.

[[Page 616]]

    (c) A recipient of assistance under the student educational 
employment program will be required to enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for one year in exchange for 
each year in the program.
    (d) We will 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 the cooperative education 
program.



Sec.  166.903  How can I get an agriculture scholarship?

    (a) We may grant agriculture scholarships to Indians and Alaska 
Natives enrolled as full-time students in accredited post-secondary and 
graduate programs of study in natural resources and agriculture-related 
curricula.
    (b) The education committee established in Sec.  166.900(c) of this 
subpart will select program participants based on eligibility 
requirements stipulated in paragraphs (e) through (g) of this section 
without regard to applicants' financial needs or past scholastic 
achievements.
    (c) Recipients of scholarships must reapply annually to continue to 
receive funding beyond the initial award period. Students who have 
received scholarships in past years, are in good academic standing, and 
have been recommended for continuation by their academic institution 
will be given priority over new applicants for scholarship assistance.
    (d) The amount of scholarship funds an individual is awarded each 
year will be contingent upon the availability of funds appropriated each 
fiscal year and is subject to yearly change.
    (e) Preparatory scholarships may be available for a maximum of three 
academic years of general, undergraduate course work leading to a degree 
in natural resources or agriculture-related curricula and may be awarded 
to individuals who:
    (1) Possess a high school diploma or its recognized equivalent; and
    (2) Are enrolled and in good academic standing at an acceptable 
post-secondary school.
    (f) Undergraduate scholarships are available for a maximum of three 
academic years and may be awarded to individuals who:
    (1) Have completed a minimum of 55 semester hours toward a 
bachelor's degree in a natural resources or agriculture-related 
curriculum; and
    (2) Have been accepted into a natural resource or agriculture-
related degree-granting program at an accredited college or university.
    (g) Graduate scholarships are available for a maximum of five 
academic years for individuals selected into the graduate program of an 
accredited college or university that grants advanced degrees in natural 
resources or agriculture-related fields.
    (h) A recipient of assistance under the scholarship program must 
enter into an obligated service agreement to serve as a natural 
resources or agriculture-related professional with the BIA, other 
federal agency providing assistance to their respective tribe, a tribe, 
tribal agriculture enterprise, or an ANCSA Corporation for one year for 
each year in the program.
    (i) We will pay all scholarships approved by the education committee 
established in Sec.  166.900 of this subpart for which funding is 
available.



Sec.  166.904  What is agriculture education outreach?

    (a) We will establish and maintain an agriculture education outreach 
program for Indian and Alaska Native youth that will:
    (1) Encourage students to acquire academic skills needed to succeed 
in post-secondary mathematics and science courses;
    (2) Promote agriculture career awareness;
    (3) Involve students in projects and activities oriented to 
agriculture related professions early so students realize the need to 
complete required pre-college courses; and
    (4) Integrate Indian and Alaska Native agriculture program 
activities into the education of Indian and Alaska Native students.
    (b) We will develop and carry out the program in consultation with 
appropriate community education organizations, tribes, ANCSA 
Corporations,

[[Page 617]]

Alaska Native organizations, and other federal agencies providing 
agriculture services to Indians.
    (c) The education committee established under Sec.  166.900(c) of 
this subpart will coordinate and implement the program nationally.



Sec.  166.905  Who can get assistance for postgraduate studies?

    (a) The purpose of the postgraduate studies program is to enhance 
the professional and technical knowledge of Indian and Alaska Native 
natural resource and agriculture-related professionals working for an 
approved organization so that the best possible service is provided to 
Indian and Alaska Natives.
    (b) We may pay the cost of tuition, fees, books, and salary of 
Alaska Natives and Indians who are employed by an approved organization 
and who wish to pursue advanced levels of education in natural resource 
or agriculture-related fields.
    (c) The goal of the advanced study program is to encourage 
participants to obtain additional academic credentials such as a degree 
or diploma in a natural resources or agriculture-related field. 
Requirements of the postgraduate study program are:
    (1) The duration of course work cannot be less than one semester or 
more than three years; and
    (2) Students in the postgraduate studies program must meet 
performance standards as required by the graduate school offering the 
study program.
    (d) Program applicants must submit application packages to the 
education committee. At a minimum, such packages must contain a resume 
and an endorsement signed by the applicant's supervisor clearly stating 
the need for and benefits of the desired training.
    (e) The education committee must use the following criteria to 
select participants:
    (1) Need for the expertise sought at both the local and national 
levels;
    (2) Expected benefits, both locally and nationally; and
    (3) Years of experience and the service record of the employee.
    (f) Program participants will enter into an obligated service 
agreement to serve as a natural resources or agriculture-related 
professional with an approved organization for one year for each year in 
the program. We may reduce the obligated service requirement if the 
employee receives supplemental funding such as research grants, 
scholarships, or graduate stipends and, as a result, reduces the need 
for financial assistance under this part. If the obligated service 
agreement is breached, we will collect the amount owed us in accordance 
with Sec.  166.910 of this subpart.



Sec.  166.906  What can happen if we recruit you after graduation?

    (a) The purpose of the post graduation recruitment program is to 
recruit Indian and Alaska Native natural resource and trained 
agriculture technicians into the agriculture programs of approved 
organizations.
    (b) We may assume outstanding student loans from established lending 
institutions of Indian and Alaska Native natural resources and 
agriculture technicians who have successfully completed a post-secondary 
natural resources or agriculture-related curriculum at an accredited 
institution.
    (c) Indian and Alaska Natives receiving benefits under this program 
will enter into an obligated service agreement in accordance with Sec.  
166.901 of this subpart. Obligated service required under this program 
will be one year for every $5,000 of student loan debt repaid.
    (d) If the obligated service agreement is breached, we will collect 
student loan(s) in accordance with Sec.  166.910 of this subpart.



Sec.  166.907  Who can be an intern?

    (a) Natural resources or agriculture personnel working for an 
approved organization may apply for an internship within agriculture-
related programs of agencies of the Department of the Interior or other 
federal agencies providing an agriculture service to their respective 
reservations.
    (b) Natural resources or agriculture-related personnel from other 
Department of the Interior agencies may apply through proper channels 
for ``internships'' within the BIA's agriculture programs. With the 
consent of a tribe or Alaska Native organization, the BIA can arrange 
for an Intergovernmental

[[Page 618]]

Personnel Act assignment in tribal or Alaska Native agriculture 
programs.
    (c) Natural resources and agriculture 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 BIA and, with the consent of a tribe or Alaska Native 
organization, we can facilitate an Intergovernmental Personnel Act 
assignment in a tribe, tribal agriculture enterprise, or Alaska Native 
Corporation.
    (d) Natural resources or agriculture personnel from a tribe, tribal 
agriculture enterprise, or Alaska Native Corporation may apply, through 
proper channels and pursuant to a cooperative agreement, for an 
internship within another tribe, tribal forest enterprise, or ANCSA 
Corporation agriculture program.
    (e) The employing agency of participating federal employees will 
provide for the continuation of salary and benefits.
    (f) The host agency for participating tribal, tribal agriculture 
enterprise, or Alaska Native Corporation agriculture employees will 
provide for salaries and benefits.
    (g) 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 the host organization and must 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.



Sec.  166.908  Who can participate in continuing education and training?

    (a) The purpose of continuing education and training is to establish 
a program to provide for the ongoing education and training of natural 
resources and agriculture personnel employed by approved organizations. 
This program will emphasize continuing education and training in three 
areas:
    (1) Orientation training including tribal-federal relations and 
responsibilities;
    (2) Technical agriculture education; and
    (3) Developmental training in agriculture-based enterprises and 
marketing.
    (b) We will maintain an orientation program to increase awareness 
and understanding of Indian culture and its effect on natural resources 
management and agriculture practices and on federal laws that effect 
natural resources management and agriculture operations and 
administration in the Indian agriculture program.
    (c) We will maintain a continuing technical natural resources and 
agriculture education program to assist natural resources managers and 
agriculture-related professionals to perform natural resources and 
agriculture management on Indian land.
    (d) We will maintain an agriculture land-based enterprise and 
marketing training program to assist with the development and use of 
Indian and Alaska Native agriculture resources.



Sec.  166.909  What are my obligations to the BIA after I participate 
in an agriculture education program?

    (a) Individuals completing agriculture education programs with an 
obligated service requirement may be offered full time permanent 
employment with an approved organization to fulfill their obligated 
service within 90 days of the date all program education requirements 
have been completed. If employment is not offered within the 90-day 
period, the student will be relieved of obligated service requirements. 
Not less than 30 days before the start of employment, the employer must 
notify the participant of the work assignment, its location and the date 
work must begin. If the employer is other than the BIA, the employer 
must also notify us.
    (b) Employment time that can be credited toward obligated service 
requirement will begin the day after all program education requirements 
have been completed, with the exception of the agriculture intern 
program which includes the special provisions outlined in Sec.  
166.901(f)(4) of this subpart. The minimum service obligation period 
will be one year of full time employment.

[[Page 619]]

    (c) The employer has the right to designate the location of 
employment for fulfilling the service obligation.
    (d) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a deferment of obligated service 
to pursue postgraduate or post-doctoral studies. In such cases, we will 
issue a decision within 30 days of receipt of the request for deferral. 
We may grant such a request; however, deferments granted in no way waive 
or otherwise affect obligated service requirements.
    (e) A participant in any of the agriculture education programs with 
an obligated service requirement may, within 30 days of completing all 
program education requirements, request a waiver of obligated service 
based on personal or family hardship. We may grant a full or partial 
waiver or deny the request for wavier. In such cases, we will issue a 
decision within 30 days of receiving the request for waiver.



Sec.  166.910  What happens if I do not fulfill my obligation to the BIA?

    (a) Any individual who accepts financial support under agriculture 
education programs with an obligated service requirement, and who does 
not accept employment or unreasonably terminates employment must repay 
us in accordance with the following table:

------------------------------------------------------------------------
                               Then the costs that   And then the costs
        If you are...            you must repay     that you do not need
                                     are...            to repay are...
------------------------------------------------------------------------
(1) Agriculture intern......  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               occupying position    employed by an
                               plus interest.        approved
                                                     organization.
(2) Cooperative education...  Tuition, books, and
                               fees plus interest.
(3) Scholarship.............  Costs of scholarship
                               plus interest.
(4) Post graduation           All student loans
 recruitment.                  assumed by us under
                               the program plus
                               interest.
(5) Postgraduate studies....  Living allowance,     Salary paid during
                               tuition, books, and   school breaks or
                               fees received while   when recipient was
                               in the program plus   employed by an
                               interest.             approved
                                                     organization.
------------------------------------------------------------------------

    (b) For agriculture education programs with an obligated service 
requirement, we will adjust the amount required for repayment by 
crediting toward the final amount of debt any obligated service 
performed before breach of contract.



                            Subpart K_Records



Sec.  166.1000  Who owns the records associated with this part?

    (a) Records are the property of the United States if they:
    (1) Are made or received by a tribe or tribal organization in the 
conduct of a federal trust function under 25 U.S.C. Sec.  450f et seq., 
including the operation of a trust program; and
    (2) Evidence the organization, functions, policies, decisions, 
procedures, operations, or other activities undertaken in the 
performance of a federal trust function under this part.
    (b) Records not covered by paragraph (a) of this section that are 
made or received by a tribe or tribal organization in the conduct of 
business with the Department of the Interior under this part are the 
property of the tribe.



Sec.  166.1001  How must a records associated with this part be preserved?

    (a) Any organization, including tribes and tribal organizations, 
that have records identified in Sec.  166.1000(a) of this part must 
preserve the records in accordance with approved Departmental records 
retention procedures under the Federal Records Act, 44 U.S.C. Chapters 
29, 31 and 33. These records and related records management practices 
and safeguards required under the Federal Records Act are subject to 
inspection by the Secretary and the Archivist of the United States.
    (b) A tribe or tribal organization should preserve the records 
identified in Sec.  166.1000(b) of this part for the period of time 
authorized by the Archivist of the United States for similar Department 
of the Interior records in accordance with 44 U.S.C. Chapter 33. If a 
tribe or tribal organization does not

[[Page 620]]

preserve records associated with its conduct of business with the 
Department of the Interior under this part, it may prevent the tribe or 
tribal organization from being able to adequately document essential 
transactions or furnish information necessary to protect its legal and 
financial rights or those of persons directly affected by its 
activities.



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 
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

[[Page 621]]

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 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 responsible 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

[[Page 622]]

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 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.

[[Page 623]]



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.
---------------------------------------------------------------------------



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

[[Page 624]]

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 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.

[[Page 625]]

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 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

[[Page 626]]

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.



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

[[Page 627]]

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 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.

[[Page 628]]



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 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

[[Page 629]]

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 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

[[Page 630]]

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 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 LAND--Table of Contents



           Subpart A_Purpose, Definitions, General Provisions

Sec.
169.1 What is the purpose of this part?
169.2 What terms do I need to know?
169.3 To what land does this part apply?
169.4 When do I need a right-of-way to authorize possession over or 
          across Indian land?
169.5 What types of rights-of-way does this part cover?

[[Page 631]]

169.6 What statutory authority will BIA use to act on requests for 
          rights-of-way under this part?
169.7 Does this part apply to right-of-way grants submitted for approval 
          before December 21, 2015?
169.8 May tribes administer this part on BIA's behalf?
169.9 What laws apply to rights-of-way approved under this part?
169.10 What is the effect of a right-of-way on a tribe's jurisdiction 
          over the underlying parcel?
169.11 What taxes apply to rights-of-way approved under this part?
169.12 How does BIA provide notice to the parties to a right-of-way?
169.13 May decisions under this part be appealed?
169.14 How does the Paperwork Reduction Act affect this part?

                    Subpart B_Service Line Agreements

169.51 Is a right-of-way required for service lines?
169.52 What is a service line agreement?
169.53 What should a service line agreement address?
169.54 What are the consent requirements for service line agreements?
169.55 Is a valuation required for service line agreements?
169.56 Must I file service line agreements with the BIA?

                   Subpart C_Obtaining a Right-of-Way

                               Application

169.101 How do I obtain a right-of-way across tribal or individually 
          owned Indian land or BIA land?
169.102 What must an application for a right-of-way include?
169.103 What bonds, insurance, or other security must accompany the 
          application?
169.104 What is the release process for a bond or alternate form of 
          security?
169.105 What requirements for due diligence must a right-of-way grant 
          include?

                          Consent Requirements

169.106 How does an applicant identify and contact individual Indian 
          landowners to negotiate a right-of-way?
169.107 Must I obtain tribal or individual Indian landowner consent for 
          a right-of-way across Indian land?
169.108 Who is authorized to consent to a right-of-way?
169.109 Whose consent do I need for a right-of-way when there is a life 
          estate on the tract?

                        Compensation Requirements

169.110 How much monetary compensation must be paid for a right-of-way 
          over or across tribal land?
169.111 Must a right-of-way grant for tribal land provide for 
          compensation reviews or adjustments?
169.112 How much monetary compensation must be paid for a right-of-way 
          over or across individually owned Indian land?
169.113 Must a right-of-way grant for individually owned Indian land 
          provide for compensation reviews or adjustments?
169.114 How will BIA determine fair market value for a right-of-way?
169.115 When are monetary compensation payments due under a right-of-
          way?
169.116 Must a right-of-way specify who receives monetary compensation 
          payments?
169.117 What form of monetary compensation is acceptable under a right-
          of-way?
169.118 May the right-of-way provide for non-monetary or varying types 
          of compensation?
169.119 Will BIA notify a grantee when a payment is due for a right-of-
          way?
169.120 What other types of payments are required for a right-of-way?
169.121 How will compensation be distributed among the life tenants and 
          owners of the remainder interests?
169.122 Who does the grantee pay if there is a life estate on the tract?

                         Grants of Rights-of-Way

169.123 What is the process for BIA to grant a right-of-way?
169.124 How will BIA determine whether to grant a right-of-way?
169.125 What will the grant of right-of-way contain?
169.126 May a right-of-way contain a preference consistent with tribal 
          law for employment of tribal members?
169.127 Is a new right-of-way grant required for a new use within or 
          overlapping an existing right-of-way?
169.128 When will BIA grant a right-of-way for a new use within or 
          overlapping an existing right-of-way?
169.129 What is required if the location described in the original 
          application and grant differs from the construction location?
169.130 Must a right-of-way grant address ownership of permanent 
          improvements?

    Subpart D_Duration, Renewals, Amendments, Assignments, Mortgages

                           Duration & Renewals

169.201 How long may the duration of a right-of-way grant be?
169.202 Under what circumstances will a grant of right-of-way be 
          renewed?

[[Page 632]]

169.203 May a right-of-way be renewed multiple times?

                               Amendments

169.204 May a grantee amend a right-of-way?
169.205 What is the approval process for an amendment of a right-of-way?
169.206 How will BIA decide whether to approve an amendment of a right-
          of-way?

                               Assignments

169.207 May a grantee assign a right-of-way?
169.208 What is the approval process for an assignment of a right-of-
          way?
169.209 How will BIA decide whether to approve an assignment of a right-
          of-way?

                                Mortgages

169.210 May a grantee mortgage a right-of-way?
169.211 What is the approval process for a mortgage of a right-of-way?
169.212 How will BIA decide whether to approve a mortgage of a right-of-
          way?

                         Subpart E_Effectiveness

169.301 When will a right-of-way document be effective?
169.302 Must a right-of-way be recorded?
169.303 What happens if BIA denies a right-of-way document?
169.304 What happens if BIA does not meet a deadline for issuing a 
          decision on a right-of-way document?
169.305 Will BIA require an appeal bond for an appeal of a decision on a 
          right-of-way document?

                  Subpart F_Compliance and Enforcement

169.401 What is the purpose and scope of this subpart?
169.402 Who may investigate compliance with a right-of-way?
169.403 May a right-of-way provide for negotiated remedies?
169.404 What will BIA do about a violation of a right-of-way grant?
169.405 What will BIA do if the grantee does not cure a violation of a 
          right-of-way grant on time?
169.406 Will late payment charges, penalties, or special fees apply to 
          delinquent payments due under a right-of-way grant?
169.407 How will payment rights relating to a right-of-way grant be 
          allocated?
169.408 What is the process for cancelling a right-of-way for non-use or 
          abandonment?
169.409 When will a cancellation of a right-of-way grant be effective?
169.410 What will BIA do if a grantee remains in possession after a 
          right-of-way expires or is terminated or cancelled?
169.411 Will BIA appeal bond regulations apply to cancellation decisions 
          involving right-of-way grants?
169.412 When will BIA issue a decision on an appeal from a right-of-way 
          decision?
169.413 What if an individual or entity takes possession of or uses 
          Indian land or BIA land without a right-of-way or other proper 
          authorization?
169.414 May BIA take emergency action if Indian land is threatened?
169.415 How will BIA conduct compliance and enforcement when there is a 
          life estate on the tract?

    Authority: 5 U.S.C. 301; 25 U.S.C. 323-328; 25 U.S.C. 2201 et seq.

    Source: 80 FR 72534, Nov. 19, 2015, unless otherwise noted.



           Subpart A_Purpose, Definitions, General Provisions



Sec.  169.1  What is the purpose of this part?

    (a) This part is intended to streamline the procedures and 
conditions under which BIA will consider a request to approve (i.e., 
grant) rights-of-way over and across tribal lands, individually owned 
Indian lands, and BIA lands, by providing for the use of the broad 
authority under 25 U.S.C. 323-328, rather than the limited authorities 
under other statutes. This part is also intended to support tribal self-
determination and self-governance by acknowledging and incorporating 
tribal law and policies in processing a request for a right-of-way 
across tribal lands and defer to the maximum extent possible to Indian 
landowner decisions regarding their Indian land.
    (b) This part specifies:
    (1) Conditions and authorities under which we will consider a 
request to approve rights-of-way over or across Indian land;
    (2) How to obtain a right-of-way;
    (3) Terms and conditions required in rights-of-way;
    (4) How we administer and enforce rights-of-ways;
    (5) How to renew, amend, assign, and mortgage rights-of-way; and
    (6) Whether rights-of-way are required for service line agreements.
    (c) This part does not cover rights-of-way over or across tribal 
lands within a reservation for the purpose of Federal

[[Page 633]]

Power Act projects, such as constructing, operating, or maintaining 
dams, water conduits, reservoirs, powerhouses, transmission lines, or 
other works which must constitute a part of any project for which a 
license is required by the Federal Power Act.
    (1) The Federal Power Act provides that any license that must be 
issued to use tribal lands within a reservation must be subject to and 
contain such conditions as the Secretary deems necessary for the 
adequate protection and utilization of such lands (16 U.S.C. 797(e)).
    (2) In the case of tribal lands belonging to a tribe organized under 
the Indian Reorganization Act of 1934 (25 U.S.C. 476), the Federal Power 
Act requires that annual charges for the use of such tribal lands under 
any license issued by the Federal Energy Regulatory Commission must be 
subject to the approval of the tribe (16 U.S.C. 803(e)).
    (d) This part does not apply to grants of rights-of-way on tribal 
land under a special act of Congress specifically authorizing rights-of-
way on tribal land without our approval.



Sec.  169.2  What terms do I need to know?

    The following terms apply to this part:
    Abandonment means the grantee has affirmatively relinquished a 
right-of-way (as opposed to relinquishing through non-use) either by 
notifying the BIA of the abandonment or by performing an act indicating 
an intent to give up and never regain possession of the right-of-way.
    Assignment means an agreement between a grantee and an assignee, 
whereby the assignee acquires all or part of the grantee's rights, and 
assumes all of the grantee's obligations under a grant.
    Avigation hazard easement means the right, acquired by government 
through purchase or condemnation from the owner of land adjacent to an 
airport, to the use of the air space above a specific height for the 
flight of aircraft.
    BIA means the Secretary of the Interior or the Bureau of Indian 
Affairs within the Department of the Interior and any tribe acting on 
behalf of the Secretary or BIA under Sec.  169.008.
    BIA land means any tract, or interest therein, in which the surface 
estate is owned and administered by the BIA, not including Indian land.
    Cancellation means BIA action to end a right-of-way grant.
    Compensation means something bargained for that is fair and 
reasonable under the circumstances of the agreement.
    Consent means written authorization by an Indian landowner to a 
specified action.
    Easement means an interest, consisting of the right to use or 
control, for a specific limited purpose, land owned by another person, 
or an area above or below it, while title remains vested in the 
landowner.
    Encumbered account means a trust account where some portion of the 
proceeds are obligated to another party.
    Fair market value means the amount of compensation that a right-of-
way would most probably command in an open and competitive market.
    Fractional interest means an undivided interest in Indian land owned 
as tenancy in common by individual Indian or tribal landowners and/or 
fee owners.
    Grant means the formal transfer of a right-of-way interest by the 
Secretary's approval or the document evidencing the formal transfer, 
including any changes made by a right-of-way document.
    Grantee means a person or entity to whom the Secretary grants a 
right-of-way or to whom the right-of-way has been assigned once the 
assignment is effective.
    Immediate family means, in the absence of a definition under 
applicable tribal law, a spouse, brother, sister, aunt, uncle, niece, 
nephew, first cousin, lineal ancestor, lineal descendant, or member of 
the household.
    Indian means:
    (1) Any person who is a member of any Indian tribe, is eligible to 
become a member of any Indian tribe, or is an owner as of October 27, 
2004, of a trust or restricted interest in land;
    (2) Any person meeting the definition of Indian under the Indian 
Reorganization Act (25 U.S.C. 479) and the regulations promulgated 
thereunder; and
    (3) With respect to the inheritance and ownership of trust or 
restricted

[[Page 634]]

land in the State of California under 25 U.S.C. 2206, any person 
described in paragraph (1) or (2) of this definition or any person who 
owns a trust or restricted interest in a parcel of such land in that 
State.
    Indian land means individually owned Indian land and/or tribal land.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land.
    Indian tribe or tribe means an Indian tribe under section 102 of the 
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
    Individually owned Indian land means any tract in which the surface 
estate, or an undivided interest in the surface estate, is owned by one 
or more individual Indians in trust or restricted status.
    In-kind compensation means payment is in goods or services rather 
than money.
    Life estate means an interest in property held only for the duration 
of a designated person(s)' life. A life estate may be created by a 
conveyance document or by operation of law.
    LTRO means the Land Titles and Records Office of BIA.
    Map of definite location means a survey plat signed by a 
professional surveyor or engineer showing the location, size, and extent 
of the right-of-way and other related parcels, with respect to each 
affected parcel of individually owned land, tribal land, or BIA land and 
with reference to the public surveys under 25 U.S.C. 176, 43 U.S.C. 2 
and 1764, and showing existing facilities adjacent to the proposed 
project.
    Permanent improvement means pipelines, roads, structures, and other 
infrastructure attached to the land subject to the right-of-way.
    Right-of-way means an easement or a legal right to go over or across 
tribal land, individually owned Indian land, or BIA land for a specific 
purpose, including but not limited to building and operating a line or 
road. This term may also refer to the land subject to the grant of 
right-of-way; however, in all cases, title to the land remains vested in 
the landowner. This term does not include service lines.
    Right-of-way document means a right-of-way grant, renewal, 
amendment, assignment, or mortgage of a right-of-way.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Termination means action by Indian landowners to end a right-of-way.
    Trespass means any unauthorized occupancy, use of, or action on 
tribal or individually owned Indian land or BIA land.
    Tribal authorization means a duly adopted tribal resolution, tribal 
ordinance, or other appropriate tribal document authorizing the 
specified action.
    Tribal land means any tract in which the surface estate, or an 
undivided interest in the surface estate, is owned by one or more tribes 
in trust or restricted status. The term also includes the surface estate 
of lands held in trust for a tribe but reserved for BIA administrative 
purposes and includes the surface estate of lands held in trust for an 
Indian corporation chartered under section 17 of the Indian 
Reorganization Act of 1934 (25 U.S.C. 477).
    Tribal utility means a utility owned by one or more tribes that is 
established for the purpose of providing utility service, and that is 
certified by the tribe to meet the following requirements:
    (1) The combined Indian tribe ownership constitutes not less than 51 
percent of the utility;
    (2) The Indian tribes, together, receive at least a majority of the 
earnings; and
    (3) The management and daily business operations of the utility are 
controlled by one or more representatives of the tribe.
    Trust account means a tribal account or Individual Indian Money 
(IIM) account for trust funds maintained by the Secretary.
    Trust or restricted status means:
    (1) That the United States holds title to the tract or interest in 
trust for the benefit of one or more tribes and/or individual Indians; 
or
    (2) That one or more tribes and/or individual Indians holds title to 
the tract or interest, but can alienate or encumber it only with the 
approval of the United States because of limitations in the conveyance 
instrument under Federal law or limitations in Federal law.

[[Page 635]]

    Uniform Standards of Professional Appraisal Practice (USPAP) means 
the standards promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.
    Us/we/our means the BIA.
    Utility cooperative means a cooperative that provides public 
utilities to its members and either reinvests profits for infrastructure 
or distributes profits to members of the cooperative.



Sec.  169.3  To what land does this part apply?

    (a) This part applies to Indian land and BIA land.
    (b) We will not take any action on a right-of-way across fee land or 
collect compensation on behalf of fee interest owners. We will not 
condition our grant of a right-of-way across Indian land or BIA land on 
the applicant having obtained a right-of-way from the owners of any fee 
interests. The applicant will be responsible for negotiating directly 
with and making any payments directly to the owners of any fee interests 
that may exist in the property on which the right-of-way is granted.
    (c) We will not include the fee interests in a tract in calculating 
the applicable percentage of interests required for consent to a right-
of-way.



Sec.  169.4  When do I need a right-of-way to authorize possession over 
or across Indian land?

    (a) You need an approved right-of-way under this part before 
crossing Indian land if you meet one of the criteria in the following 
table:

------------------------------------------------------------------------
                                            then you must obtain a right-
             If you are . . .               of-way under this part . . .
 
------------------------------------------------------------------------
(1) A person or legal entity (including a   from us, with the consent of
 Federal, State, or local governmental       the owners of the majority
 entity) who is not an owner of the Indian   interest in the land, and
 land.                                       the tribe for tribal land,
                                             before crossing the land or
                                             any portion thereof.
(2) An individual Indian landowner who      from us, with the consent of
 owns a fractional interest in the land      the owners of other trust
 (even if the individual Indian landowner    and restricted interests in
 owns a majority of the fractional           the land, totaling at least
 interests).                                 a majority interest in the
                                             tract, and with the consent
                                             of the tribe for tribal
                                             land. You do not need to
                                             obtain a right-of-way from
                                             us if all of the owners
                                             (including the tribe, for
                                             tribal land) have given you
                                             permission to cross without
                                             a right-of-way.
(3) An Indian tribe, agency or              from us, with the consent of
 instrumentality of the tribe, or an         the owners of other trust
 independent legal entity wholly owned and   and restricted interests in
 operated by the tribe who owns only a       the land, totaling at least
 fractional interest in the land (even if    a majority interest in the
 the tribe, agency, instrumentality or       tract, unless all of the
 legal entity owns a majority of the         owners have given you
 fractional interests).                      permission to cross without
                                             a right-of-way.
------------------------------------------------------------------------

    (b) You do not need a right-of-way to cross Indian land if:
    (1) You are an Indian landowner who owns 100 percent of the trust or 
restricted interests in the land; or
    (2) You are authorized by:
    (i) A lease under 25 CFR part 162, 211, 212, or 225 or permit under 
25 CFR part 166;
    (ii) A tribal land assignment or similar instrument authorizing use 
of the tribal land without Secretarial approval; or
    (iii) Other, tribe-specific authority authorizing use of the tribal 
land without Secretarial approval; or
    (iv) Another land use agreement not subject to this part (e.g., 
under 25 CFR part 84); or
    (3) You meet any of the criteria in the following table:

------------------------------------------------------------------------
 You do not need a right-of-way if you are  but the following conditions
                   . . .                             apply . . .
------------------------------------------------------------------------
(i) A parent or guardian of a minor child   We may require you to
 who owns 100 percent of the trust or        provide evidence of a
 restricted interests in the land.           direct benefit to the minor
                                             child and when the child is
                                             no longer a minor, you must
                                             obtain a right-of-way to
                                             authorize continued
                                             possession.
(ii) Authorized by a service line           You must file the agreement
 agreement to cross the land.                with us under Sec.
                                             169.56.

[[Page 636]]

 
(iii) An independent legal entity wholly    The tribal governing body
 owned and operated by the tribe that owns   must pass a tribal
 100 percent of the trust or restricted      authorization authorizing
 interests in the land.                      access without BIA approval
                                             and including a legal
                                             description, and you must
                                             submit both documents to
                                             BIA for our records.
(iv) Otherwise authorized by law..........  You must comply with the
                                             requirements of the
                                             applicable law.
------------------------------------------------------------------------



Sec.  169.5  What types of rights-of-way does this part cover?

    (a) This part covers rights-of-way over and across Indian or BIA 
land, for uses including but not limited to the following:
    (1) Railroads;
    (2) Public roads and highways;
    (3) Access roads;
    (4) Service roads and trails, even where they are appurtenant to any 
other right-of-way purpose;
    (5) Public and community water lines (including pumping stations and 
appurtenant facilities);
    (6) Public sanitary and storm sewer lines (including sewage disposal 
and treatment plant lines);
    (7) Water control and use projects (including but not limited to, 
flowage easements, irrigation ditches and canals, and water treatment 
plant lines);
    (8) Oil and gas pipelines (including pump stations, meter stations, 
and other appurtenant facilities);
    (9) Electric transmission and distribution systems (including lines, 
poles, towers, telecommunication, protection, measurement and data 
acquisition equipment, other items necessary to operate and maintain the 
system, and appurtenant facilities);
    (10) Telecommunications, broadband, fiber optic lines;
    (11) Avigation hazard easements;
    (12) Conservation easements not covered by 25 CFR part 84, 
Encumbrances of Tribal Land--Contract Approvals, or 25 CFR part 162, 
Leases and Permits; or
    (13) Any other new use for which a right-of-way is appropriate but 
which is unforeseeable as of the effective date of these regulations.
    (b) Each of the uses listed above includes the right to access the 
right-of-way to manage vegetation, inspect, maintain and repair 
equipment, and conduct other activities that are necessary to maintain 
the right-of-way use.



Sec.  169.6  What statutory authority will BIA use to act on requests 
for rights-of-way under this part?

    BIA will act on requests for rights-of-way using the authority in 25 
U.S.C. 323-328, and relying on supplementary authority such as 25 U.S.C. 
2218, where appropriate.



Sec.  169.7  Does this part apply to right-of-way grants submitted 
for approval before December 21, 2015?

    (a) If your right-of-way grant is issued on or after April 21, 2016, 
this part applies.
    (b) If we granted your right-of-way before April 21, 2016, the 
procedural provisions of this part apply except that if the procedural 
provisions of this part conflict with the explicit provisions of the 
right-of-way grant or statute authorizing the right-of-way document, 
then the provisions of the right-of-way grant or authorizing statute 
apply instead. Non-procedural provisions of this part do not apply.
    (c) If you submitted an application for a right-of-way but we did 
not grant the right-of-way before April 21, 2016, then:
    (1) You may choose to withdraw the document and resubmit after April 
21, 2016, in which case this part will apply to that document; or
    (2) You may choose to proceed without withdrawing, in which case:
    (i) We will review the application under the regulations in effect 
at the time of your submission; and
    (ii) Once we grant the right-of-way, the procedural provisions of 
this part apply except that if the procedural provisions of this part 
conflict with the explicit provisions of the right-of-way grant or 
statute authorizing the right-of-way document, then the provisions of 
the right-of-way grant or authorizing statute apply instead. Non-
procedural provisions of this part do not apply.
    (d) For any assignments completed before April 21, 2016, the current 
assignee must, by August 16, 2016, provide BIA with documentation of any 
past assignments or notify BIA that it

[[Page 637]]

needs an extension and explain the reason for the extension.
    (e) To the maximum extent possible, BIA will interpret any ambiguous 
language in the right-of-way document or statute to be consistent with 
these regulations.

[80 FR 72534, Nov. 19, 2015; 80 FR 79258, Dec. 21, 2015; 81 FR 14976, 
Mar. 21, 2016]



Sec.  169.8  May tribes administer this part on BIA's behalf?

    A tribe or tribal organization may contract or compact under the 
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f 
et seq.) to administer on BIA's behalf any portion of this part that is 
not a grant, approval, or disapproval of a right-of-way document, waiver 
of a requirement for right-of-way grant or approval (including but not 
limited to waivers of fair market value and valuation), cancellation of 
a right-of-way, or an appeal. Applicants may inquire at either the BIA 
office or the tribal office to determine whether the tribe has compacted 
or contracted to administer realty functions.



Sec.  169.9  What laws apply to rights-of-way approved under this part?

    In addition to the regulations in this part, rights-of-way approved 
under this part:
    (a) Are subject to all applicable Federal laws;
    (b) Are subject to tribal law; except to the extent that those 
tribal laws are inconsistent with applicable Federal law; and
    (c) Are generally not subject to State law or the law of a political 
subdivision thereof.



Sec.  169.10  What is the effect of a right-of-way on a tribe's jurisdiction 
over the underlying parcel?

    A right-of-way is a non-possessory interest in land, and title does 
not pass to the grantee. The Secretary's grant of a right-of-way will 
clarify that it does not diminish to any extent:
    (a) The Indian tribe's jurisdiction over the land subject to, and 
any person or activity within, the right-of-way;
    (b) The power of the Indian tribe to tax the land, any improvements 
on the land, or any person or activity within, the right-of-way;
    (c) The Indian tribe's authority to enforce tribal law of general or 
particular application on the land subject to and within the right-of-
way, as if there were no grant of right-of-way;
    (d) The Indian tribe's inherent sovereign power to exercise civil 
jurisdiction over non-members on Indian land; or
    (e) The character of the land subject to the right-of-way as Indian 
country under 18 U.S.C. 1151.



Sec.  169.11  What taxes apply to rights-of-way approved under this part?

    (a) Subject only to applicable Federal law:
    (1) Permanent improvements in a right-of-way, without regard to 
ownership of those improvements, are not subject to any fee, tax, 
assessment, levy, or other charge imposed by any State or political 
subdivision of a State;
    (2) Activities under a right-of-way grant are not subject to any 
fee, tax, assessment, levy, or other charge (e.g., business use, 
privilege, public utility, excise, gross revenue taxes) imposed by any 
State or political subdivision of a State; and
    (3) The right-of-way interest is not subject to any fee, tax, 
assessment, levy, or other charge imposed by any State or political 
subdivision of a State.
    (b) Improvements, activities, and right-of-way interests may be 
subject to taxation by the Indian tribe with jurisdiction.



Sec.  169.12  How does BIA provide notice to the parties to a right-of-way?

    When this part requires BIA to notify the parties of our intent to 
grant a right-of-way under Sec.  169.107(b) or our determination to 
approve or disapprove a right-of-way document, and to provide any right 
of appeal:
    (a) For rights-of-way over or across tribal land, we will notify the 
applicant and the tribe by first class U.S. mail or, upon request, 
electronic mail; and
    (b) For rights-of-way over or across individually owned Indian land, 
we will notify the applicant and individual Indian landowners by first 
class U.S.

[[Page 638]]

mail or, upon request, electronic mail. If the individually owned land 
is located within a tribe's jurisdiction, we will also notify the tribe 
by first class U.S. mail or, upon request, electronic mail.



Sec.  169.13  May decisions under this part be appealed?

    (a) Appeals from BIA decisions under this part may be taken under 
part 2 of this chapter, except our decision to disapprove a right-of-way 
grant or any other right-of-way document may be appealed only by the 
applicant or an Indian landowner of the tract over or across which the 
right-of-way was proposed.
    (b) For purposes of appeals from BIA decisions under this part, 
``interested party'' is defined as any person whose land is subject to 
the right-of-way or located adjacent to or in close proximity to the 
right-of-way whose own direct economic interest is adversely affected by 
an action or decision.



Sec.  169.14  How does the Paperwork Reduction Act affect this part?

    The collections of information in this part have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-0181. Response is required to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays a 
currently valid OMB Control Number.



                    Subpart B_Service Line Agreements



Sec.  169.51  Is a right-of-way required for service lines?

    Service lines generally branch off from facilities for which a 
right-of-way must be obtained. A service line is a utility line running 
from a main line, transmission line, or distribution line that is used 
only for supplying telephone, water, electricity, gas, internet service, 
or other utility service to a house, business, or other structure. In 
the case of a power line, a service line is limited to a voltage of 14.5 
kv or less, or a voltage of 34.5 kv or less if serving irrigation pumps 
and commercial and industrial uses. To obtain access to Indian land for 
service lines, the right-of-way grantee must file a service line 
agreement meeting the requirements of this subpart with BIA.



Sec.  169.52  What is a service line agreement?

    Service line agreements are agreements signed by a utility provider 
and landowners for the purpose of providing limited access to supply the 
owners (or authorized occupants or users) of one tract of tribal or 
individually owned Indian land with utilities for use by such owners (or 
occupants or users) on the premises.



Sec.  169.53  What should a service line agreement address?

    A service line agreement should address what utility services the 
provider will supply, to whom, and other appropriate details. The 
service line agreement should also address the mitigation of any damages 
incurred during construction and the restoration (or reclamation, if 
agreed to by the owners or authorized occupants or users) of the 
premises at the termination of the agreement.



Sec.  169.54  What are the consent requirements for service line agreements?

    (a) Before the utility provider may begin any work to construct 
service lines across tribal land, the utility provider and the tribe (or 
the legally authorized occupants or users of the tribal land and upon 
request, the tribe) must execute a service line agreement.
    (b) Before the utility provider may begin any work to construct 
service lines across individually owned land, the utility provider and 
the owners (or the legally authorized occupants or users) must execute a 
service line agreement.



Sec.  169.55  Is a valuation required for service line agreements?

    We do not require a valuation for service line agreements.



Sec.  169.56  Must I file service line agreements with the BIA?

    The parties must file an executed copy of service line agreements, 
together with a plat or diagram, with us

[[Page 639]]

within 30 days after the date of execution for recording in the LTRO. 
The plat or diagram must show the boundary of the ownership parcel and 
point of connection of the service line with the distribution line. When 
the plat or diagram is placed on a separate sheet it must include the 
signatures of the parties.



                   Subpart C_Obtaining a Right-of-Way

                               Application



Sec.  169.101  How do I obtain a right-of-way across tribal 
or individually owned Indian land or BIA land?

    (a) To obtain a right-of-way across tribal or individually owned 
Indian land or BIA land, you must submit a complete application to the 
BIA office with jurisdiction over the land covered by the right-of-way.
    (b) If you must obtain access to Indian land to prepare information 
required by the application (e.g., to survey), you must obtain the 
consent of the Indian landowners, but our approval to access is not 
required. Upon written request, we will provide you with the names, 
addresses, and percentage of ownership of individual Indian landowners, 
to allow you to obtain the landowners' consent to survey.
    (c) If the BIA will be granting the right-of-way across Indian land 
under Sec.  169.107(b), then the BIA may grant permission to access the 
land.



Sec.  169.102  What must an application for a right-of-way include?

    (a) An application for a right-of-way must identify:
    (1) The applicant;
    (2) The tract(s) or parcel(s) affected by the right-of-way;
    (3) The general location of the right-of-way;
    (4) The purpose of the right-of-way;
    (5) The duration of the right-of-way: and
    (6) The ownership of permanent improvements associated with the 
right-of-way and the responsibility for constructing, operating, 
maintaining, and managing permanent improvements under Sec.  169.105.
    (b) The following must be submitted with the application:
    (1) An accurate legal description of the right-of-way, its 
boundaries, and parcels associated with the right-of-way;
    (2) A map of definite location of the right-of-way (this requirement 
does not apply to easements covering the entire tract of land);
    (3) Bond(s), insurance, and/or other security meeting the 
requirements of Sec.  169.103;
    (4) Record that notice of the right-of-way was provided to all 
Indian landowners;
    (5) Record of consent for the right-of-way meeting the requirements 
of Sec.  169.107, or a statement requesting a right-of-way without 
consent under Sec.  169.107(b);
    (6) If applicable, a valuation meeting the requirements of Sec.  
169.114;
    (7) If the applicant is a corporation, limited liability company, 
partnership, joint venture, or other legal entity, except a tribal 
entity, information such as organizational documents, certificates, 
filing records, and resolutions, demonstrating that:
    (i) The representative has authority to execute the application;
    (ii) The right-of-way will be enforceable against the applicant; and
    (iii) The legal entity is in good standing and authorized to conduct 
business in the jurisdiction where the land is located;
    (8) Environmental and archaeological reports, surveys, and site 
assessments, as needed to facilitate compliance with applicable Federal 
and tribal environmental and land use requirements; and
    (9) A statement from the appropriate tribal authority that the 
proposed use is in conformance with applicable tribal law, if required 
by the tribe.
    (c) There is no standard application form.



Sec.  169.103  What bonds, insurance, or other security 
must accompany the application?

    (a) You must include payment of bonds, insurance, or alternative 
forms of security with your application for a right-of-way in amounts 
that cover:

[[Page 640]]

    (1) The highest annual rental specified in the grant, unless 
compensation is a one-time payment;
    (2) The estimated damages resulting from the construction of any 
permanent improvements;
    (3) The estimated damages and remediation costs from any potential 
release of contaminants, explosives, hazardous material or waste;
    (4) The operation and maintenance charges for any land located 
within an irrigation project;
    (5) The restoration of the premises to their condition at the start 
of the right-of-way or reclamation to some other specified condition if 
agreed to by the landowners.
    (b) The bond or other security must be deposited with us and made 
payable only to us, and may not be modified without our approval, except 
for tribal land in which case the bond or security may be deposited with 
and made payable to the tribe, and may not be modified without the 
approval of the tribe. Any insurance must identify both the Indian 
landowners and the United States as additional insured parties.
    (c) The grant will specify the conditions under which we may adjust 
the bond, insurance, or security requirements to reflect changing 
conditions, including consultation with the tribal landowner for tribal 
land before the adjustment.
    (d) We may require that the surety provide any supporting documents 
needed to show that the bond, insurance, or alternative form of security 
will be enforceable, and that the surety will be able to perform the 
guaranteed obligations.
    (e) The bond, insurance, or other security instrument must require 
the surety to provide notice to us, and the tribe for tribal land, at 
least 60 days before canceling a bond, insurance, or other security. 
This will allow us to notify the grantee of its obligation to provide a 
substitute bond, insurance, or other security before the cancellation 
date. Failure to provide a substitute bond, insurance or security is a 
violation of the right-of-way.
    (f) We may waive the requirement for a bond, insurance, or 
alternative form of security:
    (1) For individually owned Indian land, if the Indian landowners of 
the majority of the interests request it and we determine, in writing, 
that a waiver is in the Indian landowners' best interest considering the 
purpose of and risks associated with the right-of-way, or if the grantee 
is a utility cooperative and is providing a direct benefit to the Indian 
land or is a tribal utility.
    (2) For tribal land, deferring, to the maximum extent possible, to 
the tribe's determination that a waiver of a bond, insurance or 
alternative form of security is in its best interest.
    (g) We will accept a bond only in one of the following forms:
    (1) Certificates of deposit issued by a federally insured financial 
institution authorized to do business in the United States;
    (2) Irrevocable letters of credit issued by a federally insured 
financial institution authorized to do business in the United States;
    (3) Negotiable Treasury securities; or
    (4) Surety bonds issued by a company approved by the U.S. Department 
of the Treasury.
    (h) We may accept an alternative form of security approved by us 
that provides adequate protection for the Indian landowners and us, 
including but not limited to an escrow agreement or an assigned savings 
account.
    (i) All forms of bonds or alternative security must, if applicable:
    (1) State on their face that BIA approval is required for 
redemption;
    (2) Be accompanied by a statement granting full authority to BIA to 
make an immediate claim upon or sell them if the grantee violates the 
terms of the right-of-way grant;
    (3) Be irrevocable during the term of the bond or alternative 
security; and
    (4) Be automatically renewable during the term of the right-of-way.
    (j) We will not accept cash bonds.



Sec.  169.104  What is the release process for a bond 
or alternative form of security?

    Upon satisfaction of the requirements for which the bond was 
security, or upon expiration, termination, or cancellation of the right-
of-way, the

[[Page 641]]

grantee may ask BIA in writing to release all or part of the bond or 
alternative form of security and release the grantee from the obligation 
to maintain insurance. Upon receiving the grantee's request, BIA will:
    (a) Confirm with the tribe, for tribal land or, where feasible, with 
the Indian landowners for individually owned Indian land, that the 
grantee has complied with all applicable grant obligations; and
    (b) Release all or part of the bond or alternative form of security 
to the grantee, unless we determine that the bond or security must be 
redeemed to fulfill the contractual obligations.



Sec.  169.105  What requirements for due diligence must 
a right-of-way grant include?

    (a) If permanent improvements are to be constructed, the right-of-
way grant must include due diligence requirements that require the 
grantee to complete construction of any permanent improvements within 
the schedule specified in the right-of-way grant or general schedule of 
construction, and a process for changing the schedule by mutual consent 
of the parties. If construction does not occur, or is not expected to be 
completed, within the time period specified in the grant, the grantee 
must provide the Indian landowners and BIA with an explanation of good 
cause as to the nature of any delay, the anticipated date of 
construction of facilities, and evidence of progress toward commencement 
of construction.
    (b) Failure of the grantee to comply with the due diligence 
requirements of the grant is a violation of the grant and may lead to 
cancellation of the right-of-way under Sec.  169.405 or Sec.  169.408.
    (c) BIA may waive the requirements in this section if we determine, 
in writing, that a waiver is in the best interest of the Indian 
landowners.

                          Consent Requirements



Sec.  169.106  How does an applicant identify and contact individual 
Indian landowners to negotiate a right-of-way?

    (a) Applicants may submit a written request to us to obtain the 
following information. The request must specify that it is for the 
purpose of negotiating a right-of-way:
    (1) Names and addresses of the individual Indian landowners or their 
representatives;
    (2) Information on the location of the parcel; and
    (3) The percentage of undivided interest owned by each individual 
Indian landowner.
    (b) We may assist applicants in contacting the individual Indian 
landowners or their representatives for the purpose of negotiating a 
right-of-way, upon request.
    (c) We will attempt to assist individual Indian landowners in right-
of-way negotiations, upon their request.



Sec.  169.107  Must I obtain tribal or individual Indian landowner consent 
for a right-of-way across Indian land?

    (a) For a right-of-way across tribal land, the applicant must obtain 
tribal consent, in the form of a tribal authorization and a written 
agreement with the tribe, if the tribe so requires, to a grant of right-
of-way across tribal land. The consent document may impose restrictions 
or conditions; any restrictions or conditions automatically become 
conditions and restrictions in the grant.
    (b) For a right-of-way across individually owned Indian land, the 
applicant must notify all individual Indian landowners and, except as 
provided in paragraph (b)(1) of this section, must obtain written 
consent from the owners of the majority interest in each tract affected 
by the grant of right-of-way.
    (1) We may issue the grant of right-of-way without the consent of 
any of the individual Indian owners if all of the following conditions 
are met:
    (i) The owners of interests in the land are so numerous that it 
would be impracticable to obtain consent as defined in paragraph (c) of 
this section;
    (ii) We determine the grant will cause no substantial injury to the 
land or any landowner, based on factors including, but not limited to, 
the reasonableness of the term of the grant, the amount of acreage 
involved in the grant, the disturbance to land that will result from the 
grant, the type of activity to be conducted under the grant,

[[Page 642]]

the potential for environmental or safety impacts resulting from the 
grant, and any objections raised by landowners;
    (iii) We determine that all of the landowners will be adequately 
compensated for consideration and any damages that may arise from a 
grant of right-of-way; and
    (iv) We provide notice of our intent to issue the grant of right-of-
way to all of the owners at least 60 days prior to the date of the grant 
using the procedures in Sec.  169.12, and provide landowners with 30 
days to object.
    (2) For the purposes of this section, the owners of interests in the 
land are so numerous that it would be impracticable to obtain consent, 
if there are 50 or more co-owners of undivided trust or restricted 
interests.
    (3) Successors are bound by consent granted by their predecessors-
in-interest.
    (c) We will determine the number of owners of, and undivided 
interests in, a fractionated tract of Indian land, for the purposes of 
calculating the requisite consent based on our records on the date on 
which the application is submitted to us.



Sec.  169.108  Who is authorized to consent to a right-of-way?

    (a) Indian tribes, adult Indian landowners, and emancipated minors, 
may consent to a right-of-way over or across their land, including 
undivided interests in fractionated tracts.
    (b) The following individuals or entities may consent on behalf of 
an individual Indian landowner:
    (1) An adult with legal custody acting on behalf of his or her minor 
children;
    (2) A guardian, conservator, or other fiduciary appointed by a court 
of competent jurisdiction to act on behalf of an individual Indian 
landowner;
    (3) Any person who is authorized to practice before the Department 
of the Interior under 43 CFR 1.3(b) and has been retained by the Indian 
landowner for this purpose;
    (4) BIA, under the circumstances in paragraph (c) of this section; 
or
    (5) An adult or legal entity who has been given a written power of 
attorney that:
    (i) Meets all of the formal requirements of any applicable law under 
Sec.  169.9;
    (ii) Identifies the attorney-in-fact; and
    (iii) Describes the scope of the powers granted, to include granting 
rights-of-way on land or generally conveying or encumbering interests in 
Indian land, and any limits on those powers.
    (c) BIA may give written consent to a right-of-way on behalf of an 
individual Indian landowner, as long as we determine that the grant will 
cause no substantial injury to the land or any landowner, based on 
factors including, but not limited to, the amount of acreage involved in 
the grant, the disturbance to land that will result from the grant, the 
type of activity to be conducted under the grant, the potential for 
environmental or safety impacts resulting from the grant, and any 
objections raised by landowners. BIA's consent must be counted in the 
majority interest under Sec.  169.107, on behalf of:
    (1) An individual Indian landowner, if the owner is deceased, and 
the heirs to, or devisees of, the interest of the deceased owner have 
not been determined;
    (2) An individual Indian landowner whose whereabouts are unknown to 
us, after we make a reasonable attempt to locate the individual;
    (3) An individual Indian landowner who is found to be non compos 
mentis or determined to be an adult in need of assistance who does not 
have a guardian duly appointed by a court of competent jurisdiction, or 
an individual under legal disability as defined in part 115 of this 
chapter;
    (4) An individual Indian landowner who is an orphaned minor and who 
does not have a guardian duly appointed by a court of competent 
jurisdiction; and
    (5) An individual Indian landowner who has given us a written power 
of attorney to consent to a right-of-way over or across their land.



Sec.  169.109  Whose consent do I need for a right-of-way when there is 
a life estate on the tract?

    If there is a life estate on the tract that would be subject to the 
right-of-way, the applicant must get the consent of both the life tenant 
and the

[[Page 643]]

owners of the majority of the remainder interest known at the time of 
the application.

                        Compensation Requirements



Sec.  169.110  How much monetary compensation must be paid for a right-of-way 
over or across tribal land?

    (a) A right-of-way over or across tribal land may allow for any 
payment amount negotiated by the tribe, and we will defer to the tribe 
and not require a valuation if the tribe submits a tribal authorization 
expressly stating that it:
    (1) Has agreed upon compensation satisfactory to the tribe;
    (2) Waives valuation; and
    (3) Has determined that accepting such agreed-upon compensation and 
waiving valuation is in its best interest.
    (b) The tribe may request, in writing, that we determine fair market 
value, in which case we will use a valuation in accordance with Sec.  
169.114. After providing the tribe with the fair market value, we will 
defer to a tribe's decision to allow for any compensation negotiated by 
the tribe.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, we will require that the grantee pay fair market value based on 
a valuation in accordance with Sec.  169.114.



Sec.  169.111  Must a right-of-way grant for tribal land provide 
for compensation reviews or adjustments?

    For a right-of-way grant over or across tribal land, no periodic 
review of the adequacy of compensation or adjustment is required, unless 
the tribe negotiates for reviews or adjustments.



Sec.  169.112  How much monetary compensation must be paid for a right-of-way 
over or across individually owned Indian land?

    (a) A right-of-way over or across individually owned Indian land 
must require compensation of not less than fair market value, unless 
paragraph (b) or (c) of this section permit a lesser amount. 
Compensation may also include additional fees, including but not limited 
to throughput fees, severance damages, franchise fees, avoidance value, 
bonuses, or other factors. Compensation may be based on a fixed amount, 
a percentage of the projected income, or some other method. The grant 
must establish how the fixed amount, percentage, or combination will be 
calculated and the frequency at which the payments will be made.
    (b) We may approve a right-of-way over or across individually owned 
Indian land that provides for nominal compensation, or compensation less 
than a fair market value, if:
    (1) The grantee is a utility cooperative and is providing a direct 
benefit to the Indian land; or
    (2) The grantee is a tribal utility; or
    (3) The individual Indian landowners execute a written waiver of the 
right to receive fair market value and we determine it is in the 
individual Indian landowners' best interest, based on factors including, 
but not limited to:
    (i) The grantee is a member of the immediate family, as defined in 
Sec.  169.2, of an individual Indian landowner;
    (ii) The grantee is a co-owner in the affected tract;
    (iii) A special relationship or circumstances exist that we believe 
warrant approval of the right-of-way; or
    (iv) We have waived the requirement for a valuation under paragraph 
(d) of this section.
    (c) We will require a valuation to determine fair market value, 
unless:
    (1) 100 percent of the individual Indian landowners submit to us a 
written request to waive the valuation requirement; or
    (2) We waive the requirement under paragraph (d) of this section.
    (d) The grant must provide that the non-consenting individual Indian 
landowners, and those on whose behalf we have consented under Sec.  
169.108(c), or granted the right-of-way without consent under Sec.  
169.107(b), receive fair market value, as determined by a valuation, 
unless:
    (1) The grantee is a utility cooperative and is providing a direct 
benefit to the Indian land; or
    (2) The grantee is a tribal utility; or
    (3) We waive the requirement because the tribe or grantee will 
construct infrastructure improvements benefitting the individual Indian 
landowners, and we determine in writing that the waiver is in the best 
interest of all the landowners.

[[Page 644]]



Sec.  169.113  Must a right-of-way grant for individually owned Indian land 
provide for compensation reviews or adjustments?

    (a) For a right-of-way grant of individually owned Indian land, a 
review of the adequacy of compensation must occur at least every fifth 
year, in the manner specified in the grant unless:
    (1) Payment is a one-time lump sum;
    (2) The term of the right-of-way grant is 5 years or less;
    (3) The grant provides for automatic adjustments; or
    (4) We determine it is in the best interest of the Indian landowners 
not to require a review or automatic adjustment based on circumstances 
including, but not limited to, the following:
    (i) The right-of-way grant provides for payment of less than fair 
market value;
    (ii) The right-of-way grant provides for most or all of the 
compensation to be paid during the first 5 years of the grant term or 
before the date the review would be conducted; or
    (iii) The right-of-way grant provides for graduated rent or non-
monetary or varying types of compensation.
    (b) The grant must specify:
    (1) When adjustments take effect;
    (2) Who can make adjustments;
    (3) What the adjustments are based on; and
    (4) How to resolve disputes arising from the adjustments.
    (c) When a review results in the need for adjustment of 
compensation, the Indian landowners must consent to the adjustment in 
accordance with Sec.  169.107, unless the grant provides otherwise.



Sec.  169.114  How will BIA determine fair market value for a right-of-way?

    (a) We will use a market analysis, appraisal, or other appropriate 
valuation method to determine the fair market value before we grant a 
right-of-way over or across individually owned Indian land. We will also 
use a market analysis, appraisal, or other appropriate valuation method 
to determine, at the request of the tribe, the fair market value of 
tribal land.
    (b) We will either:
    (1) Prepare, or have prepared, a market analysis, appraisal, or 
other appropriate valuation method; or
    (2) Approve use of a market analysis, appraisal, or other 
appropriate valuation method from the Indian landowners or grantee.
    (c) We will use or approve use of a market analysis, appraisal, or 
other appropriate valuation method only if it:
    (1) Has been prepared in accordance with USPAP or a valuation method 
developed by the Secretary under 25 U.S.C. 2214 and complies with 
Departmental policies regarding appraisals, including third-party 
appraisals; or
    (2) Has been prepared by another Federal agency.



Sec.  169.115  When are monetary compensation payments due 
under a right-of-way?

    Compensation for a right-of-way may be a one-time, lump sum payment, 
or may be paid in increments (for example, annually).
    (a) If compensation is a one-time, lump sum payment, the grantee 
must make the payment by the date we grant the right-of-way, unless 
stated otherwise in the grant.
    (b) If compensation is to be paid in increments, the right-of-way 
grant must specify the dates on which all payments are due. Payments are 
due at the time specified in the grant, regardless of whether the 
grantee receives an advance billing or other notice that a payment is 
due. Increments may not be more frequent than quarterly if payments are 
made to us on the Indian landowners' behalf.



Sec.  169.116  Must a right-of-way specify who receives 
monetary compensation payments?

    (a) A right-of-way grant must specify whether the grantee will make 
payments directly to the Indian landowners (direct pay) or to us on 
their behalf.
    (b) The grantee may make payments directly to the tribe if the tribe 
so chooses. The grantee may make payments directly to the Indian 
landowners if:
    (1) The Indian landowners' trust accounts are unencumbered accounts;
    (2) There are 10 or fewer beneficial owners; and
    (3) One hundred percent of the beneficial owners (including those on 
whose

[[Page 645]]

behalf we have consented) agree to receive payment directly from the 
grantee at the start of the right-of-way.
    (c) If the right-of-way document provides that the grantee will 
directly pay the Indian landowners, then:
    (1) The right-of-way document must include provisions for proof of 
payment upon our request.
    (2) When we consent on behalf of an Indian landowner, the grantee 
must make payment to us on behalf of that landowner.
    (3) The grantee must send direct payments to the parties and 
addresses specified in the right-of-way, unless the grantee receives 
notice of a change of ownership or address.
    (4) Unless the right-of-way document provides otherwise, payments 
may not be made payable directly to anyone other than the Indian 
landowners.
    (5) Direct payments must continue through the duration of the right-
of-way, except that:
    (i) The grantee must make all Indian landowners' payments to us if 
100 percent of the Indian landowners agree to suspend direct pay and 
provide us with documentation of their agreement; and
    (ii) The grantee must make an individual Indian landowner's payment 
to us if that individual Indian landowner dies, is declared non compos 
mentis, owes a debt resulting in an encumbered account, or his or her 
whereabouts become unknown.



Sec.  169.117  What form of monetary compensation is acceptable 
under a right-of-way?

    (a) If payments are made to us on behalf of the Indian landowners, 
our preferred method of payment is electronic funds transfer payments. 
We will also accept:
    (1) Money orders;
    (2) Personal checks;
    (3) Certified checks; or
    (4) Cashier's checks.
    (b) We will not accept cash or foreign currency.
    (c) We will accept third-party checks only from financial 
institutions or Federal agencies.
    (d) The grant of right-of-way will specify the payment method if 
payments are made by direct pay.



Sec.  169.118  May the right-of-way provide for non-monetary 
or varying types of compensation?

    (a) A right-of-way grant may provide for alternative forms of 
compensation and varying types of compensation, subject to the 
conditions in paragraphs (b) and (c) of this section:
    (1) Alternative forms of compensation may include but are not 
limited to, in-kind consideration and payments based on throughput or 
percentage of income; or
    (2) Varying types of compensation may include but are not limited to 
different types of payments at specific stages during the life of the 
right-of-way grant, such as fixed annual payments during construction, 
payments based on income during an operational period, and bonuses.
    (b) For tribal land, we will defer to the tribe's determination that 
the compensation under paragraph (a) of this section is in its best 
interest, if the tribe submits a signed certification or tribal 
authorization stating that it has determined the alternative form of 
compensation or varying type of compensation to be in its best interest.
    (c) For individually owned land, we may grant a right-of-way that 
provides for an alternative form of compensation or varying type of 
compensation if we determine that it is in the best interest of the 
Indian landowners.



Sec.  169.119  Will BIA notify a grantee when a payment is due for 
a right-of-way?

    Upon request of the Indian landowners, we may issue invoices to a 
grantee in advance of the dates on which payments are due under the 
right-of-way. The grantee's obligation to make these payments in a 
timely manner will not be excused if invoices are not issued, delivered, 
or received.



Sec.  169.120  What other types of payments are required for a right-of-way?

    (a) The grantee may be required to pay additional fees, taxes, and 
assessments associated with the application for use of the land or use 
of the land, as determined by entities having jurisdiction, except as 
provided in Sec.  169.11. The

[[Page 646]]

grantee must pay these amounts to the appropriate office, as applicable.
    (b) In addition to, or as part of, the compensation for a right-of-
way under Sec. Sec.  169.110 and 169.112 and the payments provided for 
in paragraph (a) of this section, the applicant for a right-of-way will 
be required to pay for all damages to the land, such as those incident 
to the construction or maintenance of the facility for which the right-
of-way is granted.



Sec.  169.121  How will compensation be distributed among the life tenants 
and owners of the remainder interests?

    If a will created the life estate and specifies how the compensation 
will be distributed among the life tenants and owners of the remainder 
interests, those terms will establish the distribution. Otherwise:
    (a) The owners of the remainder interests and the life tenant may 
enter into a right-of-way or other written agreement approved by the 
Secretary providing for the distribution of rent monies under the right-
of-way; or
    (b) If the owners of the remainder interests and life tenant did not 
enter into an agreement for distribution, the life tenant will receive 
payment in accordance with the distribution and calculation scheme set 
forth in part 179 of this chapter.



Sec.  169.122  Who does the grantee pay if there is a life estate on the tract?

    The grantee must pay compensation directly to the life tenant under 
the terms of the right-of-way unless the whereabouts of the life tenant 
are unknown, in which case we may collect compensation on behalf of the 
life tenant.

                         Grants of Rights-of-Way



Sec.  169.123  What is the process for BIA to grant a right-of-way?

    (a) Before we grant a right-of-way, we must determine that the 
right-of-way is in the best interest of the Indian landowners. In making 
that determination, we will:
    (1) Review the right-of-way application and supporting documents;
    (2) Identify potential environmental impacts and adverse impacts, 
and ensure compliance with all applicable Federal environmental, land 
use, historic preservation, and cultural resource laws and ordinances; 
and
    (3) Require any modifications or mitigation measures necessary to 
satisfy any requirements including any other Federal or tribal land use 
requirements.
    (b) Upon receiving a right-of-way application, we will promptly 
notify the applicant whether the package is complete. A complete package 
includes all of the information and supporting documents required under 
this subpart, including but not limited to, an accurate legal 
description for each affected tract, documentation of landowner consent, 
NEPA review documentation and valuation documentation, where applicable.
    (1) If the right-of-way application package is not complete, our 
letter will identify the missing information or documents required for a 
complete package. If we do not respond to the submission of an 
application package, the parties may take action under Sec.  169.304.
    (2) If the right-of-way application package is complete, we will 
notify the applicant of the date of our receipt of the complete package. 
Within 60 days of our receipt of a complete package, we will grant or 
deny the right-of-way, return the package for revision, or inform the 
applicant in writing that we need additional review time. If we inform 
the applicant in writing that we need additional time, then:
    (i) Our letter informing the applicant that we need additional 
review time must identify our initial concerns and invite the applicant 
to respond within 15 days of the date of the letter; and
    (ii) We will issue a written determination granting or denying the 
right-of-way within 30 days from sending the letter informing the 
applicant that we need additional time.
    (c) If we do not meet the deadlines in this section, then the 
applicant may take appropriate action under Sec.  169.304.
    (d) We will provide any right-of-way denial and the basis for the 
determination, along with notification of any appeal rights under part 2 
of this chapter to the parties to the right-of-way. If the right-of-way 
is granted, we will

[[Page 647]]

provide a copy of the right-of-way to the tribal landowner and, upon 
written request, make copies available to the individual Indian 
landowners, and provide notice under Sec.  169.12.



Sec.  169.124  How will BIA determine whether to grant a right-of-way?

    Our decision to grant or deny a right-of-way will be in writing.
    (a) We will grant a right-of-way unless:
    (1) The requirements of this subpart have not been met, such as if 
the required landowner consent has not been obtained under Sec.  
169.107; or
    (2) We find a compelling reason to withhold the grant in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the right-of-way is in their best 
interest.
    (c) We may not unreasonably withhold our grant of a right-of-way.
    (d) We may grant one right-of-way for all of the tracts traversed by 
the right-of-way, or we may issue separate grants for one or more tracts 
traversed by the right-of-way.



Sec.  169.125  What will the grant of right-of-way contain?

