[Federal Register Volume 66, Number 144 (Thursday, July 26, 2001)]
[Rules and Regulations]
[Pages 38918-38924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18475]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 84

RIN 1076-AE00


Encumbrances of Tribal Land--Contract Approvals

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: The Department of the Interior, Bureau of Indian Affairs 
(BIA), is issuing a Final Rule that states 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. The regulation 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 regulation sets out 
mandatory conditions for the Secretary's approval.

[[Page 38919]]


EFFECTIVE DATE: September 24, 2001.

FOR FURTHER INFORMATION CONTACT: Duncan L. Brown, Department of the 
Interior, Office of the Secretary, 1849 C Street, NW., MS 7412 MIB, 
Washington, DC 20240, telephone 202/208-4582.

SUPPLEMENTARY INFORMATION:   

I. Background

    Under subsection (e) of the Indian Tribal Economic Development and 
Contract Encouragement Act of 2000 (25 USC 81) (referred to commonly 
and herein as ``Section 81''), the Secretary is required to enact 
regulations establishing which types of agreements are not covered by 
Section 81. The preamble to the Proposed Rule, 65 FR 43874 (July 14, 
2000), provides further background on the history of Section 81, 
including the contents of the 2000 amendments. The Final Rule was 
developed with attention to Secretarial Order 3215, ``Principles for 
the Discharge of the Secretary's Trust Responsibility,'' of April 28, 
2000, which was converted to and made permanent in the Departmental 
Manual on October 31, 2000. See 303 DM 2.
    In a significant departure from past practice, the BIA distributed 
the preliminary drafts of the proposed regulation to the National 
Congress of American Indians (NCAI) and to tribes through BIA regional 
directors, with a request for comments and recommendations. Several 
subsequent meetings were held with an NCAI policies and procedures 
working group to discuss the evolving draft regulation prior to 
publishing the proposed regulation. These meetings included the 
Assistant Secretary--Indian Affairs, the Deputy Commissioner of Indian 
Affairs, staff of the Trust Policies and Procedures (TPP) project, 
trust program managers, and trust program attorneys from the 
Solicitor's Office. Notably, tribal representatives from each BIA 
region and BIA managers participated in a three-day meeting in Mesa, 
Arizona, in April 2000, to discuss the draft regulation.
    The regulation was published in the Federal Register on July 14, 
2000, (65 FR 43874) with a 90-day public comment period to solicit 
comments from all interested parties. The BIA received 19 written 
comments from tribes, tribal representatives, and tribal organizations. 
During the comment period, the BIA discussed the regulation and 
received oral comments on the record at seven formal tribal 
consultation sessions with tribal leaders, individual Indians, and 
other interested parties: Aberdeen, SD (August 7-8, 2000); Oklahoma 
City, OK (August 10, 2000); Bloomington, MN (August 17, 2000); 
Albuquerque, NM (August 21 and 22, 2000 [two separate consultation 
meetings]; Billings, MT (August 24, 2000); and Reno, NV (August 28-29, 
2000). Transcripts were made of these sessions in order to ensure that 
both oral and written comments were considered. Following the 
consultation meetings, several BIA regional and agency offices 
established informal local working groups with tribes to encourage 
discussion of the proposed regulations and submission of written 
comments. Throughout the comment period the BIA met on an informal 
basis to discuss the regulations with interested organizations, 
including the NCAI working group and the Inter-Tribal Monitoring 
Association. In sum, tribes and individual Indians have had an 
extraordinary opportunity to provide meaningful input on the proposed 
regulation through informal consultations on the early drafts, formal 
consultations, and the public comment period.
    Comments were forwarded to a clearinghouse for compilation. The 
comments and compilation documents were carefully reviewed by the 
regulation drafting team, made up of BIA employees from the Central 
Office and trust program attorneys from the Solicitor's Office. 
Depending upon their merit, the Department accepted, accepted with 
revision, or rejected particular comments made on each part of the 
rule. Substantive comments and responses by the BIA are summarized 
below.

II. Response to Comments

    As noted in the section-by-section analysis below, in direct 
response to comments the regulations have been clarified. No sections 
were deleted from the Proposed Rule to the Final Rule. One new section 
was added in the Final Rule at section 84.007 and the proposed section 
84.007 was renumbered to section 84.008.

