25 CFR 38.7 Appointment of educators.
(a) Local school employees. Local Bureau school employees shall be
appointed only by the school supervisor. Before the local school
employee is employed, the school board shall be consulted. An
individual's appointment may be finalized only upon receipt of a formal
written determination certified by the local school board under such
uniform procedures as it may adopt. Written determination by the school
board should be received within a reasonable period, but not to exceed
30 days. Failure of the school board to act within this period shall
have the effect of approving the proposed appointment. The local school
board shall use the same written procedure to disapprove an appointment.
The school supervisor may appeal to the ASE, or, where appropriate, to
the AEPA, any determination by the local school board concerning an
individual's appointment. A written statement of appeal describing the
action and the reasons the supervisor believes such action should be
overturned must be filed within 10 days of receipt of the action from
the local school board. A copy of such statement shall be submitted to
the school board and the board shall be afforded an opportunity to
respond, not to exceed 10 calendar days, in writing, to the appeal.
After reviewing such written appeal and response, the ASE or AEPA may,
for cause, overturn the action of the local school board. The ASE or
AEPA must transmit the determination of the appeal (in the form of a
written opinion) to the board and to the supervisor identifying the
reasons for overturning the action within 10 calender days. Failure to
act within the 10 calendar day period shall have the effect of approving
the local school board's determination.
(b) School supervisors. School supervisors may be appointed only by
the ASE, except the AEPA shall appoint school supervisors for
off-reservation boarding schools and those few other schools supervised
by the AEPA. The school board shall be consulted before the school
supervor is employed. The appointment may be finalized upon receipt of
a formal written determination certified by the school board under any
uniform procedures as it may adopt. Written determination by the school
board shall be received within a reasonable period, but not to exceed 30
days. Failure of the school board to act within this period shall have
the effect of approving the proposed appointment. The school board
shall use the same procedure to disapprove an appontment. Within 20
calendar days of receipt of any determination by the school board
concerning an individual's appointment, the ASE or AEPA, as appropriate,
may appeal to the Director by filing a written statement describing the
determination and the reasons the supervisor believes the determination
should be overturned. A copy of the statement shall be submitted to the
local school board and the board shall be afforded an opportunity to
respond, within 10 calendar days, in writing, to such an appeal. The
Director may reverse the determination for cause set out in writing to
the school board. Within 20 calendar days of the school board's
response, the Director shall transmit the determination of the appeal
(in the form of a written opinion) to the board and to the ASE or AEPA
identifying the reasons for overturning the determination. Failure by
the Director to act within the 20 calendar day period shall have the
effect of approving the school board's determination.
(c) Agency office education program employees. Appointments to
Agency office education positions may be made only by the ASE. The
Agency school board shall be consulted before the agency education
employee is employed, and the appointment may be finalized upon receipt
of a formal, written determination certified by the Agency school board
under any uniform procedures as it may adopt. Written determination by
the school board shall be received within a reasonable period, but not
to exceed 30 days. Failure of the school board to act within this
period shall have the effect of approving the proposed appointment. The
Agency school board shall use the same written procedure to disapprove
an appointment. Within 20 calendar days of receipt of any determination
by the school board concerning an individual's appointment, the ASE may
appeal to the Director by filing a written statement describing the
determination and the reasons the supervisor believes the determination
should be overturned. A copy of the statement shall be submitted to the
Agency school board and the board shall be afforded an opportunity to
respond, within 10 calendar days, in writing, to such appeal. After
reviewing the written appeal and response, the Director may, for cause,
overturn the determination of the Agency school board. Within 20 days
of the board's response, the Director shall transmit the determination
of the appeal (in the form of a written opinion) to the board and to the
ASE identifying the reasons for overturning the determination. Failure
of the Director to act within the 20 calendar day period shall have the
effect of approving the school's board's determination.
(d) Employment contracts. The Bureau shall issue employment
contracts each year for individuals employed in contract education
positions at the Agency or school levels.
(e) Absence of local school boards. Where a local school board has
not been established in accordance with section 1139(7) Pub. L. 95-561
with respect to a Bureau school, or where a school board is not
operational, and the local school board is required to be given a notice
or required to be consulted by statute or these regulations, the
official involved shall notify or consult with the Agency school board
serving the tribe(s) to which the parents of the Indian children
atending that school belong, or, in that absence, the tribal
organization(s) of the tribe(s) involved.
(f) Provisional contracts. Provisional certification or other
limited certificates from the State are not considered full
certification and only a provisional contract may be issued. There may
be circumstances when no individual who has met the full certification
or experience requirements is available for a professional position or
when a status quo employee who does not meet full certification or
experience requirements desires to convert to contract. When this
situation exists, a provisional contract may be issued in accordance
with the following:
(1) The contract will be made only:
(i) After it is determined that an individual already meeting
certification or experience requirements is not available; or
(ii) For conversion of a status quo employee who does not yet meet
all established position requirements.
(2) Consultation with the appropriate school board is required prior
to the contract.
(3) The contract may be of 12-month or school-term duration.
(4) The employee will be required to make satisfactory progress
toward meeting full qualification requirements.
(5) If the employee fails to meet the requirements established under
38.7(f)(4), the contract will be terminated. Such termination cannot be
grieved or appealed.
(g) Conditional appointment. As provided in section 1131(d)(4), Pub.
L. 95-561, if an individual who has applied at both the national and
local levels is appointed from a local list of applicants, the
appointment shall be conditional for 90 days. During that period, the
individual's application and background shall be examined to determine
if there is a more qualified individual for the position. Removal
during this period is not subject to discharge, hearing or grievance
procedures.
(h) Short-term contracts. (1) There may be circumstances where
immediate action is necessary and it is impossible to consult with the
local school board. When this situation exists short-term contracts may
be made by the school supervisor in accordance with the following:
(i) The length of the contract will not exceed 60 days, or the next
regularly scheduled school board meeting, whichever comes first.
