[Title 25 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2024 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 25
Indians
________________________
Parts 1 to 299
Revised as of April 1, 2024
Containing a codification of documents of general
applicability and future effect
As of April 1, 2024
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........................ 1003
Alphabetical List of Agencies Appearing in the CFR...... 1023
List of CFR Sections Affected........................... 1033
[[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
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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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
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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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
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``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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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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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
April 1, 2024
[[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, 2024.
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)
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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 decisions....... 10
5 Preference in employment.................... 29
SUBCHAPTER B--LAW AND ORDER
10 Indian country detention facilities and
programs................................ 31
11 Courts of Indian offenses and law and order
code.................................... 33
12 Indian country law enforcement.............. 72
13 Tribal reassumption of jurisdiction over
child custody proceedings............... 77
SUBCHAPTER C--PROBATE
15 Probate of Indian estates, except for
members of the Osage Nation and the Five
Civilized Tribes........................ 81
16 Estates of Indians of the Five Civilized
Tribes.................................. 92
17 Action on wills of Osage Indians............ 94
18 Tribal probate codes........................ 96
SUBCHAPTER D--HUMAN SERVICES
20 Financial assistance and social services
programs................................ 102
23 Indian Child Welfare Act.................... 123
26 Job placement and training program.......... 158
SUBCHAPTER E--EDUCATION
30 Standards, assessments, and accountability
system.................................. 165
31 Federal schools for Indians................. 182
32 Indian education policies................... 183
33 Transfer of Indian education functions...... 188
36 Minimum academic standards for the basic
education of Indian children and
national criteria for dormitory
situations.............................. 190
37 Geographic boundaries....................... 210
[[Page 4]]
38 Education personnel......................... 212
39 The Indian school equalization program...... 226
40 Administration of educational loans, grants
and other assistance for higher
education............................... 251
41 Grants to tribal colleges and universities
and Din[eacute] College................. 252
42 Student rights.............................. 260
43 Maintenance and control of student records
in Bureau schools....................... 263
44 Grants under the Tribally Controlled Schools
Act..................................... 269
46 Adult Education Program..................... 271
47 Uniform direct funding and support for
Bureau-operated schools................. 273
48 Leases of land or facilities of Bureau-
operated schools and fundraising
activities at Bureau-operated schools... 276
SUBCHAPTER F--TRIBAL GOVERNMENT
61 Preparation of rolls of Indians............. 284
62 Enrollment appeals.......................... 295
63 Indian child protection and family violence
prevention.............................. 298
67 Preparation of a roll of independent
Seminole Indians of Florida............. 307
75 Revision of the membership roll of the
Eastern Band of Cherokee Indians, North
Carolina................................ 311
81 Secretarial election procedures............. 316
82
[Reserved]
83 Procedures for Federal acknowledgment of
Indian tribes........................... 331
84 Encumbrances of tribal land--Contract
approvals............................... 345
87 Use or distribution of Indian judgment funds 347
88 Recognition of attorneys and agents to
represent claimants..................... 352
89 Attorney contracts with Indian tribes....... 353
90 Election of officers of the Osage Tribe..... 355
91 Government of Indian villages, Osage
Reservation, Oklahoma................... 356
SUBCHAPTER G--FINANCIAL ACTIVITIES
101 Loans to Indians from the Revolving Loan
Fund.................................... 361
103 Loan guaranty, insurance, and interest
subsidy................................. 372
111 Annuity and other per capita payments....... 389
114
Special deposits [Reserved]
115 Trust funds for tribes and individual
Indians................................. 390
[[Page 5]]
117 Deposit and expenditure of individual funds
of members of the Osage Tribe of Indians
who do not have certificates of
competency.............................. 415
122 Management of Osage judgment funds for
education............................... 423
124 Deposits of proceeds from lands withdrawn
for Native selection.................... 425
134 Partial payment construction charges on
Indian irrigation projects.............. 426
135 Construction assessments, Crow Indian
irrigation project...................... 428
136 Fort Hall Indian irrigation project, Idaho.. 430
137 Reimbursement of construction costs, San
Carlos Indian irrigation project,
Arizona................................. 430
138 Reimbursement of construction costs, Ahtanum
Unit, Wapato Indian irrigation project,
Washington.............................. 432
139 Reimbursement of construction costs, Wapato-
Satus Unit, Wapato Indian irrigation
project, Washington..................... 433
140 Licensed Indian traders..................... 434
141 Business practices on the Navajo, Hopi and
Zuni Reservations....................... 439
142 Alaska Resupply Operation................... 453
143 Charges for goods and services provided to
non-Federal users....................... 456
SUBCHAPTER H--LAND AND WATER
150 Record of title to Indian land.............. 459
151 Land acquisitions........................... 464
152 Issuance of patents in fee, certificates of
competency, removal of restrictions, and
sale of certain Indian lands............ 475
153 Determination of competency: Crow Indians... 483
158 Osage lands................................. 484
159 Sale of irrigable lands, special water
contract requirements................... 486
160 Inclusion of liens in all patents and
instruments executed.................... 486
161 Navajo partitioned lands grazing permits.... 487
162 Leases and permits.......................... 503
163 General forestry regulations................ 597
166 Grazing permits............................. 624
167 Navajo grazing regulations.................. 656
168 Grazing regulations for the Hopi Partitioned
Lands area.............................. 661
169 Rights-of-way over Indian lands............. 667
[[Page 6]]
170 Tribal Transportation Program............... 694
171 Irrigation operation and maintenance........ 743
172 Pueblo Indian lands benefited by irrigation
and drainage works of Middle Rio Grande
Conservancy District, New Mexico........ 753
173 Concessions, permits and leases on lands
withdrawn or acquired in connection with
Indian irrigation projects.............. 753
175 Electric power utilities.................... 757
179 Life estates and future interests........... 762
181 Indian Highway Safety Program............... 764
183 Use and distribution of the San Carlos
Apache Tribe Development Trust Fund and
San Carlos Apache Tribe Lease Fund...... 765
SUBCHAPTER I--ENERGY AND MINERALS
200 Terms and conditions: Coal leases........... 770
211 Leasing of tribal lands for mineral
development............................. 770
212 Leasing of allotted lands for mineral
development............................. 785
213 Leasing of restricted lands of members of
Five Civilized Tribes, Oklahoma, for
mining.................................. 793
214 Leasing of Osage Reservation lands,
Oklahoma, for mining, except oil and gas 806
215 Lead and zinc mining operations and leases,
Quapaw Agency........................... 812
216 Surface exploration, mining, and reclamation
of lands................................ 820
217 Management of tribal assets of Ute Indian
Tribe, Uintah and Ouray Reservation,
Utah, by the tribe and the Ute
Distribution Corp....................... 826
224 Tribal energy resource agreements under the
Indian Tribal Energy Development and
Self Determination Act.................. 827
225 Oil and gas, geothermal, and solid minerals
agreements.............................. 855
226 Leasing of Osage Reservation lands for oil
and gas mining.......................... 865
227 Leasing of certain lands in Wind River
Indian Reservation, Wyoming, for oil and
gas mining.............................. 881
SUBCHAPTER J--FISH AND WILDLIFE
241 Indian fishing in Alaska.................... 890
242 Commercial fishing on Red Lake Indian
Reservation............................. 893
243 Reindeer in Alaska.......................... 894
247 Use of Columbia River Treaty fishing access
sites................................... 897
248 Use of Columbia River Indian in-lieu fishing
sites................................... 901
[[Page 7]]
249 Off-reservation treaty fishing.............. 903
SUBCHAPTER K--HOUSING
256 Housing Improvement Program (HIP)........... 907
SUBCHAPTER L--HERITAGE PRESERVATION
262 Protection of archaeological resources...... 916
265 Establishment of roadless and wild areas on
Indian reservations..................... 921
SUBCHAPTER M--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
PROGRAM
273 Education contracts under Johnson-O'Malley
Act..................................... 922
275 Staffing.................................... 941
276 Uniform administrative requirements for
grants.................................. 942
SUBCHAPTER N--ECONOMIC ENTERPRISES
286 Indian Business Development Program......... 966
290 Tribal revenue allocation plans............. 971
291 Class III gaming procedures................. 975
292 Gaming on trust lands acquired after October
17, 1988................................ 979
293 Class III tribal-state gaming compacts...... 987
294-299
[Reserved]
SUBCHAPTER O--MISCELLANEOUS [RESERVED]
Appendix to Chapter I--Extension of the Trust or Restricted
Status of Certain Indian Lands............................ 995
[[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 DECISIONS--Table of Contents
Subpart A_Purpose, Definitions, and Scope of this Part
Sec.
2.100 What is the purpose of this part?
2.101 What terms do I need to know?
2.102 What may I appeal under this part?
2.103 Are all appeals subject to this part?
2.104 How will I know what decisions are appealable under this part?
2.105 Who will receive notice of decisions that are appealable under
this part?
2.106 How does this part comply with the Paperwork Reduction Act?
Subpart B_Appealing Administrative Decisions
2.200 Who may appeal a decision?
2.201 Do I need a lawyer in order to file a document in an appeal?
2.202 Who decides administrative appeals?
2.203 How long do I have to file an appeal?
2.204 Will the reviewing official grant a request for an extension of
time to file a Notice of Appeal?
2.205 How do I file a Notice of Appeal?
2.206 What must I include in my Notice of Appeal?
2.207 Do I have to send the Notice of Appeal to anyone other than the
reviewing official?
2.208 What must I file in addition to the Notice of Appeal?
2.209 Who may file a response to the statement of reasons?
2.210 How long does the decision-maker or an interested party have to
file a response?
2.211 What must a response to the statement of reasons include?
2.212 Will the reviewing official accept additional briefings?
2.213 What role does the decision-maker have in the appeal process?
2.214 What requirements apply to my submission of documents?
Subpart C_Effectiveness and Finality of Decisions
2.300 When is a decision effective?
2.301 When is a decision a final agency action?
Subpart D_Appeal Bonds
2.400 When may the reviewing official require an appeal bond?
2.401 How will the reviewing official determine whether to require an
appeal bond?