    (a) The grant will incorporate the conditions or restrictions set 
out in the Indian landowners' consents.
    (b) The grant will address:
    (1) The use(s) the grant is authorizing;
    (2) Whether assignment of the right-of-way is permitted and, if so, 
whether additional consent is required for the assignment and whether 
any additional compensation is owed to the landowners;
    (3) Whether mortgaging of the right-of-way is permitted and, if so, 
whether additional consent is required for the mortgage and whether any 
additional compensation is owed to the landowners; and
    (4) Ownership of permanent improvements under Sec.  169.130.
    (c) The grant will state that:
    (1) The tribe maintains its existing jurisdiction over the land, 
activities, and persons within the right-of-way under Sec.  169.10 and 
reserves the right of the tribe to reasonable access to the lands 
subject to the grant to determine grantee's compliance with consent 
conditions or to protect public health and safety;
    (2) The grantee has no right to any of the products or resources of 
the land, including but not limited to, timber, forage, mineral, and 
animal resources, unless otherwise provided for in the grant;
    (3) BIA may treat any provision of a grant that violates Federal law 
as a violation of the grant; and
    (4) If historic properties, archeological resources, human remains, 
or other cultural items not previously reported are encountered during 
the course of any activity associated with this grant, all activity in 
the immediate vicinity of the properties, resources, remains, or items 
will cease and the grantee will contact BIA and the tribe with 
jurisdiction over the land to determine how to proceed and appropriate 
disposition.
    (5) The grantee must:
    (i) Construct and maintain improvements within the right-of-way in a 
professional manner consistent with industry standards;
    (ii) Pay promptly all damages and compensation, in addition to bond 
or alternative form of security made pursuant to Sec.  169.103, 
determined by the BIA to be due the landowners and authorized users and 
occupants of land as a result of the granting, construction, and 
maintenance of the right-of-way;
    (iii) Restore the land as nearly as may be possible to its original 
condition, upon the completion of construction, to the extent compatible 
with the purpose for which the right-of-way was granted, or reclaim the 
land if agreed to by the landowners;
    (iv) Clear and keep clear the land within the right-of-way, to the 
extent compatible with the purpose of the right-of-way, and dispose of 
all vegetative and other material cut, uprooted, or otherwise 
accumulated during the construction and maintenance of the project;
    (v) Comply with all applicable laws and obtain all required permits;
    (vi) Not commit waste;

[[Page 648]]

    (vii) Operate, repair and maintain improvements consistent with the 
right-of-way grant;
    (viii) Build and maintain necessary and suitable crossings for all 
roads and trails that intersect the improvements constructed, 
maintained, or operated under the right-of-way;
    (ix) Restore the land to its original condition, to the maximum 
extent reasonably possible, upon cancellation or termination of the 
right-of-way, or reclaim the land if agreed to by the landowners;
    (x) At all times keep the BIA, and the tribe for tribal land, 
informed of the grantee's address;
    (xi) Refrain from interfering with the landowner's use of the land, 
provided that the landowner's use of the land is not inconsistent with 
the right-of-way;
    (xii) Comply with due diligence requirements under Sec.  169.105; 
and
    (xiii) Notify the BIA, and the tribe for tribal land, if it files 
for bankruptcy or is placed in receivership.
    (6) Unless the grantee would be prohibited by law from doing so, the 
grantee must also:
    (i) Hold the United States and the Indian landowners harmless from 
any loss, liability, or damages resulting from the applicant's use or 
occupation of the premises; and
    (ii) Indemnify the United States and the Indian landowners against 
all liabilities or costs relating to the use, handling, treatment, 
removal, storage, transportation, or disposal of hazardous materials, or 
release or discharge of any hazardous material from the premises that 
occurs during the term of the grant, regardless of fault, with the 
exception that the applicant is not required to indemnify the Indian 
landowners for liability or cost arising from the Indian landowners' 
negligence or willful misconduct.
    (d) The grant must attach or include by reference maps of definite 
location.



Sec.  169.126  May a right-of-way contain a preference consistent 
with tribal law for employment of tribal members?

    A grant of right-of-way over or across Indian land may include a 
provision, consistent with tribal law, requiring the grantee to give a 
preference to qualified tribal members, based on their political 
affiliation with the tribe.



Sec.  169.127  Is a new right-of-way grant required for a new use within 
or overlapping an existing right-of-way?

    (a) If you are the grantee, you may use all or a portion of an 
existing right-of-way for a use not specified in the original grant of 
the existing right-of-way only if it is within the same scope of the use 
specified in the original grant of the existing right-of-way.
    (1) If you propose to use all or a portion of an existing right-of-
way for a use not specified in the original grant of the existing right-
of-way and not within the same scope of the use specified in the 
original grant of the existing right-of-way, and the new use will not 
require any ground disturbance, you must request an amendment to the 
existing right-of-way grant.
    (2) If you propose to use all or a portion of an existing right-of-
way for a use not specified in the original grant of the existing right-
of-way and not within the same scope of the use specified in the 
original grant of the existing right-of-way, and the new use requires 
ground disturbance, you must request a new right-of-way.
    (b) If you are not the grantee:
    (1) You may use all or a portion of an existing right-of-way for a 
use specified in the original grant of the existing right-of-way or a 
use within the same scope of the use specified in the original grant of 
the existing right-of-way if the grantee obtains an assignment to 
authorize the new user; or
    (2) You may use all or a portion of an existing right-of-way for a 
use not specified in the original grant of the existing right-of-way and 
not within the same scope of use specified in the original grant of the 
existing right-of-way if you request a new right-of-way within or 
overlapping the existing right-of-way for the new use.
    (c) An example of a use within the same scope is a right-of-way for 
underground telephone line being used for an underground fiber optic 
line, and an example of a use that is not within the same scope is a 
right-of-way for a pipeline being used for a road or railroad.

[[Page 649]]



Sec.  169.128  When will BIA grant a right-of-way for a new use within 
or overlapping an existing right-of-way?

    We may grant a new right-of-way within or overlapping an existing 
right-of-way if it meets the following conditions:
    (a) The applicant follows the procedures and requirements in this 
part to obtain a new right-of-way.
    (b) The new right-of-way does not interfere with the use or purpose 
of the existing right-of-way and the applicant has obtained the consent 
of the existing right-of-way grantee. The existing right-of-way grantee 
may not unreasonably withhold consent.



Sec.  169.129  What is required if the location described in the original 
application and grant differs from the construction location?

    (a) If engineering or other complications prevented construction 
within the location identified in the original application and grant, 
and required a minor deviation from the location identified in the 
original application and grant, then we and the tribe, for tribal land, 
will determine whether the change in location requires one or more of 
the following:
    (1) An amended map of definite location;
    (2) Landowner consent;
    (3) A valuation or, with landowner consent, a recalculation of 
compensation;
    (4) Additional compensation or security; or
    (5) Other actions required to comply with applicable laws.
    (b) If BIA and the tribe, for tribal land, determine it is not a 
minor deviation in location, we may require a new right-of-way grant or 
amendment to the right-of-way grant.
    (c) If we grant a right-of-way for the new route or location, the 
applicant must execute instruments to extinguish, or amend, as 
appropriate, the right-of-way at the original location identified in the 
application.
    (d) We will transmit the instruments to extinguish or amend the 
right-of-way to the LTRO for recording.



Sec.  169.130  Must a right-of-way grant address ownership 
of permanent improvements?

    (a) A right-of-way grant must specify who will own any permanent 
improvements the grantee constructs during the grant term and may 
specify under what conditions, if any, permanent improvements the 
grantee constructs may be conveyed to the Indian landowners during the 
grant term. In addition, the grant may indicate whether each specific 
permanent improvement the grantee constructs will:
    (1) Remain on the premises, upon the expiration, cancellation, or 
termination of the grant, in a condition satisfactory to the Indian 
landowners, and become the property of the Indian landowners;
    (2) Be removed within a time period specified in the grant, at the 
grantee's expense, with the premises to be restored as closely as 
possible to their condition before construction of the permanent 
improvements; or
    (3) Be disposed of by other specified means.
    (b) A grant that requires the grantee to remove the permanent 
improvements must also provide the Indian landowners with an option to 
take possession of and title to the permanent improvements if the 
improvements are not removed within the specified time period.



    Subpart D_Duration, Renewals, Amendments, Assignments, Mortgages

                           Duration & Renewals



Sec.  169.201  How long may the duration of a right-of-way grant be?

    (a) All rights-of-way granted under this part are limited to the 
time periods stated in the grant.
    (b) For tribal land, we will defer to the tribe's determination that 
the right-of-way term is reasonable.
    (c) For individually owned Indian land, we will review the right-of-
way duration to ensure that it is reasonable, given the purpose of the 
right-of-way. We will generally consider a maximum duration of 20 years 
to be reasonable for the initial term for rights-of-way for oil and gas 
purposes and a

[[Page 650]]

maximum of 50 years, inclusive of the initial term and any renewals, to 
be reasonable for rights-of-way for all other purposes. We will consider 
a duration consistent with use to be reasonable for rights-of-way for 
conservation easements. We will consider durations different from these 
guidelines if a different duration would benefit the Indian landowners, 
is required by another Federal agency, or the tribe has negotiated for a 
different duration and the right-of-way crosses tribal land.



Sec.  169.202  Under what circumstances will a grant 
of right-of-way be renewed?

    A renewal is an extension of term of an existing right-of-way 
without any other change.
    (a) The grantee may request a renewal of an existing right-of-way 
grant and we will renew the grant as long as:
    (1) The initial term and renewal terms, together, do not exceed the 
maximum term determined to be reasonable under Sec.  169.201;
    (2) The existing right-of-way grant explicitly allows for automatic 
renewal or an option to renew and specifies compensation owed to the 
landowners upon renewal or how compensation will be determined;
    (3) The grantee provides us with a signed affidavit that there is no 
change in size, type, or location, of the right-of-way;
    (4) The initial term has not yet ended;
    (5) No uncured violation exists regarding the regulations in this 
part or the grant's conditions or restrictions; and
    (6) The grantee provides confirmation that landowner consent has 
been obtained, or if consent is not required because the original right-
of-way grant explicitly allows for renewal without the owners' consent, 
the grantee provides notice to the landowners of the renewal.
    (b) We will record any renewal of a right-of-way grant in the LTRO.
    (c) If the proposed renewal involves any change to the original 
grant or the original grant was silent as to renewals, the grantee must 
reapply for a new right-of-way, in accordance with Sec.  169.101, and we 
will handle the application for renewal as an original application for a 
right-of-way.



Sec.  169.203  May a right-of-way be renewed multiple times?

    There is no prohibition on renewing a right-of-way multiple times, 
unless the grant expressly prohibits multiple renewals, and subject to 
the duration limitations for individually owned land in Sec.  169.201. 
The provisions of Sec.  169.202 apply to each renewal.

                               Amendments



Sec.  169.204  May a grantee amend a right-of-way?

    (a) An amendment is required to change any provisions of a right-of-
way grant. If the change is a material change to the grant, we may 
require application for a new right-of-way instead.
    (b) A grantee may request that we amend a right-of-way to make an 
administrative modification (i.e., a modification that is clerical in 
nature, for example to correct the legal description) without meeting 
consent requirements, as long as the grantee provides landowners with 
written notice. For all other amendments, the grantee must meet the 
consent requirements in Sec.  169.107 and obtain our approval.



Sec.  169.205  What is the approval process for an amendment of a right-of-way?

    (a) When we receive an amendment for our approval, we will notify 
the grantee of the date we receive it. We have 30 days from receipt of 
the executed amendment, proof of required consents, and required 
documentation (including but not limited to a corrected legal 
description, if any, and NEPA compliance) to approve or disapprove the 
amendment. Our determination whether to approve the amendment will be in 
writing and will state the basis for our approval or disapproval.
    (b) If we need additional time to review, our letter informing the 
parties that we need additional time for review must identify our 
initial concerns and invite the parties to respond within 15 days of the 
date of the letter. We have 30 days from sending the letter informing 
the parties that we need additional

[[Page 651]]

time to approve or disapprove the amendment.
    (c) If we do not meet the deadline in paragraph (a) of this section, 
or paragraph (b) of this section if applicable, the grantee or Indian 
landowners may take appropriate action under Sec.  169.304.



Sec.  169.206  How will BIA decide whether to approve an amendment 
of a right-of-way?

    (a) We may disapprove a request for an amendment of a right-of-way 
only if at least one of the following is true:
    (1) The Indian landowners have not consented to the amendment under 
Sec.  169.107 and we have not consented on their behalf under Sec.  
169.108;
    (2) The grantee's sureties for the bonds or alternative securities 
have not consented;
    (3) The grantee is in violation of the right-of-way grant;
    (4) The requirements of this subpart have not been met; or
    (5) We find a compelling reason to withhold approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the amendment is in their best interest.
    (c) We may not unreasonably withhold approval of an amendment.

                               Assignments



Sec.  169.207  May a grantee assign a right-of-way?

    (a) A grantee may assign a right-of-way by:
    (1) Meeting the consent requirements in Sec.  169.107, unless the 
grant expressly allows for assignments without further consent; and
    (2) Either obtaining our approval, or meeting the conditions in 
paragraph (b) of this section.
    (b) A grantee may assign a right-of-way without BIA approval only 
if:
    (1) The original right-of-way grant expressly allows for assignment 
without BIA approval; and
    (2) The assignee and grantee provide a copy of the assignment and 
supporting documentation to BIA for recording in the LTRO within 30 days 
of the assignment.
    (c) Assignments that are the result of a corporate merger, 
acquisition, or transfer by operation of law are excluded from these 
requirements, except for the requirement to provide a copy of the 
assignment and supporting documentation to BIA for recording in the LTRO 
within 30 days and to the tribe for tribal land.



Sec.  169.208  What is the approval process for an assignment 
of a right-of-way?

    (a) When we receive an assignment for our approval, we will notify 
the grantee of the date we receive it. If our approval is required, we 
have 30 days from receipt of the executed assignment, proof of any 
required consents, and any required documentation to approve or 
disapprove the assignment. Our determination whether to approve the 
assignment will be in writing and will state the basis for our approval 
or disapproval.
    (b) If we do not meet the deadline in this section, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.



Sec.  169.209  How will BIA decide whether to approve an assignment 
of a right-of-way?

    (a) We may disapprove an assignment of a right-of-way only if at 
least one of the following is true:
    (1) The Indian landowners have not consented to the assignment under 
Sec.  169.107 and their consent is required;
    (2) Sufficient bonding and/or insurance are not in place;
    (3) The grantee is in violation of the right-of-way grant;
    (4) The assignee does not agree to be bound by the terms of the 
right-of-way grant;
    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the assignment is in their best interest.
    (c) We may not unreasonably withhold approval of an assignment.

[[Page 652]]

                                Mortgages



Sec.  169.210  May a grantee mortgage a right-of-way?

    A grantee may mortgage a right-of-way, if the grant expressly allows 
mortgaging. The grantee must meet the consent requirements in Sec.  
169.107, unless the grant expressly allows for mortgaging without 
consent, and must obtain our approval for the mortgage.



Sec.  169.211  What is the approval process for a mortgage of a right-of-way?

    (a) When we receive a right-of-way mortgage for our approval, we 
will notify the grantee of the date we receive it. We have 30 days from 
receipt of the executed mortgage, proof of required consents, and 
required documentation to approve or disapprove the mortgage. Our 
determination whether to approve the mortgage will be in writing and 
will state the basis for our approval or disapproval.
    (b) If we do not meet the deadline in this section, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.



Sec.  169.212  How will BIA decide whether to approve a mortgage 
of a right-of-way?

    (a) We may disapprove a right-of-way mortgage only if at least one 
of the following is true:
    (1) The Indian landowners have not consented;
    (2) The grantee's sureties for the bonds have not consented;
    (3) The requirements of this subpart have not been met; or
    (4) We find a compelling reason to withhold approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we may consider whether:
    (1) The mortgage proceeds would be used for purposes unrelated to 
the right-of-way purpose; and
    (2) The mortgage is limited to the right-of-way.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the mortgage is in their best interest.
    (d) We may not unreasonably withhold approval of a right-of-way 
mortgage.



                         Subpart E_Effectiveness



Sec.  169.301  When will a right-of-way document be effective?

    (a) A right-of-way document will be effective on the date we approve 
the right-of-way document, even if an appeal is filed under part 2 of 
this chapter.
    (b) The right-of-way document may specify a date on which the 
grantee's obligations are triggered. Such date may be before or after 
the approval date under paragraph (a) of this section.



Sec.  169.302  Must a right-of-way be recorded?

    (a) Any right-of-way document must be recorded in our LTRO with 
jurisdiction over the affected Indian land.
    (1) We will record the right-of-way document immediately following 
our approval or granting.
    (2) In the case of assignments that do not require our approval 
under Sec.  169.207(b), the parties must provide us with a copy of the 
assignment and we will record the assignment in the LTRO with 
jurisdiction over the affected Indian land.
    (b) The tribe must record right-of-way documents for the following 
types of rights-of-way in the LTRO with jurisdiction over the affected 
Indian lands, even though BIA approval is not required:
    (1) Grants on tribal land for a tribal utility under Sec.  169.4;
    (2) Grants on tribal land under a special act of Congress 
authorizing grants without our approval under certain conditions.



Sec.  169.303  What happens if BIA denies a right-of-way document?

    If we deny the right-of-way grant, renewal, amendment, assignment, 
or mortgage, we will notify the parties immediately and advise the 
landowners and the applicant of their right to appeal the decision under 
part 2 of this chapter.

[[Page 653]]



Sec.  169.304  What happens if BIA does not meet a deadline 
for issuing a decision on a right-of-way document?

    (a) If a Superintendent does not meet a deadline for granting or 
denying a right-of-way, renewal, amendment, assignment, or mortgage, the 
parties may file a written notice to compel action with the appropriate 
Regional Director.
    (b) The Regional Director has 15 days from receiving the notice to:
    (1) Grant or deny the right-of-way; or
    (2) Order the Superintendent to grant or deny the right-of-way 
within the time set out in the order.
    (c) Either party may file a written notice to compel action with the 
BIA Director if:
    (1) The Regional Director does not meet the deadline in paragraph 
(b) of this section;
    (2) The Superintendent does not grant or deny the right-of-way 
within the time set by the Regional Director under paragraph (b)(2) of 
this section; or
    (3) The initial decision on the right-of-way, renewal, amendment, 
assignment, or mortgage is with the Regional Director, and he or she 
does not meet the deadline for such decision.
    (d) The BIA Director has 15 days from receiving the notice to:
    (1) Grant or deny the right-of-way; or
    (2) Order the Regional Director or Superintendent to grant or deny 
the right-of-way within the time set out in the order.
    (e) If the Regional Director or Superintendent does not grant or 
deny the right-of-way within the time set out in the order under 
paragraph (d)(2) of this section, then the BIA Director must issue a 
decision within 15 days from the expiration of the time set out in the 
order.
    (f) The parties may file an appeal from our inaction to the Interior 
Board of Indian Appeals if the BIA Director does not meet the deadline 
in paragraph (d) or (e) of this section.
    (g) The provisions of 25 CFR 2.8 do not apply to the inaction of BIA 
officials with respect to a granting or denying a right-of-way, renewal, 
amendment, assignment, or mortgage under this subpart.



Sec.  169.305  Will BIA require an appeal bond for an appeal of a decision 
on a right-of-way document?

    (a) If a party appeals our decision on a right-of-way document, then 
the official to whom the appeal is made may require the appellant to 
post an appeal bond in accordance with part 2 of this chapter. We will 
not require an appeal bond if the tribe is a party to the appeal and 
requests a waiver of the appeal bond.
    (b) The appellant may not appeal the appeal bond decision. The 
appellant may, however, request that the official to whom the appeal is 
made reconsider the bond decision, based on extraordinary circumstances. 
Any reconsideration decision is final for the Department.



                  Subpart F_Compliance and Enforcement



Sec.  169.401  What is the purpose and scope of this subpart?

    This subpart describes the procedures we use to address compliance 
and enforcement related to rights-of-way on Indian land. Any 
abandonment, non-use, or violation of the right-of-way grant or right-
of-way document, including but not limited to encroachments beyond the 
defined boundaries, accidental, willful, and/or incidental trespass, 
unauthorized new construction, changes in use not permitted in the 
grant, and late or insufficient payment may result in enforcement 
actions including, but not limited to, cancellation of the grant.



Sec.  169.402  Who may investigate compliance with a right-of-way?

    (a) BIA may investigate compliance with a right-of-way.
    (1) If an Indian landowner notifies us that a specific abandonment, 
non-use, or violation has occurred, we will promptly initiate an 
appropriate investigation.
    (2) We may enter the Indian land subject to a right-of-way at any 
reasonable time, upon reasonable notice, and consistent with any notice 
requirements under applicable tribal law and applicable grant documents, 
to protect the interests of the Indian landowners and to determine if 
the grantee is in

[[Page 654]]

compliance with the requirements of the right-of-way.
    (b) The tribe with jurisdiction may investigate compliance 
consistent with tribal law.



Sec.  169.403  May a right-of-way provide for negotiated remedies?

    (a) The tribe and the grantee on tribal land may negotiate remedies 
for a violation, abandonment, or non-use. The negotiated remedies must 
be stated in the tribe's consent to the right-of-way grant, which BIA 
will then incorporate into the grant itself. The negotiated remedies may 
include, but are not limited to, the power to terminate the right-of-way 
grant. If the negotiated remedies provide one or both parties with the 
power to terminate the grant:
    (1) BIA approval of the termination is not required;
    (2) The termination is effective without BIA cancellation; and
    (3) The tribe must provide us with written notice of the termination 
so that we may record it in the LTRO.
    (b) The Indian landowners and the grantee to a right-of-way grant on 
individually owned Indian land may negotiate remedies, so long as the 
consent also specifies the manner in which those remedies may be 
exercised by or on behalf of the Indian landowners of the majority 
interest under Sec.  169.107. If the negotiated remedies provide one or 
both parties with the power to terminate the grant:
    (1) BIA concurrence with the termination is required to ensure that 
the Indian landowners of the applicable percentage of interests have 
consented; and
    (2) BIA will record the termination in the LTRO.
    (c) The parties must notify any surety of any violation that may 
result in termination and the termination of a right-of-way.
    (d) Negotiated remedies may apply in addition to, or instead of, the 
cancellation remedy available to us, as specified in the right-of-way 
grant. The landowners may request our assistance in enforcing negotiated 
remedies.
    (e) A right-of-way grant may provide that violations will be 
addressed by a tribe, and that disputes will be resolved by a tribal 
court, any other court of competent jurisdiction, or by a tribal 
governing body in the absence of a tribal court, or through an 
alternative dispute resolution method. We may not be bound by decisions 
made in such forums, but we will defer to ongoing actions or 
proceedings, as appropriate, in deciding whether to exercise any of the 
remedies available to us.



Sec.  169.404  What will BIA do about a violation of a right-of-way grant?

    (a) In the absence of actions or proceedings described in Sec.  
169.403 (negotiated remedies), or if it is not appropriate for us to 
defer to the actions or proceedings, we will follow the procedures in 
paragraphs (b) and (c) of this section. We will consult with the tribe 
for tribal land or, where feasible, communicate with Indian landowners 
for individually owned Indian land, and determine whether a violation 
has occurred.
    (b) If we determine there has been a violation of the conditions of 
a grant, other than a violation of payment provisions covered by 
paragraph (c) of this section, we will promptly send the grantee a 
written notice of violation.
    (1) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to Indian landowners for 
individually owned Indian land.
    (2) The notice of violation will advise the grantee that, within 10 
business days of the receipt of a notice of violation, the grantee must:
    (i) Cure the violation and notify us, and the tribe for tribal land, 
in writing that the violation has been cured;
    (ii) Dispute our determination that a violation has occurred; or
    (iii) Request additional time to cure the violation.
    (3) The notice of violation may order the grantee to cease 
operations under the right-of-way grant.
    (c) A grantee's failure to pay compensation in the time and manner 
required by a right-of-way grant is a violation, and we will issue a 
notice of violation in accordance with this paragraph.

[[Page 655]]

    (1) We will send the grantees a written notice of violation promptly 
following the date on which the payment was due.
    (2) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to the Indian landowners for 
individually owned Indian land.
    (3) The notice of violation will require the grantee to provide 
adequate proof of payment.
    (d) The grantee will continue to be responsible for the obligations 
in the grant until the grant expires, or is terminated or cancelled, as 
well as any reclamation or other obligations that survive the end of the 
grant.



Sec.  169.405  What will BIA do if the grantee does not cure a violation 
of a right-of-way grant on time?

    (a) If the grantee does not cure a violation of a right-of-way grant 
within the required time period, or provide adequate proof of payment as 
required in the notice of violation, we will consult with the tribe for 
tribal land or, where feasible, communicate with Indian landowners for 
individually owned Indian land, and determine whether:
    (1) We should cancel the grant;
    (2) The Indian landowners wish to invoke any remedies available to 
them under the grant;
    (3) We should invoke other remedies available under the grant or 
applicable law, including collection on any available bond or, for 
failure to pay compensation, referral of the debt to the Department of 
the Treasury for collection; or
    (4) The grantee should be granted additional time in which to cure 
the violation.
    (b) Following consultation with the tribe for tribal land or, where 
feasible, communication with Indian landowners for individually owned 
Indian land, we may take action to recover unpaid compensation and any 
associated late payment charges.
    (1) We need not cancel the grant or give any further notice to the 
grantee before taking action to recover unpaid compensation.
    (2) We may take action to recover any unpaid compensation even 
though we cancel the grant.
    (c) If we decide to cancel the grant, we will send the grantee a 
cancellation letter by certified mail, return receipt requested, within 
5 business days of our decision. We will send a copy of the cancellation 
letter to the tribe for tribal land, and will provide Indian landowners 
for individually owned Indian land with actual notice of the 
cancellation. The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) If applicable, notify the grantee of the amount of any unpaid 
compensation or late payment charges due under the grant;
    (3) Notify the grantee of the grantee's right to appeal under part 2 
of this chapter, including the possibility that the official to whom the 
appeal is made may require the grantee to post an appeal bond;
    (4) Order the grantee to vacate the property within the timeframe 
reflected in the termination terms of the grant, or within 31 days of 
the date of receipt of the cancellation letter, or within such longer 
period of time in extraordinary circumstances considering the protection 
of trust resources and the best interest of the Indian landowners, if an 
appeal is not filed by that time; and
    (5) Order the grantee to take any other action BIA deems necessary 
to protect the Indian land.
    (d) We may invoke any other remedies available to us under the 
grant, including collecting on any available bond, and the Indian 
landowners may pursue any available remedies under tribal law.
    (e) We will issue an appropriate instrument cancelling the right-of-
way and transmit it to the LTRO pursuant to 25 CFR part 150 for 
recording and filing.



Sec.  169.406  Will late payment charges, penalties, or special fees apply to 
delinquent payments due under a right-of-way grant?

    (a) Late payment charges and penalties will apply as specified in 
the grant. The failure to pay these amounts will be treated as a 
violation.
    (b) We may assess the following special fees to cover administrative 
costs incurred by the United States in the

[[Page 656]]

collection of the debt, if compensation is not paid in the time and 
manner required, in addition to the late payment charges that must be 
paid to the Indian landowners under the grant:

------------------------------------------------------------------------
        The grantee will pay . . .                    For . . .
------------------------------------------------------------------------
(1) $50.00................................  Any dishonored check.
(2) $15.00................................  Processing of each notice or
                                             demand letter.
(3) 18 percent of balance due.............  Treasury processing
                                             following referral for
                                             collection of delinquent
                                             debt.
------------------------------------------------------------------------



Sec.  169.407  How will payment rights relating to a right-of-way grant 
be allocated?

    The right-of-way grant may allocate rights to payment for any 
proceeds, trespass damages, condemnation awards, settlement funds, and 
other payments between the Indian landowners and the grantee. If not 
specified in the grant, applicable policy, order, award, judgment, or 
other document, the Indian landowners will be entitled to receive these 
payments.



Sec.  169.408  What is the process for cancelling a right-of-way for non-use 
or abandonment?

    (a) We may cancel, in whole or in part, any rights-of-way granted 
under this part 30 days after mailing written notice to the grantee at 
its latest address, for a nonuse of the right-of-way for a consecutive 
2-year period for the purpose for which it was granted. If the grantee 
fails to correct the basis for cancellation by the 30th day after we 
mailed the notice, we will issue an appropriate instrument cancelling 
the right-of-way and transmit it to the LTRO pursuant to part 150 of 
this chapter for recording and filing.
    (b) We may cancel, in whole or in part, any rights-of-way granted 
under this part immediately upon abandonment of the right-of-way by the 
grantee. We will issue an appropriate instrument cancelling the right-
of-way and transmit it to the LTRO pursuant to part 150 of this chapter 
for recording and filing.
    (c) The cancellation notice will notify the grantee of the grantee's 
right to appeal under part 2 of this chapter, including the possibility 
of that the official to whom the appeal is made will require the grantee 
to post an appeal bond.



Sec.  169.409  When will a cancellation of a right-of-way grant be effective?

    (a) A cancellation involving a right-of-way grant will not be 
effective until 31 days after the grantee receives a cancellation letter 
from us, or 41 days from the date we mailed the letter, whichever is 
earlier.
    (b) The cancellation decision will not be effective if an appeal is 
filed unless the cancellation is made immediately effective under part 2 
of this chapter. When a cancellation decision is not immediately 
effective, the grantee must continue to pay compensation and comply with 
the other terms of the grant.



Sec.  169.410  What will BIA do if a grantee remains in possession 
after a right-of-way expires or is terminated or cancelled?

    If a grantee remains in possession after the expiration, 
termination, or cancellation of a right-of-way, and is not accessing the 
land to perform reclamation or other remaining grant obligations, we may 
treat the unauthorized possession as a trespass under applicable law and 
will communicate with the Indian landowners in making the determination 
whether to treat the unauthorized possession as a trespass. Unless the 
parties have notified us in writing that they are engaged in good faith 
negotiations to renew or obtain a new right-of-way, we may take action 
to recover possession on behalf of the Indian landowners, and pursue any 
additional remedies available under applicable law, such as a forcible 
entry and detainer action. The holdover time will be charged against the 
new term.



Sec.  169.411  Will BIA appeal bond regulations apply to cancellation decisions 
involving right-of-way grants?

    (a) Except as provided in paragraph (b) of this section, the appeal 
bond provisions in part 2 of this chapter will govern appeals from 
right-of-way cancellation decisions.
    (b) The grantee may not appeal the appeal bond decision. The grantee 
may, however, request that the official to whom the appeal is made 
reconsider

[[Page 657]]

the appeal bond decision, based on extraordinary circumstances. Any 
reconsideration decision is final for the Department.



Sec.  169.412  When will BIA issue a decision on an appeal 
from a right-of-way decision?

    BIA will issue a decision on an appeal from a right-of-way decision 
within 60 days of receipt of all pleadings.



Sec.  169.413  What if an individual or entity takes possession of 
or uses Indian land or BIA land without a right-of-way 
or other proper authorization?

    If an individual or entity takes possession of, or uses, Indian land 
or BIA land without a right-of-way and a right-of-way is required, the 
unauthorized possession or use is a trespass. An unauthorized use within 
an existing right-of-way is also a trespass. We may take action to 
recover possession, including eviction, on behalf of the Indian 
landowners and pursue any additional remedies available under applicable 
law. The Indian landowners may pursue any available remedies under 
applicable law, including applicable tribal law.



Sec.  169.414  May BIA take emergency action if Indian land is threatened?

    (a) We may take appropriate emergency action if there is a natural 
disaster or if an individual or entity causes or threatens to cause 
immediate and significant harm to Indian land or BIA land. Emergency 
action may include judicial action seeking immediate cessation of the 
activity resulting in or threatening the harm.
    (b) We will make reasonable efforts to notify the individual Indian 
landowners before and after taking emergency action on Indian land. In 
all cases, we will notify the Indian landowners after taking emergency 
action on Indian land. We will provide written notification of our 
action to the Indian tribe exercising jurisdiction over the Indian land 
before and after taking emergency action on Indian land.



Sec.  169.415  How will BIA conduct compliance and enforcement when there is 
a life estate on the tract?

    (a) We may monitor the use of the land, as appropriate, and will 
enforce the terms of the right-of-way on behalf of the owners of the 
remainder interests, but will not be responsible for enforcing the 
right-of-way on behalf of the life tenant.
    (b) The life tenant may not cause or allow permanent injury to the 
land.



PART 170_TRIBAL TRANSPORTATION PROGRAM--Table of Contents



           Subpart A_Policies, Applicability, and Definitions

Sec.
170.1 What does this part do?
170.2 What policies govern the TTP?
170.3 When do other requirements apply to the TTP?
170.4 How does this part affect existing Tribal rights?
170.5 What definitions apply to this part?
170.6 Acronyms.
170.7 Information collection.

     Subpart B_Tribal Transportation Program Policy and Eligibility

                Consultation, Collaboration, Coordination

170.100 What do the terms ``consultation,'' ``collaboration,'' and 
          ``coordination'' mean?
170.101 What is the TTP consultation and coordination policy?
170.102 What goals and principles guide program implementation?
170.103 Is consultation with Tribal governments required before 
          obligating TTP funds for direct service activities?
170.104 Are funds available for consultation, collaboration, and 
          coordination activities?
170.105 When must State governments consult with Tribes?
170.106 Should planning organizations and local governments consult with 
          Tribes when planning for transportation projects?
170.107 Should Tribes and BIA consult with planning organizations and 
          local governments in developing projects?
170.108 How do the Secretaries prevent discrimination or adverse 
          impacts?
170.109 How can State and local governments prevent discrimination or 
          adverse impacts?
170.110 What if discrimination or adverse impacts occur?

[[Page 658]]

                       Eligible Uses of TTP Funds

170.111 What activities may be carried out using TTP funds?
170.112 What activities are not eligible for TTP funding?
170.113 How can a Tribe determine whether a new use of funds is 
          allowable?

            Use of TTP and Cultural Site or Area Entry Roads

170.114 What restrictions apply to the use of a Tribal transportation 
          facility?
170.115 What is a cultural site or area entry road?
170.116 Can a Tribe close a cultural site or area entry road?

                     Seasonal Transportation Routes

170.117 Can TTP funds be used on seasonal transportation routes?

                  TTP Housing Site or Area Entry Roads

170.118 What terms apply to TTP housing site or area entry roads?
170.119 Are housing site or area entry roads and housing streets 
          eligible for TTP funding?

                   Toll, Ferry, and Airport Facilities

170.120 How can Tribes use Federal highway funds for toll and ferry 
          facilities?
170.121 Where is information about designing and operating a toll 
          facility available?
170.122 When can a Tribe use TTP funds for airport facilities?

                     Recreation, Tourism, and Trails

170.123 Can a Tribe use Federal funds for its recreation, tourism, and 
          trails program?
170.124 How can a Tribe obtain funds?
170.125 What types of activities can a recreation, tourism, and trails 
          program include?
170.126 Can roads be built in roadless and wild areas?

                               TTP Safety

170.127 What are the TTP Safety Funds?
170.128 What activities are eligible for TTP-S funds?
170.129 How will Tribes receive TTP-S funds?
170.130 How can Tribes obtain non-TTP funds for highway safety projects?

                           Transit Facilities

170.131 How do Tribes identify transit needs?
170.132 What Federal funds are available for a Tribe's transit program?
170.133 May a Tribe or BIA use TTP funds as matching funds?
170.134 What transit facilities and activities are eligible for TTP 
          funding?

                       TTP Coordinating Committee

170.135 What is the TTP Coordinating Committee?
170.136 What are the TTP Coordinating Committee's responsibilities?
170.137 How does the TTP Coordinating Committee conduct business?

                   Tribal Technical Assistance Centers

170.138 What are Tribal Technical Assistance Centers?

Appendix A to Subpart B--Allowable Uses of TTP funds
Appendix B to Subpart B--Sources of Tribal Transportation Training and 
          Education Opportunities

             Subpart C_Tribal Transportation Program Funding

170.200 How do BIA and FHWA determine the TTP funding amount?
170.201 What is the statutory distribution formula for Tribal shares?
170.202 How do BIA and FHWA determine and distribute the Tribal 
          supplemental program funds?
170.203 How are Tribal transportation planning funds provided to Tribes?
170.204 What restrictions apply to TTP funds provided to Tribes?
170.205 What is the timeframe for distributing TTP funds?

                          Formula Data Appeals

170.226 How can a Tribe appeal its share calculation?

                           Flexible Financing

170.227 Can Tribes use flexible financing for TTP projects?
170.228 Can a Tribe use TTP funds to leverage other funds or pay back 
          loans?
170.229 Can a Tribe apply for loans or credit from a State 
          infrastructure bank?
170.230 How long must a project financed through flexible financing 
          remain on a TTPTIP?

                           TTP Data Reporting

170.240 What TTP project and activity data must be submitted annually to 
          the Secretaries?

 Subpart D_Planning, Design, and Construction of Tribal Transportation 
                           Program Facilities

                         Transportation Planning

170.400 What is the purpose of transportation planning?
170.401 What are BIA's and FHWA's roles in transportation planning?
170.402 What is the Tribal role in transportation planning?

[[Page 659]]

170.403 What TTP funds can be used for transportation planning?
170.404 Can Tribes use transportation planning funds for other 
          activities?
170.405 How must Tribes use planning funds?
170.406-170.408 [Reserved]
170.409 What is the purpose of long-range transportation planning?
170.410 How does a long-range transportation plan relate to the NTTFI?
170.411 What should a long-range transportation plan include?
170.412 How is the Tribal TTP long-range transportation plan developed 
          and approved?
170.413 What is the public's role in developing the long-range 
          transportation plan?
170.414 How is the Tribal long-range transportation plan used and 
          updated?
170.415 What are pre-project planning and project identification 
          studies?
170.420 What is the Tribal priority list?

               Tribal Transportation Improvement Programs

170.421 What is the Tribal Transportation Improvement Program (TTIP)?
170.422 How does the public participate in developing the TTIP?
170.423 How are annual updates or amendments to the TTIP conducted?
170.424 What is the TTP Transportation Improvement Program (TTPTIP)?

                             Public Hearings

170.435 When is a public hearing required?
170.436 How are public hearings for TTP planning and projects funded?
170.437 If there is no hearing, how must BIA, FHWA, or a Tribe inform 
          the public?
170.438 How must BIA, FHWA, or a Tribe inform the public when a hearing 
          is held?
170.439 How is a public hearing conducted?
170.440 How can the public learn the results of a public hearing?
170.441 Can a decision resulting from a hearing be appealed?

            National Tribal Transportation Facility Inventory

170.442 What is the National Tribal Transportation Facility Inventory?
170.443 What is required to successfully include a proposed 
          transportation facility in the NTTFI?
170.444 How is the NTTFI updated?
170.445 [Reserved]
170.446 What minimum attachments are required for an NTTFI submission?
170.447 How are the allowable lengths of access roads in the NTTFI 
          determined?

              Environmental and Archeological Requirements

170.450 What archeological and environmental requirements must the TTP 
          meet?
170.451 Can TTP funds be used for archeological and environmental 
          compliance?
170.452 When can TTP funds be used for archeological and environmental 
          activities?
170.453 Do the Categorical Exclusions under the National Environmental 
          Policy Act (NEPA) and the regulations at 23 CFR 771 apply to 
          TTP activities?

                                 Design

170.454 What design standards are used in the TTP?
170.455 What other factors must influence project design?
170.456 How can a Tribe request an exception from the design standards?
170.457 Can a Tribe appeal a denial?

       Review and Approval of Plans, Specifications and Estimates

170.460 What must a project package include?
170.461 May a Tribe approve plans, specifications, and estimates?
170.463 What if a design deficiency is identified?

                Construction and Construction Monitoring

170.470 Which construction standards must Tribes use?
170.471 How are projects administered?
170.472 What construction records must Tribes and BIA keep?
170.473 When is a project complete?
170.474 Who conducts the project closeout?

                           Management Systems

170.502 Are nationwide management systems required for the TTP?

                 Tribal Transportation Facility Bridges

170.510 What funds are available for Tribal Transportation Facility 
          Bridge activities?
170.511 What activities are eligible for Tribal Transportation Facility 
          Bridge funds?
170.512 How will Tribal Transportation Facility Bridge funds be made 
          available to the Tribes?
170.513 When and how are bridge inspections performed?
170.514 Who reviews bridge inspection reports?

Appendix A to Subpart D--Cultural Resource and Environmental 
          Requirements for the TTP
Appendix B to Subpart D--Design Standards for the TTP

[[Page 660]]

      Subpart E_Service Delivery for Tribal Transportation Program

                             Funding Process

170.600 What must BIA include in the notice of funds availability?
170.602 If a Tribe incurs unforeseen construction costs, can it get 
          additional funds?

                        Miscellaneous Provisions

170.605 May BIA or FHWA use force-account methods in the TTP?
170.606 How do legislation and procurement requirements affect the TTP?
170.607 Can a Tribe use its allocation of TTP funds for contract support 
          costs?
170.608 Can a Tribe pay contract support costs from DOI or BIA 
          appropriations?
170.609 Can a Tribe receive additional TTP funds for start-up 
          activities?

                        Contracts and Agreements

170.610 Which TTP functions may a Tribe assume?
170.611 What special provisions apply to ISDEAA contracts and 
          agreements?
170.612 Can non-contractible functions and activities be included in 
          contracts or agreements?
170.613 What funds are used to pay for non-contractible functions and 
          activities?
170.614 Can a Tribe receive funds before BIA publishes the final notice 
          of funding availability?
170.615 Can a Tribe receive advance payments for non-construction 
          activities under the TTP?
170.616 How are payments made to Tribes if additional funds are 
          available?
170.617 May a Tribe include a contingency in its proposal budget?
170.618 Can a Tribe keep savings resulting from project administration?
170.619 Do Tribal preference and Indian preference apply to TTP funding?
170.620 How do ISDEAA's Indian preference provisions apply?
170.621 What if a Tribe doesn't perform work under a contract or 
          agreement?
170.622 What TTP functions, services, and activities are subject to the 
          self-governance construction regulations?
170.623 How are TTP projects and activities included in a self- 
          governance agreement?
170.624 Is technical assistance available?
170.625 What regulations apply to waivers?
170.626 How does a Tribe request a waiver of a Department of 
          Transportation regulation?
170.627 Can non-TTP funds be provided to a Tribe through an FHWA Program 
          Agreement, BIA TTP Agreement, or other appropriate agreement?

Appendix to Subpart E--List of Program Functions That Cannot be 
          Subcontracted

             Subpart F_Program Oversight and Accountability

170.700 What is the TTP national business plan?
170.701 May a direct service Tribe and BIA Region sign a Memorandum of 
          Understanding?
170.702 What activities may the Secretaries review and monitor?
170.703 What program reviews do the Secretaries conduct?
170.704 What happens when the review process identifies areas for 
          improvement?

                          Subpart G_Maintenance

170.800 What funds are available for maintenance activities?
170.801 Can TTP funds designated on an FHWA-approved TTIP for 
          maintenance be used to improve TTP transportation facilities?
170.802 Can a Tribe perform road maintenance?
170.803 To what standards must a Tribal transportation facility be 
          maintained?
170.804 Who should be contacted if a Tribal transportation facility is 
          not being maintained to TTP standards due to insufficient 
          funding?
170.805 What maintenance activities are eligible for TTP funding?

Appendix to Subpart G--List of Eligible Maintenance Activities Under the 
          Tribal Transportation Program

                   Subpart H_Miscellaneous Provisions

              Reporting Requirements and Indian Preference

170.910 What information on the TTP or projects must BIA or FHWA 
          provide?
170.911 Are Indians entitled to employment and training preferences?
170.912 Does Indian employment preference apply to Federal-aid Highway 
          Projects?
170.913 Do Tribal-specific employment rights and contract preference 
          laws apply?
170.914 What is the difference between Tribal preference and Indian 
          preference?
170.915 May Tribal employment taxes or fees be included in a TTP project 
          budget?
170.916 May Tribes impose taxes or fees on those performing TTP 
          services?
170.917 Can Tribes receive direct payment of Tribal employment taxes or 
          fees?
170.918 What applies to the Secretaries' collection of data under the 
          TTP?

[[Page 661]]

                    Tribal Transportation Departments

170.930 What is a Tribal transportation department?
170.931 Can Tribes use TTP funds to pay Tribal transportation department 
          operating costs?
170.932 Are there other funding sources for Tribal transportation 
          departments?
170.933 Can Tribes regulate oversize or overweight vehicles?

                           Resolving Disputes

170.934 Are alternative dispute resolution procedures available?
170.935 How does a direct service Tribe begin the alternative dispute 
          resolution process?

                     Other Miscellaneous Provisions

170.941 May Tribes become involved in transportation research?
170.942 Can a Tribe use Federal funds for transportation services for 
          quality-of-life programs?

    Authority: Pub. L. 112-141, Pub. L. 114-94; 5 U.S.C. 2; 23 U.S.C. 
201, 202; 25 U.S.C. 2, 9.

    Source: 81 FR 78463, Nov. 7, 2016, unless otherwise noted.



           Subpart A_Policies, Applicability, and Definitions



Sec.  170.1  What does this part do?

    This part provides rules and references to the statutory funding 
formula for the Department of the Interior (DOI), in cooperation with 
the Department of Transportation (DOT), to implement the Tribal 
Transportation Program (TTP). Included in this part are references to 
other title 23 and title 25 transportation programs administered by the 
Secretary of the Interior (Secretary) and the Secretary of 
Transportation (together, the ``Secretaries'') and implemented by Tribes 
and Consortiums in accordance with the Indian Self-Determination and 
Education Assistance Act of 1975 (ISDEAA), as amended, FHWA program 
agreements, and other appropriate agreements.



Sec.  170.2  What policies govern the TTP?

    (a) The Secretaries' policy for the TTP is to:
    (1) Provide a uniform and consistent set of rules;
    (2) Foster knowledge of the programs by providing information about 
them and the opportunities that they create;
    (3) Facilitate Tribal planning, conduct, and administration of the 
programs;
    (4) Encourage inclusion of these programs under self-determination 
contracts, self-governance agreements, program agreements, and other 
appropriate agreements;
    (5) Make available all contractible non-inherently Federal 
administrative functions under self-determination contracts, self-
governance agreements, program agreements, and other appropriate 
agreements; and
    (6) Carry out policies, procedures, and practices in consultation 
with Indian Tribes to ensure the letter, spirit, and goals of Federal 
transportation programs are fully implemented.
    (b) Where this part differs from provisions in the ISDEAA, this part 
should advance the policy of increasing Tribal autonomy and discretion 
in program operation.
    (c) This part is designed to enable Indian Tribes to participate in 
all contractible activities of the TTP. The Secretaries will afford 
Indian Tribes the flexibility, information, and discretion to design 
transportation programs under self-determination contracts, self-
governance agreements, program agreements, and other appropriate 
agreements to meet the needs of their communities consistent with this 
part.
    (d) Programs, functions, services, and activities, regardless of how 
they are administered, are an exercise of Indian Tribes' self-
determination and self-governance.
    (1) The Tribe is responsible for managing the day-to-day operation 
of its contracted Federal programs, functions, services, and activities.
    (2) The Tribe accepts responsibility and accountability to the 
beneficiaries under self-determination contracts, self-governance 
agreements, program agreements, and other appropriate agreements for:
    (i) Use of the funds; and
    (ii) Satisfactory performance of all activities funded under the 
contract or agreement.
    (3) The Secretary will continue to discharge the trust 
responsibilities to protect and conserve the trust resources of Tribes 
and the trust resources of individual Indians.

[[Page 662]]

    (e) The Secretary should interpret Federal laws and regulations to 
facilitate including programs covered by this part in the government-to-
government agreements authorized under ISDEAA.
    (f) The administrative functions referenced in paragraph (a)(5) of 
this section are contractible without regard to the organizational level 
within the DOI that carries out these functions. Including TTP 
administrative functions under self-determination contracts, self- 
governance agreements, program agreements or other appropriate 
agreements, does not limit or reduce the funding for any program or 
service serving any other Tribe.
    (g) The Secretaries are not required to reduce funding for a Tribe 
under these programs to make funds available to another Tribe.
    (h) This part must be liberally construed for the benefit of Tribes 
and to implement the Federal policy of self-determination and self-
governance.
    (i) Any ambiguities in this part must be construed in favor of the 
Tribes to facilitate and enable the transfer of programs authorized by 
23 U.S.C. 201 and 202 and title 25 of the U.S.C.



Sec.  170.3  When do other requirements apply to the TTP?

    TTP policies, guidance, and directives apply, to the extent 
permitted by law, only if they are consistent with this part and 25 CFR 
parts 900 and 1000. See 25 CFR 900.5 for when a Tribe must comply with 
other unpublished requirements.



Sec.  170.4  How does this part affect existing Tribal rights?

    This part does not:
    (a) Affect Tribes' sovereign immunity from suit;
    (b) Terminate or reduce the trust responsibility of the United 
States to Tribes or individual Indians;
    (c) Require a Tribe to assume a program relating to the TTP; or
    (d) Impede awards by other agencies of the United States or a State 
to Tribes to administer programs under any other law.



Sec.  170.5  What definitions apply to this part?

    Access road means a public highway or road that provides access to 
Tribal land and appears on the National Tribal Transportation Facility 
Inventory (NTTFI).
    Agreement means a self-determination contract, self-governance 
agreement, Program Agreement or other appropriate agreement authorized 
under 23 U.S.C. 202(a)(2), developed in accordance with 23 U.S.C. 
202(b)(6) and(b)(7) as well as 23 U.S.C. 207, to fund and manage the 
programs, functions, services and activities transferred to a Tribe.
    Appeal means a request by a Tribe or consortium for an 
administrative review of an adverse agency decision.
    Asset management as defined in 23 U.S.C. 101(a)(2) means a strategic 
and systematic process of operating, maintaining, and improving physical 
assets, with a focus on both engineering and economic analysis based 
upon quality information, to identify a structured sequence of 
maintenance, preservation, repair, rehabilitation, and replacement 
actions that will achieve and sustain a desired state of good repair 
over the lifecycle of the assets at minimum practicable cost.
    BIA Force Account means the performance of work done by BIA 
employees.
    BIA Road System means the Bureau of Indian Affairs Road System under 
the NTTFI and includes only those existing and proposed facilities for 
which the BIA has or plans to obtain legal right-of-way.
    BIA System Inventory means Bureau of Indian Affairs System Inventory 
under the NTTFI that includes the BIA Road System, Tribally owned public 
roads, and facilities not owned by an Indian Tribal government or the 
BIA in the States of Oklahoma and Alaska that were used to generate road 
mileage for computation of the funding formula in the Indian Reservation 
Roads Program prior to October 1, 2004.
    Consortium means an organization or association of Tribes that is 
authorized by those Tribes to negotiate and execute an Agreement to 
receive funding, manage, and carry out the program

[[Page 663]]

functions, services, and activities associated with the Tribal 
Transportation Program on behalf its member Tribes.
    Construction, as defined in 23 U.S.C. 101(a)(4), means the 
supervising, inspecting, actual building, and incurrence of all costs 
incidental to the construction or reconstruction of a Tribal 
transportation facility, as defined in 23 U.S.C. 101(a)(31). The term 
includes--
    (1) Preliminary engineering, engineering, and design-related 
services directly relating to the construction of a Tribal 
transportation facility project, including engineering, design, project 
development and management, construction project management and 
inspection, surveying, mapping (including the establishment of temporary 
and permanent geodetic control under specifications of the National 
Oceanic and Atmospheric Administration), and architectural-related 
services;
    (2) Reconstruction, resurfacing, restoration, rehabilitation, and 
preservation;
    (3) Acquisition of rights-of-way;
    (4) Relocation assistance, acquisition of replacement housing sites, 
and acquisition and rehabilitation, relocation, and construction of 
replacement housing;
    (5) Elimination of hazards of railway-highway grade crossings;
    (6) Elimination of roadside hazards;
    (7) Improvements that directly facilitate and control traffic flow, 
such as grade separation of intersections, widening of lanes, 
channelization of traffic, traffic control systems, and passenger 
loading and unloading areas; and
    (8) Capital improvements that directly facilitate an effective 
vehicle weight enforcement program, such as scales (fixed and portable), 
scale pits, scale installation, and scale houses.
    Construction contract means a fixed price or cost reimbursement 
self-determination contract for a construction project or an eligible 
TTP funded road maintenance 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 BIA administered by the Secretary; or
    (3) For the health facility maintenance and improvement program 
administered by the Secretary of Health and Human Services.
    Contract means a self-determination contract as defined in section 
4(j) of the ISDEAA or a procurement document issued under Federal or 
Tribal procurement acquisition regulations.
    Days means calendar days, except where the last day of any time 
period specified in this part falls on a Saturday, Sunday, or a Federal 
holiday, the period will carry over to the next business day unless 
otherwise prohibited by law.
    Design means services related to preparing drawings, specifications, 
estimates, and other design submissions specified in a contract or 
agreement, as well as services during the bidding/negotiating, 
construction, and operational phases of the project.
    Financial constraint or Fiscal constraint means that a plan 
(metropolitan transportation plan, TTIP, or STIP) includes financial 
information demonstrating that projects can be implemented using 
committed, available, or reasonably available revenue sources, with 
reasonable assurance that the federally supported transportation system 
is adequately operated and maintained. (See 23 U.S.C. 134 and 135.) 
Documentation must be developed that demonstrates that there is a 
balance between the expected revenue sources for the transportation 
investments and the estimated costs of the projects and programs 
described in the planning documents.
    (1) For the TTIP and the STIP, financial constraint/fiscal 
constraint applies to each program year.
    (2) Projects in air quality nonattainment and maintenance areas can 
be included in the first two years of the TTIP and STIP only if funds 
are ``available'' or ``committed.'' See 23 CFR 450.104.
    Governmental subdivision of a Tribe means a unit of a Tribe which is 
authorized to participate in a TTP activity on behalf of the Tribe.
    Indian means a person who is a member of a Tribe or as otherwise 
defined in 25 U.S.C. 450b.

[[Page 664]]

    Maintenance means the preservation of the Tribal transportation 
facilities, including surface, shoulders, roadsides, structures, and 
such traffic-control devices as are necessary for safe and efficient 
utilization of the facility (see 23 U.S.C. 101(13)).
    National Bridge and Tunnel Inventory (or NBTI) means the database of 
structural and appraisal data collected to fulfill the requirements of 
the National Bridge and Tunnel Inspection Standards, as defined in 23 
U.S.C. 144. Each State and BIA must maintain an inventory of all bridges 
and tunnels that are subject to the NBTI standards and provide this data 
to the FHWA.
    National Tribal Transportation Facility Inventory (or NTTFI) means 
at a minimum, transportation facilities that are eligible for assistance 
under the Tribal transportation program that an Indian Tribe has 
requested, including facilities that meet at least one of the following 
criteria:
    (1) Were included in the Bureau of Indian Affairs system inventory 
prior to October 1, 2004.
    (2) Are owned by an Indian Tribal government (``owned'' means having 
the authority to finance, build, operate, or maintain the facility (see 
23 U.S.C. 101(a)(20)).
    (3) Are owned by the Bureau of Indian Affairs (``owned'' means 
having the authority to finance, build, operate, or maintain the 
facility (See 23 U.S.C. 101(a)(20)).
    (4) Were constructed or reconstructed with funds from the Highway 
Trust Fund under the Indian reservation roads program since 1983.
    (5) Are public roads or bridges within the exterior boundary of 
Indian reservations, Alaska Native villages, and other recognized Indian 
communities (including communities in former Indian reservations in the 
State of Oklahoma) in which the majority of residents are American 
Indians or Alaska Natives.
    (6) Are public roads within or providing access to either:
    (i) An Indian reservation or Tribal trust land or restricted Tribal 
land that is not subject to fee title alienation without the approval of 
the Federal Government; or
    (ii) Indian or Alaska Native villages, groups, or communities whose 
residents include Indians and Alaska Natives whom the Secretary has 
determined are eligible for services generally available to Indians 
under Federal laws applicable to Indians.
    (7) Are primary access routes requested by Tribal governments for 
inclusion in the NTTFI, including roads between villages, roads to 
landfills, roads to drinking water sources, roads to natural resources 
identified for economic development, and roads that provide access to 
intermodal terminals, such as airports, harbors, or boat landings.
    Note: The Secretaries are not precluded from including additional 
eligible transportation facilities into the NTTFI if such additional 
facilities are included in a uniform and consistent manner.
    Population adjustment factor means a special portion of the former 
Indian Reservation Roads (IRR) Program distribution formula that was 
calculated annually and provided for broader participation in the IRR 
Program.
    Preventive maintenance means the planned strategy of cost effective 
treatments to an existing roadway system and its appurtenances that 
preserve the system, impede future deterioration, and maintain or 
improve the functional condition of the system without increasing 
structural capacity. Eligible activities should address the aging, 
oxidation, surface deterioration, and normal wear and tear of the 
facility caused by day-to-day performance and environmental conditions. 
In addition, the treatments should extend the service life of the 
roadway asset or facility to at least achieve the design life of the 
facility.
    Primary access route means a route that is the shortest practicable 
route connecting two points.
    Program means any program, function, service, activity, or portion 
thereof.
    Program agreement means an agreement between the Tribe and Assistant 
Secretary--Indian Affairs or the Administrator of the Federal Highway 
Administration, or their respective designees, that transfer all but the 
inherently Federal program functions, services and activities of the 
Tribal Transportation Program to the Tribe.

[[Page 665]]

The provisions of 23 U.S.C. 202 (b)(7)(E) apply only to those program 
agreements entered into by the Administrator of the Federal Highway 
Administration.
    Project planning means project-related activities that precede the 
design phase of a transportation project. Examples of these activities 
are: Collecting data on traffic, accidents, or functional, safety or 
structural deficiencies; corridor studies; conceptual studies, 
environmental studies; geotechnical studies; archaeological studies; 
project scoping; public hearings; location analysis; preparing 
applications for permits and clearances; and meetings with facility 
owners and transportation officials.
    Proposed road or facility means any road or facility, including a 
primary access route, that will serve public transportation needs, meets 
the eligibility requirements of the TTP, and does not currently exist.
    Public authority as defined in 23 U.S.C. 101(a)(20) means a Federal, 
State, county, town, or township, Indian Tribe, municipal, or other 
local government or instrumentality with authority to finance, build, 
operate, or maintain toll or toll-free facilities.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Real property means any interest in land together with the 
improvements, structures, fixtures and appurtenances.
    Regionally significant project means a project (other than projects 
that may be grouped in the STIP/TTIP under 23 CFR 450) that:
    (1) Is on a facility which serves regional transportation needs 
(such as access to and from the area outside of the region, major 
activity centers in the region, major planned developments such as new 
retail malls, sports complexes, etc., or transportation terminals as 
well as most terminals themselves); and
    (2) Would normally be included in the modeling of a metropolitan 
area's transportation network, including, as a minimum, all principal 
arterial highways and all fixed guideway transit facilities that offer a 
significant alternative to regional highway travel.
    Rehabilitation means the work required to restore the structural 
integrity of transportation facilities as well as work necessary to 
correct safety defects.
    Relative need distribution factor means a mathematical formula used 
for distributing construction funds under the former IRR Program.
    Relocation means the adjustment of transportation facilities and 
utilities required by a highway project. It includes removing and 
reinstalling the facility, including necessary temporary facilities; 
acquiring necessary right-of-way on the new location; moving, 
rearranging or changing the type of existing facilities; and taking any 
necessary safety and protective measures. It also means constructing a 
replacement facility that is both functionally equivalent to the 
existing facility and necessary for continuous operation of the utility 
service, the project economy, or sequence of highway construction.
    Relocation services means payment and assistance authorized by the 
Uniform Relocation and Real Property Acquisitions Policy Act, 42 U.S.C. 
4601 et seq., as amended.
    Rest area means an area or site established and maintained within or 
adjacent to the highway right-of-way or under public supervision or 
control for the convenience of the traveling public.
    Seasonal transportation route means a non-recreational 
transportation route in the NTTFI such as snowmobile trails, ice roads, 
and overland winter roads that provide access to Indian communities or 
villages and may not be open for year-round use.
    Secretaries means the Secretary of the Interior and the Secretary of 
Transportation or designees authorized to act on their behalf.
    Secretary means the Secretary of the Interior or a designee 
authorized to act on the Secretary's behalf.
    Secretary of Transportation means the Secretary of Transportation or 
a designee authorized to act on behalf of the Secretary of 
Transportation.
    State Transportation Department as defined in 23 U.S.C. 101 (a)(28) 
means that department, commission, board, or official of any State 
charged by its laws

[[Page 666]]

with the responsibility for highway construction.
    Statewide Transportation Improvement Program or STIP means a 
financially constrained, multi-year list of projects developed under 23 
U.S.C. 134 and 135, and 49 U.S.C. 5303-5305. The Secretary of 
Transportation reviews and approves the STIP for each State.
    Strip map means a graphic representation of a section of road or 
other transportation facility being added to or modified in the NTTFI. 
Each strip map clearly: identifies the facility's location with respect 
to State, county, Tribal, and congressional boundaries; defines the 
overall dimensions of the facility (including latitude and longitude); 
includes a north arrow, scale, designation of road sections, traffic 
counter locations, and other nearby transportation facilities; and 
includes a table that provides the facility's data information needed 
for the NTTFI.
    Transit means services, equipment, and functions associated with the 
public movement of people served within a community or network of 
communities provided by a Tribe or other public authority using Federal 
funds.
    Transportation planning means developing land use, economic 
development, traffic demand, public safety, health and social strategies 
to meet transportation current and future needs.
    Tribal road system means the Tribally owned roads under the NTTFI. 
For the purposes of fund distribution as defined in 23 U.S.C. 202(b), 
the Tribal road system includes only those existing and proposed 
facilities that are approved and included in the NTTFI as of fiscal year 
2012.
    Tribal transit program means the planning, administration, 
acquisition, and operation and maintenance of a system associated with 
the public movement of people served within a community or network of 
communities on or near Tribal lands.
    Tribal Transportation Program (or TTP) means a program established 
in Section 1119 of Moving Ahead for Progress in the 21st Century (MAP-
21), Pub. L. 112-141 (July 6, 2012), and codified in 23 U.S.C. 201 and 
202 to address transportation needs of Tribes. This program was 
continued under Fixing America's Surface Transportation Act (FAST Act), 
Pub. L. 114-94 (Dec. 4, 2015).
    Tribal transportation facility means a public highway, road, bridge, 
trail, transit system, or other approved facility that is located on or 
provides access to Tribal land and appears on the NTTFI described in 23 
U.S.C. 202(b)(1).
    Tribe or Indian Tribe means any Tribe, nation, band, pueblo, 
rancheria, colony, or community, including any Alaska Native village or 
regional or village corporation as defined or established under the 
Alaska Native Claims Settlement Act, that 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.
    TTIP means Tribal Transportation Improvement Program. It is a multi-
year list of proposed transportation projects developed by a Tribe from 
the Tribal priority list or the long-range transportation plan.
    TTP Eligible Transportation Facility means any of the following:
    (1) Road systems and related road appurtenances such as signs, 
traffic signals, pavement striping, trail markers, guardrails, etc;
    (2) Highway bridges and drainage structures;
    (3) Boardwalks and Board roads;
    (4) Adjacent parking areas;
    (5) Maintenance yards;
    (6) Operations and maintenance of transit programs and facilities;
    (7) System public pedestrian walkways, paths, bike and other trails;
    (8) Motorized vehicle trails;
    (9) Public access roads to heliports and airports;
    (10) Seasonal transportation routes;
    (11) BIA and Tribal post-secondary school roads and parking lots 
built with TTP funds;
    (12) Public ferry boats and boat ramps; and
    (13) Additional facilities as approved by BIA and FHWA.
    TTP formula funds means the pool of funds made available to Tribes 
under 23 U.S.C. 202(b)(3).
    TTP funds means the funds authorized under 23 U.S.C. 201 and 202.
    TTP planning funds means funds referenced in 23 U.S.C. 202(c)(1).

[[Page 667]]

    TTP Program Management and Oversight (PM&O) funds means those funds 
authorized by 23 U.S.C 202(a)(6) to pay the cost of carrying out 
inherently Federal program management and oversight, and project-related 
administrative expenses activities.
    TTP System means all of the facilities eligible for inclusion in the 
NTTFI.
    TTPTIP means Tribal Transportation Program Transportation 
Improvement Program. It is a financially constrained prioritized list of 
transportation projects and activities eligible for TTP funding covering 
a period of four years that is developed by BIA and FHWA based on each 
Tribe's submission of their TTIP or Tribal priority list. It is required 
for projects and activities to be eligible for funding under title 23 
U.S.C. and title 49 U.S.C. chapter 53. The Secretary of Transportation 
reviews and approves the TTPTIP and distributes copies to each State for 
inclusion in their respective STIPs without further action.



Sec.  170.6  Acronyms.

AASHTO--American Association of State Highway and Transportation 
    Officials.
ADR--Alternate dispute resolution
ANCSA--Alaska Native Claims Settlement Act
BIA--Bureau of Indian Affairs, Department of the Interior.
BIADOT--Bureau of Indian Affairs, Indian Services--Division of 
    Transportation--Central Office.
CFR--Code of Federal Regulations.
DOI--Department of the Interior.
DOT--Department of Transportation.
FHWA--Federal Highway Administration, Department of Transportation.
FTA--Federal Transit Administration, Department of Transportation.
ISDEAA--Indian Self-Determination and Education Assistance Act of 1975, 
    Public Law 93-638, as amended.
LRTP--Long-range transportation plan.
MUTCD--Manual of Uniform Traffic Safety Devices
NBTI--National Bridge and Tunnel Inventory.
NEPA--National Environmental Policy Act
NTTFI--National Tribal Transportation Facility Inventory.
PM&O--Program management and oversight.
PS&E--Plans, specifications and estimates
STIP--Statewide Transportation Improvement Program.
TTAC--Tribal Technical Assistance Center
TTIP--Tribal Transportation Improvement Program.
TTP--Tribal Transportation Program.
TTP-S--TTP--Safety
TTPTIP--Tribal Transportation Program Transportation Improvement 
    Program.
U.S.C.--United States Code



Sec.  170.7  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. et 
seq. and assigned control number 1076-0161. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a collection 
of information unless it displays a currently valid OMB control number. 
Comments and suggestions on the burden estimate or any other aspect of 
the information collection should be sent to the Information Collection 
Clearance Officer, Bureau of Indian Affairs, 1849 C Street NW., 
Washington, DC 20240.



     Subpart B_Tribal Transportation Program Policy and Eligibility

                Consultation, Collaboration, Coordination



Sec.  170.100  What do the terms ``consultation,'' ``collaboration,'' 
and ``coordination'' mean?

    (a) Consultation means government-to-government communication, 
carried out in accordance with applicable Executive Orders, in a timely 
manner by all parties about a proposed or contemplated decision. The 
Departments' Consultation Policies and Plans can be found at http://
www.indianaffairs.gov/WhoWeAre/AS-IA/Consultation/Templates/index.htm 
(DOI) or http://www.fhwa.dot.gov/tribal/news/consultation.htm (DOT)
    (b) Collaboration means that all parties involved in carrying out 
planning and project development work together

[[Page 668]]

in a timely manner to achieve a common goal or objective.
    (c) Coordination means that each party:
    (1) Shares and compares in a timely manner its transportation plans, 
programs, projects, and schedules with the related plans, programs, 
projects, and schedules of the other parties; and
    (2) Adjusts its plans, programs, projects, and schedules to optimize 
the efficient and consistent delivery of transportation projects and 
services.



Sec.  170.101  What is the TTP consultation and coordination policy?

    (a) The TTP's government-to-government consultation and coordination 
policy is to foster and improve communication, cooperation, and 
coordination among Tribal, Federal, State, and local governments and 
other transportation organizations when undertaking the following, 
similar, or related activities:
    (1) Identifying data-driven safety needs for improving both vehicle 
and pedestrian safety;
    (2) Developing State, metropolitan, regional, TTP, and TTIPs that 
impact Tribal lands, communities, and members;
    (3) Developing short and long-range transportation plans;
    (4) Developing TTP transportation projects;
    (5) Developing environmental mitigation measures necessary to 
protect and/or enhance Tribal lands and the environment, and counteract 
the impacts of the projects;
    (6) Developing plans or projects to carry out the Tribal 
Transportation Facility Bridge Program identified in 23 U.S.C. 202(d);
    (7) Developing plans or projects for disaster and emergency relief 
response and the repair of eligible damaged TTP transportation 
facilities;
    (8) Assisting in the development of State and Tribal agreements 
related to the TTP;
    (9) Developing and improving transit systems serving Tribal lands 
and communities;
    (10) Assisting in the submission of discretionary grant applications 
for State and Federal funding for TTP transportation facilities; and
    (11) Developing plans and projects for the safety funding identified 
in 23 U.S.C. 202(e).
    (b) Tribal, State and Federal Government agencies may enter into 
intergovernmental Memoranda of Agreement to streamline and facilitate 
consultation, collaboration, and coordination.
    (c) DOI and DOT operate within a government-to-government 
relationship with Tribes. As a critical element of this relationship, 
these agencies assess the impact of Federal transportation policies, 
plans, projects, and programs on Tribal rights and interests to ensure 
that these rights and concerns are appropriately considered.



Sec.  170.102  What goals and principles guide program implementation?

    When undertaking transportation activities affecting Tribes, the 
Secretaries should, to the maximum extent permitted by law:
    (a) Establish regular and meaningful consultation and collaboration 
with affected Tribal governments, including facilitating the direct 
involvement of Tribal governments in short- and long-range Federal 
transportation planning efforts;
    (b) Promote the rights of Tribal governments to govern their own 
internal affairs;
    (c) Promote the rights of Tribal governments to receive direct 
transportation services from the Federal Government or to enter into 
agreements to directly operate any Tribally related transportation 
programs serving Tribal members;
    (d) Ensure the continuation of the trust responsibility of the 
United States to Tribes and Indian individuals;
    (e) Reduce the imposition of unfunded mandates upon Tribal 
governments;
    (f) Encourage flexibility, innovation and implementation of 
contracting mechanisms used for delivery of the TTP to the greatest 
extent authorized by Congress by providing the protections afforded by 
the ISDEAA to Tribes carrying out eligible activities of the TTP;

[[Page 669]]

    (g) Reduce, streamline, and eliminate unnecessarily restrictive 
transportation policies, guidelines, or procedures;
    (h) Ensure that Tribal rights and interests are appropriately 
considered during program development;
    (i) Ensure that the TTP is implemented consistent with Tribal 
sovereignty and the government-to-government relationship; and
    (j) Consult with, and solicit the participation of, Tribes in the 
development of the annual BIA budget proposals.



