[Federal Register Volume 65, Number 136 (Friday, July 14, 2000)]
[Proposed Rules]
[Pages 43952-43956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17562]


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DEPARTMENT OF THE INTERIOR

25 CFR Part 84

RIN 1076-AE03


Encumbrances of Tribal Land--Contract Approvals

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We are issuing a proposed rule stating which types of 
contracts or agreements encumbering tribal land are not subject to 
approval by the Secretary of the Interior under the Indian Tribal 
Economic Development and Contract Encouragement Act of 2000, Public Law 
106-179. The proposed rule also provides, in accordance with the Act, 
that Secretarial approval is not required (and will not be granted) for 
any contract or agreement that the Secretary determines is not covered 
by the Act. Finally, for contracts and agreements that are covered by 
the Act, the proposed rule sets out mandatory conditions for the 
Secretary's approval.

DATES: You must submit any written comments no later than October 12, 
2000.

ADDRESSES: Comments (2 copies) should be addressed to: U.S. Forest 
Service (CAET), 200 E. Broadway, Missoula, MT 59807 Attn: Trust Rule.

FOR FURTHER INFORMATION CONTACT: Art Gary, Bureau of Indian Affairs, 
Trust Policies and Procedures Project, 202-208-6422.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1871, Congress enacted Section 2103 of the Revised Statutes, 
codified at 25 U.S.C. 81 (Section 81). It placed several restrictions, 
including a requirement for approval by the Secretary of the Interior, 
on contracts between any person and any Indian tribe or individual 
Indians for

the payment or delivery of any money or other thing of value, in 
present or in prospective, or for the granting or procuring any 
privilege to him, or any other person in consideration of services 
for said Indians relative to their lands, or to any claims growing 
out of, or in reference to, annuities, installments, or other 
moneys, claims, demands, or thing, under laws or treaties with the 
United States, or official acts of any officers thereof, or in any 
way connected with or due from the United States.

Section 81 reflected Congressional concern that Indian tribes and 
individual Indians were incapable of protecting themselves from fraud 
in their financial affairs. To that end, it also required that the 
Secretary approve any contracts for legal services between an Indian 
tribe and an attorney, and provided that any person could bring an 
action in the name of the United States to enforce the Section's 
requirements (the ``qui tam'' provision).
    Over the years, administration of this statute became difficult. 
Although it was interpreted early on not to apply to leases of Indian 
land (see Lease of Indian Lands for Grazing Purposes, 18 Op. Atty. Gen. 
235 (1885)), parties opposed to such leases still asked courts to 
invalidate them based on alleged non-compliance with Section 81. See, 
e.g., United States ex rel. Harlon v. Bacon, 21 F.3d 209 (8th Cir. 
1994) (a suit under the qui tam provision). As time went on, there was 
confusion over exactly what contracts Section 81 did or did not cover. 
The Bureau of Indian Affairs (BIA) began to issue ``accommodation 
approvals'' for contracts that did not require the Secretary's 
approval, but where the relevant Indian tribe requested that they be 
approved anyway to avoid casting any doubt upon the tribe's authority 
to enter into the contract. To accommodate the tribe's request, the BIA 
would ``approve'' the contract, even though such ``approval'' was not 
required under Section 81.
    In addition to administrative problems, Section 81 became outdated. 
It was a relic of a paternalistic policy towards Indian tribes 
prevalent at the end of the nineteenth century. As noted by the Senate 
Committee on Indian Affairs in its report on Pub. L. 106-179 (the 
Senate Report), ``Indian tribes, their corporate partners, courts, and 
the BIA have struggled for decades with how to apply Section 81 in an 
era that emphasizes tribal self-determination, autonomy, and 
reservation economic development.'' Congress attempted to address some 
of these concerns through enactment of later statutes such as the 
Indian Reorganization Act (IRA) of 1934, 48 Stat. 984; the Indian Self-
Determination and Education Assistance Act of 1975, Pub. L. 93-638; and 
the Indian Mineral Development Act of 1982, Pub. L. 97-382. Since, 
however, Congress did not change the provisions of Section 81 (except 
for a minor amendment in 1958), the uncertainty in its application 
continued.
    To address this uncertainty, Congress enacted the Indian Tribal 
Economic Development and Contract Encouragement Act of 2000 (the Act), 
Pub. L. 106-179, in March 2000. Section 2 of the Act replaces the text 
of Section 81 with six subsections. Subsection (a) supplies 
definitions, which are incorporated into the proposed regulations. 
Subsection (b) provides that agreements or contracts with Indian tribes 
that encumber Indian lands for a period of seven or more years are not 
valid unless they bear the approval of the Secretary of the Interior or 
a designee of the Secretary. By making this change, Section 81 no 
longer applies to a broad range of commercial transactions. Instead, as 
noted in the Senate Report, Section 81 will apply only to those 
transactions where the contract between the tribe and a third