2.402 What form of appeal bond will the reviewing official accept?
2.403 May I appeal the decision whether to require an appeal bond?
2.404 What will happen to my appeal if I fail to post a required appeal
bond?
2.405 How will the reviewing official notify interested parties of the
decision on a request for an appeals bond?
Subpart E_Deciding Appeals
2.500 May an appeal be consolidated with other appeals?
2.501 May an appealed decision be partially implemented?
2.502 May I withdraw my appeal once it has been filed?
2.503 May an appeal be dismissed without a decision on the merits?
2.504 What information will the reviewing official consider?
2.505 When will the reviewing official issue a decision on an appeal?
2.506 How does the reviewing official notify the appellant and other
interested parties of a decision?
2.507 How do I appeal a reviewing official's decision?
2.508 May the AS-IA take jurisdiction over an appeal to the IBIA?
2.509 May I ask the AS-IA to take jurisdiction over my appeal?
2.510 How will the AS-IA handle my appeal?
2.511 May the Secretary decide an appeal?
2.512 May the Director of the Office of Hearings and Appeals take
jurisdiction over a matter?
Subpart F_Appealing Inaction of an Agency Official
2.600 May I compel an agency official to take action?
2.601 When must a decision-maker respond to a request to act?
2.602 What may I do if the decision-maker fails to respond?
2.603 How do I submit an appeal of inaction?
2.604 What will the next official in the decision-maker's chain of
command do in response to my appeal?
2.605 May I appeal continued inaction by the decision-maker or the next
official in the decision-maker's chain of command?
2.606 May I appeal inaction by a reviewing official on an appeal from a
decision?
2.607 What happens if no official responds to my requests under this
subpart?
Subpart G_Special Rules Regarding Recognition of Tribal Representatives
2.700 What is the purpose of this subpart?
[[Page 11]]
2.701 May a Local Bureau Official's decision to recognize, or decline to
recognize, a Tribal representative be appealed?
2.702 How will I know what decisions are appealable under this subpart?
2.703 How do I file a Notice of Appeal of a Tribal representative
recognition decision?
2.704 How long do I have to file an appeal of a Tribal representative
recognition decision?
2.705 Is there anything else I must file?
2.706 When must I file my statement of reasons?
2.707 May the LBO and interested parties file a response to the
statement of reasons?
2.708 How long do interested parties have to file a response?
2.709 What will the LBO do in response to my appeal?
2.710 When will the reviewing official decide a Tribal representative
recognition appeal?
2.711 May the decision deadline be extended?
2.712 May the AS-IA take jurisdiction over the appeal?
2.713 May I ask the AS-IA to take jurisdiction over the appeal?
2.714 May the reviewing official's decision on Tribal representative
recognition be appealed?
Subpart H_Appeals of Bureau of Trust Funds Administration Statements of
Performance
2.800 What is the purpose of this subpart?
2.801 What terms do I need to know for this subpart?
2.802 What must I do if I want to challenge the accuracy of activity
within a Statement of Performance?
2.803 Is every account holder allowed to challenge the accuracy of
activity within a Statement of Performance?
2.804 May I challenge the underlying action that generated the proceeds
deposited into my account under this subpart?
2.805 May I challenge anything other than the activity in the account
under this subpart?
2.806 What must my Objection to the Statement of Performance contain?
2.807 What must my Basis of Objection contain?
2.808 To whom must I submit my Objection to the Statement of
Performance?
2.809 When must I submit my Objection to the Statement of Performance?
2.810 Will the decision-maker acknowledge receipt of my Objection to the
Statement of Performance?
2.811 May I request an extension of time to submit my Objection to the
Statement of Performance?
2.812 May I appeal the denial of my request for an extension of time?
2.813 If I fail to submit either an Objection to the Statement of
Performance or the Basis of Objection within the applicable
deadlines, what is the consequence?
2.814 How long will the decision-maker have to issue a Decision on my
Objection to the Statement of Performance?
2.815 What information will the Decision on my Objection to the
Statement of Performance contain?
2.816 May I appeal the Decision on my Objection to the Statement of
Performance?
2.817 What must my Appeal of the Decision on the Objection to the
Statement of Performance contain?
2.818 To whom must I submit my Appeal of a Decision on my Objection to
the Statement of Performance?
2.819 When must my Appeal be filed?
2.820 May I submit any other documents in support of my Appeal?
2.821 May I request an extension of time to submit my Appeal?
2.822 What happens if I do not submit my Appeal within the 30-day
deadline?
2.823 When will the reviewing official issue the BTFA's ruling?
2.824 May I appeal the BTFA's ruling?
2.825 When does the Statement of Performance or a Decision become final?
Subpart I_Alternative Dispute Resolution
2.900 Is there a procedure other than a formal appeal for resolving
disputes?
2.901 How do I request alternative dispute resolution?
2.902 When do I initiate alternative dispute resolution?
2.903 What will Indian Affairs do if I request alternative dispute
resolution?
Authority: 43 U.S.C. 1457; 25 U.S.C. 9; 5 U.S.C. 301.
Source: 88 FR 53779, Aug. 9, 2023, unless otherwise noted.
Subpart A_Purpose, Definitions, and Scope of this Part
Sec. 2.100 What is the purpose of this part?
If you are adversely affected by certain decisions of a Bureau of
Indian Affairs (Bureau) official, you can challenge (appeal) that
decision to a higher authority within the Department of the Interior
(Department) by following the procedures in this part. Except as
otherwise provided in this part or in other applicable laws and
regulations,
[[Page 12]]
you must exhaust the appeal mechanisms available under this part before
you can seek review in a Federal district court under the Administrative
Procedure Act (5 U.S.C. 704).
Sec. 2.101 What terms do I need to know?
Administrative record means all documents and materials that were
considered directly or indirectly, or were presented for consideration,
in the course of making the decision that is the subject of the appeal.
Adversely affected means the decision on appeal has caused or is
likely to cause injury to a legally protected interest.
Agency means the Department of the Interior, inclusive of all its
offices and bureaus.
Appeal means:
(1) A written request for administrative review of a decision-
maker's decision or inaction that is claimed to adversely affect the
interested party making the request; or
(2) The process you must follow when you seek administrative review
of a decision-maker's decision or inaction.
Appellant means the person or entity who files an appeal.
AS-IA means the Assistant Secretary--Indian Affairs, Department of
the Interior. AS-IA also means the Principal Deputy Assistant
Secretary--Indian Affairs or other official delegated the authority of
the AS-IA when the office of the AS-IA is vacant, when the AS-IA is
unable to perform the functions of the office, or when the AS-IA is
recused from the matter.
BIA means the Bureau of Indian Affairs.
BIE means the Bureau of Indian Education.
BTFA means the Bureau of Trust Funds Administration.
Days mean calendar days, unless otherwise provided. Days during
which the agency is closed because of a lapse in appropriations do not
count as days for purposes of calculating deadlines for actions by
Federal officials under this part.
Decision means an agency action that permits, approves, or grants
permission, requires compliance, or grants or denies requested relief.
Decision-maker means the Indian Affairs official whose decision or
inaction is being appealed.
Effective means that the decision will be implemented by the
Department.
Final agency action means a decision that represents the
consummation of the agency's decision-making process and is subject to
judicial review under 5 U.S.C. 704. Final agency actions are immediately
effective unless the decision provides otherwise.
IBIA means the Interior Board of Indian Appeals within the Office of
Hearings and Appeals.
IED means the Office of Indian Economic Development.
Indian Affairs means all offices and personnel subject to the
authority of the AS-IA.
Interested party means a person or entity whose legally protected
interests are adversely affected by the decision on appeal or may be
adversely affected by the decision of the reviewing official.
Local Bureau Official (``LBO'') means the Superintendent, Field
Representative, or other BIA official who serves as the primary point of
contact between BIA and a Tribe or individual Indian.
Notice of Appeal (``NOA'') means a written document that an
appellant files with the reviewing official and serves on the decision-
maker and interested parties.
OIG means the Office of Indian Gaming.
OJS means the Office of Justice Services.
OSG means the Office of Self Governance.
Participant means the appellant, any interested party who files a
response as provided for in Sec. 2.209, and any Tribe that is an
interested party.
Person means an individual human being or other entity.
Reviewing official means an Indian Affairs official who is
authorized to review and issue decisions on appeals filed under this
part, and the IBIA, unless otherwise provided in this part.
Trust Asset means trust lands, natural resources, trust funds, or
other assets held by the Federal Government in trust for Indian Tribes
and individual Indians.
[[Page 13]]
We, us, and our, mean the officers and employees of Indian Affairs.
You (in the text of each section) and I (in the section headings)
mean an interested party who is considering, pursuing, or participating
in an administrative appeal as provided for in this part.
Sec. 2.102 What may I appeal under this part?
(a) Subject to the exceptions in this part and other applicable law
or regulation, you may appeal:
(1) Any discrete, written decision made by a decision-maker that
adversely affects you, including a determination by the decision-maker
that she or he lacks either the duty or authority to take the action
that you have requested; and
(2) Inaction by Indian Affairs officials by following the procedures
in subpart F of this part.
(b) You may not appeal in the following circumstances.
(1) You may not separately appeal the issuance of component
documents of the administrative record, including, but not limited to,
appraisals or market studies, reports, studies, investigations, notices
of impoundment or public sale, recommendations, or National
Environmental Policy Act documents. The adequacy of these types of
documents cannot be challenged unless and until an appealable decision
is made in reliance upon these documents.
(2) You may not appeal an agency's notification to you that it is
pursuing or is considering pursuing action against you in Federal
district court, unless separate regulations in this title require you to
follow administrative appeal procedures in accordance with this part or
other regulations such as those listed in Sec. 2.103 to appeal the
notification. Such notifications include, but are not limited to,
notices that could lead the agency to pursue actions for money damages
against you, such as actions for trespass, ejectment, eviction,
nuisance, conversion, or waste to Indian land under the Federal common
law or statute.
(3) You may not appeal final agency actions (though you may be able
to seek review in Federal district court).