General Observations Regarding Changes From Proposed Rule

    Overall, respondents recommended that we provide clarifications as 
to the types of agreements that do not require approval under Section 
81. Therefore, in response to these comments, we revised definitions 
and language to make clearer the types of agreements that are not 
subject to Section 81. These revisions included corrections to the 
treatment of corporations under 25 USC 477 and contracts under 25 USC 
450f or compacts under 25 USC 458aa. Several respondents recommended 
that we develop specific procedures for the submission and review of 
contracts covered under this Part. The BIA does not intend to prescribe 
any particular format for submission of requests for approval. 
Additionally, internal procedures for BIA review are not appropriate 
for rulemaking, but will be addressed in the Indian Affairs Manual.
    We also received comments concerning Section 81's repeal of our 
authority to approve tribal attorney contracts, except for those 
entered into by the Five Civilized Tribes (Cherokee, Choctaw, 
Chickasaw, Creek, and Seminole) in Oklahoma. As noted in the preamble 
to the Proposed Rule, BIA will now only approve attorney contracts if 
required to do so under a tribal constitution. The criteria, if any, 
for approval of such contracts will be those in the tribal constitution 
and any relevant Federal law. As is its policy, BIA will defer to the 
tribe's interpretation of its own law regarding such approvals. 
Consistent with the repeal of our statutory authority for approval of 
tribal attorney contracts, we are today repealing relevant portions of 
the regulations for such approvals at 25 CFR Part 89.

Section-by-Section Analysis

Section 84.001  What Is the Purpose of This Part?
    Summary of Section. Section 84.001 states the purpose of the rule 
as being the implementation of the Indian Economic Development and 
Contract Encouragement Act of 2000, Pub. L. 106-179.
    Comments. We received no comments on this section and no changes 
were made.
Section 84.002  What Terms Must I Know?
    Summary of Section. Section 84.002 contains terms necessary for 
understanding the rule. The term ``encumber,'' which Congress did not 
define in the Act, refers, consistent with the Act's legislative 
history, to the possibility that a third party could gain exclusive or 
nearly exclusive proprietary control over tribal land. The ``third 
party'' in this definition refers to any party outside of the tribe 
who, under the terms of the contract or agreement, could gain exclusive 
or nearly exclusive proprietary control over tribal land, such as a 
lender or the holder of a secured interest in any improvements for a 
transaction involving a tribe and a potential lessee. We have defined 
``Indian tribe'' as it is defined in the Act. The definition of 
``tribal lands'' in the rule is the same as the definition of ``Indian 
lands'' in the

[[Page 38920]]