(ii) If the board meets and does not take action on the individual in
question, the short-term contract may be extended for the duration of
the school year.
(iii) It shall be the responsibility of the school supervisor to
fully inform the local school board of all such short-term contracts.
Failure to do so may be cited as reason to discharge the school
supervisor if so requested by the board.
(2) The local school board may authorize the school supervisor to
make an emergency short-term contract to classroom, dormitory and other
positions directly related to the health and safety of students. When
this situation exists, short-term contracts may be made in accordance
with the following:
(i) If local and agency lists of qualified applicants are exhausted,
short-term contracts may be made without regard to qualifications for
the position;
(ii) The pay level will be based on the qualifications of the
individual employed rather than the requirements of the position, if the
qualifications of the individual are lower than required;
(iii) The short-term contract may not exceed the school term and may
not be renewed or extended;
(iv) Every 60 days the school supervisor will determine if qualified
individuals have been placed on the local or agency lists. If a
qualified individual on the list accepts employment, the school
supervisor must terminate the emergency appointment at the time the
qualified individual is appointed.
(i) Temporary contracts. There may be circumstances where a specific
position is needed for a period of one year or less. Under these
conditions a position may be advertised as a temporary position and be
filled under a temporary contract. Such contract requires the same
school board approval as a school year contract. If required for the
completion of the activities specified in the original announcement, the
position, may with school board approval be extended for up to one
additional year. Temporary contracts may be terminated at any time and
this action is not subject to approval or grievance procedures.
(j) Waiver of Indian preference. Notwithstanding any provision of
the Indian preference laws, such laws shall not apply in the case of any
personnel action within the purview of this section respecting an
application or employee not entitled to Indian preference if each tribal
organization concerned grants, in writing, a waiver of the application
of such laws with respect to such personnel action, where such a waiver
is in writing deemed to be a necessity by the tribal organization,
except that this shall in no way relieve the Bureau of its
responsibility to issue timely and adequate announcements and
advertisements concerning any such personnel action if it is intended to
fill a vacancy (no matter how such vacancy is created). When a waiver
is granted, it shall apply only to that particular position and as long
as the employee remains in that position.
(k) Prohibited reappointment. An educator who voluntarily terminates
employment before the end of the school term may not be appointed to
another Bureau education position before the beginning of the following
school term. An educator will not be deemed to have voluntarily
terminated employment if transferred elsewhere with the consent of the
local school or Agency boards.
(l) Contract renewals. The appropriate school board shall be
notified in writing by the school supervisor and/or ASE or AEPA not less
than 90 days before the end of the school term whether or not an
individual's contract is recommended for renewal.
(1) If the school board disagrees with the school supervisor's or
ASE's or AEPA's recommendations, the board will submit a formal, written
certification of its determinations to the school supervisor or ASE or
AEPA within 25 days. If the board's determinations are not received
within the 25 days, the school supervisor or ASE or AEPA shall issue the
60 day notification of renewal or nonrenawal to the individual as
required under 38.8.
(2) When the school board submits its determination within the 25
days and determines that a contract will be renewed, or nonrenewed, the
appropriate official shall issue the required renewal notice, or
nonrenawal, or appeal the determination of the school board to the
appropriate official who will make a determination in accordance with
the appeal procedure is 38.7(a) of this part. After the probationary
period, if the determination is that the contract will not be renewed,
the procedures specified in 38.8 shall apply.
25 CFR 38.8 Nonrenewal of contract.
Where the determination is made that an employee's contract shall not
be renewed for the following year, the following procedure will apply to
those employees who have completed three full continuous school terms of
service under consecutive contract appointments and satisfactory
performance in the same or comparable education positions.
(a) The employee will be given a written notice of the action and the
reasons thereof not less than 60 days before the end of the school term.
(b) The employee will be given 10 calendar days to request an
informal hearing before the appropriate official or body. Upon request,
the employee may be given official time, not to exceed eight hours, to
prepare a written response to the reason(s).
(c) If so requested, an informal hearing shall be held within 30
calendar days of receipt of the request.
(d) The appropriate official or body will render a written
determination within seven calendar days after the informal hearing.
(e) The employee has a right to request an administrative review by
the ASE or AEPA of the determination within 10 calendar days of that
determination. The ASE or AEPA then has 20 calendar days to render a
final decision. Where the employee is the supervisor of the school or
an agency education employee, any appeal of the ASE or AEPA would be
addressed to the Director for a decision. If the Director or ASE's or
AEPA's decision overturns the appropriate official or bodies
determination, the appropriate official or body will be notified of the
reasons in writing. Failure by the Director or ASE or AEPA to act
within the 20 days will sustain the determination. This completes the
administrative appeal process.
(f) Failure of any of the parties to meet the requirements of the
above procedures will serve to negate the particular action sought by
the negligent party.
(g) Those employees with less than three full continuous school terms
of consecutive contract appointments are serving a probationary period.
Nonrenewal of his/her contract will be considered a continuation of the
examining process. This action cannot be appealed or grieved.
(h) Independent of the procedures outlined in this section, the
school supervisor or ASE or AEPA, for applicable positions, shall be
required to submit to the ASE or AEPA or appropriate higher authority
all nonrenewal actions. Within 60 days, the ASE or AEPA shall review
the nonrenewal actions and may overturn the determination of nonrenewal.
In the event that the ASE or AEPA makes a decision to overturn the
school board determination, the ASE or AEPA shall notify the school
board in writing of his/her reasons for doing so.
(i) No more than the substantial standard of evidence shall be
required to sustain the nonrenewal.