(c) Any challenge to preliminary, procedural, or intermediate
actions by a reviewing official must be submitted to the reviewing
official prior to that official's issuing the decision. The reviewing
official will address such challenges in the final decision. Such a
challenge is not a separate appeal.
Sec. 2.103 Are all appeals subject to this part?
Not all appeals are subject to this part. Decisions by some Indian
Affairs officials may be appealed to the Interior Board of Indian
Appeals, subject to the regulations at 43 CFR part 4. Other regulations
govern appeals of administrative decisions regarding certain topics.
Table 1 to this section lists some decision topics that are subject to
different appeals regulations, in whole or in part, and where to find
those regulations.
Table 1 to Sec. 2.103
------------------------------------------------------------------------
For appeal rights related to . . . Refer to . . .
------------------------------------------------------------------------
Access to student records....................... 25 CFR part 43.
Acknowledgment as a federally recognized Indian 25 CFR part 83.
Tribe.
Adverse employment decisions against Bureau of 43 CFR part 20.
Indian Affairs employees.
Any decision by a Court of Indian Offenses...... 25 CFR part 11.
Appointment or termination of contract educators 25 CFR part 38.
Debts owed by Federal employees................. 5 CFR part 550.
Determination of heirs, approval of wills, and 43 CFR part 4; 43 CFR
probate proceedings. part 30; 25 CFR part
16; 25 CFR part 17.
Indian School Equalization Program student count 25 CFR part 39.
Eligibility determinations for adult care 25 CFR part 20.
assistance, burial assistance, child
assistance, disaster, emergency and general
assistance, and the Tribal work experience
program.
Certain adverse enrollment decisions............ 25 CFR part 62.
Freedom of Information Act requests............. 43 CFR part 2.
Grazing permits for trust or restricted lands... 25 CFR part 166.
Indian Reservation Roads Program funding........ 25 CFR part 170.
Leasing of trust or restricted lands............ 25 CFR part 162.
Matters subject to the Contract Disputes Act.... 48 CFR part 33; 48 CFR
part 6101.
[[Page 14]]
Privacy Act requests............................ 43 CFR part 2.
Restricting an Individual Indian Money account.. 25 CFR part 115.
Rights-of-way over or across trust or restricted 25 CFR part 169.
lands.
Secretarial elections........................... 25 CFR part 81.
Self-Determination contracts.................... 25 CFR part 900.
Self-Governance compacts........................ 25 CFR part 1000.
Student rights and due process.................. 25 CFR part 42.
Tribally controlled colleges and universities... 25 CFR part 41.
Departmental quarters........................... 41 CFR part 114.
------------------------------------------------------------------------
Sec. 2.104 How will I know what decisions are appealable under
this part?
(a) When an Indian Affairs official makes a decision that is subject
to an appeal under this part, she or he will transmit the decision to
interested parties by U.S. Mail or, upon request, by electronic mail.
Unless the decision is immediately effective, and except for decisions
that are subject to appeal to IBIA, the official will include the
following notice of appeal rights at the end of the decision document:
This decision may be appealed by any person or entity who is
adversely affected by the decision. Appeals must be submitted to the--
[appropriate reviewing official]--at--[address, including email
address]. The appeals process begins when you file with the reviewing
official a notice of appeal, complying with the provisions of 25 CFR
2.205-2.207.
Deadline for Appeal. Your notice of appeal must be submitted in
accordance with the provisions of 25 CFR 2.214 within 30 days of the
date you receive notice of this decision pursuant to 25 CFR 2.203. If
you do not file a timely appeal, you will have failed to exhaust
administrative remedies as required by 25 CFR part 2. If no appeal is
timely filed, this decision will become effective at the expiration of
the appeal period. No extension of time may be granted for filing a
notice of appeal.
Appeal Contents and Packaging. Your notice of appeal must comply
with the requirements in 25 CFR 2.214. It must clearly identify the
decision being appealed. If possible, attach a copy of this decision
letter. The notice and the envelope in which it is mailed should be
clearly labeled, ``Notice of Appeal.'' If electronic filing is
available, ``Notice of Appeal'' must appear in the subject line of the
email submission. Your notice of appeal must list the names and
addresses of the interested parties known to you and certify that you
have sent them and this office copies of the notice by any of the
mechanisms permitted for transmitting the NOA to the BIA.
Where to Send Copies of Your Appeal.
[For appeals to IA officials, not IBIA]: In addition to sending your
appeal to--[the reviewing official],--you must send a copy of your
appeal to this office at the address on the letterhead--[if an email
address is included in the letterhead, you may submit your appeals
documents via email, with ``Notice of Appeal'' in the subject line of
the email submission].
[For appeals to the IBIA]: If the reviewing official is the IBIA,
you must also send a copy of your appeal to the AS-IA and to the
Associate Solicitor, Division of Indian Affairs. If the reviewing
official is the IBIA, your appeal will be governed by the IBIA's
regulations, at 43 CFR part 4.
Assistance. If you can establish that you are an enrolled member of
a federally recognized Tribe and you are not represented by an attorney,
you may, within 10 days of receipt of this decision, request assistance
from this office in the preparation of your appeal. Our assistance is
limited to serving your filings on the interested parties and allowing
limited access to government records and other documents in the
possession of this office. We cannot obtain an attorney for you or act
as your attorney on the merits of the appeal.
(b) If a decision-maker issues a decision that does not include
notice of appeal rights, the decision-maker will provide written notice
of appeal rights and the decision may be appealed as follows:
(1) If the decision-maker discovers within 30 days of issuing the
decision that the decision did not include notice of appeal rights, then
the decision-maker will provide written notice of appeal rights to
interested parties, and inform them that they may appeal the decision
within 30 days from the date of receipt of the notice. If no appeal is
[[Page 15]]
filed by the new deadline, the interested parties will have failed to
exhaust administrative remedies as required by this part and the
decision will become effective.
(2) If the decision-maker does not discover within 30 days of
issuing the decision that the decision did not include notice of appeal
rights and no administrative appeal is filed within 30 days of the
issuance of the decision, then the decision becomes effective 31 days
after it was issued.
(3) If the decision-maker discovers, more than 30 days but less than
365 days, after the date of the decision that the decision did not
include notice of appeal rights, then the decision-maker will
immediately notify the interested parties that the decision was issued
without the requisite notice of appeal rights. If the decision has not
actually been implemented, the decision-maker shall stay the
implementation of the decision and reissue the decision with the appeal
rights notice as provided in this section. If the decision has been
implemented, the decision maker shall notify the interested parties of
that fact, and notify them that they may file a challenge to the
decision in Federal court, or pursue the administrative appeal process
set out in this section.
Sec. 2.105 Who will receive notice of decisions that are appealable
under this part?
Except as provided in other regulations governing specific types of
decisions (see Sec. 2.103), the decision-maker will transmit a copy of
all appealable decisions to all known interested parties at the
addresses the decision-maker has on file for them.
Sec. 2.106 How does this part comply with the Paperwork Reduction Act?
The information collected from the public under this part is cleared
and covered by Office of Management and Budget (OMB) Control Number
1076-NEW. 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_Appealing Administrative Decisions
Sec. 2.200 Who may appeal a decision?
You have a right to appeal a decision made by an Indian Affairs
official if you can show, through credible statements, that you are
adversely affected by the decision.
Sec. 2.201 Do I need a lawyer in order to file a document in an appeal?
No. You may represent yourself. If you are represented by someone
else, your representative must meet the standards established in 43 CFR
part 1 and must provide documentation of his or her authority to act on
your behalf.
Sec. 2.202 Who decides administrative appeals?
Except where a specific section of this part sets out a different
appellate hierarchy, table 1 to this section identifies the reviewing
officials for appeals under this part:
Table 1 to Sec. 2.202
------------------------------------------------------------------------
Official issuing the decision Reviewing official or IBIA
------------------------------------------------------------------------
Agency Superintendent or Field Regional Director, BIA.
Representative, BIA.
Regional Director, BIA................. IBIA.
District Commander, OLES............... Deputy Director BIA, Office of
Justice Services (OJS).
Deputy Director, BIA................... Director, BIA.
Director, BIA.......................... IBIA.
Principal of a Bureau operated School.. Education Program
Administrator.
Education Program Administrator........ Associate Deputy Director, BIE.
Associate Deputy Director, BIE......... Director, BIE.
President of a Bureau operated Post- Director, BIE.
Secondary School.
Director, BIE.......................... AS-IA.
BTFA decision-maker.................... Director, BTFA.
Director of: OIG; IED; OSG............. Appropriate Deputy Assistant
Secretary--Indian Affairs.
Deputy Assistant Secretary--Indian AS-IA.
Affairs; Director, BTFA.
------------------------------------------------------------------------
[[Page 16]]
Sec. 2.203 How long do I have to file an appeal?
(a) You have 30 days after you receive a copy of the decision you
are appealing to file a Notice of Appeal, except as provided in Sec.
2.104(b).
(b) We will presume that you have received notice of the decision 10
days after the date that the decision was mailed to you, if the
decision-maker mailed the document to the last address the decision-
maker has on file for you.
(c) If the reviewing official receives proof that the document was
delivered before the expiration of the 10-day period, you are presumed
to have received notice on the date of delivery, and you have 30 days
from that date to file an appeal.
Sec. 2.204 Will the reviewing official grant a request for
an extension of time to file a Notice of Appeal?
No. No extensions of time to file a Notice of Appeal will be
granted.
Sec. 2.205 How do I file a Notice of Appeal?
(a) To file a Notice of Appeal to an Indian Affairs official, you
must submit the Notice of Appeal to the reviewing official identified in
the decision document's notice of appeal rights, as prescribed in Sec.
2.104. Your submission must comply with Sec. 2.214.
(b) If you are appealing to the IBIA, you must comply with IBIA's
regulations, set out at 43 CFR part 4.
Sec. 2.206 What must I include in my Notice of Appeal?
In addition to meeting the requirements of Sec. 2.214, your Notice
of Appeal must include an explanation of how you satisfy the
requirements of standing set out in Sec. 2.200 and a copy of the
decision being appealed, if possible.