Sec.  170.103  Is consultation with Tribal governments required 
before obligating TTP funds for direct service activities?

    Yes. Consultation with Tribal governments is required before 
obligating TTP funds for direct service activities. Before obligating 
TTP funds on any project for direct service activities, the Secretary 
must:
    (a) Consult with the affected Tribe to determine Tribal preferences 
concerning the program, project, or activity; and
    (b) Provide information under Sec.  170.600 within 30 days of the 
notice of availability of funds.



Sec.  170.104  Are funds available for consultation, collaboration, 
and coordination activities?

    Yes. Funds are available for consultation, collaboration, and 
coordination activities. To fund consultation, collaboration, and 
coordination of TTP activities, Tribes may use:
    (a) The Tribes' TTP allocations;
    (b) Tribal Priority Allocation funds;
    (c) Administration for Native Americans funds;
    (d) Economic Development Administration funds;
    (e) United States Department of Agriculture Rural Development funds;
    (f) Community Development Block Grant funds;
    (g) Indian Housing Block Grant funds;
    (h) Indian Health Service Tribal Management Grant funds;
    (i) General funds of the Tribal government; and
    (j) Any other funds available for the purpose of consultation, 
collaboration, and coordination activities.



Sec.  170.105  When must State governments consult with Tribes?

    As identified in 23 U.S.C. 134 and 135, States will develop their 
STIP in consultation with Tribes in the area where the project is 
located. This includes providing for a process that coordinates 
transportation planning efforts carried out by the State with similar 
efforts carried out by Tribes. Regulations governing STIPs can be found 
at 23 CFR part 450.



Sec.  170.106  Should planning organizations and local governments consult 
with Tribes when planning for transportation projects?

    Yes. When planning for transportation projects, planning 
organizations and local governments should consult with Tribes in the 
area where the project is located.



Sec.  170.107  Should Tribes and BIA consult with planning organizations 
and local governments in developing projects?

    Yes. Tribes and BIA should consult with planning organizations and 
local governments in developing projects.
    (a) All regionally significant TTP projects must be:
    (1) Developed in cooperation with State and metropolitan planning 
organizations; and
    (2) Included in a FHWA-approved TTPTIP for inclusion in State and 
metropolitan plans.
    (b) BIA and Tribes are encouraged to consult with States, 
metropolitan and regional planning organizations, and local and 
municipal governments on transportation matters of common concern.



Sec.  170.108  How do the Secretaries prevent discrimination 
or adverse impacts?

    The Secretaries ensure that non-discrimination and environmental 
justice principles are integral TTP program elements. The Secretaries 
consult with

[[Page 670]]

Tribes early in the program development process to identify potential 
discrimination and to recommend corrective actions to avoid 
disproportionately high and adverse effects on Tribes and Indian 
populations.



Sec.  170.109  How can State and local governments prevent discrimination 
or adverse impacts?

    (a) Under 23 U.S.C. 134 and 135, and 23 CFR part 450, State and 
local government officials shall consult and work with Tribes in the 
development of programs to:
    (1) Identify potential discrimination; and
    (2) Recommend corrective actions to avoid disproportionately high 
and adverse effects on Tribes and Indian populations.
    (b) Examples of adverse effects include, but are not limited to:
    (1) Impeding access to Tribal communities or activities;
    (2) Creating excessive access to culturally or religiously sensitive 
areas;
    (3) Negatively affecting natural resources, trust resources, Tribal 
businesses, religious, and cultural sites;
    (4) Harming indigenous plants and animals; and
    (5) Impairing the ability of Tribal members to engage in commercial, 
cultural, and religious activities.



Sec.  170.110  What if discrimination or adverse impacts occur?

    If discrimination or adverse impacts occur, a Tribe should take the 
following steps in the order listed:
    (a) Take reasonable steps to resolve the problem directly with the 
State or local government involved; and
    (b) Contact BIA, FHWA, or the Federal Transit Authority (FTA), as 
appropriate, to report the problem and seek assistance in resolving the 
problem.

                       Eligible Uses of TTP Funds



Sec.  170.111  What activities may be carried out using TTP funds?

    TTP funds will be used to pay the cost of items identified in 23 
U.S.C. 202(a)(1). A more detailed list of eligible activities is 
available in the appendix A to this subpart. Each of the items 
identified in this appendix must be interpreted in a manner that 
permits, rather than prohibits, a proposed use of funds.



Sec.  170.112  What activities are not eligible for TTP funding?

    TTP funds cannot be used for any of the following:
    (a) Structures and erosion protection unrelated to transportation 
and roadways;
    (b) General or Tribal planning not involving transportation;
    (c) Landscaping and irrigation systems not involving transportation 
programs and projects;
    (d) Work or activities that are not listed on an FHWA-approved 
TTPTIP;
    (e) Condemnation of land for recreational trails;
    (f) Salaries and/or other incidental costs of any Federal employee 
or contractor not performing Federal TTP stewardship and oversight, work 
identified in the appendix to subpart E, or project-related activities 
identified on an approved TTIP; or
    (g) Direct and/or incidental costs associated with the Federal 
Government's acquisition of goods, services, or construction unrelated 
to the program.



 Sec.  170.113  How can a Tribe determine whether a new use of funds 
 is allowable?

    (a) A Tribe that proposes new uses of TTP funds must ask BIA or FHWA 
in writing whether the proposed use is eligible under Federal law.
    (1) In cases involving eligibility questions that refer to 25 
U.S.C., BIA will determine whether the new proposed use of TTP funds is 
allowable and provide a written response to the requesting Tribe within 
45 days of receiving the written inquiry. Tribes may appeal a denial of 
a proposed use by BIA under 25 CFR part 2. The address is: Department of 
the Interior, BIA, Division of Transportation, 1849 C Street NW., MS 
4513 MIB, Washington, DC 20240.
    (2) In cases involving eligibility questions that refer to the TTP 
or 23 U.S.C., BIA will refer an inquiry to FHWA for decision. FHWA must 
provide a written response to the requesting Tribe within 45 days of 
receiving the written inquiry from the Tribe.

[[Page 671]]

Tribes may appeal denials of a proposed use by the FHWA to: FHWA, 1200 
New Jersey Ave. SE., Washington, DC 20590.
    (b) To the extent practical, the deciding agency must consult with 
the TTP Coordinating Committee before denying a request.
    (c) BIA and FHWA will:
    (1) Send copies of all eligibility determinations to the TTP 
Coordinating Committee and BIA Regional offices;
    (2) Coordinate all responses and if the requested agency fails to 
issue a decision to the requesting Tribe within the required time, the 
proposed use will be deemed to be allowable for that specific project; 
and
    (3) Promptly make any final determination available on agency Web 
sites.

            Use of TTP and Cultural Site or Area Entry Roads



Sec.  170.114  What restrictions apply to the use of a Tribal 
transportation facility?

    (a) All Tribal transportation facilities listed in the approved 
NTTFI must be open and available for public use as required by 23 U.S.C. 
101(a)(31). However, the public authority having jurisdiction over these 
roads or the Secretary, in consultation with a Tribe and applicable 
private landowners, may restrict road use or close roads temporarily 
when:
    (1) Required for public health and safety or as provided in Sec.  
170.116.
    (2) Conducting engineering and traffic analysis to determine maximum 
speed limits, maximum vehicular size, and weight limits, and identify 
needed traffic control devices; and
    (3) Erecting, maintaining, and enforcing compliance with signs and 
pavement markings.
    (b) Consultation is not required whenever the conditions in 
paragraph (a) of this section involve immediate safety or life-
threatening situations.
    (c) A Tribal transportation facility owned by a Tribe or BIA may be 
permanently closed only when the Tribal government and the Secretary 
agree. Once this agreement is reached, BIA must remove the facility from 
the NTTFI and it will be ineligible for expenditure of any TTP funds.



Sec.  170.115  What is a cultural site or area entry road?

    (a) A cultural site or area entry road is a public road that 
provides access to sites for cultural purposes as defined by Tribal 
traditions, which may include, for example:
    (1) Sacred and medicinal sites;
    (2) Gathering medicines or materials such as grasses for basket 
weaving; and
    (3) Other traditional activities, including, but not limited to, 
subsistence hunting, fishing and gathering.
    (b) A Tribal government may unilaterally designate a Tribal road as 
a cultural site or area entry road. A cultural site or area entry road 
designation is an entirely voluntary and internal decision made by the 
Tribe to help it and other public authorities manage, protect, and 
preserve access to locations that have cultural significance.
    (c) In order for a Tribal government to designate a non-tribal road 
as a cultural site or area entry road, it must enter into an agreement 
with the public authority having jurisdiction over the road.
    (d) Cultural site or area entry roads may be included in the NTTFI 
if they meet the definition of a TTP facility.



Sec.  170.116  Can a Tribe close a cultural site or area entry road?

    (a) A Tribe with jurisdiction over a cultural site or area entry 
road can close it. The Tribe can carry this out:
    (1) During periods when the Tribe or Tribal members are involved in 
cultural activities; and
    (2) In order to protect the health and safety of the Tribal members 
or the general public.
    (b) Cultural site or area entry roads designated through an 
agreement with a public authority may only be closed according to the 
provisions of the agreement. See Sec.  170.115(c).

                     Seasonal Transportation Routes



Sec.  170.117  Can TTP funds be used on seasonal transportation routes?

    Yes. A Tribe may use TTP funds on seasonal transportation routes 
that are included in the NTTFI.
    (a) Information regarding the standards for seasonal transportation 
routes are found in Sec.  170.454. A Tribe can also

[[Page 672]]

develop or adopt standards that are equal to or exceed these standards.
    (b) To help ensure the safety of the traveling public, construction 
of a seasonal transportation route requires a right-of-way, easement, or 
use permit.

                  TTP Housing Site or Area Entry Roads



Sec.  170.118  What terms apply to TTP housing site or area entry roads?

    (a) TTP housing site or area entry road means a public road on the 
TTP System that provides access to a housing cluster.
    (b) TTP housing street means a public road on the TTP System that is 
located within a housing cluster.
    (c) Housing cluster means three or more existing or proposed housing 
units.



Sec.  170.119  Are housing site or area entry roads and housing streets 
eligible for TTP funding?

    Yes. TTP housing site or area entry roads and housing streets on 
public rights-of-way are eligible for construction, reconstruction, and 
rehabilitation funding under the TTP. Tribes, following the 
transportation planning process as required in subpart D, may include 
housing site or area entry roads and housing street projects on their 
TTIP.

                   Toll, Ferry, and Airport Facilities



Sec.  170.120  How can Tribes use Federal highway funds for toll 
and ferry facilities?

    (a) A Tribe can use Federal-aid highway funds, including TTP funds, 
to study, design, construct, and operate toll highways, bridges, and 
tunnels, as well as ferry boats and ferry terminal facilities. The 
following table shows how a Tribe can initiate construction of these 
facilities.

------------------------------------------------------------------------
  To initiate construction of a . . .           A Tribe must . . .
------------------------------------------------------------------------
(1) Toll highway, bridge, or tunnel....  (i) Meet and follow the
                                          requirements in 23 U.S.C. 129;
                                          and (ii) If TTP funds are
                                          used, enter into an Agreement
                                          as defined in Sec.   170.5.
(2) Ferry boat or ferry terminal.......  Meet and follow the
                                          requirements in 23 U.S.C.
                                          129(c).
------------------------------------------------------------------------

    (b) A Tribe can use TTP funds to fund 100 percent of the conversion 
or construction of a toll facility.
    (c) If a Tribe obtains non-TTP Federal funding for the conversion or 
construction of a toll facility, the Tribe may use TTP funds to satisfy 
any matching fund requirements.



Sec.  170.121  Where is information about designing and operating 
a toll facility available?

    Information on designing and operating a toll highway, bridge or 
tunnel is available from the International Bridge, Tunnel and Turnpike 
Association. The Association publishes a variety of reports, statistics, 
and analyses. The Web site is located at http://www.ibtta.org. 
Information is also available from FHWA.



Sec.  170.122  When can a Tribe use TTP funds for airport facilities?

    (a) A Tribe can use TTP funds for construction of airport and 
heliport access roads, if the access roads are open to the public.
    (b) A Tribe cannot use TTP funds to construct, improve, or maintain 
airport or heliport facilities.

                     Recreation, Tourism, and Trails



Sec.  170.123  Can a Tribe use Federal funds for its recreation, tourism, 
and trails program?

    Yes. A Tribe, Consortium, or the BIA may use TTP funds for 
recreation, tourism, and trails programs if the programs are included in 
the TTPTIP. Additionally, the following Federal programs may be possible 
sources of Federal funding for recreation, tourism, and trails projects 
and activities:
    (a) Federal Lands Access Program (23 U.S.C. 204);
    (b) National Highway Performance Program (23 U.S.C. 119);
    (c) Transportation Alternatives (23 U.S.C. 213);
    (d) Surface Transportation Program (23 U.S.C. 133);
    (e) Other funding from other Federal departments; and
    (f) Other funding that Congress may authorize and appropriate.

[[Page 673]]



Sec.  170.124  How can a Tribe obtain funds?

    (a) To receive funding for programs that serve recreation, tourism, 
and trails goals, a Tribe should:
    (1) Identify a program meeting the eligibility guidelines for the 
funds and have it ready for development; and
    (2) Have a viable project ready for improvement or construction, 
including necessary permits.
    (b) Tribes seeking to obtain funding from a State under the programs 
identified in Sec.  170.123(b) through (f) should contact the State 
directly to determine eligibility, contracting opportunities, funding 
mechanisms, and project administration requirements. These funds would 
be made available as provided by Sec.  170.627 of this part.
    (c) In order to expend any Federal transportation funds, a Tribe 
must ensure that the eligible project/program is listed on an FHWA-
approved TIP or STIP.



Sec.  170.125  What types of activities can a recreation, tourism, 
and trails program include?

    (a) The following are examples of activities that Tribes and 
Consortiums may include in a recreation, tourism, and trails program:
    (1) Transportation planning for tourism and recreation travel;
    (2) Adjacent public vehicle parking areas;
    (3) Development of tourist information and interpretative signs;
    (4) Provision for non-motorized trail activities including 
pedestrians and bicycles;
    (5) Provision for motorized trail activities including all-terrain 
vehicles, motorcycles, snowmobiles, etc.;
    (6) Construction improvements that enhance and promote safe travel 
on trails;
    (7) Safety and educational activities;
    (8) Maintenance and restoration of existing recreational trails;
    (9) Development and rehabilitation of trailside and trailhead 
facilities and trail linkage for recreational trails;
    (10) Purchase and lease of recreational trail construction and 
maintenance equipment;
    (11) Safety considerations for trail intersections;
    (12) Landscaping and scenic enhancement (see 23 U.S.C. 319);
    (13) Bicycle transportation and pedestrian walkways (see 23 U.S.C. 
217); and
    (14) Trail access roads.
    (b) The items listed in paragraph (a) of this section are not the 
only activities that are eligible for recreation, tourism, and trails 
funding. The funding criteria may vary with the specific requirements of 
the programs.
    (c) Tribes may use TTP funds for any activity that is eligible for 
Federal funding under any provision of title 23 of the U.S.C.



Sec.  170.126  Can roads be built in roadless and wild areas?

    Under 25 CFR part 265, no roads can be built in an area designated 
as a roadless and wild area.

                               TTP Safety



Sec.  170.127  What are the TTP Safety Funds?

    (a) Funds, identified as TTP Safety (TTP-S) funds, are made 
available for a Tribe's highway safety activities through a TTP set-
aside established in 23 U.S.C. 202(e). TTP-S funds are allocated based 
on identification and analysis of highway safety issues and 
opportunities on Tribal lands. A TTP-S call for projects will be made 
annually through a Notice of Funding Opportunity published in the 
Federal Register.
    (b) Tribes may also use their TTP-S funds made available through 23 
U.S.C. 202(b) for highway safety activities as well as seek grant and 
program funding from appropriate State and local agencies and private 
grant organizations.
    (c) A project that uses TTP-S funding or TTP funds made available 
under 23 U.S.C. 202(b) must be identified on a FHWA-approved TTPTIP 
before any funds are expended.



Sec.  170.128  What activities are eligible for TTP-S funds?

    (a) TTP-S funds made available under 23 U.S.C. 202(e) may be used 
for projects and activities that improve safety in one or more of the 
following categories:
    (1) Safety Plans and Planning activities; and

[[Page 674]]

    (2) Other eligible activities as described in 23 U.S.C. 148(a)(4)
    (b) Eligible activities for each of the categories listed in 
paragraph (a) of this section will be included in the annual Notice of 
Funding Opportunity. An eligibility determination for other proposed 
activities must be requested from BIA or FHWA under Sec.  170.113.



Sec.  170.129  How will Tribes receive TTP-S funds?

    TTP-S funds made available to Tribes may be included in the Tribe's 
self-determination contracts, self-governance agreements, program 
agreements, and other appropriate agreements.



Sec.  170.130  How can Tribes obtain non-TTP funds for highway safety projects?

    FHWA, the National Highway Traffic Safety Administration, BIA, the 
U.S. Department of Health and Human Services and other Federal agencies 
may have funding available for Tribes to address safety projects and 
activities. Please see the respective agency/department Web sites for 
further information or ask BIA or FHWA for assistance. If funding from 
these agencies does become available, Tribes may work with BIA or FHWA 
to include those funds through an ISDEAA contract or agreement, or other 
appropriate agreement for these projects. If the funding is title 23 
funding that is originally made available to a State, the Tribe will 
need to work with the State to develop an agreement for the funding and 
work through the process identified in Sec.  170.627 of this part.

                           Transit Facilities



Sec.  170.131  How do Tribes identify transit needs?

    Tribes identify transit needs during the Tribal transportation 
planning process (see subpart D of this part). Transit projects using 
TTP funds must be included in the FHWA-approved TTPTIP.



Sec.  170.132  What Federal funds are available for a Tribe's transit program?

    Title 23 U.S.C. authorizes use of TTP funds for transit facilities 
as defined in this part. There are many additional sources of Federal 
funds for Tribal transit programs, including the Federal programs listed 
in this section. Note that each program has its own terms and conditions 
of assistance. For further information on these programs and their use 
for transit, contact the FTA Regional Transit Assistance Program at 
www.nationalrtap.org. Section 170.627 of this part identifies how these 
funds, if provided to the Tribe from a State or county, can be made 
available.
    (a) Department of Transportation. Formula Grants for Public 
Transportation on Indian Reservations under 49 U.S.C. 5311, Welfare-to-
Work, Tribal Transportation Program, transportation and community and 
systems preservation, Federal transit capital improvement grants, public 
transportation for non-urbanized areas, capital assistance for elderly 
and disabilities transportation, education, and Even Start.
    (b) Department of Agriculture. Community facilities loans; rural 
development loans; business and industrial loans; rural enterprise 
grants; commerce, public works and economic development grants; and 
economic adjustment assistance.
    (c) Department of Housing and Urban Development. Community 
development block grants, supportive housing, Tribal housing loan 
guarantees, resident opportunity and support services.
    (d) Department of Labor. Indian employment and training, welfare-to-
work grants.
    (e) Department of Health and Human Services. Programs for Indian 
elders, community service block grants, job opportunities for low-income 
individuals, Head Start (capital or operating), administration for 
Indian programs, Medicaid, HIV Care Grants, Healthy Start, and the 
Indian Health Service.



Sec.  170.133  May a Tribe or BIA use TTP funds as matching funds?

    TTP funds may be used to meet matching or cost participation 
requirements for any Federal or non-Federal transit grant or program.

[[Page 675]]



Sec.  170.134  What transit facilities and activities are eligible 
for TTP funding?

    Transit facilities and activities eligible for TTP funding include, 
but are not limited to:
    (a) Acquiring, constructing, operating, supervising or inspecting 
new, used or refurbished equipment, buildings, facilities, buses, vans, 
water craft, and other vehicles for use in public transportation;
    (b) Transit-related intelligent transportation systems;
    (c) Rehabilitating, remanufacturing, and overhauling a transit 
vehicle;
    (d) Preventive maintenance;
    (e) Leasing transit vehicles, equipment, buildings, and facilities 
for use in mass transportation;
    (f) Third-party contracts for otherwise eligible transit facilities 
and activities;
    (g) Public transportation improvements that enhance economic and 
community development, such as bus shelters in shopping centers, parking 
lots, pedestrian improvements, and support facilities that incorporate 
other community services;
    (h) Passenger shelters, bus stop signs, and similar passenger 
amenities;
    (i) Introduction of new public transportation technology;
    (j) Provision of fixed route, demand response services, and non-
fixed route paratransit transportation services;
    (k) Radio and communication equipment to support Tribal transit 
programs;
    (l) Transit; and
    (m) Any additional activities authorized by 49 U.S.C. 5311.

                       TTP Coordinating Committee



Sec.  170.135  What is the TTP Coordinating Committee?

    (a) Under this part, the Secretaries will establish a TTP 
Coordinating Committee that:
    (1) Provides input and recommendations to BIA and FHWA in developing 
TTP regulations, policies and procedures; and
    (2) Supplements government-to-government consultation by 
coordinating with and obtaining input from Tribes, BIA, and FHWA.
    (b) The Committee consists of 24 Tribal regional representatives 
(two from each BIA Region) and two non-voting Federal representatives 
(FHWA and BIA).
    (c) The Secretary must select the regional Tribal representatives 
from nominees officially submitted by the region's Tribes.
    (1) To the extent possible, the Secretary must make the selection so 
that there is representation from a broad cross-section of large, 
medium, and small Tribes.
    (2) Tribal nominees must be Tribal governmental officials or Tribal 
employees with authority to act for their Tribal government.
    (d) For purposes of continuity, the Secretary will appoint the 
Tribal representatives to a three year term. The appointments will be 
carried out so that only one of a region's two representatives will be 
appointed in any one year. Should the Tribal appointment or employment 
of a committee representative terminate during his/her term, the 
representative must notify the Secretary of this change and his/her 
membership to the Committee will cease. Upon receipt of the 
notification, the Secretary will seek nominations from the region's 
Tribes to replace the representative for the remainder of the term.
    (e) Should the need arise, the Secretary will replace 
representatives.



Sec.  170.136  What are the TTP Coordinating Committee's responsibilities?

    (a) Committee responsibilities are to provide input and 
recommendations to BIA and FHWA during the development or revision of:
    (1) BIA/FHWA TTP Stewardship Plan;
    (2) TTP policy and procedures;
    (3) TTP eligible activities determination;
    (4) TTP transit policy;
    (5) TTP regulations;
    (6) TTP management systems policy and procedures; and
    (7) National Tribal transportation needs.
    (b) The Committee may establish work groups to carry out its 
responsibilities.

[[Page 676]]

    (c) The Committee also reviews and provides recommendations on TTP 
national concerns (including the implementation of this part) brought to 
its attention.
    (d) Committee members are responsible for disseminating TTP 
Coordinating Committee information and activities to Tribal leadership 
and transportation officials within their respective BIA Regions.



Sec.  170.137  How does the TTP Coordinating Committee conduct business?

    The Committee holds at least two meetings a year. In order to 
maximize participation by the Tribal public, the Committee shall submit 
to the Secretary its proposed meeting dates and locations for each 
fiscal year no later than October 1st. Subject to approval by the 
Secretary, additional Committee meetings may be called with the consent 
of one-third of the Committee members, or by BIA or FHWA. The Committee 
conducts business at its meetings as follows:
    (a) A quorum consists of representation from eight BIA Regions.
    (b) The Committee will operate by consensus or majority vote, as 
determined by the Committee in its protocols.
    (c) Any Committee member can submit an agenda item to the Chair.
    (d) The Committee will work through a committee-approved annual work 
plan and budget.
    (e) Annually, the Committee must elect from among the Committee 
membership a Chair, a Vice-Chair, and other officers. These officers 
will be responsible for preparing for and conducting Committee meetings 
and summarizing meeting results. These officers will also have other 
duties that the Committee may prescribe.
    (f) The Committee must keep the Secretary and the Tribes informed 
through an annual accomplishment report provided within 90 days after 
the end of each fiscal year.
    (g) The Committee's budget will be funded through the TTP management 
and oversight funds, not to exceed $150,000 annually.

                   Tribal Technical Assistance Centers



Sec.  170.138  What are Tribal Technical Assistance Centers?

    Tribal Technical Assistance Centers (TTAC), which are also referred 
to as Tribal Technical Assistance Program Centers are authorized under 
23 U.S.C. 504(b)(3). The centers assist Tribal governments and other TTP 
participants in extending their technical capabilities by providing them 
greater access to transportation technology, training, and research 
opportunities. Complete information about the centers and the services 
they offer is available on at http://ltap.org/about/ttap.php.



        Sec. Appendix A to Subpart B--Allowable Uses of TTP funds

    TTP funds must be used to pay the cost of those items identified in 
23 U.S.C. 202(a)(1), including:
    (a) TTP funds can be used for the following planning and design 
activities:
    (1) Planning and design of Tribal Transportation Facilities.
    (2) Transportation planning activities, including planning for 
tourism and recreational travel.
    (3) Development, establishment, and implementation of Tribal 
transportation management systems such as safety, bridge, pavement, and 
congestion management.
    (4) Tribal transportation plans and transportation improvement 
programs (TIPS).
    (5) Coordinated technology implementation program (CTIP) projects.
    (6) Traffic engineering and studies.
    (7) Identification, implementation, and evaluation of data-driven 
safety needs.
    (8) Tribal transportation standards.
    (9) Preliminary engineering studies.
    (10) Interagency program/project formulation, coordination and 
review.
    (11) Environmental studies and archeological investigations directly 
related to transportation programs and projects.
    (12) Costs associated with obtaining permits and/or complying with 
Tribal, Federal, State, and local environmental, archeological and 
natural resources regulations and standards.
    (13) Development of natural habitat and wetland conservation and 
mitigation plans, including plans authorized under the Water Resources 
Development Act of 1990, 104 Stat. 4604 (Water Resources Development 
Act).
    (14) Architectural and landscape engineering services related to 
transportation programs.
    (15) Engineering design related to transportation programs, 
including permitting activities.

[[Page 677]]

    (16) Inspection of bridges and structures.
    (17) Tribal Transportation Assistance Centers (TTACs).
    (18) Safety planning, programming, studies and activities.
    (19) Tribal employment rights ordinance (TERO) fees.
    (20) Purchase or lease of advanced technological devices used for 
transportation planning and design activities such as global positioning 
units, portable weigh-in-motion systems, hand-held data collection 
units, related hardware and software, etc.
    (21) Planning, design and coordination for Innovative Readiness 
Training projects.
    (22) Transportation planning and project development activities 
associated with border crossings on or affecting Tribal lands.
    (23) Public meetings and public involvement activities associated 
with transportation projects and planning.
    (24) Leasing or rental of equipment used in transportation planning 
or design programs.
    (25) Transportation-related technology transfer activities and 
programs.
    (26) Educational activities related to bicycle safety.
    (27) Planning and design of mitigation impacts to environmental 
resources caused by a transportation project, including, but not limited 
to, wildlife, habitat, ecosystems, historic properties, and wetlands.
    (28) Evaluation of community impacts such as land use, mobility, 
access, social, safety, psychological, displacement, economic, and 
aesthetic impacts.
    (29) Acquisition of land and interests in land required for right-
of-way, including control of access thereto from adjoining lands, the 
cost of appraisals, cost of surveys, cost of examination and abstract of 
title, the cost of certificate of title, advertising costs, and any fees 
incidental to such acquisition.
    (30) Cost associated with relocation activities including financial 
assistance for displaced businesses or persons and other activities as 
authorized by law.
    (31) On-the-job education including classroom instruction and pre-
apprentice training activities related to transportation planning and 
design.
    (32) Other eligible activities as approved by FHWA.
    (33) Any additional activities identified by TTP Coordinating 
Committee guidance and approved by the appropriate Secretaries (see 
Sec.  170.137).
    (34) Indirect general and administrative costs; and
    (35) Other eligible activities described in this part.
    (b) TTP funds can be used for the following construction and 
improvement activities:
    (1) Construction, reconstruction, rehabilitation, resurfacing, 
restoration, and operational improvements for Tribal transportation 
facilities.
    (2) Construction or improvement of Tribal transportation facilities 
necessary to accommodate other transportation modes.
    (3) Construction of toll roads, highway bridges and tunnels, and 
toll and non-toll ferry boats and terminal facilities, and approaches 
thereto (except when on the Interstate System) to the extent permitted 
under 23 U.S.C. 129.
    (4) Construction of projects for the elimination of hazards at 
railway-highway crossings, including the separation or protection of 
grades at crossings, the reconstruction of existing railroad grade 
crossing structures, and the relocation of highways to eliminate grade 
crossings.
    (5) Installation of protective devices at railway-highway crossings.
    (6) Transit facilities, whether publicly or privately owned, that 
serve Indian reservations and other communities or that provide access 
to or are located within an Indian reservation or community (see 
Sec. Sec.  170.131 through 170.134 for additional information).
    (7) Engineered pavement overlays that add to the structural value 
and design life or increase the skid resistance of the pavement.
    (8) Tribally-owned, post-secondary vocational school transportation 
facilities.
    (9) Road sealing.
    (10) The placement of a double bituminous surface and chip seals 
during the construction of an approved project (as the non-final course) 
or that form the final surface of low volume roads.
    (11) Seismic retrofit, replacement, rehabilitation, and painting of 
road bridges.
    (12) Application of calcium magnesium acetate, sodium acetate/
formate, or other environmentally acceptable, minimally corrosive anti-
icing and de-icing compositions on road bridges, and approaches thereto 
and other elevated structures.
    (13) Installation of scour countermeasures for road bridges and 
other elevated structures.
    (14) Special pedestrian facilities built in lieu of streets or 
roads, where standard street or road construction is not feasible.
    (15) Standard regulatory, warning, guide, and other official traffic 
signs, including dual language signs, which comply with the MUTCD that 
are part of transportation projects. TTP funds may also be used on 
interpretive signs (signs intended for viewing only by pedestrians, 
bicyclists, and occupants of vehicles parked out of the flow of traffic) 
that are culturally relevant (native language, symbols, etc.) that are a 
part of transportation projects.
    (16) Traffic barriers and bridge rails.
    (17) Engineered spot safety improvements.
    (18) Planning and development of rest areas, recreational trails, 
parking areas, sanitary facilities, water facilities, and other 
facilities that accommodate the traveling public.

[[Page 678]]

    (19) Public approach roads and interchange ramps that meet the 
definition of a Tribal Transportation Facility.
    (20) Construction of roadway lighting and traffic signals.
    (21) Adjustment or relocation of utilities directly related to 
roadway work, not required to be paid for by local utility companies.
    (22) Conduits crossing under the roadway to accommodate utilities 
that are part of future development plans.
    (23) Restoration of borrow and gravel pits created by projects 
funded from the TTP.
    (24) Force account and day labor work, including materials and 
equipment rental, being performed in accordance with approved plans and 
specifications.
    (25) Experimental features where there is a planned monitoring and 
evaluation schedule.
    (26) Capital and operating costs for traffic monitoring, management, 
and control facilities and programs.
    (27) Safely accommodating the passage of vehicular and pedestrian 
traffic through construction zones.
    (28) Construction engineering including contract/project 
administration, inspection, and testing.
    (29) Construction of temporary and permanent erosion control, 
including landscaping and seeding of cuts and embankments.
    (30) Landscape and roadside development features.
    (31) Marine facilities and terminals as intermodal linkages.
    (32) Construction of visitor information centers, kiosks, and 
related items.
    (33) Other appropriate public road facilities such as visitor 
centers as determined by the Secretary of Transportation.
    (34) Facilities adjacent to roadways to separate pedestrians and 
bicyclists from vehicular traffic for operational safety purposes, or 
special trails on separate rights-of-way.
    (35) Construction of pedestrian walkways and bicycle transportation 
facilities, such as a new or improved lane, path, or shoulder for use by 
bicyclists and a traffic control device, shelter, or parking facility 
for bicycles.
    (36) Facilities adjacent to roadways to separate modes of traffic 
for safety purposes.
    (37) Acquisition of scenic easements and scenic or historic sites 
provided they are part of an approved project or projects.
    (38) Debt service on bonds or other debt financing instruments 
issued to finance TTP construction and project support activities.
    (39) Any project to encourage the use of carpools and vanpools, 
including provision of carpooling opportunities to the elderly and 
individuals with disabilities, systems for locating potential riders and 
informing them of carpool opportunities, acquiring vehicles for carpool 
use, designating existing highway lanes as preferential carpool highway 
lanes, providing related traffic control devices, and designating 
existing facilities for use for preferential parking for carpools.
    (40) Fringe and corridor parking facilities including access roads, 
buildings, structures, equipment improvements, and interests in land.
    (41) Adjacent public parking areas.
    (42) Costs associated with obtaining permits and/or complying with 
Tribal, Federal, State, and local environmental, archeological, and 
natural resources regulations and standards on TTP projects.
    (43) Seasonal transportation routes, including snowmobile trails, 
ice roads, overland winter roads, and trail markings. (See Sec.  
170.117.)
    (44) Tribal fees such as employment taxes (TERO), assessments, 
licensing fees, permits, and other regulatory fees.
    (45) On-the-job education including classroom instruction and pre-
apprentice training activities related to TTP construction projects such 
as equipment operations, surveying, construction monitoring, testing, 
inspection and project management.
    (46) Installation of advance technological devices on TTP 
transportation facilities such as permanent weigh-in-motion systems, 
informational signs, intelligent transportation system hardware, etc.
    (47) Cultural and environmental resource monitoring, management, and 
mitigation for transportation related activities
    (48) Mitigation activities required by Tribal, State, or Federal 
regulatory agencies and 42 U.S.C. 4321, et seq., the National 
Environmental Policy Act (NEPA).
    (49) Purchasing, leasing or renting of construction or maintenance 
equipment. All equipment purchase request submittals must be accompanied 
by written cost analysis and approved by FHWA or BIA. When purchasing 
construction or maintenance equipment, a Tribe must:
    (i) Construction--Develop a lease/purchase cost analysis that 
identifies the overall benefit of purchasing the piece of equipment 
versus leasing. This analysis must be submitted to BIA or FHWA for 
approval per Sec.  170.113. If approved, the funding must be identified 
on a FHWA-approved TTIP in order to be expended in accordance with 23 
U.S.C. 202(b)(4)(B).
    (ii) Maintenance--The equipment costs are considered part of the 
funding identified in 23 U.S.C. 202(a)(8) and must be identified on a 
FHWA-approved TTIP in accordance with 23 U.S.C. 202(b)(4)(B) in order to 
be expended.
    (50) Coordination and construction materials for innovative 
readiness training projects operated by entities such as the Department 
of Defense (DOD), the American Red Cross, the Federal Emergency 
Management Agency (FEMA), other cooperating Federal agencies, States and 
their political subdivisions, Tribal governments, or other

[[Page 679]]

appropriate non-governmental organizations.
    (51) Emergency repairs on Tribal Transportation Facilities.
    (52) Public meetings and public involvement activities.
    (53) Construction of roads on dams and levees.
    (54) Transportation alternative activities as defined in 23 U.S.C. 
101(a).
    (55) Modification of public sidewalks adjacent to or within Tribal 
transportation facilities.
    (56) Highway and transit safety infrastructure improvements and 
hazard eliminations.
    (57) Transportation control measures such as employer-based 
transportation management plans, including incentives, shared-ride 
services, employer sponsored programs to permit flexible work schedules 
and other activities, other than clause (xvi) listed in section 
108(f)(1)(A) of the Clean Air Act, (42 U.S.C. 7408(f)(1)(A)).
    (58) Environmental restoration and pollution abatement activities in 
order to construct a transportation project or to mitigate impacts 
caused by a transportation project.
    (59) Trail development and related activities as identified in 
Sec. Sec.  170.123 through 170.126.
    (60) Development of scenic overlooks and information centers.
    (61) Natural habitat and wetlands mitigation efforts related to TTP 
projects, including:
    (i) Participation in natural habitat and wetland mitigation banks, 
including banks authorized under the Water Resources Development Act, 
and
    (ii) Contributions to Tribal, statewide and regional efforts to 
conserve, restore, enhance, and create natural habitats and wetland, 
including efforts authorized under the Water Resources Development Act.
    (62) Mitigation of damage to wildlife, habitat and ecosystems caused 
as a result of a transportation project.
    (63) Construction of permanent fixed or moveable structures for snow 
or sand control.
    (64) Cultural access roads (see Sec.  170.115).
    (65) Other eligible items as approved by the Federal Highway 
Administration (FHWA).
    (66) Any additional activities proposed by a Tribe or the TTP 
Coordinating Committee and approved by the appropriate Secretaries (see 
Sec. Sec.  170.113 and 170.136).
    (67) Other eligible activities identified in this part (c) TTP funds 
can be used for maintenance activities as defined in subpart G of this 
regulation.
    (d) Each of the items identified in this appendix must be 
interpreted in a manner that permits, rather than prohibits, a proposed 
use of funds.



Sec. Appendix B to Subpart B--Sources of Tribal Transportation Training 
                       and Education Opportunities

    The following is a list of some of the many governmental sources for 
Tribal transportation training and education opportunities. There may be 
other non-governmental, Tribal, or private sources not listed here.
    (1) National Highway Institute training courses and fellowships
    (2) State and local technical assistance center workshops
    (3) Tribal technical assistance centers (TTAC) workshops
    (4) FHWA and FTA Research Fellowships
    (5) Dwight David Eisenhower Transportation Fellowship (23 U.S.C. 
504)
    (6) Intergovernmental personnel agreement assignments
    (7) BIA transportation cooperative education program
    (8) BIA force account operations
    (9) Federal Transit Administration workshops
    (10) State Departments of Transportation
    (11) Federal-aid highway construction and technology training 
including skill improvement programs under 23 U.S.C. 140(b) and (c)
    (12) Other funding sources identified in Sec.  170.150 (Transit)
    (13) Department of Labor work force development
    (14) Indian Employment, Training, and Related Services Demonstration 
Act, Public Law 102-477
    (15) Garrett Morgan Scholarship (FHWA)
    (16) NTRC--National Transit Resource Center
    (17) CTER--Council for Tribal Employment Rights
    (18) BIA Indian Highway Safety Program
    (19) FHWA/STIPDG (Summer Transportation Internship Program for 
Diverse Groups) and NSTISS (National Summer Transportation Institute for 
Secondary Students) Student Internship Programs
    (20) Environmental Protection Agency (EPA)
    (21) Department of Commerce (DOC)
    (22) Department of Housing and Urban Development Community Planning 
and Development
    (23) Training program for bridge and tunnel inspectors
    (24) Transportation Research Board (TRB)



             Subpart C_Tribal Transportation Program Funding



Sec.  170.200  How do BIA and FHWA determine the TTP funding amount?

    23 U.S.C. 202(b)(3)(A) provides the basis for the funding formula 
and its transition into use. The annual TTP

[[Page 680]]

funding amount available for distribution is determined as follows:
    (a) The following set-asides are applied to the Tribal 
transportation program before the determination of final Tribal shares:
    (1) Tribal transportation planning (23 U.S.C. 202(c));
    (2) Tribal transportation facility bridges (23 U.S.C. 202(d));
    (3) Tribal safety (23 U.S.C 202(e));
    (4) Administrative expenses (23 U.S.C 202(a)(6)); and
    (5) Tribal supplemental program (23 U.S.C. 202(b)(3)(C)).
    (b) After deducting the set asides identified in paragraph (a) of 
this section, on October 1 of each fiscal year, the Secretaries will 
distribute the remainder authorized to be appropriated for the TTP among 
Indian Tribes as follows:
    (1) For fiscal year 2016 and thereafter:
    (i) For each Indian Tribe, 20 percent of the total relative need 
distribution factor and population adjustment factor as determined by 
the Tribal Transportation Allocation Methodology (see 25 CFR 170 dated 
July 19, 2004)) for the fiscal year 2011 funding amount made available 
to that Indian Tribe; and
    (ii) The remainder using Tribal shares as described in Sec.  170.201 
and Tribal supplemental funding as described in Sec.  170.202.
    (2) [Reserved]



Sec.  170.201  What is the statutory distribution formula for Tribal shares?

    (a) Tribal shares are determined by using the NTTFI as calculated 
for fiscal year 2012, and the most recent data on American Indian and 
Alaska Native population within each Indian Tribe's American Indian/
Alaska Native Reservation or Statistical Area, as computed under the 
Native American Housing Assistance and Self-Determination Act of 1996 
(25 U.S.C. 4101 et seq.), in the following manner:
    (1) 27 percent in the ratio that the total eligible road mileage in 
each Tribe bears to the total eligible road mileage of all American 
Indians and Alaskan Natives. For the purposes of this calculation, 
eligible road mileage will be computed using only facilities included in 
the inventory described below:
    (i) Were included in the BIA System Inventory prior to October 1, 
2004;
    (ii) Are owned by an Indian Tribal government;
    (iii) Are owned by the Bureau of Indian Affairs.
    (2) 39 percent in the ratio that the total population in each Tribe 
bears to the total population of all American Indians and Alaskan 
Natives; and
    (3) 34 percent will be initially divided equally among each BIA 
Region.
    (b) The share of funds will be distributed to each Indian Tribe 
within the BIA Region in the ratio that the average total relative need 
distribution factors and population adjustment factors from fiscal years 
2005 through 2011 for a Tribe bears to the average total of relative 
need distribution factors and population adjustment factors for fiscal 
years 2005 through 2011 in that region.



Sec.  170.202  How do BIA and FHWA determine and distribute the Tribal 
supplemental program funds?

    (a) The total amount of funding made available for the Tribal 
supplemental program is determined as follows:
    (1) If the amount made available for the TTP is less than or equal 
to $275,000,000, the Tribal supplemental funding amount will equal 30 
percent of such amount.
    (2) If the amount made available for the TTP exceeds $275,000,000, 
the Tribal supplemental funding will equal:
    (i) $82,500,000; plus
    (ii) 12.5 percent of the amount made available for the Tribal 
transportation program in excess of $275,000,000.
    (b) The Tribal supplemental program funds will be distributed as 
follows:
    (1) Initially, the Tribal supplemental program funding determined in 
paragraph (a) of this section will be designated among the BIA Regions 
in proportion to the regional total of Tribal shares based on the 
cumulative Tribal shares of all Indian Tribes within the region under 
Sec.  170.201.
    (2) After paragraph (b)(1) of this section is completed, the Tribal 
supplemental program funding designated for each region will be 
distributed among the Tribes within the region as follows:
    (i) The Secretaries will determine which Tribes would be entitled 
under Sec.  170.200 to receive in a fiscal year less

[[Page 681]]

funding than they would receive in fiscal year 2011 pursuant to the 
relative need distribution factor and population adjustment factor, as 
described in 25 CFR part 170, subpart C (in effect as of July 5, 2012); 
and
    (ii) The combined amount that such Indian Tribes would be entitled 
to receive in fiscal year 2011 pursuant to such relative need 
distribution factor and population adjustment factor in excess of the 
amount that they would be entitled to receive in the fiscal year under 
Sec.  170.200.
    (c) Subject to paragraph (d) of this section, the Secretaries will 
distribute a combined amount to each Tribe that meets the criteria 
described in paragraph (b)(2)(i) of this section a share of funding in 
proportion to the share of the combined amount determined under 
paragraph (b)(2)(ii) of this section attributable to such Indian Tribe.
    (d) A Tribe may not receive under paragraph (b)(2) of this section 
and based on its Tribal share under Sec.  170.200 a combined amount that 
exceeds the amount that such Indian Tribe would be entitled to receive 
in fiscal year 2011 pursuant to the relative need distribution factor 
and population adjustment factor, as described in 25 CFR part 170, 
subpart C.
    (e) If the amount made available for a region under paragraph (b)(1) 
of this section exceeds the amount distributed among Indian Tribes 
within that region under paragraph (b)(2) of this section, The 
Secretaries will distribute the remainder of such region's funding under 
paragraph (b)(1) of this section among all Tribes in that region in 
proportion to the combined amount that each such Tribe received under 
Sec.  170.200 and paragraphs (b), (c), and (d) of this section.



Sec.  170.203  How are Tribal transportation planning funds provided to Tribes?

    Tribal transportation planning funds described in Sec.  
170.200(a)(1) are calculated pro rata to each Tribe's final percentage 
as determined under Sec. Sec.  170.200 through 170.202. Upon request of 
a Tribal government and approval by the BIA Regional Office or FHWA, 
these funds are made available to the Tribes under applicable BIA and 
FHWA contracting procedures.



Sec.  170.204  What restrictions apply to TTP funds provided to Tribes?

    All TTP funds provided to Tribes can be expended only on eligible 
projects and activities identified in Sec.  170.111 and included in an 
FHWA-approved TIP per 23 U.S.C. 202(b)(4)(B).



Sec.  170.205  What is the timeframe for distributing TTP funds?

    Not later than 30 days after the date on which funds are made 
available to the Secretary under this paragraph, the funds shall be 
distributed to, and made available for immediate use by, eligible Indian 
Tribes, in accordance with the formula for distribution of funds under 
the TTP. (See 23 U.S.C. 202(b)(4)(A).)

                          Formula Data Appeals



Sec.  170.226  How can a Tribe appeal its share calculation?

    (a) In calculating Tribal shares, BIA and FHWA use population data 
(which may be appealed) and specific prior-year data (which may not be 
appealed). Share calculations are based upon the requirements of 23 
U.S.C. 202(b)(3)(B).
    (b) Any appeal of a Tribe's population figure must be directed to 
Department of Housing and Urban Development, Indian Housing Office of 
Native American Programs. The population data used is the most recent 
data on American Indian and Alaska Native population within each Indian 
Tribe's American Indian/Alaska Native Reservation or Statistical Area. 
This data is computed under the Native American Housing Assistance and 
Self-Determination Act of 1996 (25 U.S.C. 4101 et seq.).
    (c) Appeal processes regarding inventory submissions are found at 
Sec.  170.444(c), design standards at Sec.  170.457, and new uses of 
funds at Sec.  170.113.

                           Flexible Financing



Sec.  170.227  Can Tribes use flexible financing for TTP projects?

    Yes. Tribes may use flexible financing in the same manner as States 
to finance TTP transportation projects, unless otherwise prohibited by 
law.

[[Page 682]]

    (a) Tribes may issue bonds or enter into other debt-financing 
instruments under 23 U.S.C. 122 with the expectation of payment of TTP 
funds to satisfy the instruments.
    (b) Under 23 U.S.C. 603, the Secretary of Transportation may enter 
into an agreement for secured loans or lines of credit for TTP projects 
meeting the requirements contained in 23 U.S.C. 602. The secured loans 
or lines of credit must be paid from tolls, user fees, payments owing to 
the obligor under a public-private partnership or other dedicated 
revenue sources.
    (c) Tribes may use TTP funds as collateral for loans or bonds to 
finance TTP projects. Upon the request of a Tribe, a BIA region or FHWA 
will provide necessary documentation to banks and other financial 
institutions.



Sec.  170.228  Can a Tribe use TTP funds to leverage other funds 
or to pay back loans?

    (a) A Tribe can use TTP funds to leverage other funds.
    (b) A Tribe can use TTP funds to pay back loans or other finance 
instruments (including those provided through an agreement with another 
Tribe) that were used for a project that:
    (1) The Tribe paid for in advance of the current year using non-TTP 
funds;
    (2) Was included in FHWA-approved TTPTIP; and
    (3) Was included in the NTTFI at the time of construction.



Sec.  170.229  Can a Tribe apply for loans or credit 
from a State infrastructure bank?

    Yes. A Tribe can apply for loans or credit from a State 
infrastructure bank. Upon the request of a Tribe, BIA region or FHWA 
will provide necessary documentation to a State infrastructure bank to 
facilitate obtaining loans and other forms of credit for a TTP project.



Sec.  170.230  How long must a project financed through flexible financing 
remain on a TTPTIP?

    Tribes must identify each TTP project financed through flexible 
financing along with the repayment amount on their annual TTPTIP until 
the flexible financing instrument has been satisfied.

                           TTP Data Reporting



Sec.  170.240  What TTP project and activity data must be submitted annually 
to the Secretaries?

    (a) In accordance with 23 U.S.C. 201(c)(6)(C), no later than 90 days 
after the last day of each fiscal year, any entity carrying out a 
project under the TTP under 23 U.S.C. 202 shall submit to the 
Secretaries, based on obligations and expenditures under the TTP during 
the preceding fiscal year, the following data:
    (1) The names of projects and activities carried out by the entity 
under the TTP during the preceding fiscal year.
    (2) A description of the projects and activities identified under 
paragraph (1) of this section;
    (3) The current status of the projects and activities identified 
under paragraph (1) of this section; and
    (4) An estimate of the number of jobs created and the number of jobs 
retained by the projects and activities identified under paragraph (1) 
of this section.
    (b) FHWA and BIA shall provide an electronic portal to assist Tribes 
in submitting the data needed to fulfill the requirements of 23 U.S.C. 
201(c)(6)(C).



 Subpart D_Planning, Design, and Construction of Tribal Transportation 
                           Program Facilities

                         Transportation Planning



Sec.  170.400  What is the purpose of transportation planning?

    The purpose of transportation planning is to address current and 
future transportation, land use, economic development, traffic demand, 
public safety, health, and social needs.



Sec.  170.401  What are BIA's and FHWA's roles in transportation planning?

    Except as provided in Sec.  170.402, the functions and activities 
that BIA and/or FHWA must perform for the TTP transportation planning 
are:
    (a) Reviewing, and approving the TTPTIP as well as providing 
technical

[[Page 683]]

assistance to the Tribes during the development of their TTIP or 
Priority List:
    (b) Oversight of the NTTFI;
    (c) Performing quality assurance and validation of NTTFI data 
updates as needed;
    (d) Coordinating with States and their political subdivisions and 
appropriate planning authorities on regionally significant TTP projects;
    (e) Providing technical assistance to Tribal governments;
    (f) Developing TTP budgets;
    (g) Facilitating public involvement;
    (h) Participating in transportation planning and other 
transportation-related meetings;
    (i) Performing quality assurance and validation related to 
performing traffic studies;
    (j) Performing preliminary project planning or project 
identification studies;
    (k) Conducting special transportation studies;
    (l) Developing short- and long-range transportation plans;
    (m) Mapping;
    (n) Developing and maintaining management systems;
    (o) Performing transportation planning for operational and 
maintenance facilities; and
    (p) Researching rights-of-way documents for project planning.



Sec.  170.402  What is the Tribal role in transportation planning?

    (a) All Tribes must prepare a TTIP or Tribal priority list.
    (b) Tribes operating with a Program Agreement or BIA self-
determination contract, TTP agreement, or self-governance agreement may 
assume any of the following planning functions:
    (1) Coordinating with States and their political subdivisions, and 
appropriate planning authorities on regionally significant TTP projects;
    (2) Preparing NTTFI data updates and ensuring that the data is 
entered into the NTTFI;
    (3) Facilitating public involvement;
    (4) Performing traffic studies;
    (5) Developing short- and long-range transportation plans;
    (6) Mapping;
    (7) Developing and maintaining Tribal management systems;
    (8) Participating in transportation planning and other 
transportation related meetings;
    (9) Performing transportation planning for operational and 
maintenance facilities;
    (10) Developing TTP budgets including transportation planning cost 
estimates;
    (11) Conducting special transportation studies, as appropriate;
    (12) Researching rights-of-way documents for project planning; and
    (13) Performing preliminary project planning or project 
identification studies.



Sec.  170.403  What TTP funds can be used for transportation planning?

    Funds as defined in 23 U.S.C. 202(c) are allocated to an Indian 
Tribal government to carry out transportation planning. Tribes may also 
identify transportation planning as a priority use for their TTP Tribal 
share formula funds. In both cases, the fund source and use must be 
clearly identified on a FHWA-approved TTPTIP.



Sec.  170.404  Can Tribes use transportation planning funds 
for other activities?

    Yes. After completion of a Tribe's annual planning activities, 
unexpended planning funds made available under 23 U.S.C. 202(c) may be 
used on eligible projects or activities provided that they are 
identified on a FHWA-approved TTPTIP.



Sec.  170.405  How must Tribes use planning funds?

    TTP funds as defined in 23 U.S.C. 202(c) are available to a Tribal 
government to support Tribal transportation planning and associated 
activities, including:
    (a) Attending transportation planning meetings;
    (b) Pursuing other sources of funds; and
    (c) Developing the Tribal priority list, TTIP, LRTP, or any of the 
transportation planning functions and activities listed in Sec.  
170.402.

[[Page 684]]



Sec. Sec.  170.406-170.408  [Reserved]



Sec.  170.409  What is the purpose of long-range transportation planning?

    (a) The purpose of long-range transportation planning is to clearly 
demonstrate a Tribe's transportation needs and to develop strategies to 
meet these needs. These strategies should address future land use, 
economic development, traffic demand, public safety, and health and 
social needs. The planning process should result in a LRTP.
    (b) The time horizon for a LRTP should be 20 years to match State 
transportation planning horizons.



Sec.  170.410  How does a long-range transportation plan relate to the NTTFI?

    A LRTP is developed using a uniform process that identifies the 
transportation needs and priorities of a Tribe. The NTTFI (see Sec.  
170.442) is derived from transportation facilities identified through an 
LRTP. It is also a means for identifying projects and activities for the 
TTP.



Sec.  170.411  What should a long-range transportation plan include?

    A LRTP should include:
    (a) An evaluation of a full range of transportation modes and 
connections between modes such as highway, rail, air, and water, to meet 
transportation needs;
    (b) Trip generation studies, including determination of traffic 
generators due to land use;
    (c) Social and economic development planning to identify 
transportation improvements or needs to accommodate existing and 
proposed land use in a safe and economical fashion;
    (d) Measures that address health and safety concerns relating to 
transportation improvements;
    (e) A review of the existing and proposed transportation system to 
identify the relationships between transportation and the environment;
    (f) Cultural preservation planning to identify important issues and 
develop a transportation plan that is sensitive to Tribal cultural 
preservation;
    (g) Scenic byway and tourism plans;
    (h) Measures that address energy conservation considerations;
    (i) A prioritized list of short- and long-term transportation needs; 
and
    (j) An analysis of funding alternatives to implement plan 
recommendations.



Sec.  170.412  How is the Tribal TTP long-range transportation plan 
developed and approved?

    (a) The Tribal TTP long-range transportation plan is developed by 
either:
    (1) A Tribe working through a self-determination contract, self-
governance agreement, Program Agreement; and other appropriate 
agreement; or
    (2) BIA or FHWA upon request of, and in consultation with, a Tribe. 
The Tribe and BIA or FHWA need to agree on the methodology and elements 
included in development of the TTP long-range transportation plan along 
with time frames before work begins. The development of a long-range 
transportation plan on behalf of a Tribe will be funded from the Tribe's 
share of the TTP funds.
    (b) During the development of the TTP long-range transportation 
plan, the Tribe and BIA or FHWA will jointly conduct a midpoint review.
    (c) The public reviews a draft TTP long-range transportation plan as 
required by Sec.  170.413. The plan is further refined to address any 
issues identified during the public review process. The Tribe then 
approves the TTP long-range transportation plan.



Sec.  170.413  What is the public's role in developing the long-range 
transportation plan?

    BIA, FHWA, or the Tribe must solicit public involvement. If there 
are no Tribal policies regarding public involvement, a Tribe must use 
the procedures in this section. Public involvement begins at the same 
time long-range transportation planning begins and covers the range of 
users, from stakeholders and private citizens to major public and 
private entities. Public involvement must include either meetings or 
notices, or both.
    (a) For public meetings, BIA, FHWA or the Tribe must:
    (1) Advertise each public meeting in local and Tribal public 
newspapers at least 15 days before the meeting date.

[[Page 685]]

In the absence of local and Tribal public newspapers, BIA, FHWA, or the 
Tribe may post notices under locally acceptable practices;
    (2) Provide at the meeting copies of the draft LRTP;
    (3) Provide information on funding and the planning process; and
    (4) Provide the public the opportunity to comment, either orally or 
in writing.
    (b) For public notices, BIA, FHWA, or the Tribe must:
    (1) Publish a notice in the local and Tribal public newspapers when 
the draft LRTP is complete. In the absence of local and Tribal public 
newspapers, BIA, FHWA, or the Tribe may post notices under locally 
acceptable practices; and
    (2) State in the notice that the LRTP is available for review, where 
a copy can be obtained, whom to contact for questions, where comments 
may be submitted, and the deadline for submitting comments (normally 30 
days).



Sec.  170.414  How is the Tribal long-range transportation plan 
used and updated?

    The Tribal government uses its TTP long-range transportation plan to 
develop transportation projects as documented in a Tribal priority list 
or TTIP and to identify and justify the Tribe's updates to the NTTFI. To 
be consistent with State, Metropolitan Planning Organization (MPO) and 
Regional Planning Organization (RPO) planning practices, the TTP long-
range transportation plan must be reviewed annually and updated at least 
every five years.



Sec.  170.415  What are pre-project planning and project 
identification studies?

    (a) Pre-project planning and project identification studies are part 
of overall transportation planning and include the activities conducted 
before final project approval on the TTPTIP. These processes provide the 
information necessary to financially constrain and program a project on 
the four-year TTPTIP but are not the final determination that projects 
will be designed and built. These activities include:
    (1) Preliminary project cost estimates;
    (2) Certification of public involvement;
    (3) Consultation and coordination with States and/or MPO's for 
regionally significant projects;
    (4) Preliminary needs assessments; and
    (5) Preliminary environmental and archeological reviews.
    (b) BIA and/or FHWA, upon request of the Tribe, will work 
cooperatively with Tribal, State, regional, and metropolitan 
transportation planning organizations concerning the leveraging of funds 
from non-TTP sources and identification of other funding sources to 
expedite the planning, design, and construction of projects on the 
TTPTIP.



Sec.  170.420  What is the Tribal priority list?

    The Tribal priority list is a list of all transportation projects 
that the Tribe wants funded. The list:
    (a) Is not financially constrained; and
    (b) Is provided to BIA or FHWA by official Tribal action, unless the 
Tribal government submits a TTIP.

               Tribal Transportation Improvement Programs



Sec.  170.421  What is the Tribal Transportation Improvement Program (TTIP)?

    (a) The TTIP:
    (1) Is developed from and must be consistent with the Tribe's Tribal 
priority list or LRTP;
    (2) Is financially constrained for all identified funding sources;
    (3) Must identify (year by year) all TTP funded projects and 
activities that are expected to be carried out over the next four years 
as well as the projected costs and all other funding sources that are 
expected to be used on those projects. Although 23 U.S.C. 134(j)(1)(D) 
indicates a TIP must be updated once every four years, Tribes are 
encouraged to update the TTIP annually to best represent the plans of 
the Tribe;
    (4) Must identify all projects and activities that are funded 
through other Federal, State, county, and municipal transportation funds 
and are carried

[[Page 686]]

out by the Tribe in accordance with 23 U.S.C. 202(a)(9);
    (5) Must include public involvement;
    (6) Is reviewed and updated as necessary by the Tribal government;
    (7) Can be changed only by the Tribal government; and
    (8) After approval by the Tribal government, must be forwarded to 
BIA or FHWA by Tribal resolution or authorized governmental action 
certifying public involvement has occurred and requesting approval.
    (b) A copy of the FHWA-approved TTIP is returned to the Tribe and 
BIA. Although the FHWA-approved TTIP authorizes the Tribe to expend TTP 
funds for the projects and/or activities shown, it does not waive or 
modify other Federal, local, or financial statutory or regulatory 
requirements associated with the projects or activities.



Sec.  170.422  How does the public participate in developing the TTIP?

    Public involvement is required in the development of the TTIP.
    (a) The Tribe must publish a notice in local and/or Tribal 
newspapers when the draft TTIP is complete. In the absence of local 
public newspapers, the Tribe or BIA may post notices under locally 
acceptable practices. The notice must indicate where a copy can be 
obtained, a contact person for questions, where comments may be 
submitted, and the deadline for submitting comments. A copy of the 
notice will be made available to BIA or FHWA upon request.
    (b) The Tribe may hold public meetings at which the public may 
comment orally or in writing.
    (c) The Tribe, the State transportation department, or MPO may 
conduct public involvement activities.



Sec.  170.423  How are annual updates or amendments to the TTIP conducted?

    (a) The TTIP annual update allows:
    (1) Changes to schedules and funding amounts for identified projects 
and activities; and
    (2) The addition of transportation projects and activities planned 
for the next four years.
    (b) During the first quarter of a fiscal year, Tribes will be 
notified of the opportunity to update their TTIP. This notification will 
contain information on where the Tribes can access their estimated TTP 
funding amounts for that fiscal year, and will include a copy of their 
previously approved TTIP, as well as instructions for submitting the 
annual update.
    (c) The Tribe must then review any new transportation planning 
information and priority lists, update their TTIP using the procedures 
in Sec.  170.421, and forward the documentation to their respective BIA 
Regional Office or to FHWA.
    (d) If forwarded to:
    (1) A BIA Regional Office--The Office will review all submitted 
information with the Tribe and provide a written response (concurring, 
denying, or requesting additional information) within 45 days. If the 
BIA regional office concurs in the TTIP, it is then forwarded to FHWA 
for final approval.
    (2) FHWA-FHWA will review all submitted information with the Tribe 
and provide a written response (approving, denying, or requesting 
additional information) within 45 days. Once a proposed TTIP update is 
approved by FHWA, it will be included in that year's overall TTPTIP.
    (e) The Tribe may amend their approved TTIP at any time using the 
procedures in Sec.  170.421 and paragraph (d) of this section in order 
to add a new project or activity within the current fiscal year that 
they intend to expend TTP funds on.



Sec.  170.424  What is the TTP Transportation Improvement Program (TTPTIP)?

    (a) Each year, FHWA will compile the approved TTIPs for all of the 
Tribes into one document called the TTPTIP. This document will identify 
all expected projects and activities over a four-year period and will be 
organized by fiscal year, State, and Tribe.
    (b) FHWA and BIA will post the approved TTPTIP on their respective 
Web sites. A subset of the TTPTIP that identifies only design and 
construction activities will annually be provided to the pertinent FHWA 
Division office for further transmittal to each State Transportation 
Office/Department for

[[Page 687]]

inclusion in the STIP without further action per 23 U.S.C. 201(c)(4).

                             Public Hearings



Sec.  170.435  When is a public hearing required?

    The Tribe, or BIA or FHWA after consultation with the appropriate 
Tribe and other involved agencies, determines whether or not a public 
hearing is needed for a TTPTIP, a LRTP, or a project. A public hearing 
must be held if a project:
    (a) Is for the construction of a new route or facility;
    (b) Would significantly change the layout or function of connecting 
or related roads or streets;
    (c) Would cause a substantial adverse effect on adjacent property; 
or
    (d) Is controversial or expected to be controversial in nature.



Sec.  170.436  How are public hearings for TTP planning and projects funded?

    Public hearings for a TTIP or a Tribe's LRTP are funded using the 
Tribe's funds as described in Sec.  170.403.



Sec.  170.437  If there is no hearing, how must BIA, FHWA, 
or a Tribe inform the public?

    (a) When no public hearing for a TTP project is scheduled, the BIA, 
FHWA, or a Tribe must give adequate notice to the public before project 
activities are scheduled to begin. The notice should include:
    (1) Project location;
    (2) Type of improvement planned;
    (3) Dates and schedule for work;
    (4) Name and address where more information is available; and
    (5) Provisions for requesting a hearing.
    (b) If the work is not to be performed by the Tribe, BIA will send a 
copy of the notice to the affected Tribe.



Sec.  170.438  How must BIA, FHWA, or a Tribe inform the public 
of when a hearing is held?

    (a) When BIA, FHWA, or a Tribe holds a hearing under this part, it 
must notify the public of the hearing by publishing a notice with 
information about the project, how to attend the hearing, and where 
copies of documents can be obtained or viewed.
    (b) BIA or the Tribe must publish the notice by:
    (1) Posting the notice and publishing it in a newspaper of general 
circulation at least 30 days before the public hearing; and,
    (2) Sending a courtesy copy of the notice to each affected Tribe and 
BIA Regional Office.
    (c) A second notice for a hearing is optional.



Sec.  170.439  How is a public hearing conducted?

    (a) Presiding official. A Tribal (tribal council) or Federal (FHWA 
or BIA) official will be appointed to preside over the public hearing. 
The presiding official must encourage a free and open discussion of the 
issues.
    (b) Record of hearing. The presiding official is responsible for 
compiling the official record of the hearing. A record of a hearing is a 
summary of oral testimony and all written statements submitted at the 
hearing. Additional written comments made or provided at the hearing, or 
within five working days of the hearing, will be made a part of the 
record.
    (c) Hearing process. (1) The presiding official explains the purpose 
of the hearing and provides an agenda;
    (2) The presiding official solicits public comments from the 
audience on the merits of TTP projects and activities; and
    (3) The presiding official informs the hearing audience of the 
appropriate procedures for a proposed TTP project or activity that may 
include, but are not limited to:
    (i) Project development activities;
    (ii) Rights-of-way acquisition;
    (iii) Environmental and archeological clearance;
    (iv) Relocation of utilities and relocation services;
    (v) Authorized payments under the Uniform Relocation Assistance and 
Real Property Acquisition Policies Act, 42 U.S.C. 4601 et seq., as 
amended;
    (vi) Draft transportation plan; and
    (vii) The scope of the project and its effect on traffic during and 
after construction.
    (d) Availability of information. Appropriate maps, plats, project 
plans, and specifications will be available at the

[[Page 688]]

hearing for public review. Appropriate officials must be present to 
answer questions.
    (e) Opportunity for comment. Comments are received as follows:
    (1) Oral statements at the hearing;
    (2) Written statements submitted at the hearing; and
    (3) Written statements sent to the address noted in the hearing 
notice within five working days following the public hearing.



Sec.  170.440  How can the public learn the results of a public hearing?

    Within 20 working days after the public hearing, the presiding 
official will issue and post at the hearing site a statement that:
    (a) Summarizes the results of the hearing;
    (b) Explains any needed further action;
    (c) Explains how the public may request a copy; and
    (d) Outlines appeal procedures.



Sec.  170.441  Can a decision resulting from a hearing be appealed?

    Yes. A decision resulting from the public hearing may be appealed 
under 25 CFR part 2.

            National Tribal Transportation Facility Inventory



Sec.  170.442  What is the National Tribal Transportation Facility Inventory?

    (a) The National Tribal Transportation Facility Inventory (NTTFI), 
is defined under Sec.  170.5 of this part.
    (b) BIA, FHWA, or Tribes can also use the NTTFI to assist in 
transportation and project planning, justify expenditures, identify 
transportation needs, maintain existing TTP facilities, and develop 
management systems.
    (c) The Secretaries may include additional transportation facilities 
in the NTTFI if the additional facilities are included in a uniform and 
consistent manner nationally.
    (d) As required by 23 U.S.C. 144, all bridges in the NTTFI will be 
inspected and recorded in the national bridge inventory administered by 
the Secretary of Transportation.
    (e) In accordance with 23 U.S.C. 202(b)(1)(A-B) and the principles 
of program stewardship and oversight, the Secretaries have the authority 
to maintain the NTTFI and shall ensure the eligibility of the facilities 
and the accuracy of the data included in the NTTFI.



Sec.  170.443  What is required to successfully include a proposed 
transportation facility in the NTTFI?

