[Federal Register Volume 64, Number 78 (Friday, April 23, 1999)]
[Rules and Regulations]
[Pages 19896-19898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10208]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 61

RIN 1076-AD89


Preparation of Rolls of Indians

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Affairs is amending its regulations 
governing the compilation of rolls of Indians in order to reopen the 
enrollment application process for the Sisseton and Wahpeton 
Mississippi Sioux Tribe. The amendment reopens the enrollment period to 
comply with a directive of the Eighth Circuit Court of Appeals, and to 
modify the standards used to verify Sisseton and Wahpeton Mississippi 
Sioux Tribe ancestry.

DATES: This rule becomes effective on May 24, 1999.

FOR FURTHER INFORMATION CONTACT: Daisy West, 202-208-2475.

SUPPLEMENTARY INFORMATION:

Background

    The Bureau of Indian Affairs must reopen the enrollment application 
process authorized under 25 U.S.C. 1300d-3(b) to give individuals 
another opportunity to file applications to share in the Sisseton and 
Wahpeton Mississippi Sioux judgment fund distribution. The Eighth 
Circuit Court of Appeals decision in Loudner v. U.S., 108 F. 3d 896 
(8th Cir. 1997), held that the Bureau of Indian Affairs did not give 
proper notice of the application period, and that 5 months was not a 
sufficient time period within which to file applications, in light of 
the long delay in distribution of the fund.
    This rule reopens the enrollment period to allow adequate time for 
eligible persons to enroll. It also identifies the specific rolls that 
we will use to verify Sisseton and Wahpeton Mississippi Sioux Tribe 
ancestry as required by subsection 7(c) of Pub. L. 105-387.
    On July 8, 1998, the Bureau of Indian Affairs (BIA) published a 
proposed amendment to 25 CFR Part 61 in the Federal Register at 63 FR 
36866. Since then, three things have happened:
    (1) On November 13, 1998, Congress amended the Act of October 25, 
1972, Pub. L. 555, 86 Stat. 1168, to include a provision concerning 
verification of Sisseton and Wahpeton Mississippi Sioux Tribe ancestry.
    (2) BIA held a meeting in Sioux Falls, South Dakota with a group of 
approximately 30 Sisseton and Wahpeton Mississippi Sioux lineal 
descendants and others to discuss the proposed rule that was published 
on July 8, 1998.
    (3) We have received two public comments on the proposed rule.
    In light of these three occurences, we have made several changes to 
the provisions that we published in the proposed rule. We have 
explained these changes in the section of this preamble titled 
``Changes to the Proposed Rule.''

Review of Public Comments

    We received written comments from two individuals. Those comments 
and our responses are as follows:
    1. Comment: We take issue with the timing proposed for establishing 
the application deadline date and object to steps two and three as set 
forth under the provisions of ``Application Deadline''. Due to the 
court proceedings in the Loudner case, there has already been a great 
deal of publicity, correspondence, newspaper articles, and published 
summaries about the rights of lineal descendants since October 1994. 
There have also been at least three public meetings at the Crow Creek 
and Yankton Sioux Reservations in South Dakota. For that reason, the 
lineal descendants who would be entitled to share in the judgment fund 
distribution already know that judgment funds are available and that 
they can apply for them. The application period should be set for a 
fixed period of 60 days.
    Response: While there has been publicity in North and South Dakota 
about the reopening of this enrollment period, there has been little if 
any publicity about this in other parts of the United States. A 
flexible application period will allow us to continue accepting 
applications until the application review process is almost complete 
without significantly affecting the time required to complete the 
review process. It will also give the lineal descendants who live away 
from the Sioux Indian reservations the maximum opportunity to file 
applications. As mentioned elsewhere in this preamble, we are reducing 
the number of days specified in step one of the application process 
from 180 days to 90 days because of the number of applications already 
on file with the Aberdeen Area Office.
    2. Comment: If the Bureau of Indian Affairs cannot process the 
applications within 90 days, the rule should either allow the Federal 
Court to conduct the review or enable the Secretary to retain an 
independent commercial agency to do the review.
    Response: The approximately 3,000 applications that we have 
received are mostly undocumented. They do not include copies of birth 
certificates, marriage certificates, proof of paternity, or, if 
deceased, death certificates. The applications also do not include 
family history charts that show each generation between the applicant 
and an ancestor named on the Sisseton and Wahpeton Mississippi Sioux 
Tribe rolls specified under 25 U.S.C. 1300d-26(c). If we were to limit 
the review process to 90 days, we would have to deny most of the 
applications because they don't include these documents. We would 
prefer not to do this because most of the applicants are probably 
Sisseton and Wahpeton Mississippi Sioux lineal descendants. By 
extending the review process we will have time to review each 
application and ask the applicant for any information that we cannot 
find in our records.
    We also do not think it is feasible for us to ``allow the Federal 
Court to conduct the review'' under federal regulations. If the court 
were to assume jurisdiction of the review, it would probably still 
leave the review process with us. We would be required to submit 
several thousand recommendations to the court for determination. Each 
determination would then be subject to appeal.
    If the review is conducted by the Bureau of Indian Affairs, an 
independent contractor, or under the supervision of the court, the same 
problem remains--insufficient documentation to verify the applicant's 
ancestry. If an applicant's ancestry cannot be sufficiently documented, 
then the application must be denied under 25 U.S.C. 1300d-26(c).
    As we've already explained, a 90-day limitation on the review 
process would force us to deny the many applications that do not 
include proof of Sisseton and Wahpeton Mississippi Sioux ancestry.