Sec. 2.207 Do I have to send the Notice of Appeal to anyone
other than the reviewing official?
(a) Yes. You must provide copies of your Notice of Appeal to the
decision-maker and all interested parties known to you. If you are an
individual Indian and are not represented by an attorney, you may
request that we make the copies for you and mail your appeal documents
to all interested parties.
(b) If you are appealing to the IBIA, you must also send a copy of
your Notice of Appeal to the AS-IA and to the Associate Solicitor for
Indian Affairs at the same time you send the appeal to the IBIA.
Sec. 2.208 What must I file in addition to the Notice of Appeal?
No later than 10 days after filing your Notice of Appeal, you must
submit to the reviewing official, the decision-maker, and interested
parties a statement of reasons that:
(a) Explains why you believe the decision was wrong;
(b) Identifies relevant information or evidence you believe the
decision-maker failed to consider;
(c) Describes the relief you seek;
(d) Provides all documentation you believe supports your arguments;
and
(e) Complies with the requirements of Sec. 2.214.
Sec. 2.209 Who may file a response to the statement of reasons?
Any interested party may file a response to the statement of
reasons, thereby becoming a participant. The decision-maker may also
file a response to the statement of reasons.
Sec. 2.210 How long does the decision-maker or an interested
party have to file a response?
The decision-maker or an interested party has 30 days after
receiving a copy of the statement of reasons to file a response.
Sec. 2.211 What must a response to the statement of reasons include?
(a) A response to a statement of reasons must comply with Sec.
2.214. In addition, the response must:
(1) State when the interested party or decision-maker submitting the
response received the statement of reasons;
(2) Explain how the interested party submitting the response is
adversely affected by the decision being appealed or may be adversely
affected by the reviewing official's decision; and
[[Page 17]]
(3) Explain why the interested party or decision maker submitting
the response believes the arguments made in the appellant's Notice of
Appeal and statement of reasons are right or wrong.
(b) The response may also include statements and documents
supporting the position of the interested party or decision-maker
submitting.
Sec. 2.212 Will the reviewing official accept additional briefings?
(a) Yes. The appellant may file a reply with the reviewing official
within 21 days of receiving a copy of any response brief.
(b) Any interested party may, within 10 days after receiving the
table of contents of the administrative record (AR), request copies of
some or all of the AR. Such party may submit a supplemental brief within
10 days after receiving the requested documents.
(c) Any interested party may ask the reviewing official for
permission to file additional briefing. The reviewing official's
decision on whether to grant the request is not appealable.
(d) No documents other than those specified in this part and those
permitted by the reviewing official under paragraph (c) of this section
may be filed.
(e) The reviewing official will not consider documents not timely
filed.
Sec. 2.213 What role does the decision-maker have in the appeal process?
(a) The decision-maker is responsible for:
(1) Compiling the administrative record;
(2) Sending the administrative record to the reviewing official
within 20 days of the decision-maker's receipt of the Notice of Appeal;
and
(3) Making available a copy of the administrative record for review
by interested parties. When the decision-maker transmits the
administrative record to the reviewing official, the decision-maker
shall transmit to the interested parties a copy of the table of contents
of the administrative record. Interested parties may view the
administrative record at the office of the decision-maker. Interested
parties may request copies of all or part of the administrative record.
Where reproduction and transmission of the administrative record imposes
costs on BIA exceeding $50, BIA may charge the requestor for those
costs. BIA shall not incur such costs without the requestor's approval.
The decision-maker shall respond to requests for documents in the
administrative record within 30 days of receipt of the request, either
by providing the requested documents or identifying a date by which the
documents shall be provided. The decision-maker shall redact the
documents provided to the requestor as required by law (e.g., the
Privacy Act). The decision-maker may withhold information in the
administrative record, invoking privileges available in civil
litigation; such withholding being subject to judicial review. Provision
of documents in the administrative record to an interested party under
this part is not governed by the Freedom of Information Act. Failure of
a decision-maker to respond to a request for documents under this
section may be appealed as provided in subpart F of this part.
(b) If a decision-maker believes that a compacting or contracting
Tribe possesses Federal records that are relevant to the analysis of the
appeal, the decision-maker may request that the Tribe produce the
documents. Within two weeks of receiving the decision-maker's request,
the Tribe shall either provide the requested documents to the decision-
maker or explain why it is not providing the documents. This section
does not apply to Tribal records. See 25 U.S.C. 5329(b).
(c) The decision-maker may file a response to the statement of
reasons.
Sec. 2.214 What requirements apply to my submission of documents?
Except where a section in this part (or 43 CFR part 4 with respect
to submissions to the IBIA) sets out other requirements, you must comply
with the following provisions:
(a) Information required in every submission. (1) The submitter's
contact information, consisting of name, mailing address, telephone
number, and email address if any; or the name, mailing address,
telephone number, and email address of the submitter's representative;
[[Page 18]]
(2) A certificate of service by the submitter that the submission
was served on all interested parties known to the submitter, a list of
parties served, and the date and method of service; and
(3) The signature of the interested party or his or her
representative.
(b) Filing documents. A document is properly filed with an agency
official by:
(1) Personal delivery, either hand delivery by an interested party
or via private mail carrier, during regular business hours to the person
designated to receive mail in the immediate office of the official;
(2) United States 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; and
(3) Electronic mail (email) is permissible only in accordance with
the provisions in paragraph (i) of this section.
(c) Service generally. A copy of each document filed in a proceeding
under this part must be served by the filing party on the relevant
agency official(s) and all other known interested parties. If an
interested party is represented by an attorney, service of any document
shall be made upon such attorney. Where an interested party is
represented by more than one attorney, service upon one of the attorneys
shall be sufficient.
(d) Record address. Every person who files a document in an appeal
shall, at the time of the initial filing in the matter, provide his or
her contact information. Such person must promptly inform the decision-
maker or reviewing official of any change in address. Any successors in
interest of such person shall promptly inform the decision-maker or
reviewing official of his or her interest in the matter and provide
contact information. Agency officials and other parties to an appeal
shall have fulfilled their service requirement by transmitting documents
to a party's last known address.
(e) Computation of time for filing and service. Documents must be
filed within the deadlines established in this part (or by 43 CFR part 4
for filings submitted to the IBIA), or as established by Department
officials in a particular matter. Except as otherwise provided by law,
in computing any period of time prescribed for filing and serving a
document, the day upon which the decision or document to be appealed
from or answered was served, or the day of any other event after which
the designated period of time begins to run, is not included. The last
day of the period so computed is to be included, unless it is a
Saturday, Sunday, Federal legal holiday, or other day on which the
office to which the document is addressed is not conducting business, in
which event the period runs until the end of the next day on which the
office to which the document is addressed is conducting business. When
the time prescribed or allowed is 7 days or less, intermediate
Saturdays, Sundays, Federal legal holidays, and other nonbusiness days
shall be excluded in the computation.
(f) Extensions of time. (1) The deadline for filing and serving any
document may be extended by the agency official before whom the
proceeding is pending, except that the deadline for filing a Notice of
Appeal may not be extended.
(2) A request for an extension of time must be filed within the time
allowed for the filing or serving of the document.
(3) A request for extension of time must be filed with the same
office as the document that is the subject of the request.
(g) Formatting. All submissions, except exhibits, must be typed in
12-point font, (double-spaced) using a standard 8\1/2\- by 11-inch word
processing format, except that a document submitted by an interested
party who is not represented by an attorney may be hand-written. An
agency official may decline to consider an illegible hand-written
submission. An agency official who declines to consider a hand-written
submission shall promptly notify the submitter of the decision not to
consider the submission.
(h) Page limits for particular filings are set out in the sections
addressing those filings. Attachments and exhibits not drafted by or for
the submitter do not count toward the page limit.
(i) Submitting and serving documents by email. Submitting documents
by email to an agency official is only permitted when the receiving
official has notified
[[Page 19]]
the known interested parties that email submissions are acceptable.
Documents may only be served via email on interested parties who have
stated, in writing, their willingness to accept service by email. No
single email submission may exceed 10 megabytes (MB). Submissions may be
divided into separate emails for purposes of complying with this
requirement. Filings submitted by email shall be in PDF format. Email
submissions that arrive at the agency official's office after 5:00 p.m.
shall be deemed to have arrived on the next work day.
(j) Non-compliant submissions. An agency official may decline to
consider a submission that does not comply with the requirements in this
section, or take other action she/he deems appropriate. A non-compliant
submission is nonetheless a Federal record, and must be preserved as
other Federal records.
Subpart C_Effectiveness and Finality of Decisions
Sec. 2.300 When is a decision effective?
(a) Agency decisions that are subject to further administrative
appeal become effective when the appeal period expires without an appeal
being filed, except as provided elsewhere in this chapter.
(b) When an agency decision is effective pursuant to paragraph (c)
of this section or Sec. 2.714, the administrative appeal will proceed
unless an interested party challenges the agency decision in Federal
court.
(c) Agency decisions that are subject to further administrative
appeal and for which an appeal is timely filed may be made immediately
effective by the reviewing official based on public safety, Indian
education safety, protection of trust resources, or other public
exigency.
(1) A decision-maker whose decision has been appealed may ask the
reviewing official to make the appealed decision immediately effective
or the reviewing official may make the appealed decision immediately
effective on his or her own initiative.
(2) A reviewing official's decision to make an appealed decision
immediately effective must explain why public safety, Indian education
safety, protection of trust resources, or other public exigency
justifies making the decision immediately effective. Any challenge to
the decision to put an appealed decision into immediate effect shall be
incorporated into the ongoing appeal.
(3) A decision by a reviewing official (other than the IBIA) to
place an appealed decision into immediate effect must be in writing and
include the following notice of appeal rights:
As explained above, based on concerns about public safety, Indian
education safety, protection of trust resources, or other exigency, I
have placed the challenged decision into immediate effect, as authorized
by 25 CFR 2.300. I will continue with my review of the matter on appeal
unless and until an interested party files suit in federal court
challenging the agency decision.
Sec. 2.301 When is a decision a final agency action?