    (a) A proposed transportation facility is any transportation 
facility, including a highway bridge, that will serve public 
transportation needs, meets the eligibility requirements of the TTP, and 
does not currently exist. It must meet the eligibility requirements of 
the TTP and be open to the public when constructed. In order to have a 
proposed facility placed on the NTTFI, a Tribe must submit all of the 
following to the BIADOT/FHWA Quality Assurance Team for consideration:
    (1) A Tribal resolution or other official action identifying support 
for the facility and its placement on the NTTFI.
    (2) A copy of the Tribe's LRTP containing:
    (i) A description of the current land use and identification of land 
ownership within the proposed road's corridor (including what public 
easements may be required);
    (ii) A description of need and outcomes for the facility including a 
description of the project's termini; and
    (iii) The sources of funding to be used for construction.
    (3) If the landowner is a public authority other than the Tribe or 
BIA, documentation from the public authority that the proposed road has 
been identified in their LRTP, STIP approved by FHWA, or other published 
transportation planning documents.
    (4) Documentation clearly identifying that easements or rights-of-
way have been acquired or a clear written statement of willingness to 
provide a right-of-way from each landowner along the route.
    (5) Certification that a public involvement process has been carried 
out for the proposed road.
    (6) A synopsis discussing the project's anticipated environmental 
impacts as well as the engineering and construction challenges.

[[Page 689]]

    (7) Documentation that the project can meet financial or fiscal 
constraint requirements including financial information demonstrating 
that the project can be implemented using existing or reasonably 
available funding sources, and that the project route can be adequately 
maintained after construction. (See 23 U.S.C. 134 and 135.)
    (8) Documentation identifying the entity responsible for maintenance 
of the facility after construction is completed.
    (b) For those proposed roads that currently exist in the NTTFI, the 
requirements identified above as paragraphs (a)(1) through (a)(8) of 
this section, must be completed and submitted for approval to BIA and 
FHWA by November 7, 2019, in order to remain on the inventory.

[81 FR 78463, Nov. 7, 2016, as amended at 82 FR 50313, Oct. 31, 2017]



Sec.  170.444  How is the NTTFI updated?

    (a) Submitting data into the NTTFI for a new facility is carried out 
on an annual basis as follows:
    (1) BIA Regional Offices provide each Tribe within its region with a 
copy of the Tribe's own NTTFI data during the first quarter of each 
fiscal year.
    (2) Tribes review the provided data and are responsible for entering 
all changes/updates into the database. This work must be completed by 
March 15. The submissions must include, at a minimum, all required 
minimum attachments (see Sec.  170.446) and authorizing resolutions or 
similar official authorizations.
    (3) The BIA Regional Office reviews each Tribe's submission. If any 
errors or omissions are identified, the BIA Regional Office will return 
the submittals along with a request for corrections to the Tribe no 
later than May 15. If no errors or omissions are found, the BIA Regional 
Office validates the data and forwards it to BIADOT for review and 
approval.
    (4) The Tribe must correct any errors or omissions in the data 
entries or return the corrected submittals back to the BIA Regional 
Office by June 15.
    (5) Each BIA Regional Office must validate its regional data by July 
15.
    (6) BIADOT approves the current inventory year submissions from BIA 
Regional Offices by September 30 or returns the submissions to the BIA 
Regional Office if additional work is required.
    (7) New facility data submitted outside of the above referenced 
dates are not guaranteed for inclusion in the official inventory 
identified in this subsection.
    (b) Updating the data on a facility currently listed in the NTTFI is 
carried out as follows:
    (1) At any time, a Tribe may submit a request to the BIA Region 
asking for the NTTFI data of an existing facility to be updated. The 
request must include the Tribe's updated data and background information 
on how and why the data was obtained. At the request of a Tribe, FHWA 
may assist BIA and the Tribe in updating the NTTFI data as required 
under this part.
    (2) The BIA Region must review the submitted data and respond to the 
Tribe within 30 days of its receipt.
    (i) If approved, the BIA Region validates the data and forwards it 
to BIADOT for review and approval.
    (ii) If not approved, the BIA Region returns the submittals to the 
Tribe along with a detailed written explanation and supporting 
documentation of the reasons for the disapproval. The Tribe must correct 
the data entries and return the corrected submittals back to the BIA 
Region.
    (3) BIADOT approves the current inventory year submittals from BIA 
Regional Offices or returns the submittals to the BIA Regional Office if 
additional work is required.
    (c) A Tribe may appeal the rejection of submitted data on a new or 
existing facility included in the NTTFI by filing a written notice of 
appeal to the Director, Bureau of Indian Affairs, with a copy to the BIA 
Regional Director.
    (d) To be included in the annual NTTFI update used for 
administrative and reporting purposes for any given fiscal year, 
submittals for new facilities and updates for existing facilities must 
be officially accepted by BIA and FHWA by September 30th of that year.

[[Page 690]]



Sec.  170.445  [Reserved]



 Sec.  170.446  What minimum attachments are required for an NTTFI submission?

    The minimum attachments required for a facility to be added into the 
NTTFI include the following.
    (a) A long-range transportation plan.
    (b) A Tribal resolution or official authorization that refers to all 
route numbers, names, locations, lengths, construction needs, and 
ownerships.
    (c) A Strip map. See Sec.  170.5.
    (d) Average Daily Traffic (ADT) documentation.
    (e) A typical or representative section photo or bridge profile 
photo.
    (f) Incidental cost verification.
    (g) Acknowledgement of Public Authority responsibility.
    (h) For proposed roads, see Sec.  170.443 for additional required 
attachments. Please see the TTP Coding Guide for additional information 
on the NTTFI minimum attachments.



Sec.  170.447  How are the allowable lengths of access roads 
in the NTTFI determined?

    The allowable length of an access road in the NTTFI is determined as 
follows:
    (a) If the road section intersects or abuts a federally recognized 
Tribal boundary, then the length of the access road is the distance from 
the boundary extending to the intersection of an equal or greater 
functional classification but no more than 15 miles.
    (b) If the road section does not intersect or abut a federally 
recognized Tribal boundary, the following applies:
    (1) If the road section intersects or abuts an Alaska Native Claims 
Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.) village corporation 
transportation service area, then the length of the access road is the 
distance from the ANCSA village corporation transportation service area 
extending to the intersection of an equal or greater functional 
classification but no more than 15 miles.
    (2) If the road section is located outside of an ANCSA village 
corporation and located within a developed Alaska Native Village with a 
population more than 50% Alaska Native/American Indian, then the length 
of the access road is defined as the distance beginning five miles 
outside of the developed area of the Alaska Native Village extending to 
the intersection of an equal or greater functional classification but no 
more than 15 miles.
    (3) If the road section intersects or abuts a Tribally owned trust 
or fee parcel located outside of an incorporated municipal boundary, 
then the length of the access road is defined as the distance beginning 
five miles outside of the Tribally owned trust or fee parcel boundary 
extending to the intersection of an equal or greater functional 
classification but no more than 15 miles.
    (4) If the road section intersects or abuts a Tribally owned trust 
or fee parcel located inside of an incorporated municipal boundary, then 
the length of the access road is defined as the distance from the 
Tribally owned trust or fee parcel boundary extending to the 
intersection of an equal or greater functional classification but no 
more than 15 miles.

              Environmental and Archeological Requirements



Sec.  170.450  What archeological and environmental requirements 
must the TTP meet?

    All BIA, FHWA, and Tribal work for the TTP must comply with cultural 
resource and environmental requirements under applicable Federal laws 
and regulations. A list of applicable laws and regulations is shown in 
appendix A to this subpart and is also available in the official Tribal 
Transportation Program Guide.



Sec.  170.451  Can TTP funds be used for archeological 
and environmental compliance?

    Yes. For approved TTP projects, TTP funds can be used for 
environmental and archeological work consistent with Sec.  170.450 and 
applicable Tribal laws for:
    (a) Road and bridge rights-of-way;
    (b) Borrow pits and aggregate pits and water sources associated with 
TTP activities staging areas;
    (c) Limited mitigation outside of the construction limits as 
necessary to address the direct impacts of the construction activity as 
determined in the

[[Page 691]]

environmental analysis and after consultation with all affected Tribes 
and appropriate Secretaries; and
    (d) Construction easements.



Sec.  170.452  When can TTP funds be used for archeological 
and environmental activities?

    TTP funds can be used on a project's archeological and environmental 
activities only after the TTP facility is included in the Tribe's LRTP 
and the NTTFI, and the project identified on an FHWA-approved TTPTIP.



Sec.  170.453  Do the Categorical Exclusions under the National Environmental 
Policy Act (NEPA) and the regulations at 23 CFR 771 apply to TTP activities?

    Yes. Regardless of whether BIA or FHWA is responsible for the 
oversight of a Tribe's TTP activities, the Categorical Exclusions under 
NEPA at 23 CFR 771.117 governing the use of funds made available through 
title 23 shall apply to all qualifying TTP projects involving the 
construction or maintenance of roads.

                                 Design



Sec.  170.454  What design standards are used in the TTP?

    (a) Depending on the nature of the project, Tribes must use 
appropriate design standards approved by FHWA. Appendix B to this 
subpart as well as the official Tribal Transportation Program Guide list 
the applicable design standards that can be used.
    (b) All other design standards not listed in (a) must receive 
approval from FHWA.



Sec.  170.455  What other factors must influence project design?

    The appropriate design standards must be applied to each 
construction project consistent with a minimum 20-year design life for 
highway projects and 75-year design life for highway bridges. The design 
of TTP projects must take into consideration:
    (a) The existing and planned future use of the facility in a manner 
that is conducive to safety, durability, and economy of maintenance;
    (b) The particular needs of each locality, and the environmental, 
scenic, historic, aesthetic, community, and other cultural values and 
mobility needs in a cost effective manner; and
    (c) Access and accommodation for other modes of transportation.



Sec.  170.456  How can a Tribe request an exception from the design standards?

    (a) A Tribe can request an exception from the required design 
standards from FHWA. The engineer of record (the State licensed civil 
engineer whose name and professional stamp appear on the PS&E or who is 
responsible for the overall project design) must submit written 
documentation with appropriate supporting data, sketches, details, and 
justification based on engineering analysis.
    (b) FHWA can approve a project design that does not conform to the 
minimum criteria only after giving due consideration to all project 
conditions, such as:
    (1) Maximum service and safety benefits for the dollar invested;
    (2) Compatibility with adjacent features; and
    (3) Probable time before reconstruction of the project due to 
changed conditions or transportation demands.
    (c) FHWA has 30 days from receiving the request to approve or 
decline the exception.



Sec.  170.457  Can a Tribe appeal a denial?

    Yes. Tribes may appeal the denial of a design exception to: FHWA 
Office of Federal Lands Highway, 1200 New Jersey Ave. SE., HFL-1, 
Washington, DC 20590. If FHWA denies a design exception, the Tribe may 
appeal the decision Office of the FHWA Administrator, 1200 New Jersey 
Ave. SE., HOA-1, Washington, DC 20590.

       Review and Approval of Plans, Specifications and Estimates



Sec.  170.460  What must a project package include?

    The project package must include the following documentation, 
approved by the appropriate Public Authority, before the start of 
construction:
    (a) Plans, specifications, and estimates;

[[Page 692]]

    (b) A Tribal resolution or other authorized document supporting the 
project;
    (c) Certification of compliance with the requirements of 25 CFR part 
169, as well as any additional public taking documentation clearances, 
if applicable.
    (d) Required environmental, archeological, and cultural clearances; 
and
    (e) Identification of design exceptions if used in the plans.



Sec.  170.461  May a Tribe approve plans, specifications, and estimates?

    An Indian Tribal government may approve plans, specifications and 
estimates and commence road and bridge construction with funds made 
available from the TTP through a self-determination contract, self-
governance agreement, Program Agreement or other appropriate agreement, 
developed in accordance with 23 U.S.C. 202(b)(6) & (b)(7), if the Indian 
Tribal government:
    (a) Provides assurances in the contract or agreement that the 
construction will meet or exceed applicable health and safety standards;
    (b) Obtains advance review of the plans and specifications from a 
State-licensed civil engineer that has certified that the plans and 
specifications meet or exceed the applicable health and safety 
standards;
    (c) Provides a copy of the certification under paragraph (a) of this 
section to the Deputy Assistant Secretary for Tribal Government Affairs, 
Department of Transportation, or the Assistant Secretary--Indian 
Affairs, DOI, as appropriate; and
    (d) Provides a copy of all project documentation identified in Sec.  
170.460 to BIA or FHWA before the start of construction.



Sec.  170.463  What if a design deficiency is identified?

    If the Secretaries identify a design deficiency that may jeopardize 
public health and safety if the facility is completed, they must:
    (a) Immediately notify the Tribe of the design deficiency and 
request that the Tribe promptly resolve the deficiency under the 
standards in Sec.  170.454; and
    (b) For a BIA-prepared PS&E package, promptly resolve the deficiency 
under the standards in Sec.  170.454 and notify the Tribe of the 
required design changes.

                Construction and Construction Monitoring



Sec.  170.470  Which construction standards must Tribes use?

    (a) Tribes must either:
    (1) Use the approved standards referred to in Sec.  170.454; or
    (2) Request approval for any other road and highway bridge 
construction standards that are consistent with or exceed the standards 
referred to in Sec.  170.454.
    (b) For designing and building eligible intermodal projects funded 
by the TTP, Tribes must use either:
    (1) Nationally recognized standards for comparable projects; or
    (2) Tribally adopted standards that meet or exceed nationally 
recognized standards for comparable projects.



Sec.  170.471  How are projects administered?

    (a) When a Tribe carries out a TTP project, the project will be 
administered in accordance with a self-determination contract, self-
governance agreement, Program Agreement or other appropriate agreement 
and this regulation.
    (b) If BIA or FHWA discovers a problem during an on-site monitoring 
visit, BIA or FHWA must promptly notify the Tribe and, if asked, provide 
technical assistance.
    (c) Only the State-licensed professional engineer of record whose 
name and professional stamp appear on the PS&E or who is responsible for 
the overall project design may change a TTP project's PS&E during 
construction.
    (1) The original approving agency must review each substantial 
change. The approving agency is the Federal, Tribal, State, or local 
entity with PS&E approval authority over the project.
    (2) The approving agency must consult with the affected Tribe and 
the entity having maintenance responsibility.

[[Page 693]]

    (3) A change that exceeds the limits of available funding may be 
made only with the approving agency's consent.



Sec.  170.472  What construction records must Tribes and BIA keep?

    The following table shows which TTP construction records BIA and 
Tribes must keep and the requirements for access.

------------------------------------------------------------------------
                                  Records that must
         Record keeper                 be kept       Access requirements
------------------------------------------------------------------------
(a) Tribe......................  All records         BIA and FHWA are
                                  required by         allowed access to
                                  ISDEAA and 25 CFR   Tribal TTP
                                  900.130-131 or 25   construction and
                                  CFR 1000.243 and    approved project
                                  1000.249, as        specifications as
                                  appropriate.        required under 25
                                                      CFR 900.130,
                                                      900.131, 25 CFR
                                                      1000.243 and
                                                      1000.249, or the
                                                      Program Agreement
                                                      as appropriate.
(b) BIA........................  Completed daily     Upon reasonable
                                  reports of          advance request by
                                  construction        a Tribe, BIA must
                                  activities          provide reasonable
                                  appropriate to      access to records.
                                  the type of
                                  construction it
                                  is performing.
------------------------------------------------------------------------



Sec.  170.473  When is a project complete?

    A project is considered substantially complete when all work is 
completed and accepted (except for minor tasks yet to be completed 
(punch list)) and the project is open to traffic. The project is 
completed only after all the requirements of this section are met.
    (a) At the end of a construction project, the public authority, 
agency, or organization responsible for the project must make a final 
inspection. The inspection determines whether the project has been 
completed in reasonable conformity with the PS&E.
    (1) Appropriate officials from the Tribe, BIA, responsible public 
authority, and FHWA should participate in the inspection, as well as 
contractors and maintenance personnel.
    (2) All project information must be made available during final 
inspection and used to develop the TTP construction project closeout 
report. Some examples of project information are: Daily diaries, weekly 
progress reports, subcontracts, subcontract expenditures, salaries, 
equipment expenditures, as-built drawings, etc.
    (b) After the final inspection, the facility owner makes final 
acceptance of the project. At this point, the Tribe or BIA must complete 
a project closeout and final accounting of all TTP construction project 
expenditures under Sec.  170.474.
    (c) If applicable, all documents required by 25 CFR part 169 must be 
completed.



Sec.  170.474  Who conducts the project closeout?

    The following table shows who must conduct the TTP construction 
project closeout and develop the report.

------------------------------------------------------------------------
 If the project was completed                         and the closeout
           by . . .                 then . . .       report must . . .
------------------------------------------------------------------------
(a) BIA.......................  The region         (1) Summarize the
                                 engineer or        construction project
                                 designee is        records to ensure
                                 responsible for    compliance
                                 closing out the    requirements have
                                 project and        been met;
                                 preparing the     (2) Review the bid
                                 report.            item quantities and
                                                    expenditures to
                                                    ensure reasonable
                                                    conformance with the
                                                    PS&E and
                                                    modifications;
                                                   (3) Be completed
                                                    within 120 calendar
                                                    days of the date of
                                                    acceptance of the
                                                    TTP construction
                                                    project; and
                                                   (4) Be provided to
                                                    the affected Tribes
                                                    and the Secretaries.
(b) A Tribe...................  Agreements         (1) Meet the
                                 negotiated under   requirements of
                                 ISDEAA, or other   ISDEAA;
                                 appropriate       (2) Comply with 25
                                 agreements         CFR 900.130(d) and
                                 specify who is     131(b)(10) and 25
                                 responsible for    CFR 1000.249, or the
                                 closeout and       Program Agreement,
                                 preparing the      as applicable;
                                 report.           (3) Be completed
                                                    within 120 calendar
                                                    days of the date of
                                                    acceptance of the
                                                    project; and
                                                   (4) Be provided to
                                                    all parties
                                                    specified in the
                                                    agreements.
------------------------------------------------------------------------


[[Page 694]]

                           Management Systems



Sec.  170.502  Are nationwide management systems required for the TTP?

    (a) To the extent appropriate, the Secretaries, in consultation with 
Tribes, will implement safety, bridge, pavement, and congestion 
management systems for the Federal and Tribal facilities included in the 
NTTFI.
    (b) A Tribe may develop its own Tribal management system based on 
the nationwide management system requirements in 23 CFR part 973. The 
Tribe may use either TTP formula funds or transportation planning funds 
defined in 23 U.S.C. 202(c) for this purpose. The Tribal system must be 
consistent with Federal management systems.

                 Tribal Transportation Facility Bridges



Sec.  170.510  What funds are available for Tribal Transportation 
Facility Bridge activities?

    Funds are made available in 23 U.S.C. 202(d) for improving deficient 
bridges eligible for the TTP.



Sec.  170.511  What activities are eligible for Tribal Transportation 
Facility Bridge funds?

    (a) The activities that are eligible for 23 U.S.C. 202(d) funding 
are:
    (1) Carrying out any planning, design, engineering, preconstruction, 
construction, and inspection of a bridge project to replace, 
rehabilitate, seismically retrofit, paint, apply calcium magnesium 
acetate, sodium acetate/formate, or other environmentally acceptable, 
minimally corrosive anti-icing and deicing composition; or
    (2) Implementing any countermeasure for deficient Tribal 
transportation facility bridges, including multiple-pipe culverts.
    (b) Further information regarding the use and availability of these 
funds can be found at 23 CFR part 661.



Sec.  170.512  How will Tribal Transportation Facility Bridge funds 
be made available to the Tribes?

    Funds made available to Tribes under 23 U.S.C. 202(d) may be 
included in the Tribe's self-determination contracts, self-governance 
agreements, Program Agreements, and other appropriate agreements.



Sec.  170.513  When and how are bridge inspections performed?

    (a) All bridges identified on the NTTFI must be inspected under 23 
U.S.C. 144.
    (b) Employees performing inspections as required by Sec.  170.513(a) 
must:
    (1) Notify affected Tribes and State and local governments that an 
inspection will occur;
    (2) Offer Tribal and State and local governments the opportunity to 
accompany the inspectors; and
    (3) Otherwise coordinate with Tribal and State and local 
governments.
    (c) The person responsible for the bridge inspection team must meet 
the qualifications for bridge inspectors as defined in 23 U.S.C. 144.



Sec.  170.514  Who reviews bridge inspection reports?

    The person responsible for the bridge inspection team must send a 
copy of the inspection report to BIADOT. BIADOT:
    (a) Reviews the report for quality assurance and works with FHWA to 
ensure the requirements of 23 U.S.C. 144 are carried out; and
    (b) Furnishes a copy of the report to the BIA Regional Office, which 
will forward the copy to the affected Tribe.



   Sec. Appendix A to Subpart D--Cultural Resource and Environmental 
                        Requirements for the TTP

    All BIA, FHWA, and Tribal work for the TTP must comply with cultural 
resource and environmental requirements under applicable Federal laws 
and regulations, including, but not limited to:
    1. 16 U.S.C. 1531, Endangered Species Act.
    2. 16 U.S.C. 4601, Land and Water Conservation Fund Act (Section 
6(f)).
    3. 16 U.S.C. 661-667d, Fish and Wildlife Coordination Act.
    4. 23 U.S.C. 138, Preservation of Parklands, commonly referred to as 
4(f).
    5. 25 U.S.C. 3001-3013, Native American Graves Protection and 
Repatriation Act.
    6. 33 U.S.C. 1251, Federal Water Pollution Control Act and Clean 
Water Act.
    7. 42 U.S.C. 7401, Clean Air Act.
    8. 42 U.S.C. 4321, National Environmental Policy Act.
    9. 49 U.S.C. 303, Preservation of Parklands.

[[Page 695]]

    10. 7 U.S.C. 4201, Farmland Protection Policy Act.
    11. 50 CFR part 402, Endangered Species Act regulations.
    12. 7 CFR part 658, Farmland Protection Policy Act regulations.
    13. 40 CFR part 93, Air Quality Conformity and Priority Procedures 
for use in Federal-aid Highway and Federally-Funded Transit Programs.
    14. 23 CFR part 771, Environmental Impact and Related Procedures.
    15. 23 CFR part 772, Procedures for Abatement of Highway Traffic 
Noises and Construction Noises.
    16. 23 CFR part 777, Mitigation of Impacts To Wetlands and Natural 
Habitat.
    17. 36 CFR part 800, Protection of Historic Properties.
    18. 40 CFR parts 260-271, Resource Conservation and Recovery Act 
regulations.
    19. Applicable Tribal/State laws.
    20. Other applicable Federal laws and regulations.



       Sec. Appendix B to Subpart D--Design Standards for the TTP

    Depending on the nature of the project, Tribes must use the latest 
edition of the following design standards, as applicable. Additional 
standards may also apply. In addition, Tribes may develop design 
standards that meet or exceed the standards listed in this appendix. To 
the extent that any provisions of these standards are inconsistent with 
ISDEAA, these provisions do not apply.
    1. AASHTO Policy on Geometric Design of Highways and Streets.
    2. AASHTO A Guide for Transportation Landscape and Environmental 
Design.
    3. AASHTO Roadside Design Guide.
    4. AASHTO Guide for Selecting, Locating and Designing Traffic 
Barriers.
    5. AASHTO Standard Specifications for Highway Bridges.
    6. AASHTO Guidelines of Geometric Design of Very Low-Volume Local 
Roads (ADT less than or equal to 400).
    7. FHWA Federal Lands Highway, Project Development and Design 
Manual.
    8. FHWA Flexibility in Highway Design.
    9. FHWA Roadside Improvements for Local Road and Streets.
    10. FHWA Improving Guardrail Installations and Local Roads and 
Streets.
    11. 23 CFR part 625, Design Standards for Highways.
    12. 23 CFR part 630, Preconstruction Procedures.
    13. 23 CFR part 633, Required Contract Provisions.
    14. 23 CFR part 635, Construction and Maintenance.
    15. 23 CFR part 645, Utilities.
    16. 23 CFR part 646, Railroads.
    17. 23 U.S.C. 106, PS&E.
    18. 23 U.S.C. 109, Standards.
    19. DOT Metric Conversion Plan, October 31, 1991.
    20. MUTCD Manual of Uniform Traffic Safety Devices.
    21. Standard Specifications for Construction of Roads and Bridges on 
Federal Highway Projects.
    22. FHWA-approved State standards.
    23. FHWA-approved Tribal design standards.



      Subpart E_Service Delivery for Tribal Transportation Program

                             Funding Process



Sec.  170.600  What must BIA include in the notice of funds availability?

    (a) Upon receiving the total or partial fiscal year of TTP funding 
from FHWA:
    (1) BIA will send a notice of funds availability to each BIA 
Regional Office and FHWA that includes the TTP Tribal share funding 
available to each Tribe within each region; and
    (2) BIA and FHWA will forward the information to the Tribes along 
with an offer of technical assistance.
    (b) BIA and FHWA will distribute Tribal share funds to eligible 
Tribes upon execution of all required agreements or contracts between 
BIA/FHWA and the Tribe. This distribution must occur:
    (1) Within 30 days after funds are made available to the Secretary 
under this paragraph; and
    (2) Upon execution of all required agreements or contracts between 
BIA/FHWA and the Tribe.
    (c) Funds made available under this section must only be expended on 
projects and activities identified in an FHWA-approved TTIP. The TTPTIP 
(see Sec.  170.424) is available on the BIA Transportation and FHWA Web 
sites.



Sec.  170.602  If a Tribe incurs unforeseen construction costs, 
can it get additional funds?

    The TTP is a Tribal shares program based upon a statutory funding 
formula. Therefore, no additional TTP funding beyond each Tribe's share 
is available for unforeseen construction costs. However, a Tribe may 
reprogram their TTP Tribal shares from other projects or activities 
identified on their FHWA-approved TTIP to cover

[[Page 696]]

unforeseen costs. In addition, if a Tribe is operating under a self-
determination contract, it may request that additional dollars from its 
TTP Tribal share funds be made available for that project under 25 CFR 
900.130(e).

                        Miscellaneous Provisions



Sec.  170.605  May BIA or FHWA use force-account methods in the TTP?

    When requested by a Tribe, BIA or FHWA may use force-account methods 
in carrying out the eligible work of the TTP. Applicable Federal 
acquisition laws and regulations apply to BIA and FHWA when carrying out 
force-account activities on behalf of a Tribe.



Sec.  170.606  How do legislation and procurement requirements affect the TTP?

    Other legislation and procurement requirements apply to the TTP as 
shown in the following table:

----------------------------------------------------------------------------------------------------------------
                                   Applies to Tribes   Applies to Tribes                          Applies to
Legislation, regulation or other      under self-         under self-      Applies to Tribes      activities
           requirement               determination        governance       under BIA or FHWA   performed by the
                                       contracts          agreements      program agreements       Secretary
----------------------------------------------------------------------------------------------------------------
Buy Indian Act..................  No................  No................  No................  Yes.
Buy American Act................  No................  No................  No................  Yes.
Federal Acquisition Regulation    No(a).............  No................  No................  Yes.
 (FAR).
Federal Tort Claims Act.........  Yes...............  Yes...............  Yes...............  Yes.
Davis-Bacon Act.................  Yes(b)............  Yes(b)............  Yes(b)............  Yes.
----------------------------------------------------------------------------------------------------------------
(a) Unless agreed to by the Tribe or Tribal organization under ISDEAA, 25 U.S.C. 450j(a), and 25 CFR 900.115.
(b) Does not apply when Tribe performs work with its own employees.



Sec.  170.607  Can a Tribe use its allocation of TTP funds 
for contract support costs?

    Yes. Contract support costs are an eligible item out of a Tribe's 
TTP allocation and must be included in a Tribe's project construction 
budget.



Sec.  170.608  Can a Tribe pay contract support costs from DOI 
or BIA appropriations?

    No. Contract support costs for TTP construction projects cannot be 
paid out of DOI or BIA appropriations.



Sec.  170.609  Can a Tribe receive additional TTP funds 
for start-up activities?

    No. Additional TTP funding for start-up activities is not available.

                        Contracts and Agreements



Sec.  170.610  Which TTP functions may a Tribe assume?

    A Tribe may assume all TTP functions and activities that are 
otherwise contractible and non-inherently Federal under self-
determination contracts, self-governance agreements, Program Agreements; 
and other appropriate agreements. The appendix to this subpart contains 
the list of program functions that cannot be subcontracted. 
Administrative support functions are an eligible use of TTP funding.



Sec.  170.611  What special provisions apply to ISDEAA contracts 
and agreements?

    (a) Multi-year contracts and agreements. The Secretary can enter 
into a multi-year TTP self-determination contract and self-governance 
agreement with a Tribe under sections 105(c)(1)(A) and (2) of ISDEAA. 
The amount of the contracts or agreements is subject to the availability 
of appropriations.
    (b) Consortia. Under title I and title IV of ISDEAA, Tribes and 
multi-tribal organizations are eligible to assume TTPs under consortium 
contracts or agreements. For an explanation of self-determination 
contracts, refer to title I, 25 U.S.C. 450f. For an explanation of self-
governance agreements, see title IV, 25 U.S.C. 450b(l) and 458b(b)(2).
    (c) Advance payments. The Secretary and the Tribe must negotiate a 
schedule of advance payments as part of the terms of a self-
determination contract under 25 CFR 900.132.
    (d) Design and construction contracts. The Secretary can enter into 
a design/construct TTP self-determination contract that includes both 
the design and

[[Page 697]]

construction of one or more TTP projects. The Secretary may make advance 
payments to a Tribe:
    (1) Under a self-determination design/construct contract for 
construction activities based on progress, need, and the payment 
schedule negotiated under 25 CFR 900.132; and
    (2) Under a self-governance agreement in the form of annual or 
semiannual installments as indicated in the agreement.



Sec.  170.612  Can non-contractible functions and activities be included 
in contracts or agreements?

    Non-contractible TTP functions and activities cannot be included in 
self-determination contracts, self-governance agreements, Program 
Agreements, or other agreements. The appendix to this subpart contains a 
list of TTP functions and activities that cannot be contracted.



Sec.  170.613  What funds are used to pay for non-contractible functions 
and activities?

    (a) The administrative expenses funding identified in 23 U.S.C. 
202(a)(6) are used by the BIA and FHWA transportation personnel when 
performing non-contractible functions and activities, including:
    (1) Program management and oversight; and
    (2) Project-related administration activities.
    (b) If a Tribe enters into a Program Agreement with FHWA under 23 
U.S.C. 202(b)(7), the program agreement may include such additional 
amounts as the Secretary of Transportation determines would equal the 
amount that would have been withheld for the costs of the Bureau of 
Indian Affairs for administration of the program or project.



Sec.  170.614  Can a Tribe receive funds before BIA publishes the final notice 
of funding availability?

    A Tribe can receive funds before BIA publishes the final notice of 
funding availability required by Sec.  170.600(a) when partial year 
funding is made available to the TTP through continuing resolutions or 
other Congressional actions.



Sec.  170.615  Can a Tribe receive advance payments for non-construction 
activities under the TTP?

    Yes. A Tribe must receive advance payments for non-construction 
activities under 25 U.S.C. 450l for self-determination contracts on a 
quarterly, semiannual, lump-sum, or other basis proposed by a Tribe and 
authorized by law.



Sec.  170.616  How are payments made to Tribes if additional funds 
are available?

    After an Agreement between BIA or FHWA and the Tribe is executed, 
any additional funds will be made available to Tribes under the terms of 
the executed Agreement.



Sec.  170.617  May a Tribe include a contingency in its proposal budget?

    (a) A Tribe with a self-determination contract may include a 
contingency amount in its proposed budget under 25 CFR 900.127(e)(8).
    (b) A Tribe with a self-governance agreement may include a project-
specific line item for contingencies if the Tribe does not include its 
full TTP funding allocation in the agreement.
    (c) The amounts in both paragraphs (a) and (b) of this section must 
be within the Tribal share made available or within the negotiated 
ISDEAA contract or agreement.



Sec.  170.618  Can a Tribe keep savings resulting from project administration?

    All funds made available to a Tribe through the 23 U.S.C. 202(b) are 
considered ``tribal'' and are available to the Tribe until expended. 
However, they must be expended on projects and activities referenced on 
an FHWA-approved TTPTIP.



Sec.  170.619  Do Tribal preference and Indian preference apply to TTP funding?

    Tribal preference and Indian preference apply to TTP funding as 
shown in the following table:

[[Page 698]]



------------------------------------------------------------------------
                 If . . .                            Then . . .
------------------------------------------------------------------------
(a) A contract serves a single Tribe......  Section 7(c) under Title 1
                                             of ISDEAA allows Tribal
                                             employment or contract
                                             preference laws, including
                                             Tribe local preference
                                             laws, to govern.
(b) A contract serves more than one Tribe.  Section 7(b) under Title 1
                                             of ISDEAA applies.
(c) A self-governance agreement exists      25 CFR 1000.406 applies.
 under Title IV of ISDEAA.
(d) A Program Agreement...................  The language of the Program
                                             Agreement applies.
------------------------------------------------------------------------



Sec.  170.620  How do ISDEAA's Indian preference provisions apply?

    This section applies when the Secretary or a Tribe enters into a 
cooperative, reimbursable, or other agreement with a State or local 
government for a TTP construction project. The Tribe and the parties may 
choose to incorporate the provisions of section 7(b) of ISDEAA in the 
agreement.



Sec.  170.621  What if a Tribe doesn't perform work under a contract 
or agreement?

    If a Tribe fails to substantially perform work under a contract or 
agreement:
    (a) For self-determination contracts, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR 900.131(a) and (b) and 
ISDEAA, part 900 subpart L (appeals);
    (b) For self-governance agreements, the Secretary must use the 
monitoring and enforcement procedures in 25 CFR part 1000, subpart K; or
    (c) For FHWA or BIA TTP Agreements, the Secretaries will use the 
procedures identified in the Agreements.



Sec.  170.622  What TTP functions, services, and activities are subject 
to the self-governance construction regulations?

    All TTP design and construction projects and activities, whether 
included separately or under a program in the agreement, are subject to 
the regulations in 25 CFR part 1000, subpart K, including applicable 
exceptions.



Sec.  170.623  How are TTP projects and activities included 
in a self-governance agreement?

    To include a TTP project or activity in a self-governance agreement, 
the following information is required:
    (a) All work must be included in the FHWA-approved TTPTIP; and
    (b) All other information required under 25 CFR part 1000, subpart 
K.



Sec.  170.624  Is technical assistance available?

    Yes. Technical assistance is available from BIA, the Office of Self-
Governance, and FHWA for Tribes with questions about contracting the TTP 
or TTP projects.



Sec.  170.625  What regulations apply to waivers?

    The following regulations apply to waivers:
    (a) For self-determination contracts, 25 CFR 900.140 through 
900.148;
    (b) For self-governance agreements, 25 CFR 1000.220 through 
1000.232; and
    (c) For direct service, 25 CFR 1.2.



Sec.  170.626  How does a Tribe request a waiver of a Department 
of Transportation regulation?

    A Tribe can request a waiver of a Department of Transportation 
regulation as shown in the following table:

------------------------------------------------------------------------
   If the Tribe's contract or                        then the Tribe must
    agreement is with . . .           and . . .             . . .
------------------------------------------------------------------------
(a) The Secretary..............  the contract is a   follow the
                                  self-               procedures in
                                  determination       ISDEAA, Title I,
                                  contract.           and 25 CFR 900.140
                                                      through 900.148.
(b) The Secretary..............  the agreement is a  follow the
                                  Tribal self-        procedures in 25
                                  governance          CFR 1000.220
                                  agreement.          through 1000.232.
(c) The Secretary of                                 make the request to
 Transportation.                                      the Secretary of
                                                      Transportation at:
                                                      1200 New Jersey
                                                      Ave. SE., HFL-1,
                                                      Washington, DC
                                                      20590.
------------------------------------------------------------------------


[[Page 699]]



Sec.  170.627  Can non-TTP funds be provided to a Tribe through 
an FHWA Program Agreement, BIA TTP Agreement or other appropriate agreement?

    In addition to all funds made available under chapter 2 of title 23, 
the cooperation of States, counties, and other local subdivisions may be 
accepted in construction and improvement of a Tribal transportation 
facility. In accordance with 23 U.S.C. 202(a)(9), any funds received 
from a State, county, or local subdivision may be credited by the 
Secretaries to appropriations available for the TTP. Subject to an 
agreement among the Tribe, BIA or FHWA, and the State, county, or local 
subdivision that addresses the purpose and intent of the funds such 
funds may be provided to the Tribe through an a self-determination 
contract, self-governance agreement, Program Agreement or other 
appropriate agreement developed in accordance with 23 U.S.C. 202(b)(6) & 
(b)(7).



  Sec. Appendix to Subpart E--List of Program Functions That Cannot Be 
                              Subcontracted

    Per Sec.  170.612, program functions cannot be included in self-
determination contracts, self-governance agreements, Program Agreements, 
or other agreements. Program functions include all of the following:
    (a) TTP project-related pre-contracting activities:
    (1) Notifying Tribes of available funding including the right of 
first refusal; and
    (2) Providing technical assistance.
    (b) TTP project-related contracting activities:
    (1) Providing technical assistance;
    (2) Reviewing all scopes of work under 25 CFR 900.122;
    (3) Evaluating proposals and making declination decisions, if 
warranted;
    (4) Performing declination activities;
    (5) Negotiating and entering into contracts or agreements with 
State, Tribal, and local governments and other Federal agencies;
    (6) Processing progress payments or contract payments;
    (7) Approving contract modifications;
    (8) Processing claims and disputes with Tribal governments; and
    (9) Closing out contracts or agreements.
    (c) Planning activities:
    (1) Reviewing and approving TTPTIPs developed by Tribes or other 
contractors; and
    (2) Reviewing and approving TTP LRTPs developed by Tribes or other 
contractors.
    (d) Environmental and historical preservation activities:
    (1) Reviewing and approving all items required for environmental 
compliance; and
    (2) Reviewing and approving all items required for archaeological 
compliance.
    (e) Processing rights-of-way:
    (1) Reviewing rights-of-way applications and certifications;
    (2) Approving rights-of-way documents;
    (3) Processing grants and acquisition of rights-of-way requests for 
Tribal trust and allotted lands under 25 CFR part 169;
    (4) Responding to information requests;
    (5) Reviewing and approving documents attesting that a project was 
constructed entirely within a right-of-way granted by BIA; and
    (6) Performing custodial functions related to storing rights-of-way 
documents.
    (f) Conducting project development and design under 25 CFR 900.131:
    (1) Participating in the plan-in-hand reviews on behalf of BIA as 
facility owner;
    (2) Reviewing and/or approving PS&E for health and safety assurance 
on behalf of BIA as facility owner;
    (3) Reviewing PS&E to assure compliance with NEPA as well as all 
other applicable Federal laws; and
    (4) Reviewing PS&E to assure compliance with or exceeding Federal 
standards for TTP design and construction.
    (g) Construction:
    (1) Making application for clean air/clean water permits as facility 
owner;
    (2) Ensuring that all required State/tribal/Federal permits are 
obtained;
    (3) Performing quality assurance activities;
    (4) Conducting value engineering activities as facility owner;
    (5) Negotiating with contractors on behalf of the Federal 
Government;
    (6) Approving contract modifications/change orders;
    (7) Conducting periodic site visits;
    (8) Performing all Federal Government-required project-related 
activities contained in the contract documents and required by 25 CFR 
parts 900 and 1000;
    (9) Conducting activities to assure compliance with safety plans as 
a jurisdictional responsibility hazardous materials, traffic control, 
OSHA, etc.;
    (10) Participating in final inspection and acceptance of project 
documents or as-built drawings on behalf of BIA as facility owner; and
    (11) Reviewing project closeout activities and reports.
    (h) Other activities:
    (1) Performing other non-contractible required TTP project 
activities contained in this part, ISDEAA and part 1000; and
    (2) Other title 23 non-project-related management activities.

[[Page 700]]

    (i) BIADOT program management:
    (1) Developing budget on needs for the TTP;
    (2) Developing legislative proposals;
    (3) Coordinating legislative activities;
    (4) Developing and issuing regulations;
    (5) Developing and issuing TTP planning, design, and construction 
standards;
    (6) Developing/revising interagency agreements;
    (7) Developing and approving TTP stewardship agreements in 
conjunction with FHWA;
    (8) Developing annual TTP obligation and TTP accomplishments 
reports;
    (9) Developing reports on TTP project expenditures and performance 
measures for the Government Performance and Results Act (GPRA);
    (10) Responding to/maintaining data for congressional inquiries;
    (11) Developing and maintaining the funding formula and its 
database;
    (12) Allocating TTP and other transportation funding;
    (13) Providing technical assistance to Tribes/Consortiums/tribal 
organizations/agencies/regions;
    (14) Providing national program leadership for other Federal 
transportation related programs including: Transportation Alternatives 
Program, Tribal Transportation Assistance Program, Recreational Travel 
and Tourism, Transit Programs, ERFO Program, and Presidential 
initiatives;
    (15) Participating in and supporting Tribal transportation 
association meetings;
    (16) Coordinating with and monitoring Indian Local Technical 
Assistance Program centers;
    (17) Planning, coordinating, and conducting BIA/tribal training;
    (18) Developing information management systems to support 
consistency in data format, use, etc., with the Secretary of 
Transportation for the TTP;
    (19) Participating in special transportation related workgroups, 
special projects, task forces and meetings as requested by Tribes;
    (20) Participating in national, regional, and local transportation 
organizations;
    (21) Participating in and supporting FHWA Coordinated Technology 
Implementation program;
    (22) Participating in national and regional TTP meetings;
    (23) Consulting with Tribes on non-project related TTP issues;
    (24) Participating in TTP, process, and product reviews;
    (25) Developing and approving national indefinite quantity service 
contracts;
    (26) Assisting and supporting the TTP Coordinating Committee;
    (27) Processing TTP bridge program projects and other discretionary 
funding applications or proposals from Tribes;
    (28) Coordinating with FHWA;
    (29) Performing stewardship of the TTP;
    (30) Performing oversight of the TTP and its funded activities;
    (31) Performing any other non-contractible TTP activity included in 
this part; and
    (32) Determining eligibility of new uses of TTP funds.
    (j) BIADOT Planning:
    (1) Maintaining the official TTP inventory;
    (2) Reviewing LRTPs;
    (3) Reviewing and approving TTPTIPs;
    (4) Maintaining nationwide inventory of TTP strip and atlas maps;
    (5) Coordinating with Tribal/State/regional/local governments;
    (6) Developing and issuing procedures for management systems;
    (7) Distributing approved TTPTIPs to BIA regions;
    (8) Coordinating with other Federal agencies as applicable;
    (9) Coordinating and processing the funding and repair of damaged 
tribal roads with FHWA;
    (10) Calculating and distributing TTP transportation planning funds 
to BIA regions;
    (11) Reprogramming unused TTP transportation planning funds at the 
end of the fiscal year;
    (12) Monitoring the nationwide obligation of TTP transportation 
planning funds;
    (13) Providing technical assistance and training to BIA regions and 
Tribes;
    (14) Approving atlas maps;
    (15) Reviewing TTP inventory information for quality assurance; and
    (16) Advising BIA regions and Tribes of transportation funding 
opportunities.
    (k) BIADOT engineering:
    (1) Participating in the development of design/construction 
standards with FHWA;
    (2) Developing and approving design/construction/maintenance 
standards;
    (3) Conducting TTP/product reviews; and
    (4) Developing and issuing technical criteria for management 
systems.
    (l) BIADOT responsibilities for bridges:
    (1) Maintaining the National Bridge Inventory information/database 
for BIA bridges;
    (2) Conducting quality assurance of the bridge inspection program;
    (3) Reviewing and processing TTP Bridge Program applications;
    (4) Participating in second level review of TTP bridge PS&E and
    (5) Developing criteria for bridge management systems.
    (m) BIADOT responsibilities to perform other non-contractible 
required TTP activities contained in this part.
    (n) BIA regional offices program management:
    (1) Designating TTP System roads;
    (2) Notifying Tribes of available funding;
    (3) Developing STIPs;

[[Page 701]]

    (4) Providing FHWA-approved TTPTIPs to Tribes;
    (5) Providing technical assistance to Tribes/Consortiums/tribal 
organizations/agencies;
    (6) Funding common services as provided as part of the region/
agency/BIA Division of Transportation TTP costs;
    (7) Processing and investigating non-project related tort claims;
    (8) Preparing budgets for BIA regional and agency TTP activities;
    (9) Developing/revising interagency agreements;
    (10) Developing control schedules/transportation improvement 
programs;
    (11) Developing regional TTP stewardship agreements;
    (12) Developing quarterly/annual TTP obligation and program 
accomplishments reports;
    (13) Developing reports on TTP project expenditures and performance 
measures for Government Performance and Results Act (GPRA);
    (14) Responding to/maintaining data for congressional inquiries;
    (15) Participating in Indian transportation association meetings;
    (16) Participating in Indian Local Technical Assistance Program 
(LTAP) meetings and workshops;
    (17) Participating in BIA/tribal training development highway 
safety, work zone safety, etc.;
    (18) Participating in special workgroups, task forces, and meetings 
as requested by Tribes and BIA region/agency personnel;
    (19) Participating in national, regional, or local transportation 
organizations meetings and workshops;
    (20) Reviewing Coordinated Technology Implementation Program project 
proposals;
    (21) Consulting with Tribal governments on non-project related 
program issues;
    (22) Funding costs for common services as provided as part of BIA 
TTP region/agency/contracting support costs;
    (23) Reviewing TTP atlas maps;
    (24) Processing Freedom of Information Act (FOIA) requests;
    (25) Monitoring the obligation and expenditure of all TTP funds 
allocated to the BIA Region;
    (26) Performing activities related to the application for ERFO 
funds, administration, and oversight of the funds; and
    (27) Participating in TTP, process, and product reviews.
    (o) BIA regional offices' planning:
    (1) Coordinating with Tribal/State/regional/local government;
    (2) Coordinating and processing the funding and repair of damaged 
Tribal Transportation Facility roads with Tribes;
    (3) Reviewing and approving TTP inventory data;
    (4) Maintaining, reviewing, and approving the management systems 
databases;
    (5) Reviewing and approving STIPs; and
    (6) Performing Federal responsibilities identified in the TTP 
Transportation Planning Procedures and Guidelines manual.
    (p) BIA regional offices' engineering:
    (1) Approving Tribal standards for TTP use;
    (2) Developing and implementing new engineering techniques in the 
TTP; and
    (3) Providing technical assistance.
    (q) BIA regional offices' responsibilities for bridges:
    (1) Reviewing and processing TTP Bridge Program applications;
    (2) Reviewing and processing TTP bridge inspection reports and 
information; and
    (3) Ensuring the safe use of roads and bridges.
    (r) BIA regional offices' other responsibilities for performing 
other non-contractible required TTP activities contained in this part.



             Subpart F_Program Oversight and Accountability



Sec.  170.700  What is the TTP national business plan?

    The TTP national business plan delineates the respective roles and 
responsibilities of BIA and FHWA in the administration of the TTP and 
the process used for fulfilling those roles and responsibilities.



Sec.  170.701  May a direct service Tribe and BIA Region sign 
a Memorandum of Understanding?

    Yes. A direct service Tribe and BIA Region may sign a Memorandum of 
Understanding (MOU). A TTP Tribal/BIA Region MOU is a document that a 
direct service Tribe and BIA may enter into to help define the roles, 
responsibilities and consultation process between the BIA regional 
office and the Indian Tribal government. It describes how the TTP will 
be carried out by BIA on the Tribe's behalf.



Sec.  170.702  What activities may the Secretaries review and monitor?

    The Secretaries review and monitor the performance of all TTP 
activities.



Sec.  170.703  What program reviews do the Secretaries conduct?

    (a) In accordance with title 23, the national business plan, 2 CFR 
part 200, and the Program Agreement or other

[[Page 702]]

appropriate agreements, BIADOT and FHWA shall conduct formal program 
reviews of BIA Regional Offices or Tribes to examine program procedures 
and identify improvements. For a BIA Regional Office review, the 
regional Tribes will be notified of these formal program reviews. Tribes 
may send representatives to these meetings at their own expense.
    (b) The review will provide recommendations to improve the program, 
processes and controls of management, planning, design, construction, 
financial and administration activities.
    (c) After the review, the review team shall:
    (1) Make a brief oral report of findings and recommendations to the 
Tribal leadership or BIA Regional Director; and
    (2) Within 60 days, provide a written report of its findings and 
recommendations to the Tribe, BIA, all participants, and affected Tribal 
governments and organizations.



Sec.  170.704  What happens when the review process identifies 
areas for improvement?

    When the review process identifies areas for improvement:
    (a) The Tribe or regional office must develop a corrective action 
plan within 60 days;
    (b) BIADOT and FHWA review and approve the plan;
    (c) FHWA may provide technical assistance during the development and 
implementation of the plan; and
    (d) The reviewed Tribe or BIA regional office implements the plan 
and reports either annually or biennially to BIADOT and FHWA on 
implementation.



                          Subpart G_Maintenance



Sec.  170.800  What funds are available for maintenance activities?

    (a) Under 23 U.S.C. 202(a)(8), a Tribe can use TTP funding for 
maintenance, within the following limits, whichever is greater:
    (1) 25 percent of its TTP funds; or
    (2) $500,000.
    (b) These funds can only be used to maintain the public facilities 
included in the NTTFI.
    (c) Road sealing activities are not subject to this limitation.
    (d) BIA retains primary responsibility, including annual funding 
request responsibility, for BIA road maintenance programs on Indian 
reservations.
    (e) The Secretary shall ensure that funding made available under the 
TTP for maintenance of Tribal transportation facilities for each fiscal 
year is supplementary to, and not in lieu of, any obligation of funds by 
the BIA for road maintenance programs on Indian reservations.



Sec.  170.801  Can TTP funds designated on an FHWA-approved TTIP 
for maintenance be used to improve TTP transportation facilities?

    No. The funds identified for maintenance on a FHWA-approved TTIP 
cannot be used to improve roads or other TTP transportation facilities 
to a higher road classification, standard or capacity.



Sec.  170.802  Can a Tribe perform road maintenance?

    Yes. A Tribe may enter into self-determination contracts, self-
governance agreements, program agreements, and other appropriate 
agreements to perform Tribal transportation facility maintenance.



Sec.  170.803  To what standards must a Tribal transportation facility 
be maintained?

    Subject to availability of funding, Tribal transportation facilities 
must be maintained under either:
    (a) A standard accepted by BIA or FHWA (as identified in the 
official Tribal Transportation Program guide on either the BIA 
transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/
Transportation/index.htm or the Federal Lands Highway--Tribal 
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/
guide/), or
    (b) Another Tribal, Federal, State, or local government maintenance 
standard negotiated in an ISDEAA road maintenance self-determination 
contract or self-governance agreement.

[[Page 703]]



Sec.  170.804  Who should be contacted if a Tribal transportation facility 
is not being maintained to TTP standards due to insufficient funding?

    The Tribe may notify BIA or FHWA if the Tribe believes that a 
facility on the NTTFI is not being adequately maintained to the 
standards identified in Sec.  170.803. If BIA or FHWA determines that a 
Tribal transportation facility is not being maintained, it will:
    (a) Notify the facility owner;
    (b) Provide a draft copy of the report to the affected Tribe for 
comment before forwarding it to Secretary of Transportation; and
    (c) Report these findings to the appropriate office within FHWA.



Sec.  170.805  What maintenance activities are eligible for TTP funding?

    TTP maintenance funding support a wide variety of activities 
necessary to maintain facilities identified in the NTTFI. A list of 
eligible activities is shown in the appendix to this part.



  Sec. Appendix to Subpart G--List of Eligible Maintenance Activities 
                 Under the Tribal Transportation Program

    The following maintenance activities are eligible for funding under 
the TTP. The list is not all-inclusive.
    1. Cleaning and repairing ditches and culverts.
    2. Stabilizing, removing, and controlling slides, drift sand, mud, 
ice, snow, and other impediments.
    3. Adding additional culverts to prevent roadway and adjoining 
property damage.
    4. Repairing, replacing or installing traffic control devices, 
guardrails and other features necessary to control traffic and protect 
the road and the traveling public.
    5. Removing roadway hazards.
    6. Repairing or developing stable road embankments.
    7. Repairing parking facilities and appurtenances such as striping, 
lights, curbs, etc.
    8. Repairing transit facilities and appurtenances such as bus 
shelters, striping, sidewalks, etc.
    9. Training maintenance personnel.
    10. Administering the BIA transportation facility maintenance 
program.
    11. Performing environmental/archeological mitigation associated 
with transportation facility maintenance.
    12. Leasing, renting, or purchasing of maintenance equipment.
    13. Paying utilities cost for roadway lighting and traffic signals.
    14. Purchasing maintenance materials.
    15. Developing, implementing, and maintaining a BIA Transportation 
Facility Maintenance Management System (TFMMS).
    16. Performing pavement maintenance such as pot hole patching, crack 
sealing, chip sealing, surface rejuvenation, and thin overlays (less 
than 1 inch).
    17. Performing erosion control.
    18. Controlling roadway dust.
    19. Re-graveling roads.
    20. Controlling vegetation through mowing, noxious weed control, 
trimming, etc.
    21. Making bridge repairs.
    22. Paying the cost of closing transportation facilities due to 
safety or other concerns.
    23. Maintaining airport runways, heliport pads, and their public 
access roads.
    24. Maintaining and operating BIA public ferry boats.
    25. Making highway alignment changes for safety reasons. These 
changes require prior notice to the Secretary.
    26. Making temporary highway alignment or relocation changes for 
emergency reasons.
    27. Maintaining other TTP intermodal transportation facilities 
provided that there is a properly executed agreement with the owning 
public authority within available funding.



                   Subpart H_Miscellaneous Provisions

              Reporting Requirements and Indian Preference



Sec.  170.910  What information on the TTP or projects must BIA 
or FHWA provide?

    All available public information regarding the TTP can be found on 
the BIA transportation Web site at http://www.bia.gov/WhoWeAre/BIA/OIS/
Transportation/index.htm or the Federal Lands Highway--Tribal 
Transportation Program Web site at http://flh.fhwa.dot.gov/programs/ttp/
. If a Tribe would like additional information that is not available on 
the Web sites, the Tribe should contact FHWA or BIA directly. FHWA and 
BIA will then provide direction or assistance based upon the Tribe's 
specific request.



Sec.  170.911  Are Indians entitled to employment and training preferences?

    (a) Federal law gives hiring and training preferences, to the 
greatest

[[Page 704]]

extent feasible, to Indians for all work performed under the TTP.
    (b) Under 25 U.S.C. 450e(b), 23 U.S.C. 140(d), 25 U.S.C. 47, and 23 
U.S.C. 202(a)(3), Indian organizations and Indian-owned economic 
enterprises are entitled to a preference, to the greatest extent 
feasible, in the award of contracts, subcontracts and sub-grants for all 
work performed under the TTP.



Sec.  170.912  Does Indian employment preference apply 
to Federal-aid Highway Projects?

    (a) Tribal, State, and local governments may provide an Indian 
employment preference for Indians living on or near a reservation on 
projects and contracts that meet the definition of a Tribal 
transportation facility. (See 23 U.S.C. 101(a)(12) and 140(d), and 23 
CFR 635.117(d).)
    (b) Tribes may target recruiting efforts toward Indians living on or 
near Indian reservations, Tribal lands, Alaska Native villages, pueblos, 
and Indian communities.
    (c) Tribes and Tribal employment rights offices should work 
cooperatively with State and local governments to develop contract 
provisions promoting employment opportunities for Indians on eligible 
federally funded transportation projects. Tribal, State, and local 
representatives should confer to establish Indian employment goals for 
these projects.



Sec.  170.913  Do Tribal-specific employment rights 
and contract preference laws apply?

    Yes. When a Tribe or consortium administers a TTP or project 
intended to benefit that Tribe or a Tribe within the consortium, the 
benefitting Tribe's employment rights and contracting preference laws 
apply. (See Sec.  170.619 and 25 U.S.C. 450e(c))



Sec.  170.914  What is the difference between Tribal preference 
and Indian preference?

    Indian preference is a hiring preference for Indians in general. 
Tribal preference is a preference adopted by a Tribal government that 
may or may not include a preference for Indians in general, Indians of a 
particular Tribe, Indians in a particular region, or any combination 
thereof.



Sec.  170.915  May Tribal employment taxes or fees be included 
in a TTP project budget?

    Yes. The cost of Tribal employment taxes or fees may be included in 
the budget for a TTP project.



Sec.  170.916  May Tribes impose taxes or fees on those 
performing TTP services?

    Yes. Tribes, as sovereign nations, may impose taxes and fees for TTP 
activities. When a Tribe administers TTPs or projects under ISDEAA, its 
Tribal employment and contracting preference laws, including taxes and 
fees, apply.



Sec.  170.917  Can Tribes receive direct payment 
of Tribal employment taxes or fees?

    This section applies to non-tribally administered TTP projects. 
Tribes can request that BIA pay Tribal employment taxes or fees directly 
to them under a voucher or other written payment instrument, based on a 
negotiated payment schedule. Tribes may consider requesting direct 
payment of Tribal employment taxes or fees from other transportation 
departments in lieu of receiving their payment from the contractor.



Sec.  170.918  What applies to the Secretaries' collection 
of data under the TTP?

    (a) Under 23 U.S.C. 201(c)(6)(A), the Secretaries will collect and 
report data necessary to implement the TTP in accordance with ISDEAA, 
including, but not limited to:
    (1) Inventory and condition information on Tribal transportation 
facilities; and
    (2) Bridge inspection and inventory information on any Federal 
bridge open to the public.
    (b) In addition, under 23 U.S.C. 201(c)(6)(C), any entity that 
carries out a project under the TTP is required to provide the data 
identified in Sec.  170.240.

                    Tribal Transportation Departments



Sec.  170.930  What is a Tribal transportation department?

    A Tribal transportation department is a department, commission, 
board, or official of any Tribal government

[[Page 705]]

charged by its laws with the responsibility for transportation-related 
responsibilities, including but not limited to, administration, 
planning, maintenance, and construction activities. Tribal governments, 
as sovereign nations, have inherent authority to establish their own 
transportation departments under their own Tribal laws. Tribes may staff 
and organize transportation departments in any manner that best suits 
their needs. Tribes can receive technical assistance from TTACs, BIA 
regional road engineers, FHWA, or AASHTO to establish a Tribal 
transportation department.



Sec.  170.931  Can Tribes use TTP funds to pay Tribal 
transportation department operating costs?

    Yes. Tribes can use TTP funds to pay the cost of planning, 
administration, and performance of approved TTP activities (see Sec.  
170.116). Tribes can also use BIA road maintenance funds to pay the cost 
of planning, administration, and performance of maintenance activities 
under this part.



Sec.  170.932  Are there other funding sources 
for Tribal transportation departments?

    There are many sources of funds that may help support a Tribal 
transportation department. The following are some examples of additional 
funding sources:
    (a) Tribal general funds;
    (b) Tribal Priority Allocation;
    (c) Tribal permits and license fees;
    (d) Tribal fuel tax;
    (e) Federal, State, private, and local transportation grants 
assistance;
    (f) Tribal Employment Rights Ordinance fees (TERO); and
    (g) Capacity building grants from Administration for Native 
Americans and other organizations.



Sec.  170.933  Can Tribes regulate oversize or overweight vehicles?

    Yes. Tribal governments can regulate travel on roads under their 
jurisdiction and establish a permitting process to regulate the travel 
of oversize or overweight vehicles, under applicable Federal law. BIA 
may, with the consent of the affected Tribe, establish a permitting 
process to regulate the travel of oversize or overweight vehicles on the 
BIA road system.

                           Resolving Disputes



Sec.  170.934  Are alternative dispute resolution procedures available?

    (a) Federal agencies should use mediation, conciliation, 
arbitration, and other techniques to resolve disputes brought by TTP 
beneficiaries. The goal of these alternative dispute resolution (ADR) 
procedures is to provide an inexpensive and expeditious forum to resolve 
disputes. Federal agencies should resolve disputes at the lowest 
possible staff level and in a consensual manner whenever possible.
    (b) Except as required in 25 CFR part 900 and part 1000, Tribes 
operating under a self-determination contract or self-governance 
agreement are entitled to use dispute resolution techniques prescribed 
in:
    (1) The ADR Act, 5 U.S.C. 571-583;
    (2) The Contract Disputes Act, 41 U.S.C. 601-613; and
    (3) The ISDEAA and the implementing regulations (including for non-
construction the mediation and alternative dispute resolution options 
listed in 25 U.S.C. 4501 (model contract section (b)(12)).
    (4) Tribes operating under a Program Agreement with FHWA are 
entitled to use dispute resolution techniques prescribed in 25 CFR 
170.934 and Article II, Section 4 of the Agreement.



Sec.  170.935  How does a direct service Tribe begin 
the alternative dispute resolution process?

    (a) To begin the ADR process, a direct service Tribe must write to 
the BIA Regional Director, or the Chief of BIA Division of 
Transportation. The letter must:
    (1) Ask to begin one of the ADR procedures in the Administrative 
Dispute Resolution Act of 1996, 5 U.S.C. 571-583 (ADR Act); and
    (2) Explain the factual and legal basis for the dispute.
    (b) ADR proceedings will be governed by procedures in the ADR Act 
and the implementing regulations.

[[Page 706]]

                     Other Miscellaneous Provisions



Sec.  170.941  May Tribes become involved in transportation research?

    Yes. Tribes may:
    (a) Participate in Transportation Research Board meetings, 
committees, and workshops sponsored by the National Science Foundation;
    (b) Participate in and coordinate the development of Tribal and TTP 
transportation research needs;
    (c) Submit transportation research proposals to States, FHWA, 
AASHTO, and FTA;
    (d) Prepare and include transportation research proposals in their 
TTPTIPS;
    (e) Access Transportation Research Information System Network 
(TRISNET) database; and
    (f) Participate in transportation research activities under 
Intergovernmental Personnel Act agreements.



Sec.  170.942  Can a Tribe use Federal funds for transportation services 
for quality-of-life programs?

    (a) A Tribe can use TTP funds:
    (1) To coordinate transportation-related activities to help provide 
access to jobs and make education, training, childcare, healthcare, and 
other services more accessible to Tribal members; and
    (2) As the matching share for other Federal, State, and local 
mobility programs.
    (b) To the extent authorized by law, additional grants and program 
funds are available for the purposes in paragraph (a)(1) of this section 
from other programs administered by the Departments of Transportation, 
Health and Human Services, and Labor.
    (c) Tribes should also apply for Federal and State public 
transportation and personal mobility program grants and funds.



PART 171_IRRIGATION OPERATION AND MAINTENANCE--Table of Contents



                      Subpart A_General Provisions

Sec.
171.100 What are some of the terms I should know for this part?
171.105 Does this part apply to me?
171.110 How does BIA administer its irrigation facilities?
171.115 Can I and other irrigators establish representative 
          organizations?
171.120 What are the authorities and responsibilities of a 
          representative organization?
171.125 Can I appeal BIA decisions?
171.130 Who can I contact if I have any questions about these 
          regulations or my irrigation service?
171.135 Where do I submit written information or requests?
171.140 Information collection.

                      Subpart B_Irrigation Service

171.200 How do I request irrigation service from the BIA?
171.205 How much water will I receive?
171.210 Where will BIA provide my irrigation service?
171.215 What if the elevation of my farm unit is too high to receive 
          irrigation water?
171.220 What must I do to my farm unit to receive irrigation service?
171.225 What must I do to receive irrigation service to my subdivided 
          farm unit?
171.230 What are my responsibilities for wastewater?

                           Subpart C_Water Use

171.300 Does BIA restrict my water use?
171.305 Will BIA provide leaching service to me?
171.310 Can I use water delivered by BIA for livestock purposes?

                     Subpart D_Irrigation Facilities

171.400 Who is responsible for structures on a BIA irrigation project?
171.405 Can I build my own structure or take over responsibility of a 
          BIA structure?
171.410 Can I install a fence on a BIA irrigation project?
171.415 Can I place an obstruction on a BIA irrigation project?
171.420 Can I dispose of sewage, trash, or other refuse on a BIA 
          irrigation project?

   Subpart E_Financial Matters: Assessments, Billing, and Collections

171.500 How does BIA determine the annual operation and maintenance 
          assessment rate for the irrigation facility servicing my farm 
          unit?
171.505 How does BIA calculate my annual operation and maintenance 
          assessment?
171.510 How does BIA calculate my annual operation and maintenance 
          assessment if supplemental water is available on the 
          irrigation facility servicing my farm unit?

[[Page 707]]

171.515 Who will BIA bill?
171.520 How will I receive my bill and when do I pay it?
171.525 How do I pay my bill?
171.530 What information must I provide BIA for billing purposes?
171.535 Why is BIA collecting this information from me?
171.540 What can happen if I do not provide this information?
171.545 What can happen if I don't pay my bill on time?
171.550 Can I arrange a Payment Plan if I cannot pay the full amount 
          due?
171.555 What additional costs will I incur if I am granted a Payment 
          Plan?
171.560 What if I fail to make payments as specified in my Payment Plan?
171.565 How will I know if BIA plans to adjust my annual operation and 
          maintenance assessment rate?
171.570 What is the Federal Register and where can I get it?
171.575 Can BIA charge me a special assessment?

            Subpart F_Records, Agreements, and Other Matters

171.600 What information is collected and retained on the irrigation 
          service I receive?
171.605 Can I establish a Carriage Agreement with BIA?
171.610 Can I arrange an Incentive Agreement if I want to farm idle 
          lands?
171.615 Can I request improvements to BIA facilities as part of my 
          Incentive Agreement?

                     Subpart G_Non-Assessment Status

171.700 When do I not have to pay my annual operation and maintenance 
          assessment?
171.705 What criteria must be met for my land to be granted an Annual 
          Assessment Waiver?
171.710 Can I receive irrigation water if I am granted an Annual 
          Assessment Waiver?
171.715 How do I obtain an Annual Assessment Waiver?
171.720 For what period does an Annual Assessment Waiver apply?

    Authority: 25 U.S.C. 2; 25 U.S.C. 9; 25 U.S.C. 13; 25 U.S.C. 381; 
Act of April 4, 1910, 36 Stat. 270, as amended (codified at 25 U.S.C. 
385); 25 U.S.C. 386a; Act of June 22, 1936, 49 Stat. 1803 (codified at 
25 U.S.C. 389 et seq.).

    Source: 73 FR 11036, Feb. 29, 2008, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  171.100  What are some of the terms I should know for this part?

    Annual Assessment Waiver means a mechanism for us to waive your 
annual operation and maintenance assessment under certain specified 
circumstances.
    Annual operation and maintenance assessment means the charges you 
must pay us for our costs of administration, operation, maintenance, and 
rehabilitation of the irrigation facility servicing your farm unit.
    Annual operation and maintenance assessment rate means the per acre 
charge we establish for the irrigation facility servicing your farm 
unit.
    Assessable acres (see Total assessable acres).
    Authorized use means your use of water delivered by us that supports 
irrigated agriculture, livestock, Carriage Agreements or other uses 
defined by laws, regulations, treaty, compact, judicial decree, river 
regulatory plan, or other authority.
    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior.
    Bill means our statement to you of the assessment charges and/or 
fees you owe the United States for administration, operation, 
maintenance, rehabilitation, and/or construction of the irrigation 
facility servicing your farm unit.
    Carriage Agreement means a legally binding contract we enter into:
    (1) To convey third-party water through our irrigation facilities; 
or
    (2) To convey our water through third-party facilities.
    Construction assessment means the periodic charge we assess you to 
repay us the funds we used to construct our irrigation facilities 
serving your farm unit that are determined to be reimbursable under 
applicable statutes.
    Customer means any person or entity to whom we provide irrigation 
service.
    Ditch (see Farm ditch or Service ditch).
    Due date means the date printed on your bill, 30 days after which 
your bill becomes past due.
    Facility (see Irrigation facility).
    Farm ditch means a ditch or canal that you own, operate, maintain, 
and rehabilitate.