Changes to the Proposed Rule

    As a result of the new legislation, we have made the following 
changes to the rule:
    (1) We have added new criteria relating to ancestry in 
Sec. 61.4(s)(1)(i)(A)-(B). These new criteria replace the

[[Page 19897]]

criterion in Sec. 61.4(s)(1)(iv) of the proposed rule.
    (2) We have added new names to the list in Sec. 61.4(s)(1)(v). This 
list was in Sec. 61.4(s)(1)(iv) of the proposed rule.
    As a result of the public meeting and comments, we have changed the 
procedure that we will use to calculate the deadline for receiving 
applications. Specifically, we have reduced the number of days that we 
will use in step one of this procedure from 180 to 90. (We have 
explained the procedure we will use to calculate the application 
deadline in the section of this preamble titled ``Application 
Deadline.'') We have made this change because approximately 3,000 
individuals have already contacted the BIA Aberdeen Area Office 
concerning the reopening of the Sisseton and Wahpeton Mississippi Sioux 
enrollment application process.

Application Deadline

    We have not established a firm application deadline in this rule. 
In order to allow adequate time for submitting and processing 
applications we will establish a deadline using the following three 
steps:
    Step 1. On August 23, 1999, we will count all applications that we 
have received.
    Step 2. We will note the date on which we complete processing of 90 
percent of the applications that we receive by August 23, 1999.
    Step 3. The application deadline will be 90 days after the date in 
Step 2.
    For example, if we receive 10 applications by August 23, 1999, the 
final application deadline date will be 90 days after we process 9 
applications. Similarly, if we receive 10,000 applications by August 
23, 1999, the final application deadline date will be 90 days after we 
process 9,000 applications.
    After we establish the application deadline, we will notify the 
same area directors, agency superintendents, and local newspapers that 
we notify after publishing this rule. (See the section in this preamble 
titled ``Additional Notice and Public Meetings.'') Our notification 
will include application/enrollment criteria.

Additional Notice and Public Meetings

    We will take several steps to ensure that all potential applicants 
are informed of the reopening of the enrollment application period.
    (1) We will notify all BIA Area Directors and Agency 
Superintendents and require them to post notices in area offices, 
agency offices, community centers on and near reservations, and in 
Indian Health Clinics.
    (2) We will notify tribal newspapers and newspapers of general 
circulation in major communities in Montana, North Dakota, South 
Dakota, Nebraska, and Minnesota.
    (3) We will hold community meetings on Indian reservations 
identified from the 1909 roll, including: Cheyenne River, Crow Creek, 
Upper Sioux, Sisseton-Wahpeton, Spirit Lake, Fort Peck, Standing Rock, 
Lower Brule, Yankton, Rosebud, and Pine Ridge.
    At each of the community meetings we will:
    (1) Inform potential beneficiaries of the reopening of the 
enrollment process for this judgment fund;
    (2) Inform potential beneficiaries of eligibility criteria; and
    (3) Help applicants to prepare and file applications.

Previously Submitted Applications

    We have on file applications submitted under Sec. 61.4(s) that we 
denied because we received them after November 1, 1973. We will now 
process these applications. If you previously filed an application that 
we denied, you may wish to confirm that we have it and are processing 
it. To do this, please call the Aberdeen Area Tribal Enrollment Office 
at (605) 226-7376.