[[Page 43953]]

party could allow that party to exercise exclusive or nearly exclusive 
proprietary control over the Indian lands. The intent is to protect the 
tribe from loss of proprietary control of its lands and to provide the 
measure of certainty in the application of Section 81 that was lacking 
in the prior law.
    Subsection (c) provides that a determination by the Secretary that 
an agreement is not covered by Section 81 has the effect of making the 
section inapplicable. The Senate Report notes that ``it would 
contradict the law's intent if parties made a practice of submitting 
agreements where Section 81 is patently inapplicable, simply to obtain 
an official endorsement of this conclusion.'' Thus, with the removal of 
the uncertainty regarding the validity of such agreements, the BIA will 
no longer issue ``accommodation approvals.'' Also, and most importantly 
for purposes of this proposed rule, this subsection is meant to work in 
conjunction with subsection (e) that requires that the Secretary enact 
regulations within 180 days from the law's enactment establishing which 
types of agreements are not covered by Section 81.
    Subsection (d) requires the Secretary to disapprove any agreement 
otherwise covered by the law, if it is in violation of federal law. The 
Secretary must disapprove, also, if the contract or agreement fails to 
address sovereign immunity in one or more of the three ways specified, 
specifically a provision that: provides remedies to address a breach of 
the agreement; provides a reference to applicable law (found in tribal 
code, ordinance, or competent court ruling) that discloses the tribe's 
right to assert immunity; or waives immunity in some manner. As noted 
in the Senate Report, ``consistent with the principles of tribal self-
determination, this bill does not direct the BIA to substitute its 
business judgment over that of a tribal government.'' These are, 
therefore, the only criteria in the Act for approval or disapproval of 
contracts or agreements that are subject to the Act.
    Subsection (f) removes the statutory requirement that attorney 
contracts must be approved by the Secretary. It also makes clear that 
the Act is not intended to make any changes to provisions of the Indian 
Gaming Regulatory Act of 1988, Pub. L. 100-497, which require federal 
approval. Finally, consistent with the long-standing principle that the 
federal trust obligation may not be unilaterally terminated, the Act 
does not alter those tribal constitutions that require federal 
approvals for specific tribal actions, such as attorney contracts. 
Thus, the Secretary must still approve or disapprove attorney contracts 
if a tribal constitution so requires. The criteria, if any, for 
approval of such contracts will be those in the tribal constitution.
    Those tribes with corporate charters under Section 17 of the IRA, 
25 U.S.C. 477 are exempt from the requirements of the Act.

II. Section-by-Section Analysis of the Proposed Rule

    Section 84.001 states the purpose of the proposed rule as being the 
implementation of the Indian Economic Development and Contract 
Encouragement Act of 2000, Pub. L. 106-179.
    Section 84.002 contains terms necessary for understanding the 
proposed rule. The term ``encumber,'' which Congress did not define in 
the Act, refers, consistent with the Senate Report, to the possibility 
that a third party could gain exclusive or nearly exclusive proprietary 
control over tribal land. We have defined ``Indian tribe'' as it is 
defined in the Act. The definition of ``tribal lands'' in the proposed 
rule is the same as the definition of ``Indian lands'' in the Act. We 
have used ``tribal lands'' to make it clear that the provisions of the 
Act and this proposed rule do not apply to individually owned lands.
    Section 84.003 indicates that, unless otherwise exempted, those 
contracts and agreements that encumber tribal lands for a period of 
seven or more years require Secretarial approval under this proposed 
rule. The Senate Report uses the following examples:

For example, a lender may finance a transaction on an Indian 
reservation and receive an interest in tribal lands as part of that 
transaction, If, for example, one of the remedies for default would 
allow this interest to ripen into authority to operate the facility, 
this would constitute an adequate encumbrance to bring the contract 
within Section 81. By contrast, if the transaction concerned 
``limited recourse financing'' and the lender merely acquired the 
first right to all of the revenue derived from specified lands for a 
period of years, this would not constitute a sufficient encumbrance 
to bring the transaction within Section 81.