[[Page 708]]

    Farm unit means the smallest parcel of land for which we will 
establish a delivery point. Farm unit size is defined in the authorizing 
legislation for each irrigation facility, or in the absence of such 
legislation, we will define the farm unit size.
    I, me, my, you, and your means all interested parties, especially 
persons or entities to which we provide irrigation service and receive 
use of our irrigation facilities, such as irrigators, landowners, 
leasees, irrigator organizations, irrigation districts, or other 
entities affected by this part and our supporting policies, manuals, and 
handbooks.
    Idle lands means lands that are not currently farmed because they 
have characteristics that limit crop production.
    Incentive Agreement means a written agreement between you and us 
that allows us to waive your annual operation and maintenance 
assessment, when you agree to improve idle lands and we determine that 
it is in the best interest of our irrigation facility.
    Irrigation bill (see Bill).
    Irrigation district (see Representative organization).
    Irrigation facility means all structures and appurtenant works for 
the delivery, diversion, and storage of irrigation water. These 
facilities may be referred to as projects, systems, or irrigation areas.
    Irrigation service means the full range of services we provide 
customers, including but not limited to administration, operation, 
maintenance, and rehabilitation of our irrigation facilities.
    Irrigation water or water means water we deliver through our 
facilities for the general purpose of irrigation and other authorized 
purposes.
    Irrigator (see Customer).
    Landowner means a person or entity that owns fee, tribal trust, and/
or individual allotted trust lands.
    Leaching Service means our delivery of water to you at your request 
for the purpose of transporting salts below the root zone of a farm 
unit.
    Lessee means any person or entity that holds a lease approved by us 
on lands to which we provide irrigation service.
    Must means an imperative or mandatory act or requirement.
    My land and your land mean all or part of your farm unit.
    Obstruction means anything permanent or temporary that blocks, 
hinders, impedes, stops or cuts off our facilities or our ability to 
perform the services we determine necessary to provide service to our 
customers.
    Organization (see Representative organization).
    Past due bill means a bill that has not been paid within 30 days of 
the due date stated on your bill.
    Permanently non-assessable acres (PNA) means lands that the 
Secretary of the Interior has determined to be permanently non-irrigable 
pursuant to the standards set out in 25 U.S.C. 389b.
    Representative organization or organization means a legally 
established organization representing your interests that confers with 
us on how we provide irrigation service at a particular irrigation 
facility.
    Service(s) (see Irrigation service).
    Service area means lands designated by us to be served by one of our 
irrigation facilities.
    Service ditch means a ditch or canal which we own, administer, 
operate, maintain, and rehabilitate that we use to provide irrigation 
service to your farm unit.
    Soil salinity means soils containing high salt content that limit 
crop production.
    Special assessment means a charge to cover the uncontrolled cost 
arising from an urgency on an irrigation facility.
    Structures (see Irrigation facility).
    Subdivision means a farm unit that has been subdivided into smaller 
parcels.
    Supplemental water means water available for delivery by our 
irrigation facilities beyond the quantity necessary to provide all 
project customers requesting water with the per-acre water duty 
established for that project.
    Taxpayer identifying number means either your Social Security Number 
or your Employer Identification Number.
    Temporarily non-assessable acres (TNA) means lands that the 
Secretary of the

[[Page 709]]

Interior has determined to be temporarily non-irrigable pursuant to the 
standards set out in 25 U.S.C. 389a.
    Total assessable acres means the total acres of land served by one 
of our irrigation facilities to which we assess operation and 
maintenance charges. The Total assessable acres within the service area 
of an irrigation facility do not include those acres of land that are 
designated PNA or TNA, nor those acres of land granted an Annual 
Assessment Waiver.
    Trust or restricted land or land in trust or restricted status (see 
definitions in 25 CFR 151.2).
    Urgency means a situation that we have determined may adversely 
impact our irrigation facilities, operation, or other irrigation 
activities; affect public safety; or damage property or equipment.
    Wastewater means surface runoff and subsurface drainage from your 
farm unit from water delivered by us that exceeds irrigation 
requirements.
    Water (see Irrigation water).
    Water delivery is an activity that is part of the irrigation service 
we provide to our customers when water is available.
    Water duty means the amount of water, in acre-feet per acre, 
necessary for full-service irrigation. This value is established by 
decree, compact, or other legal document, or by specialized engineering 
studies.
    Water user (see Customer).
    We, us, and our means the United States Government, the Secretary of 
the Interior, BIA, and all who are authorized to represent us in matters 
covered under this part.



Sec.  171.105  Does this part apply to me?

    This part applies to you if you own or lease land within an 
irrigation project where we assess fees and collect monies to 
administer, operate, maintain, and rehabilitate project facilities.



Sec.  171.110  How does BIA administer its irrigation facilities?

    (a) We administer our irrigation facilities by enforcing the 
applicable statutes, regulations, Executive Orders, directives, Indian 
Affairs Manual, the Irrigation Handbook, and other written policies, 
procedures, directives, and practices to ensure the safe, reliable, and 
efficient administration, operation, maintenance, and rehabilitation of 
our facilities. Such enforcement can include refusal or termination of 
irrigation services to you. Copies of the above listed items may be 
obtained from the irrigation project serving you.
    (b) We will cooperate and consult with you, as appropriate, on 
irrigation activities and policies of the particular irrigation facility 
serving you.



Sec.  171.115  Can I and other irrigators establish 
representative organizations?

    Yes. You and other irrigators may establish a representative 
organization under applicable law to represent your interests for the 
particular irrigation facilities serving you.



Sec.  171.120  What are the authorities and responsibilities 
of a representative organization?

    (a) A legally established organization representing you may make 
rules, policies, and procedures it may find necessary to administer the 
activities it is authorized to perform.
    (b) An organization must not make rules, policies, or procedures 
that conflict with our regulations or any of our other written policies, 
procedures, directives, and manuals.
    (c) If this organization collects operation and maintenance 
assessments and construction assessments on your behalf to be paid to 
us, it must pay us all your past and current operation and maintenance 
and construction assessment charges before we will provide irrigation 
service to you.



Sec.  171.125  Can I appeal BIA decisions?

    (a) You may appeal our decisions in accordance with procedures set 
out in 25 CFR part 2, unless otherwise prohibited by law.
    (b) If you appeal an irrigation bill, you must pay the bill in 
accordance with subpart E before we will provide irrigation service to 
you. If you prevail on appeal, any overpayment will be refunded to you.

[[Page 710]]



Sec.  171.130  Who can I contact if I have any questions 
about these regulations or my irrigation service?

    Contact the local irrigation project where you receive service or 
want to apply for service. If your questions are not addressed to your 
satisfaction at the local project level, you may contact the appropriate 
BIA Regional Office.



Sec.  171.135  Where do I submit written information or requests?

    Submit written information to us or make request of us in writing at 
the irrigation project servicing your farm unit.



Sec.  171.140  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. 
3501 et seq. and assigned clearance number 1076-0141. This information 
collection is specifically found in 25 CFR sections 171.200, 171.225, 
171.305, 171.310, 171.405, 171.410, 171.530, 171.550, 171.600, 171.605, 
171.610, 171.615, 171.710, 171.715. A Federal agency may not conduct or 
sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.



                      Subpart B_Irrigation Service



Sec.  171.200  How do I request irrigation service from the BIA?

    (a) You must request service from the irrigation facility servicing 
your farm unit.
    (b) Your request must contain at least the following information:
    (1) Your full legal name;
    (2) Where you want service;
    (3) The time and date you want service to start;
    (4) How long you want service;
    (5) The rate of water flow you want, if available;
    (6) How many acres you want to irrigate; and
    (7) Any additional information required by the project office 
responsible for providing your irrigation service.
    (c) You must request supplemental water in accordance with the 
project guidelines established by the specific project providing your 
irrigation service.



Sec.  171.205  How much water will I receive?

    The amount of water you receive will be based on your request, your 
legal entitlement to water, and the available water supply.



Sec.  171.210  Where will BIA provide my irrigation service?

    (a) We will provide service to your farm unit at a single delivery 
point that we designate.
    (b) At our discretion, we may establish additional delivery points 
when:
    (1) We determine it is impractical to deliver water to your farm 
unit from a single delivery point;
    (2) You agree in writing to be responsible for all costs to 
establish an additional delivery point;
    (3) You pay us our costs prior to our establishing an additional 
delivery point; and
    (4) Any work accomplished under this section does not disrupt our 
service to other customers without their written agreement.
    (c) We may establish your delivery point(s) at a well head.



Sec.  171.215  What if the elevation of my farm unit is too high 
to receive irrigation water?

    (a) We will not change our service ditch level to provide service to 
you.
    (b) You may install, operate, and maintain your own facilities, at 
your cost, to provide service to your land:
    (1) From a delivery point we designate; and
    (2) In accordance with specifications we approve.



Sec.  171.220  What must I do to my farm unit to receive irrigation service?

    You must meet the following requirements for us to provide service:
    (a) Put water we deliver to authorized uses;
    (b) Make sure your farm ditch has sufficient capacity to carry the 
water we deliver; and
    (c) Properly operate, maintain, and rehabilitate your farm ditch.

[[Page 711]]



Sec.  171.225  What must I do to receive irrigation service 
to my subdivided farm unit?

    In order to receive irrigation service, you must:
    (a) Provide us a copy of the recorded plat or map of the subdivision 
which shows us how the irrigation water will be delivered to the 
irrigable acres;
    (b) Pay for any extensions or alterations to our facilities that we 
approve to serve the subdivided units;
    (c) Construct, at your cost, any facilities within your subdivided 
farm unit; and
    (d) Operate and maintain, at your cost, any facilities within your 
subdivided farm unit.



Sec.  171.230  What are my responsibilities for wastewater?

    (a) You are responsible for your wastewater.
    (b) Wastewater may be returned to our facilities, but only at 
locations we designate, in a manner we approve, and at your cost.
    (c) You must not allow your wastewater to flow or collect on our 
facilities or roads, except at locations we designate and in a manner we 
approve.
    (d) If you fail to comply with this section, we may withhold 
services to you.



                           Subpart C_Water Use



Sec.  171.300  Does BIA restrict my water use?

    (a) You must not interfere with or alter our service to you without 
our prior written authorization; and
    (b) You must only use water we deliver for authorized uses. We may 
withhold services if you use water for any other purpose.



Sec.  171.305  Will BIA provide leaching service to me?

    (a) We may provide you leaching service if:
    (1) You submit a written plan that documents how soil salinity 
limits your crop production and how leaching service will correct the 
problem;
    (2) We approve your plan in writing; and
    (3) Your irrigation bills are not past due.
    (b) Leaching service will only be available during the timeframe 
established by your irrigation facility.
    (c) We reserve the right to terminate this service if we determine 
you are not complying with paragraph (a) of this section.



Sec.  171.310  Can I use water delivered by BIA for livestock purposes?

    Yes, if we determine it will not:
    (a) Interfere with the operation, maintenance, or rehabilitation of 
our facilities;
    (b) Be detrimental to or jeopardize our facilities;
    (c) Adversely affect the water rights or water supply; or
    (d) Cause additional costs to us that we do not agree to in writing.



                     Subpart D_Irrigation Facilities



Sec.  171.400  Who is responsible for structures on a BIA irrigation project?

    (a) We may build, operate, maintain, rehabilitate or remove 
structures, including bridges and other crossings, on our irrigation 
projects.
    (b) We may build other structures for your private use during the 
construction or extension of an irrigation project. We may charge you 
for structures built for your private use under this section, and we may 
require you to maintain them.
    (c) If we require you to maintain a structure and you do not do so 
to our satisfaction, we may remove it or perform the necessary 
maintenance, and we will bill you for our costs.



Sec.  171.405  Can I build my own structure or take over responsibility of 
a BIA structure?

    You may build a structure on our irrigation facility for your 
private use or take responsibility of one of our structures, but only 
under a written agreement between you and us which:
    (a) Relieves us from any future liability or responsibility for the 
structure;
    (b) Relieves us from any future costs incurred for maintaining the 
structure;
    (c) Describes what is granted by us and accepted by you; and
    (d) Provides that if you do not regularly use a structure for a 
period of time that we have determined, or you

[[Page 712]]

do not properly maintain and rehabilitate the structure, we will notify 
you in writing that:
    (1) You must either remove it or correct any unsafe condition;
    (2) If you do not comply with our notice, we may remove the 
structure and you must reimburse us our costs; and
    (3) We may modify, close, or remove your structure without notice 
due to an urgency we have identified.



Sec.  171.410  Can I install a fence on a BIA irrigation project?

    Yes. Fences are considered structures and may be installed in 
compliance with Sec.  171.405.



Sec.  171.415  Can I place an obstruction on a BIA irrigation project?

    No. You may not place obstructions on BIA irrigation projects.
    (a) If you do so, we will notify you in writing that you must remove 
it.
    (b) If you do not remove your obstruction in compliance with our 
notice, we will remove it and we will bill you for our costs.
    (c) We can remove your obstruction without notice because of an 
urgency we have identified.



Sec.  171.420  Can I dispose of sewage, trash, or other refuse 
on a BIA irrigation project?

    No. Sewage, trash, or other refuse are considered obstructions and 
must be removed in accordance with Sec.  171.415.



   Subpart E_Financial Matters: Assessments, Billing, and Collections



Sec.  171.500  How does BIA determine the annual operation and maintenance 
assessment rate for the irrigation facility servicing my farm unit?

    (a) We calculate the annual operation and maintenance assessment 
rate by estimating the following annual costs and then dividing by the 
total assessable acres for your irrigation facility:
    (1) Personnel salary and benefits for the facility engineer/manager 
and employees under their management or control;
    (2) Materials and supplies;
    (3) Vehicle and equipment repairs;
    (4) Equipment costs, including lease fees;
    (5) Depreciation;
    (6) Acquisition costs;
    (7) Maintenance of a reserve fund available for contingencies or 
emergency costs needed for the reliable operation of the irrigation 
facility infrastructure;
    (8) Maintenance of a vehicle and heavy equipment replacement fund;
    (9) Systematic rehabilitation and replacement of project facilities;
    (10) Contingencies for unknown costs and omitted budget items; and
    (11) Other costs we determine necessary to properly perform the 
activities and functions characteristic of an irrigation facility.
    (b) Annual operation and maintenance assessment rates may be lowered 
through the exercise of our discretion when items listed in (a) of this 
section are adjusted pursuant to our authority under 25 U.S.C. 385, 386a 
and 389.
    (c) If you subdivide your farm unit, you may be subject to a higher 
annual operation and maintenance assessment rate, which we publish 
annually in the Federal Register.
    (d) At projects where supplemental water is available, the 
calculation of your annual operation and maintenance assessment rate may 
take into consideration the total estimated annual amount to be 
collected for supplemental water deliveries.



Sec.  171.505  How does BIA calculate my annual operation 
and maintenance assessment?

    (a) We calculate your annual operation and maintenance assessment by 
multiplying the total assessable acres of your land within the service 
area of our irrigation facility by the annual operation and maintenance 
assessment rate we establish for that facility.
    (b) We will not assess lands that have been re-classified as either 
permanently non-assessable (PNA) or temporarily non-assessable (TNA) or 
lands that have been granted an Annual Assessment Waiver.
    (c) If your lands are under an approved Incentive Agreement, we may 
waive your assessment as described in the Incentive Agreement (See Sec.  
171.610).

[[Page 713]]

    (d) Some irrigation facilities may charge a minimum operation and 
maintenance assessment. If the irrigation facility serving your farm 
unit charges a minimum operation and maintenance assessment that is more 
than your assessment calculated by the method described in subpart (a) 
of this section, you will be charged the minimum operation and 
maintenance assessment. We provide public notice of any minimum 
operation and maintenance assessments annually in the Federal Register 
(See Sec.  171.565).



Sec.  171.510  How does BIA calculate my annual operation 
and maintenance assessment if supplemental water is available 
on the irrigation facility servicing my farm unit?

    (a) For projects where supplemental water is available, and you 
request and receive supplemental water, your assessment will include two 
components: a base rate, which is for your per-acre water duty delivered 
to your farm unit; and a supplemental water rate, which is for water 
delivered to your farm unit in addition to your per-acre water duty.
    (b) We publish base and supplemental water rates annually in the 
Federal Register. The base and supplemental water rates are established 
to recover the costs identified in section 171.500(a) of this subpart.
    (c) If your project has established a supplemental water rate, and 
you request and receive supplemental water, we will calculate your total 
annual operation and maintenance assessment by adding the following two 
totals:
    (1) The total assessable acres of your land within the service area 
of our irrigation facility multiplied by the annual operation and 
maintenance assessment rate we establish for that facility; and
    (2) The actual quantity of supplemental water you request and we 
agree to deliver (in acre-feet) times the supplemental water rate 
established for that facility.



Sec.  171.515  Who will BIA bill?

    (a) We will bill the landowner, unless:
    (1) The land is leased under a lease approved by us, in which case 
we will bill the lessee, or
    (2) The landowner(s) is represented by a representative organization 
that collects annual operation and maintenance assessments on behalf of 
its members and the representative organization makes a direct payment 
to us on your behalf.
    (b) If you own or lease assessable lands within a BIA irrigation 
facility, you will be billed for annual operation and maintenance 
assessments, whether you request water or not, unless otherwise 
specified in Sec.  171.505(b).



Sec.  171.520  How will I receive my bill and when do I pay it?

    (a) You will receive your bill in the mail at the address of record 
you provide us.
    (b) You should pay your bill no later than the due date stated on 
your bill.
    (c) You will not receive a bill for supplemental water. You must pay 
us in advance at the supplemental water rate established for you project 
published annually in the Federal Register.



Sec.  171.525  How do I pay my bill?

    (a) You can pay your bill by:
    (1) Personally going to the local office of the irrigation facility 
authorized to receive your payment during normal business hours;
    (2) Depositing your payment in an authorized drop box, if available, 
at the local office of the irrigation facility; or
    (3) Mailing your payment to the address indicated on your bill.
    (b) Your payment must be in the form of:
    (1) Check or money order in the mail or authorized drop box; or
    (2) Cash, check, or money order if you pay in person.



Sec.  171.530  What information must I provide BIA for billing purposes?

    We must obtain certain information from you to ensure we can 
properly bill, collect, deposit, and account for money you owe the 
United States. At a minimum, this information is:
    (a) Your full legal name;
    (b) Your correct mailing address; and
    (c) Your taxpayer identifying number.

[[Page 714]]



Sec.  171.535  Why is BIA collecting this information from me?

    (a) As part of doing business with you, we must collect enough 
information from you to properly bill and service your account.
    (b) We are required to collect your taxpayer identifying number 
under the authority of, and as prescribed in, the Debt Collection 
Improvement Act of 1996, Public Law 104-134 (110 Stat. 1321-364).



Sec.  171.540  What can happen if I do not provide this information?

    We will not provide you irrigation service.



Sec.  171.545  What can happen if I don't pay my bill on time?

    (a) We will not provide you irrigation service until:
    (1) Your bill is paid; or
    (2) You make arrangement for payment pursuant to Sec.  171.550 of 
this part.
    (b) If you do not pay your bill prior to the close of business on 
the 30th day after the due date, we consider your bill past due, send 
you a notice, and assess you the following:
    (1) Interest, as required by 31 U.S.C. 3717. Interest will accrue 
from the original due date stated on your bill.
    (2) An administrative fee, as required by 31 CFR 901.9.
    (c) If you do not pay your bill prior to the close of business of 
the 90th day after the due date, we will assess you a penalty, as 
required by 31 CFR 901.9(d). Penalties will accrue from the original due 
date stated on your bill.
    (d) We will forward your past due bill to the United States Treasury 
no later than 180 days after the original due date, as required by 31 
CFR 901.1, ``Aggressive agency collection activity.''



Sec.  171.550  Can I arrange a Payment Plan if I cannot pay 
the full amount due?

    We may approve a Payment Plan if:
    (a) You are a landowner and your land is not leased;
    (b) You certify that you are financially unable to make a lump sum 
payment;
    (c) You provide additional information we request, which may include 
information identified in 31 CFR 901.8, ``Collection in installments''; 
and
    (d) You sign our Payment Plan containing terms and conditions we 
specify.



Sec.  171.555  What additional costs will I incur if I am granted 
a Payment Plan?

    You will incur the following costs:
    (a) An administrative fee to process your Payment Plan, as required 
by 31 CFR 901.9.
    (b) Interest, accrued on your unpaid balance, in accordance with 
Sec.  171.545.



Sec.  171.560  What if I fail to make payments as specified in my Payment Plan?

    (a) We will discontinue irrigation service until your bill is paid 
in full;
    (b) You will be in default, you will be assessed an administrative 
fee, and your debt will be immediately forwarded to the United States 
Treasury in accordance with the Debt Collection Improvement Act of 1996 
(Pub. L. 104-134).
    (c) You will be ineligible for Payment Plans for the next 6 years.



Sec.  171.565  How will I know if BIA plans to adjust my annual operation 
and maintenance assessment rate?

    (a) We provide public notice of our proposed rates annually in the 
Federal Register.
    (b) You may contact the irrigation facility servicing your farm 
unit.



Sec.  171.570  What is the Federal Register and where can I get it?

    (a) The Federal Register is the official daily publication for 
Rules, Proposed Rules, and Notices of official actions by Federal 
agencies and organizations, as well as Executive Orders and other 
Presidential Documents, and is produced by the United States Government 
Printing Office (GPO).
    (b) You can get publications of the Federal Register:
    (1) By going on the World Wide Web at http://www.gpo.gov;
    (2) By writing to the GPO, Superintendent of Documents, P.O. Box 
371954, Pittsburgh, Pennsylvania 15250-7954; or
    (3) By calling GPO at (202) 512-1530.

[[Page 715]]



Sec.  171.575  Can BIA charge me a special assessment?

    Yes. We will make every reasonable effort to avoid charging special 
assessments. However, if we determine that we have a significant 
uncontrolled cost due to an urgency, we may charge you a special 
assessment. We will only charge special assessments when there are 
inadequate project funds available, including any emergency reserve 
funds held by the project.The special assessment rate will be calculated 
by dividing the total uncontrolled cost, or some portion of that cost, 
by the total number of assessable acres. Your individual special 
assessment will be equal to the special assessment rate multiplied by 
the number of assessable acres in your farm unit.



            Subpart F_Records, Agreements, and Other Matters



Sec.  171.600  What information is collected and retained 
on the irrigation service I receive?

    We will collect and retain at least the following information as 
part of our record of the irrigation service we have provided you:
    (a) Your name;
    (b) Delivery point(s) where service was provided;
    (c) Beginning date and time of your irrigation service;
    (d) Ending date and time of your irrigation service; and
    (e) Amount of water we delivered to your farm unit.



Sec.  171.605  Can I establish a Carriage Agreement with BIA?

    (a) We may agree in writing to carry third-party water through our 
facilities to your lands not served by our facilities if we have 
determined that our facilities have adequate capacity to do so.
    (b) If we determine that carrying water in accordance with paragraph 
(a) of this section is jeopardizing our ability to provide irrigation 
service to the lands we are required to serve, we will terminate the 
Agreement.
    (c) We may enter into an agreement with a third party to provide 
service through their facilities to your isolated assessable lands.
    (d) You must pay us all administrative, operating, maintenance, and 
rehabilitation costs associated with any agreement established under 
this section before we will convey water.
    (e) We will notify you in writing no less than five days before 
terminating a Carriage Agreement established under this section.
    (f) We may terminate a Carriage Agreement without notice due to an 
urgency we have identified.



Sec.  171.610  Can I arrange an Incentive Agreement if I want to 
farm idle lands?

    We may approve an Incentive Agreement if:
    (a) You request one in writing at least 90 days prior to the 
beginning of the irrigation season that includes a detailed plan to 
improve the idle lands, which contains at least the following:
    (1) A description of specific improvements you will make, such as 
clearing, leveling, or other activities that will improve idle lands to 
a condition that supports authorized use of delivered water;
    (2) The estimated cost of the improvements you will make;
    (3) The time schedule for your proposed improvements;
    (4) Your proposed schedule for water delivery, if necessary; and
    (5) Justification for use of irrigation water during the improvement 
period.
    (b) You sign our Incentive Agreement containing terms and conditions 
we specify.



Sec.  171.615  Can I request improvements to BIA facilities as part 
of my Incentive Agreement?

    Yes. You may request and we may agree to make improvements as part 
of your Incentive Agreement that we determine are in the best interest 
of the irrigation facility servicing your farm unit.



                     Subpart G_Non-Assessment Status



Sec.  171.700  When do I not have to pay my annual operation 
and maintenance assessment?

    You do not have to pay your annual operation and maintenance 
assessment

[[Page 716]]

for your land(s) within the service area of your irrigation facility 
when:
    (a) We grant you an Annual Assessment Waiver; or
    (b) We grant you an Incentive Agreement which may include waiving 
your annual operation and maintenance assessment; or
    (c) Your land is re-designated as permanently non-assessable or 
temporarily non-assessable.



Sec.  171.705  What criteria must be met for my land to be granted 
an Annual Assessment Waiver?

    For your land to be granted an Annual Assessment Waiver, we must 
determine that our irrigation facilities are not capable of delivering 
adequate irrigation water to your farm unit. Inadequate water supply due 
to natural conditions or climate is not justification for us to grant an 
Annual Assessment Waiver.



Sec.  171.710  Can I receive irrigation water if I am granted 
an Annual Assessment Waiver?

    No. Water will not be delivered in any quantity to your farm unit if 
you have been granted an Annual Assessment Waiver.



Sec.  171.715  How do I obtain an Annual Assessment Waiver?

    For your land to be granted an Annual Assessment Waiver, you must:
    (a) Send us a request in writing to have your land granted an Annual 
Assessment Waiver;
    (b) Submit your request prior to the bill due date for the year for 
which you are requesting the Annual Assessment Waiver; and
    (c) Receive our approval in writing.



Sec.  171.720  For what period does an Annual Assessment Waiver apply?

    Annual Assessment Waivers are only valid for the year in which they 
are granted. To obtain an Annual Assessment Waiver for a subsequent 
year, you must reapply.



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 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.

[[Page 717]]

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.



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.

[[Page 718]]



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 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

[[Page 719]]

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 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

[[Page 720]]

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_ELECTRIC POWER UTILITIES--Table of Contents



                      Subpart A_General Provisions

Sec.
175.100 What terms should I know for this part?
175.105 What is the purpose of this part?
175.110 Does this part apply to me?
175.115 How does BIA administer its electric power utilities?
175.120 What are Operations Manuals?
175.125 How do I request and receive service?
175.130 What information must I provide when I request service?
175.135 Why is BIA collecting this information?
175.140 What is BIA's authority to collect my taxpayer identification 
          number?
175.145 Can I appeal a BIA decision?

       Subpart B_Service Fees, Electric Power Rates, and Revenues

175.200 Why does BIA collect revenue from you and the other customers it 
          serves, and how is that revenue used?
175.205 When are BIA rates and fees reviewed?
175.210 What is BIA's procedure for adjusting service fees?
175.215 What is BIA's procedure for adjusting electric power rates?
175.220 How long do rate and fee adjustments stay in effect?
175.225 What is the Federal Register, and where can I get it?
175.230 Why are changes to purchased power costs not included in the 
          procedure for adjusting electric power rates?
175.235 How does BIA include changes in purchased power costs to our 
          electric power rates?

              Subpart C_Billing, Payments, and Collections

175.300 How does BIA calculate my electric power bill?
175.305 When is my bill due?
175.310 How do I pay my bill?
175.315 What will happen if I do not pay my bill?
175.320 What will happen if my service is disconnected and my account 
          remains delinquent?

 Subpart D_System Extensions and Upgrades, Rights-of-Way, and Paperwork 
                              Reduction Act

175.400 Will the utility extend or upgrade its electric system to serve 
          new or increased loads?
175.500 How does BIA manage rights-of-way?
175.600 How does the Paperwork Reduction Act affect this part?

    Authority: 5 U.S.C. 301; 25 U.S.C. 13; 25 U.S.C. 385c; 43 Stat. 475-
76; 45 Stat. 210-13; 49 Stat. 1039-40; 49 Stat. 1822-23; 54 Stat. 422; 
62 Stat. 269-73; 65 Stat. 254; 99 Stat. 319-20.

    Source: 83 FR 61119, Nov. 28, 2018, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  175.100  What terms I should know for this part?

    Agreement means the executed written form between you and the 
utility providing your service, except for service provided under a 
Special Agreement.
    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior or the BIA's authorized representative.
    Bill means our written statement notifying you of the charges and/or 
fees you owe the United States for the administration, operation, 
maintenance, rehabilitation, and/or construction of the electric power 
utility servicing you.
    CFR means Code of Federal Regulations.
    Customer means any person or entity to whom we provide service.
    Customer service is the assistance or service provided to customers, 
except for the actual delivery of electric power or energy. Customer 
service may include: Line extension, system upgrade, meter testing, 
connections or disconnection, special meter reading,

[[Page 721]]

or other assistance or service as provided in the Operations Manual.
    Day(s) means calendar day(s).
    Delinquent means an account that has not been paid and settled by 
the due date.
    Due date means the date by which you must pay your bill. The due 
date is printed on your bill.
    Electric energy (see Electric power).
    Electric power means the energy we deliver to meet customers' 
electrical needs.
    Electric power rate means the charges we establish for delivery of 
energy to our customers, which includes administration costs and 
operation and maintenance costs in addition to the cost of purchased 
power.
    Electric power utility means all structures, equipment, components, 
and human resources necessary for the delivery of electric service.
    Electric service means the delivery of electric power by our utility 
to our customers.
    Energy means electric power.
    Fee (see Service fee).
    I, me, my, you, and your means all interested parties, especially 
persons or entities to which we provide service and receive use of our 
electric power service.
    Must means an imperative or mandatory act or requirement.
    Operations Manual means the written policies, practices, procedures 
and requirements of the utility providing your service. The Operations 
Manual supplements this Part and includes our responsibilities to our 
customers and our customers' responsibilities to the utility.
    Past due bill means a bill that has not been paid by the due date.
    Power (see Energy).
    Public notice is the notice provided by publishing information 
consistent with the utility's Operations Manual.
    Purchased power means the power we must purchase from power 
marketing providers for resale to our customers to meet changing power 
demands. Each of our utilities establishes its own power purchasing 
agreement based on its power demands and firm power availability.
    Rate (see Electric power rate).
    Reserve Funds means funds held in reserve for maintenance, repairs, 
or unexpected expenses.
    Revenue means the monies we collect from our customers through 
service fees and electric power rates.
    Service (see Electric service).
    Service fee means our charge for providing or performing a specific 
administrative or customer service.
    Special Agreement means a written agreement between you and us for 
special conditions or circumstances including unmetered services.
    Taxpayer identification number means either your Social Security 
Number or your Employer Identification Number.
    Utility(ies) see (Electric power utility).
    Utility office(s) means our facility used for conducting business 
with our customers and the general public.
    We, us, and our means the United States Government, the Secretary of 
the Interior, the BIA, and all who are authorized to represent us in 
matters covered under this Part.



Sec.  175.105  What is the purpose of this part?

    The purpose of this part is to establish the regulations for 
administering BIA electric power utilities.



Sec.  175.110  Does this part apply to me?

    This part applies to you if we provide you service or if you request 
service from us.



Sec.  175.115  How does BIA administer its electric power utilities?

    We promote efficient administration, operation, maintenance, and 
construction of our utilities by following and enforcing:
    (a) Applicable statutes, regulations, Executive Orders, Indian 
Affairs manuals, Operations Manuals;
    (b) Applicable written policies, procedures, directives, safety 
codes; and
    (c) Utility industry standards.



Sec.  175.120  What are Operations Manuals?

    (a) We maintain an Operations Manual for each of our utilities. Each 
utility's Operations Manual is available at the utility.

[[Page 722]]

    (b) The Operations Manual sets forth the requirements for the 
administration, management, policies, and responsibilities of that 
utility and its customers.
    (c) We update our Operations Manual for each utility to reflect 
changing requirements to administer, operate, or maintain that utility.
    (d) When we determine it necessary to revise an Operations Manual, 
we will:
    (1) Provide public notice of the proposed revision;
    (2) State the effective date of the proposed revision;
    (3) State how and when to submit your comments on our proposed 
revision;
    (4) Provide 30 days from the date of the notice to submit your 
comments; and
    (5) Consider your comments and provide notice of our final decision.



Sec.  175.125  How do I request and receive service?

    (a) If you need electrical service in an area where we provide 
service, you must contact our utility in that service area.
    (b) To receive service, you must enter into an Agreement with that 
utility after it has determined that you have met its requirements.



Sec.  175.130  What information must I provide when I request service?

    At a minimum, you must provide the utility with the following 
information when you request service:
    (a) Your full legal name or the legal name of the entity needing 
service;
    (b) Your taxpayer identification number;
    (c) Your billing address;
    (d) Your service address; and
    (e) Any additional information required by the utility.



Sec.  175.135  Why is BIA collecting this information?

    We are collecting this information so we can:
    (a) Provide you with service;
    (b) Bill you for the service we provide; and
    (c) Account for monies you pay us, including any deposits as 
outlined in the Operations Manual.



Sec.  175.140  What is BIA's authority to collect 
my tax payer identification number?

    We are required to collect your taxpayer identification number under 
the authority of, and as prescribed in, the Debt Collection Improvement 
Act of 1996, Public Law 104-134 (110 Stat. 1321-364).



Sec.  175.145  Can I appeal a BIA decision?

    (a) You may appeal a decision in accordance with the procedures set 
out in 25 CFR part 2, unless otherwise prohibited by law.
    (b) If the appeal involves the discontinuation of service, the 
utility is not required to resume the service during the appeal process 
unless the customer meets the utility's requirements.
    (c) If you appeal your bill, you must pay your bill in accordance 
with this part to continue to receive service from us.
    (1) If the appeal involves the amount of your bill, the bill will be 
considered paid under protest until the final decision has been rendered 
on appeal.
    (2) If you appeal your bill but do not pay the bill in full, you may 
not continue to receive service from us. If the final decision rendered 
in the appeal requires payment of the bill, the bill will be handled as 
a delinquent account and the amount of the bill may be subject to 
interest, penalties, and administrative costs pursuant to 31 U.S.C. 3717 
and 31 CFR 901.9.
    (3) If the appeal involves an electric power rate, the rate will be 
applied and remain in effect subject to the final decision on the 
appeal.



       Subpart B_Service Fees, Electric Power Rates, and Revenues



Sec.  175.200  Why does BIA collect revenue from you 
and the other customers it serves, and how is that revenue used?

    (a) The revenue we collect from you and the other customers is 
authorized by 25 U.S.C. 385c (60 Stat. 895, as amended by 65 Stat. 254).

[[Page 723]]

    (b) The revenue we collect may be used to:
    (1) Pay for operation and maintenance of the utility;
    (2) Maintain Reserve Funds to:
    (i) Make repairs and replacements to the utility;
    (ii) Defray emergency expenses;
    (iii) Ensure the continuous operation of the power system; and
    (iv) Pay other allowable expenses and obligations to the extent 
required or permitted by law.



Sec.  175.205  When are BIA rates and fees reviewed?

    We review our rates and fees at least annually to:
    (a) Determine if our financial requirements are being met to ensure 
the reliable operation of the utility serving you; and
    (b) Determine if revenues are sufficient to meet the statutory 
requirements.



Sec.  175.210  What is BIA's procedure for adjusting service fees?

    If, based on our annual review, we determine our service fees need 
to be adjusted:
    (a) We will notify you at least 30 days prior to the effective date 
of the adjustment; and
    (b) We will publish a schedule of the adjusted service fees in a 
local newspaper(s) and post them in the local utility office serving 
you.



Sec.  175.215  What is BIA's procedure for adjusting electric power rates?

    Except for purchased power costs, if we determine electric power 
rates need to be adjusted, we will:
    (a) Hold public meetings and notify you of their respective time, 
date, and location by newspaper notice and a notice posted in the 
utility office serving you;
    (b) Provide you notice at least 15 days prior to the meeting;
    (c) Provide you a description of the proposed rate adjustment;
    (d) Provide you information on how, where, and when to submit 
comments on our proposed rate adjustment;
    (e) Make a final determination on the proposed rate adjustment after 
all comments have been received, reviewed, and evaluated; and
    (f) Publish the proposed rate adjustment and the final rate in the 
Federal Register if we determine the rate adjustment is necessary.



Sec.  175.220  How long do rate and fee adjustments stay in effect?

    These adjustments remain in effect until we conduct a review and 
determine adjustments are necessary.



Sec.  175.225  What is the Federal Register, and where can I get it?

    The Federal Register is the official daily publication for rules, 
proposed rules, and notices of official actions by Federal agencies and 
organizations, as well as Executive Orders and other Presidential 
Documents and is produced by the Government Printing Office (GPO). You 
can get Federal Register publications by:
    (a) Visiting www.federalregister.gov or www.gpo.gov/fdsys;
    (b) Writing to the GPO at Superintendent of Documents, P.O. Box 
371954, Pittsburgh, PA 15250-7954; or
    (c) Calling the GPO at (202) 512-1800.



Sec.  175.230  Why are changes to purchased power costs not included 
in the procedure for adjusting electric power rates?

    Changes to purchased power costs are not included in the procedure 
for adjusting electric power rates because unforeseen increases in the 
cost of purchased power are:
    (a) Not under our control;
    (b) Determined by current market rates; and
    (c) Subject to market fluctuations that can occur at an undetermined 
time and frequency.



Sec.  175.235  How does BIA include changes in purchased power costs 
in electric power rates?

    When our cost of purchased power changes:
    (a) We determine the effect of the change;
    (b) We adjust the purchased power component of your bill 
accordingly;
    (c) We add the purchased power adjustment to the existing electric 
power rate and put it into effect immediately;

[[Page 724]]

    (d) The purchased power adjustment remains in effect until we 
determine future adjustments are necessary;
    (e) We must publish in the local newspaper and post at our office a 
notice of the purchase power adjustment and the basis for the 
adjustment; and
    (f) Our decision to make a purchased power adjustment must be final.



              Subpart C_Billing, Payments, and Collections



Sec.  175.300  How does BIA calculate my electric power bill?

    (a) We calculate your electric power bill based on the:
    (1) Current rate schedule for your type service; and
    (2) Applicable service fees for your type service.
    (b) If you have a metered service we must:
    (1) Read your meter monthly;
    (2) Calculate your bill based on your metered energy consumption; 
and
    (3) Issue your bill monthly, unless otherwise provided in a Special 
Agreement.
    (c) If we are unable to calculate your metered energy consumption, 
we must make a reasonable estimate based on one of the following 
reasons:
    (1) Your meter has failed;
    (2) Your meter has been tampered with; or
    (3) Our utility personnel are unable to read your meter.
    (d) If you have an unmetered service, we calculate your bill in 
accordance with your Special Agreement.



Sec.  175.305  When is my bill due?

    The due date is provided on your bill.



Sec.  175.310  How do I pay my bill?

    You may pay your bill by any of the following methods:
    (a) In person at our utility office;
    (b) Mail your payment to the address stated on your bill; or
    (c) As further provided by the electric utility that serves you.



Sec.  175.315  What will happen if I do not pay my bill?

    (a) If you do not pay your bill prior to the close of business on 
the due date, your bill will be past due.
    (b) If your bill is past due we may:
    (1) Disconnect your service; and
    (2) Not reconnect your service until your bill, including any 
applicable fees, is paid in full.
    (c) Specific regulations regarding non-payment can be found in 25 
CFR 143.5(c).



Sec.  175.320  What will happen if my service is disconnected 
and my account remains delinquent?

    (a) If your service has been disconnected and you still have an 
outstanding balance, we will assess you interest, penalties, and 
administrative costs in accordance with 31 CFR 901.9.
    (b) We must forward your delinquent balance to the United States 
Treasury if it is not paid within 180 days after the original due date 
in accordance with 31 CFR 901.1.



 Subpart D_System Extensions and Upgrades, Rights-of-Way, and Paperwork 
                              Reduction Act



Sec.  175.400  Will the utility extend or upgrade its electric system 
to serve new or increased loads?

    The utility may extend or upgrade its electric system to serve new 
or increased loads. Contact your electric power utility providing 
service in your area for further information on new or increased loads.



Sec.  175.500  How does BIA manage rights-of-way?

    Contact your electric power utility providing service in your area 
for further information on rights-of-way.



Sec.  175.600  How does the Paperwork Reduction Act affect this part?

    The collection of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-0021. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless the 
form or regulation requesting the information displays a currently valid 
OMB Control Number.

[[Page 725]]

Send comments regarding this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer--Indian Affairs, 1849 C Street NW, Washington, DC 
20240.



PART 179_LIFE ESTATES AND FUTURE INTERESTS--Table of Contents



                            Subpart A_General

Sec.
179.1 What is the purpose of this part?
179.2 What definitions do I need to know?
179.3 What law applies to life estates?
179.4 When does a life estate terminate?
179.5 What documents will the BIA use to record termination of a life 
          estate?

             Subpart B_Life Estates Not Created Under AIPRA

179.101 How does the Secretary distribute principal and income to the 
          holder of a life estate?
179.102 How does the Secretary calculate the value of a remainder and a 
          life estate?

               Subpart C_Life Estates Created Under AIPRA

179.201 How does the Secretary distribute principal and income to the 
          holder of a life estate without regard to waste?
179.202 Can the holder of a life tenancy without regard to waste deplete 
          the resources?

    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 et seq.

    Source: 73 FR 67286, Nov. 13, 2008, unless otherwise noted.



                            Subpart A_General



Sec.  179.1  What is the purpose of this part?

    This part contains the authorities, policies, and procedures 
governing the administration of life estates and future interests in 
trust and restricted property by the Secretary of Interior. This part 
does not apply to any use rights assigned to tribal members by tribes in 
the exercise of their jurisdiction over tribal lands.
    (a) Subpart A contains general provisions.
    (b) Subpart B describes life estates not created under the American 
Indian Probate Reform Act of 2004 (AIPRA), as described in Sec.  
179.3(b).
    (c) Subpart C describes life estates created under AIPRA, as 
described in Sec.  179.3(a).



Sec.  179.2  What definitions do I need to know?

    Agency means the Bureau of Indian Affairs (BIA) agency office, or 
any other designated office in BIA, having jurisdiction over trust or 
restricted property. This term also means any office of a tribe that has 
entered into a contract or compact to fulfill applicable BIA functions.
    AIPRA means the American Indian Probate Reform Act of 2004, Pub. L. 
108-374, as codified at 25 U.S.C. 2201 et seq.
    BIA means the Bureau of Indian Affairs within the Department of 
Interior.
    Contract bonus means cash consideration paid or agreed to be paid as 
incentive for execution of a contract.
    Income means the rents and profits of real property and the interest 
on invested principal.
    Life estate means an interest in property held for only the duration 
of a designated person's life. A life estate may be created by a 
conveyance document or by operation of law.
    Life estate without regard to waste means that the holder of the 
life estate interest in land is entitled to the receipt of all income, 
including bonuses and royalties, from such land to the exclusion of the 
remaindermen.
    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.
    Rents and profits means the income or profit arising from the 
ownership or possession of property.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
Secretary's consent. For the purpose of probate proceedings, restricted 
property is treated as if it were trust property.
    Except as the law may provide otherwise, the term ``restricted 
property'' as used in this part does not include the restricted lands of 
the Five Civilized

[[Page 726]]

Tribes of Oklahoma or the Osage Nation.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Trust property means real property, or an interest therein, the 
title to which is held in trust by the United States for the benefit of 
an individual Indian or tribe.



Sec.  179.3  What law applies to life estates?

    (a) AIPRA applies to life estates created by operation of law under 
AIPRA for an individual who died on or after June 20, 2006, owning trust 
or restricted property.
    (b) In the absence of Federal law or federally approved tribal law 
to the contrary, State law applies to all other life estates.



Sec.  179.4  When does a life estate terminate?

    A life estate terminates upon relinquishment or upon the death of 
the measuring life.



Sec.  179.5  What documents will BIA use to record termination 
of a life estate?

    The Agency will file a copy of the relinquishment of the interest or 
death certificate with the BIA Land Title and Records Office for 
recording upon receipt of one of the following:
    (a) The life estate holder's relinquishment of an interest in trust 
or restricted property; or
    (b) Notice of death of a person who is the measuring life for the 
life estate in trust or restricted property.



             Subpart B_Life Estates Not Created Under AIPRA



Sec.  179.101  How does the Secretary distribute principal and income 
to the holder of a life estate?

    (a) This section applies to the following cases:
    (1) Where the document creating the life estate does not specify a 
distribution of proceeds;
    (2) Where the vested holders of remainder interests and the life 
tenant have not entered into a written agreement approved by the 
Secretary providing for the distribution of proceeds; or
    (3) Where, by the document or agreement or by the application of 
State law, the open mine doctrine does not apply.
    (b) In all cases listed in paragraph (a) of this section, the 
Secretary must do the following:
    (1) Distribute all rents and profits, as income, to the life tenant;
    (2) Distribute any contract bonus one-half each to the life tenant 
and the remainderman;
    (3) In the case of mineral contracts:
    (i) Invest the principal, with interest income to be paid to the 
life tenant during the life estate, except in those instances where the 
administrative cost of investment is disproportionately high, in which 
case paragraph (b)(4) of this section applies; and
    (ii) Distribute the principal to the remainderman upon termination 
of the life estate; and
    (4) In all other instances:
    (i) Distribute the principal immediately according to Sec.  179.102; 
and
    (ii) Invest all proceeds attributable to any contingent remainderman 
in an account, with disbursement to take place upon determination of the 
contingent remainderman.



Sec.  179.102  How does the Secretary calculate the value 
of a remainder and a life estate?

    (a) If income is subject to division, the Secretary will use 
Actuarial Table S, Valuation of Annuities, found at 26 CFR 20.2031, to 
determine the value of the interests of the holders of remainder 
interests and the life tenant.
    (b) Actuarial Table S, Valuation of Annuities, specifies the share 
attributable to the life estate and remainder interests, given the age 
of the life tenant and an established rate of return published by the 
Secretary in the Federal Register. We may periodically review and revise 
the percent rate of return to be used to determine the share 
attributable to the interests of the life tenant and the holders of 
remainder interests. The life tenant will receive the balance of the 
distribution after the shares of the holders of remainder interests have 
been calculated.

[[Page 727]]



               Subpart C_Life Estates Created Under AIPRA



Sec.  179.201  How does the Secretary distribute principal and income 
to the holder of a life estate without regard to waste?

    The Secretary must distribute all income, including bonuses and 
royalties, to the life estate holder to the exclusion of any holders of 
remainder interests.



Sec.  179.202  May the holder of a life estate without regard 
to waste deplete the resources?

    Yes. The holder of a life estate without regard to waste may cause 
lawful depletion or benefit from the lawful depletion of the resources. 
However, a holder of a life estate without regard to waste may not cause 
or allow damage to the trust property through culpable negligence or an 
affirmative act of malicious destruction that causes damage to the 
prejudice of the holders of remainder interests.



PART 181_INDIAN HIGHWAY SAFETY PROGRAM--Table of Contents



Sec.
181.1 Purpose.
181.2 Definitions.
181.3 Am I eligible to receive a program grant?
181.4 How do I obtain an application?
181.5 How are applications ranked?
181.6 How are applicants informed of the results?
181.7 Appeals.

    Authority: 23 U.S.C. 402; 25 U.S.C. 13.

    Source: 62 FR 55331, Oct. 24, 1997, unless otherwise noted.



Sec.  181.1  Purpose.

    This part will assist the BIA Indian Highway Safety Program 
Administrator to disperse funds DOT/NHTSA has made available. The funds 
assist selected tribes with their proposed Highway Safety Projects. 
These projects are designed to reduce traffic crashes, reduce impaired 
driving crashes, increase occupant protection education, provide 
Emergency Medical Service training, and increase police traffic 
services.



Sec.  181.2  Definitions.

    Appeal means a written request for review of an action or the 
inaction of an official of the BIA that is claimed to adversely affect 
the interested party making the request.
    Applicant means an individual or persons on whose behalf an 
application for assistance and/or services has been made under this 
part.
    Application means the process through which a request is made for 
assistance or services.
    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.
    Recipient means an individual or persons who have been determined as 
eligible and are receiving financial assistance or services under this 
part.



Sec.  181.3  Am I eligible to receive a program grant?

    The Indian Highway Safety Program grant is available to any 
federally recognized tribe. Because of the limited financial resources 
available for the program, the Bureau of Indian Affairs (BIA) is unable 
to award grants to all applicants. Furthermore, some grant recipients 
may only be awarded a grant to fund certain aspects of their proposed 
tribal projects.



Sec.  181.4  How do I obtain an application?

    BIA mails grant application packages for a given fiscal year to all 
federally recognized tribes by the end of February of the preceding 
fiscal year. Additional application packages are available from the 
Program Administrator, Indian Highway Safety Program, P.O. Box 2003, 
Albuquerque, New Mexico 87103. Each application package contains the 
necessary information concerning the application process, including 
format, content, and filing requirements.

[[Page 728]]



Sec.  181.5  How are applications ranked?

    BIA ranks each timely filed application by assigning points based 
upon four factors.
    (a) Factor No. 1--Magnitude of the problem (Up to 50 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether a highway safety problem exists.
    (2) Whether the problem is significant.
    (3) Whether the proposed tribal project will contribute to 
resolution of the identified highway safety problem.
    (4) The number of traffic accidents occurring within the applicant's 
jurisdiction over the previous 3 years.
    (5) The number of alcohol-related traffic accidents occurring within 
the applicant's jurisdiction over the previous 3 years.
    (6) The number of reported traffic fatalities occurring within the 
applicant's jurisdiction over the previous 3 years.
    (7) The number of reported alcohol-related traffic fatalities 
occurring within the applicant's jurisdiction over the previous 3 years.
    (b) Factor No. 2--Countermeasure selection (Up to 40 points 
available). In awarding points under this factor, BIA will take into 
account the following:
    (1) Whether the countermeasures selected are the most effective for 
the identified highway safety problem.
    (2) Whether the countermeasures selected are cost effective.
    (3) Whether the applicant's objectives are realistic and attainable.
    (4) Whether the applicant's objectives are time framed and, if so, 
whether the time frames are realistic and attainable.
    (c) Factor No. 3--Tribal Leadership and Community Support (Up to 10 
points available). In awarding points under this factor, BIA will take 
into account the following:
    (1) Whether the applicant proposes using tribal resources in the 
project.
    (2) Whether the appropriate tribal governing body supports the 
proposal plan, as evidenced by a tribal resolution or otherwise.
    (3) Whether the community supports the proposal plan, as evidenced 
by letters or otherwise.
    (d) Factor No. 4--Past Performance (+ or -10 points available). In 
awarding points under this factor, BIA will take into account the 
following:
    (1) Financial and programmatic reporting requirements.
    (2) Project accomplishments.



Sec.  181.6  How are applicants informed of the results?

    BIA will send a letter to all applicants notifying them of their 
selection or non-selection for participation in the Indian Highway 
Safety Program for the upcoming fiscal year. BIA will explain to each 
applicant not selected for participation the reason(s) for non-
selection.



Sec.  181.7  Appeals.

    You may appeal actions taken by BIA officials under this part by 
following the procedures in 25 CFR part 2.



PART 183_USE AND DISTRIBUTION OF THE SAN CARLOS APACHE TRIBE DEVELOPMENT 
TRUST FUND AND SAN CARLOS APACHE TRIBE LEASE FUND--Table of Contents



                         Subpart A_Introduction

Sec.
183.1 What is the purpose of this part?
183.2 What terms do I need to know?
183.3 Does the American Indian Trust Fund Management Reform Act of 1994 
          apply to this part?

                    Subpart B_Trust Fund Disposition

                       Use of Principal and Income

183.4 How can the Tribe use the principal and income from the Trust 
          Fund?

                         Clearance Requirements

183.5 What documents must the Tribe submit to request money from the 
          Trust Fund?
183.6 How long will it take to get a decision?
183.7 What would cause the Secretary to disapprove a request?

                               Limitations

183.8 How can the Tribe spend funds?

[[Page 729]]

                    Subpart C_Lease Fund Disposition

                       Use of Principal and Income

183.9 Can the Tribe request the principal of the Lease Fund?
183.10 How can the Tribe use income from the Lease Fund?

                         Clearance Requirements

183.11 What documents must the Tribe submit to request money from the 
          Lease Fund?
183.12 How long will it take to receive a decision?
183.13 What would cause the Secretary to disapprove a request?

                               Limitations

183.14 What limits are there on how the Tribe can spend funds?

                            Subpart D_Reports

183.15 Must the Tribe submit any reports?
183.16 What information must be included in the Tribe's annual report?

                           Subpart E_Liability

183.17 If expenditures under this part lead to a claim or cause of 
          action, who is liable?
183.18 Information collection requirements

    Authority: Pub. L. 102-575, 106 Stat. 4740 et seq.

    Source: 66 FR 21088, Apr. 27, 2001, unless otherwise noted.



                         Subpart A_Introduction



Sec.  183.1  What is the purpose of this part?

    This part implements section 3707(e) of the San Carlos Apache Tribe 
Water Settlement Act (the Act), Public Law 102-575, 106 Stat. 4748, that 
requires regulations to administer the Trust Fund, and the Lease Fund 
established by the Act.



Sec.  183.2  What terms do I need to know?

    In this part:
    Administrative costs means any cost, including indirect costs, 
incurred by the Tribe reasonably related to an allowed use of funds 
under the Settlement Act, including indirect costs.
    Beneficial use means any use to which the Tribe's water entitlement 
is put that is authorized by the Settlement Act, the Settlement 
Agreement, or by the Tribal Council under the Settlement Act, the 
Settlement Agreement or otherwise permitted by law.
    CAP means the Central Arizona Project, a reclamation project 
authorized under title III of the Colorado River Basin Project Act of 
1968 (43 U.S.C. 1521 et seq.).
    Community development project or purpose means any business, 
recreational, social, health, education, environment, or general welfare 
project approved by the Tribal Council for the benefit of any community 
within the reservation.
    Economic development project or purpose means any commercial, 
industrial, agricultural, or business project approved by the Tribal 
Council for the purpose of profit to the Tribe.
    Income means interest or income earned or accrued on the principal 
of the Trust Fund or the Lease Fund and is available for distribution to 
the Tribe in accordance with the Settlement Act and this part. Beginning 
with calendar year 2001, any income that has been earned or has accrued 
on the principal of the Trust Fund or the Lease Fund and that has not 
been requested for distribution by the Tribe by December 31, shall 
become part of the principal of the Trust Fund or the Lease Fund on 
January 1 of the next calendar year.
    Lease Fund means the San Carlos Apache Tribe Lease Fund established 
in the Treasury of the United States under section 3711(d)(3)(E)(iv) of 
the Settlement Act.
    Principal means:
    (1) The amount of funds in the Trust Fund or the Lease Fund as of 
January 1, 2002; and
    (2) Any income thereon that is not distributed, and has been added 
to the principal, in accordance with the Settlement Act and this part.
    Pro forma budget means a budget, and operating statement, showing 
the estimated results for operating the economic development project for 
two years after injection of the principal or income into the operation.
    Secretary means the Secretary of the Interior or an authorized 
representative acting under delegated authority. The term ``Secretary':
    (1) Includes the Regional Director for the Western Regional Office 
of the Bureau of Indian Affairs; and

[[Page 730]]

    (2) Does not include the Superintendent of the San Carlos Agency of 
the Bureau of Indian Affairs.
    Settlement Act means the San Carlos Apache Tribe Water Settlement 
Act of 1992, Title XXXVII of Public Law 102-575, 106 Stat. 4740, and any 
amendments thereto.
    Settlement Agreement means the agreement and any amendments executed 
and approved in accordance with the Settlement Act.
    Tribe means the San Carlos Apache Tribe, a Tribe of Apache Indians, 
under the Apache Treaty, July 1, 1852, 10 Stat. 970, organized under 
section 16 of the Indian Reorganization Act of June 18, 1934 (48 Stat. 
987; 25 U.S.C. 476), and duly recognized by the Secretary of the 
Interior.
    Trust Fund means the San Carlos Apache Tribe Development Trust Fund 
established in the Treasury of the United States under section 3707(b) 
of the Settlement Act.
    We and us mean the Secretary of the Interior as defined in this 
section.



Sec.  183.3  Does the American Indian Trust Fund Management Reform Act of 1994 
apply to this part?

    Yes. We will manage and make distributions from the Trust Fund in 
accordance with the American Indian Trust Funds Management Act of 1994 
(Management Act), except where the Management Act conflicts with the 
Settlement Act or this part. If there is a conflict, we will follow the 
provisions of the Settlement Act or this part.



                    Subpart B_Trust Fund Disposition

                       Use of Principal and Income



Sec.  183.4  How can the Tribe use the principal and income 
from the Trust Fund?

    The Tribe may use the principal and income from the Trust Fund in 
the following ways:
    (a) To put to beneficial use the water entitlement provided to the 
Tribe in the Settlement Act;
    (b) To defray the cost to the Tribe of CAP operation, maintenance, 
and replacement charges;
    (c) For economic development purposes; provided, however, that 
principal may only be used for long-term economic development projects 
and income may be used for other economic and community development 
purposes; and
    (d) For Administrative Costs reasonably related to the above uses.

                         Clearance Requirements



Sec.  183.5  What documents must the Tribe submit to request money 
from the Trust Fund?

    To request a distribution of principal or income from the Trust 
Fund, the Tribe must submit to us all of the following documents.
    (a) A certified copy of a duly enacted resolution of the Tribal 
Council requesting a distribution from the Trust Fund;
    (b) A written budget and supporting documentation, approved by the 
Tribal Council, showing precisely how the tribe will spend the money, 
including what amounts should come from principal and what amounts 
should come from income;
    (c) A pro forma budget for each identified economic development 
project, and a program budget for each identified community development 
project; and
    (d) A certification stating that the Tribe will use the funds in 
accordance with budgets submitted under this section.



Sec.  183.6  How long will it take to get a decision?

    Within 30 days of receiving the information required by Sec.  183.5 
we will approve your request if it complies with the Settlement Act and 
this part. If we disapprove your request we will do so in writing and 
will provide you with the reasons for disapproval.



Sec.  183.7  What would cause the Secretary to disapprove a request?

    We will only disapprove a request for the distribution of principal 
or income from the Trust Fund if the request does any of the following:
    (a) Fails to provide the documents identified in Sec.  183.5;
    (b) Fails to provide reports required under Sec. Sec.  183.15 and 
183.16; or
    (c) Includes a use requested or written budget that does not comply 
with a

[[Page 731]]

specific provision of the Settlement Act, or this part.

                               Limitations



Sec.  183.8  How can the Tribe spend funds?

    (a) The Tribe must spend principal or income distributed from the 
Trust Fund only in accordance with a written budget submitted under 
Sec.  183.5.
    (b) The Tribe must not spend the principal or income from the Trust 
Fund to make per capita payments to members of the Tribe.



                    Subpart C_Lease Fund Disposition

                       Use of Principal and Income



Sec.  183.9  Can the Tribe request the principal of the Lease Fund?

    No. We cannot distribute the principal from the Lease Fund to the 
Tribe.



Sec.  183.10  How can the Tribe use income from the Lease Fund?

    The Tribe may use income from the Lease Fund for the following 
purposes:
    (a) For economic development purposes;
    (b) For community development purposes; and
    (c) For administrative costs reasonably related to the above.

                         Clearance Requirements



Sec.  183.11  What documents must the Tribe submit to request money 
from the Lease Fund?

    To request a distribution of income from the Lease Fund, the Tribe 
must submit to us all of the following documents:
    (a) A certified copy of a duly enacted resolution of the Tribal 
Council requesting a distribution from the Lease Fund;
    (b) A pro forma budget for each identified economic development 
project and a program budget for each identified community development 
project, approved by the Tribal Council, showing precisely how the Tribe 
will spend the money;
    (c) Supporting documentation for the budgets required by paragraph 
(b) of this section, and
    (d) A certification stating that the Tribe will use the funds in 
accordance with budgets submitted under this section.



Sec.  183.12  How long will it take to receive a decision?

    Within 30 days of receiving the information required by Sec.  183.11 
we will approve your request if it complies with the Settlement Act and 
this part. If we disapprove your request we will do so in writing and 
will provide you with the reasons for disapproval.



Sec.  183.13  What would cause the Secretary to disapprove a request?

    We will only disapprove a request for distribution of income from 
the Lease Fund if the request does any of the following:
    (a) Fails to provide the documents identified in Sec.  183.5;
    (b) Fails to provide reports required under Sec. Sec.  183.15 and 
183.16; or
    (c) Includes a use requested or written budget that does not comply 
with a specific provision of the Settlement Act or this part.

                               Limitations



Sec.  183.14  What limits are there on how the Tribe can spend funds?

    (a) The Tribe must spend income distributed from the Lease Fund only 
in accordance with a written budget submitted under Sec.  183.5.
    (b) The Tribe must not spend the income from the Lease Fund to make 
per capita payments to members of the Tribe.



                            Subpart D_Reports



Sec.  183.15  Must the Tribe submit any reports?

    Yes. The Tribe must submit the following reports after receiving 
funds under this part:
    (a) An Annual Report, that must be submitted no later than December 
31 of each year; and
    (b) A Financial Audit, that must be submitted no later than March 1 
of each year.

[[Page 732]]



Sec.  183.16  What information must be included in the Tribe's annual report?

    The Tribe's annual report must contain the following information:
    (a) An accounting of the expenditures of funds distributed to the 
Tribe from the Trust Fund or the Lease Fund for the preceding 12 months;
    (b) A description, in detail, of how the Tribe has used the funds 
distributed from the Trust Fund or the Lease Fund consistently with the 
requirements in the Settlement Act, this part, and the budget approved 
by the Tribal Council and the Secretary; and
    (c) Sufficient documentation for us to determine that the Tribe has 
satisfied the requirements of paragraph (b) of this section.



                           Subpart E_Liability



Sec.  183.17  If expenditures under this part lead to a claim 
or cause of action, who is liable?

    The Tribe may be liable. The United States must not be liable for 
any claim or cause of action arising from the Tribe's use or expenditure 
of monies distributed from the Trust Fund or the Lease Fund.



Sec.  183.18  Information collection requirements

    The information collection requirements contained in this part do 
not meet the requirements of ``ten or more persons'' annually; 
therefore, the Office of Management and Budget does not need to clear 
the collection. You may direct comments concerning this information 
collection to the Bureau of Indian Affairs, Information Collection 
Control Officer, 1849 C Street, NW, Washington, DC 20240.

[[Page 733]]



                    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.



Sec. Sec.  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 734]]


    Authority: Sec. 4, Act of May 11, 1938 (52 Stat. 347); Act of August 
1, 1956 (70 Stat. 744); 25 U.S.C. 396a-g; 25 U.S.C. 2 and 9; and Sec. 
701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    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 Sec. Sec.  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

[[Page 735]]

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 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.

[[Page 736]]

    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, 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.

[[Page 737]]



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.



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,

[[Page 738]]

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.
    (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.

[[Page 739]]



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 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)

[[Page 740]]

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 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

[[Page 741]]

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.



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.

[[Page 742]]



          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.



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

[[Page 743]]

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.



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

[[Page 744]]

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 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.

[[Page 745]]



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 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.

[[Page 746]]

    (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 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 $1,558 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

[[Page 747]]

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 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.

[61 FR 35653, July 8, 1996, as amended at 81 FR 42481, June 30, 2016; 82 
FR 7652, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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.

[[Page 748]]



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.
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 Sec. Sec.  212.4, 212.5, and 212.6 of 
this part are supplemental to these regulations, and apply

[[Page 749]]

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 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

[[Page 750]]

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 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

[[Page 751]]

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.



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

[[Page 752]]

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.
    (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

[[Page 753]]

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.  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.



Sec. Sec.  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

[[Page 754]]

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 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.

[[Page 755]]



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.



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;

[[Page 756]]

    (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 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 lease 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; and Sec. 701, Pub. L. 
114-74, 129 Stat. 599. Interpret or apply secs. 3, 11, 35 Stat. 313, 
316; sec. 8, 47 Stat. 779, unless otherwise noted.

[[Page 757]]


    Cross Reference: For oil and gas operating regulations of the 
Geological Survey, see 30 CFR part 221.

    Source: 22 FR 10599, Dec. 24, 1957, unless otherwise noted. 
Redesignated at 47 FR 13327, Mar. 30, 1982.



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 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,

[[Page 758]]

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 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

[[Page 759]]

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.



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

[[Page 760]]

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 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

[[Page 761]]

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 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,

[[Page 762]]

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 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.

[[Page 763]]



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 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.

[[Page 764]]



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 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.

[[Page 765]]



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 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 $1,296 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.

[22 FR 10599, Dec. 24, 1957, as amended at 81 FR 42481, June 30, 2016; 
82 FR 7652, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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

[[Page 766]]

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 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.

[[Page 767]]



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 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

[[Page 768]]

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.
---------------------------------------------------------------------------



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

[[Page 769]]

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]



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

[[Page 770]]

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 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.

[[Page 771]]



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 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

[[Page 772]]

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.



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

[[Page 773]]

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 
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

[[Page 774]]

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.



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.

[[Page 775]]



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.
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.

[[Page 776]]

    (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 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

[[Page 777]]

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 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

[[Page 778]]

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 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 Sec. Sec.  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

[[Page 779]]

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 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 
Sec. Sec.  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

[[Page 780]]

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. 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 Sec. Sec.  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

[[Page 781]]

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.
---------------------------------------------------------------------------



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\
---------------------------------------------------------------------------

    \2\ Forms may be obtained from the Commissioner of Indian Affairs, 
Washington, D.C.
---------------------------------------------------------------------------

    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:

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.

[[Page 782]]

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 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

[[Page 783]]

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 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.


[[Page 784]]


    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 
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

[[Page 785]]

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 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.

[[Page 786]]



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 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

[[Page 787]]

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.
    (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

[[Page 788]]

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 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

[[Page 789]]

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 actions he proposes to take under Sec. Sec.  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.

[[Page 790]]



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 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 
Sec. Sec.  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 224_TRIBAL ENERGY RESOURCE AGREEMENTS UNDER THE INDIAN TRIBAL 
ENERGY DEVELOPMENT AND SELF DETERMINATION ACT--Table of Contents



                      Subpart A_General Provisions

Sec.
224.10 What is the purpose of this part?
224.20 How will the Secretary interpret and implement this part and the 
          Act?
224.30 What definitions apply to this part?
224.40 How does the Act or a TERA affect the Secretary's trust 
          responsibility?
224.41 When does the Secretary require agreement of more than one tribe 
          to approve a TERA?
224.42 How does the Paperwork Reduction Act affect these regulations?

  Subpart B_Procedures for Obtaining Tribal Energy Resource Agreements

224.50 What is the purpose of this subpart?

        Pre-application Consultation and the Form of Application

224.51 What is a pre-application consultation between a tribe and the 
          Director?
224.52 What may a tribe include in a TERA?
224.53 What must an application for a TERA contain?

                         Processing Applications

224.54 How must a tribe submit an application?
224.55 Is information a tribe submits throughout the TERA process under 
          this

[[Page 791]]

          part subject to disclosure to third parties?
224.56 What is the effect of the Director's receipt of a tribe's 
          complete application?
224.57 What must the Director do upon receipt of an application?

                    Application Consultation Meeting

224.58 What is an application consultation meeting?
224.59 How will the Director use the results of the application 
          consultation meeting?
224.60 What will the Director provide to the tribe after the application 
          consultation meeting?
224.61 What will the tribe provide to the Director after receipt of the 
          Director's report on the application consultation meeting?
224.62 May a final proposed TERA differ from the original proposed TERA?

                            TERA Requirements

224.63 What provisions must a TERA contain?
224.64 How may a tribe assume management of development of different 
          types of energy resources?
224.65 How may a tribe assume additional activities under a TERA?
224.66 How may a tribe reduce the scope of the TERA?

                     Public Notification and Comment

224.67 What must the Secretary do upon the Director's receipt of a final 
          proposed TERA?
224.68 How will the Secretary use public comments?

         Subpart C_Approval of Tribal Energy Resource Agreements

224.70 Will the Secretary review a proposed TERA under the National 
          Environmental Policy Act?
224.71 What standards will the Secretary use to decide to approve a 
          final proposed TERA?
224.72 How will the Secretary determine whether a tribe has demonstrated 
          sufficient capacity?
224.73 How will the scope of energy resource development affect the 
          Secretary's determination of the tribe's capacity?
224.74 When must the Secretary approve or disapprove a final proposed 
          TERA?
224.75 What must the Secretary do upon approval or disapproval of a 
          final proposed TERA?
224.76 Upon notification of disapproval, may a tribe re-submit a revised 
          final proposed TERA?
224.77 Who may appeal the Secretary's decision on a final proposed TERA 
          or a revised final proposed TERA?

      Subpart D_Implementation of Tribal Energy Resource Agreements

               Applicable Authorities and Responsibilities

224.80 Under what authority will a tribe perform activities for energy 
          resource development?
224.81 What laws are applicable to activities?
224.82 What activities will the Department continue to perform after 
          approval of a TERA?