(j) A procedural error shall not be grounds for overturning a
determination of nonrenewal unless the employee shows harmful error in
the application of the Agency's procedures in arriving at such a
decision. For purposes of this section, ''harmful error'' means error
by the Agency in the application of its procedures which, in the absence
or cure of the error, might have caused the Agency to reach a conclusion
different than the one reached. The burden is upon the appellant to
show that based upon the record as a whole, the error was harmful.
i.e., caused substantial harm or prejudice to his/her rights.
(k) Nonrenewal of a contract is not discharge and will not follow the
discharge procedures.
25 CFR 38.9 Discharge of educators.
(a) Discharge for cause. Educators covered under the provision of
this section are excluded from coverage under 5 U.S.C. 7511 and 4303.
In order to provide due process for educators, the Director shall
publish in 62 BIAM representative conditions that could result in the
discharge of educators for cause and procedures to be followed in
discharge cases.
(b) Discharge for inadequate performance. Action to remove educators
for inadequate performance will be taken for failure to meet performance
standards established under 5 U.S.C. 4302. Performance standards for all
educators will include, among others, lack of student achievement.
Willful failure to exercise properly assigned supervisory
responsibilities by supervisors shall also be cause for discharge.
(c) Other discharge. The Director shall publish in 62 BIAM a
description of the budgetary and programmatic conditions that may result
in the discharge of educators for other than cause during the school
term. The individual's personnel record will clearly reflect that the
action taken is based upon budgetary or programmatic restraints and is
not a reflection on the employee's performance.
(d) Procedures for discharge for cause. The Director shall publish
in 62 BIAM the procedural steps to be followed by school supervisors,
ASE's, and AEPA's in discharge for cause cases. These procedures shall
provide (among other things) for the following:
(1) The educator to be discharged shall receive a written notice of
the proposal, specifying the causes or complaints upon which the
proposal is based, not less than 30 calendar days before the discharge.
However, this shall not prohibit the exclusion of the individual from
the education facility in cases where exclusion is required for the
safety of the students or the orderly operation of the facility.
(2) A reasonable time, but not less than 10 calendar days, will be
allotted for the individual to make written and/or oral responses to the
charge.
(3) An opportunity will be afforded the individual to review the
material relied upon to support the charge.
(4) Official time, not to exceed eight hours, will be provided to the
individual to prepare a response to the charge.
(5) The educator may elect to have a representative and shall furnish
the identity of any representative to the ASE or AEPA. The ASE or AEPA
may disallow, as an employee representative, any individual whose
activities as a representative would cause a conflict of interest or
position, or an employee whose release from his or her official position
would give rise to unreasonable costs to the Government, or when
priority work assignment precludes his or her release from official
duties. The terms of any applicable collective bargaining agreement and
5 U.S.C. 7114(a)(5) shall govern representation of employees in an
exclusive bargaining unit.
(6) The individual has a right to a final decision made by the
appropriate level of supervision.
(7) The individual has a right to appeal the final decision and have
the merits of the case reviewed by a Departmental official not
previously involved in the case. This right includes entitlement to a
hearing upon request under procedures in accordance with the
requirements of due process under section 1131(e)(1)(B) of Pub. L.
95-561.
(e) School board action. (1) The appropriate school board shall be
notified as soon as possible, but in no case later than 10 calendar days
from the date of issue of the notice of intent to discharge.
(2) The appropriate school board, under any uniform procedure as it
may adopt, may issue a formal written certification to the school
supervisor, ASE, or AEPA either approving or disapproving the discharge
before the expiration of the notice period and before actual discharge.
Failure to respond before the expiration of the notice period will have
the effect of approving the discharge.
(3) The school supervisor initiating a discharge action may appeal
the board's determination to the ASE or AEPA within 10 calendar days of
receipt of the board's notice. The ASE or AEPA initiating a discharge
may appeal the board's determination to the Director within 10 calendar
days of receipt of the board's notice. Within 20 calendar days
following the receipt of an appeal, the reviewing official may, for good
cause, reverse the school board's determination by a notice in writing
to the board. Failure to act within 20 calendar days shall have the
effect of approving the board's determination.
(f) School board recommendations for discharge. School boards may
recommend in writing to school supervisors, ASE's, or AEPA's, and the
Director that individuals in the education program be discharged. These
written recommendations may follow any procedures formally established
internally by the school board or tribal government. However, the
written recommendations must contain specific causes or complaints that
may be verified or established by investigation of factual situations.
The official receiving a board recommendation for discharge of an
individual shall acknowledge the recommendation in writing within 10
calendar days of receipt and proceed with a fact finding investigation.
The official who finally disposes of the recommendation shall notify the
school board of the disposition in writing within 60 calendar days of
initiation of the fact finding investigation.
25 CFR 38.10 Conditions of employment of educators.
(a) Supervision not delegated to school boards. School boards may
not direct, control, or interrupt the day-to-day activities of BIA
employees carrying out Bureau-operated education programs.
(b) Employee handbook. Employee handbook and recruiting guides shall
be developed by each local school or agency to provide specific
information regarding:
(1) The working and hiring conditions for various tribal
jurisdictions and Bureau locations;
(2) The need for all education personnel to adapt to local
situations; and
(3) The requirement of all education personnel to comply with and
support duly adopted school board policies, including those relating to
tribal culture or language.
(c) Contract renewal notification. Employees will be notified 60
calendar days before the end of the school term of the intent to renew
or not renew their contract. If an individual's contract is to be
renewed, the individual must agree in writing to serve for the next
school term. This agreement must be received within 14 calendar days of
the date of the notice in order to complete the contract renewal. If
this agreement is not received by the fourteenth day, the employee has
voluntarily forfeited his or her right to continuing employment. If an
individual agrees to serve for the next school term and fails to report
for duty at the beginning of the next school term, the contract will be
terminated and the individual's future appointment will be subject to
the restriction in 38.7(k) of this part.
(d) Dual compensation. An employee accepting a renewal of a school
term contract may be appointed to another Federal position during the
school recess period without regard to the dual compensation regulations
in 5 U.S.C. 5533.