Act. We have used ``tribal lands'' to make it clear that the provisions 
of the Act and this rule do not apply to individually owned lands.
    Comments. We received comments to revise the definitions of 
``encumber '', ``Indian tribe'', and ``tribal lands''. We modified the 
definition of ``encumber'' to clarify that the terms of the contract or 
agreement will determine whether the contract or agreement encumber 
tribal lands. We did not accept the recommendations to change the 
definitions of ``Indian tribe'' and ``tribal lands''. These definitions 
are those provided by Congress. We did, however, modify the definition 
of ``Indian tribe'' to reflect the actual language of the Indian Self-
Determination and Education Assistance Act, 25 U.S.C. 450b(e), as 
directed by Congress.
Section 84.003  What Types of Contracts and Agreements Require 
Secretarial Approval Under This Part?
    Summary of Section. 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 
rule. As noted in the preamble to the Proposed Rule, the legislative 
history of Section 81 states, for example, that, if the default 
provision in a contract or agreement allows a third party (e.g., a 
lender) to operate the facility, that contract or agreement would 
``encumber'' tribal land within the meaning of Section 81. If, however, 
the lender is only entitled to first right to the revenue from the 
facility, the contract or agreement would not ``encumber'' tribal land.
    Comments. No comments were received for this section and no changes 
were made.
Section 84.004  Are There Types of Contracts and Agreements That Do Not 
Require Secretarial Approval Under This Part?
    Summary of Section. Section 84.004 indicates that the following 
types of contracts or agreements are not subject to this 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, separate from existing statutory requirements. 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 least a tract of tribal 
land at a future date, 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 or 25 U.S.C. 477. Currently, this 
exemption only applies to certain leases by the Tulalip Tribes, the 
Navajo Nation, and tribes with a corporate charter authorized by 25 
U.S.C. 477.
     Subleases and assignments of leases of tribal land that do 
not require approval by the Secretary under Part 162 of this title. 
This provision will ensure maximum consistency with BIA policies 
concerning different types of leases.
     Contracts or agreements that convey temporary use rights 
assigned by tribes, in the exercise of their jurisdiction over tribal 
lands, to tribal members. Such assignments are internal tribal matters. 
We must approve any 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 exempt from Secretarial approval under 
the terms of a corporate charter authorized under 25 U.S.C. 477.
     Tribal attorney contracts. However, as noted above, 
although the Act repealed the federal statutory requirements for 
approval of most attorney contracts, the BIA will still do so if 
required under a tribal constitution.
     Contracts or agreements entered into in connection with a 
contract under the Indian Self-Determination Act, 25 U.S.C. 450f, or a 
compact under the Tribal Self-Governance Act, 25 U.S.c. 458aa. This is 
to conform to the exemption of these contracts from approval by the 
Secretary under 25 U.S.C. 4501(c)(15)(A).
     Contracts or governments 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 FPA already 
provides for review of such contracts or agreements by the Secretary.
    Comments. Several comments recommended that the rule provide 
specific examples of contracts that do not encumber tribal land. These 
comments were partially accepted and clarifications were provided in 
this section concerning certain types of agreements such as hydropower 
projects and assignments of tribal land to tribal members.
    The preamble to the Proposed Rule stated that Section 81 did not 
apply by its terms to any contracts or agreements entered into by 
corporations chartered under 25 U.S.C. 477. Commenters noted that there 
was no support in either Section 81 or its legislative history for such 
a statement. We agree, and have narrowed the exemption to only those 
contracts or agreements entered into by those corporations that do not 
otherwise require Secretarial approval. Conversely, commenters stated 
that the exemption in the Proposed Rule limited to attorney contracts 
entered into by Self-Governance tribes was too narrow, ignoring the 
broad exemption from Secretarial approval under 25 U.S.C. 
4501(c)(15)(A) for any contract or agreement entered into under the 
Indian Self-Determination Act, 25 U.S.C. 450f, or a compact under the 
Tribal Self-Governance Act, 25 U.S.C. 458aa. We accepted the comments 
and broadened the exemption accordingly.
    We rejected comments that recommended that the rule contain an 
exhaustive list of contracts or agreements that do not encumber tribal 
land. Such a list is not practicable because the determination of 
encumbrance is conducted on a case-by-case basis. For example, a 
restrictive covenant or conservation easement may encumber tribal land 
within the meaning of Section 81, while an agreement that does not 
restrict all economic use of tribal land may not. An agreement whereby 
a tribe agrees not to interfere with the relationship between

[[Page 38921]]

