[Federal Register Volume 67, Number 35 (Thursday, February 21, 2002)]
[Proposed Rules]
[Pages 7985-7988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4106]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 112, 116, 121, 123, 125, 154, 156, 178, and 243

RIN 1076-AD20


Trust Management Reform: Repeal of Outdated Rules

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed removal of rules with request for comments.

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SUMMARY: The Department of the Interior, Bureau of Indian Affairs (BIA) 
proposes to repeal nine parts of Title 25 CFR Chapter 1. These 
revisions are meant to further fulfill the Secretary's responsibility 
to federally-recognized tribes and individual Indians by ensuring that 
all regulations, policies, and procedures are up-to-date. The parts 
proposed for repeal include regulations relating to distribution of 
tribal funds among tribal members, establishment of private trusts for 
the Five Civilized Tribes, distribution of Osage Judgment Funds, 
assignment of future income from the Alaska Native Fund, payment of 
Sioux benefits, preparation of a competency roll of Osage Indians, 
reallotment of lands to Indian children, resale of lands within the 
Badlands Air Force Range, and registration of reindeer ownership in 
Alaska. In the interests of economy of administration, and because all 
of the regulations proposed to be repealed are outdated, they are 
included in one rulemaking vehicle.

DATES: Comments must be submitted in writing and received by us no 
later than April 22, 2002.

ADDRESSES: Comments should be addressed to Linda L. Richardson, Trust 
Policies and Procedures Subproject, Bureau of Indian Affairs, 1849 
``C'' Street, NW., MS-4070-MIB, Washington, DC 20240. Comments will 
also be accepted by telefax at the following telephone number: 202-208-
6426.

FOR FURTHER INFORMATION CONTACT: Linda L. Richardson, 202-208-6411.

SUPPLEMENTARY INFORMATION:
I. Background
II. Part-by-Part Analysis
III. Public Comment Procedures
IV. Procedural Requirements
A. Review Under Executive Order 12866 (Regulatory Planning and 
Review)
B. Review Under Executive Order 12988 (Civil Justice Reform)
C. Review Under Executive Order 12291 and the Regulatory Flexibility 
Act
D. Review Under Small Business Regulatory Enforcement Fairness Act 
of 1996
E. Review Under the Paperwork Reduction Act
F. Review Under Executive Order 13132 (Federalism)
G. Review Under the National Environmental Policy Act of 1969
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under Executive Order 12630 (Takings Implication 
Assessment)
J. Review under Executive Order 13175 (Tribal Consultation)

I. Background

    As described in the Department's ``Trust Management Improvement 
Project--High Level Implementation Plan,'' proper management of Indian 
trust assets has been hampered by a lack of comprehensive, consistent, 
up-to-date regulations, policies, and procedures covering the entire 
trust cycle. Last year, the BIA began revising its trust management 
regulations by issuing proposed revisions to regulations governing 
probate, trust funds, leasing, and grazing. Updated regulations 
affecting these functions became effective on March 23, 2001.
    In April 2001, BIA submitted a report to the Department's Trust 
Policy Council that provided a comprehensive review of regulations, 
manuals and handbooks that guide trust operations. The report included 
recommended actions to bring all policies and procedures current and 
outlined a multi-year schedule to accomplish this goal. The review 
identified a number of regulations still on the books that are no 
longer operative, either because all actions required by law have been 
fully implemented or because the regulation no longer comports with 
Federal Indian policy.

[[Page 7986]]

II. Part-by-Part Analysis

A. 25 CFR Part 112--Pro Rata Shares of Tribal Funds

    During the late 19th and early 20th centuries, the Federal 
Government attempted to weaken tribal governments by dividing or 
allotting tribal land among tribal members. A corollary to the 
allotment policy was a provision (March 2, 1907, c. 2523, 34 Stat. 
1221; 25 U.S.C. 119, 121) that authorized the Secretary of the 
Interior--

``to designate any individual Indian belonging to any tribe or 
tribes whom he may deem to be capable of managing his or her 
affairs, and he may cause to the apportioned and allotted to any 
such Indian his or her pro rata share of any tribal or trust funds 
on deposit in the Treasury of the United States to the credit of the 
tribe or tribes of which said Indian is a member. * * *''