(e) Discrimination complaints. Equal Employment Opportunity (EEO)
procedures established under 29 CFR part 1613 are applicable to contract
employees under this part. It is the policy of the BIA that all
employees and applicants for employment shall be treated equally when
considered for employment or benefits of employment, regardless of race,
color, sex, religion, national origin, age, or mental or physical health
(handicap), within the parameters of Indian preference.
(f) Grievance procedures. The Director shall publish in 62 BIAM
procedures for the rapid and equitable resolution of grievances. In
locations and for positions covered by an exclusive bargaining
agreement, the negotiated grievance procedure is the exclusive avenue of
redress for all matters within the scope of the negotiated grievance
procedure.
(g) Performance evaluation. The minimum number of times a supervisor
shall meet with an employee to discuss performance and suggest
improvements shall be once every three months for the educator's first
year at a school or Agency, and twice annually thereafter during the
school term.
25 CFR 38.11 Length of the regular school term.
The length of the regular school term shall be at least 180 student
instructional days, unless a waiver has been granted under the
provisions of 25 CFR 36.61.
25 CFR 38.12 Leave system for education personnel.
(a) Full-time school-term employees. Employees on a full-time
school-term contract are authorized the following types of leave:
(1) Personal leave. A school-term employee will receive 28 hours of
personal leave to be used for personal reasons and 12 hours of emergeny
leave. This leave only accrues provided the length of the contract
exceeds 24 weeks.
(i) The school-term employee will request the use of this leave in
advance when it is for personal use or personal business (e.g., going to
the bank, etc.). When this leave is requested for emergency purposes
(e.g., death in immediate family), it will be requested immediately
after the emergency is known, if possible, by the employee and before
leave is taken or as soon as the supervisor reports to work on the
official work day.
(ii) Final approval rests with the supervisor. This leave shall be
taken only during the school term. No compensation for or carryover of
unused leave is authorized.
(2) Sick leave. Sick leave is an absence approved by the supervisor
for incapacity from duty due to injury or illness, not related to or
incurred on-the-job and not covered by the Federal Employee's
Compensation Act Regulations. Medical and dental appointments may be
included under this part. However, whenever possible, medical and
dental appointments should be scheduled after instructional time.
(i) Sick leave shall accrue at the rate of four hours each biweekly
pay period in pay status during the term of the contract; and no
precredit or advance of sick leave is authorized.
(ii) Accumulated sick leave at the time of separation will be
recredited to an educator who is reemployed within three years of
separation.
(3) School vacation. School term employees may receive up to 136
hours of school vacation time for use when school is not in session.
School vacations are scheduled on the annual school calendar during the
instructional year and may not be scheduled before the first day of
student instruction or after the last day of student instruction.
School vacations are not a right of the employee and cannot be paid for
or carried over if the employee is required to work during the school
vacation time or if the program will not permit school term employees to
take such vacation time.
(b) Leave for full-time, year-long employees. Employees who are on a
full-time, year-long contract are authorized the following types of
leave:
(1) Vacation leave. Absence approved in advance by the supervisor
for rest and relaxation or other personal reasons is authorized on a per
year basis of Federal Government service as follows: years 1 and 2 of
employment -- 120 hours; years 3-5 of employment -- 160 hours; 6 or
more years -- 200 hours. The supervisor will determine when vacation
leave may be used. Vacation leave is to be scheduled and used to the
greatest extent possible during periods when school is not in session
and the students are not in the dormitories. Vacation leave is credited
to an employee on the day following his or her date of employment,
provided the length of the contract exceeds 24 weeks. An employee may
carry into succeeding years up to 200 hours of vacation leave. Leave
unused at the time of separation is forfeited.
(2) Sick leave. Sick leave accumulation and use is authorized on the
same basis as for school term employees under 38.12(a)(2) of this part.
(c) Leave for part-time year-long employees. Employees who are on
part-time year-long contracts exceeding 20 hours per week are authorized
the following types of leave:
(1) Vacation leave. Absence approved in advance by the supervisor
for rest and relaxation or other personal reasons is authorized on a per
year basis of Federal Government service as follows: years 1 and 2 of
employment -- 64 hours; years 3-5 of employment -- 80 hours; 6 or more
years -- 104 hours. The supervisor shall determine when vacation leave
may be used. Vacation leave is to be scheduled and used to the greatest
extent possible during periods when school is not in session and the
students are not in the dormitories. Vacation leave is credited to an
employee on the day following his or her date of employment provided the
length of the contract exceeds 24 weeks and may not be accumulated in
excess of 104 hours from year to year. An employee may carry over up to
104 hours from one contract year to the next. Leave unused at the time
of separation is forfeited.
(2) Sick leave. Sick leave is accumulated on the basis of three
hours each biweekly pay period in pay status; no precredit or advance
of sick leave is authorized. Accumulated sick leave at the time of
separation will be recredited to an educator who is reemployed within
three years of separation.
(d) Leave for school term employees on a part-time work schedule in
excess of 20 hours per week. (1) Employees on a part-time work schedule
in excess of 20 hours per week may receive a maximum of 102 hours of
school vacation time; 20 hours of personal/emergency leave; and 63
hours of sick leave accrued at three hours per pay period for the first
21 pay periods of their contracts. Personal/emergency leave only
accrues provided the length of the contract exceeds 24 weeks.
(2) The part-time employee will request the use of this leave in
writing in advance when it is for personal use or personal business
(e.g., going to the bank, etc.). When this leave is requested for
emergency purposes (e.g., death in immediate family), it will be
requested immediately after the emergency is known, if possible, by the
employee and before leave is taken or as soon as the supervisor reports
to work on the official work day.
(3) Final approval rests with the supervisor. This leave shall be
taken only during the school year. No compensation for or carryover of
unused leave is authorized.
