[Federal Register Volume 66, Number 144 (Thursday, July 26, 2001)]
[Rules and Regulations]
[Pages 38924-38926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18476]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 89

RIN 1076-AE18


Attorney Contracts With Indian Tribes

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final Rule.

-----------------------------------------------------------------------

SUMMARY: We are issuing a final rule removing the text of certain 
sections and thereafter reserving those sections of the regulations 
pertaining to approval by the Secretary of the Interior of tribal 
attorney contracts, except for those entered into by the Five Civilized 
Tribes (Cherokee, Choctaw, Chickasaw, Creek and Seminole) in Oklahoma. 
Congress repealed our statutory authority for such approvals of tribal 
attorney contracts as part of the Indian Tribal Economic Development 
and Contract Encouragement Act of 2000.

EFFECTIVE DATE: July 26, 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:

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. Congress later confirmed the requirement for 
Secretarial approval of tribal attorney contracts with the passage of 
section 16 of the Indian Reorganization Act (IRA) of 1934, 25 U.S.C. 
476 (Section 476 does not apply to the Five Civilized Tribes (Cherokee, 
Choctaw, Chickasaw, Creek, and Seminole) in Oklahoma. The Secretary has 
separate authority for approval of attorney contracts for the Five 
Civilized Tribes under section 1 of Pub. L. 82-440, 25 U.S.C. 82a.)
    In March 2000, Congress enacted the Indian Tribal Economic 
Development and Contract Encouragement Act of 2000 (the Act), Pub. L. 
106-179. The Act generally replaces Section 81 with a new provision 
that does not include the requirement to approve tribal attorney 
contracts. (We are publishing final regulations today at 25 CFR part 84 
implementing the Act.) Subsection (f) of the Act repeals the portion of 
25 U.S.C. 476 concerning approval of tribal attorney contracts. The Act 
does not address the separate requirement that attorney contracts by 
the Five Civilized Tribes must be approved by the Secretary.
    Because the Act repealed much of our statutory authority for 
approval of tribal attorney contracts, we are today repealing the 
corresponding regulations in 25 CFR part 89. We are not repealing the 
regulations concerning approval of tribal attorney contracts for the 
Five Civilized Tribes, since Congress left our authority for those 
approvals in place. We will, however, issue a separate proposed rule, 
in consultation with the Five Civilized Tribes, to revise these 
regulations, especially 25 CFR 89.30, in light of the amendments to 
section 81. We are also not repealing our regulations in part 89 for 
the payment of tribal attorneys fees.
    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 and any relevant Federal law. As is 
its policy, BIA will defer to the tribe's interpretation of its own law 
regarding such approvals.

Notice and Public Procedure on This Final Rule

    As noted above, this final rule is effective on the publication of 
this notice. Under 5 U.S.C. 553(b)(3)(B), notice and public comment on 
this final rule are impracticable, unnecessary, and contrary to the 
public interest. In addition, we have good cause for making this rule 
effective immediately under 5 U.S.C. 553(d)(3). Notice and public 
procedure would be impracticable and unnecessary because this rule is 
merely repealing regulations for which we now have no statutory 
authority.
    Waiting for notice and comment on this final rule would be contrary 
to the public interest. Some of the comments on the proposed part 84 
regulations expressed confusion as to the status of the part 89 
regulations that we are repealing today. By making this a final rule 
effective immediately, we end such confusion.

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:

[[Page 38925]]

    (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 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.
    This final rule is not a ``significant regulatory action'' from an 
economic or policy standpoint. This final rule is pursuant to a 
statutory mandate and is consistent with the Department's policy of 
encouraging tribal self-determination and economic development. The 
final 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. The final 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 final 
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 final 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 final rule is not a major rule as defined by Sec. 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This finals 
rule will not result in an annual effect on the economy of $100 million 
or more. This final 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 final 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 final rule 
is to encourage and foster tribal contracting and, consequently, 
strengthen tribal self-determination and economic development. This 
final 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.

E. Review Under the Paperwork Reduction Act

    No information or recordkeeping requirements are imposed by this 
final 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 final 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 final 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 it is of an administrative, legal, and procedural nature. 
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 final 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.

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.

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 likely to have a significant adverse effect on the 
supply, distribution, or use of energy. This is merely an 
administrative action (the removal of text of certain sections of 
regulations concerning attorney contracts) and does

[[Page 38926]]

not otherwise qualify as significant regulatory action under Executive 
Order 12866 or any successor order.

List of Subjects in 25 CFR Part 89

    Indians--tribal government.

    Under 25 U.S.C. 81 and as discussed in the preamble, amend Title 
25, chapter I, of the Code of Federal Regulations as follows:

PART 89--ATTORNEY CONTRACTS WITH INDIAN TRIBES

    1. The authority citation for part 89 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; secs. 89.30 to 89.35 also issued under 
25 U.S.C. 2, 9, and 82a; secs. 89.40 to 89.43 also issued under 25 
U.S.C. 13, 450 et seq.

    2. Sections 89.1 through 89.26 of part 89 are removed and reserved.

    Dated: July 9, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-18476 Filed 7-25-01; 8:45 am]
BILLING CODE 4310-02-M