    The regulations in part 112 established the criteria used by the 
BIA to determine whether to approve an individual's application for a 
pro rata share of tribal funds.
    The Federal policy of attempting to assimilate individual Indians 
and weaken tribal governments was reversed in 1934 with the passage of 
the Indian Reorganization Act (June 18, 1934; 48 Stat. 984-988; 25 
U.S.C. 461 et seq.). This statute ended the allotment of tribal lands 
to individual tribal members and authorized restoration of so-called 
``surplus'' lands to tribal ownership. The Indian Reorganization Act 
did not specifically repeal the various laws that had previously 
authorized the allotment of tribal lands to individual members; it did, 
however, render those laws inoperative: `` * * * hereafter no land of 
any Indian reservation * * * shall be allotted in severalty to any 
Indian.'' Similarly, we believe that the Secretary's discretionary 
authority to distribute pro rata shares of tribal funds was also made 
inoperative by Section 4 of the Indian Reorganization Act: `` * * * no 
sale, devise, gift, exchange or other transfer of restricted Indian 
lands or of shares in the assets of any Indian tribe * * * shall be 
made or approved * * * '' (25 U.S.C. 464).
    A number of Indian tribes make per capita payments to tribal 
members from tribal trust funds. Repeal of part 112 will not affect 
tribal decisions over the use of tribal funds. Repeal will only 
eliminate the Secretary's discretionary authority to withdraw tribal 
funds, without tribal consent, and give those funds to a tribal member.

B. Part 116--Trusts for the Five Civilized Tribes

    In 1933 Congress passed a law (47 Stat. 777) giving the Secretary 
of the Interior discretionary authority to approve agreements between 
members of the Five Civilized Tribes (FCT) and private banks or trust 
companies to manage trust assets for members of the FCT. The 
regulations in part 116 establish the procedures for eligible Indians 
to apply for the establishment of a trust; identify the obligations of 
the trust company; specify allowable investments; require an annual 
accounting; and establish the trustee's compensation.
    A subsequent law, the Act of August 4, 1947 (61 Stat. 731), 
provided in section 5: ``That all funds and securities now held by, or 
which may hereafter come under the supervision of the Secretary of the 
Interior * * * are hereby declared to be restricted and shall remain 
subject to the jurisdiction of said Secretary * * * '' (61 Stat. 733). 
While this law did not specifically repeal section 2 of the Act of 
January 27, 1933 (Act) 1933, the authority conveyed by that section of 
the Act is clearly discretionary (``The Secretary of the Interior be, 
and he is hereby, authorized to permit, in his discretion and subject 
to his approval * * * '').
    Current federal policy, as provided in 25 CFR part 115, allows 
adult Indians, with the exception of those who are non compos mentis or 
who are determined to need assistance in managing their finances, ready 
access to any and all funds held in trust. When an adult withdraws 
money from an Individual Indian Money account, the individual Indian 
may freely determine how that money will be spent or reinvested. As a 
policy matter, the Secretary has determined that the same treatment 
should be extended to members of the Five Civilized Tribes.

C. Part 121--Distribution of Judgment Funds Awarded to the Osage Tribe 
of Indians in Oklahoma

    Public Law 92-586 (25 U.S.C. 883) directed how the Secretary of the 
Interior was to distribute judgment funds awarded by the Indian Claims 
Commission to the Osage Tribe of Indians in Oklahoma and authorized the 
Secretary to issue regulations to carry out the terms of the law. The 
regulations in part 121 provided notice of the eligibility requirements 
for per capita payments; established a 1974 deadline for filing a 
claim; and described how the money would be distributed. As all per 
capita payments subject to these regulations were disbursed more than 
25 years ago, the regulations are no longer required.

D. Part 123--Alaska Native Fund

    The Alaska Native Claims Settlement Act, Public Law 92-203, as 
amended, (ANCSA) required that payments be made over a period of years 
to the Regional Corporations that were established by the Act. 
Subsequent provisions allowed the Regional Corporations to assign 
future income due under ANCSA.
    The regulations in part 123 established the procedures to request 
an assignment of future income. As the last payments due under ANSCA 
were made almost 20 years ago, there is no future income subject to 
assignment and the regulations should be repealed.

E. Part 125--Payment of Sioux Benefits

    Between 1889 and 1934, Congress passed a number of laws authorizing 
benefit payments to Sioux tribal members. The regulations in part 125 
identified eligibility requirements, established an application 
procedure and an appeals procedure. All payments due under the various 
statutes have been paid and the regulations are no longer required.

F. Part 154--Osage Roll, Certificate of Competency

    In 1948 Congress passed a law (62 Stat. 18) that required the 
Secretary of the Interior to issue certificates of competency to any 
adult member of the Osage Tribe of less than one-half Indian blood. The 
regulations in part 154 described the process used by the BIA to 
prepare a competency roll including how the degree of Indian blood and 
determination of age would be computed. The 1948 law was repealed 30 
years later by Public Law 95-496 (92 Stat. 1660). As there is no longer 
a statutory basis for the regulations, part 154 is proposed for repeal.