    Section 84.004 indicates that the following types of contracts or 
agreements are not subject to this proposed rule:
     Contracts or agreements otherwise reviewed and approved by 
the Secretary under this title or other federal law or regulation. 
Congress did not repeal any other requirement for Secretarial approval 
of encumbrances, nor did it state that the Act imposed an additional 
approval process. This exemption is also consistent with previous 
opinions of both the Department of the Interior and the Department of 
Justice, judicial decisions, and legislative history of the Indian 
Mineral Development Act, all of which consistently state that the 
requirements of Section 81 do not apply to leases, rights-of-way, and 
other documents that convey a present interest in tribal land. Note, 
however, that contracts and agreements that are similar to those 
approved under other federal law or regulation, but are not subject to 
that approval, such as a contract between a tribe and another party to 
enter into a lease, may be subject to approval under this Part.
     Leases of tribal land that are exempt from approval by the 
Secretary under 25 U.S.C. 415. Currently, this exemption only applies 
to certain leases by the Tulalip tribes.
     Subleases and assignments of leases of tribal land that do 
not require approval by the Secretary under part 162 of this title. We 
have waived approval of these instruments either in a master lease 
approved by us or by regulation.
     Contracts or agreements that convey any use rights 
assigned by tribes, in the exercise of their jurisdiction over tribal 
lands, to tribal members. Such assignments are internal tribal matters. 
We would approve any further encumbrances of the assigned tribal land 
under this part or another relevant regulation (e.g., 25 CFR part 162).
    Contracts or agreements that do not convey exclusive or nearly 
exclusive proprietary control over tribal lands for a period of seven 
years or more. By definition, such contracts or agreements do not 
encumber the land under the Act. Such contracts or agreements may 
include contracts for personal services; construction contracts; 
contracts for services performed for tribes on tribal lands; and bonds, 
loans, security interests in personal property, or other financial 
arrangements that do not and could not involve interests in land.
     Contracts that are entered into by tribal corporations 
chartered under 25 U.S.C. 477. As noted above, the Act specifically 
does not apply to such tribes.
     Tribal attorney contracts. However, as noted above, 
although the Act repealed the federal statutory requirements for 
approval of attorney contracts, the BIA must still do so if required 
under a tribal constitution.
     Attorney and other professional contracts by Indian tribal 
governments identified as Self-Governance Tribes under 25 U.S.C. 450, 
as amended. This is to conform to the exemption of these contracts from 
approval by the Secretary under 25 U.S.C. 458cc(h)(2).

[[Page 43954]]

     Contracts or agreements that are subject to approval by 
the National Indian Gaming Commission. The Act specifically exempts 
these contracts and agreements from its provisions, and the National 
Indian Gaming Commission will continue to review and approve contracts 
that provide for management of a tribal gaming activity.
     Contracts or agreements under the Federal Power Act (FPA) 
relating to the use of tribal lands that meet the definition of a 
``reservation'' under the FPA, with certain conditions. The provisions 
of the FPA cited in the conditions already provide for review of such 
contracts or agreements by the Secretary.
    Section 84.005 makes it clear that the Secretary will return to the 
submitting tribes those contracts and agreements that do not require 
his approval. Therefore, we will no longer issue ``accommodation 
approvals.''
    Section 84.006 establishes the criteria for disapproval of a 
contract or agreement under this proposed rule. Specifically, the 
Secretary must disapprove those contracts or agreements that would 
violate federal law or those that do not contain provision(s) regarding 
the exercise of tribal sovereign immunity. As noted above, consistent 
with the legislative history of the Act, these are the only criteria 
for Secretarial review under this proposed rule.
    Section 84.007 states, consistent with Section 2(b) of the Act, 
that the effect of disapproval of a contract or agreement under this 
part (as opposed to return of a contract or agreement under Sec. 84.005 
of this proposed rule) is that the contract or agreement is invalid.