Regulatory Planning and Review (E.O. 12866)

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects or entitlement, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because it makes technical changes that do not affect the substance of 
the rules there is no economic effect at all, other than to improve the 
utility of the rules for users.

Small Business Regulatory Enforcement Fairness Act (SBREFA).

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (1) Does not have an annual effect on the economy of $100 million 
or more.
    (2) Will not cause a major increase in cost or prices for 
consumers, individual industries, Federal, State, or geographic 
regions.
    (3) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required.

Federalism (E.O. 12612)

    In accordance with Executive Order 12612, the rule does not have 
significant Federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and 
responsibilities of states.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This rule requires collection of information from many enrollees. 
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d), 
the Department submitted a copy of the application to the Office of 
Management and Budget (OMB) for its review. OMB approved the 
application form and assigned form number 1076-0145 with the expiration 
date of September 30, 2001.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the

[[Page 19898]]

quality of the human environment. A detailed statement under the 
National Environmental Policy Act of 1969 is not required.

List of Subjects in 25 CFR Part 61

    Indians, Indians--claims.

    Dated: April 14, 1999.
Kevin Gover,
Assistant Secretary for Indian Affairs.
    For the reasons given in the preamble, Part 61 of Chapter 1 of 
Title 25 of the Code of Federal Regulations is amended as follows.

PART 61--PREPARATION OF ROLLS OF INDIANS

    1. The authority citation for 25 CFR part 61 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9, 1300d-3(b), 1300d-
26, 1401 et seq.

    2. In Sec. 61.4, paragraph (s) is revised to read as follows:


Sec. 61.4  Qualifications for enrollment and the deadline for filing 
application forms.

* * * * *
    (s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) Persons 
meeting the criteria in this paragraph are entitled to enroll under 25 
U.S.C. 1300d-3(b) to share in the distribution of certain funds derived 
from a judgment awarded to the Mississippi Sioux Indians. To be 
eligible a person must:
    (i) Be a lineal descendent of the Sisseton and Wahpeton Mississippi 
Sioux Tribe;
    (A) Those individuals who applied for enrollment before January 1, 
1998, and whose applications were approved by the Aberdeen Area 
Director before that same date, are deemed to appear in records and 
rolls acceptable to the Secretary or have a lineal ancestor whose name 
appears in these records;
    (B) Those individuals who apply for enrollment after January 1, 
1998, or whose application was not approved by the Aberdeen Area 
Director before that same date, must be able to trace ancestry to a 
specific Sisseton or Wahpeton Mississippi Sioux Tribe lineal ancestor 
who was listed on:
    (1) The 1909 Sisseton and Wahpeton annuity roll;
    (2) The list of Sisseton and Wahpeton Sioux prisoners convicted for 
participating in the outbreak referred to as the ``1862 Minnesota 
Outbreak'';
    (3) The list of Sioux scouts, soldiers, and heirs identified as 
Sisseton and Wahpeton Sioux on the roll prepared under the Act of March 
3, 1891 (26 Stat. 989 et seq., Chapter 543); or
    (4) Any other Sisseton or Wahpeton payment or census roll that 
preceded a roll referred to in paragraphs (s)(1)(i)(B)(1), (2), or (3) 
of this section.
    (ii) Be living on October 25, 1972;
    (iii) Be a citizen of the United States;
    (iv) Not be listed on the membership rolls for the following 
tribes:
    (A) The Flandreau Santee Sioux Tribe of South Dakota;
    (B) The Santee Sioux Tribe of Nebraska;
    (C) The Lower Sioux Indian Community at Morton, Minnesota;
    (D) The Prairie Island Indian Community at Welch, Minnesota;
    (E) The Shakopee Mdewakanton Sioux Community of Minnesota;
    (F) The Spirit Lake Tribe (formerly known as the Devils Lake Sioux 
of North Dakota);
    (G) The Sisseton-Wahpeton Sioux Tribe of South Dakota; or
    (H) The Assiniboine and Sioux Tribes of the Fort Peck Reservation.
    (v) Not be listed on the roll of Mdewakantan and Wahpakoota lineal 
descendants prepared under 25 U.S.C. 1300d-1(b).
    (2) The initial enrollment application period that closed on 
November 1, 1973, is reopened as of May 24, 1999. The application 
period will remain open until further notice.
* * * * *
[FR Doc. 99-10208 Filed 4-22-99; 8:45 am]
BILLING CODE 4310-02-P