(4) Sick leave. Sick leave is an absence approved by the supervisor
for incapacity from duty due to injury or illness, not related to or
incurred on-the-job and not covered by the Federal Employee's
Compensation Act Regulations. Medical and dental appointments may be
included under this part. However, whenever possible, medical and
dental appointments should be scheduled after instructional time.
(i) Sick leave shall accrue at the rate of three hours each biweekly
pay period in pay status for the first 21 pay periods of their contract;
no precredit or advance for sick leave is authorized.
(ii) Accumulated sick leave at the time of separation will be
recredited to an educator who is reemployed within three years of
separation.
(5) School vacation time. Part-time employees may receive up to 102
hours of school vacation time for use when school is not in session.
Approval for the use of this time will be administratively determined by
the school supervisor, ASE or AEPA, and this time may not be scheduled
before the start of school or after the end of school.
(i) All school vacation time for part-time employees will be approved
at the convenience of the program and not as a right of the employee.
(ii) Vacation time cannot be paid for or carried over for a part-time
employee if the employee is required to work during the school vacation
time or if the program will not permit part-time employees to take such
vacation time.
(e) Accountable absences for all contract employees. The following
are considered accountable absences:
(1) Approved absence. If prescheduled and approved by the school
supervisor, ASE or AEPA, as appropriate, an employee may be on leave
without pay.
(2) Absence without leave. Any absence is not prescheduled or
approved in advance or excused by the supervisor is considered absence
without leave.
(3) Court and military leave. Employees are entitled to paid absence
for jury or witness service and military duty as a member of the
National Guard or Reserve under the same terms or conditions as outlined
in sections 6322 and 6323 of title 5 U.S.C., and corresponding
provisions of the Federal Personnel Manual, when the absence occurs
during the regular contract period. Employees may be requested to
schedule their military leave at times other than when school is in
session.
(4) Administrative leave. Administrative leave is an excused absence
from duty administratively authorized without loss of pay or without
charge to leave. This leave is not a substitute for other paid or
unpaid leave categories. Administrative leave usually is authorized on
an individual basis except when a school is closed or a group of
employees are excused from work for a particular purpose. The school
supervisor, ASE or AEPA will grant administrative leave. A school
closing must be approved by the ASE or AEPA.
(f) Educators serving with contracts with work weeks of 20 hours a
week or less are not eligible for any type of paid leave.
(g) For school term educators, no paid leave is earned nor may
accumulated leave be used during any period of employment with the
Bureau between school terms.
(h) Employees issued contracts for intermittent work are not eligible
for any type of paid leave.
(i) Leave transferred in. Annual leave credited to an employee's
accrued leave balance immediately before conversion to a contract
education position or appointment under this part will be carried over
and made available to the employee. Sick leave credited to an
employee's accrued sick leave balance immediately before conversion to a
contract education position or appointment under this part shall be
credited to the employee's sick leave account under the system in
38.12(a)(2) and (b)(2).
25 CFR 38.13 Status quo employees in education positions.
(a) Status quo employees. Individuals who were Bureau employees on
October 31, 1979, with an appointment in either the competitive or
excepted service without time limitation, and who are serving in an
education position, shall be continued in their positions under the
terms and conditions of that appointment with no change in their status
or positions. Such employees are entitled to receive any changes in
compensation attached to the position. Although such employees occupy
''education positions'' as defined in this part, the terms and
conditions of their appointment, status, and entitlements are determined
by competitive service regulations and procedures. Under applicable
procedures, these employees are eligible for consideration for movement
to other positions that are defined as ''contract education'' positions.
Such movement shall change the terms and conditions of their
appointment to the terms and conditions of employment established under
this part.
(b) If the tribe or school board waives the Indian preference law,
the employee loses the early-out retirement eligibility under Pub. L.
96-135, ''early-out for non-Indians,'' if they are entitled to the
early-out retirement. A memorandum for the record on BIA letterhead
shall be signed by the employee and placed on the permanent side of
his/her Official Personnel Folder, along with the tribal resolution, if
the tribe/school board has waived the Indian preference law to employ
the non-Indian.''
(c) Conversion of status quo employees to contract positions. Status
quo employees may request in writing to the school supervisor, ASE or
AEPA, as applicable, that their position be converted to contract. The
appropriate school board will be consulted and a determination made by
such school board whether such individual should be converted to a
contract employee.
(1) Written determination by the school board should be received
within a reasonable period, but not to exceed 30 days from receipt of
the request. Failure of the school board to act within this period
shall have the effect of disapproving the proposed conversion.
(2) With school board approval, an involuntary change in position
shall not affect the current status of status quo education employees.
25 CFR 38.14 Voluntary services.
(a) Scope. An ASE or AEPA may, subject to the approval of the local
school board concerned, accept voluntary services on behalf of Bureau
schools from the private sector, including individuals, groups, or
students. Voluntary service shall be for all non-hazardous activities
where public services, special projects, or school operations are
improved and enhanced. Volunteer service is limited to personal
services received without compensation (salary or wages) by the Bureau
from individuals, groups, and students. Nothing in this section shall
be construed to require Federal employees to work without compensation
or to allow the use of volunteer services to displace or replace Federal
employees.
(b) Volunteer service agreement. An agreement is a written document,
jointly completed by the volunteer, the Bureau school supervisor, and
the school board, that outlines the responsibilities of each. In the
case of students receiving credit for their work (i.e., student
teaching) from an education institution, the agreement will be jointly
completed by the student, a representative of the institution, and the
Bureau school supervisor. In the case of volunteer groups, the
agreement shall be signed by an official of the volunteering
organization, the Bureau school supervisor, and the school board and a
list of signatures and emergency telephone numbers of all participants
shall be attached.
(c) Eligibility. Although no minimum age requirement exists for
volunteers, schools shall comply with appropriate Federal and State laws
and standards on using the services of minors. All volunteers under the
age of 18 must obtain written permission from their parents or guardians
to perform volunteer activities.