       Leases, Business Agreements, and Rights-of-Way Under a TERA

224.83 What must a tribe do after executing a lease or business 
          agreement, or granting a right-of-way?
224.84 When may a tribe grant a right-of-way?
224.85 When may a tribe enter into a lease or business agreement?
224.86 Are there limits on the duration of leases, business agreements, 
          and rights-of-way?

                           Violation or Breach

224.87 What are the obligations of a tribe if it discovers a violation 
          or breach?
224.88 What must the Director do after receiving notice of a violation 
          or breach from the tribe?
224.89 What procedures will the Secretary use to enforce leases, 
          business agreements, or rights-of-way?

                  Subpart E_Interested Party Petitions

224.100 May a person or entity ask the Secretary to review a tribe's 
          compliance with a TERA?
224.101 Who is an interested party?
224.102 Must a tribe establish a comment or hearing process for 
          addressing environmental concerns?
224.103 Must a tribe establish other public participation processes?
224.104 Must a tribe enact tribal laws, regulations, or procedures 
          permitting a person or entity to allege that a tribe is not 
          complying with a TERA?
224.105 How may a person or entity obtain copies of tribal laws, 
          regulations, or procedures that would permit an allegation of 
          noncompliance with a TERA?
224.106 If a tribe has enacted tribal laws, regulations, or procedures 
          for challenging tribal action, how must the tribe respond to a 
          petition?
224.107 What must a petitioner do before filing a petition with the 
          Secretary?
224.108 May tribes offer a resolution of a petitioner's claim?

[[Page 792]]

224.109 What must a petitioner claim or request in a petition filed with 
          the Secretary?
224.110 What must a petition to the Secretary contain?
224.111 When may a petitioner file a petition with the Secretary?
224.112 What must the Director do upon receipt of a petition?
224.113 What must the tribe do after it completes petition consultation 
          with the Director?
224.114 How may the tribe address a petition in its written response?
224.115 When in the petition process must the Director investigate a 
          tribe's compliance with a TERA?
224.116 What is the time period in which the Director must investigate a 
          tribe's compliance with a TERA?
224.117 Must the Director make a determination of the tribe's compliance 
          with a TERA?
224.118 How must the tribe respond to the Director's notice of the 
          opportunity for a hearing?
224.119 What must the Director do when making a decision on a petition?
224.120 What action may the Director take to ensure compliance with a 
          TERA?
224.121 How may a tribe or a petitioner appeal the Director's decision 
          about the tribe's compliance with the TERA?

                       Subpart F_Periodic Reviews

224.130 What is the purpose of this subpart?
224.131 What is a periodic review and evaluation?
224.132 How does the Director conduct a periodic review and evaluation?
224.133 What must the Director do after a periodic review and 
          evaluation?
224.134 How often must the Director conduct a periodic review and 
          evaluation?
224.135 Under what circumstances may the Director conduct additional 
          reviews and evaluations?

                              Noncompliance

224.136 How will the Director's report address a tribe's noncompliance?
224.137 What must the Director do if a tribe's noncompliance has 
          resulted in harm or the potential for harm to a physical trust 
          asset?
224.138 What must the Director do if a tribe's noncompliance has caused 
          imminent jeopardy to a physical trust asset?
224.139 What must a tribe do after receiving a notice of imminent 
          jeopardy to a physical trust asset?
224.140 What must the Secretary do if the tribe fails to respond to or 
          does not comply with the Director's order?
224.141 What must the Secretary do if the tribe responds to the 
          Director's order?

                         Subpart G_Reassumption

224.150 What is the purpose of this subpart?
224.151 When may the Secretary reassume activities?
224.152 Must the Secretary always reassume the activities upon a finding 
          of imminent jeopardy to a physical trust asset?

                      Notice of Intent to Reassume

224.153 Must the Secretary notify the tribe of an intent to reassume the 
          authority granted?
224.154 What must a notice of intent to reassume include?
224.155 When must a tribe respond to a notice of intent to reassume?
224.156 What information must the tribe's response to the notice of 
          intent to reassume include?
224.157 How must the Secretary proceed after receiving the tribe's 
          response?
224.158 What must the Secretary include in a written notice of 
          reassumption?
224.159 How will reassumption affect valid existing rights or lawful 
          actions taken before the effective date of the reassumption?
224.160 How will reassumption affect a TERA?
224.161 How may reassumption affect the tribe's ability to enter into a 
          new TERA or to modify another TERA to administer additional 
          activities or assume administration of activities that the 
          Secretary previously reassumed?

                          Subpart H_Rescission

224.170 What is the purpose of this subpart?
224.171 Who may rescind a TERA?
224.172 May a tribe rescind only some of the activities subject to a 
          TERA while retaining a portion of those activities?
224.173 How does a tribe rescind a TERA?
224.174 When does a voluntary rescission become effective?
224.175 How will rescission affect valid existing rights or lawful 
          actions taken before the rescission?

                   Subpart I_General Appeal Procedures

224.180 What is the purpose of this subpart?
224.181 Who may appeal Departmental decisions or inaction under this 
          part?
224.182 What is the Initial Appeal Process?
224.183 What other administrative appeals processes also apply?
224.184 How do other administrative appeals processes apply?
224.185 When are decisions under this part effective?

    Authority: 25 U.S.C. 2 and 9; 25 U.S.C. 3501-3504; Pub. L. 109-58

[[Page 793]]


    Source: 73 FR 12821, Mar. 10, 2008, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  224.10  What is the purpose of this part?

    This part:
    (a) Establishes procedures by which a tribe, at its discretion, may 
enter into and manage leases, business agreements, and rights-of-way for 
purposes of energy resource development on tribal land; and
    (b) Describes the process for obtaining, implementing, and enforcing 
a tribal energy resource agreement (TERA) that will allow a tribe to 
enter into individual leases, business agreements, and rights-of-way 
without obtaining Secretarial approval.



Sec.  224.20  How will the Secretary interpret and implement this part 
and the Act?

    (a) The Secretary will interpret and implement this part and the 
Indian Tribal Energy Development and Self-Determination Act (the Act) in 
accordance with the self-determination and energy development provisions 
and policies in the Act.
    (b) The Secretary will liberally construe this part and the Act for 
the benefit of tribes to implement the Federal policy of self-
determination. The Secretary will construe any ambiguities in this part 
or the Act in favor of the tribe to implement a TERA as authorized by 
this part and the Act.



Sec.  224.30  What definitions apply to this part?

    Act means the Indian Tribal Energy Development and Self-
Determination Act of 2005, as promulgated in Title V of the Energy 
Policy Act of 2005, Public Law 109-58, 25 U.S.C. 3501-3504.
    Application means the application submitted for a TERA under subpart 
B.
    Business agreement means:
    (1) Any permit, contract, joint venture, option, or other agreement 
that furthers any activity related to locating, producing, transporting, 
or marketing energy resources on tribal land;
    (2) Any amendment, supplement, or other modification to such an 
agreement; or
    (3) Any other business agreement entered into or subject to 
administration under a TERA.
    Days mean calendar days in computing any period prescribed or 
allowed by the Act and this part:
    (1) Do not include the day of the event from which the period begins 
to run;
    (2) Include the last day of the period, unless it is a Saturday, 
Sunday, or Federal holiday, in which event the period runs until the end 
of the next day which is not a Saturday, Sunday, or Federal holiday; and
    (3) When the period prescribed or allowed is less than 11 days, 
exclude intermediate Saturdays, Sundays, and Federal holidays from the 
computation.
    Decision Deadline means the 120-day period within which the Director 
will make a decision about a petition submitted by an interested party 
under subpart E. The Director may extend this period for up to 120 days.
    Department means the Department of the Interior.
    Designated Tribal Official means the official designated in a 
tribe's pre-application consultation request, application, or agreement 
to assist in scheduling consultations or to receive communications from 
the Secretary or the Director to the tribe regarding the status of a 
TERA or activities under a TERA.
    Director means the Director of the Office of Indian Energy and 
Economic Development or the Secretary's designee, authorized to act on 
behalf of the Secretary.
    Energy Resources means both renewable and nonrenewable energy 
sources, including, but not limited to, natural gas, oil, uranium, coal, 
nuclear, wind, solar, geothermal, biomass, and hydrologic resources.
    Imminent jeopardy to a physical trust asset means an immediate 
threat of devaluation, degradation, damage, or loss of a physical trust 
asset, as determined by the Secretary, caused by the noncompliance of a 
tribe or third party with a TERA or applicable Federal laws.
    Interested party means a person or entity who has filed a petition 
with the

[[Page 794]]

Secretary under subpart E seeking review of a tribe's compliance with a 
TERA and who meets the criteria in Sec.  224.101.
    Lease means a written agreement, or modification of a written 
agreement, between a tribe and a tenant or lessee, whereby the tenant or 
lessee is granted a right to possession of tribal land or energy mineral 
resources for purposes of energy resource development.
    Petitioner means a person or entity who has filed a petition under 
subpart E with a tribe or the Secretary seeking review of a tribe's 
compliance under a TERA. A petitioner is not considered to be an 
interested party unless the petitioner meets the criteria in Sec.  
224.101.
    Physical trust asset means a physical asset held in trust by the 
United States for a tribe or individual Indian or by a tribe or 
individual Indian subject to a restriction against alienation under the 
laws of the United States. ``Physical trust asset'' does not include:
    (1) Any improvements (for example, wells or structures) to the 
assets held in trust or restricted status; or
    (2) Monetary assets.
    Public means one or more natural or legal persons, and their 
associations, organizations, or groups; or Federal, State, tribal and 
local government agencies; or private industry and their associations, 
organizations, or groups.
    Right-of-way means an easement, right, or other authorization over 
tribal lands, granted or subject to administration under a TERA, for a 
pipeline or electric transmission or distribution line that serves a 
facility located on tribal land that is related to energy resource 
development.
    Secretary means the Secretary of the Interior or the Secretary's 
designee.
    TERA means tribal energy resource agreement.
    Tribal governing body means a tribe's governing entity, such as 
tribal council or tribal business committee, as established under tribal 
or Federal law and recognized by the Secretary.
    Tribal land means any land or interests in land owned by a tribe or 
tribes, title to which is held in trust by the United States, or is 
subject to a restriction against alienation under the laws of the United 
States. For the purposes of this part, tribal land includes land taken 
into trust or subject to restrictions on alienation under the laws of 
the United States after the effective date of the agreement.
    Tribe means any Indian tribe, band, nation, or other organized group 
or community that is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians, except a Native Corporation as defined in the Alaska 
Native Claims Settlement Act, 43 U.S.C. 1602.
    Violation or breach means any breach or other violation by another 
party of any provision in a lease, business agreement, or right-of-way 
under a TERA or any activity or occurrence under a lease business 
agreement or right-of-way that constitutes a violation of Federal or 
tribal environmental law.



Sec.  224.40  How does the Act or a TERA affect the Secretary's 
trust responsibility?

    (a) The Act (25 U.S.C. 3504(e)(6)) preserves the Secretary's trust 
responsibilities relating to mineral and other trust resources and 
requires the Secretary to act in good faith and in the best interest of 
Indian tribes.
    (b) Neither the Act nor this part absolves the Secretary of 
responsibilities to Indian tribes under the trust relationship, 
treaties, statutes, regulations, Executive Orders, agreements or other 
Federal law.
    (c) The Act and this part preserve the Secretary's trust 
responsibility to ensure that the rights and interests of an Indian 
tribe are protected if:
    (1) Another party to a lease, business agreement, or right-of-way 
executed under an approved TERA violates any term of the lease, business 
agreement, or right-of-way, or any applicable Federal law; or
    (2) Any provision of a lease, business agreement, or right-of-way 
violates the TERA under which it was executed.
    (d) The United States is not liable for losses to any party 
(including any tribe) for any negotiated term of, or any loss resulting 
from, the negotiated terms of a lease, business agreement, or right-of-
way the tribe executes under a TERA.

[[Page 795]]



Sec.  224.41  When does the Secretary require agreement 
of more than one tribe to approve a TERA?

    When tribal land held for the benefit of more than one tribe is 
contemplated for inclusion in a TERA, each appropriate tribal governing 
body must request a pre-application consultation meeting, and submit a 
resolution or formal act of the tribal governing body approving the 
submission of any application. Each appropriate tribal governing body 
must also sign the TERA, if it is approved.



Sec.  224.42  How does the Paperwork Reduction Act affect these regulations?

    The information collected from the public is cleared and covered by 
OMB Control Number 1076-0167. The sections of this rule which have 
information collections are Sec. Sec.  224.53, 224.57(d), 224.61, 
224.63, 224.64, 224.65, 224.68(d), 224.76, 224.83, 224.87, 224.109, 
224.112, 224.120(a), 224.139(b), 224.156, and 224.173. Please note that 
a Federal Agency may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.



  Subpart B_Procedures for Obtaining Tribal Energy Resource Agreements



Sec.  224.50  What is the purpose of this subpart?

    This subpart establishes procedures for:
    (a) Pre-application and application consultations and process;
    (b) Requirements for the content of applications;
    (c) Submittal of completed applications; and
    (d) Secretarial review and processing of applications.

        Pre-application Consultation and the Form of Application



Sec.  224.51  What is a pre-application consultation between a tribe 
and the Director?

    (a) A tribe interested in entering into a TERA should request a pre-
application consultation by writing to the Director, Office of Indian 
Energy and Economic Development. The request should include the name and 
contact information for the Designated Tribal Official who will 
coordinate scheduling with the Director.
    (b) Upon receiving a pre-application consultation request, the 
Director will contact the Designated Tribal Official to schedule a pre-
application consultation meeting. The Director may also initiate pre-
application discussions with the tribal governing body.
    (c) At the pre-application consultation meeting, the tribe and the 
Director may discuss any of the matters related to a future application 
including, but not limited to:
    (1) The application process;
    (2) The potential scope of the tribe's future application, including 
any regulatory or administrative activities that the tribe anticipates 
exercising;
    (3) The required content of an application for a TERA;
    (4) The energy resource the tribe anticipates developing;
    (5) The tribe's capacity to manage and regulate the energy resource 
development the tribe identifies;
    (6) Potential opportunities for funding capacity-building and other 
activities related to the energy resource the tribe anticipates 
developing under a TERA; and
    (7) Any other matters applicable to this part, the Act, and the 
tribe.



Sec.  224.52  What may a tribe include in a TERA?

    A TERA under this part:
    (a) May include development of all or part of a tribe's energy 
resources;
    (b) Must specify the type of energy resource included;
    (c) May include assumption by the tribe of certain activities 
normally carried out by the Department, except for inherently Federal 
functions; and
    (d) Must specify the services or resources related to the specific 
activity related to energy resource development that the tribe proposes 
to assume from the Department.



Sec.  224.53  What must an application for a TERA contain?

    (a) An application for a TERA must contain all of the following:

[[Page 796]]

    (1) A proposed TERA between the tribe and the Secretary, signed by 
the authorized representative of the tribe, that contains the provisions 
required by Sec.  224.63;
    (2) A statement that the Secretary recognizes the tribe as an Indian 
tribe and that the tribe has tribal land;
    (3) A brief description of the tribe's form of government;
    (4) Copies of relevant portions of tribal documents (see paragraph 
(b) of this section);
    (5) A map, legal description, and general description of the tribal 
land that the tribe intends to include in the TERA;
    (6) A statement that meets the requirements in paragraph (c) of this 
section;
    (7) A statement describing the tribe's experience in negotiating and 
administering energy-related leases, business agreements, and rights-of-
way issued under other Federal laws that includes descriptions of 
significant leases, business agreements, and rights-of-way the tribe has 
entered into with third parties or to which it has consented;
    (8) A description of the expertise that the tribe will use to 
administer the TERA and an explanation of how that expertise meets the 
requirements of paragraph (d) of this section;
    (9) A statement of the scope of administrative activities that the 
tribe intends to conduct and an explanation of how that meets the 
requirements of paragraph (e) of this section;
    (10) A statement that meets the requirements of paragraph (f) of 
this section describing the capability of the tribe to assume all of the 
activities the tribe has identified in the application;
    (11) A copy of the resolution or formal action of the tribal 
governing body or bodies under Sec.  224.41 that approves submission of 
an application for a TERA; and
    (12) A designation of, and contact information for, the Designated 
Tribal Official who will receive notifications from the Secretary or the 
Director regarding the status of the TERA application.
    (b) The documents required by paragraph (a)(4) of this section 
include documents such as a constitution, code, ordinance, or 
resolution, that designate the tribal governing body or tribal officials 
that have authority to enter into leases, business agreements, or 
rights-of-way on behalf of the tribe.
    (c) The statement required by paragraph (a)(6) of this section must:
    (1) If applicable, state that the tribe retains the option of 
entering into energy-related leases or agreements under laws other than 
the Act for any tribal land that the TERA includes; and
    (2) State one of the following:
    (i) The tribe intends the TERA to include all tribal land, energy 
resources, and categories of energy-related leases, business agreements, 
and rights-of-way; or
    (ii) The tribe intends the TERA to include only certain tribal land, 
energy resources, or categories of energy-related leases, business 
agreements, or rights-of-way in the TERA. In this case, the statement 
must specify and describe the tribal land, energy resources, or 
categories of energy-related leases, business agreements, or rights-of-
way that the tribe intends to include in the TERA.
    (3) State the tribe's intent to amend or modify leases, business 
agreements, or rights-of-way that exist when a TERA is approved if those 
activities are directly related to the activities authorized by the 
TERA. The tribe's ability to amend or modify such leases, business 
agreements or rights-of-way requires the agreement of the other parties 
to the lease, business agreement or rights-of-way, which must be stated 
in the TERA.
    (d) The statement required by paragraph (a)(8) of this section must 
describe the expertise that the tribe will use in the four areas 
specified in paragraph (d)(1) of this section. It must also address, at 
a minimum, the administrative and personnel resources specified in 
paragraph (d)(2) of this section.
    (1) The statement must describe the expertise that the tribe will 
use to:
    (i) Negotiate or review leases, business agreements, or rights-of-
way under the TERA;
    (ii) Evaluate the environmental effects, including those related to 
cultural resources, of leases, business agreements, or rights-of-way 
entered into under a TERA;

[[Page 797]]

    (iii) Review proposals for leases, business agreements and rights-
of-way under the TERA; and
    (iv) Monitor the compliance of a third party with the terms and 
conditions of any leases, business agreements and rights-of-way covered 
by the TERA.
    (2) The statement must describe the following:
    (i) Existing energy resource development related departments or 
administrative divisions within the tribe;
    (ii) Proposed energy resource development related departments or 
administrative divisions within the tribe;
    (iii) Existing energy resource development related expertise 
possessed by the tribe, including a description of the relevant 
expertise of designated tribal employees, consultants and/or advisors; 
and
    (iv) Proposed energy resource development related expertise that the 
tribe may acquire, including a description of the relevant expertise of 
designated tribal employees, consultants and/or advisors that the tribe 
intends to hire or retain.
    (e) The statement required by paragraph (a)(9) of this section must 
describe the amount of administrative activities related to the 
permitting, approval, and monitoring of activities, as applicable, that 
the tribe proposes to undertake under any lease, business agreement, or 
right-of-way the tribe executes under an approved TERA.
    (1) If the tribe proposes to regulate activities, the tribe must 
state its intent and describe the scope of the tribe's plan for such 
administration and management in sufficient detail for the Secretary to 
determine the tribe's capacity to administer and manage the regulatory 
activity(ies).
    (2) The tribe's intended scope of administrative responsibilities 
may not include the responsibilities of the Federal Government under the 
Endangered Species Act or other inherently Federal functions.
    (3) If the tribe intends to regulate activities, it should also 
describe the regulatory activities it desires to assume in the 
geographical area identified in Sec.  224.53(c)(2) with respect to 
leases, business agreements, and rights-of-way that exist when a TERA is 
approved.
    (f) The statement required by paragraph (a)(10) of this section 
must:
    (1) Describe the tribe's ability to negotiate and enter into leases, 
business agreements, and rights-of-way;
    (2) Include a discussion of the estimated annual costs to the tribe 
to assume those activities the tribe has identified in the application 
and the proposed source of tribal funds to carry out those activities; 
and
    (3) Describe the estimated annual amounts needed to conduct those 
activities the tribe has identified in the application and identify the 
Federal program that may provide those funds, if one of the sources of 
tribal funds includes grants or contract awards from the Department, the 
Department of Energy, or other Federal agencies.
    (4) Include a description of any:
    (i) Compacts and contracts between the tribe and the Secretary under 
the Indian Self-Determination and Education Assistance Act, as amended;
    (ii) Environmental programs a tribe has assumed under the Clean 
Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C.A. 
7401); or
    (iii) Cooperative agreements under the Federal Oil and Gas Royalty 
Management Act (30 U.S.C. 1701 et seq.).

                         Processing Applications



Sec.  224.54  How must a tribe submit an application?

    A tribe must submit an application and all supporting documents in 
written and electronic form to the Director.



Sec.  224.55  Is information a tribe submits throughout the TERA process 
under this part subject to disclosure to third parties?

    The requirements of this section implement the requirements of the 
Freedom of Information Act (5 U.S.C. 552) (FOIA) and 43 CFR part 2:
    (a) Information a tribe submits to the Department throughout the 
TERA process under this part may be subject to disclosure to third 
parties under FOIA unless a FOIA exemption or exception applies or other 
provisions of law protect the information.
    (b) A tribe may, but is not required to, designate information it 
submits as

[[Page 798]]

confidential commercially or financially sensitive information, as 
applicable, in any submissions it makes throughout the TERA process, 
including, but not limited to:
    (1) Pre-application information;
    (2) Application information
    (3) A final proposed TERA;
    (4) Any amendments to a TERA; and
    (5) Leases, business agreements, and grants of right-of-way executed 
under an approved TERA.
    (c) Upon receipt of a FOIA request for records that contain 
commercial or financial information a tribe has submitted under the TERA 
process, as required by 43 CFR part 2 the Department will provide the 
tribe, as submitter, with written notice of the FOIA request if:
    (1) The tribe has designated the information as confidential 
commercial or financial information; or
    (2) The Department has reason to believe that the information 
requested may be protected under FOIA Exemption 4 (trade secrets and 
commercial or financial information which is obtained from a person and 
is privileged or confidential).
    (d) The notice to the tribe will:
    (1) Include a copy of the FOIA request;
    (2) Describe the information requested or include copies of the 
pertinent records;
    (3) Advise the tribe of procedures for objecting to the release of 
the requested information and specify the time limit for the tribe's 
response;
    (4) Give the tribe no less than ten (10) working days from the 
Department's notice to object to the release and explain the basis for 
objection, if any;
    (5) Advise the tribe that:
    (i) Information contained in the tribe's objections may be subject 
to disclosure under FOIA if the Department receives a FOIA request for 
it; and
    (ii) If the tribe's objections contain commercial or financial 
information and a requestor asks for the objections under FOIA, the same 
notification procedures as above will apply;
    (6) Advise the tribe that it is the Department, rather than the 
tribe, that is responsible for deciding whether the information will be 
released or withheld;
    (7) If the tribe designated the information as commercial or 
financial information 10 or more years before the FOIA request, the 
Department will request the tribe's views on whether the tribe still 
considers the information to be confidential;
    (e) If the tribe has any objection to disclosure of the information, 
the tribe must submit a detailed written statement to the Department 
including the following:
    (1) The justification for withholding any portion of the information 
under any exemption of FOIA, and if the applicable exemption is 
Exemption 4, the tribe must submit a specific and detailed discussion 
of:
    (i) Whether the Federal government required the information to be 
submitted, and, if so, how substantial competitive harm or other 
business harm would likely result from release of the information; or
    (ii) Whether the tribe provided the information voluntarily and, if 
so, how the information fits into a category of information that the 
tribe customarily does not release to the public;
    (2) A certification that the information is confidential, has not 
been disclosed to the public by the tribe, and is essentially non-public 
because it is not routinely available to the public from other sources;
    (3) If not already provided, a tribal contact telephone and fax 
number so that the Department can communicate with the tribe about the 
FOIA request;
    (f) The Department will review and consider all objections to 
release that are received within the time limits specified in the notice 
to the tribe, and if the tribe does not respond within the time limits 
specified in the notice, the Department will presume that the tribe has 
no objection to release of the information;
    (g) If the Department decides to release the information over the 
objection of the tribe, it will notify the tribe in writing by certified 
mail, return receipt requested, and will include copies of the records 
the Department intends to release and the reasons for deciding to 
release them. The notice will also inform the tribe that it intends to 
release the records within 10 working

[[Page 799]]

days after the tribe's receipt of the notice.



Sec.  224.56  What is the effect of the Director's receipt 
of a tribe's complete application?

    The Director's receipt of a tribe's complete application begins a 
270-day statutorily mandated period during which the Secretary must 
approve or disapprove a proposed TERA. With the consent of the tribe, 
the Secretary may extend the 270-day period for making a decision.



Sec.  224.57  What must the Director do upon receipt of an application?

    (a) Upon receiving an application for a TERA, the Director must:
    (1) Promptly notify the Designated Tribal Official in writing that 
the Director has received the application and the date it was received;
    (2) Within 30 days from the date of receiving the application, 
determine whether the application is complete; and
    (3) Take the following actions:

------------------------------------------------------------------------
 If the Director determines that . . .     Then the Director must . . .
------------------------------------------------------------------------
(i) The application is complete........  (A) Issue a written notice and
                                          a request for an application
                                          consultation meeting to the
                                          Designated Tribal Official;
                                          and
                                         (B) If appropriate, notify
                                          other Departmental bureaus and
                                          offices of receiving the
                                          application and provide
                                          copies.
(ii) The application is not complete...  (A) Issue a written notice to
                                          the Designated Tribal Official
                                          that the application is not
                                          complete;
                                         (B) Specify the additional
                                          information the tribe is
                                          required to submit to make the
                                          application complete; and
                                         (C) Start the 270-day review
                                          period only when the Director
                                          receives a complete
                                          application.
------------------------------------------------------------------------

    (b) Unless the Director notifies the Designated Tribal Official 
during the 30-day review period that the application is not complete, 
the application is presumed to be complete and the 270-day review period 
under 25 U.S.C. 3504(e)(2)(A) of the Act will begin as of the date that 
the application was received.

                    Application Consultation Meeting



Sec.  224.58  What is an application consultation meeting?

    An application consultation meeting is a meeting held at the tribe's 
headquarters between the Director and the tribal governing body and any 
other representatives that the tribe may designate to discuss the TERA 
application. The Secretary will designate representatives of appropriate 
Departmental offices or bureaus to attend the application consultation 
meeting, as necessary. The tribe may record the meeting. The meeting 
will:
    (a) Be held at the earliest practicable time after the Director 
receives a tribe's complete application;
    (b) Include a thorough discussion of the tribe's application;
    (c) Identify the specific services consistent with the Secretary's 
ongoing trust responsibility and available resources that the Department 
would provide to the tribe upon the approval of a TERA;
    (d) Include a discussion of the relationship of the tribe to other 
Federal agencies with responsibilities for implementing or ensuring 
compliance with the terms and conditions of leases, business agreements, 
or rights-of-way and applicable Federal laws;
    (e) Include a discussion of the relationship of the tribe to its 
members, to State and local governments, and to non-Indians who may be 
affected by approval of a TERA or by leases, business agreements, or 
rights-of-way that the tribe may enter into or grant under an approved 
TERA;
    (f) Include a discussion of the tribal administrative, financial, 
technical, and managerial capacities needed to carry out the tribe's 
obligations under a TERA; and
    (g) Include a discussion of the form of the TERA and the timing and 
relative responsibilities of the parties for its preparation.



Sec.  224.59  How will the Director use the results 
of the application consultation meeting?

    The Director will use the information gathered during the 
application consultation meeting in conjunction with information 
provided through Sec. Sec.  224.53

[[Page 800]]

and 224.63 to determine the energy resource development capacity of the 
tribe as detailed in Sec.  224.72.



Sec.  224.60  What will the Director provide to the tribe 
after the application consultation meeting?

    Within 30 days following the meeting with the tribe, the Director 
will provide to the Designated Tribal Official a written report on the 
application consultation meeting. The report must include the Director's 
recommendations, if any, for revising the proposed TERA that was 
submitted as part of the tribe's application.



Sec.  224.61  What will the tribe provide to the Director 
after receipt of the Director's report on the application consultation meeting?

    If the tribe wishes to proceed with the application, the tribe must 
submit a final proposed TERA to the Director within 45 days following 
the date of the Tribe's receipt of the Director's report on the 
application consultation meeting.



Sec.  224.62  May a final proposed TERA differ from the original proposed TERA?

    The final proposed TERA may or may not contain provisions that 
differ from the original proposed TERA submitted with the application.
    (a) If a final proposed TERA does not differ significantly or 
materially from the original TERA contained in the complete application, 
the 270-day review period will begin to run on the date the original 
complete application was received (under Sec.  224.57(c)) or on the date 
established by operation of Sec.  224.57(d)).
    (b) If a final proposed TERA differs significantly or materially 
from the original TERA contained in the complete application, the 
Secretary, with the tribe's consent, may extend the 270-day period for a 
reasonable time. The Secretary will notify the tribe in writing if an 
extension of time is necessary.

                            TERA Requirements



Sec.  224.63  What provisions must a TERA contain?

    A TERA must contain all the elements required by this section.
    (a) A provision for the Secretary's periodic review and evaluation 
of the tribe's performance under a TERA.
    (b) A provision that recognizes the authority of the Secretary, upon 
a finding of imminent jeopardy to a physical trust asset, to take 
actions the Secretary determines to be necessary to protect the asset, 
including reassumption under subparts F and G of this part.
    (c) A provision under which the tribe establishes and ensures 
compliance with an environmental review process for leases, business 
agreements, and rights-of-way which, at a minimum:
    (1) Identifies and evaluates all significant environmental effects 
(as compared to a no-action alternative), including effects on cultural 
resources, arising from a lease, business agreement, or right-of-way;
    (2) Identifies proposed mitigation measures, if any, and 
incorporates appropriate mitigation measures into the lease, business 
agreement, or right-of-way;
    (3) Informs the public and provides opportunity for public comment 
on the environmental impacts of the approval of the lease, business 
agreement or right-of-way;
    (4) Provides for tribal responses to relevant and substantive public 
comments before tribal approval of the lease, business agreement or 
right-of-way;
    (5) Provides for sufficient tribal administrative support and 
technical capability to carry out the environmental review process; and
    (6) Develops adequate tribal oversight of energy resource 
development activities under any lease, business agreement or right-of-
way under a TERA that any other party conducts to determine whether the 
activities comply with the TERA and applicable Federal and tribal 
environmental laws.
    (d) Provisions that require, with respect to any lease, business 
agreement, or right-of-way approved under a TERA, all of the following:
    (1) Mechanisms for obtaining corporate, technical, and financial 
qualifications of a third party that has applied to enter into a lease, 
business agreement, or right-of-way;

[[Page 801]]

    (2) Express limitations on duration that meet the restrictions of 
the Act and this Part under Sec.  224.86;
    (3) Mechanisms for amendment, transfer, and renewal;
    (4) Mechanisms for obtaining, reporting and evaluating the economic 
return to the tribe;
    (5) Mechanisms for securing technical information about activities 
and ensuring that technical activities are performed in compliance with 
terms and conditions;
    (6) Assurances of the tribe's compliance with all applicable 
environmental laws;
    (7) Requirements that the lessee, operator, or right-of-way grantee 
will comply with all applicable environmental laws;
    (8) Identification of tribal representatives with the authority to 
approve a lease, business agreement, or right-of-way and the related 
energy development activities that would occur under a lease, business 
agreement, or right-of-way;
    (9) Public notification that a lease, business agreement, or right-
of-way has received final tribal approval;
    (10) A process for consultation with affected States regarding off-
reservation impacts, if any, identified under paragraph (c) of this 
section;
    (11) A description of remedies for breach;
    (12) A statement that any provision that violates an express term or 
requirement of the TERA is null and void;
    (13) A statement that if the Secretary determines that any provision 
that violates an express term or requirement of the TERA is material, 
the Secretary may suspend or rescind the lease, business agreement, or 
right-of-way, or take any action the Secretary determines to be in the 
best interest of the tribe, including, with the consent of the parties, 
revising the nonconforming provisions so that they conform to the intent 
of the applicable portion of the TERA; and
    (14) A statement that the lease, business agreement, or right-of-way 
subject to a TERA, unless otherwise provided, goes into effect when the 
tribe delivers executed copies of the lease, business agreement, or 
right-of-way to the Director by first class mail return receipt 
requested or express delivery. The parties to a lease, business 
agreement, or right-of-way may agree in writing that any provision of 
their contract may have retroactive application.
    (e) Citations to any applicable tribal laws, regulations, or 
procedures that:
    (1) Provide opportunity for the public to comment on and to 
participate in public hearings, if any, under paragraph (c)(2) of this 
section; and
    (2) Provide remedies that petitioning parties must exhaust before 
filing a petition with the Secretary under subpart E of this part.
    (f) Provisions that require a tribe to provide the Secretary with 
citations to any tribal laws, regulations, or procedures the tribe 
adopts after the effective date of a TERA that establish, amend, or 
supplement tribal remedies that petitioning parties must exhaust before 
filing a petition with the Secretary under subpart E of this part.
    (g) Provisions that designate a person or entity, together with 
contact information, authorized by the tribe to maintain and disseminate 
to requesting members of the public current copies of tribal laws, 
regulations, or procedures that establish or describe tribal remedies 
that petitioning parties must exhaust before instituting appeals under 
subpart E of this part.
    (h) Identification of financial assistance, if any, that the 
Secretary has agreed to provide to the tribe to assist in implementation 
of the TERA, including the tribe's environmental review of individual 
energy development activities.
    (i) Provisions that require a tribe to notify the Secretary and the 
Director in writing, as soon as practicable after the tribe receives 
notice, of a violation or breach as defined in this Part.
    (j) Provisions that require the tribe and the tribe's financial 
experts to adhere to Government auditing standards and to applicable 
continuing professional education requirements.
    (k) Provisions that require the tribe to submit to the Director 
information and documentation of payments made directly to the tribe, if 
any. These provisions enable the Secretary to discharge the trust 
responsibility of the United States to enforce the terms of,

[[Page 802]]

and protect the rights of the tribe under, a lease, business agreement, 
or right-of-way. Required documentation must include documents 
evidencing proof of payment such as cancelled checks; cash receipt 
vouchers; copies of money orders or cashiers checks; or verification of 
electronic payments.
    (l) Provisions that ensure the creation, maintenance and 
preservation of records related to leases, business agreements, or 
rights-of-way and performance of activities a tribe assumed under a TERA 
sufficient to facilitate the Secretary's periodic review of the TERA. 
The Secretary will use these records as part of the periodic review and 
evaluation process under Sec.  224.132. Approved Departmental records 
retention procedures under the Federal Records Act (44 U.S.C. Chapters 
29, 31, and 33) provide a framework the tribe may use to ensure that its 
records under a TERA adequately document essential transactions, furnish 
information necessary to protect its legal and financial rights, and 
enable the Secretary to discharge the trust responsibility if:
    (1) Any other party violates the terms of any lease, business 
agreement, or right-of-way; or
    (2) Any provision of a lease, business agreement or right-of-way 
violates the TERA.



Sec.  224.64  How may a tribe assume management of development 
of different types of energy resources?

    In order for a tribe to assume authority for approving leases, 
business agreements, and rights-of-way for development of another energy 
resource that is not included in the TERA, a tribe must apply for a new 
TERA covering the authority for the development of another energy 
resource it wishes to assume. The Secretary's consideration of a new 
TERA will include a determination of the tribe's capacity to develop 
that type of energy resource and will trigger the public notice and 
opportunity for comment consistent with Sec.  224.67.



Sec.  224.65  How may a tribe assume additional activities under a TERA?

    A tribe may assume additional activities related to the development 
of the same type of energy resource included in a TERA by negotiating 
with the Secretary an amendment to the existing TERA to include the 
additional activities. The Secretary will determine in each case whether 
the tribe has sufficient capacity to carry out additional activities the 
tribe may wish to assume under an approved TERA.



Sec.  224.66  How may a tribe reduce the scope of the TERA?

    A tribe may reduce the scope of the TERA by negotiating with the 
Secretary an amendment to the existing TERA to eliminate an activity 
assumed under the TERA or a type of energy resource development managed 
under the TERA. Any such reduction in scope must include the return of 
all relevant Departmental resources transferred under the TERA and any 
relevant records and documents.

                     Public Notification and Comment



Sec.  224.67  What must the Secretary do upon the Director's receipt 
of a final proposed TERA?

    (a) Within 10 days of the Director's receipt of a final proposed 
TERA, the Secretary must submit a notice for publication in the Federal 
Register advising the public:
    (1) That the Secretary is considering a final proposed TERA for 
approval or disapproval: and
    (2) Of any National Environmental Policy Act (NEPA) review the 
Secretary is conducting.
    (b) The Federal Register notice will:
    (1) Contain information advising the public how to request and 
receive copies of or participate in any NEPA reviews, as prescribed in 
subpart C of this part, related to approval of the final proposed TERA; 
and
    (2) Contain information advising the public how to comment on a 
final proposed TERA.



Sec.  224.68  How will the Secretary use public comments?

    (a) The Secretary will review and consider public comments in 
deciding to approve or disapprove the final proposed TERA; and

[[Page 803]]

    (b) The Secretary will provide copies of the comments to the 
Designated Tribal Official;
    (c) Upon mutual agreement between the tribe and the Secretary, the 
tribe may make changes in the final proposed TERA based on the comments 
received; and
    (d) If the tribe revises the final proposed TERA based on public 
comments, the tribal governing body must approve the changes, the 
authorized representative of the tribe must sign the final proposed TERA 
as revised, and the tribe must send the revised final proposed TERA to 
the Director. The Secretary and the tribe will consult on whether an 
extension of the review period is necessary under Sec.  224.62(b).



         Subpart C_Approval of Tribal Energy Resource Agreements



Sec.  224.70  Will the Secretary review a proposed TERA 
under the National Environmental Policy Act?

    Yes, the Secretary will conduct a review under the National 
Environmental Policy Act (NEPA) of the potential impacts on the quality 
of the human environment that might arise from approving a final 
proposed TERA. The scope of the Secretary's evaluation will be limited 
to the scope of the TERA. The public comment period, when required, 
under the NEPA review will occur concurrently with the public comment 
period for a TERA under Sec.  224.67.



Sec.  224.71  What standards will the Secretary use to decide 
to approve a final proposed TERA?

    The Secretary will consider the best interests of the tribe and the 
Federal policy of promoting tribal self-determination in deciding 
whether to approve a final proposed TERA. The Secretary must approve a 
final proposed TERA if it contains the provisions required by the Act 
and this part and the Secretary determines that the tribe has 
demonstrated sufficient capacity to manage the development of energy 
resources it proposes to develop.



Sec.  224.72  How will the Secretary determine whether a tribe 
has demonstrated sufficient capacity?

    The Secretary will determine whether a tribe has demonstrated 
sufficient capacity under Sec.  224.71 based on the information obtained 
through the application process. The Secretary will consider:
    (a) The specific energy resource development the tribe proposes to 
regulate;
    (b) The scope of the administrative or regulatory activities the 
tribe seeks to assume;
    (c) Materials and information submitted with the application for a 
TERA, the result of meetings between the tribe and a representative of 
the Department and the Director's written report;
    (d) The history of the tribe's role in energy resource development, 
including negotiating and approval or disapproval of pre-existing 
energy-related leases, business agreements, and rights-of-way;
    (e) The administrative expertise of the tribe available to regulate 
energy resource development within the scope of the final proposed TERA 
or the tribe's plans for establishing that expertise;
    (f) The financial capacity of the tribe to maintain or procure the 
technical expertise needed to evaluate proposals and to monitor 
anticipated activities in a prudent manner;
    (g) The tribe's past performance administering contracts and grants 
associated with self-determination programs, cooperative agreements with 
Federal and State agencies, and environmental programs administered by 
the Environmental Protection Agency;
    (h) The tribe's past performance monitoring activities undertaken by 
third parties under approved leases, business agreements, or rights-of-
way; and
    (i) Any other factors the Secretary finds to be relevant in light of 
the scope of the proposed TERA.

[[Page 804]]



Sec.  224.73  How will the scope of energy resource development 
affect the Secretary's determination of the tribe's capacity?

    The Secretary's review under Sec.  224.72 of the tribe's capacity to 
manage and regulate energy resource development under the TERA will 
include a determination as to each type of energy resource development 
subject to the TERA for which the tribe seeks to regulate, and each type 
of regulatory activity the tribe proposes to assume. The Secretary's 
review of a TERA must be limited to activities specified by its 
provisions.



Sec.  224.74  When must the Secretary approve or disapprove 
a final proposed TERA?

    The Secretary must approve or disapprove a final proposed TERA or a 
revised final proposed TERA within 270 days of the Director's receipt of 
a complete application for a TERA. With the consent of the tribe, or as 
provided in Sec.  224.62(b), the Secretary may extend the period for a 
decision.



Sec.  224.75  What must the Secretary do upon approval or disapproval 
of a final proposed TERA?

    Within 10 days of the Secretary's approval or disapproval of a final 
proposed TERA, the Secretary must notify the tribal governing body in 
writing and take the following actions:

------------------------------------------------------------------------
  If the Secretary's decision is . . .    Then the Secretary will . . .
------------------------------------------------------------------------
(a) To approve the final proposed TERA.  (1) Sign the TERA making it
                                          effective on the date of
                                          signature, and return the
                                          signed TERA to the tribal
                                          governing body; and
                                         (2) Maintain a copy of the TERA
                                          and any subsequent amendments
                                          or supplements to the TERA.
(b) To disapprove the final proposed     Send the tribe a notice of
 TERA.                                    disapproval that must include:
                                             (1) The basis of the
                                          disapproval;
                                             (2) The changes or other
                                          actions required to address
                                          the Secretary's basis for
                                          disapproval; and
                                             (3) A statement that the
                                          decision is a final agency
                                          action and is subject to
                                          judicial review.
------------------------------------------------------------------------



Sec.  224.76  Upon notification of disapproval, may a tribe re-submit 
a revised final proposed TERA?

    Yes, within 45 days of receiving the notice of disapproval, or a 
later date as the Secretary and the tribe agree to in writing, the tribe 
may re-submit a revised final proposed TERA, approved by the tribal 
governing body and signed by the tribe's authorized representative, to 
the Director that addresses the Secretary's concerns. Unless the 
Secretary and the tribe otherwise agree, the Secretary must approve or 
disapprove the revised final proposed TERA within 60 days of the 
Director's receipt of the revised final proposed TERA. Within 10 days of 
the Secretary's approval or disapproval of a revised final proposed 
TERA, the Secretary must notify the tribal governing body in writing and 
take the following actions:

------------------------------------------------------------------------
  If the Secretary's decision is . . .    Then the Secretary will . . .
------------------------------------------------------------------------
(a) To approve the revised final         (1) Sign the TERA making it
 proposed TERA.                           effective on the date of
                                          signature, and return the
                                          signed TERA to the tribal
                                          governing body; and
                                         (2) Maintain a copy of the TERA
                                          and any subsequent amendments
                                          or supplements to the TERA.
(b) To disapprove the revised final      Send the tribe a notice of
 proposed TERA.                           disapproval that must include:
                                             (1) The reasons for the
                                          disapproval; and
                                             (2) A statement that the
                                          decision is a final agency
                                          action and is subject to
                                          judicial review.
------------------------------------------------------------------------



Sec.  224.77  Who may appeal the Secretary's decision on a final proposed TERA 
or a revised final proposed TERA?

    Only a tribe applying for a TERA may appeal the Secretary's decision 
to disapprove a final proposed TERA or a revised final proposed TERA in 
accordance with the appeal procedures contained in subpart I of this 
part. No other person or entity may appeal the Secretary's decision. The 
Secretary's decision to approve a final proposed TERA or a revised final 
proposed TERA is a final agency action.

[[Page 805]]



      Subpart D_Implementation of Tribal Energy Resource Agreements

               Applicable Authorities and Responsibilities



Sec.  224.80  Under what authority will a tribe perform activities 
for energy resource development?

    A tribe will perform activities for energy resource development 
activities undertaken under a TERA under the authorities provided in the 
approved TERA. Notwithstanding anything in this part or an approved TERA 
to the contrary, a tribe will retain all sovereign and other powers it 
otherwise possesses.



Sec.  224.81  What laws are applicable to activities?

    Federal and tribal laws apply to activities under a TERA, unless 
otherwise specified in the TERA.



Sec.  224.82  What activities will the Department continue to perform 
after approval of a TERA?

    After approval of a TERA, the Department will provide a tribe:
    (a) All activities that the Department performs unless the tribe has 
assumed such activities under the TERA;
    (b) Access to title status information and support services needed 
by a tribe in the course of evaluating proposals for leases, business 
agreements, or rights-of-way;
    (c) Coordination between the tribe and the Department for ongoing 
maintenance of accurate real property records;
    (d) Access to technical support services within the Department to 
assist the tribe in evaluating the physical, economic, financial, 
cultural, social, environmental, and legal consequences of approving 
proposals for leases, business agreements, or rights-of-way under a 
TERA; and
    (e) Assistance to ensure that third-party violations or breaches of 
the terms of leases, business agreements, or rights-of-way or applicable 
provisions of Federal law by third parties are handled appropriately.

       Leases, Business Agreements, and Rights-of-Way Under a TERA



Sec.  224.83  What must a tribe do after executing a lease 
or business agreement, or granting a right-of-way?

    Following the execution of a lease, business agreement, or grant of 
right-of-way under a TERA, a tribe must:
    (a) Inform the public of approval of the lease, business agreement, 
or right-of-way under the authority granted in the TERA; and
    (b) Send a copy of the executed lease, business agreement, or right-
of-way, or amendments, to the Director within one business day of 
execution. The copy must be sent by certified mail return receipt 
requested or by overnight delivery.



Sec.  224.84  When may a tribe grant a right-of-way?

    A tribe may grant a right-of-way under a TERA if the grant of right-
of-way is over tribal land for a pipeline or an electric transmission or 
distribution line if the pipeline or electric transmission or 
distribution line serves:
    (a) An electric generation, transmission, or distribution facility 
located on tribal land; or
    (b) A facility located on tribal land that processes or refines 
energy resources developed on tribal land.



Sec.  224.85  When may a tribe enter into a lease or business agreement?

    A tribe may enter into a lease or business agreement for the purpose 
of energy resource development for:
    (a) Exploration for, extraction of, or other development of the 
tribe's energy mineral resources on tribal land including, but not 
limited to, marketing or distribution;
    (b) Construction or operation of an electric generation, 
transmission, or distribution facility located on tribal land; or
    (c) A facility to process or refine energy resources developed on 
tribal land.



Sec.  224.86  Are there limits on the duration of leases, business agreements, 
and rights-of-way?

    (a) The duration of leases, business agreements, and rights-of-way 
entered

[[Page 806]]

into under a TERA are limited as follows:
    (1) For leases and business agreements, except as provided in 
paragraph (b) of this section, 30 years;
    (2) For leases for production of oil resources and gas resources, or 
both, 10 years and as long after as oil or gas production continues in 
paying quantities; and
    (3) For rights-of-way, 30 years.
    (b) A lease or business agreement a tribe enters into, or a right-
of-way a tribe grants may be renewed at the discretion of the tribe as 
long as the TERA remains in effect and the approved activities have not 
been rescinded by the tribe or suspended or reassumed by the Department.

                           Violation or Breach



Sec.  224.87  What are the obligations of a tribe if it discovers 
a violation or breach?

    As soon as practicable after discovering or receiving notice of a 
violation or breach of a lease, business agreement, or right-of-way of a 
Federal or tribal environmental law resulting from an activity 
undertaken by a third party under a lease, business agreement, or right-
of-way, the tribe must provide written notice to the Director 
describing:
    (a) The nature of the violation or breach in reasonable detail;
    (b) The corrective action taken or planned by the tribe; and
    (c) The proposed period for the corrective action to be completed.



Sec.  224.88  What must the Director do after receiving notice of a violation 
or breach from the tribe?

    After receiving notice of a violation or breach from the tribe, the 
Director will:
    (a) Review the notice and conduct an investigation under Sec.  
224.135(b) including, as necessary:
    (1) An on-site inspection; and
    (2) A review of relevant records, including transactions and 
reports.
    (b) If the Director determines, after the investigation, that a 
violation or breach is not causing or will not cause imminent jeopardy 
to a physical trust asset, the Director will review, for concurrence or 
disapproval, the corrective action to be taken or imposed by the tribe 
and the proposed period for completion of the corrective action;
    (c) If the Director determines, after the investigation, that a 
violation or breach is causing or will cause imminent jeopardy to a 
physical trust asset, the Director will proceed under the imminent 
jeopardy provisions of subpart F of this part.



Sec.  224.89  What procedures will the Secretary use to enforce leases, 
business agreements, or rights-of-way?

    (a) The Secretary and a tribe will consult with each other regarding 
enforcement of and Secretarial assistance needed to enforce leases, 
business agreements, or rights-of-way entered into under a TERA. When 
appropriate, the Secretary will:
    (1) Use the notification and enforcement procedures established in 
25 CFR parts 162, 211 and 225 to ensure compliance with leases and 
business agreements; and
    (2) Use the notification and enforcement procedures of 25 CFR part 
169 to ensure compliance with rights-of-way.
    (b) All enforcement remedies established in 25 CFR parts 162, 211, 
225, and 169 are available to the Secretary.



                  Subpart E_Interested Party Petitions



Sec.  224.100  May a person or entity ask the Secretary to review 
a tribe's compliance with a TERA?

    In accordance with this subpart, a person or entity that may be an 
interested party may submit to the Secretary a petition to review a 
tribe's compliance with a TERA. However, before filing a petition with 
the Secretary, a person or entity that may be an interested party must 
first exhaust tribal remedies, if a tribe has provided for such 
remedies. If a tribe has not provided for tribal remedies, a person or 
entity that may be an interested party may file a petition directly with 
the Secretary.



Sec.  224.101  Who is an interested party?

    For the purposes of this part, an interested party is a person or 
entity that has demonstrated that an interest of the person or entity 
has sustained,

[[Page 807]]

or will sustain, an adverse environmental impact as a result of a 
tribe's failure to comply with a TERA.



Sec.  224.102  Must a tribe establish a comment or hearing process 
for addressing environmental concerns?

    Yes. The Act (25 U.S.C. 3504(e)(2)(C)(iii)(I), (II) and 25 U.S.C. 
3504(e)(2)(B)(iii)(X)) and subpart B of this part require a tribe to 
establish an environmental review process under a TERA that:
    (a) Ensures that the public is notified about and has an opportunity 
to comment on the environmental impacts of proposed tribal action to be 
taken under a TERA;
    (b) Requires that the tribe respond to relevant and substantive 
comments about the environmental impacts of a proposed tribal action 
before the tribe approves a lease, business agreement, or right-of-way; 
and
    (c) Provides for a process for consultation with any affected States 
regarding off-reservation environmental impacts, if any, resulting from 
approval of a lease, business agreement, or right-of-way.



Sec.  224.103  Must a tribe establish other public participation processes?

    No. Except for the environmental review process required by the Act 
and Sec.  224.63(b)(1), a tribe is not required to establish a process 
for public participation concerning non-environmental issues in a TERA 
or leases, business agreements or rights-of-way undertaken under a TERA. 
However, a tribe may elect to establish procedures that permit the 
public to participate in public hearings or that expand the scope of 
matters about which the public may comment.



Sec.  224.104  Must a tribe enact tribal laws, regulations, or procedures 
permitting a person or entity to allege that a tribe is not complying 
with a TERA?

    No. A tribe is not required, but may elect, to enact tribal laws, 
regulations, or procedures permitting a person or entity that may be an 
interested party to allege that a tribe is not complying with its TERA.



Sec.  224.105  How may a person or entity obtain copies of tribal laws, 
regulations, or procedures that would permit an allegation of noncompliance 
with a TERA?

    (a) A person or entity that may be an interested party may obtain 
copies of tribal laws, regulations, or procedures that establish tribal 
remedies that permit a person or entity to allege that the tribe is not 
complying with its TERA by making a request to the tribe in accordance 
with the TERA and Sec.  224.63(g).
    (b) Upon obtaining copies of tribal laws, regulations, or procedures 
under subsection (a), a person or entity that may be an interested party 
may file a petition with the tribe under those tribal laws, regulations, 
or procedures.
    (c) If the person or entity that may be an interested party files a 
petition alleging noncompliance with a TERA, the person or entity 
becomes a petitioner, and the tribe must respond according to Sec.  
224.106.



Sec.  224.106  If a tribe has enacted tribal laws, regulations, or procedures 
for challenging tribal action, how must the tribe respond to a petition?

    If a tribe has enacted tribal laws, regulations, or procedures under 
which a petitioner may file a petition alleging noncompliance with a 
TERA, the tribe must:
    (a) Within a reasonable time issue a final written decision under 
the tribal laws, regulations, or procedures that addresses the claim. 
The decision may include a determination of whether the petitioner is an 
interested party;
    (b) Provide a copy of its final written decision to the petitioner; 
and
    (c) If the tribe fails, within a reasonable period, to issue a 
written decision to a petition that a petitioner brings under applicable 
tribal laws, regulations, or procedures the petitioner may file a 
petition with the Secretary.



Sec.  224.107  What must a petitioner do before filing a petition 
with the Secretary?

    Before a petitioner may file a petition with the Secretary under 
this subpart, the petitioner must have exhausted tribal remedies by 
participating in any tribal process under

[[Page 808]]

Sec.  224.106, including any tribal appeal process.



Sec.  224.108  May tribes offer a resolution of a petitioner's claim?

    Yes. In responding to a petition filed under tribal laws, 
regulations or procedures, a tribe may, with the petitioner's written 
consent, resolve the petitioner's claims.



Sec.  224.109  What must a petitioner claim or request in a petition filed 
with the Secretary?

    In a petition filed with the Secretary, a petitioner must:
    (a) Claim that the tribe, through its action or inaction has failed 
to comply with terms or provisions of a TERA, and, as a result, the 
petitioner's interest has sustained or will sustain an adverse 
environmental impact.
    (b) Request that the Secretary review the claims raised in the 
petition; and
    (c) Request that the Secretary take whatever action is necessary to 
bring a tribe into compliance with the TERA.



Sec.  224.110  What must a petition to the Secretary contain?

    A petition must contain:
    (a) The petitioner's name and contact information;
    (b) Specific facts demonstrating that the interested party under 
Sec.  224.101, including identification of the affected interest;
    (c) Specific facts demonstrating that the petitioner exhausted 
tribal remedies, if tribal laws, regulations, or procedures permitted 
the petitioner to allege tribal noncompliance with a TERA;
    (d) A description of facts supporting the petitioner's allegation of 
the tribe's noncompliance with a TERA;
    (e) A description of the adverse environmental impact that the 
petitioner's interest has sustained or will sustain because of the 
tribe's alleged noncompliance with the TERA;
    (f) A copy of any written decision the tribe issued responding to 
the petitioner's claims;
    (g) If applicable, a statement that the tribe has issued no written 
decision within a reasonable time related to a claim a petitioner has 
filed with the tribe under applicable tribal laws, regulations, or 
procedures;
    (h) If applicable, a statement and supporting documentation that the 
tribe did not respond to the petitioner's request under Sec.  224.105(a) 
for copies of any tribal laws, regulations, or procedures allowing the 
petitioner to allege that the tribe is not complying with a TERA; and
    (i) Any other information relevant to the petition.



Sec.  224.111  When may a petitioner file a petition with the Secretary?

    (a) A petitioner may file a petition with the Secretary:
    (1) By delivering the petition to the Director within 30 days of 
receiving the tribe's final written decision addressing the allegation 
of noncompliance under applicable tribal laws, regulations, or 
procedures;
    (2) Within a reasonable period following the tribe's constructive 
denial of the petition under Sec.  224.106(c), and the Secretary will 
determine if the petition is timely in light of the applicable facts and 
circumstances; or
    (3) The tribe did not respond to the petitioner's request for copies 
of any tribal laws, regulations, or procedures under Sec.  224.105(a).
    (b) A petitioner may file a petition directly with the Secretary if 
the tribe has no tribal laws, regulations or procedures that provide the 
petitioner an opportunity to allege tribal noncompliance with a TERA.



Sec.  224.112  What must the Director do upon receipt of a petition?

    Within 20 days after receiving a petition, the Director must:
    (a) Notify the tribe in writing that the Director has received a 
petition;
    (b) Provide a copy of the complete petition to the tribe;
    (c) Initiate a petition consultation with the tribe that will 
address the petitioner's allegation of a tribe's noncompliance with a 
TERA and alternatives to resolve any noncompliance; and
    (d) Notify the tribe in writing by certified mail, return receipt 
requested, when the petition consultation is complete.

[[Page 809]]



Sec.  224.113  What must the tribe do after it completes petition consultation 
with the Director?

    (a) Within 45 days of receiving the Director's notice that the 
petition consultation is complete, the tribe must respond to any claim 
made in the petition by submitting a written response to the Director; 
and
    (b) Within a reasonable time after 45 days following the completion 
of the petition consultation process, the tribe must cure or otherwise 
resolve each claim of noncompliance made in the petition.



Sec.  224.114  How may the tribe address a petition in its written response?

    In addition to responding to the petitioner's claims, the tribe may 
also:
    (a) Include its interpretation of relevant provisions of the TERA 
and other legal requirements;
    (b) Discuss whether the petitioner is an interested party;
    (c) State whether the petitioner has exhausted tribal remedies, and 
if so, how; and
    (d) Propose to cure or otherwise resolve the claims within the time 
frame in Sec.  224.113(b).



Sec.  224.115  When in the petition process must the Director 
investigate a tribe's compliance with a TERA?

    The Director must investigate the petitioner's claims of the tribe's 
noncompliance with a TERA only after making a threshold determination 
that:
    (a) The tribe has denied or failed to respond to each claim made in 
the petition within the period under Sec.  224.113(a); or
    (b) The tribe has failed, refused, or was unable to cure or 
otherwise resolve each claim made in the petition within a reasonable 
period, as determined by the Director, after the expiration of the 
period in Sec.  224.113(b).



Sec.  224.116  What is the time period in which the Director must investigate 
a tribe's compliance with a TERA?

    (a) If the Director determines under Sec.  224.115 that one of the 
threshold determinations in Sec.  224.114 has been met, then within 120 
days of the Director's receipt of a petition, the Director must 
determine whether or not a tribe is in compliance with the TERA;
    (b) The Director may extend the time for determining a tribe's 
compliance with a TERA up to 120 days in any case in which the Director 
determines that additional time is necessary to evaluate the claims in 
the petition and the tribe's written response, if any. If the Director 
decides to extend the time, the Director must notify the petitioner and 
the tribe in writing of the extension.



Sec.  224.117  Must the Director make a determination of the tribe's 
compliance with a TERA?

    (a) Yes. Upon a finding that one of the threshold determinations in 
Sec.  224.115 has been met, the Director must make a determination of 
the tribe's compliance with a TERA within the time period in Sec.  
224.116.
    (b) If the Director determines that the tribe is in compliance with 
the TERA, the Director will notify the tribe and the petitioner in 
writing;
    (c) If the Director determines that the tribe is not in compliance 
with the TERA, the Director will notify the tribe and the petitioner in 
writing and, in addition, must provide the tribe:
    (1) A written determination that describes the manner in which the 
TERA has been violated together with a written notice of the violations;
    (2) Notice of a reasonable opportunity to comply with the TERA; and
    (3) Notice of the tribe's opportunity for a hearing.



Sec.  224.118  How must the tribe respond to the Director's notice 
of the opportunity for a hearing?

    The tribe must respond in writing to the Director's notice of the 
opportunity for a hearing within 20 days of receipt of the notice by 
requesting a hearing or declining to request a hearing. If the tribe 
does not respond within the time period, the Director will proceed with 
making a decision without further input from the tribe.



Sec.  224.119  What must the Director do when making a decision on a petition?

    (a) The Director must issue a written decision to the tribe and the 
petitioner stating the basis for the decision about

[[Page 810]]

the tribe's compliance or noncompliance with the TERA within 30 days 
following:
    (1) A hearing, if the tribe requested a hearing;
    (2) The tribe's declining the opportunity for a hearing; or
    (3) The tribe's failure to respond to the opportunity for a hearing 
within 20 days of the Director's written notice of the opportunity for a 
hearing.
    (b) If the Director decides that the tribe is not in compliance with 
the TERA, the Director must:
    (1) Include findings of fact and conclusions of law with the written 
decision to the tribe; and
    (2) Take action to ensure compliance with the TERA.



Sec.  224.120  What action may the Director take to ensure compliance 
with a TERA?

    If the Director decides that a tribe is not in compliance with a 
TERA, the Director may take action to ensure compliance with the TERA 
including:
    (a) Temporarily suspending any activity under a lease, business 
agreement, or right-of-way until the tribe complies with the TERA; or
    (b) Rescinding approval of part of the TERA, or
    (c) Rescinding all of the TERA and recommending that the Secretary 
reassume activities under subpart G of this part.



Sec.  224.121  How may a tribe or a petitioner appeal the Director's decision 
about the tribe's compliance with the TERA?

    A tribe or a petitioner, or both, may appeal the Director's decision 
on the petition under Sec.  224.119 to the Principal Deputy Assistant 
Secretary--Indian Affairs under subpart I of this part.



                       Subpart F_Periodic Reviews



Sec.  224.130  What is the purpose of this subpart?

    This subpart describes how the Secretary and a tribe will develop 
and perform the periodic review and evaluation required by the Act and 
by a TERA.



Sec.  224.131  What is a periodic review and evaluation?

    A periodic review and evaluation is an examination the Director 
performs to monitor a tribe's performance of activities associated with 
the development of energy resources and to review compliance with a 
TERA. During the TERA consultation, a tribe and the Director will 
develop a periodic review and evaluation process that addresses the 
tribe's specific circumstances and the terms and conditions of the 
tribe's TERA. The tribe will include the agreed-upon periodic review and 
evaluation process in its final proposed TERA.



Sec.  224.132  How does the Director conduct a periodic review and evaluation?

    (a) The Director will conduct a periodic review and evaluation under 
the TERA, in consultation with the tribe, and in cooperation with other 
Departmental bureaus and offices whose activities the tribe assumed or 
that perform activities for the tribe.
    (b) The Director will communicate with the Designated Tribal 
Official throughout the process established by this section.
    (c) During the periodic review and evaluation, the Director will:
    (1) Review relevant records and documents, including transactions 
and reports the tribe prepares under the TERA;
    (2) Conduct on-site inspections as appropriate; and
    (3) Review compliance with statutes and regulations applicable to 
activities undertaken under the TERA.
    (d) Review the effect on physical trust assets resulting from 
activities undertaken under a TERA.
    (e) Upon written request, the tribe should provide the Director with 
records and documents relevant to the provisions of the TERA. In 
addition, the tribe should identify any information in these submitted 
records and documents that is confidential, commercial and financial. 
Specific exceptions to disclosure under the Freedom of Information Act, 
or other statutory protections against disclosure, may apply and 
preclude disclosure of this

[[Page 811]]

information to third parties as provided for in Sec.  224.55.



Sec.  224.133  What must the Director do after a periodic 
review and evaluation?

    After a periodic review and evaluation, the Director must prepare a 
written report of the results and send the report to the Designated 
Tribal Official.



Sec.  224.134  How often must the Director conduct a periodic 
review and evaluation?

    The Director must conduct a periodic review and evaluation annually 
during the first 3 years of a TERA. After the third annual review and 
evaluation, the Secretary and the tribe may mutually agree to amend the 
TERA to conduct periodic reviews and evaluations once every 2 years.



Sec.  224.135  Under what circumstances may the Director conduct additional 
reviews and evaluations?

    The Director may conduct additional reviews and evaluations:
    (a) At a tribe's request;
    (b) As part of an investigation undertaken when the tribe notifies 
the Director of a violation or breach;
    (c) As part of an investigation undertaken because of a petition 
submitted under subpart E of this part;
    (d) As follow-up to a determination that harm or the potential for 
harm to a physical trust asset, previously identified in a periodic 
review and evaluation, exists; or
    (e) As the Secretary determines appropriate to carry out the 
Secretary's trust responsibilities.

                              Noncompliance



Sec.  224.136  How will the Director's report address a tribe's noncompliance?

    This section applies if the Director conducts a review and 
evaluation or investigation of a notice of violation of Federal law or 
the terms of a TERA.
    (a) If the Director determines that the tribe has not complied with 
Federal law or the terms of a TERA, the Director's written report must 
include a determination of whether the tribe's noncompliance has 
resulted in harm or the potential for harm to a physical trust asset.
    (b) If the Director determines that the tribe's noncompliance may 
cause harm or has caused harm to a physical trust asset, the Director 
must also determine whether the noncompliance cause imminent jeopardy to 
a physical trust asset.



Sec.  224.137  What must the Director do if a tribe's noncompliance 
has resulted in harm or the potential for harm to a physical trust asset?

    If, because of the tribe's noncompliance with Federal law or the 
terms of a TERA, the Director determines that there is harm or the 
potential for harm to a physical trust asset that does not rise to the 
level of imminent jeopardy to a physical trust asset, the Director must:
    (a) Document the issue in the written report of the review and 
evaluation;
    (b) Report the issue in writing to the tribal governing body;
    (c) Report the issue in writing to the Assistant Secretary--Indian 
Affairs; and
    (d) Determine what action, if any, the Secretary must take to 
protect the physical trust asset, which could include temporary 
suspension of the activity that resulted in non-compliance with the TERA 
or other applicable Federal laws or rescinding approval of all or part 
of the TERA.



Sec.  224.138  What must the Director do if a tribe's noncompliance 
has caused imminent jeopardy to a physical trust asset?

    If the Director finds that a tribe's noncompliance with a Federal 
law or the terms of a TERA has caused imminent jeopardy to a physical 
trust asset, the Director must:
    (a) Immediately notify the tribe by a telephone call to the 
Designated Tribal Official followed by a written notice by facsimile to 
the Designated Tribal Official and the tribal governing body of the 
imminent jeopardy to a physical trust asset. The notice must contain:
    (1) A description of the tribe's noncompliance with Federal law or 
the terms of the TERA;
    (2) A description of the physical trust asset and the nature of the 
imminent

[[Page 812]]

jeopardy to a physical trust asset resulting from the tribe's 
noncompliance; and
    (3) An order to the tribe to cease specific conduct or take specific 
action deemed necessary by the Director to correct any condition that 
caused the imminent jeopardy to a physical trust asset.
    (b) Issue a finding that the tribe's noncompliance with the TERA or 
a Federal law has caused imminent jeopardy to a physical trust asset.



Sec.  224.139  What must a tribe do after receiving a notice 
of imminent jeopardy to a physical trust asset?

    (a) Upon receipt of a notice of imminent jeopardy to a physical 
trust asset, the tribe must cease specific conduct outlined in the 
notice or take specific action the Director orders that is necessary to 
correct any condition causing the imminent jeopardy; and
    (b) Within 5 days of receiving a notice of imminent jeopardy to a 
physical trust asset, the tribe must submit a written response to the 
Director that:
    (1) Responds to the Director's finding that the tribe has failed to 
comply with a Federal law or the terms of the TERA;
    (2) Responds to the Director's finding of imminent jeopardy to a 
physical trust asset;
    (3) Describes the status of the tribe's cessation of specific 
conduct or specific action the tribe has taken to correct any condition 
causing imminent jeopardy to a physical trust asset; and
    (4) Describes what further actions, if any, the tribe proposes to 
take to correct any condition, cited in the notice, causing imminent 
jeopardy to a physical trust asset.



Sec.  224.140  What must the Secretary do if the tribe fails to respond to 
or does not comply with the Director's order?

    If the tribe does not respond to or does not comply with the 
Director's order under Sec.  224.138(a)(3), the Secretary may take any 
actions the Secretary deems appropriate to protect the physical trust 
asset, which may include the immediate reassumption of all activities 
the tribe assumed under the TERA. The procedures in subpart G of this 
part do not apply to reassumption under this section.



Sec.  224.141  What must the Secretary do if the tribe responds 
to the Director's order?