An agency decision that is not subject to administrative appeal is a
final agency action and immediately effective when issued unless the
decision provides otherwise.
Subpart D_Appeal Bonds
Sec. 2.400 When may the reviewing official require an
appeal bond?
(a) Any interested party who may suffer a financial loss or damage
to Indian Trust Assets as a result of an appeal may ask the reviewing
official to require the appellant to post an appeal bond.
(b) The reviewing official may decide on his or her own initiative
to require an appeal bond in accordance with this subpart.
Sec. 2.401 How will the reviewing official determine whether
to require an appeal bond?
The reviewing official may require an appeal bond if the party
requesting the appeal bond can demonstrate that the delay caused by the
appeal may result in a measurable and substantial financial loss or
damage to Indian Trust Assets. The amount of the appeal bond will be
commensurate with the estimated financial loss or damage to Indian Trust
Assets.
[[Page 20]]
Sec. 2.402 What form of appeal bond will the reviewing official
accept?
The reviewing official will only accept an appeal bond that has a
market value at least equal to the total bond amount in one, or a
combination of, the following forms.
(a) Negotiable U.S. Treasury securities, accompanied by a statement
granting the AS-IA full authority to sell the securities and direct the
proceeds to the party who was harmed by the appellant's unsuccessful
appeal.
(b) Certificates of deposit that indicate on their face that AS-IA
approval is required prior to redemption by any party.
(c) An irrevocable letter of credit issued by a federally insured
financial institution and made payable to the Office of the AS-IA. The
letter of credit must have an initial expiration date of not less than
two years from the date of issuance and be automatically renewable for
at least one year.
(d) A surety bond issued by a company approved by the U.S.
Department of the Treasury.
Sec. 2.403 May I appeal the decision whether to require
an appeal bond?
No. The reviewing official's decision whether to require
an appeal
bond is not appealable.
Sec. 2.404 What will happen to my appeal if I fail to post a required appeal bond?
If you are required to post a bond and fail to do so within the time
allowed by the reviewing official to post the bond, the reviewing
official will dismiss your appeal.
Sec. 2.405 How will the reviewing official notify
interested parties of the decision on a request for an
appeals bond?
When the reviewing official decides whether to require an appeal
bond, she or he will provide the interested parties with written notice
of the decision
Subpart E_Deciding Appeals
Sec. 2.500 May an appeal be consolidated with other appeals?
Yes. The reviewing official may, either on his or her own initiative
or upon request by the decision-maker or interested party, consolidate
identical or similar appeals filed by you and others or consolidate
multiple appeals that you file that also contain identical or similar
issues.
Sec. 2.501 May an appealed decision be partially implemented?
Yes. The reviewing official may identify any parts of a decision-
maker's decision that have not been appealed, to allow the decision-
maker to implement those parts of the decision. The reviewing official
will notify interested parties of a determination to implement
unchallenged components of the decision-maker's decision. An interested
party who disagrees with the reviewing official's determination may seek
reconsideration by the reviewing official. A request for reconsideration
must be filed within 15 days of issuance of the determination.
Sec. 2.502 May I withdraw my appeal once it has been filed?
Yes. You may withdraw your appeal at any time before the reviewing
official issues a decision. To withdraw an appeal, you must write to the
reviewing official and all participants stating that you want to
withdraw your appeal. If you withdraw your appeal, it will be dismissed
by the reviewing official. While the dismissal of a withdrawn appeal is
without prejudice, the appeals time frame set out in this part will be
unaffected by a withdrawn appeal. Therefore, any refiling of a withdrawn
appeal must be within the original filing deadline established pursuant
to Sec. 2.104.
Sec. 2.503 May an appeal be dismissed without a decision on the merits?
Yes, the reviewing official may dismiss an appeal without a decision
on the merits when:
(a) You are late in filing your appeal;
(b) You lack standing because you do not meet the requirements of
Sec. 2.200 for bringing an appeal;
(c) You have withdrawn the appeal;
(d) You have failed to pay a required appeal bond;
(e) The reviewing official lacks the authority to grant the
requested relief;
[[Page 21]]
(f) If you are represented and your representative does not meet the
standards established in 43 CFR part 1 related to eligibility to
practice before the Department, and you have failed to substitute
yourself or an eligible representative after being given an opportunity
to do so; or
(g) The reviewing official determines there are other circumstances
that warrant a dismissal and explains those circumstances in the
dismissal order.
Sec. 2.504 What information will the reviewing official consider?
(a) The reviewing official will consider:
(1) The administrative record for the decision, prepared by the
decision-maker under Sec. 2.213;
(2) All relevant documents submitted by the decision-maker and
participants that were filed in accordance with applicable deadlines;
and
(3) Laws, regulations, Secretarial Orders, Solicitor's Opinions,
policies, implementing guidance, and prior judicial and administrative
decisions that are relevant to the appeal.
(b) If the reviewing official considers documentation that was not
included in the administrative record, the reviewing official will:
(1) Provide a copy of that documentation to the decision-maker and
interested parties; and
(2) Establish a schedule for the decision-maker and interested
parties to review and comment on the documentation.
Sec. 2.505 When will the reviewing official issue a decision
on an appeal?
(a) The reviewing official (other than the IBIA) will issue a
written decision, including the basis for the decision, within 90 days
after the latest of:
(1) The filing of the statement of reasons;
(2) The filing of any responses, replies, or supplemental briefs
under Sec. Sec. 2.209 through 2.212; or
(3) The filing of any comments on additional material under Sec.
2.504(b).
(b) A reviewing official (other than the IBIA) may, for good cause
and with notice to the decision-maker and participants, extend the
deadline for the official's decision one time by no more than 90 days.
Sec. 2.506 How does the reviewing official notify the appellant
and other interested parties of a decision?
The reviewing official will send the decision to the decision-maker
and interested parties.
Sec. 2.507 How do I appeal a reviewing official's decision?
(a) To appeal a reviewing official's decision that is not a final
agency action, you must file your appeal in accordance with the
instructions for appeal contained in the decision.
(b) The decision will include instructions that briefly describe how
to appeal the decision, to whom the appeal should be directed, and the
deadline for filing an appeal, and will refer interested parties to the
regulations governing the appeal.
(c) If you are appealing to the IBIA, you must comply with IBIA's
regulations, set out at 43 CFR part 4.
(d) Except where a specific section of this part sets out a
different appellate hierarchy, table 1 to this paragraph (d) indicates
the official to whom subsequent appeals should be addressed.
Table 1 to Paragraph (d)
------------------------------------------------------------------------
Reviewing official (or IBIA) whose Official to whom the appeal is
decision is being appealed addressed
------------------------------------------------------------------------
Regional Director...................... IBIA.
Principal of a Bureau operated school.. Education Program
Administrator.
Education Program Administrator........ Associate Deputy Director,
Bureau of Indian Education.
Associate Deputy Director, BIE......... Director, BIE.
President of a Bureau operated post- Director, BIE.
secondary school.
Deputy Director BIA, Office of Justice IBIA.
Services (OJS).
Director, BIE.......................... AS-IA.
Director, BTFA......................... AS-IA.
Director, BIA.......................... IBIA.
Deputy Assistant Secretary--Indian AS-IA.
Affairs.
AS-IA.................................. (Decision is final for the
Department).
IBIA................................... (Decision is final for the
Department).
------------------------------------------------------------------------
[[Page 22]]
Sec. 2.508 May the AS-IA take jurisdiction over an appeal to the IBIA?
Yes. The AS-IA has 40 days from the date on which the IBIA received
your Notice of Appeal to take jurisdiction from the IBIA. The AS-IA will
notify the IBIA in writing of the assumption of jurisdiction and request
the administrative record of the appeal. At any time in the 40 days, the
AS-IA may notify the IBIA that she or he is not going to take
jurisdiction over an appeal, at which point the IBIA will assign a
docket number to the appeal under its regulations in 43 CFR part 4. If
the IBIA does not receive written notice from the AS-IA within the 40-
day period of the AS-IA's intent to take jurisdiction over the appeal,
the IBIA will assign a docket number to your appeal.
Sec. 2.509 May I ask the AS-IA to take jurisdiction over my appeal?
No. The AS-IA will not consider a request from any interested party
to take jurisdiction over an appeal.
Sec. 2.510 How will the AS-IA handle my appeal?
If the AS-IA takes jurisdiction over your appeal, or if an appeal is
made to the AS-IA in accordance with table 1 to paragraph (d) in Sec.
2.507, the following procedures shall apply:
(a) Within 10 days of receipt of an appeal, or of assumption of
jurisdiction over an appeal to the IBIA, the AS-IA shall transmit to the
official who issued the decision being appealed and all known interested
parties a notice that will include information on when and how to file
briefs, access to the administrative record, and may include
instructions for filing briefs via email.
(b) Briefs shall comply with Sec. 2.214, and be submitted as
follows, unless the AS-IA specifies otherwise:
(1) Initial briefs are invited from the appellant, all interested
parties, and the official whose decision is on appeal. Initial briefs
may not exceed 30 pages and shall be due within 21 days of the date of
the AS-IA's notice. Initial briefs must include certification of service
on the reviewing official and all other interested parties identified in
the AS-IA's initial notice to interested parties;
(2) Answering briefs shall be due within 35 days of the date of the
AS-IA's notice. Answering briefs shall not exceed 15 pages; and
(3) For good cause shown, the AS-IA may extend deadlines, may allow
handwritten briefs, may provide for different page limits, and may
permit submission of reply briefs.
(c) The AS-IA shall render a decision on the appeal within 60 days
of the end of briefing. The AS-IA may, for good cause and with notice to
the participants, extend the deadline for issuing a decision by no more
than 60 days.
(d) The AS-IA may summarily affirm the decision of the official
whose decision is on appeal based on the record before the official
whose decision is on appeal.
(e) The AS-IA may delegate to the Principal Deputy Assistant
Secretary--Indian Affairs the authority and responsibility for rendering
a final agency decision on an appeal over which the AS-IA is exercising
jurisdiction.
Sec. 2.511 May the Secretary decide an appeal?