III. Public Comments

    The addition of a new part 84 to 25 CFR is necessitated by the 
enactment of the Indian Tribal Economic Development and Contract 
Encouragement Act of 2000, Public Law 106-179. The Department is 
responding to the statutory requirement that regulations to implement 
the law be developed within 180 days of the enactment of Pub. L. 106-
179. The public is invited to make substantive comments on the 
Department's proposed promulgation of this new part. Two copies of 
written comments should be submitted to the address indicated in the 
ADDRESSES section of this notice. All comments will be available for 
public inspection at the Department of the Interior, Office of the 
Secretary, MS 7214 MIB, Washington, DC 20240. Comments may also be 
telefaxed to the following number: 406/329-3021. Email comments will be 
accepted at: [email protected] All written comments received 
by the date indicated in the DATES section of this notice and all other 
relevant information in the record will be carefully assessed and fully 
considered prior to publication of a final rule.
    Our practice is to make comments, including the names and addresses 
of persons commenting, available for public review during regular 
business hours. Persons commenting as private individuals may request 
that we withhold their home address from the rulemaking record, which 
we will honor to the extent allowable by law. There may also be 
circumstances in which we would withhold from the rulemaking record a 
commenter's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. We will not consider anonymous comments. 
Comments from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, will be available for public inspection in their 
entirety.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the BIA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations or recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this proposed rule is not a 
``significant regulatory action'' from an economic or policy 
standpoint. This proposed rule is pursuant to a statutory mandate and 
is consistent with the Department's policy of encouraging tribal self-
determination and economic development. The proposed rule reduces the 
number of contracts the Department has to review each year. Prior to 
the amendments enacted under Pub. L. 106-179, tribes had to submit 
certain contracts for approval by the Secretary of the Interior for 
which Secretarial approval has now (through enactment of Pub. L. 106-
179) been deemed unnecessary. Those tribes having contracts or 
agreements covered under the new law, however, must include a statement 
regarding their sovereign immunity. This is an intergovernmental 
mandate; however, it would not affect the rights of either party under 
such contracts and agreements, but would only require that these rights 
be explicitly stated. The cost burden on the tribes for including this 
provision would be minimal. Otherwise, the proposed rule has no direct 
or indirect impact on any other agency, does not materially alter the 
budgetary impact of financial programs, or raise novel legal or policy 
issues.

B. Review Under Executive Order 12988

    With respect to the promulgation of new regulations, section 3(a) 
of Executive Order 12988, ``Civil Justice Reform,'' 61 FR 4729 
(February 7, 1996), imposes on Executive agencies the general duty to 
adhere to the following requirements: (1) Eliminate drafting errors and 
ambiguity; (2) write regulations to minimize litigation; and (3) 
provide a clear legal standard for affected conduct rather than a 
general standard and promote simplification and burden reduction. With 
regard to the review required by section 3(a), section (b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and 3(b) to determine whether they are met or 
it is unreasonable to meet one or more of them. The Department of the 
Interior has determined that, to the extent permitted by law, the 
proposed rule meets the relevant standards of Executive Order 12988.

[[Page 43955]]

C. Review Under the Regulatory Flexibility Act

    A Regulatory Flexibility analysis under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) is not required for this proposed rule 
because it applies only to tribal governments, not State and local 
governments.

D. Review Under the Small Business Regulatory Enforcement Act of 1996 
(SBREFA)

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
proposed rule will not result in an annual effect on the economy of 
$100 million or more. This proposed rule will not result in a major 
increase in costs or prices. In fact, it is estimated that the 
Department will save time and resources through the proposed rule 
because the number of contracts submitted for Secretarial approval will 
be reduced. Therefore, no increases in costs for administration will be 
realized and no prices would be impacted through the streamlining of 
the contract approval process within the Department and the BIA. The 
effect of the proposed rule is to encourage and foster tribal 
contracting and, consequently, strengthen tribal self-determination and 
economic development. This proposed rule will not result in any 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets. The impact of the proposed rule will be realized by 
tribal governments in the economy of administration accorded contract 
negotiation between tribes and third parties. Unless the contracts 
contemplate an encumbrance of Indian lands or could otherwise lead to 
the loss of tribal proprietary control over such lands, the Department 
would not require such contracts and agreements to be submitted to the 
BIA for approval. The Department anticipates, therefore, that the 
impacts to small business or enterprises and the tribes themselves will 
be positive and, indeed, allow for greater flexibility in contracting 
for certain services on Indian lands.