    (a) If the tribe responds in a timely manner to the Director's order 
under Sec.  224.138, the Secretary must:
    (1) Evaluate the tribe's response;
    (2) Determine whether or not the tribe has complied with the TERA 
and the Federal law cited in the notice; and
    (3) If the Secretary determines, after reviewing the tribe's 
response, that the tribe has not complied with the TERA or with a 
Federal law, the Secretary will determine whether the noncompliance 
caused imminent jeopardy to a physical trust asset.
    (b) If the Secretary determines that the tribe's noncompliance has 
caused imminent jeopardy to a physical trust asset, the Secretary may:
    (1) Order the tribe to take any action the Secretary deems necessary 
to comply with the TERA or Federal law and to protect the physical trust 
asset; or
    (2) Take any action the Secretary deems necessary to protect the 
physical trust asset, including reassumption under subpart G of this 
part.
    (c) If the Secretary determines, after reviewing the tribe's 
response, that the tribe has complied with the TERA and with Federal 
law, the Secretary will withdraw the Director's order.
    (d) The Secretary must base a finding of imminent jeopardy to a 
physical trust asset on the tribe's non-compliance with a TERA or 
violation of a Federal law.



                         Subpart G_Reassumption



Sec.  224.150  What is the purpose of this subpart?

    This subpart explains when and how the Secretary may reassume all 
activities included within a TERA without the consent of the tribe.



Sec.  224.151  When may the Secretary reassume activities?

    Upon issuing a written finding of imminent jeopardy to a physical 
trust asset, the Secretary may reassume activities under a TERA in 
accordance with this subpart. The Secretary may

[[Page 813]]

also reassume activities approved under a TERA in response to a petition 
from an interested party under subpart E of this part. Only the 
Secretary or the Assistant Secretary--Indian Affairs may reassume 
activities under a TERA.



Sec.  224.152  Must the Secretary always reassume the activities 
upon a finding of imminent jeopardy to a physical trust asset?

    (a) The Secretary may take whatever actions the Secretary deems 
necessary to protect the physical trust asset. At the discretion of the 
Secretary, these actions may include reassumption of the activities a 
tribe assumed under a TERA.
    (b) If the tribe does not respond to or does not comply with the 
Director's order under Sec.  224.138(a)(3), the Secretary must 
immediately reassume all activities the tribe assumed under the TERA. 
The notice procedures in this subpart will not apply to such immediate 
reassumption.

                      Notice of Intent To Reassume



Sec.  224.153  Must the Secretary notify the tribe of an intent 
to reassume the authority granted?

    If the Secretary determines under Sec.  224.152 that reassumption is 
necessary to protect the physical trust asset, the Secretary will issue 
a written notice to the tribal governing body of the Secretary's intent 
to reassume.



Sec.  224.154  What must a notice of intent to reassume include?

    A notice of intent to reassume must include:
    (a) A statement of the reasons for the intended reassumption, 
including, as applicable, a copy of the Secretary's written finding of 
imminent jeopardy to a physical trust asset;
    (b) A description of specific measures that the tribe must take to 
correct the violation and any condition that caused the imminent 
jeopardy to a physical trust asset;
    (c) The time period within which the tribe must take the measures to 
correct the violation of the TERA and any condition that caused the 
imminent jeopardy to a physical trust asset; and
    (d) The effective date of the reassumption, if the tribe does not 
meet the requirements in paragraphs (b) and (c) of this section.



Sec.  224.155  When must a tribe respond to a notice of intent to reassume?

    The tribe must respond to the Director in writing by mail, 
facsimile, or overnight express within 5 days of receiving the 
Secretary's notice of intent to reassume. If sent by mail, the tribe 
must send the response by certified mail, with return receipt requested. 
The Director will consider the date of the written response as the date 
it is postmarked.



Sec.  224.156  What information must the tribe's response to the notice 
of intent to reassume include?

    The tribe's response to the notice of intent to reassume must state 
that:
    (a) The tribe has complied with the Secretary's requirements in the 
notice of intent to reassume;
    (b) The tribe is taking specified measures to comply with the 
Secretary's requirements, and when the tribe will complete such 
measures, if the tribe needs more than 5 days to do so; or
    (c) The tribe will not comply with the Secretary's requirements.



Sec.  224.157  How must the Secretary proceed after receiving 
the tribe's response?

    (a) If the Secretary determines that the tribe's proposed or 
completed actions to comply with the Secretary's requirements are 
adequate to correct the violation of the TERA or Federal law and any 
condition that caused the imminent jeopardy, the Secretary will:
    (1) Notify the tribe of the adequacy of its response in writing; and
    (2) Terminate the reassumption proceedings in writing.
    (b) If the Secretary determines that the tribe's proposed or 
completed actions to comply with the Secretary's requirements are not 
adequate, then the Secretary will issue a written notice of 
reassumption.

[[Page 814]]



Sec.  224.158  What must the Secretary include in a written notice 
of reassumption?

    The written notice of reassumption must include:
    (a) A description of the authorities the Secretary is reassuming;
    (b) The reasons for the determination under Sec.  224.157(b);
    (c) The effective date of the reassumption; and
    (d) A statement that the decision is a final agency action and is 
subject to judicial review.



Sec.  224.159  How will reassumption affect valid existing rights 
or lawful actions taken before the effective date of the reassumption?

    Reassumption will not affect valid existing rights that vested 
before the effective date of the reassumption or lawful actions the 
tribe and the Secretary took before the effective date of the 
reassumption.



Sec.  224.160  How will reassumption affect a TERA?

    Reassumption of a TERA applies to all of the authority and 
activities assumed under a TERA. Upon reassumption, the tribe must also 
return all Departmental resources transferred under the TERA and any 
relevant records and documents to the Secretary.



Sec.  224.161  How may reassumption affect the tribe's ability to enter 
into a new TERA or to modify another TERA to administer additional activities 
or to assume administration of activities that the Secretary 
previously reassumed?

    Following reassumption, a tribe may submit a request to enter into a 
new TERA or modify another TERA to administer additional activities, or 
assume administration of activities that the Secretary previously 
reassumed. In reviewing a subsequent tribal request, however, the 
Secretary may consider the fact that activities were reassumed and any 
change in circumstances supporting the tribe's request.



                          Subpart H_Rescission



Sec.  224.170  What is the purpose of this subpart?

    This subpart explains the process and requirements under which a 
tribe may rescind a TERA and therefore return to the Secretary all 
authority and activities assumed under that TERA.



Sec.  224.171  Who may rescind a TERA?

    Only a tribe may rescind a TERA.



Sec.  224.172  May a tribe rescind only some of the activities subject to 
a TERA while retaining a portion of those activities?

    No. A tribe may only rescind a TERA in its entirety, including the 
authority to approve leases, business agreements and grant rights-of-way 
for specific energy resource development, not some of the authority or 
activities subject to the TERA.



Sec.  224.173  How does a tribe rescind a TERA?

    To rescind a TERA, a tribe must submit to the Secretary a written 
tribal resolution or other official action of the tribe's governing body 
approving the voluntary rescission of the TERA. Upon rescission, the 
tribe must also return all Departmental resources transferred under the 
TERA and any relevant records and documents.



Sec.  224.174  When does a voluntary rescission become effective?

    A voluntary rescission becomes effective on the date specified by 
the Secretary, provided that the date is no more than 90 days after the 
Secretary receives the tribal resolution or other official action the 
tribe submits under Sec.  224.173.



Sec.  224.175  How will rescission affect valid existing rights 
or lawful actions taken before the rescission?

    Rescission does not affect valid existing rights that vested before 
the effective date of the rescission or lawful actions the tribe and the 
Secretary took before the effective date of the rescission.

[[Page 815]]



                   Subpart I_General Appeal Procedures



Sec.  224.180  What is the purpose of this subpart?

    The purpose of this subpart is to explain who may appeal 
Departmental decisions or inaction under this part and the initial 
administrative appeal processes, and general administrative appeal 
processes, including how 25 CFR part 2 and 43 CFR part 4 apply, and the 
effective dates for appeal decisions.



Sec.  224.181  Who may appeal Departmental decisions or inaction 
under this part?

    The following persons or entities may appeal Department decisions or 
inaction under this part:
    (a) A tribe that is adversely affected by a decision of or inaction 
by an official of the Department of the Interior under this part;
    (b) A third party who has entered into a lease, right-of-way, or 
business agreement with a tribe under an approved TERA and is adversely 
affected by a decision of, or inaction by a Department official under 
this part; or
    (c) An interested party who is adversely affected by a decision of 
or inaction by the Director under subpart E of this part, provided that 
the interested party may appeal only those issues raised in its prior 
participation under subpart E of this part and may not appeal any other 
decision rendered or inaction under this part.



Sec.  224.182  What is the Initial Appeal Process?

    The initial appeal process is as follows:
    (a) Within 30 days of receiving an adverse decision by the Director 
or within 30 days after the time period within which the Director is 
required to act under subpart E, a party that may appeal under this 
subpart may file an appeal to the Principal Deputy Assistant Secretary-
Indian Affairs;
    (b) Within 60 days of receiving an appeal, the Principal Deputy 
Assistant Secretary--Indian Affairs will review the record and issue a 
written decision on the appeal; and
    (c) Within 7 days of a decision by the Principal Deputy Assistant 
Secretary--Indian Affairs, the Secretary will provide a written copy of 
the decision to the tribe and other participating parties.



Sec.  224.183  What other administrative appeals processes also apply?

    The administrative appeal processes in 25 CFR part 2 and 43 CFR part 
4, subject to the limitations in Sec.  224.184, apply to:
    (a) An interested party's appeal from an adverse decision or 
inaction by the Principal Deputy Assistant Secretary--Indian Affairs 
under Sec.  224.182; and
    (b) An appeal by a tribe or a person or entity that has entered into 
a lease, business agreement, or right-of-way from an adverse decision by 
or the inaction of a Departmental official taken under this part.



Sec.  224.184  How do other administrative appeals processes apply?

    The administrative appeals process in 25 CFR part 2 and 43 CFR part 
4 are modified, only as they apply to appeals under this part, as set 
forth in this section.
    (a) The definition of interested party in 25 CFR part 2 and as 
incorporated in 43 CFR part 4 does not apply to this part.
    (b) The right of persons or entities other than an appealing party 
to participate in appeals under 25 CFR part 2 and 43 CFR part 4 does not 
apply to this part, except as permitted under paragraph (c) of this 
section.
    (c) The only persons or entities, other than appealing parties, 
under Sec.  224.181(a) to (c), who may participate in an appeal under 
this part are:
    (1) The Secretary, if an appeal is taken from a decision of the 
Director or Principal Deputy Assistant Secretary--Indian Affairs;
    (2) A tribe, which may intervene, appear as an amicus curiae, or 
otherwise appear in any appeal taken under this part by a person or 
entity who has entered into a lease, business agreement, or right-of-way 
with the tribe or by an interested party under this part; or
    (3) A person or entity that has entered into a lease, business 
agreement, or right-of-way with a tribe, may intervene, appear as an 
amicus curiae, or otherwise appear in any appeal taken

[[Page 816]]

under this part by the tribe or by an interested party under this part.
    (d) The Secretary does not have an obligation to provide notice and 
service upon non-appealing persons as provided in 25 CFR part 2 and 43 
CFR part 4. The only exception to this principle is that notice and 
service of all documents must be served consistent with the requirements 
of 25 CFR part 2 and 43 CFR part 4 on those persons or entities 
identified in paragraph (c) of this section.



Sec.  224.185  When are decisions under this part effective?

    Decisions under subpart I are effective as follows:
    (a) Decisions of the Secretary disapproving a final proposed TERA or 
a revised final proposed TERA under subpart C of this part, a finding of 
imminent jeopardy to a physical trust asset under subpart F of this 
part, and decisions by the Secretary or the Assistant Secretary--Indian 
Affairs to reassume activities under subpart G of this part are final 
for the Department. These decisions and findings are effective upon 
issuance.
    (b) Decisions under this part, other than those in paragraph (a) of 
this section, that adversely affect a tribe and for which an appeal is 
pending are not final for the Department and are not effective while the 
appeal is pending, unless:
    (1) The tribe had an opportunity for a hearing before the decision 
was issued;
    (2) The tribe had a reasonable amount of time to comply with the 
TERA after the decision was issued; and
    (3) The Interior Board of Indian Appeals (Board), the Secretary, or 
Assistant Secretary--Indian Affairs issued a written decision that, 
notwithstanding a reasonable period given the tribe to comply with the 
TERA, the tribe has failed to take the actions necessary to comply with 
the TERA.
    (c) All other decisions rendered by the Board or the Assistant 
Secretary--Indian Affairs in an appeal from a Director's decision under 
subparts E, F, or G of this part are effective when issued.



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: 25 U.S.C. 2, 9, and 2101-2108; and Sec. 701, Pub. L. 114-
74, 129 Stat. 599.

    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 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

[[Page 817]]

(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 Sec. Sec.  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.
    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

[[Page 818]]

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 perform the duties described in 30 CFR chapter II, 
subchapters A and C.
    Mining means the science, technique, and business of mineral 
development,

[[Page 819]]

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 a minerals agreement with respect to mineral resources in 
which the tribe owns a beneficial or restricted interest.

[[Page 820]]

    (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 National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)) or any other

[[Page 821]]

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 otherwise obtain through competitive

[[Page 822]]

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, Sec. Sec.  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 823]]

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 824]]

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 825]]

    (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 $1,650 per day for each day

[[Page 826]]

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.

[59 FR 14971, Mar. 30, 1994, as amended at 81 FR 42481, June 30, 2016; 
82 FR 7652, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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

[[Page 827]]

part 20 pertaining to conflicts of interest and ownership of an interest 
in trust land.



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; and Sec. 701, Pub. L. 
114-74, 129 Stat. 599.

    Source: 81 FR 39573, June 17, 2016, unless otherwise noted.



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.

[[Page 828]]

    (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.
    (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.

                  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 permitted to acquire any interest in

[[Page 829]]

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.



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 only with the consent of 
the Osage Tribal Council and approval of the Superintendent.



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 nationwide 
bond may be increased at any time in the discretion of the Secretary.

[[Page 830]]



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.



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.



Sec.  226.11  Royalty payments.

    (a) Royalty on oil--(1) Royalty rate. Lessee shall pay or cause to 
be paid to

[[Page 831]]

the Superintendent, as royalty, the sum of not less than 162/3 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 121/2 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 162/3 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 162/3 
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 162/3 percent of the market 
value.
    (2) Gas lease. Lessee shall pay a royalty of not less than 162/3 
percent of the market 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 
11/2 percent per month for each month or fraction thereof until paid.



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

[[Page 832]]

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 11/2 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 Sec. Sec.  226.42 and 226.43 and shall 
subject the division order to cancellation.



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.



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 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

[[Page 833]]

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 
actually 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.

                               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.
    (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

[[Page 834]]

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.



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 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

[[Page 835]]

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.



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 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.



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.

[[Page 836]]

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 shall be served 
forthwith 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.



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

[[Page 837]]

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.



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.



Sec.  226.24  Lessee's use of water.

    Lessee or his contractor may, with the approval of the 
Superintendent, use 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.

[[Page 838]]

    (b) Oil well to be turned over to oil lessee. If the gas lessee 
drills an oil well, he/she must immediately, without removing from the 
well any of the casing or other equipment, notify the oil lessee and the 
superintendent.
    (1) 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 must 
immediately notify the gas lessee. From that point, the superintendent 
must approve the disposition of the well, and any gas produced from it.
    (2) If the oil lessee chooses to take over the well, he/she must pay 
to the gas lessee:
    (i) The cost of drilling the well, including all damages paid; and
    (ii) The cost in place of casing and other equipment.
    (3) If the oil lessee and the gas lessee cannot agree on the cost of 
the well, the superintendent will apportion the cost between the oil and 
gas lessees. If the lessees do not accept the apportionment, the oil or 
gas lessee who drilled the well must plug 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.



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

[[Page 839]]

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 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.



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

[[Page 840]]

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.

                         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.

[[Page 841]]

    (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 cancellation of his/her lease 
and/or plugging of the well.



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.



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.



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

[[Page 842]]

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 actually 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.

                                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 $924 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 11/2 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.

[81 FR 39573, June 17, 2016, as amended at 81 FR 42481, June 30, 2016; 
82 FR 7653, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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), $92 per day until permission is obtained.
    (b) For failure to file records required by Sec.  226.32, $92 per 
day until compliance is met.
    (c) For failure to mark wells and tank batteries as required by 
Sec.  226.34, $92 for each well and tank battery.
    (d) For failure to construct and maintain pits as required by Sec.  
226.22, $92 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, $185.
    (f) For failure to notify Superintendent before drilling, 
redrilling, deepening, plugging, or abandoning any well, as required by 
Sec. Sec.  226.16(c) and 226.25, $369.
    (g) For failure to properly care for and dispose of deleterious 
fluids as provided in Sec.  226.22, $924 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, $92 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.

[81 FR 39573, June 17, 2016, as amended at 81 FR 42481, June 30, 2016; 
82 FR 7653, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]

[[Page 843]]

                           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.



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.



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.



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; and Sec. 701, Pub. L. 114-74, 129 
Stat. 599, 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

[[Page 844]]

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 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

[[Page 845]]

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 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

[[Page 846]]

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 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

[[Page 847]]

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 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

[[Page 848]]

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 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

[[Page 849]]

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 $1,296 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.

[22 FR 10622, Dec. 24, 1957, as amended at 81 FR 42481, June 30, 2016; 
82 FR 7653, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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,

[[Page 850]]

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 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 851]]



                     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 852]]

    (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[min]30[sec], thence due east along said parallel to longitude 
130[deg]49[min]15[sec], 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 853]]

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 854]]

    (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 855]]

    (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 Sec. Sec.  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



Sec.
243.1 What is the purpose of this part?
243.2 What terms do I need to know?
243.3 Delegation of authority.
243.4 Who can own or possess Alaskan reindeer?
243.5 Who can own imported reindeer, and what limitations apply?
243.6 Which sales or transfers of Alaskan reindeer do not require a 
          permit?
243.7 How can a non-Native acquire live reindeer?
243.8 What penalties apply to violations of this part?
243.9 Who may inherit live Alaskan reindeer and by what means?

[[Page 856]]

243.10 How does the Paperwork Reduction Act affect this rule?
243.11 Are transfers of Alaskan reindeer that occurred before issuance 
          of this part valid?
243.12 Are Alaska reindeer trust assets maintained by the U.S. 
          Government for the benefit of Alaska Natives?
243.13 Who may appeal an action under this part?

    Authority: Sec. 12, 50 Stat. 902; 25 U.S.C. 500K; and Sec. 701, Pub. 
L. 114-74, 129 Stat. 599.

    Source: 71 FR 2429, Jan. 13, 2006, unless otherwise noted.



Sec.  243.1  What is the purpose of this part?

    The Department's policy is to encourage and develop the activity and 
responsibility of Alaska Natives in all branches of the reindeer 
industry and business in Alaska, and to preserve the Native character of 
that industry and business. This part contains requirements governing 
acquisition and transferring reindeer and reindeer products in Alaska.



Sec.  243.2  What terms do I need to know?

    Act means the Reindeer Act of September 1, 1937 (50 Stat. 900; 25 
U.S.C. 500 et seq.), as amended.
    Alaska Native means Eskimos, Indians, and Aleuts inhabiting Alaska 
at the time of the Treaty of Cession of Alaska to the United States and 
their descendants currently living in Alaska.
    Alaskan reindeer means:
    (1) All reindeer descended from those present in Alaska at the time 
of passage of the Act; and
    (2) Any caribou introduced into animal husbandry or that has joined 
a reindeer herd.
    BIA means the Bureau of Indian Affairs within the United States 
Department of the Interior.
    Designee means the person assigned by the Alaska Regional Director 
to administer the reindeer program.
    Imported reindeer means reindeer brought into Alaska from any region 
outside of Alaska since passage of the Act.
    Native reindeer organization means any corporation, association, or 
other organization, whether incorporated or not, composed solely of 
Alaska Natives, for the purpose of engaging in or promoting the reindeer 
industry.
    Non-Native means a person who is not an Alaska Native.
    Regional Director means the officer in charge of the Alaska Regional 
Office of the Bureau of Indian Affairs.
    Reindeer products mean the meat, hide, antlers, or any other 
products derived from reindeer.
    Transfer means the conveyance of ownership of reindeer or reindeer 
products, or any interest in them or interest in an Alaska Native 
reindeer organization, by any method.
    We, us and our mean the Regional Director or the Director's 
designee.



Sec.  243.3  Delegation of authority.

    The Secretary of the Interior has delegated authority under the Act 
through the Assistant Secretary--Indian Affairs to the Alaska Regional 
Director of the Bureau of Indian Affairs. All claims of ownership of 
reindeer in Alaska, as required by the Act (section 500b), must be filed 
with the Regional Director or the Director's designee.



Sec.  243.4  Who can own or possess Alaskan reindeer?

    (a) Only Alaska Natives, organizations of Alaska Natives, or the 
United States for the benefit of these Natives, can own Alaskan reindeer 
in Alaska.
    (1) Any transfer not allowed by this part is not legal, and does not 
confer ownership or the right to keep Alaskan reindeer, reindeer 
products, or any interest in them.
    (2) Anyone violating this part will forfeit their reindeer or 
reindeer products to the Federal Government.
    (b) An Alaska Native or a Native reindeer organization may transfer 
reindeer that they own to other Alaska Natives or Native reindeer 
organizations without restriction, except as provided in this part.
    (c) We may maintain reindeer for research projects, so long as the 
purpose of the research benefits the Native reindeer industry. We retain 
title to these reindeer and will determine their eventual disposition.
    (d) A non-Native manager of Alaskan reindeer must, by the last day 
of September each year:

[[Page 857]]

    (1) Provide us a copy of the contract with the Native reindeer 
owner; and
    (2) Provide us a written report of all Alaskan reindeer kept, born, 
died or transferred.
    (e) We may permit possession of a limited number of Alaskan reindeer 
by a non-Native applicant under a Special Use Permit for Public Display.
    (1) We can revoke this permit for cause.
    (2) The permit will not allow the permit-holder to keep a breeding 
herd (i.e., a herd that is capable of reproduction).
    (3) The permit-holder must report to us in writing by the last day 
of September each year on all reindeer held under this permit.



Sec.  243.5  Who can own imported reindeer, and what limitations apply?

    (a) Anyone, including non-Natives, may own imported reindeer in 
Alaska for any legitimate purpose, subject to State and Federal animal 
health laws and regulations.
    (b) Imported reindeer must not be intermingled with, or be bred to, 
Alaskan reindeer without our written consent. Any offspring resulting 
from a mating with Alaskan reindeer are considered Alaskan reindeer and 
a non-Native owner may not maintain these reindeer alive in Alaska.
    (c) This paragraph applies if a non-Native owner of imported 
reindeer in Alaska contracts with a Native reindeer owner to keep and 
manage the imported reindeer. The non-Native owner must:
    (1) Distinguish the imported reindeer from the Alaskan reindeer by 
applying a distinctly different permanent earmark or tattoo on all 
imported reindeer; and
    (2) Register the earmark or tattoo with the State Division of 
Agriculture book of livestock brand marks.



Sec.  243.6  Which sales or transfers of Alaskan reindeer 
do not require a permit?

    The following transfers do not require a permit:
    (a) Sale or transfer by Alaska Natives of dead reindeer or reindeer 
products; and
    (b) Sale of transfer of live reindeer between Alaska Natives or 
Native reindeer organizations.



Sec.  243.7  How can a non-Native acquire live reindeer?

    If you are a non-Native who wants to acquire live Alaskan reindeer, 
you must apply to us in writing. We will either grant the request and 
issue a written permit valid for 90 days or reject the request and give 
our reasons in writing. Any transfer that we authorize is subject to the 
following conditions:
    (a) The transfer must meet the requirements of the Act and this 
part.
    (b) Within 30 days of transfer, you must either butcher the reindeer 
in Alaska or ship them out of Alaska. If you ship the reindeer out 
alive:
    (1) You must comply with all Federal and State animal health 
regulations governing transfers and shipments; and
    (2) The reindeer and their descendants must never be brought back to 
Alaska alive.
    (c) Within 30 days of the transfer, you must report to us the actual 
number of reindeer shipped out or slaughtered.



Sec.  243.8  What penalties apply to violations of this part?

    If you are a non-Native transferee of live Alaskan reindeer who 
violates the provisions of this part, you are subject to the penalties 
in this section.
    (a) Under 25 U.S.C. 500i, you can be fined up to $6,111 if you:
    (1) Take possession of reindeer without a permit issued under Sec.  
243.7; or
    (2) Do not abide by the terms of a permit issued under Sec.  243.7 
(including the requirement that you slaughter or export the reindeer 
within 30 days and not bring them back alive into Alaska).
    (b) Under 25 U.S.C. 500b, you are barred from asserting your title 
to the reindeer if you:
    (1) Do not obtain a transfer permit from us and fully comply with 
its terms; or
    (2) Fail to file with us a claim of title to reindeer within 30 days 
of acquiring them.

[71 FR 2429, Jan. 13, 2006, as amended at 81 FR 42482, June 30, 2016; 82 
FR 7653, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]

[[Page 858]]



Sec.  243.9  Who may inherit live Alaskan reindeer and by what means?

    (a) Privately-owned live Alaskan reindeer may pass to the deceased 
owner's Native heirs by descent or devise.
    (b) In the event of the death of an owner of Alaskan reindeer, any 
direct or indirect interest by descent or devise shall be determined by 
the Department of Interior in a proceeding conducted in accordance with 
the provisions of 43 CFR part 4, subpart D. During the pendency of such 
a proceeding, the authority to assume control over the affected Alaskan 
reindeer pursuant to 43 CFR 4.270 may be exercised by the Alaska 
Regional Director or his designee.
    (c) This paragraph applies if the final probate decree of the 
Department of the Interior, or the decision of any reviewing Federal 
court, identifies a non-Native as inheriting Alaskan reindeer. The non-
Native may inherit, but must be allowed no more than 30 days from 
receiving the final determination of heirship to:
    (1) Slaughter the reindeer;
    (2) Apply for a permit to transfer the reindeer to an out-of-state 
transferee; or
    (3) Transfer ownership of the reindeer to one or more Alaska Native 
family members or other Alaska Native(s).



Sec.  243.10  How does the Paperwork Reduction Act affect this rule?

    The actions in this rule that are covered by the Paperwork Reduction 
Act are cleared under OMB Control Number 1076-0047. The parts subject to 
this control number are 243.4(d), 243.4(e), 243.5(c), 243.7, and 
243.9(c). Please note, a Federal agency may not conduct or sponsor, and 
you are not required to respond to, a collection of information unless 
it displays a currently valid OMB control number.



Sec.  243.11  Are transfers of Alaskan reindeer that occurred 
before issuance of this part valid?

    All transfers of live Alaskan reindeer or reindeer products that 
were completed before the effective date of this part are hereby 
ratified and confirmed. This ratification does not extend to transfers 
that:
    (a) Were fraudulent;
    (b) Were made under duress;
    (c) Did not result in payment of fair compensation to the Native 
transferer; or
    (d) Would have been prohibited under Sec. Sec.  243.6 or 243.8 of 
this part.



Sec.  243.12  Are Alaska reindeer trust assets maintained 
by the U.S. Government for the benefit of Alaska Natives?

    Only the titles to Alaskan reindeer retained for research projects, 
or possessed by non-Natives under Special Use Permits for Public 
Display, or the titles to any Alaskan reindeer which may be acquired by 
the Government in the future for purposes of reestablishing a reindeer 
loan program, are held by the United States in trust for Alaska Natives. 
Other Alaskan reindeer are the private property of the Alaska Native 
owners. However, a trust responsibility continues to exist with respect 
to all Alaskan reindeer, insofar as the Government remains responsible 
for carrying out the provisions of the Reindeer Act and these 
regulations, including the provisions requiring approval of transfers to 
non-Natives, and providing for the determination of inheritance.



Sec.  243.13  Who may appeal an action under this part?

    Any interested party adversely affected by a decision under this 
part has the right of appeal as provided in 25 CFR part 2 and 43 CFR 
part 4, subpart D.



PART 247_USE OF COLUMBIA RIVER TREATY FISHING ACCESS SITES--Table of Contents



Sec.
247.1 What definitions apply to this part?
247.2 What lands are subject to these regulations?
247.3 Who is eligible to use the sites?
247.4 How can eligible users be identified?
247.5 What laws and regulations apply to the people who use these sites?
247.6 What will happen if I damage Government-owned property?
247.7 Can I build a structure?
247.8 What am I responsible for if I use the facilities?
247.9 What other rules apply while I am using the facilities?

[[Page 859]]

247.10 What will happen if I abandon property?
247.11 What other restrictions apply to use of the sites?
247.12 Will I have to pay to use a site?
247.13 Are the facilities available year around?
247.14 Can I hook up a campsite to on-site or off-site utilities?
247.15 May I reserve a campsite or drying shed?
247.16 What fire is permitted?
247.17 What are the restrictions on fires?
247.18 What are the sanitation prohibitions?
247.19 Can a site be used for commercial enterprises other than fishing 
          enterprises by the tribes?
247.20 What are the road and trail prohibitions?
247.21 Can I appeal an administrative action?

    Authority: 25 U.S.C. 2 and 9; Pub. L. 100-581, Title IV.

    Source: 62 FR 50868, Sept. 29, 1997, unless otherwise noted.



Sec.  247.1  What definitions apply to this part?

    Abandoned property means property left at a site while the owner of 
the property is not actively engaged in fishing or drying or processing 
fish. Abandoned property may include:
    (1) Vehicles;
    (2) Mobile trailers;
    (3) Campers;
    (4) Tents;
    (5) Tepees;
    (6) Boats, or;
    (7) Other personal property.
    Archaeological Resource means material remains of prehistoric or 
historic human life or activities that are of archaeological interest 
and are at least 50 years of age, and the physical site, location, or 
context in which they are found.
    Area Director means the position responsible for administration of 
the Portland Area of the Bureau of Indian Affairs.
    Campfire means fire, not within any building, motor home or trailer, 
which is used for cooking, personal warmth, lighting, ceremonial or 
aesthetic purposes.
    Damage means to injure, mutilate, deface, destroy, cut, chop, 
girdle, dig, excavate, kill or in any way harm or disturb.
    Secretary means the Secretary of the Interior or his designee.
    Sites means Treaty Fishing Access Sites.
    Treaty Fishing Access Sites means all Federal lands acquired by the 
Secretary of the Army and Transferred to the Secretary of the Interior 
pursuant to Public Law 100-581, Title IV, November 1, 1988, to be 
administered to provide access to usual and accustomed fishing areas and 
ancillary fishing facilities.
    Vehicle means any device in, upon, or by which any person or 
property is or may be transported, and including any motor, frame, 
chassis, or body of any motor vehicle, or camper shell, except devices 
used exclusively upon stationary rails or tracks.



Sec.  247.2  What lands are subject to these regulations?

    (a) Any treaty fishing access sites and ancillary fishing 
facilities.
    (b) These sites and facilities are managed for the exclusive use of 
members of the Nez Perce Tribe, the Confederated Tribes of the Umatilla 
Reservation, the Confederated Tribes of the Warm Springs Reservation of 
Oregon, and the Confederated Tribes and Bands of the Yakima Indian 
Reservation.
    (c) The Area Director may suspend or withdraw the privileges of use 
of any or all of the facilities at the sites for any violation of the 
regulations in this part or of any rules issued under the regulations in 
this part.



Sec.  247.3  Who is eligible to use the sites?

    (a) You may use the sites for access to usual and accustomed fishing 
areas and ancillary fishing facilities if you are a member of the 
Confederated Tribes and Bands of the Yakima Indian Nation (Yakima), the 
Confederated Tribes of the Warm Springs Reservation of Oregon (Warm 
Springs), the Confederated Tribes of the Umatilla Indian Reservation 
(Umatilla), and the Nez Perce Tribe (Nez Perce).
    (b) The general public or people fishing who do not belong to the 
tribes listed above cannot use these sites.
    (c) Families of such Indians may camp on the sites.
    (d) You may not deny access to these sites to any eligible user.

[[Page 860]]



Sec.  247.4  How can eligible users be identified?

    (a) In order to use these sites you must posses an identification 
card issued by your tribe identifying you as a member of that tribe.
    (b) You must exhibit the identification upon request of authorized 
Federal, State, local or tribal officials.



Sec.  247.5  What laws and regulations apply to the people who use these sites?

    You may use access sites only if you obey the following rules:
    (a) You may not use any of the sites for any activity that is 
contrary to the provisions of your tribe or contrary to Federal law or 
regulation, or in the absence of Federal law or regulation governing 
health, sanitation, and safety requirements, State or U.S. Public Health 
Service standards.
    (b) The Area Director may suspend or withdraw the privileges of use 
of any or all of the facilities at the sites for any violation of the 
regulations in this part or for any violation of any rules issued under 
the regulations in this part. You cannot dig in, destroy, or remove any 
portion of a prehistoric or historic archaeological site or artifact.
    (c) 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 that are not compatible with 
those rights.



Sec.  247.6  What will happen if I damage Government-owned property?

    If you commit any act of vandalism, depredation, destruction, theft, 
or misuse of the land, buildings, fences, signs, or other structures 
that are the property of the United States you will be subject to 
prosecution under applicable Federal or State law.



Sec.  247.7  Can I build a structure?

    (a) You may not build any structures at the sites except as allowed 
under paragraph (d) of this section .
    (b) You may use the camping facilities that have been constructed at 
the sites.
    (c) In addition to these structures, you may camp in tents, tepees, 
campers, and mobile trailers. You must remove any tents, tepees, 
campers, temporary drying sheds, and mobile trailers from the sites at 
any time you are not actively engaged in fishing, drying fish, or 
processing fish by other means, and during the time a site is closed for 
maintenance.
    (d) Where the Area Director has designated areas for the 
construction of temporary drying sheds, you may construct a temporary 
drying shed where space is available. You must remove any temporary 
drying shed you build.
    (e) If you erect or maintain a structure in violation of this 
section, the Area Director may order it removed at any time.
    (f) The Area Director:
    (1) Is not required to notify you before removing the structure; and
    (2) Will charge you the cost of disposing of the structure.



Sec.  247.8  What am I responsible for if I use the facilities?

    You are responsible for:
    (a) Campsites, drying sheds and other facilities during the time you 
occupy or use them; and
    (b) Any personal property that you erect, place, or maintain on the 
site during the time you occupy the site, including:
    (1) Tents;
    (2) Tepees;
    (3) Campers;
    (4) Mobile trailers;
    (5) Temporary drying sheds;
    (6) Fishing platforms;
    (7) Boats; and
    (8) Other fishing equipment.



Sec.  247.9  What other rules apply while I am using the facilities?

    (a) You cannot construct, take possession of, occupy or otherwise 
use any access site or structure for residential purposes at an access 
site.
    (b) Neither the United States nor any officer or employee thereof 
warrants, makes any representation, or is responsible for the safety or 
condition of any personal property.

[[Page 861]]



Sec.  247.10  What will happen if I abandon property?

    If you abandon property at a site, it may be removed without your 
consent and disposed of at your expense, if the Area Director approves.



Sec.  247.11  What other restrictions apply to use of the sites?

    The Area Director may prescribe and post at the sites regulations 
covering:
    (a) Camping;
    (b) Picnicking;
    (c) Use of alcoholic beverages;
    (d) Setting or use of fires;
    (e) Use of the sites for cleaning fish;
    (f) Deposit of garbage, paper, cans, bottles, or rubbish of any 
kind; or
    (g) Use of the sites for any commercial activity (including 
commercial purchase of fish).



Sec.  247.12  Will I have to pay to use a site?

    No. Neither you nor any member of your family will be charged for 
using a site in accordance with this part.



Sec.  247.13  Are the facilities available year around?

    (a) The Area Director may close facilities at the sites for 
necessary maintenance during the winter or at other times if necessary. 
Before closing the facilities, the Area Director will consult with 
delegated tribal representatives, if possible.
    (b) You will still be able to access your treaty fishing rights on 
the Columbia River through these sites while they are closed.
    (c) If any sites are closed or restricted, any affected tribe can 
contact the Area Director and ask that the sites be opened. The Area 
Director will work together with the tribes to consider these requests.



Sec.  247.14  Can I hook up a campsite to on-site or off-site utilities?

    (a) You must share access to all on-site facilities.
    (b) Because there are a limited number of faucets available, only 
short-term hose use is allowed to ensure that others have access to 
water.
    (c) You may not tap into electrical lines or outlets, or have 
electrical power brought in from an outside source for campsite use.



Sec.  247.15  May I reserve a campsite or drying shed?

    No. You may not reserve a campsite, drying shed, or other facility.
    (a) You must use campsites, drying sheds, and other facilities on a 
first-come, first-served basis.
    (b) You may not occupy one or more campsites solely for the purpose 
of reserving a site for another tribal member.



Sec.  247.16  What fire is permitted?

    (a) You may have a fire in designated fire places, and other areas 
designated for fires.
    (b) You may have a fire inside a drying shed in a manner that does 
not jeopardize the structure.



Sec.  247.17  What are the restrictions on fires?

    (a) You cannot burn timber, trees, slash, brush or grass unless you 
have a permit issued by the Area Director or his designee.
    (b) You cannot build a fire in an unsafe location or leave a fire 
without completely extinguishing it.
    (c) You must control all fire and not allow it to escape.



Sec.  247.18  What are the sanitation prohibitions?

    (a) You cannot deposit in any toilet, toilet vault, or plumbing 
fixture anything that could damage or interfere with the operation or 
maintenance of the fixture.
    (b) You must dispose of all garbage, including any paper, cans, 
bottle, sewage, waste water or material, either by removal from the 
site, or by depositing it into receptacles or at places provided for 
such purposes.
    (c) You may not bring refuse, debris, or toxic or hazardous 
materials to the sites for disposal.
    (d) All toxic or hazardous materials must be properly removed from 
the sites. You may not dispose of such materials in a sewer line, tank, 
drain, storm drain, or on the ground.
    (e) You must not place in or near the river or other water any 
substance that pollutes or may pollute the water.

[[Page 862]]

    (f) If dumping stations are not available, you must transport sewage 
off site.



Sec.  247.19  Can a site be used for commercial enterprises 
other than fishing enterprises by the tribes?

    (a) You may operate commercial activities during commercial fishing 
seasons, and subsistence activities, incidental to treaty fishing on the 
site.
    (b) You may not construct or operate other types of commercial 
enterprises, such as firework stands.



Sec.  247.20  What are the road and trail prohibitions?

    (a) You cannot damage or leave in a damaged condition any road, 
trail, or segment thereof.
    (b) You cannot block, restrict, or otherwise interfere with the use 
of a road, trail, or gate.



Sec.  247.21  Can I appeal an administrative action?

    You may appeal any decision made by the Area Director under this 
part to the Commissioner of Indian Affairs. You may appeal any decision 
of the Commissioner of Indian Affairs to the Secretary of the Interior 
in accordance with part 2 of this chapter.




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, 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

[[Page 863]]

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 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; and Sec. 701, Pub. L. 
114-74, 129 Stat. 599, unless otherwise noted.

[[Page 864]]


    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 
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.

[[Page 865]]

    (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 Commissioner 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 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

[[Page 866]]

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 $1,296, 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.

[32 FR 10434, July 15, 1967, as amended at 81 FR 42482, June 30, 2016; 
82 FR 7653, Jan. 23, 2017; 83 FR 5195, Feb. 6, 2018]



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;
    (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 867]]



                          SUBCHAPTER K_HOUSING





PART 256_HOUSING IMPROVEMENT PROGRAM (HIP)--Table of Contents



                      Subpart A_General Provisions

Sec.
256.1 Purpose.
256.2 Definitions.
256.3 Policy.
256.4 Information collection.
256.5 What is the Housing Improvement Program?

                    Subpart B_Determining Eligibility

256.6 Am I eligible for the Housing Improvement Program?
256.7 What housing services are available?
256.8 When do I qualify for Category A assistance?
256.9 When do I qualify for Category B assistance?
256.10 When do I qualify for Category C assistance?
256.11 When do I qualify for Category D assistance?
256.12 Who administers the program?

                    Subpart C_Applying for Assistance

256.13 How do I apply for the Housing Improvement Program?
256.14 How is my application processed?

                     Subpart D_Receiving Assistance

256.15 When will I hear if I have received funding?
256.16 What if I don't receive funding?
256.17 How long will I have to wait for work on my house?
256.18 Who decides what work will be done?
256.19 How are work plans prepared?
256.20 How will I find out what work is to be done?
256.21 Who does the work?
256.22 How are construction contractors or companies selected and paid?
256.23 Do I have to move out while work is done?
256.24 How can I be sure that construction work meets minimum standards?
256.25 How will I find out that the work is done?
256.26 Will I need flood insurance?
256.27 Is my Federal government-assisted house eligible for services?
256.28 I have a mobile home; am I eligible for help?
256.29 Can HIP resources be combined with other available resources?
256.30 Can I appeal actions taken under this part?

    Authority: 25 U.S.C. 13, 5 U.S.C. 301, 25 U.S.C. 2 and 9, and 43 
U.S.C. 1457.

    Source: 80 FR 69596, Nov. 10, 2015, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  256.1  Purpose.

    The purpose of the part is to define 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:
    Agency means the organizational unit of BIA that provides services 
to or with the governing body or bodies and members of one or more 
specified Indian tribes.
    Appeal means a written request for review of an action or inaction 
of an official of BIA that is claimed to adversely affect the interested 
party making the request, as provided in part 2 of this chapter.
    Applicant means an individual(s) filing an application for services 
under the HIP.
    BIA means the Bureau of Indian Affairs in the Department of the 
Interior.
    Category A means the HIP funding category for minor repair not to 
exceed limits in Sec.  256.7 of this part.
    Category B means the HIP funding category for renovation not to 
exceed limits in Sec.  256.7 of this part.
    Category C-1 means the HIP funding category to replace a house that 
cannot be brought up to standard housing condition for $60,000 or less.
    Category C-2 means the HIP funding category for building new housing 
as defined in Sec.  256.13(g)(1)-(5).
    Category D means the HIP funding category for assistance as defined 
in Sec.  256.11(a)-(c).
    Certificate of Title or Ownership means a document giving legal 
right to a house constructed with HIP funds.
    Child means a person under the age of 18 or such other age of 
majority as is established for purposes of parental support by tribal or 
state law (if any) applicable to the person at his or her

[[Page 868]]

residence, except that no person who has been emancipated by marriage 
can be deemed a child.
    Cost effective means the cost of the project is within the cost 
limits for the category of assistance and adds sufficient years of 
service to the house to satisfy the recipient's housing needs.
    Dilapidated housing means a house which in its present condition 
endangers the life, health, or safety of the residents.
    Disabled means having a physical or intellectual impairment that 
substantially limits one or more major life activities.
    Family means one or more persons living within a household.
    Homeless means being without a home.
    House means a building for human habitation that serves as living 
quarters for one or more families.
    Household means persons living with the head of household who may be 
related or unrelated to the head of household and who function as 
members of a family.
    Independent trades person means any person licensed to perform work 
in a particular vocation pertaining to building construction.
    Indian means any person who is a member of any federally recognized 
Indian tribe.
    Indian tribe means an Indian or Alaska Native tribe, band, nation, 
pueblo, village or community that the Secretary of the Interior 
acknowledges to exist as an Indian tribe pursuant to Public Law 103-454, 
108 Stat. 4791.
    Overcrowding means a number of occupants per house that exceeds 
limits identified in Sec.  256.10(d).
    Permanent members of household means adults living in the household 
who intend to live there continuously and any children who meet the 
definition of child in this part.
    Regional Director means the officer in charge of a BIA regional 
office or his/her authorized delegate.
    Secretary means the Secretary of the Interior.
    Service area means any of the following within a geographical area 
designated by the tribe and approved by the Regional Director to which 
services can be delivered:
    (1) Reservations (former reservations in Oklahoma);
    (2) Allotments;
    (3) Restricted lands; and
    (4) Indian-owned lands (including lands owned by corporations 
established pursuant to the Alaska Native Claims Settlement Act).
    Servicing housing office means the tribal housing office or bureau 
housing office administering the HIP.
    Standard housing means a house that meets the definition of standard 
housing condition in this part.
    Standard housing condition means meets applicable building codes 
within that region and meets each of the following conditions:
    (1) General construction conforms to applicable tribal, county, 
State, or national codes and to appropriate building standards for the 
region.
    (2) The heating system has the capacity to maintain a minimum 
temperature of 70 degrees in the house during the coldest weather in the 
area and be safe to operate and maintain and deliver a uniform heat 
distribution.
    (3) The plumbing system includes a properly installed system of 
piping and fixtures certified by a licensed plumbing contractor.
    (4) The electrical system includes wiring and equipment properly 
installed to safely supply electrical energy for lighting and appliance 
operation certified by a licensed electrician according to the 
applicable electrical code.
    (5) The number of occupants per house does not exceed these limits:
    (i) Two-bedroom house: Up to four persons;
    (ii) Three-bedroom house: Up to six persons;
    (iii) Four-bedroom house: Adequate for all but the largest families.
    (6) The first bedroom has up to 120 sq. ft. of floor space and 
additional bedrooms have up to100 sq. ft. of floor space each.
    (7) The house site provides economical access to utilities and is 
easy to enter and leave.
    (8) The house has access to school bus routes, if the household 
includes children who rely on school buses.

[[Page 869]]

    Substandard housing means any house that does not meet the 
definition of standard housing condition in this part.
    Superintendent means the BIA official in charge of an agency office.



Sec.  256.3  Policy.

    (a) The BIA housing policy is that every American Indian and Alaska 
Native should have the opportunity for a safe and decent home and 
suitable living conditions, which is consistent with the national 
housing policy. The HIP will serve the neediest of the needy Indian 
families who have no other resource for standard housing.
    (b) Every American Indian or Alaska Native who meets the basic 
eligibility criteria defined in Sec.  256.6 may participate in the HIP.
    (c) The BIA encourages tribal participation in administering the 
HIP. Tribal involvement is necessary to ensure that the services 
provided under the program respond to the needs of tribes and program 
participants.
    (d) The BIA encourages partnerships and leveraging with other 
complementary programs to increase basic benefits derived from the HIP, 
such as an agreement with:
    (1) The Indian Health Service to provide water and sanitation 
facilities;
    (2) The United States Department of Agriculture, Rural Development 
to leverage down payment assistance for a new unit; or
    (3) Any other program and resource.
    (e) The servicing housing office will issue a Certificate of Title 
or Ownership.



Sec.  256.4  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 et seq. and assigned control number 1076-0184. The information is 
collected to determine applicant eligibility for services and 
eligibility to participate in the program. Response is required to 
obtain a benefit. You may comment to the Bureau at any time with regard 
to this information collection.



Sec.  256.5  What is the Housing Improvement Program?

    The HIP is a safety-net program that provides grants for the cost of 
services to repair, renovate, or replace existing housing and/or provide 
housing. The program provides grants to the neediest of the needy Indian 
families who:
    (a) Live in substandard housing or are homeless; and
    (b) Have no other resource for assistance.



                    Subpart B_Determining Eligibility



Sec.  256.6  Am I eligible for the Housing Improvement Program?

    You are eligible for the HIP if you meet all of the following 
criteria:
    (a) You are a member of a federally recognized Indian tribe;
    (b) You live in an approved tribal service area;
    (c) Your annual income is 150 percent or less of the Department of 
Health and Human Services poverty income guidelines, which are available 
from your servicing housing office or the Department of the Interior Web 
site at www.bia.gov;
    (d) Your present housing is substandard as defined in Sec.  256.2;
    (e) You meet the ownership requirements for the assistance needed, 
as defined in Sec.  256.8, Sec.  256.9, or Sec.  256.10;
    (f) You have no other resource for housing assistance;
    (g) You have not previously received assistance relating to 
categories as defined in Sec. Sec.  256.9, 256.10, and 256.11; and
    (h) You did not acquire your present housing through past 
participation in a Federal government-sponsored housing program over the 
previous 20 year period.



Sec.  256.7  What housing services are available?

    Four categories of assistance are available under the HIP, as 
outlined in the following table.

[[Page 870]]



----------------------------------------------------------------------------------------------------------------
                                                                                              Where to find
           Type of assistance                           What it provides                       information
----------------------------------------------------------------------------------------------------------------
Category A.............................  Up to $7,500 in safety or sanitation repairs    Sec.   256.8.
                                          to the house in which you live, which will
                                          remain substandard. Can be provided more than
                                          once, but not for more than one house and the
                                          total assistance cannot exceed $7,500. (For
                                          Alaska, freight cost not to exceed 100
                                          percent of the cost of materials can be added
                                          to the cost of the project.).
Category B.............................  Up to $60,000 in renovation, which will bring   Sec.   256.9.
                                          your house to standard housing condition, as
                                          defined in Sec.   256.2 of this part. Can
                                          only be provided once. (For Alaska, freight
                                          cost not to exceed 100 percent of the cost of
                                          materials can be added to the cost of the
                                          project.).
Category C.............................  A modest house that meets the criteria in Sec.  Sec.   256.10.
                                            256.10 of this part and the definition of
                                          standard housing in Sec.   256.2 of this part
                                          and whose costs are determined by and limited
                                          to the criteria in Sec.   256.19(b) and (c)
                                          of this part. Can only be provided once. (For
                                          Alaska, freight cost not to exceed 100
                                          percent of the cost of materials can be added
                                          to the cost of the project.).
Category D.............................  Assistance towards the purchase of a modest     Sec.   256.11.
                                          house that meets the definition of standard
                                          housing in Sec.   256.2.
----------------------------------------------------------------------------------------------------------------



Sec.  256.8  When do I qualify for Category A assistance?

    You qualify for interim improvement assistance under Category A if 
it is not cost effective to repair the house in which you live and if 
either of the following is true:
    (a) Other resources to meet your housing needs exist but are not 
immediately available; or
    (b) You qualify for replacement housing under Category C, but there 
are no HIP funds available to replace your house.



Sec.  256.9  When do I qualify for Category B assistance?

    You qualify for renovation assistance under Category B if you meet 
all of the following criteria:
    (a) Your servicing housing office determines that it is cost 
effective to renovate the house.
    (b) You occupy and own the house.
    (c) Your servicing housing office determines that the renovation 
will bring the house to standard housing condition according to all 
applicable building codes.
    (d) You sign a written agreement stating that, if you sell the house 
before satisfaction of the Payback Agreement you will be required to 
repay the tribe, tribal organization that administers the HIP, or BIA 
the remaining balance according to the terms of the Payback Agreement:
    (1) The grant under this part will be voided; and
    (2) At the time of settlement of the sale of the house, you will 
repay the tribe or tribal organization that operates the HIP or BIA the 
full cost of all renovations made under this part.



Sec.  256.10  When do I qualify for Category C assistance?

    (a) You qualify for replacement housing assistance under Category C 
if you meet one of the three sets of requirements in the following 
table.

----------------------------------------------------------------------------------------------------------------
 You qualify for Category C assistance
                if . . .                                 And . . .                            And . . .
----------------------------------------------------------------------------------------------------------------
(1) You own the house in which you are   The house cannot be brought up to          [No additional requirement].
 living as defined in Sec.                applicable building code standards and
 256.13(g)(1)-(5).                        to standard housing condition for
                                          $60,000 or less. (For Alaska, freight
                                          cost not to exceed 100 percent of the
                                          cost of materials can be added to the
                                          cost of the project).
(2) You do not own a house.............  You own land that is suitable for housing  The land has adequate
                                                                                     ingress and egress rights
                                                                                     and reasonable access to
                                                                                     utilities.
(3) You do not own a house.............  You have a leasehold or the ability to     The land has adequate
                                          acquire a leasehold on land that is        ingress and egress rights
                                          suitable for housing and the leasehold     and reasonable access to
                                          is undivided and for not less than 25      utilities.
                                          years at the time you receive assistance.
----------------------------------------------------------------------------------------------------------------

    (b) If you qualify for assistance under paragraph (a) of this 
section, you must sign a written grant agreement stating that, if you 
sell the house within 10 years of assuming ownership:

[[Page 871]]

    (1) The grant under this part will be voided; and
    (2) At the time of settlement of the sale of the house, you will 
repay the tribe or tribal organization that operates the HIP or BIA the 
full cost of the house.
    (c) If you sell the house more than 10 years after you assume 
ownership, the following conditions apply:
    (1) You may retain 10 percent of the original cost of the house per 
year, beginning with the eleventh year.
    (2) If you sell the house after 20 years, you will not have to repay 
the tribe, tribal organization, or BIA.
    (d) A modest house provided with Category C assistance must meet the 
standards in the following table.

------------------------------------------------------------------------
                                                           Total square
           Number of occupants               Number of      footage \1\
                                           bedrooms \1\      (maximum)
------------------------------------------------------------------------
Up to 4 persons.........................               2            1000
Up to six persons.......................               3            1200
7 or more persons.......................               4            1400
------------------------------------------------------------------------
\1\ Determined by the servicing housing office, based on composition of
  family. Total living space must comply with applicable American
  Disabilities Act requirements.



Sec.  256.11  When do I qualify for Category D assistance?

    (a) You qualify for grant assistance under Category D if you apply 
for financing from tribal, Federal, or other sources of credit and have 
inadequate income or limited financial resources to meet the lender 
requirements for home ownership.
    (b) The grant must not exceed the amount necessary to secure the 
loan and may be used for down-payment assistance, closing costs, and 
pre-home ownership counseling. Participation with other complementary 
housing programs is encouraged.
    (c) The method of awarding the grant must ensure that the funds are 
used for the purpose intended.



Sec.  256.12  Who administers the program?

    The HIP is administered by a servicing housing office operated by 
either a tribe (under a Pub. L. 93-638 contract or a self-governance 
annual funding agreement) or BIA.



                    Subpart C_Applying for Assistance



Sec.  256.13  How do I apply for the Housing Improvement Program?

    (a) First, obtain an application, BIA Form 6407, from your servicing 
housing office or the BIA Web site.
    (b) Second, complete and sign BIA Form 6407.
    (c) Third, submit your completed and signed application to your 
servicing housing office.
    (d) Fourth, furnish to the servicing housing office documentation 
proving your tribal membership. Examples of acceptable documentation 
include a copy of your Certificate of Degree of Indian Blood (CDIB) or a 
copy of your tribal membership card.
    (e) Fifth, provide proof of income from all permanent members of 
your household.
    (1) Submit signed copies of current 1040 tax returns from all 
permanent members of the household, including W-2s and all other 
attachments. Submit the Social Security number of the applicant only.
    (2) Provide proof of all other income from all permanent members of 
the household. This includes unearned income such as Social Security, 
general assistance, retirement, and unemployment benefits.
    (3) If you or other household members did not file a tax return, 
submit a signed notarized statement explaining why you did not.
    (f) Sixth, furnish a copy of your annual trust income statement for 
your Individual Indian Money (IIM) account from your home agency. If you 
do not have an IIM account, furnish a statement from your home agency to 
that effect.
    (g) Seventh, provide proof of ownership of the residence and land or 
potential leasehold interest:
    (1) For fee property, provide a copy of a fully executed deed, which 
is available at your local county or parish court house;
    (2) For trust property, provide certification of ownership from your 
home agency;
    (3) For tribally owned land, provide a copy of a properly executed 
tribal assignment, certified by the tribe;

[[Page 872]]

    (4) For multi-owner property, provide a copy of a properly executed 
lease;
    (5) For a potential lease, provide proof of ability to acquire an 
undivided leasehold (that is, you will be the only lessee) for a minimum 
of 25 years from the date of service; or
    (6) For down-payment assistance, provide a description and the 
location of the house to be purchased, verification of your intent to 
purchase, and the sale price of the house.
    (h) Eighth, if you seek down payment assistance, provide a letter 
from the institution where you have applied for mortgage financing that 
specifies:
    (1) The down payment amount; and
    (2) The closing costs required for you to qualify for the loan.



Sec.  256.14  How is my application processed?

    (a) The servicing housing office will review your application. If 
your application is incomplete, the office will notify you, in writing, 
of what is needed to complete your application and of the date by which 
it must be submitted. If you do not return your application by the 
deadline date, you will not be considered for assistance in that program 
year.
    (b) The servicing housing office will use your completed application 
to determine if you are eligible for the HIP.
    (1) If you are found ineligible for the program, the servicing 
housing office will advise you in writing within 45 days of receipt of 
your completed application.
    (2) If you are found eligible for the program, the servicing housing 
office will assess your application for need, according to the factors 
and numeric values shown in the following table.

----------------------------------------------------------------------------------------------------------------
              Factor                 Ranking factor and definition   Ranking description        Point value
----------------------------------------------------------------------------------------------------------------
1.................................  Annual household income: Must        Income as a       Points:
                                     include income of all persons     percentage of the
                                     counted in Factors 2, 3, 4.        Federal poverty
                                     Income includes earned               guidelines:
                                     income, royalties, and one-
                                     time income. A household with
                                     an income 151 percent of more
                                     of the Federal poverty
                                     guidelines is ineligible for
                                     the HIP.
                                                                   ---------------------------------------------
                                                                    0-25.................  25.
                                                                    26-50................  20.
                                                                    51-75................  15.
                                                                    76-100...............  10
                                                                    101-125..............  5.
                                                                    126-150..............  0.
----------------------------------------------------------------------------------------------------------------
2.................................  Aged person: person age 55 or       Years of age:             Points:
                                     older and must be living in    Less than 55.........  1 point per year over
                                     the house.                     55 and older.........   age 54, up to
                                    Maximum points awarded under                            maximum of 15
                                     this factor is 15, regardless                          points.
                                     of the number of years over
                                     age 55. Thus, 15 points will
                                     be added to the score for a
                                     resident who is 70 years old
                                     or older..
                                                                   ---------------------------------------------
3.................................  Disabled individual: One or     If a there is a        10.
                                     more disabled persons living    disabled resident.
                                     in the house. Must fit under
                                     established definition of
                                     ``disabled as in Sec.
                                     256.2.'' Maximum points
                                     awarded under this factor is
                                     10, regardless of the number
                                     of disabled residents.
----------------------------------------------------------------------------------------------------------------
4.................................  Dependent Children: Must be      Number of dependent          Points:
                                     under the age of 18 or such           children:
                                     other age established for
                                     purposes of parental support
                                     by tribal or state law (if
                                     any). Must live in the house
                                     and not be married. Maximum
                                     points awarded under this
                                     factor is 15.
                                                                   ---------------------------------------------
                                                                    1....................  3.
                                                                    2....................  6.
                                                                    3....................  9.
                                                                    4....................  12.
                                                                    5 or more............  15.
----------------------------------------------------------------------------------------------------------------
5.................................  Other conditions:               If any of the          5 for each condition
                                     Veteran....   conditions are         that applies.
                                     Homeless or   present.
                                     Dilapidated house..
                                     Overcrowded
                                     conditions..
                                    Maximum points awarded under
                                     this factor is 15.
----------------------------------------------------------------------------------------------------------------

[[Page 873]]

 
6.................................  Applicants with an approved     If applicant has       25.
                                     financing package.              approved financing.
----------------------------------------------------------------------------------------------------------------

    (c) The servicing housing office will develop a list of the 
applications received and considered for the HIP for the current program 
year. The list will include, at a minimum, all of the following:
    (1) The number of applications received and, of those, the number 
considered.
    (2) The rank assigned to applicants in order of need, from highest 
to lowest, in accordance with tribal approval and knowledge of need, 
based on the total numeric value assigned using the factors in paragraph 
(b) of this section. (In case of a tie, the family with the lower income 
per household member will be listed first.)
    (3) The estimated allowable costs of the improvements, renovations, 
and replacement projects for each applicant and for the entire priority 
list. This data must identify which applicants will be served based on 
the amount of available funding, starting with the neediest applicant 
and continuing until the available funding is depleted.
    (4) A list of the applicants not ranked, with an explanation of why 
they weren't ranked (such as the reason for ineligibility or the reason 
for incomplete application).
    (d) The servicing housing office submits to the regional office an 
annual fiscal year report that includes all of the following:
    (1) Number of eligible applicants;
    (2) Number of applicants who received service;
    (3) Names of applicants who received service; and
    (4) All of the following for each applicant that received service:
    (i) Date of construction start;
    (ii) Date of construction completion;
    (iii) Cost; and
    (iv) HIP category.



                     Subpart D_Receiving Assistance



Sec.  256.15  When will I hear if I have received funding?

    Your servicing housing office will inform you whether you will 
receive funds in writing within 45 days after it completes the list 
required by Sec.  256.14(c).
    (a) If funding is available, the office will send you complete 
information on how to obtain HIP services.
    (b) If funding is not available, the office will send you 
instructions on how to update your application for funding for the next 
available program year.



Sec.  256.16  What if I don't receive funding?

    If you don't receive funding, your servicing housing office will 
retain and consider your application for 3 more years. During this 4-
year period, you must ensure that the information on your application is 
still accurate and provide an annual written update if any information 
has changed.



Sec.  256.17  How long will I have to wait for work on my house?

    How long it takes to do work on your house depends on:
    (a) Your position on the priority list;
    (b) Whether funds are available;
    (c) The type of work to be done;
    (d) The climate and seasonal conditions where your house is located;
    (e) The availability of a contractor; and
    (f) Other unforeseen factors, such as infrastructure availability.



Sec.  256.18  Who decides what work will be done?

    The servicing housing office will determine what work is to be done 
on your house or whether your house will be replaced. The servicing 
housing office also provides the priority list annually to the Indian 
Health Service if

[[Page 874]]

the Indian Health Service is responsible for verifying availability or 
feasibility of water and wastewater facilities.



Sec.  256.19  How are work plans prepared?

    (a) First, a trained and qualified representative of your servicing 
housing office will visit your house to identify what renovation and or 
replacement will be done under the HIP. The representative will ensure 
that flood, National Environmental Policy Act (NEPA) and earthquake 
requirements are met, including the determination that the renovation or 
replacement is appropriately treated as a categorical exclusion.
    (b) Second, based on the list of renovations or replacement to be 
done, your servicing housing office will estimate the total cost of 
renovation to your house. Cost estimates will be based on locally 
available services and product costs, or other regional-based, industry-
recognized cost data, such as that provided by the MEANs or Marshall 
Swift. If the house is located in Alaska, documented, reasonable, 
substantiated freight costs, in accordance with Federal Property 
Management Regulations (FPMR 101-40), not to exceed 100 percent of the 
cost of materials, can be added to the cost of the project.
    (c) Third, your servicing housing office will determine which HIP 
category the improvements to your house meet, based on the estimated 
cost of renovation or replacement. If the estimated cost to renovate 
your house is more than $60,000, your servicing housing office will 
recommend your house for replacement or refer you to another source for 
housing. The other source does not have to be for a replacement house; 
it may be for government-subsidized rental units or other sources for 
standard housing.
    (d) Fourth, your servicing housing office will develop a detailed, 
written report, called a scope of work, that identifies what renovation 
or construction work on your house will be accomplished and how. The 
scope of work is used to inform potential bidders of what work is to be 
done. When the work includes new construction, the scope of work will be 
supplemented with a set of construction plans and specifications. The 
construction plans must:
    (1) Meet the occupancy and square footage criteria in Sec.  256.10 
(d); and
    (2) Provide complete and detailed instructions to the builder.



Sec.  256.20  How will I find out what work is to be done?

    The servicing housing office will notify you in writing what work is 
being scheduled under the HIP. You will be requested to approve the 
scheduled work by signing a copy of the notice and returning it to the 
servicing housing office. Work will start after you return the signed 
copy to the servicing housing office.



Sec.  256.21  Who does the work?

    Your house will be renovated or replaced by either:
    (a) A licensed and bonded independent contractor or construction 
company; or
    (b) A tribe that operates the HIP under an Indian Self-Determination 
and Education Assistance Act agreement.



Sec.  256.22  How are construction contractors or companies selected and paid?

    The servicing housing office must follow Federal procurement or 
other Bureau-approved tribal procurement policy. Generally, your 
servicing housing office develops a ``bid specification'' or statement 
of work, which identifies the work to be performed. The appropriate 
contracting office uses the ``bid specification'' to provide information 
and invite bids on the project to interested parties. The contracting 
office selects the winning bidder after technical review of the bids by 
and written recommendation from the servicing housing office, and after 
determination that the bidder is qualified and capable of completing the 
project as advertised.
    (a) Partial payments to independent contractors will not exceed 80 
percent of the value of the completed and acceptable work.

[[Page 875]]

    (b) Recommendation for final payment will be made after final 
inspection and after all provisions of the contract have been met and 
all work has been completed.



Sec.  256.23  Do I have to move out while work is done?

    (a) You will be notified by your servicing housing office that you 
must vacate your house only if:
    (1) It is scheduled for major renovations requiring that all 
occupants vacate the house for safety reasons; or
    (2) It is scheduled for replacement, which requires demolition of 
your current house.
    (b) If you are required to vacate the premises during construction, 
you are responsible for:
    (1) Locating other lodging;
    (2) Paying all costs associated with vacating and living away from 
the house; and
    (3) Removing all your belongings and furnishings before the 
scheduled beginning work date.



Sec.  256.24  How can I be sure that construction work meets minimum standards?

    (a) At various stages of construction, a trained and qualified 
representative of your servicing housing office or a building inspector 
will review the work to ensure that it meets construction standards and 
building codes. Upon completion of each stage, further construction can 
begin only after the inspection occurs and approval is granted.
    (b) Inspections of construction and renovation will occur, at a 
minimum, at the following stages:
    (1) Upon completion of inspection footings and foundations;
    (2) Upon completion of inspection rough-in, roughwiring, and 
plumbing; and
    (3) At final completion.



Sec.  256.25  How will I find out that the work is done?

    Your servicing housing office will advise you, in writing, that the 
work has been completed in compliance with the project contract. Also, 
you will have a final walk-through of the house with a representative of 
your servicing housing office. You will be requested to verify that you 
received the notice of completion of the work by signing a copy of the 
notice and returning it to your servicing housing office.



Sec.  256.26  Will I need flood insurance?

    You will need flood insurance if your house is located in an area 
identified as having special flood hazards under the Flood Disaster 
Protection Act of 1973 (Pub. L. 93-234, 87 Stat. 975). Your servicing 
housing office will advise you.



Sec.  256.27  Is my Federal government-assisted house eligible for services?

    No. The intention of this program is to assist the neediest of the 
needy, who have never received services from any other Federal entity.



Sec.  256.28  I have a mobile home; am I eligible for help?

    Yes. If you meet the eligibility criteria in Sec.  256.6 and funding 
is available, you can receive any of the HIP services identified in 
Sec.  256.7. If you request Category B services and your mobile home has 
exterior walls less than three inches thick, you must be considered for 
Category C services.



Sec.  256.29  Can HIP resources be combined with other available resources?

    Yes. HIP resources may be supplemented with other available 
resources (e.g., in-kind assistance; tribal or housing authority; and 
any other leveraging mechanism identified in Sec.  256.3(d)) to increase 
the number of HIP recipients.



Sec.  256.30  Can I appeal actions taken under this part?

    You may appeal action or inaction by a BIA official, in accordance 
with 25 CFR part 2.

[[Page 876]]



                   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 877]]



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

[[Page 878]]

may do so either orally or in writing. If 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

[[Page 879]]

Indian landowners for the purpose of 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 880]]

    (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 881]]

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 882]]



  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 883]]

shall be subject to the provisions of part 900 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.

[40 FR 51303, Nov. 4, 1975, as amended at 64 FR 13896, Mar. 23, 1999]



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.

[[Page 884]]

    (r) ``State'' means a State of the United States of America or any 
political subdivision of a State.
    (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

[[Page 885]]

for supplemental or operational support programs as required in this 
part.
    (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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 886]]



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 887]]

    (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 888]]

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 889]]

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 890]]

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, Federal, State and local funds. Each

[[Page 891]]

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 Sec. Sec.  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 Sec. Sec.  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 892]]



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 893]]

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 894]]



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 statute 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 895]]

    (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 statute 
or Executive Order.
    (c) The contractor is subject to the penalties provided in section 
(i) of 5 U.S.C. 552a.

[[Page 896]]



               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 Sec. Sec.  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 897]]

    (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 898]]

    (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 900 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; 64 
FR 13896, Mar. 23, 1999]



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 systems.
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,

[[Page 899]]

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 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.
    (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

[[Page 900]]

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.



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

[[Page 901]]

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.
    (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.

[[Page 902]]

    (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 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

[[Page 903]]

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 900 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 900 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 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

[[Page 904]]

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 900 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.
    (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

[[Page 905]]

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 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

[[Page 906]]

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; 64 
FR 13897, Mar. 23, 1999]



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 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

[[Page 907]]

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 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).