(d) Status. Volunteers participating under this part are not
considered Federal employees for any purpose other than:
(1) Title 5 U.S.C. chapter 81, dealing with compensation for injuries
sustained during the performance of work assignments.
(2) Federal tort claims provisions published in 28 U.S.C. chapter
171.
(3) Department of the Interior Regulations Governing Responsibilities
and Conduct.
(e) Travel and other expenses. The decision to reimburse travel and
other incidental expenses, as well as the amount of reimbursement, shall
be made by the school supervisor, ASE, AEPA, and the respective school
board. Payment is made in the same manner as for regular employees.
Payment of travel and per diem expenses to a volunteer on a particular
assignment must be supported by a specific travel authorization and
cannot exceed the cost of employing a temporary employee of comparable
qualification at the school for which a travel authorization is
considered.
(f) Annual report. School supervisors shall submit reports on
volunteers to the ASE or AEPA by October 31 of each year for the
preceding year.
25 CFR 38.14 Pt. 39
25 CFR 38.14 PART 39 -- THE INDIAN SCHOOL EQUALIZATION PROGRAM
25 CFR 38.14 Subpart A -- General
Sec.
39.1 Purpose and scope.
39.2 Definitions.
39.3 General provisions.
25 CFR 38.14 Subpart B -- The Indian School Equalization Formula
39.10 Establishment of the formula.
39.11 Definitions.
39.12 Entitlement for instructional purposes.
39.13 Entitlement for residential purposes.
39.14 Entitlement for small schools.
39.15 Alaskan school cost supplements.
39.16 Computation of school entitlements.
39.17 Comparability with public schools.
39.18 Recomputations of current year entitlements.
39.19 Phase-in provisions.
39.20 Development of uniform, objective and auditable student
weighted area placement criteria and guidelines.
39.21 Future considerations for weighted programs.
39.22 Authorization of new program development and termination of
programs.
39.23 Review of contract schools supplemental funds.
25 CFR 38.14 Subpart C -- Formula Funding Administrative Procedures
39.30 Definitions.
39.31 Conditions of eligibility for funding.
39.32 Annual computation of average daily membership.
39.33 Special education unduplicated count provision.
39.34 Substitution of a count week.
39.35 Computation of average daily membership (ADM) for tentative
allotments.
39.36 Declining enrollment provision.
39.37 Auditing of student counts.
39.38 Failure to provide timely and accurate student counts.
39.39 Delays in submission of ADM counts.
25 CFR 38.14 Subpart D -- Direct Allotment of Formula Entitlements
39.50 Definitions.
39.51 Notice of allotments.
39.52 Initial allotments.
39.53 Obligation of funds.
39.54 Apportionment of entitlements to schools.
39.55 Responsible local fiscal agent.
39.56 Financial records.
39.57 Access to and retention of local educational financial records.
39.58 Expenditure limitations for Bureau operated schools.
25 CFR 38.14 Subpart E -- Local Educational Financial Plan
39.60 Definitions.
39.61 Development of local educational financial plans.
39.62 Minimum requirements.
39.63 Procedures for development of the plan.
39.64 Procedures for financial plan appeals.
25 CFR 38.14 Subpart F -- Contingency Funds
39.70 Definitions.
39.71 Establishment of the School Disaster Contingency Fund.
39.72 Continuing and cumulative provisions.
39.73 Purposes.
39.74 Application procedures.
39.75 Disbursement procedures.
39.76 Prohibitions of expenditures.
39.77 Transfer of funds from Facilities Engineering for other
contingencies.
39.78 Establishment of a formula implementation set-aside fund.
39.79 Prohibition.
25 CFR 38.14 Subpart G -- School Board Training
39.90 Establishment of a school board training fund.
39.91 Other technical assistance and training.
39.92 Training activities.
39.93 Allowable expenditures.
39.94 Limitations on expenditures.
39.95 Reporting of expenditures.
39.96 Provision for annual adjustment.
39.97 Training for agency school board.
25 CFR 38.14 Subpart H -- Student Transportation
39.100 Definitions.
39.101 Purpose and scope.
39.102 Allocation of transportation funds.
39.103 Annual transportation formula adjustment.
25 CFR 38.14 Subpart I -- Interim Maintenance and Minor Repair Fund
39.110 Establishment and funding of an Interim Maintenance and Minor
Repair Fund.
39.111 Conditions for distribution.
39.112 Allocation.
39.113 Use of funds.
39.114 Limitations.
25 CFR 38.14 Subpart J -- Administrative Cost Formula
39.120 Purpose and scope.
39.121 Definitions.
39.122 Allotment of education administrative funds.
39.123 Allotment exception for FY 1991.
25 CFR 38.14 Subpart K -- Pre-kindergarten Programs
39.130 Interim fiscal year 1980 and fiscal year 1981 funding for
pre-kindergarten programs previously funded by the Bureau.
39.131 Addition of pre-kindergarten as a weight factor to the Indian
School Equalization Formula in fiscal year 1982.
25 CFR 38.14 Subpart L -- Contract School Operation and Maintenance
Fund
39.140 Definitions.
39.141 Establishment of an interim fiscal year 1980 operation and
maintenance fund for contract schools.
39.142 Distribution of funds.
39.143 Future consideration of contract school operation and
maintenance funding.
Authority: 25 U.S.C. 13; 25 U.S.C. 2008.
Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 38.14 Subpart A -- General
25 CFR 39.1 Purpose and scope.
The purpose of this rule is to provide for the uniform direct funding
of BIA operated and tribally operated day schools, boarding schools, and
dormitories. These rules apply to all schools and dormitories and
administrative units which are funded through the Indian School
Equalization Program of the Bureau of Indian Affairs.
25 CFR 39.2 Definitions.
Assistance under this rule is subject to the following definitions
and requirements relating to fiscal and administrative matters.