E. Review Under the Paperwork Reduction Act

    No information or recordkeeping requirements are imposed by this 
proposed rule. Accordingly, no OMB clearance is required under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

F. Review Under Executive Order 13132 Federalism

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

G. Review Under the National Environmental Policy Act of 1969

    This proposed rule is categorically excluded from the preparation 
of an environmental assessment or an environmental impact statement 
under the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et 
seq., because its environmental effects are too broad, speculative, or 
conjectural to lend themselves to meaningful analysis and the Federal 
actions under this proposed rule (i.e., approval or disapproval of 
contracts or agreements that could encumber Tribal lands for a period 
of seven years or more) will be subject at the time of the action 
itself to the National Environmental Policy Act process, either 
collectively or case-by-case. Further, no extraordinary circumstances 
exist to require preparation of an environmental assessment or 
environmental impact statement.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the Act, the 
Department generally must prepare a written statement, including a 
cost-benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by state, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. This proposed rule will not result in 
the expenditure by the state, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. The Department does take notice, however, that the proposed rule 
(in response to Pub. L. 106-179) requires that a tribe entering into a 
covered contract include a specific statement regarding its sovereign 
immunity. This is an additional enforceable duty imposed on the tribes, 
and so would constitute an intergovernmental mandate under the Unfunded 
Mandates Reform Act. However, the cost of this mandate would be 
minimal.

I. Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of May 14, 1998, 
``Consultation and Coordination with Indian Tribal Governments'' (63 FR 
27655) and 512 DM 2, we have evaluated any potential effects upon 
Federally recognized Indian tribes and have determined that there are 
no potential adverse effects. No action is taken under this proposed 
rule unless a tribe voluntarily enters into a contract or agreement 
that could encumber tribal land for seven years or more. Tribes will be 
asked for comments prior to publication as a final regulation of this 
proposed rule and their comments will be considered prior to 
publication.

List of Subjects in 25 CFR Part 84

    Administrative practice and procedure, Indians--lands.
    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, proposes to amend 25 CFR chapter I 
by adding part 84 to read as follows:

PART 84--ENCUMBRANCES OF TRIBAL LAND

Sec.
84.001  What is the purpose of this part?
84.002  What terms must I know?
84.003  What types of contracts and agreements require Secretarial 
approval under this part?
84.004  Are there types of contracts and agreements that do not 
require Secretarial approval under this part?
84.005  Will the Secretary approve contracts or agreements even 
where such approval is not required under this part?
84.006  When will the Secretary disapprove a contract or agreement 
that requires Secretarial approval under this part?
84.007  What is the effect of the Secretary's disapproval of a 
contract or agreement that requires Secretarial approval under this 
part?

    Authority: 25 U.S.C. 81, Pub. L. 106-179.


Sec. 84.001  What is the purpose of this part?

    The purpose of this part is to implement the provisions of the 
Indian Tribal Economic Development and Contract Encouragement Act of 
2000, Public Law 106-179, which amends Section 2103 of the Revised 
Statutes, found at 25 U.S.C. 81.


Sec. 84.002  What terms must I know?

    The Act means the Indian Tribal Economic Development and Contract 
Encouragement Act of 2000, Public Law 106-179, which amends Section 
2103 of the Revised Statutes, found at 25 U.S.C. 81.

[[Page 43956]]

    Encumber means to attach a claim, lien, charge, right of entry or 
liability to real property (referred to generally as encumbrances). 
Encumbrances covered by this part may include leasehold mortgages, 
easements, and other contracts or agreements that could give to a third 
party exclusive or nearly exclusive proprietary control over tribal 
land.
    Indian tribe means any Indian tribe, nation, band, pueblo, 
rancheria, colony, or community, including any Alaska Native Village or 
regional or village corporation as defined or established under the 
Alaska Native Claims Settlement Act, which is federally-recognized by 
the United States government for special programs and services provided 
by the Secretary to Indians because of their status as Indians.
    Secretary means the Secretary of the Interior or his or her 
designated representative.
    Tribal lands means those lands held by the United States in trust 
for a tribe or those lands owned by a tribe subject to federal 
restrictions against alienation, as referred to in Public Law 106-179 
as ``Indian lands.''