G. Part 156--Reallotment of Lands to Unallotted Indian Children

    Section 3 of a 1910 statute (36 Stat. 855-863) provided that an 
Indian who had an allotment could relinquish all or part of the 
allotment to any of his or her children to whom no allotment had been 
made. The regulations in part 156 prescribe the process that the 
original allottee must follow to relinquish the allotment to one or 
more children.
    The provision of both the statute and the regulations cover only 
those Indians who had allotments in 1910. As allottees had to be at 
least 21 years of age, any persons currently eligible for coverage by 
this provision or these regulations would be at least 112 years of age.
    The BIA has broader regulations in Part 152--Issuance of Patents in 
Fee,

[[Page 7987]]

Certificates of Competency, Removal of Restrictions, and Sale of 
Certain Indian Lands. The regulatory authority included in part 156 is 
covered by Sec. 152.17, (s)ales, exchanges, and conveyances by or with 
the consent of the individual Indian owner. Among the authorities cited 
in this subsection is the Act of June 25, 1910 (36 Stat. 855) that is 
the basis for the narrower regulations in part 156. As part 152 
provides all required regulatory authority, part 156 can be repealed.

H. Part 178--Resale of Lands Within the Badlands Air Force Gunnery 
Range (Pine Ridge Aerial Gunnery Range)

    The Badlands National Monument Boundary Revision Act (82 Stat. 663) 
provided an opportunity for former land owners to reacquire lands that 
had been purchased from them by the Federal Government. The regulations 
in part 178 defined those eligible to purchase the lands, prescribed 
the application and conveyance process, and identified allowable land 
uses. As the deadline to file an application to reacquire the lands 
expired in 1969, these regulations are no longer necessary.

I. Part 243--Reindeer in Alaska

    The Reindeer Industry Act of 1937, 25 U.S.C. 500 et seq., required 
all non-Natives in Alaska who owned reindeer to file a declaration of 
ownership. The regulations in part 243 notify such owners of the form 
to be used and designate the General Reindeer Supervisor in Nome, AK as 
the agent to receive such declarations. As the deadline for filing the 
notices under these regulations expired on September 1, 1938, the 
regulations are no longer required.

III. Public Comment Procedures

    The regulatory repeal proposed in this rulemaking eliminates nine 
regulations that are no longer necessary. These changes are proposed to 
ensure that all regulations governing provision of trust services to 
Indian tribes and individual Indians are current and accurately reflect 
departmental principles for managing Indian trust assets. The public is 
invited to make substantive comment on any of these proposed changes.
    Comments should be submitted in writing to the address indicated in 
the ADDRESSES section of this document. Comments may also be telefaxed 
to the following telephone number: 202-208-6426. All comments received 
will be available for public inspection at the Bureau of Indian 
Affairs, Policies and Procedures Subproject, Room 4552, 1849 C Street, 
NW., Washington, DC 20240. All written comments received by the date 
indicated in the DATES section of this document and all other relevant 
information in the record will be carefully assessed and fully 
considered prior to publication of the final rule. Any information 
considered to be confidential must be so identified and submitted in 
writing. We will not consider comments submitted anonymously. However, 
if you wish us to withhold your name and/or address, you must state 
this prominently at the beginning of your comment. The BIA reserves the 
right to determine the confidential status of the information and to 
treat it according to our determination (see 10 CFR 1004.11).

IV. Procedural Requirements

A. Review Under Executive Order 12866 (Regulatory Planning and Review)

    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 a ``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 of 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.
    The Proposed rule would repeal a number of outdated regulations. As 
such, it does not impose a compliance burden on the economy generally 
or on any person or entity. Accordingly, this rule is not a 
``significant regulatory action'' from an economic standpoint, and it 
does not otherwise create any inconsistencies or budgetary impacts to 
any other agency or Federal program.

B. Review Under Executive Order 12988 (Civil Justice Reform)

    With respect to the review of existing regulations and the 
promulgation of new regulations, subsection 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 of proposed regulations, subsection 3(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.
    Subsection 3(c) of Executive Order 12988 requires agencies to 
review proposed regulations in light of applicable standards in section 
3(a) and section 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. The BIA has determined that 
the proposed regulation meets the relevant standards of Executive Order 
12988.

C. Review Under Executive Order 12291 and the Regulatory Flexibility 
Act

    Because this proposed rule would repeal outdated regulations, the 
BIA has determined that this rule is not a significant rule under 
Executive Order 12991. This proposed rule was also reviewed under the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., which requires 
preparation of a regulatory flexibility analysis for any rule which is 
likely to have significant economic impact on a substantial number of 
small entities.
    This proposed rule updates the Department's policies and procedures 
that apply to certain Indian trust resources by eliminating unneeded 
regulatory requirements. Accordingly, the BIA has determined that this 
proposed regulation will not have a significant economic impact on a 
substantial number of small entities, and, therefore, no regulatory 
flexibility analysis has been prepared.