[[Page 908]]

    (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.
    (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

[[Page 909]]

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.
    (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.

[[Page 910]]



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 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

[[Page 911]]

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.
    (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

[[Page 912]]

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]



Sec. 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).
    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.

[[Page 913]]

    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 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

[[Page 914]]

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 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

[[Page 915]]

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.
    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

[[Page 916]]

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 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.

[[Page 917]]

    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.
    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

[[Page 918]]

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 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

[[Page 919]]

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.



      Sec. 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 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

[[Page 920]]

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 921]]



                    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.



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 
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]

[[Page 922]]



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 Sec. Sec.  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]



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

[[Page 923]]

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]



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

[[Page 924]]

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.



Sec. Sec.  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 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

[[Page 925]]

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 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

[[Page 926]]

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.



PART 290_TRIBAL REVENUE ALLOCATION PLANS--Table of Contents



Sec.
290.1 Purpose.
290.2 Definitions.
290.3 Information collection.
290.4 What is a tribal revenue allocation plan?
290.5 Who approves tribal revenue allocation plans?
290.6 Who must submit a tribal revenue allocation plan?
290.7 Must an Indian tribe have a tribal revenue allocation plan if it 
          is not making per capita payments?
290.8 Do Indian tribes have to make per capita payments from net gaming 
          revenues to tribal members?
290.9 How may an Indian tribe use net gaming revenues if it does not 
          have an approved tribal revenue allocation plan?
290.10 Is an Indian tribe in violation of IGRA if it makes per capita 
          payments to its members from net gaming revenues without an 
          approved tribal revenue allocation plan?
290.11 May an Indian tribe distribute per capita payments from net 
          gaming revenues derived from either Class II or Class III 
          gaming without a tribal revenue allocation plan?
290.12 What information must the tribal revenue allocation plan contain?
290.13 Under what conditions may an Indian tribe distribute per capita 
          payments?
290.14 Who can share in a per capita payment?
290.15 Must the Indian tribe establish trust accounts with financial 
          institutions for minors and legal incompetents?
290.16 Can the per capita payments of minors and legal incompetents be 
          deposited into accounts held by BIA or OTFM?
290.17 What documents must the Indian tribe include with the tribal 
          revenue allocation plan?
290.18 Where should the Indian tribe submit the tribal revenue 
          allocation plan?
290.19 How long will the ABO take to review and approve the tribal 
          revenue allocation plan?
290.20 When will the ABO disapprove a tribal revenue allocation plan?
290.21 May an Indian tribe appeal the ABO's decision?
290.22 How does the Indian tribe and its members ensure compliance with 
          its tribal revenue allocation plan?
290.23 How does the Indian tribe resolve disputes arising from per 
          capita payments to individual members or identified groups of 
          members?
290.24 Do revisions/amendments to a tribal revenue allocation plan 
          require approval?
290.25 What is the liability of the United States under this part?
290.26 Are previously approved tribal revenue allocation plans, 
          revisions or amendments subject to review in accordance with 
          25 CFR part 290?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, and 2710.

    Source: 65 FR 14467, Mar. 17, 2000, unless otherwise noted.



Sec.  290.1  Purpose.

    This part contains procedures for submitting, reviewing, and 
approving tribal revenue allocation plans for distributing net gaming 
revenues from tribal gaming activities. It applies to review of tribal 
revenue allocation plans adopted under IGRA.



Sec.  290.2  Definitions.

    Appropriate Bureau official (ABO) means the Bureau official with 
delegated authority to approve tribal revenue allocation plans.
    IGRA means the Indian Gaming Regulatory Act of 1988 (Public Law 100-
497) 102 Stat. 2467 dated October 17, 1988, (Codified at 25 U.S.C. 2701-
2721(1988)) and any amendments.

[[Page 927]]

    Indian Tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians that the Secretary recognizes 
as:
    (1) Eligible for the speci al programs and services provided by the 
United States to Indians because of their status as Indians; and
    (2) Having powers of self-government.
    Legal incompetent means an individual who is 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 justice systems or as established by the 
tribe.
    Member of an Indian tribe means an individual who meets the 
requirements established by applicable tribal law for enrollment in the 
tribe and--
    (1) Is listed on the tribal rolls of that tribe if such rolls are 
kept or
    (2) Is recognized as a member by the tribal governing body if tribal 
rolls are not kept.
    Minor means an individual who is eligible to participate in a per 
capita payment and who has not reached the age of 18 years.
    Per capita payment means the distribution of money or other thing of 
value to all members of the tribe, or to identified groups of members, 
which is paid directly from the net revenues of any tribal gaming 
activity. This definition does not apply to payments which have been set 
aside by the tribe for special purposes or programs, such as payments 
made for social welfare, medical assistance, education, housing or other 
similar, specifically identified needs.
    Resolution means the formal document in which the tribal governing 
body expresses its legislative will in accordance with applicable tribal 
law.
    Secretary means the Secretary of the Interior or his/her authorized 
representative.
    Superintendent means the official or other designated representative 
of the BIA in charge of the field office which has immediate 
administrative responsibility for the affairs of the tribe for which a 
tribal revenue allocation plan is prepared.
    Tribal governing body means the governing body of an Indian tribe 
recognized by the Secretary.
    Tribal revenue allocation plan or allocation plan means the document 
submitted by an Indian tribe that provides for distributing net gaming 
revenues.
    You or your means the Indian tribe.



Sec.  290.3  Information collection.

    The information collection requirements contained in Sec. Sec.  
290.12, 290.17, 290.24 and 290.26 have been approved by the OMB under 
the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned 
clearance number 1076-0152.



Sec.  290.4  What is a tribal revenue allocation plan?

    It is the document you must submit that describes how you will 
allocate net gaming revenues.



Sec.  290.5  Who approves tribal revenue allocation plans?

    The ABO will review and approve tribal revenue allocation plans for 
compliance with IGRA.



Sec.  290.6  Who must submit a tribal revenue allocation plan?

    Any Indian tribe that intends to make a per capita payment from net 
gaming revenues must submit one.



Sec.  290.7  Must an Indian tribe have a tribal revenue allocation plan 
if it is not making per capita payments?

    No, if you do not make per capita payments, you do not need to 
submit a tribal revenue allocation plan.



Sec.  290.8  Do Indian tribes have to make per capita payments 
from net gaming revenues to tribal members?

    No. You do not have to make per capita payments.



Sec.  290.9  How may an Indian tribe use net gaming revenues 
if it does not have an approved tribal revenue allocation plan?

    Without an approved tribal revenue allocation plan, you may use net 
gaming revenues to fund tribal government operations or programs; to 
provide for the general welfare of your tribe and its members; to 
promote tribal economic development; to donate to charitable 
organizations; or to help fund operations of local government agencies.

[[Page 928]]



Sec.  290.10  Is an Indian tribe in violation of IGRA 
if it makes per capita payments to its members from net gaming revenues 
without an approved tribal revenue allocation plan?

    Yes, you are in violation of IGRA if you make per capita payments to 
your tribal members from net gaming revenues without an approved tribal 
revenue allocation plan. If you refuse to comply, the DOJ or NIGC may 
enforce the per capita requirements of IGRA.



Sec.  290.11  May an Indian tribe distribute per capita payments 
from net gaming revenues derived from either Class II or Class III gaming 
without a tribal revenue allocation plan?

    No, IGRA requires that you have an approved tribal revenue 
allocation plan.



Sec.  290.12  What information must the tribal revenue allocation plan contain?

    (a) You must prepare a tribal revenue allocation plan that includes 
a percentage breakdown of the uses for which you will allocate net 
gaming revenues. The percentage breakdown must total 100 percent.
    (b) The tribal revenue allocation plan must meet the following 
criteria:
    (1) It must reserve an adequate portion of net gaming revenues from 
the tribal gaming activity 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 or its members;
    (iii) To promote tribal economic development;
    (iv) To donate to charitable organizations; or
    (v) To help fund operations of local government.
    (2) It must contain detailed information to allow the ABO to 
determine that it complies with this section and IGRA particularly 
regarding funding for tribal governmental operations or programs and for 
promoting tribal economic development.
    (3) It must protect and preserve the interests of minors and other 
legally incompetent persons who are entitled to receive per capita 
payments by:
    (i) Ensuring that tribes make per capita payments for eligible 
minors or incompetents to the parents or legal guardians of these minors 
or incompetents at times and in such amounts as necessary for the 
health, education, or welfare of the minor or incompetent;
    (ii) Establishing criteria for withdrawal of the funds, acceptable 
proof and/or receipts for accountability of the expenditure of the funds 
and the circumstances for denial of the withdrawal of the minors' and 
legal incompetents' per capita payments by the parent or legal guardian; 
and
    (iii) Establishing a process, system, or forum for dispute 
resolution.
    (4) It must describe how you will notify members of the tax 
liability for per capita payments and how you will withhold taxes for 
all recipients in accordance with IRS regulations in 26 CFR part 31.
    (5) It must authorize the distribution of per capita payments to 
members according to specific eligibility requirements and must utilize 
or establish a tribal court system, forum or administrative process for 
resolution of disputes concerning the allocation of net gaming revenues 
and the distribution of per capita payments.



Sec.  290.13  Under what conditions may an Indian tribe distribute 
per capita payments?

    You may make per capita payments only after the ABO approves your 
tribal revenue allocation plan.



Sec.  290.14  Who can share in a per capita payment?

    (a) You must establish your own criteria for determining whether all 
members or identified groups of members are eligible for per capita 
payments.
    (b) If the tribal revenue allocation plan calls for distributing per 
capita payments to an identified group of members rather than to all 
members, you must justify limiting this payment to the identified group 
of members. You must make sure that:
    (1) The distinction between members eligible to receive payments and 
members ineligible to receive payments is reasonable and not arbitrary;
    (2) The distinction does not discriminate or otherwise violate the 
Indian Civil Rights Act; and

[[Page 929]]

    (3) The justification complies with applicable tribal law.



Sec.  290.15  Must the Indian tribe establish trust accounts 
with financial institutions for minors and legal incompetents?

    No. The tribe may establish trust accounts with financial 
institutions but should explore investment options to structure the 
accounts to the benefit of their members while ensuring compliance with 
IGRA and this part.



Sec.  290.16  Can the per capita payments of minors and legal incompetents 
be deposited into accounts held by BIA or OTFM?

    No. The Secretary will not accept any deposits of payments or funds 
derived from net gaming revenues to any account held by BIA or OTFM.



Sec.  290.17  What documents must the Indian tribe include 
with the tribal revenue allocation plan?

    You must include:
    (a) A written request for approval of the tribal revenue allocation 
plan; and
    (b) A tribal resolution or other document, including the date and 
place of adoption and the result of any vote taken, that certifies you 
have adopted the tribal revenue allocation plan in accordance with 
applicable tribal law.



Sec.  290.18  Where should the Indian tribe submit 
the tribal revenue allocation plan?

    You must submit your tribal revenue allocation plan to your 
respective Superintendent. The Superintendent will review the tribal 
revenue allocation plan to make sure it has been properly adopted in 
accordance with applicable tribal law. The Superintendent will then 
transmit the tribal revenue allocation plan promptly to the ABO.



Sec.  290.19  How long will the ABO take to review and approve 
the tribal revenue allocation plan?

    The ABO must review and act on your tribal revenue allocation plan 
within 60 days of receiving it. A tribal revenue allocation plan is not 
effective without the ABO's written approval.
    (a) If the tribal revenue allocation plan conforms with this part 
and the IGRA, the ABO must approve it.
    (b) If the tribal revenue allocation plan does not conform with this 
part and the IGRA, the ABO will send you a written notice that:
    (1) Explains why the plan doesn't conform to this part of the IGRA; 
and
    (2) Tells you how to bring the plan into conformance.
    (c) If the ABO doesn't act within 60 days, you can appeal the 
inaction under 25 CFR part 2. A tribal revenue allocation plan is not 
effective without the express written approval of the ABO.



Sec.  290.20  When will the ABO disapprove a tribal revenue allocation plan?

    The ABO will not approve any tribal revenue allocation plan for 
distribution of net gaming revenues from a tribal gaming activity if:
    (a) The tribal revenue allocation plan is inadequate, particularly 
with respect to the requirements in Sec.  290.12 and IGRA, and you fail 
to bring it into compliance;
    (b) The tribal revenue allocation plan is not adopted in accordance 
with applicable tribal law;
    (c) The tribal revenue allocation plan does not include a reasonable 
justification for limiting per capita payments to certain groups of 
members; or
    (d) The tribal revenue allocation plan violates the Indian Civil 
Rights Act of 1968, any other provision of Federal law, or the United 
States' trust obligations.



Sec.  290.21  May an Indian tribe appeal the ABO's decision?

    Yes, you may appeal the ABO's decision in accordance with the 
regulations at 25 CFR part 2.



Sec.  290.22  How does the Indian tribe ensure compliance 
with its tribal revenue allocation plan?

    You must utilize or establish a tribal court system, forum or 
administrative process in the tribal revenue allocation plan for 
reviewing expenditures of net gaming revenues and explain how you will 
correct deficiencies.

[[Page 930]]



Sec.  290.23  How does the Indian tribe resolve disputes arising 
from per capita payments to individual members or identified groups of members?

    You must utilize or establish a tribal court system, forum or 
administrative process for resolving disputes arising from the 
allocation of net gaming revenue and the distribution of per capita 
payments.



Sec.  290.24  Do revisions/amendments to a tribal revenue allocation plan 
require approval?

    Yes, revisions/amendments to a tribal revenue allocation plan must 
be submitted to the ABO for approval to ensure that they comply with 
Sec.  290.12 and IGRA.



Sec.  290.25  What is the liability of the United States under this part?

    The United States is not liable for the manner in which a tribe 
distributes funds from net gaming revenues.



Sec.  290.26  Are previously approved tribal revenue allocation plans, 
revisions, or amendments subject to review in accordance with this part?

    No. This part applies only to tribal revenue allocation plans, 
revisions, or amendments submitted for approval after April 17, 2000.
    (a) If the ABO approved your tribal revenue allocation plan, 
revisions, or amendments before April 17, 2000, you need not resubmit it 
for approval.
    (b) If you are amending or revising a previously approved allocation 
plan, you must submit the amended or revised plan to the ABO for review 
and approval under this part.



PART 291_CLASS III GAMING PROCEDURES--Table of Contents



Sec.
291.1 Purpose and scope.
291.2 Definitions.
291.3 When may an Indian tribe ask the Secretary to issue Class III 
          gaming procedures?
291.4 What must a proposal requesting Class III gaming procedures 
          contain?
291.5 Where must the proposal requesting Class III gaming procedures be 
          filed?
291.6 What must the Secretary do upon receiving a proposal?
291.7 What must the Secretary do if it has been determined that the 
          Indian tribe is eligible to request Class III gaming 
          procedures?
291.8 What must the Secretary do at the expiration of the 60-day comment 
          period if the State has not submitted an alternative proposal?
291.9 What must the Secretary do at the end of the 60-day comment period 
          if the State offers an alternative proposal for Class III 
          gaming procedures?
291.10 What is the role of the mediator appointed by the Secretary?
291.11 What must the Secretary do upon receiving the proposal selected 
          by the mediator?
291.12 Who will monitor and enforce tribal compliance with the Class III 
          gaming procedures?
291.13 When do Class III gaming procedures for an Indian tribe become 
          effective?
291.14 How can Class III gaming procedures issued by the Secretary be 
          amended?
291.15 How long do Class III gaming procedures remain in effect?

    Authority: 5 U.S.C. 301; 25 U.S.C. sections 2,9 and 2710.

    Source: 64 FR 17543, Apr. 12, 1999, unless otherwise noted.



Sec.  291.1  Purpose and scope.

    The regulations in this part establish procedures that the Secretary 
will use to promulgate rules for the conduct of Class III Indian gaming 
when:
    (a) A State and an Indian tribe are unable to voluntarily agree to a 
compact and;
    (b) The State has asserted its immunity from suit brought by an 
Indian tribe under 25 U.S.C. 2710(d)(7)(B).



Sec.  291.2  Definitions

    (a) All terms have the same meaning as set forth in the definitional 
section of IGRA, 25 U.S.C. section 2703(1)-(10).
    (b) The term ``compact'' includes renewal of an existing compact.



Sec.  291.3  When may an Indian tribe ask the Secretary 
to issue Class III gaming procedures?

    An Indian tribe may ask the Secretary to issue Class III gaming 
procedures when the following steps have taken place:
    (a) The Indian tribe submitted a written request to the State to 
enter into negotiations to establish a Tribal-State compact governing 
the conduct of Class III gaming activities;

[[Page 931]]

    (b) The State and the Indian tribe failed to negotiate a compact 180 
days after the State received the Indian tribe's request;
    (c) The Indian tribe initiated a cause of action in Federal district 
court against the State alleging that the State did not respond, or did 
not respond in good faith, to the request of the Indian tribe to 
negotiate such a compact;
    (d) The State raised an Eleventh Amendment defense to the tribal 
action; and
    (e) The Federal district court dismissed the action due to the 
State's sovereign immunity under the Eleventh Amendment.



Sec.  291.4  What must a proposal requesting Class III 
gaming procedures contain?

    A proposal requesting Class III gaming procedures must include the 
following information:
    (a) The full name, address, and telephone number of the Indian tribe 
submitting the proposal;
    (b) A copy of the authorizing resolution from the Indian tribe 
submitting the proposal;
    (c) A copy of the Indian tribe's gaming ordinance or resolution 
approved by the NIGC in accordance with 25 U.S.C. 2710, if any;
    (d) A copy of the Indian tribe's organic documents, if any;
    (e) A copy of the Indian tribe's written request to the State to 
enter into compact negotiations, along with the Indian tribe's proposed 
compact, if any;
    (f) A copy of the State's response to the tribal request and/or 
proposed compact, if any;
    (g) A copy of the tribe's Complaint (with attached exhibits, if 
any); the State's Motion to Dismiss; any Response by the tribe to the 
State's Motion to Dismiss; any Opinion or other written documents from 
the court regarding the State's Motion to Dismiss; and the Court's Order 
of dismissal;
    (h) The Indian tribe's factual and legal authority for the scope of 
gaming specified in paragraph (j)(13) of this section;
    (i) Regulatory scheme for the State's oversight role, if any, in 
monitoring and enforcing compliance; and
    (j) Proposed procedures under which the Indian tribe will conduct 
Class III gaming activities, including:
    (1) A certification that the tribe's accounting procedures are 
maintained in accordance with American Institute of Certified Public 
Accountants Standards for Audits of Casinos, including maintenance of 
books and records in accordance with Generally Accepted Accounting 
Principles and applicable NIGC regulations;
    (2) A reporting system for the payment of taxes and fees in a timely 
manner and in compliance with Internal Revenue Code and Bank Secrecy Act 
requirements;
    (3) Preparation of financial statements covering all financial 
activities of the Indian tribe's gaming operations;
    (4) Internal control standards designed to ensure fiscal integrity 
of gaming operations as set forth in 25 CFR Part 542;
    (5) Provisions for records retention, maintenance, and 
accessibility;
    (6) Conduct of games, including patron requirements, posting of game 
rules, and hours of operation;
    (7) Procedures to protect the integrity of the rules for playing 
games;
    (8) Rules governing employees of the gaming operation, including 
code of conduct, age requirements, conflict of interest provisions, 
licensing requirements, and such background investigations of all 
management officials and key employees as are required by IGRA, NIGC 
regulations, and applicable tribal gaming laws;
    (9) Policies and procedures that protect the health and safety of 
patrons and employees and that address insurance and liability issues, 
as well as safety systems for fire and emergency services at all gaming 
locations;
    (10) Surveillance procedures and security personnel and systems 
capable of monitoring movement of cash and chips, entrances and exits of 
gaming facilities, and other critical areas of any gaming facility;
    (11) An administrative and/or tribal judicial process to resolve 
disputes between gaming establishment, employees and patrons, including 
a process to protect the rights of individuals injured on gaming 
premises by reason of

[[Page 932]]

negligence in the operation of the facility;
    (12) Hearing procedures for licensing purposes;
    (13) A list of gaming activities proposed to be offered by the 
Indian tribe at its gaming facilities;
    (14) A description of the location of proposed gaming facilities;
    (15) A copy of the Indian tribe's liquor ordinance approved by the 
Secretary if intoxicants, as used in 18 U.S.C. 1154, will be served in 
the gaming facility;
    (16) Provisions for a tribal regulatory gaming entity, independent 
of gaming management;
    (17) Provisions for tribal enforcement and investigatory mechanisms, 
including the imposition of sanctions, monetary penalties, closure, and 
an administrative appeal process relating to enforcement and 
investigatory actions;
    (18) The length of time the procedures will remain in effect; and
    (19) Any other provisions deemed necessary by the Indian tribe.



Sec.  291.5  Where must the proposal requesting Class III 
gaming procedures be filed?

    Any proposal requesting Class III gaming procedures must be filed 
with the Director, Indian Gaming Management Staff, Bureau of Indian 
Affairs, U.S. Department of the Interior, MS 2070-MIB, 1849 C Street NW, 
Washington, DC 20240.



Sec.  291.6  What must the Secretary do upon receiving a proposal?

    Upon receipt of a proposal requesting Class III gaming procedures, 
the Secretary must:
    (a) Within 15 days, notify the Indian tribe in writing that the 
proposal has been received, and whether any information required under 
Sec.  291.4 is missing;
    (b) Within 30 days of receiving a complete proposal, notify the 
Indian tribe in writing whether the Indian tribe meets the eligibility 
requirements in Sec.  291.3. The Secretary's eligibility determination 
is final for the Department.



Sec.  291.7  What must the Secretary do if it has been determined 
that the Indian tribe is eligible to request Class III gaming procedures?

    (a) If the Secretary determines that the Indian tribe is eligible to 
request Class III gaming procedures and that the Indian tribe's proposal 
is complete, the Secretary must submit the Indian tribe's proposal to 
the Governor and the Attorney General of the State where the gaming is 
proposed.
    (b) The Governor and Attorney General will have 60 days to comment 
on:
    (1) Whether the State is in agreement with the Indian tribe's 
proposal;
    (2) Whether the proposal is consistent with relevant provisions of 
the laws of the State;
    (3) Whether contemplated gaming activities are permitted in the 
State for any purposes, by any person, organization, or entity.
    (c) The Secretary will also invite the State's Governor and Attorney 
General to submit an alternative proposal to the Indian tribe's proposed 
Class III gaming procedures.



Sec.  291.8  What must the Secretary do at the expiration of the 60-day 
comment period if the State has not submitted an alternative proposal?

    (a) Upon expiration of the 60-day comment period specified in Sec.  
291.7, if the State has not submitted an alternative proposal, the 
Secretary must review the Indian tribe's proposal to determine:
    (1) Whether all requirements of Sec.  291.4 are adequately 
addressed;
    (2) Whether Class III gaming activities will be conducted on Indian 
lands over which the Indian tribe has jurisdiction;
    (3) Whether contemplated gaming activities are permitted in the 
State for any purposes by any person, organization, or entity;
    (4) Whether the proposal is consistent with relevant provisions of 
the laws of the State;
    (5) Whether the proposal is consistent with the trust obligations of 
the United States to the Indian tribe;
    (6) Whether the proposal is consistent with all applicable 
provisions of IGRA; and

[[Page 933]]

    (7) Whether the proposal is consistent with provisions of other 
applicable Federal laws.
    (b) Within 60 days of the expiration of the 60-day comment period in 
Sec.  291.7, the Secretary must notify the Indian tribe, the Governor, 
and the Attorney General of the State in writing that he/she has:
    (1) Approved the proposal if the Secretary determines that there are 
no objections to the Indian tribe's proposal; or
    (2) Identified unresolved issues and areas of disagreements in the 
proposal, and invite the Indian tribe, the Governor and the Attorney 
General to participate in an informal conference, within 30 days of 
notification unless the parties agree otherwise, to resolve identified 
unresolved issues and areas of disagreement.
    (c) Within 30 days of the informal conference, the Secretary must 
prepare and mail to the Indian tribe, the Governor and the Attorney 
General:
    (1) A written report that summarizes the results of the informal 
conference; and
    (2) A final decision either setting forth the Secretary's proposed 
Class III gaming procedures for the Indian tribe, or disapproving the 
proposal for any of the reasons in paragraph (a) of this section.



Sec.  291.9  What must the Secretary do at the end of the 60-day 
comment period if the State offers an alternative proposal for Class III 
gaming procedures?

    Within 30 days of receiving the State's alternative proposal, the 
Secretary must appoint a mediator who:
    (a) Has no official, financial, or personal conflict of interest 
with respect to the issues in controversy; and
    (b) Must convene a process to resolve differences between the two 
proposals.



Sec.  291.10  What is the role of the mediator appointed by the Secretary?

    (a) The mediator must ask the Indian tribe and the State to submit 
their last best proposal for Class III gaming procedures.
    (b) After giving the Indian tribe and the State an opportunity to be 
heard and present information supporting their respective positions, the 
mediator must select from the two proposals the one that best comports 
with the terms of IGRA and any other applicable Federal law. The 
mediator must submit the proposal selected to the Indian tribe, the 
State, and the Secretary.



Sec.  291.11  What must the Secretary do upon receiving the proposal 
selected by the mediator?

    Within 60 days of receiving the proposal selected by the mediator, 
the Secretary must do one of the following:
    (a) Notify the Indian tribe, the Governor and the Attorney General 
in writing of his/her decision to approve the proposal for Class III 
gaming procedures selected by the mediator; or
    (b) Notify the Indian tribe, the Governor and the Attorney General 
in writing of his/her decision to disapprove the proposal selected by 
the mediator for any of the following reasons:
    (1) The requirements of Sec.  291.4 are not adequately addressed;
    (2) Gaming activities would not be conducted on Indian lands over 
which the Indian tribe has jurisdiction;
    (3) Contemplated gaming activities are not permitted in the State 
for any purpose by any person, organization, or entity;
    (4) The proposal is not consistent with relevant provisions of the 
laws of the State;
    (5) The proposal is not consistent with the trust obligations of the 
United States to the Indian tribe;
    (6) The proposal is not consistent with applicable provisions of 
IGRA; or
    (7) The proposal is not consistent with provisions of other 
applicable Federal laws.
    (c) If the Secretary rejects the mediator's proposal under paragraph 
(b) of this section, he/she must prescribe appropriate procedures within 
60 days under which Class III gaming may take place that comport with 
the mediator's selected proposal as much as possible, the provisions of 
IGRA, and the relevant provisions of the laws of the State.

[[Page 934]]



Sec.  291.12  Who will monitor and enforce tribal compliance with the Class III 
gaming procedures?

    The Indian tribe and the State may have an agreement regarding 
monitoring and enforcement of tribal compliance with the Indian tribe's 
Class III gaming procedures. In addition, under existing law, the NIGC 
will monitor and enforce tribal compliance with the Indian tribe's Class 
III gaming procedures.



Sec.  291.13  When do Class III gaming procedures for an Indian tribe 
become effective?

    Upon approval of Class III gaming procedures for the Indian tribe 
under either Sec.  291.8(b), Sec.  291.8(c), or Sec.  291.11(a), the 
Indian tribe shall have 90 days in which to approve and execute the 
Secretarial procedures and forward its approval and execution to the 
Secretary, who shall publish notice of their approval in the Federal 
Register. The procedures take effect upon their publication in the 
Federal Register.



Sec.  291.14  How can Class III gaming procedures approved by the Secretary 
be amended?

    An Indian tribe may ask the Secretary to amend approved Class III 
gaming procedures by submitting an amendment proposal to the Secretary. 
The Secretary must review the proposal by following the approval process 
for initial tribal proposals, except that the requirements of Sec.  
291.3 are not applicable and he/she may waive the requirements of Sec.  
291.4 to the extent they do not apply to the amendment request.



Sec.  291.15  How long do Class III gaming procedures remain in effect?

    Class III gaming procedures remain in effect for the duration 
specified in the procedures or until amended pursuant to Sec.  291.14.



PART 292_GAMING ON TRUST LANDS ACQUIRED AFTER OCTOBER 17, 1988--
Table of Contents



                      Subpart A_General Provisions

Sec.
292.1 What is the purpose of this part?
292.2 How are key terms defined in this part?

  Subpart B_Exceptions to Prohibition on Gaming on Newly Acquired Lands

292.3 How does a tribe seek an opinion on whether its newly acquired 
          lands meet, or will meet, one of the exceptions in this 
          subpart?
292.4 What criteria must newly acquired lands meet under the exceptions 
          regarding tribes with and without a reservation?

                 Settlement of a Land Claim'' Exception

292.5 When can gaming occur on newly acquired lands under a settlement 
          of a land claim?

                    ``Initial Reservation'' Exception

292.6 What must be demonstrated to meet the ``initial reservation'' 
          exception?

                       Restored Lands'' Exception

292.7 What must be demonstrated to meet the ``restored lands'' 
          exception?
292.8 How does a tribe qualify as having been federally recognized?
292.9 How does a tribe show that it lost its government-to-government 
          relationship?
292.10 How does a tribe qualify as having been restored to Federal 
          recognition?
292.11 What are ``restored lands''?
292.12 How does a tribe establish its connection to newly acquired lands 
          for the purposes of the ``restored lands'' exception?

     Subpart C_Secretarial Determination and Governor's Concurrence

292.13 When can a tribe conduct gaming activities on newly acquired 
          lands that do not qualify under one of the exceptions in 
          subpart B of this part?
292.14 Where must a tribe file an application for a Secretarial 
          Determination?
292.15 May a tribe apply for a Secretarial Determination for lands not 
          yet held in trust?

                          Application Contents

292.16 What must an application for a Secretarial Determination contain?
292.17 How must an application describe the benefits and impacts of a 
          proposed gaming establishment to the tribe and its members?
292.18 What information must an application contain on detrimental 
          impacts to the surrounding community?

                              Consultation

292.19 How will the Regional Director conduct the consultation process?

[[Page 935]]

292.20 What information must the consultation letter include?

                       Evaluation and Concurrence

292.21 How will the Secretary evaluate a proposed gaming establishment?
292.22 How does the Secretary request the Governor's concurrence?
292.23 What happens if the Governor does not affirmatively concur with 
          the Secretarial Determination?
292.24 Can the public review the Secretarial Determination?

                         Information Collection

292.25 Do information collections in this part have Office of Management 
          and Budget approval?

                     Subpart D_Effect of Regulations

292.26 What effect do these regulations have on pending applications, 
          final agency decisions and opinions already issued?

    Authority: 5 U.S.C. 301, 25 U.S.C. 2, 9, 2719, 43 U.S.C. 1457.

    Source: 73 FR 29375, May 20, 2008, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  292.1  What is the purpose of this part?

    The Indian Gaming Regulatory Act of 1988 (IGRA) contains several 
exceptions under which class II or class III gaming may occur on lands 
acquired by the United States in trust for an Indian tribe after October 
17, 1988, if other applicable requirements of IGRA are met. This part 
contains procedures that the Department of the Interior will use to 
determine whether these exceptions apply.



Sec.  292.2  How are key terms defined in this part?

    For purposes of this part, all terms have the same meaning as set 
forth in the definitional section of IGRA, 25 U.S.C. 2703. In addition, 
the following terms have the meanings given in this section.
    Appropriate State and local officials means the Governor of the 
State and local government officials within a 25-mile radius of the 
proposed gaming establishment.
    BIA means Bureau of Indian Affairs.
    Contiguous means two parcels of land having a common boundary 
notwithstanding the existence of non-navigable waters or a public road 
or right-of-way and includes parcels that touch at a point.
    Former reservation means lands in Oklahoma that are within the 
exterior boundaries of the last reservation that was established by 
treaty, Executive Order, or Secretarial Order for an Oklahoma tribe.
    IGRA means the Indian Gaming Regulatory Act of 1988, as amended and 
codified at 25 U.S.C. 2701-2721.
    Indian tribe or tribe means any Indian tribe, band, nation, or other 
organized group or community of Indians that is recognized by the 
Secretary as having a government-to-government relationship with the 
United States and is eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians, as evidenced by inclusion of the tribe on the list of 
recognized tribes published by the Secretary under 25 U.S.C. 479a-1.
    Land claim means any claim by a tribe concerning the impairment of 
title or other real property interest or loss of possession that:
    (1) Arises under the United States Constitution, Federal common law, 
Federal statute or treaty;
    (2) Is in conflict with the right, or title or other real property 
interest claimed by an individual or entity (private, public, or 
governmental); and
    (3) Either accrued on or before October 17, 1988, or involves lands 
held in trust or restricted fee for the tribe prior to October 17, 1988.
    Legislative termination means Federal legislation that specifically 
terminates or prohibits the government-to-government relationship with 
an Indian tribe or that otherwise specifically denies the tribe, or its 
members, access to or eligibility for government services.
    Nearby Indian tribe means an Indian tribe with tribal Indian lands 
located within a 25-mile radius of the location of the proposed gaming 
establishment, or, if the tribe has no trust lands, within a 25-mile 
radius of its government headquarters.
    Newly acquired lands means land that has been taken, or will be 
taken, in trust for the benefit of an Indian tribe

[[Page 936]]

by the United States after October 17, 1988.
    Office of Indian Gaming means the office within the Office of the 
Assistant Secretary-Indian Affairs, within the Department of the 
Interior.
    Regional Director means the official in charge of the BIA Regional 
Office responsible for BIA activities within the geographical area where 
the proposed gaming establishment is to be located.
    Reservation means:
    (1) Land set aside by the United States by final ratified treaty, 
agreement, Executive Order, Proclamation, Secretarial Order or Federal 
statute for the tribe, notwithstanding the issuance of any patent;
    (2) Land of Indian colonies and rancherias (including rancherias 
restored by judicial action) set aside by the United States for the 
permanent settlement of the Indians as its homeland;
    (3) Land acquired by the United States to reorganize adult Indians 
pursuant to statute; or
    (4) Land acquired by a tribe through a grant from a sovereign, 
including pueblo lands, which is subject to a Federal restriction 
against alienation.
    Secretarial Determination means a two-part determination that a 
gaming establishment on newly acquired lands:
    (1) Would be in the best interest of the Indian tribe and its 
members; and
    (2) Would not be detrimental to the surrounding community.
    Secretary means the Secretary of the Interior or authorized 
representative.
    Significant historical connection means the land is located within 
the boundaries of the tribe's last reservation under a ratified or 
unratified treaty, or a tribe can demonstrate by historical 
documentation the existence of the tribe's villages, burial grounds, 
occupancy or subsistence use in the vicinity of the land.
    Surrounding community means local governments and nearby Indian 
tribes located within a 25-mile radius of the site of the proposed 
gaming establishment. A local government or nearby Indian tribe located 
beyond the 25-mile radius may petition for consultation if it can 
establish that its governmental functions, infrastructure or services 
will be directly, immediately and significantly impacted by the proposed 
gaming establishment.



 Subpart B_Exceptions to Prohibitions on Gaming on Newly Acquired Lands



Sec.  292.3  How does a tribe seek an opinion on whether 
its newly acquired lands meet, or will meet, one of the exceptions 
in this subpart?

    (a) If the newly acquired lands are already in trust and the request 
does not concern whether a specific area of land is a ``reservation,'' 
the tribe may submit a request for an opinion to either the National 
Indian Gaming Commission or the Office of Indian Gaming.
    (b) If the tribe seeks to game on newly acquired lands that require 
a land-into-trust application or the request concerns whether a specific 
area of land is a ``reservation,'' the tribe must submit a request for 
an opinion to the Office of Indian Gaming.



Sec.  292.4  What criteria must newly acquired lands meet 
under the exceptions regarding tribes with and without a reservation?

    For gaming to be allowed on newly acquired lands under the 
exceptions in 25 U.S.C. 2719(a) of IGRA, the land must meet the location 
requirements in either paragraph (a) or paragraph (b) of this section.
    (a) If the tribe had a reservation on October 17, 1988, the lands 
must be located within or contiguous to the boundaries of the 
reservation.
    (b) If the tribe had no reservation on October 17, 1988, the lands 
must be either:
    (1) Located in Oklahoma and within the boundaries of the tribe's 
former reservation or contiguous to other land held in trust or 
restricted status for the tribe in Oklahoma; or
    (2) Located in a State other than Oklahoma and within the tribe's 
last recognized reservation within the State or States within which the 
tribe is presently located, as evidenced by the tribe's governmental 
presence and tribal population.

[[Page 937]]

                 Settlement of a Land Claim'' Exception



Sec.  292.5  When can gaming occur on newly acquired lands 
under a settlement of a land claim?

    This section contains criteria for meeting the requirements of 25 
U.S.C. 2719(b)(1)(B)(i), known as the ``settlement of a land claim'' 
exception. Gaming may occur on newly acquired lands if the land at issue 
is either:
    (a) Acquired under a settlement of a land claim that resolves or 
extinguishes with finality the tribe's land claim in whole or in part, 
thereby resulting in the alienation or loss of possession of some or all 
of the lands claimed by the tribe, in legislation enacted by Congress; 
or
    (b) Acquired under a settlement of a land claim that:
    (1) Is executed by the parties, which includes the United States, 
returns to the tribe all or part of the land claimed by the tribe, and 
resolves or extinguishes with finality the claims regarding the returned 
land; or
    (2) Is not executed by the United States, but is entered as a final 
order by a court of competent jurisdiction or is an enforceable 
agreement that in either case predates October 17, 1988 and resolves or 
extinguishes with finality the land claim at issue.

                     Initial Reservation'' Exception



Sec.  292.6  What must be demonstrated to meet 
the ``initial reservation'' exception?

    This section contains criteria for meeting the requirements of 25 
U.S.C. 2719(b)(1)(B)(ii), known as the ``initial reservation'' 
exception. Gaming may occur on newly acquired lands under this exception 
only when all of the following conditions in this section are met:
    (a) The tribe has been acknowledged (federally recognized) through 
the administrative process under part 83 of this chapter.
    (b) The tribe has no gaming facility on newly acquired lands under 
the restored land exception of these regulations.
    (c) The land has been proclaimed to be a reservation under 25 U.S.C. 
467 and is the first proclaimed reservation of the tribe following 
acknowledgment.
    (d) If a tribe does not have a proclaimed reservation on the 
effective date of these regulations, to be proclaimed an initial 
reservation under this exception, the tribe must demonstrate the land is 
located within the State or States where the Indian tribe is now 
located, as evidenced by the tribe's governmental presence and tribal 
population, and within an area where the tribe has significant 
historical connections and one or more of the following modern 
connections to the land:
    (1) The land is near where a significant number of tribal members 
reside; or
    (2) The land is within a 25-mile radius of the tribe's headquarters 
or other tribal governmental facilities that have existed at that 
location for at least 2 years at the time of the application for land-
into-trust; or
    (3) The tribe can demonstrate other factors that establish the 
tribe's current connection to the land.

                       Restored Lands'' Exception



Sec.  292.7  What must be demonstrated to meet 
the ``restored lands'' exception?

    This section contains criteria for meeting the requirements of 25 
U.S.C. 2719(b)(1)(B)(iii), known as the ``restored lands'' exception. 
Gaming may occur on newly acquired lands under this exception only when 
all of the following conditions in this section are met:
    (a) The tribe at one time was federally recognized, as evidenced by 
its meeting the criteria in Sec.  292.8;
    (b) The tribe at some later time lost its government-to-government 
relationship by one of the means specified in Sec.  292.9;
    (c) At a time after the tribe lost its government-to-government 
relationship, the tribe was restored to Federal recognition by one of 
the means specified in Sec.  292.10; and
    (d) The newly acquired lands meet the criteria of ``restored lands'' 
in Sec.  292.11.

[[Page 938]]



Sec.  292.8  How does a tribe qualify as having been federally recognized?

    For a tribe to qualify as having been at one time federally 
recognized for purposes of Sec.  292.7, one of the following must be 
true:
    (a) The United States at one time entered into treaty negotiations 
with the tribe;
    (b) The Department determined that the tribe could organize under 
the Indian Reorganization Act or the Oklahoma Indian Welfare Act;
    (c) Congress enacted legislation specific to, or naming, the tribe 
indicating that a government-to-government relationship existed;
    (d) The United States at one time acquired land for the tribe's 
benefit; or
    (e) Some other evidence demonstrates the existence of a government-
to-government relationship between the tribe and the United States.



Sec.  292.9  How does a tribe show that it lost 
its government-to-government relationship?

    For a tribe to qualify as having lost its government-to-government 
relationship for purposes of Sec.  292.7, it must show that its 
government-to-government relationship was terminated by one of the 
following means:
    (a) Legislative termination;
    (b) Consistent historical written documentation from the Federal 
Government effectively stating that it no longer recognized a 
government-to-government relationship with the tribe or its members or 
taking action to end the government-to-government relationship; or
    (c) Congressional restoration legislation that recognizes the 
existence of the previous government-to-government relationship.



Sec.  292.10  How does a tribe qualify as having been restored 
to Federal recognition?

    For a tribe to qualify as having been restored to Federal 
recognition for purposes of Sec.  292.7, the tribe must show at least 
one of the following:
    (a) Congressional enactment of legislation recognizing, 
acknowledging, affirming, reaffirming, or restoring the government-to-
government relationship between the United States and the tribe 
(required for tribes terminated by Congressional action);
    (b) Recognition through the administrative Federal Acknowledgment 
Process under Sec.  83.8 of this chapter; or
    (c) A Federal court determination in which the United States is a 
party or court-approved settlement agreement entered into by the United 
States.



Sec.  292.11  What are ``restored lands''?

    For newly acquired lands to qualify as ''restored lands'' for 
purposes of Sec.  292.7, the tribe acquiring the lands must meet the 
requirements of paragraph (a), (b), or (c) of this section.
    (a) If the tribe was restored by a Congressional enactment of 
legislation recognizing, acknowledging, affirming, reaffirming, or 
restoring the government-to-government relationship between the United 
States and the tribe, the tribe must show that either:
    (1) The legislation requires or authorizes the Secretary to take 
land into trust for the benefit of the tribe within a specific 
geographic area and the lands are within the specific geographic area; 
or
    (2) If the legislation does not provide a specific geographic area 
for the restoration of lands, the tribe must meet the requirements of 
Sec.  292.12.
    (b) If the tribe is acknowledged under Sec.  83.8 of this chapter, 
it must show that it:
    (1) Meets the requirements of Sec.  292.12; and
    (2) Does not already have an initial reservation proclaimed after 
October 17, 1988.
    (c) If the tribe was restored by a Federal court determination in 
which the United States is a party or by a court-approved settlement 
agreement entered into by the United States, it must meet the 
requirements of Sec.  292.12.



Sec.  292.12  How does a tribe establish connections to newly acquired lands 
for the purposes of the ``restored lands'' exception?

    To establish a connection to the newly acquired lands for purposes 
of Sec.  292.11, the tribe must meet the criteria in this section.
    (a) The newly acquired lands must be located within the State or 
States

[[Page 939]]

where the tribe is now located, as evidenced by the tribe's governmental 
presence and tribal population, and the tribe must demonstrate one or 
more of the following modern connections to the land:
    (1) The land is within reasonable commuting distance of the tribe's 
existing reservation;
    (2) If the tribe has no reservation, the land is near where a 
significant number of tribal members reside;
    (3) The land is within a 25-mile radius of the tribe's headquarters 
or other tribal governmental facilities that have existed at that 
location for at least 2 years at the time of the application for land-
into-trust; or
    (4) Other factors demonstrate the tribe's current connection to the 
land.
    (b) The tribe must demonstrate a significant historical connection 
to the land.
    (c) The tribe must demonstrate a temporal connection between the 
date of the acquisition of the land and the date of the tribe's 
restoration. To demonstrate this connection, the tribe must be able to 
show that either:
    (1) The land is included in the tribe's first request for newly 
acquired lands since the tribe was restored to Federal recognition; or
    (2) The tribe submitted an application to take the land into trust 
within 25 years after the tribe was restored to Federal recognition and 
the tribe is not gaming on other lands.



     Subpart C_Secretarial Determination and Governor's Concurrence



Sec.  292.13  When can a tribe conduct gaming activities 
on newly acquired lands that do not qualify under one of the exceptions 
in subpart B of this part?

    A tribe may conduct gaming on newly acquired lands that do not meet 
the criteria in subpart B of this part only after all of the following 
occur:
    (a) The tribe asks the Secretary in writing to make a Secretarial 
Determination that a gaming establishment on land subject to this part 
is in the best interest of the tribe and its members and not detrimental 
to the surrounding community;
    (b) The Secretary consults with the tribe and appropriate State and 
local officials, including officials of other nearby Indian tribes;
    (c) The Secretary makes a determination that a gaming establishment 
on newly acquired lands would be in the best interest of the tribe and 
its members and would not be detrimental to the surrounding community; 
and
    (d) The Governor of the State in which the gaming establishment is 
located concurs in the Secretary's Determination (25 U.S.C. 
2719(b)(1)(A)).



Sec.  292.14  Where must a tribe file an application 
for a Secretarial Determination?

    A tribe must file its application for a Secretarial Determination 
with the Regional Director of the BIA Regional Office having 
responsibility over the land where the gaming establishment is to be 
located.



Sec.  292.15  May a tribe apply for a Secretarial Determination 
for lands not yet held in trust?

    Yes. A tribe can apply for a Secretarial Determination under Sec.  
292.13 for land not yet held in trust at the same time that it applies 
under part 151 of this chapter to have the land taken into trust.

                          Application Contents



Sec.  292.16  What must an application for a Secretarial Determination contain?

    A tribe's application requesting a Secretarial Determination under 
Sec.  292.13 must include the following information:
    (a) The full name, address, and telephone number of the tribe 
submitting the application;
    (b) A description of the location of the land, including a legal 
description supported by a survey or other document;
    (c) Proof of identity of present ownership and title status of the 
land;
    (d) Distance of the land from the tribe's reservation or trust 
lands, if any, and tribal government headquarters;
    (e) Information required by Sec.  292.17 to assist the Secretary in 
determining

[[Page 940]]

whether the proposed gaming establishment will be in the best interest 
of the tribe and its members;
    (f) Information required by Sec.  292.18 to assist the Secretary in 
determining whether the proposed gaming establishment will not be 
detrimental to the surrounding community;
    (g) The authorizing resolution from the tribe submitting the 
application;
    (h) The tribe's gaming ordinance or resolution approved by the 
National Indian Gaming Commission in accordance with 25 U.S.C. 2710, if 
any;
    (i) The tribe's organic documents, if any;
    (j) The tribe's class III gaming compact with the State where the 
gaming establishment is to be located, if one has been negotiated;
    (k) If the tribe has not negotiated a class III gaming compact with 
the State where the gaming establishment is to be located, the tribe's 
proposed scope of gaming, including the size of the proposed gaming 
establishment; and
    (l) A copy of the existing or proposed management contract required 
to be approved by the National Indian Gaming Commission under 25 U.S.C. 
2711 and part 533 of this title, if any.



Sec.  292.17  How must an application describe the benefits and impacts 
of the proposed gaming establishment to the tribe and its members?

    To satisfy the requirements of Sec.  292.16(e), an application must 
contain:
    (a) Projections of class II and class III gaming income statements, 
balance sheets, fixed assets accounting, and cash flow statements for 
the gaming entity and the tribe;
    (b) Projected tribal employment, job training, and career 
development;
    (c) Projected benefits to the tribe and its members from tourism;
    (d) Projected benefits to the tribe and its members from the 
proposed uses of the increased tribal income;
    (e) Projected benefits to the relationship between the tribe and 
non-Indian communities;
    (f) Possible adverse impacts on the tribe and its members and plans 
for addressing those impacts;
    (g) Distance of the land from the location where the tribe maintains 
core governmental functions;
    (h) Evidence that the tribe owns the land in fee or holds an option 
to acquire the land at the sole discretion of the tribe, or holds other 
contractual rights to cause the lands to be transferred from a third 
party to the tribe or directly to the United States;
    (i) Evidence of significant historical connections, if any, to the 
land; and
    (j) Any other information that may provide a basis for a Secretarial 
Determination that the gaming establishment would be in the best 
interest of the tribe and its members, including copies of any:
    (1) Consulting agreements relating to the proposed gaming 
establishment;
    (2) Financial and loan agreements relating to the proposed gaming 
establishment; and
    (3) Other agreements relative to the purchase, acquisition, 
construction, or financing of the proposed gaming establishment, or the 
acquisition of the land where the gaming establishment will be located.



Sec.  292.18  What information must an application contain 
on detrimental impacts to the surrounding community?

    To satisfy the requirements of Sec.  292.16(f), an application must 
contain the following information on detrimental impacts of the proposed 
gaming establishment:
    (a) Information regarding environmental impacts and plans for 
mitigating adverse impacts, including an Environmental Assessment (EA), 
an Environmental Impact Statement (EIS), or other information required 
by the National Environmental Policy Act (NEPA);
    (b) Anticipated impacts on the social structure, infrastructure, 
services, housing, community character, and land use patterns of the 
surrounding community;
    (c) Anticipated impacts on the economic development, income, and 
employment of the surrounding community;
    (d) Anticipated costs of impacts to the surrounding community and 
identification of sources of revenue to mitigate them;
    (e) Anticipated cost, if any, to the surrounding community of 
treatment

[[Page 941]]

programs for compulsive gambling attributable to the proposed gaming 
establishment;
    (f) If a nearby Indian tribe has a significant historical connection 
to the land, then the impact on that tribe's traditional cultural 
connection to the land; and
    (g) Any other information that may provide a basis for a Secretarial 
Determination whether the proposed gaming establishment would or would 
not be detrimental to the surrounding community, including memoranda of 
understanding and inter-governmental agreements with affected local 
governments.

                              Consultation



Sec.  292.19  How will the Regional Director conduct the consultation process?

    (a) The Regional Director will send a letter that meets the 
requirements in Sec.  292.20 and that solicits comments within a 60-day 
period from:
    (1) Appropriate State and local officials; and
    (2) Officials of nearby Indian tribes.
    (b) Upon written request, the Regional Director may extend the 60-
day comment period for an additional 30 days.
    (c) After the close of the consultation period, the Regional 
Director must:
    (1) Provide a copy of all comments received during the consultation 
process to the applicant tribe; and
    (2) Allow the tribe to address or resolve any issues raised in the 
comments.
    (d) The applicant tribe must submit written responses, if any, to 
the Regional Director within 60 days of receipt of the consultation 
comments.
    (e) On written request from the applicant tribe, the Regional 
Director may extend the 60-day comment period in paragraph (d) of this 
section for an additional 30 days.



Sec.  292.20  What information must the consultation letter include?

    (a) The consultation letter required by Sec.  292.19(a) must:
    (1) Describe or show the location of the proposed gaming 
establishment;
    (2) Provide information on the proposed scope of gaming; and
    (3) Include other information that may be relevant to a specific 
proposal, such as the size of the proposed gaming establishment, if 
known.
    (b) The consultation letter must include a request to the recipients 
to submit comments, if any, on the following areas within 60 days of 
receiving the letter:
    (1) Information regarding environmental impacts on the surrounding 
community and plans for mitigating adverse impacts;
    (2) Anticipated impacts on the social structure, infrastructure, 
services, housing, community character, and land use patterns of the 
surrounding community;
    (3) Anticipated impact on the economic development, income, and 
employment of the surrounding community;
    (4) Anticipated costs of impacts to the surrounding community and 
identification of sources of revenue to mitigate them;
    (5) Anticipated costs, if any, to the surrounding community of 
treatment programs for compulsive gambling attributable to the proposed 
gaming establishment; and
    (6) Any other information that may assist the Secretary in 
determining whether the proposed gaming establishment would or would not 
be detrimental to the surrounding community.

                       Evaluation and Concurrence



Sec.  292.21  How will the Secretary evaluate a proposed gaming establishment?

    (a) The Secretary will consider all the information submitted under 
Sec. Sec.  292.16-292.19 in evaluating whether the proposed gaming 
establishment is in the best interest of the tribe and its members and 
whether it would or would not be detrimental to the surrounding 
community.
    (b) If the Secretary makes an unfavorable Secretarial Determination, 
the Secretary will inform the tribe that its application has been 
disapproved, and set forth the reasons for the disapproval.
    (c) If the Secretary makes a favorable Secretarial Determination, 
the Secretary will proceed under Sec.  292.22.

[[Page 942]]



Sec.  292.22  How does the Secretary request the Governor's concurrence?

    If the Secretary makes a favorable Secretarial Determination, the 
Secretary will send to the Governor of the State:
    (a) A written notification of the Secretarial Determination and 
Findings of Fact supporting the determination;
    (b) A copy of the entire application record; and
    (c) A request for the Governor's concurrence in the Secretarial 
Determination.



Sec.  292.23  What happens if the Governor does not affirmatively concur 
with the Secretarial Determination?

    (a) If the Governor provides a written non-concurrence with the 
Secretarial Determination:
    (1) The applicant tribe may use the newly acquired lands only for 
non-gaming purposes; and
    (2) If a notice of intent to take the land into trust has been 
issued, then the Secretary will withdraw that notice pending a revised 
application for a non-gaming purpose.
    (b) If the Governor does not affirmatively concur in the Secretarial 
Determination within one year of the date of the request, the Secretary 
may, at the request of the applicant tribe or the Governor, grant an 
extension of up to 180 days.
    (c) If no extension is granted or if the Governor does not respond 
during the extension period, the Secretarial Determination will no 
longer be valid.



Sec.  292.24  Can the public review the Secretarial Determination?

    Subject to restrictions on disclosure required by the Freedom of 
Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), and the 
Trade Secrets Act (18 U.S.C. 1905), the Secretarial Determination and 
the supporting documents will be available for review at the local BIA 
agency or Regional Office having administrative jurisdiction over the 
land.

                         Information Collection



Sec.  292.25  Do information collections in this part have 
Office of Management and Budget approval?

    The information collection requirements in Sec. Sec.  292.16, 
292.17, and 292.18 have been approved by the Office of Management and 
Budget (OMB). The information collection control number is 1076-0158. A 
Federal agency may not collect or sponsor and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control.



                     Subpart D_Effect of Regulations



Sec.  292.26  What effect do these regulations have on pending applications, 
final agency decisions, and opinions already issued?

    These regulations apply to all requests pursuant to 25 U.S.C. 2719, 
except:
    (a) These regulations do not alter final agency decisions made 
pursuant to 25 U.S.C. 2719 before the date of enactment of these 
regulations.
    (b) These regulations apply to final agency action taken after the 
effective date of these regulations except that these regulations shall 
not apply to applicable agency actions when, before the effective date 
of these regulations, the Department or the National Indian Gaming 
Commission (NIGC) issued a written opinion regarding the applicability 
of 25 U.S.C. 2719 for land to be used for a particular gaming 
establishment, provided that the Department or the NIGC retains full 
discretion to qualify, withdraw or modify such opinions.



PART 293_CLASS III TRIBAL STATE GAMING COMPACT PROCESS--Table of Contents



Sec.
293.1 What is the purpose of this part?
293.2 How are key terms defined in this part?
293.3 What authority does the Secretary have to approve or disapprove 
          compacts and amendments?
293.4 Are compacts and amendments subject to review and approval?
293.5 Are extensions to compacts subject to review and approval?

[[Page 943]]

293.6 Who can submit a compact or amendment?
293.7 When should the Indian tribe or State submit a compact or 
          amendment for review and approval?
293.8 What documents must be submitted with a compact or amendment?
293.9 Where should a compact or amendment be submitted for review and 
          approval?
293.10 How long will the Secretary take to review a compact or 
          amendment?
293.11 When will the 45-day timeline begin?
293.12 What happens if the Secretary does not act on the compact or 
          amendment within the 45-day review period?
293.13 Who can withdraw a compact or amendment after it has been 
          received by the Secretary?
293.14 When may the Secretary disapprove a compact or amendment?
293.15 When does an approved or considered-to-have-been-approved compact 
          or amendment take effect?
293.16 How does the Paperwork Reduction Act affect this part?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 2710.

    Source: 73 FR 74009, Dec. 5, 2008, unless otherwise noted.



Sec.  293.1  What is the purpose of this part?

    This part contains procedures that:
    (a) Indian tribes and States must use when submitting Tribal-State 
compacts and compact amendments to the Department of the Interior; and
    (b) The Secretary will use for reviewing such Tribal-State compacts 
or compact amendments.



Sec.  293.2  How are key terms defined in this part?

    (a) For purposes of this part, all terms have the same meaning as 
set forth in the definitional section of the Indian Gaming Regulatory 
Act of 1988, 25 U.S.C. 2703 and any amendments thereto.
    (b) As used in this part:
    (1) Amendment means an amendment to a class III Tribal-State gaming 
compact.
    (2) Compact or Tribal-State Gaming Compact means an 
intergovernmental agreement executed between Tribal and State 
governments under the Indian Gaming Regulatory Act that establishes 
between the parties the terms and conditions for the operation and 
regulation of the tribe's Class III gaming activities.
    (3) Extensions means changes to the timeframe of the compacts or 
amendments.



Sec.  293.3  What authority does the Secretary have to approve 
or disapprove compacts and amendments?

    The Secretary has the authority to approve compacts or amendments 
``entered into'' by an Indian tribe and a State, as evidenced by the 
appropriate signature of both parties. See Sec.  293.14 for the 
Secretary's authority to disapprove compacts or amendments.



Sec.  293.4  Are compacts and amendments subject to review and approval?

    (a) Compacts are subject to review and approval by the Secretary.
    (b) All amendments, regardless of whether they are substantive 
amendments or technical amendments, are subject to review and approval 
by the Secretary.



Sec.  293.5  Are extensions to compacts subject to review and approval?

    No. Approval of an extension is not required if the extension of the 
compact does not include any amendment to the terms of the compact. 
However, the tribe must submit the extension executed by both the tribe 
and the State along with the documents required under paragraphs (b) and 
(c) of Sec.  293.8.



Sec.  293.6  Who can submit a compact or amendment?

    Either party (Indian tribe or State) to a compact or amendment can 
submit the compact or amendment to the Secretary for review and 
approval.



Sec.  293.7  When should the Indian Tribe or State submit a compact 
or amendment for review and approval?

    The Indian tribe or State should submit the compact or amendment 
after it has been legally entered into by both parties.



Sec.  293.8  What documents must be submitted with a compact or amendment?

    Documentation submitted with a compact or amendment must include:

[[Page 944]]

    (a) At least one original compact or amendment executed by both the 
tribe and the State;
    (b) A tribal resolution or other document, including the date and 
place of adoption and the result of any vote taken, that certifies that 
the tribe has approved the compact or amendment in accordance with 
applicable tribal law;
    (c) Certification from the Governor or other representative of the 
State that he or she is authorized under State law to enter into the 
compact or amendment;
    (d) Any other documentation requested by the Secretary that is 
necessary to determine whether to approve or disapprove the compact or 
amendment.



Sec.  293.9  Where should a compact or amendment be submitted 
for review and approval?

    Submit compacts and amendments to the Director, Office of Indian 
Gaming, U.S. Department of the Interior, 1849 C Street, NW., Mail Stop 
3657, Main Interior Building, Washington, DC 20240. If this address 
changes, a notice with the new address will be published in the Federal 
Register within 5 business days.



Sec.  293.10  How long will the Secretary take to review a compact 
or amendment?

    (a) The Secretary must approve or disapprove a compact or amendment 
within 45 calendar days after receiving the compact or amendment.
    (b) The Secretary will notify the Indian tribe and the State in 
writing of the decision to approve or disapprove a compact or amendment.



Sec.  293.11  When will the 45-day timeline begin?

    The 45-day timeline will begin when a compact or amendment is 
received and date stamped in the Office of Indian Gaming at the address 
listed in Sec.  293.9.



Sec.  293.12  What happens if the Secretary does not act on the compact 
or amendment within the 45-day review period?

    If the Secretary neither affirmatively approves nor disapproves a 
compact or amendment within the 45-day review period, the compact or 
amendment is considered to have been approved, but only to the extent it 
complies with the provisions of the Indian Gaming Regulatory Act.



Sec.  293.13  Who can withdraw a compact or amendment after it has been 
received by the Secretary?

    To withdraw a compact or amendment after it has been received by the 
Secretary, the Indian tribe and State must submit a written request to 
the Director, Office of Indian Gaming at the address listed in Sec.  
293.9.



Sec.  293.14  When may the Secretary disapprove a compact or amendment?

    The Secretary may disapprove a compact or amendment only if it 
violates:
    (a) Any provision of the Indian Gaming Regulatory Act;
    (b) Any other provision of Federal law that does not relate to 
jurisdiction over gaming on Indian lands; or
    (c) The trust obligations of the United States to Indians.



Sec.  293.15  When does an approved or considered-to-have-been-approved 
compact or amendment take effect?

    (a) An approved or considered-to-have-been-approved compact or 
amendment takes effect on the date that notice of its approval is 
published in the Federal Register.
    (b) The notice of approval must be published in the Federal Register 
within 90 days from the date the compact or amendment is received by the 
Office of Indian Gaming.



Sec.  293.16  How does the Paperwork Reduction Act affect this part?

    The information collection requirements contained in this part have 
been approved by the OMB under the Paperwork Reduction Act of 1995, 44 
U.S.C. 3507(d), and assigned control number 1076-0172. A Federal agency 
may not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

                        PARTS 294	299 [RESERVED]

[[Page 945]]



                  SUBCHAPTER O_MISCELLANEOUS [RESERVED]





Sec. 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.
 Do................................  *Sac and Fox.........    2607  May 4, 1917..........   Do.
 Do................................  ......do.............    4571  Jan. 24, 1927........   Do.
 Do................................  ......do.............    5768  Dec. 30, 1931........   Do.

[[Page 946]]

 
 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.
 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.

[[Page 947]]

 
 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.
 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.

[[Page 948]]

 
 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 
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 949]]



                              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

[[Page 951]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2019)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 952]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   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  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 953]]

    XXVIII  Department of Justice (Parts 3800--3899)
      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 (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 954]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Part 10101)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         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 Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       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)

[[Page 955]]

        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)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      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 Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     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)

[[Page 956]]

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 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, 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)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      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  (Parts 500--599) [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)

[[Page 957]]

       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      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)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    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--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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 Industry and Security, 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  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)

[[Page 958]]

      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       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) [Reserved]

                    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  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

                     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)

[[Page 959]]

        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, 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 (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (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  Millennium Challenge Corporation (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)

[[Page 960]]

        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)

                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)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         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, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 961]]

                           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--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       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--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       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)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            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)

[[Page 962]]

        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  Employee Benefits Security 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)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)

[[Page 963]]

      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      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)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       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)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (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)

[[Page 964]]

        IV  Office of Career, Technical and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             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)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

[[Page 965]]

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            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 Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       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)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)

[[Page 966]]

       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   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 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (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 
                (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)

[[Page 967]]

         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)
        IX  Denali Commission (Parts 900--999)
         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  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, 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 of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      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 Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        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)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

[[Page 968]]

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, 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)
        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  Broadcasting Board of Governors (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)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        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) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

[[Page 969]]

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (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 (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   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)

[[Page 971]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2019)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 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
  Food and Nutrition 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
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  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 of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 972]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense Contract Audit Agency                     32, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 973]]

  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       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
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 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
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  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
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, 2

[[Page 974]]

  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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
Federal Claims Collection Standards               31, IX
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                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
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
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition 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 Services Administration                   5, LVII; 41, 105

[[Page 975]]

  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  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
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  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
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 976]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
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, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Enforcement Bureau, Bureau of        30, II
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
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
Investment Security, Office of                    31, VIII
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 of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Employee Benefits Security Administration       29, XXV
  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
[[Page 977]]

  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VII
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 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                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI

[[Page 978]]

National Security Council and Office of Science   47, II
     and Technology Policy
National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 5, IV; 45, 
                                                  VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
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
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
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
Safety and Environmental Enforcement, Bureau of   30, II
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                5, XXXIV; 17, II

[[Page 979]]

Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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
State, Department of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X;5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
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
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 981]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2014 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2014

25 CFR
                                                                   79 FR
                                                                    Page
Chapter I
23 Nomenclature changes............................................27190
23.11 (c)(1) revised...............................................27190
151.1 Revised......................................................76897

                                  2015

25 CFR
                                                                   80 FR
                                                                    Page
Chapter I
81 Revised.........................................................63106
82 Removed.........................................................63115
83 Policy statement................................................37538
    Revised; eff. 7-31-15..........................................37887
169 Revised........................................................72534
    Regulation at 80 FR 72534 eff. date extended to 3-21-16........79258
169.7 Amended......................................................79258
226 Revised........................................................27018
256 Revised........................................................69596

                                  2016

25 CFR
                                                                   81 FR
                                                                    Page
Chapter I
11.100 (d) added; interim..........................................74677
20.325 (a) revised; interim; eff. 4-15-16..........................10477
    Regulation at 81 FR 10477 confirmed............................26692
23 Training sessions...............................................47288
23.2 Amended.......................................................38864
23.11 Revised......................................................38866
23.71 Revised......................................................38867
23.101--23.144 (Subpart I) Added...................................38867
41 Revised.........................................................38587
140 Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
140.3 Amended; interim.............................................42481
    Regulation at 81 FR 42481 confirmed............................86953
141 Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
141.50 Amended; interim............................................42481
    Regulation at 81 FR 42481 confirmed............................86953
151.13 Revised; interim; eff. 4-15-16..............................10479
    Regulation at 81 FR 19468 eff. date delayed....................22183
    Regulation at 81 FR 10479 confirmed; revised...................30177
169 Policy statement...............................................19877
169.7 Amended......................................................14976
170 Revised........................................................78463
211 Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
211.55 (a) amended; interim........................................42481

[[Page 982]]

    Regulation at 81 FR 42481 confirmed............................86953
213 Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
213.37 Amended; interim............................................42481
    Regulation at 81 FR 42481 confirmed............................86953
225 Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
225.37 (a) amended; interim........................................42481
    Regulation at 81 FR 42481 confirmed............................86953
226 Revised........................................................39573
    Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
226.42 Amended; interim............................................42481
    Regulation at 81 FR 42481 confirmed............................86953
226.43 Amended; (e), (f) and (g) amended; interim..................42481
    Regulation at 81 FR 42481 confirmed............................86953
227 Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
227.24 Amended; interim............................................42481
    Regulation at 81 FR 42481 confirmed............................86953
243 Authority citation revised.....................................42481
    Regulation at 81 FR 42481 confirmed............................86953
243.8 (a) amended; interim.........................................42482
    Regulation at 81 FR 42482 confirmed............................86953
249 Authority citation revised.....................................42482
    Regulation at 81 FR 42482 confirmed............................86953
249.6 (b) amended; interim.........................................42482
    Regulation at 81 FR 42482 confirmed............................86953

                                  2017

25 CFR
                                                                   82 FR
                                                                    Page
Chapter I
Policy statement...................................................50532
11 Policy statement................................................61450
11.100 Regulation at 81 FR 74677 confirmed.........................61450
140 Authority citation revised......................................7652
140.3 Amended.......................................................7652
141 Authority citation revised......................................7652
141.50 Amended......................................................7652
211 Authority citation revised......................................7652
211.55 (a) amended..................................................7652
213 Authority citation revised......................................7652
213.37 Amended......................................................7652
225 Authority citation revised......................................7652
225.37 (a) amended..................................................7652
226 Authority citation revised......................................7653
226.42 Amended......................................................7653
226.43 Amended; (e), (f) and (g) amended............................7653
227 Authority citation revised......................................7653
227.24 Amended......................................................7653
243 Authority citation revised......................................7653
243.8 (a) introductory text amended.................................7653
249 Authority citation revised......................................7653
249.6 (b) amended...................................................7653

                                  2018

25 CFR
                                                                   83 FR
                                                                    Page
Chapter I
23.11 (b)(2) and (7) revised.......................................55268
23.140 (a) introductory text revised...............................55269
83.20 Revised......................................................33826
140.3 Amended.......................................................5195
141.50 Amended......................................................5195
170.443 Regulation at 82 FR 50313 confirmed.........................8610
175 Revised........................................................61119
211.55 (a) amended..................................................5195
213.37 Amended......................................................5195
225.37 (a) amended..................................................5195
226.42 Amended......................................................5195
226.43 (e), (f), (g) and section amended............................5195
227.24 Amended......................................................5195
243.8 (a) introductory text amended.................................5195
249.6 (b) amended...................................................5195

                                  2019

 (No regulations published from January 1, 2019, through April 1, 2019)


                                  [all]