Sec. 84.003  What types of contracts and agreements require Secretarial 
approval under this part?

    Unless otherwise provided in this part, contracts and agreements 
entered into by an Indian tribe that encumber tribal lands for a period 
of seven or more years require Secretarial approval under this part.


Sec. 84.004  Are there types of contracts and agreements that do not 
require Secretarial approval under this part?

    Yes. The following types of contracts or agreements do not require 
Secretarial approval:
    (a) Contracts or agreements otherwise reviewed and approved by the 
Secretary under this title or other federal law or regulation. See, for 
example, 25 CFR parts 152, 162, 163, 166, 169, 200, 211, 216, and 255;
    (b) Leases of tribal land that are exempt from approval by the 
Secretary under 25 U.S.C. 415;
    (c) Subleases and assignments of leases of tribal land that do not 
require approval by the Secretary under part 162 of this chapter;
    (d) Contracts or agreements that convey any use rights assigned by 
tribes, in the exercise of their jurisdiction over tribal lands, to 
tribal members.
    (e) Contracts or agreements that do not convey exclusive or nearly 
exclusive proprietary control over tribal lands for a period of seven 
years or more;
    (f) Contracts or agreements that are entered into by tribal 
corporations chartered under 25 U.S.C. 477;
    (g) Tribal attorney contracts;
    (h) Attorney and other professional contracts by Indian tribal 
governments identified as Self-Governance Tribes under 25 U.S.C. 450, 
as amended, for the period that a Self-Governance agreement is in 
effect;
    (i) Contracts or agreements that are subject to approval by the 
National Indian Gaming Commission under the Indian Gaming Regulatory 
Act, 25 U.S.C. 2701 et seq., and the Commission's regulations; or
    (j) Contracts or agreements relating to the use of tribal lands 
that meet the definition of a ``reservation'' under the Federal Power 
Act (FPA), provided that:
    (1) the Federal Energy Regulatory Commission (FERC) has issued a 
license or an exemption;
    (2) FERC has made the finding under Section 4(e) of the FPA (16 
U.S.C. 797(e)) that the license or exemption will not interfere or be 
inconsistent with the purpose for which such reservation was created or 
acquired; and
    (3) the FERC license or exemption includes the Secretary's 
conditions for protection and utilization of the reservation under 
Section 4(e) and payment of annual use charges to the tribe under 
Section 10(e) of the FPA (16 U.S.C. 803(e)).


Sec. 84.005  Will the Secretary approve contracts or agreements even 
where such approval is not required under this part?

    No. The Secretary will not approve contracts or agreements that do 
not encumber tribal lands for a period of seven or more years. The 
Secretary will return such contracts and agreements with a statement 
explaining why Secretarial approval is not required. The provisions of 
the Act will not apply to those contracts or agreements the Secretary 
determines are not covered by the Act.


Sec. 84.006  When will the Secretary disapprove a contract or agreement 
that requires Secretarial approval under this part?

    The Secretary will disapprove a contract or agreement that requires 
Secretarial approval under this part if the Secretary determines that 
such contract or agreement:
    (a) Violates federal law; or
    (b) Does not contain at least one of the following:
    (1) A provision that provides for remedies in the event the 
contract or agreement is breached;
    (2) A provision that references a tribal code, ordinance or ruling 
of a court of competent jurisdiction that discloses the right of the 
tribe to assert sovereign immunity as a defense in an action brought 
against the tribe; or
    (3) A provision that includes an express waiver of the right of the 
tribe to assert sovereign immunity as a defense in any action brought 
against the tribe, including a waiver that limits the nature of relief 
that may be provided or the jurisdiction of a court with respect to 
such an action.


Sec. 84.007  What is the effect of the Secretary's disapproval of a 
contract or agreement that requires Secretarial approval under this 
part?

    If the Secretary disapproves a contract or agreement that requires 
Secretarial approval under this part, the contract or agreement is 
invalid as a matter of law.

    Dated: July 5, 2000.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 00-17562 Filed 7-13-00; 8:45 am]
BILLING CODE 4310-02-P