Yes. Nothing in this part will be construed as affecting the
Secretary's authority to take jurisdiction over an appeal as set out in
43 CFR 4.5(a).
Sec. 2.512 May the Director of the Office of Hearings and Appeals
take jurisdiction over a matter?
Yes. Nothing in this part will be construed as affecting the
authority vested in the Director of the Office of Hearings and Appeals
to take jurisdiction over matters in front of the IBIA, as provided in
43 CFR 4.5(b).
Subpart F_Appealing Inaction of an Agency Official
Sec. 2.600 May I compel an agency official to take action?
(a) Yes. If a decision-maker fails to take action on a written
request for action that you believe the decision-maker is required to
take, you may make the decision-maker's inaction the subject of appeal.
(b) Before filing an appeal with the next official in the decision-
maker's chain of command, you must:
[[Page 23]]
(1) Send a written request to the decision-maker, asking that he or
she take the action originally asked of him or her;
(2) Identify the statute, regulation, or other source of law that
you believe requires the decision-maker to take the action being
requested;
(3) Describe the interest adversely affected by the decision-maker's
inaction, including a description of the loss, impairment or impediment
of such interest caused by the inaction; and
(4) State that, unless the decision-maker either takes action on the
written request within 15 days of receipt of your request, or
establishes a date by which a decision will be made, you will appeal the
decision-maker's inaction in accordance with this subpart.
(c) You must include a copy of your original request to the
decision-maker, or other documentation establishing the date and nature
of the original request.
Sec. 2.601 When must a decision-maker respond to a request to act?
A decision-maker receiving a request as specified in Sec. 2.600 has
15 days from receiving the request to issue a written response. The
response may be a decision, a procedural order that will further the
decision-making process, or a written notice that a decision will be
rendered by a date no later than 60 days from the date of the request.
Sec. 2.602 What may I do if the decision-maker fails to respond?
If the decision-maker does not respond as provided for in Sec.
2.601, you may appeal the decision-maker's continued inaction to the
next official in the decision-maker's chain of command. For purposes of
this subpart:
(a) BIA's chain of command is as follows:
(1) Local Bureau Official;
(2) Regional Director (find addresses on the Indian Affairs website,
currently at https://www.bia.gov/regional-offices);
(3) Director, Bureau of Indian Affairs (1849 C Street NW, MS 4606,
Washington, DC 20240); and
(4) Assistant Secretary--Indian Affairs (1849 C Street NW, MS 4660,
Washington, DC 20240).
(b) BIE's chain of command is as follows:
(1) Principal of Bureau-operated school;
(2) Education Program Administrator;
(3) Associate Deputy Director, BIE;
(4) Director, BIE; and
(5) AS-IA.
(c) The Office of Justice Services' chain of command is as follows:
(1) Deputy Director BIA, Office of Justice Services;
(2) Director, BIA; and
(3) AS-IA
(d) You may appeal inaction by an official within the Office of the
AS-IA to the AS-IA.
Sec. 2.603 How do I submit an appeal of inaction?
You may appeal the inaction of a decision-maker by sending a written
``appeal from inaction of an official'' to the next official in the
decision-maker's chain of command. You must enclose a copy of the
original request for decision to which the decision-maker has not
responded and a copy of the request for decision that you sent to the
decision-maker pursuant to Sec. 2.600. If filing by email is permitted,
``Appeal of Inaction'' must appear in the subject line of the email
submission.
Sec. 2.604 What will the next official in the decision-maker's
chain of command do in response to my appeal?
An official who receives an appeal from the inaction of a decision-
maker that complies with the requirements of this subpart will, within
15 days of receiving the appeal, formally direct the decision-maker to
respond within 15 days of the decision-maker's receipt of the official
direction. The official will send to all interested parties a copy of
his or her instructions to the decision-maker.
Sec. 2.605 May I appeal continued inaction by the decision-maker
or the next official in the decision-maker's chain of command?
Yes. If the official fails to timely direct the decision-maker to
respond to
[[Page 24]]
the request for decision, or if the decision-maker fails to respond
within the time frame identified by the official pursuant to Sec.
2.604, you may appeal the continued inaction by either agency official
to the next highest officer in the chain of command above both agency
officials. Your appeal must be submitted as provided for in Sec. Sec.
2.602 and 2.603. The official will respond as provided for in Sec.
2.604.
Sec. 2.606 May I appeal inaction by a reviewing official on an
appeal from a decision?
(a) Yes. If a reviewing official fails to take action on the appeal
within the timeframes established in Sec. 2.505, any interested party
may appeal the reviewing official's inaction as provided for in this
subpart.
(b) Inaction by the IBIA or by the AS-IA is not subject to appeal
under this part.
Sec. 2.607 What happens if no official responds to my requests
under this subpart?
If you exhaust all the provisions of this subpart and the Department
has still not taken action on your request, the Department's inaction
may be subject to judicial review pursuant to 5 U.S.C. 706(1).
Subpart G_Special Rules Regarding Recognition of Tribal Representative
Sec. 2.700 What is the purpose of this subpart?
The purpose of this subpart is to expedite administrative review of
a Bureau decision to recognize, or to decline to recognize, a Tribal
representative. Provisions in subparts A through F of this part also
apply, except that, if a provision in this subpart conflicts with a
provision in subparts A through F of this part, the provision in this
subpart will govern.
Sec. 2.701 May a Local Bureau Official's decision to recognize,
or decline to recognize, a Tribal representative be appealed?
Yes. A written decision by the LBO to recognize or decline to
recognize a Tribal representative is appealable.
Sec. 2.702 How will I know what decisions are appealable under this subpart?
When an LBO issues a Tribal representative recognition decision, the
official will include the following notice of appeal rights at the end
of the decision document:
YOU HAVE 10 DAYS TO APPEAL THIS DECISION.
This decision may be appealed to the --[appropriate reviewing
official. If the LBO is a Regional Director, the reviewing official is
the Director of the BIA]--at--[address, including email address if
filing by email is permitted].
Deadline for Appeal. Your notice of appeal must be submitted as
provided for in 25 CFR 2.214 within 10 (ten) days of the date you
receive notice of this decision. Your notice of appeal must explain how
you satisfy the standing requirements in 25 CFR 2.200. If you do not
file a timely appeal, you will have failed to exhaust administrative
remedies required by these regulations. If no appeal is timely filed,
this decision will become effective at the expiration of the appeal
period. No extension of time may be granted for filing a notice of
appeal.
Sec. 2.703 How do I file a Notice of Appeal of a Tribal
representative recognition decision?
To file a Notice of Appeal, you must submit, as provided in Sec.
2.214, the Notice of Appeal to the reviewing official identified in the
decision document's notice of appeal rights, as prescribed in Sec.
2.702.
Sec. 2.704 How long do I have to file an appeal of a Tribal
representative recognition decision?
You have 10 days after you receive the Tribal representative
recognition decision to file a Notice of Appeal.
Sec. 2.705 Is there anything else I must file?
Yes. You must file a statement of reasons setting out your arguments
in support of your appeal, and include any supporting documentation you
wish to present to the reviewing official. Your statement of reasons
must comply with the requirements set out in Sec. 2.214.
Sec. 2.706 When must I file my statement of reasons?
You must submit your statement of reasons to the reviewing official
and
[[Page 25]]
interested parties no later than 10 days after filing your Notice of
Appeal.
Sec. 2.707 May the LBO and interested parties file a response
to the statement of reasons?
Yes. Any interested party, as well as the LBO, may file a response
to the statement of reasons, thereby becoming a participant.
Sec. 2.708 How long do interested parties have to file a response?
(a) The LBO and any interested party have 10 days after receiving a
copy of the statement of reasons to file a response, which must be
served on the appellant, the LBO and other interested parties.
(b) For good cause shown, the reviewing official may allow the
appellant to file a reply brief.
Sec. 2.709 What will the LBO do in response to my appeal?
Upon receipt of your Notice of Appeal, the LBO must transmit, within
15 days, the administrative record to the reviewing official and
transmit your Notice of Appeal to the AS-IA.
Sec. 2.710 When will the reviewing official decide a Tribal
representative recognition appeal?
The reviewing official will issue a written decision, including the
basis for the decision, within 30 days after the latest of the filing of
your statement of reasons or interested parties' response.
Sec. 2.711 May the decision deadline be extended?
Yes. A reviewing official may, for good cause and with notice to the
interested parties and the LBO, extend the deadline for the reviewing
official's decision one time, for no more than an additional 30 days.
Sec. 2.712 May the AS-IA take jurisdiction over the appeal?
Yes. The AS-IA may take jurisdiction over the appeal at any time
before the reviewing official issues a final decision.
Sec. 2.713 May I ask the AS-IA to take jurisdiction over the appeal?
No. The AS-IA will not consider a request from any interested party
to take jurisdiction over the appeal.
Sec. 2.714 May the reviewing official's decision on Tribal
representative recognition be appealed?
Yes. The reviewing official's decision is immediately effective, but
not final for the Department. Therefore, any participant may appeal the
reviewing official's decision as provided for in this part, or pursue
judicial review in Federal court. Notwithstanding any other regulation,
the reviewing official's Tribal representative recognition decision
shall remain in effect and binding on the Department unless and until
the reviewing official's decision is reversed by superior agency
authority or reversed or stayed by order of a Federal court.
Subpart H_Appeals of Bureau of Trust Funds Administration Statements of
Performance
Sec. 2.800 What is the purpose of this subpart?
(a) The purpose of this subpart is to allow an account holder to
dispute the accuracy of the activity contained within a Statement of
Performance.
(b) The appeals process in this subpart is summarized as follows:
(1) Account holders receive a Statement of Performance at least each
quarter. In limited circumstances, account holders may only receive a
Statement of Performance annually based upon activity.
(2) An account holder may submit an Objection to the Statement of
Performance (``Objection'') to the decision-maker.
(3) The decision-maker will render a Decision on the Objection to
the Statement of Performance (``Decision'').
(4) An account holder may submit an Appeal of the Decision on the
Objection to the Statement of Performance (``Appeal'') to the Director,
BTFA.