a tribal entity and a lender, including an agreement not to request 
cancellation of the lease, may encumber tribal land, depending on the 
contents of the agreement. Similarly, a right of entry to recover 
improvements or fixtures may encumber tribal land, whereas a right of 
entry to recover personal property may not.
Section 84.005  Will the Secretary Approve Contracts or Agreements Even 
Where Such Approval Is Not Required Under This Part?
    Summary of Section. Section 84.005 makes it clear that the 
Secretary will return to the submitting tribes those contracts and 
agreements that do not require his or her approval. Therefore, we will 
no longer issue ``accommodation approvals.''
    Comments. We received several comments recommending that the 
regulation specify a specific time frame when the Secretary will return 
contracts and agreements with a statement explaining why Secretarial 
approval is not required. We accepted these comments and added a time 
frame in this section that states that within thirty days after receipt 
of final, executed documents, the Secretary will return such contracts 
and agreements with a statement explaining why Secretarial approval is 
not required. We also received comments requesting provisions for 
appeal of determinations under this section. These comments were not 
accepted because Part 2 of this Title applies to all decisions made by 
the Secretary, including those under this section.
Section 84.006  Under What Circumstances Will the Secretary Disapprove 
a Contract or Agreement That Requires Secretarial Approval Under This 
Part?
    Summary of Section. Section 84.006 establishes the criteria for 
disapproval of a contract or agreement under this 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 in the preamble to 
the Proposed Rule, consistent with the legislative history of the Act, 
these are the only criteria for Secretarial disapproval under this 
rule.
    Comments. Many respondents provided comments that recommended that 
the Secretary consult with tribes prior to disapproving a contract or 
agreement so that tribes may have an opportunity to correct elements 
that may lead to disapproval. We accepted these comments and added 
subsection (b) to this section to identify that the Secretary will 
consult with tribes for this purpose. We also received comments asking 
whether the Secretary will require particular kinds of remedies for a 
contract or agreement. Consistent with the purposes of Section 81, the 
Secretary will only identify whether remedies are addressed but will 
not disapprove a contract or agreement based on the types of remedies 
used.
Section 84.007  What Is The Status of a Contract or Agreement That 
Requires Secretarial Approval Under This Part But Has Not Yet Been 
Approved?
    Summary of Section. This section provides that a contract or 
agreement that requires Secretarial approval under this Part is not 
valid until the Secretary approves it.
    Comments. This section was added to the Final Rule in response to 
several comments. We also received comments recommending that we 
determine in the rule whether contracts can be approved retroactively 
by the Secretary. Decisions as to whether a particular contract or 
agreement may be approved retroactively will be made on a case-by-case 
basis. Such retroactive effect may be approved if the Secretary is 
satisfied that the consideration for the contract or agreement was 
adequate; that the tribe received the full consideration bargained for; 
that there is no evidence of fraud, overreaching, or other illegality 
in the procurement of the contract or agreement; and that the 
conditions of section 84.006 of this Part are met. Wishkeno v. Deputy 
Assistant Secretary--Indian Affairs (Operations), 11 IBIA 21 (1982).
Section 84.008  What Is the Effect of the Secretary's Disapproval of a 
Contract or Agreement That Requires Secretarial Approval Under This 
Part?
    Summary of Section. Section 84.008 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 section 84.005 of this rule) is that the contract or 
agreement is invalid.
    Comments. There were no comments on this section. The section was 
renumbered from Sec. 84.007 in the Proposed Rule to this section of the 
Final Rule.

III. 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 rule is not a ``significant 
regulatory action'' from an economic or policy standpoint. This rule is 
pursuant to a statutory mandate and is consistent with the Department's 
policy of encouraging tribal self-determination and economic 
development. The 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 or 
remedies. 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 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

[[Page 38922]]

    (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 rule meets the relevant 
standards of Executive Order 12988.

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 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 rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more. This 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 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 rule is to 
encourage and foster tribal contracting and, consequently, strengthen 
tribal self-determination and economic development. This 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 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 by their terms 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 record keeping requirements are imposed by this 
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 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 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 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 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 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 or remedies. 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 rule unless 
a tribe voluntarily enters into a contract or agreement that could 
encumber tribal land for seven years or more. As noted above, tribes 
were asked for comments prior to publication of this Final Rule.

J. Review Under Executive Order 13211--Energy

    In accordance with the President's Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355), we have determined that this 
rulemaking is not a significant regulatory action under Executive Order 
12866 and is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy. This rulemaking simply 
clarifies those types of contracts or agreements encumbering tribal 
land that are not subject to the approval of the Secretary

[[Page 38923]]

of the Interior under the Indian Tribal Economic Development and 
Contract Encouragement Act of 2000. This is, therefore, an 
administrative clarification and would not otherwise have any impact on 
the Nation's energy resources.

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, amends 25 CFR chapter I by adding 
Part 84 to read as follows:

PART 84--ENCUMBRANCES OF TRIBAL LAND--CONTRACT APPROVALS

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

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


Sec. 84.001  What is the purpose of this part?

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


Sec. 84.002  What terms must I know?

    The Act means the Indian Tribal Economic Development and Contract 
Encouragement Act of 2000, Public Law 106-179, which amends section 
2103 of the Revised Statutes, found at 25 U.S.C. 81.
    Encumber means to attach a claim, lien, charge, right of entry or 
liability to real property (referred to generally as encumbrances). 
Encumbrances covered by this part may include leasehold mortgages, 
easements, and other contracts or agreements that by their terms could 
give to a third party exclusive or nearly exclusive proprietary control 
over tribal land.
    Indian tribe, as defined by the Act, means any Indian tribe, 
nation, or other organized group or community, including any Alaska 
Native Village or regional or village corporation as defined in or 
established under the Alaska Native Claims Settlement Act, which is 
recognized as eligible for special programs and services provided by 
the Secretary to Indians because of their status as Indians.
    Secretary means the Secretary of the Interior or his or her 
designated representative.
    Tribal lands means those lands held by the United States in trust 
for an Indian tribe or those lands owned by an Indian tribe subject to 
federal restrictions against alienation, as referred to Public Law 106-
179 as ``Indian lands.''