Definitions of terms that are used throughout the part are included in
this subpart. As used in this part, the term:
(a) Agency means an organizational unit of the Bureau which provides
direct services to the governing body or bodies and members of one or
more specified Indian Tribes. The term includes Bureau Area Offices
only with respect to off-reservation boarding schools administered
directly by such Offices.
(b) Agency school board means a body, the members of which are
appointed by the school boards of the schools located within such
agency, and the number of such members shall be determined by the
Director in consultation with the affected tribes, except that, in
Agencies serving a single school, the school board of such school shall
fulfill these duties.
(c) Agency Superintendent of Education or Superintendent means the
Bureau official in charge of Bureau education programs and functions in
an Agency who reports to the Director.
(d) Area Director for Education means the Bureau official in charge
of Bureau Education programs and functions in a Bureau Area Office and
who reports to the Director.
(e) Assistant Secretary means the Assistant Secretary of Indian
Affairs, Department of the Interior, or his or her designee.
(f) Average daily membership or ADM means the average of the actual
membership in the school, for each student classification given separate
weightings in the formula. Only those eligible students shall be
counted as members who are:
(1) Listed on the current roll of the school counting them during the
count week;
(2) Not listed as enrolled in any other school during the same
period; and
(3) In actual attendance at the school counting them at least one
full day during the count week in which they are counted.
(g) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(h) Decision of record means a formal written confirmation of a voted
action by a school board during a formally constituted school board
meeting.
(i) Director means the Director of the Office of Indian Education
Programs for the Bureau of Indian Affairs, or his or her designee.
(j) Eligible student means an Indian student properly enrolled in a
Bureau school or dormitory, or a tribally operated school or dormitory
funded by the Bureau, who meets the applicable entry criteria for the
program(s) in which he or she is enrolled.
(k) Entitlement means that amount of funds generated by the Indian
School Equalization Formula for the operational support of each school.
(l) Advice of allotment means the formula written document advising a
school or an administrative office of its entitlement under the formula.
The advice of allotment conveys legal authority to obligate and expend
funds in a given fiscal year.
(m) Allotment means the amount of the obligational authority conveyed
to a given school or Bureau administrative office by its advice of
allotment in a given fiscal year.
(n) Indian means a person who is a member of an Indian tribe.
(o) Indian Tribe means any Indian Tribe, Band, Nation, Rancheria,
Pueblo, Colony or Community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
(p) Program means each or any subset of the Indian School
Equalization Program (ISEP), but not the ISEP itself, for which a
separately computable dollar amount may be generated by a school. Each
program classification is a cost account in an accounting system. The
following accounting programs are those established by this part:
(1) Instructional costs;
(2) Boarding costs;
(3) Dormitory costs;
(4) Bilingual instruction costs;
(5) Exceptional child education costs;
(6) Intense residential guidance costs;
(7) Student transportation fund costs;
(8) School maintenance and repair fund costs;
(9) School board training fund costs;
(10) Pre-kindergarten costs; and
(11) Previously private contract school operation and maintenance
costs.
(q) School means an educational or residential center operated by or
under contract with the Bureau of Indian Affairs offering services to
Indian students under the authority of a local school board and the
direction of a local school supervisor. A school may be located on more
than one physical site. The term school, unless otherwise specified, is
meant to encompass day schools, boarding schools, previously private
schools, cooperative schools, contract schools and dormitories as those
terms are commonly used.
(r) Local School Board, (usually referred to as school board)
including off-reservation boarding school boards and dormitory school
boards, when used with respect to a Bureau school, means a body chosen
to exercise the functions of a school board with respect to a particular
Bureau operated or funded school, in accordance with the laws of the
tribe to be served or, in the absence of such laws, elected for similar
purpose by the parents of the Indian children attending the school,
except that in schools serving a substantial number of students from
different tribes, the members shall be appointed by the governing bodies
of the tribes affected; and the number of such members shall be
determined by the Director in consultation with the affected tribes.
(s) Supervisor or local school supervisor means the individual in the
position of ultimate authority at any Bureau administered or tribally
operated contract school.
(t) Tribally operated contract school or contract school means a
school (other than a public school) which is financially assisted under
a contract with the Bureau.
(u) Weighted student unit (WSU) means the measure of student
membership adjusted by the weights or ratios used as factors in the
Indian School Equalization Formula established in 39.10 below. The term
weighted student unit also describes the measure by which supplements to
the weighted student count at any school are augmented as the result of
the application of small school supplements or Alaskan school
supplements.
25 CFR 39.3 General provisions.
(a) All funds appropriated by the Congress for the support and
administration of Bureau operated or contracted elementary and secondary
educational purposes and programs shall be allocated in accordance with,
and be distributed through, the Indian School Equalization Program,
unless a specific amount of funds are added or reduced for a particular
class of schools through the budget and appropriations process.
(b) Each expenditure of funds authorized in part 39 is without
exception subject to the availability of funds.
25 CFR 39.3 Subpart B -- The Indian School Equalization Formula
25 CFR 39.10 Establishment of the formula.
There is hereby established the Indian School Equalization Formula
(ISEF). Funds for the instruction and residential care of Indian
children shall be earned as an entitlement by each local school
according to a weighted student unit formula. The funds allocated
through the formula shall be computed as follows:
(a) The basic instructional average daily membership (ADM) shall be
counted at each school location as provided for in subpart C of this
part. From the application of ratios or weights as provided in these
rules a weighted student unit (WSU) value for each school location is
derived by multiplying the student count for each program area by the
weights.
(b) If the school is a boarding school or a dormitory, the
residential students will produce program units which will, by the
application of weights, produce additional WSU's.
(c) The ADM count of eligible small schools or dormitories may
generate additional unit supplements.
(d) All Alaskan schools are eligible under the formula to generate
supplemental units.