(5) The Director, BTFA will render the BTFA's ruling on the account
holder's appeal.
(6) An account holder may appeal the BTFA's ruling to the AS-IA.
[[Page 26]]
(7) The AS-IA's decision on the account holder's appeal is a final
agency action.
Sec. 2.801 What terms do I need to know for this subpart?
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.
Appeal of the Decision on the Objection to the Statement of
Performance (``Appeal'') means your appeal of the decision-maker's
decision.
Basis of Objection to the Statement of Performance (``Basis of
Objection'') means the documentation you submit supporting your
Objection to the Statement of Performance.
BTFA means the Bureau of Trust Funds Administration.
BTFA's Ruling means the ruling issued by Director, BTFA on your
Appeal of the decision-maker's decision.
Decision on the Objection to the Statement of Performance
(``Decision'') means the decision-maker's decision on your Objection to
the Statement of Performance.
Decision-maker means the Director, Office of Trust Analysis and
Research within the Bureau of Trust Funds Administration who reviews
your Objection to the Statement of Performance.
Objection to the Statement of Performance (``Objection'') means the
document you submit to the decision-maker, alleging errors in your
Statement of Performance.
Reviewing official means the Director, BTFA.
Statement of Performance (SOP) means the document that is issued to
each account holder that identifies:
(1) The source, type, and status of the funds;
(2) The beginning balance;
(3) The gains and losses;
(4) Receipts and disbursements; and
(5) The ending balance.
Sec. 2.802 What must I do if I want to challenge the
accuracy of activity within a Statement of Performance?
If you want to challenge the accuracy of activity within a Statement
of Performance, you must submit an Objection to the Statement of
Performance within 60 calendar days of the statement date.
Sec. 2.803 Is every account holder allowed to challenge
the accuracy of activity within a Statement of Performance?
Yes. However, if a Tribe has entered into a settlement with the
United States and that settlement contains language concerning the
challenge of a statement of performance, the language in the settlement
agreement will control.
Sec. 2.804 May I challenge the underlying action that
generated the proceeds deposited into my account under this subpart?
No. This subpart is solely for the purpose of challenging the
accuracy of the activity within the SOP. If you want to challenge the
underlying action that generated the proceeds deposited into your trust
account, you must contact the BIA agency responsible for the action.
Sec. 2.805 May I challenge anything other than the
activity in the account under this subpart?
No. The purpose of this subpart is to provide a method for account
holders to dispute the activity in the account.
Sec. 2.806 What must my Objection to the Statement of Performance
contain?
Your Objection to the Statement of Performance must be in writing
and contain all of the following:
(a) Your name, address, and telephone number;
(b) The statement date of the specific Statement of Performance that
you are challenging;
(c) A copy of the Statement of Performance being challenged; and
(d) The Basis of Objection.
Sec. 2.807 What must my Basis of Objection contain?
Your Basis of Objection must be in writing and contain:
(a) A statement that details all of the errors or omissions that you
believe exist in the Statement of Performance, with as much explanatory
detail as possible;
[[Page 27]]
(b) A statement describing the corrective action that you believe
BTFA should take; and
(c) All information that you believe relates to the error(s) or
omission(s) in the specific Statement of Performance.
Sec. 2.808 To whom must I submit my Objection to the Statement of
Performance?
(a) You must submit your Objection to the Statement of Performance
to the decision-maker at: U.S. Department of the Interior, Bureau of
Trust Funds Administration, Attn: Director, Office of Trust Analysis and
Research, 1849 C Street NW, Washington, DC 20240.
(b) Your submission must comply with the provisions of Sec. 2.214.
Sec. 2.809 When must I submit my Objection to the Statement
of Performance?
You must submit your Objection to the Statement of Performance
within 60 calendar days of the statement date on the Statement of
Performance you are challenging.
Sec. 2.810 Will the decision-maker acknowledge receipt of my
Objection to the Statement of Performance?
Yes. The decision-maker will provide an acknowledgement of receipt
of your Objection to the Statement of Performance within 10 calendar
days of receipt in the form of a letter that will be mailed to the
address you provided in your Objection.
Sec. 2.811 May I request an extension of time to submit my
Objection to the Statement of Performance?
Yes. Within 60 calendar days of the statement date on your Statement
of Performance, you may request an extension of time, submitted in
compliance with the provisions of Sec. 2.214, from the decision-maker
to submit your Objection to the Statement of Performance. The decision-
maker may grant one 30-day extension of time in which to submit your
Objection to the Statement of Performance.
Sec. 2.812 May I appeal the denial of my request for an extension of time?
No. The denial of an extension of time to submit the Objection to
the Statement of Performance is not appealable.
Sec. 2.813 If I fail to submit either an Objection to the Statement
of Performance or the Basis of Objection within the applicable
deadlines, what is the
consequence?
If you fail to submit either the Objection to the Statement of
Performance or the Basis of Objection within the applicable deadlines:
(a) The Statement of Performance at issue will be deemed accurate
and complete for all purposes;
(b) You will have waived your right to invoke the remainder of the
review and appeals process as to that Statement of Performance; and
(c) You will have failed to exhaust the administrative remedies
available within the Department.
Sec. 2.814 How long will the decision-maker have to issue a
Decision on my Objection to the Statement of Performance?
The decision-maker will have 30 calendar days from the date of
receipt of your Basis of Objection to the Statement of Performance to
issue a Decision on your Objection to the Statement of Performance. If
your Basis of Objection is not received when you submit your Objection
to the Statement of Performance and an extension of time was not asked
for and granted, the decision-maker will dismiss your Objection to the
Statement of Performance.
Sec. 2.815 What information will the Decision on my Objection
to the Statement of Performance contain?
The Decision on your Objection to the Statement of Performance will
contain an explanation as to whether the decision-maker agrees or
disagrees with your Objection to the Statement of Performance. If the
decision-maker agrees with your Objection to the Statement of
Performance, a correction will be made and reflected on your Statement
of Performance. If the decision-maker disagrees with your Objection to
the Statement of Performance, the Decision will provide information
about your right to appeal the Decision.
[[Page 28]]
Sec. 2.816 May I appeal the Decision on my Objection to the
Statement of Performance?
Yes. The Decision issued by the decision-maker is appealable to the
reviewing official, who is the Director, BTFA.
Sec. 2.817 What must my Appeal of the Decision on the Objection
to the Statement of Performance contain?
Your Appeal must comply with the instructions in Sec. 2.214 and
must include the statement date of the specific Statement of Performance
that you are appealing.
Sec. 2.818 To whom must I submit my Appeal of a Decision on my
Objection to the Statement of Performance?
You must submit your Appeal, as provided in Sec. 2.214, to the
reviewing official, at: U.S. Department of the Interior, Bureau of Trust
Funds Administration, Attn: Director, BTFA, 1849 C Street NW,
Washington, DC 20240.
Sec. 2.819 When must my Appeal be filed?
You must file your Appeal within 30 calendar days of the date that
the decision-maker issued the Decision.
Sec. 2.820 May I submit any other documents in support
of my Appeal?
No. You may not submit any other documents in support of your
Appeal. The reviewing official may only consider the documents that were
reviewed by the decision-maker.
Sec. 2.821 May I request an extension of time to submit my Appeal?
No. You must submit the Appeal within 30 calendar days of the
issuance of the Decision. The reviewing official will not grant an
extension of time to submit your appeal of a Decision.
Sec. 2.822 What happens if I do not submit my Appeal within
the 30-day deadline?
If you fail to submit your Appeal within the 30-day deadline:
(a) The decision-maker's decision will be effective;
(b) The Statement of Performance at issue will be deemed accurate
and complete;
(c) You will have waived your right to invoke the remainder of the
review and appeals process as to that same Statement of Performance; and
(d) You will have failed to exhaust the administrative remedies
available within the Department.
Sec. 2.823 When will the reviewing official issue the BTFA's ruling?
The reviewing official will issue the BTFA's ruling within 30
calendar days of receipt of your Appeal of a Decision on your Objection
to the Statement of Performance. The ruling will provide information
about your right to further appeal.
Sec. 2.824 May I appeal the BTFA's ruling?
Yes. The BTFA's ruling may be appealed to the AS-IA. The procedures,
requirements, and deadlines set out in Sec. Sec. 2.816, 2.817, and
2.819 through 2.821 apply to appeals to the AS-IA under this subpart.
Submit your Appeal to: U.S. Department of the Interior, Office of the
Assistant Secretary--Indian Affairs, MS 4660, 1849 C Street NW,
Washington, DC 20240, as provided in Sec. 2.214.
Sec. 2.825 When does the Statement of Performance or a
Decision become final?
(a) Statements of Performance, and decisions rendered by Department
officials under this subpart, are final when the deadline for submitting
an Objection to the Statement of Performance or an Appeal has expired
and the account holder has not submitted an Objection to the Statement
of Performance or an Appeal.
(b) A decision rendered by the AS-IA is a final agency action.
Subpart I_Alternative Dispute Resolution
Sec. 2.900 Is there a procedure other than a formal appeal
for resolving disputes?
Yes. We strongly encourage parties to work together to reach a
consensual resolution of disputes whenever possible. Use of an
alternative approach to dispute resolution can save time and money,
produce more durable and creative solutions, and foster improved
relationships. It may be appropriate and
[[Page 29]]
beneficial to consider the use of alternative dispute resolution (ADR)
processes and techniques at any stage in a dispute. The parties may
request information from the decision-maker on the use of an ADR
process.
Sec. 2.901 How do I request alternative dispute resolution?
If you are interested in pursuing alternative dispute resolution,
you may contact the reviewing official to make a request to use ADR for
a particular issue or dispute.
Sec. 2.902 When do I initiate alternative dispute resolution?
We will consider a request to use alternative dispute resolution at
any time. If you file a Notice of Appeal, you may request the
opportunity to use a consensual form of dispute resolution.
Sec. 2.903 What will Indian Affairs do if I request alternative
dispute resolution?
If all interested parties concur, the reviewing official may stay
(discontinue consideration of) the appeal while the parties pursue ADR.