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

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


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

    Yes, the following types of contracts or agreements do not require 
Secretarial approval under this part:
    (a) Contracts or agreements otherwise reviewed and approved by the 
Secretary under this title or other federal law or regulation. See, for 
example, 25 CFR parts 152 (patents in fee, certificates or competency); 
162 (non-mineral leases, leasehold mortgages); 163 (timber contracts); 
166 (grazing permits); 169 (rights-of-way); 200 (coal leases); 211 
(mineral leases); 216 (surface mining permits and leases); and 225 
(mineral development agreements);
    (b) Leases of tribal land that are exempt from approval by the 
Secretary under 25 U.S.C. 415 or 25 U.S.C. 477;
    (c) Sublease and assignments of leases of tribal land that do not 
require approval by the Secretary under part 162 of this title;
    (d) Contracts or agreements that convey to tribal members any 
rights for temporary use of tribal lands, assigned by Indian tribes in 
accordance with tribal laws or custom;
    (e) Contracts or agreements that do not convey exclusive or nearly 
exclusive proprietary control over tribal lands for a period of seven 
years or more;
    (f) Contracts or agreements that are exempt from Secretarial 
approval under the terms of a corporate charter authorized by 25 U.S.C. 
477;
    (g) Tribal attorney contracts, including those for the Five 
Civilized Tribes that are subject to our approval under 25 U.S.C. 82a;
    (h) Contracts or agreements entered into in connection with a 
contract under the Indian Self-Determination Act, 25 U.S.C. 450f, or a 
compact under the Tribal Self-Governance Act, 25 U.S.C. 458aa.
    (i) Contracts or agreements that are subject to approval by the 
National Indian Gaming Commission under the Indian Gaming Regulatory 
Act, 25 U.S.C. 2701 et seq., and the Commission's regulations; or
    (j) Contracts or agreements relating to the use of tribal lands for 
hydropower projects where the tribal lands meet the definition of a 
``reservation'' under the Federal Power Act (FPA), provided that:
    (1) Federal Energy Regulatory Commission (FERC) has issued a 
license or an exemption;
    (2) FERC has made the finding under section 4(e) of the FPA (16 
U.S.C. 797(e)) that the license or exemption will not interfere or be 
inconsistent with the purpose for which such reservation was created or 
acquired; and
    (3) FERC license or exemption includes the Secretary's conditions 
for protection and utilization of the reservation under section 4(e) 
and payment of annual use charges to the tribe under section 10(e) of 
the FPA (16 U.S.C. 803(e)).


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

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


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

    (a) The Secretary will disapprove a contract or agreement that 
requires Secretarial approval under this part if the Secretary 
determines that such contract or agreement:
    (1) Violates federal law; or
    (2) Does not contain at least one of the following provisions that:
    (i) Provides for remedies in the event the contract or agreement is 
breached;
    (ii) References a tribal code, ordinance or ruling of a court of 
competent

[[Page 38924]]

jurisdiction that discloses the right of the tribe to assert sovereign 
immunity as a defense in an action brought against the tribe; or
    (iii) Includes an express waiver of the right of the tribe to 
assert sovereign immunity as a defense in any action brought against 
the tribe, including a waiver that limits the nature of relief that may 
be provided or the jurisdiction of a court with respect to such an 
action.
    (b) The Secretary will consult with the Indian tribe as soon as 
practicable before disapproving a contract or agreement regarding the 
elements of the contract or agreement that may lead to disapproval.


Sec. 84.007  What is the status of a contract or agreement that 
requires Secretarial approval under this part but has not yet been 
approved?

    A contract or agreement that requires Secretarial approval under 
this part is not valid until the Secretary approves it.


Sec. 84.008  What is the effect of the Secretary's disapproval of a 
contract or agreement that requires Secretarial approval under this 
part?

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

    Dated: July 9, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-18475 Filed 7-25-01; 8:45 am]
BILLING CODE 4310-02-M