D. Review Under the Small Business Regulatory Enforcement Fairness Act 
of 1996

    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

[[Page 7988]]

economy of $100,000,000 or more. The effect of this proposed rulemaking 
will be to streamline and modernize policies, procedures and management 
operations of the BIA by eliminating unnecessary regulations. No 
increases in costs for administration will be realized, and no prices 
would be affected through these revisions as, in practice, the 
regulations proposed for repeal are already inoperative.
    This proposed rulemaking will not result in any significant adverse 
effects on competition, employment, investment, productivity, or 
innovation, nor on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets. 
These administrative revisions to BIA policy and procedure will not 
have an impact on any small business businesses or enterprises.

E. Review Under the Paperwork Reduction Act

    This rule is exempt from the requirements of the Paperwork 
Reduction Act, since it repeals existing regulations. An OMB form 83-1 
is not required.

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. While this proposed rule may be of 
interest to tribes, there is no Federalism impact on the trust 
relationship or balance of power between the United States government 
and the various tribal governments affected by this rulemaking. 
Therefore, in accordance with Executive Order 13132, it is determined 
that this rule will not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.

G. Review Under the National Environmental Policy Act of 1969

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. 
Therefore, neither an Environmental Assessment nor an Environmental 
Impact Statement is necessary for this proposed rule.

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 
BIA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to state, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. This proposed rule will not result in 
the expenditure by state, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year.

I. Review Under Executive Order 12630 (Takings Implication Assessment)

    In accordance with Executive Order 12630, this proposed rule does 
not have significant takings implications. This rule does not involve 
the ``taking'' of private property interests.

J. Review Under Executive Order 13175 (Tribal Consultation)

    The BIA determined that, because the proposed repeal of current 
regulations has tribal implications, it was an appropriate topic for 
consultation with tribal governments. This consultation is in keeping 
with Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' In April 2001, BIA sent all tribal leaders a 
report that documents the results of a BIA review of existing 
regulations, policies, and procedures that affect delivery of trust 
services to tribal governments and individual Indians. Included in the 
report was a multi-year schedule for bringing all trust regulations, 
policies and procedures up-to-date. In May 2001, the BIA sent all 
tribal leaders a letter describing identifying ten parts of Title 25 
CFR that we were considering for repeal. Regional directors followed up 
to determine if there were tribal concerns with any aspects of the 
proposal.
    Several tribes expressed opposition to the suggested repeal of Part 
140--Licensed Indian Traders. As a result, we have not included that 
Part in this proposed rulemaking. Two tribes asked that we not repeal 
Part 156--Reallotment of Lands to Unallotted Children. We have included 
that Part in this rulemaking, however, as the regulations in Part 152--
Issuance of Patents in Fee, Certificates of Competency, Removal of 
Restrictions, and Sale of Certain Indian Lands, provides all necessary 
authority that is otherwise provided under part 156.
    One tribe objected to the proposed repeal of Part 125--Payment of 
Sioux Benefits, as they do not consider all Sioux claims to be 
resolved. Part 125 regulated payments authorized under various laws 
that were passed between 1889 and 1934. All monies due under those 
statutes have been paid. In 1973, Congress passed the Indian Tribal 
Judgment Funds Use or Distribution Act, that covers all subsequent 
judgment awards. The regulations implementing that law are found in 
part 87, therefore we believe that part 125 should be repealed.
    Following publication of this proposed rule, BIA will again notify 
tribal governments of the substance of this rule making through a 
direct mailing. This will enable tribal officials and the affected 
tribal constituency throughout Indian Country to have meaningful and 
timely input in the development of the final rule.

List of Subjects

25 CFR Part 112

    Indians--business and finance.

25 CFR Part 116

    Estates, Indians--business and finance, Trusts and trustees.

25 CFR Part 121

    Indians--claims, Indians--judgment funds.

25 CFR Part 123

    Alaska, Indian--claims.

25 CFR Part 125

    Indians--claims, Reporting and recordkeeping requirements.

25 CFR Part 154

    Indians--lands.

25 CFR Part 156

    Indians--lands.

25 CFR Part 178

    Indians--lands.

25 CFR Part 243

    Alaska, Indians--business and finance, Reindeer.

    Accordingly, under the authority in 25 U.S.C. 9, we propose to 
amend 25 CFR chapter 1 by removing parts 112, 116, 121, 123, 125, 154, 
156, 178, and 243.

    Dated: February 14, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 02-4106 Filed 2-20-02; 8:45 am]
BILLING CODE 4310-02-P