Where the parties agree to use ADR, Indian Affairs and other interested
parties may seek assistance from the Department of the Interior's Office
of Collaborative Action and Dispute Resolution (CADR). CADR can assist
in planning and facilitating an effective collaboration or dispute
resolution process. Parties are encouraged to consider best practices
for engagement, including but not limited to, the use of neutral
facilitation and other collaborative problem-solving approaches to
promote effective dialogue and conflict resolution.
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
[[Page 30]]
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 31]]
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 32]]
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 33]]
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 34]]
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 35]]
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) A list of the areas in Indian Country where Courts of Indian
Offenses are established is available on the Bureau of Indian Affairs
website (www.bia.gov) and is published periodically in the Federal
Register.
(b) The Director, Bureau of Indian Affairs, will maintain on the
Bureau of Indian Affairs website (www.bia.gov) an updated list of the
areas in Indian Country where Courts of Indian Offenses are established
and, upon any change to the list, will publish notice of the change in
the Federal Register with an updated complete list.
[85 FR 646, Jan. 7, 2020]
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 area in
Indian Country listed in accordance with 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
[[Page 36]]
with its constitution and by-laws or other governing documents.
[73 FR 39859, July 11, 2008, as amended at 85 FR 646, Jan. 7, 2020]
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 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
[[Page 37]]
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.
(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
[[Page 38]]
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 the reservation for deposit as a
``special deposit, court funds'' to the disbursing agent's official
credit in the Treasury of the United States. The disbursing agent shall
withdraw such funds, in accordance with existing regulations, upon order
of the clerk of the court signed by a judge of the court for the payment
of specified expenses. The disbursing agent and the clerk of the court
shall keep an account of all such deposits and withdrawals available for
public inspection.
Subpart C_Criminal Procedure
Sec. 11.300 Complaints.
(a) A complaint is a written statement of the essential facts
charging that a named individual(s) has committed a particular offense.
All criminal prosecutions shall be initiated by a complaint filed with
the court by a law enforcement officer and sworn to by a person having
personal knowledge of the offense.
(b) Complaints shall contain:
(1) The signature of the complaining witness, or witnesses, sworn
before a magistrate, a court clerk, a prosecutor, or any law enforcement
officer.
(2) A written statement by the complaining witness or witnesses
having personal knowledge of the violation,
[[Page 39]]
describing in ordinary language the nature of the offense committed
including the time and place as nearly as may be ascertained.
(3) The name or description of the person alleged to have committed
the offense.
(4) A description of the offense charged and the section of the code
allegedly violated.
(c) Complaints must be submitted without unnecessary delay by a law
enforcement officer to the prosecutor and, if he or she approves, to a
judge to determine whether an arrest warrant or summons should be
issued.
(d) When an accused has been arrested without a warrant, a complaint
shall be filed forthwith with the court for review as to whether
probable cause exists to hold the accused, and in no instance shall a
complaint be filed later than at the time of arraignment.
Sec. 11.301 Arrests.
(a) Arrest is the taking of a person into police custody in order
that he or she may be held to answer for a criminal offense.
(b) No law enforcement officer shall arrest any person for a
criminal offense except when:
(1) The officer shall have a warrant signed by a magistrate
commanding the arrest of such person, or the officer knows for a
certainty that such a warrant has been issued; or
(2) The offense shall occur in the presence of the arresting
officer; or
(3) The officer shall have probable cause to believe that the person
arrested has committed an offense.
Sec. 11.302 Arrest warrants.
(a) Each magistrate of a Court of Indian Offenses shall have the
authority to issue warrants to apprehend any person the magistrate has
probable cause to believe has committed a criminal offense in violation
of the regulations under this part based on a written complaint filed
with the court by a law enforcement officer and bearing the signature of
the complainant.
(b) The arrest warrant shall contain the following information:
(1) Name or description and address, if known, of the person to be
arrested.
(2) Date of issuance of the warrant.
(3) Description of the offense charged.
(4) Signature of the issuing magistrate.
(c) Such warrants may be served only by a BIA or tribal police
officer or other officer commissioned to enforce the regulations of this
part.
Sec. 11.303 Notification of rights prior to custodial interrogation.
Prior to custodial interrogation, the suspect shall be advised of
the following rights:
(a) That he or she has the right to remain silent.
(b) That any statements made by him or her may be used against him
or her in court.
(c) That he or she has the right to obtain counsel and, if indigent,
to have counsel appointed for him/her.
Sec. 11.304 Summons in lieu of warrant.
(a) When otherwise authorized to arrest a suspect, a law enforcement
officer or a magistrate may, in lieu of a warrant, issue a summons
commanding the accused to appear before the Court of Indian Offenses at
a stated time and place and answer to the charge.
(b) The summons shall contain the same information as a warrant,
except that it may be signed by a police officer.
(c) The summons shall state that if a defendant fails to appear in
response to a summons, a warrant for his or her arrest shall be issued.
(d) The summons, together with a copy of the complaint, shall be
served upon the defendant by delivering a copy to the defendant
personally or by leaving a copy at his or her usual residence or place
of business with any person 18 years of age or older who also resides or
works there. Service shall be made by an authorized law enforcement
officer, who shall file with the record of the case a form indicating
when the summons was served.
Sec. 11.305 Search warrants.
(a) Each magistrate of a Court of Indian Offenses shall have the
authority to issue a warrant for the search of premises and for the
seizure of physical evidence of a criminal violation under the
regulations of this part located
[[Page 40]]
within the Indian country over which the court has jurisdiction.
(b) No warrant for search or seizure may be issued unless it is
based on a written and signed statement establishing, to the
satisfaction of the magistrate, that probable cause exists to believe
that the search will lead to discovery of evidence of a criminal
violation under the regulations of this part.
(c) No warrant for search or seizure shall be valid unless it
contains the name or description of the person, vehicle, or premises to
be searched, describes the evidence to be seized, and bears the
signature of the magistrate who issued it.
(d) Warrants may be executed only by a BIA or tribal police officer
or other official commissioned to enforce the regulations under this
part. The executing officer shall return the warrant to the Court of
Indian Offenses within the time limit shown on the face of the warrant,
which in no case shall be longer than ten (10) days from the date of
issuance. Warrants not returned within such time limits shall be void.
Sec. 11.306 Search without a warrant.
No law enforcement officer shall conduct any search without a valid
warrant except:
(a) Incident to making a lawful arrest; or
(b) With the voluntary consent of the person being searched; or
(c) When the search is of a moving vehicle and the officer has
probable cause to believe that it contains contraband, stolen property,
or property otherwise unlawfully possessed.
Sec. 11.307 Disposition of seized property.
(a) The officer serving and executing a warrant shall make an
inventory of all seized property, and a copy of such inventory shall be
left with every person from whom property is seized.
(b) A hearing shall be held by the Court of Indian Offenses to
determine the disposition of all seized property. Upon satisfactory
proof of ownership, the property shall be delivered immediately to the
owner, unless such property is contraband or is to be used as evidence
in a pending case. Property seized as evidence shall be returned to the
owner after final judgment. Property confiscated as contraband shall be
destroyed or otherwise lawfully disposed of as ordered by the Court of
Indian Offenses.
Sec. 11.308 Commitments.
No person may be detained, jailed or imprisoned under the
regulations of this part for longer than 48 hours unless the Court of
Indian Offenses issues a commitment bearing the signature of a
magistrate. A temporary commitment shall be issued for each person held
before trial. A final commitment shall be issued for each person
sentenced to jail after trial.
Sec. 11.309 Arraignments.
(a) Arraignment is the bringing of an accused before the court,
informing him or her of his or her rights and of the charge(s) against
him or her, receiving the plea, and setting conditions of pretrial
release as appropriate in accordance with this part.
(b) Arraignment shall be held in open court without unnecessary
delay after the accused is taken into custody and in no instance shall
arraignment be later than the next regular session of court.
(c) Before an accused is required to plead to any criminal charges
the magistrate shall:
(1) Read the complaint to the accused and determine that he or she
understands it and the section(s) of this part that he or she is charged
with violating, including the maximum authorized penalty; and
(2) Advise the accused that he or she has the right to remain
silent, to be tried by a jury if the offense charged is punishable by
imprisonment, to be represented by counsel (which shall be paid for by
the government if the accused is indigent) and that the arraignment will
be postponed should he or she desire to consult with counsel.
(d) The magistrate shall call upon the defendant to plead to the
charge:
(1) If the accused pleads ``not guilty'' to the charge, the
magistrate shall then inform the accused of the trial date and set
conditions for release prior to trial.
(2) If the accused pleads ``guilty'' to the charge, the magistrate
shall accept
[[Page 41]]
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 or any other physical evidence relevant to the determination
of the case and not an undue burden on the person possessing the
evidence. The clerk of the court may act on behalf of the court and
issue subpoenas which have been signed either by the clerk of the court
or by a magistrate of the Court of Indian Offenses and which are to be
served within Indian country over which the Court of Indian Offenses has
jurisdiction.
(b) A subpoena shall bear the signature of the chief magistrate of
the Court of Indian Offenses, and it shall state the name of the court,
the name of the person or description of the physical evidence to be
subpoenaed, the title of the proceeding, and the time and place where
the witness is to appear or the evidence is to be produced.
(c) A subpoena may be served at any place but any subpoena to be
served outside of the Indian country over which the Court of Indian
Offenses has jurisdiction shall be issued personally by a magistrate of
the Court of Indian Offenses.
(d) A subpoena may be served by any law enforcement officer or other
person appointed by the court for such purpose. Service of a subpoena
shall be made by delivering a copy of it to the person named or by
leaving a copy at his or her place of residence or business with any
person 18 years of age or older who also resides or works there.
[[Page 42]]
(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.
(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
[[Page 43]]
(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 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]
[[Page 44]]
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 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
[[Page 45]]
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 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:
[[Page 46]]
(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
(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.
[[Page 47]]
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 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.
[[Page 48]]
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
(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:
[[Page 49]]
(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 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
[[Page 50]]
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 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.
[[Page 51]]
(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 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
[[Page 52]]
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.
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
[[Page 53]]
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.