(e) The total weighted student unit count for each school location is
then multiplied by a base unit value to derive the estimated dollar
entitlement to each school(s).
The total amount is made available to each school(s), under the rules
related to administrative provisions provided in subparts C and D of
this part.
25 CFR 39.11 Definitions.
Assistance to approved school(s) under this subpart is subject to the
definitions established in 39.2 and to the following definitions for
determining student counts in the various weighted areas. As used in
the subpart, the term:
(a) Base or base unit means both the weight or ratio of 1.0 and the
dollar value annually established for that weight or ratio which
represents students in grades 4 through 8 in a typical instructional
program.
(b) Basic program means the instructional program provided all
students at any age level exclusive of any supplemental programs which
are not provided to all students in day or boarding schools.
(c) Grad or Grade Level, followed in most cases by K or a number,
means a classroom grouping ordinarily determined by student age and
successful completion of a criterion number of years of previous
schoolwork. The use of this term does not preclude ISEP funding of
programs in which instruction is non-graded or individualized, or which
otherwise depart from grade-level school structure. For purposes of
funding under the ISEP, students in such programs shall be counted as in
the grade level to which they would ordinarily be assigned based on
their chronological age and number of years of schooling completed.
(d) Grades 1-3 means a weighted program for a student who is present
during the count week (see 39.30(b)) in grades 1 through 3 who is at
least 6 years old by December 31 of the fall of the school year during
which the count occurs and is a member of an educational program
approved by the board which is conducted at least six gross hours daily
during at least 180 days per school year. Gross hours means from the
start of the school day to the end of the school day including all
activities.
(e) Grades 4-8 and grades 9-12 means a weighted program for a student
who is present during the count week (see 39.30(b)) in either of the
programs encompassing grades 4 through 12 who is a member of an
educational program approved by the school(s) at least six gross hours
daily during at least 180 days per school year and shall not have
achieved the age of 21 nor have received a high school diploma or its
equivalent.
(f) Kindergarten means a weighted program for a student who is
present during the count week (see 39.30(b)) who is at least 5 years
old by December 31 of the fall of the school year during which the count
occurs and a member of an educational program approved by the school(s)
conducted at least four gross hours daily during at least 180 days per
school year. Otherwise eligible students who are in a program conducted
less than four hours daily, but at least two gross hours daily are
eligible as half-time kindergarten students.
(g) Intense Bilingual means a weighted program for a student who is
present during the count week, whose primary language is not English,
and who is receiving academic instruction daily through oral and/or
written forms of an Indian or Alaskan Native language, as well as
specialized instruction in English for non native speakers of English,
under resources of the ISEP.
(h) Intensive residential guidance means the weighted program for a
resident student that needs special residential services due to one or
more of the problems identified below, and that appropriate
documentation is in that student's file as follows:
(1) Presenting problem:
(i) Court of juvenile authority request for placement resulting from
a pattern of infractions of the law.
(ii) Explusion from previous school under due process.
(iii) Referral by a licensed psychologist, psychiatrist or certified
psychiatric social worker as an emotionally disturbed student.
(iv) History of truancy more than 50 days in the last school year or
a pattern of extreme disruptive behavior.
(2) Documentation required:
(i) Written request signed by officer of court or juvenile authority;
(ii) Certification by expelling school;
(iii) Psychologist, certified psychiatric social worker, or
psychiatrist report; or
(iv) Attendance and behavior data from records of prior school, court
records, or from social agency records and a written documentation
summarizing such data. For all students placed in intensive residential
guidance programs, there shall be further documentation of a diagnostic
workup, a placement decision by a minimum of three staff members, and a
record of an individualized treatment plan for each student that
specifies service objectives.
(v) No student shall be classified under Intense residential guidance
who is eligible for services at a full-time or part-time service level
because of a handicapping condition as defined under Exceptional Child
programs in paragraph (i) of this section.
(i) Exceptional Child Program means weighted programs for students
who are receiving special education and related services, consistent
with the identification, evaluation and provisions of a free appropriate
public education required by part B of the Education of )5 and section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794; 45 CFR part 84)
and who have the following diagnosed impairments:
(1) Deaf means a hearing impairment which is so severe that the child
is impaired in processing linguistic information through hearing, with
or without amplification, which adversely affects educational
performance.
(2) Hard of hearing means a hearing impairment, whether permanent or
fluctuating, which adversely affects a child's educational performance
but which is not included under the definition of deaf in this section.
(3) Mentally retarded means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, which adversely
affects a child's educational performance.
(4) Severely Multi-handicapped means concomitant impairments (such as
mentally retarded-blind; mentally retarded-deaf) the combination of
which causes such severe educational problems that they cannot be
accommodated in regular educational programs or in special education
programs solely for one of the impairments. The term includes
deaf-blind children.
(5) Orthopedically impaired means a severe orthopedic impairment
which adversely affects a child's educational performance. The term
includes impairments caused by congenital anomaly (e.g., clubfoot,
absence of some member, etc.), impairments caused by disease (e.g.,
poliomyelitis, bone tuberculosis, etc.), and impairments from other
causes (e.g., cerebral palsy, amputations, and fractures or burns which
cause contractures).
(6) Other health impaired means limited strength, vitality or
alertness, due to chronic or acute health problems such as a heart
condition, tuberculosis, rheumatic fever, nephritis, asthma, hemophelia,
epilepsy, lead poisoning, leukemia, or diabetes or the existence of a
physical or mental impairment which substantially limits one or more
major life activities, but which is not covered in paragraphs (i) (1)
through (12) of this section.
(7) Emotionally disturbed means a condition exhibiting one or more of
the following characteristics over a long period of time and to a
significant degree, which adversely affects educational performance and
requires small group instruction, supervision, and group counseling:
(i) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(ii) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers:
(iii) Inappropriate types of behavior or feelings under normal
circumstances;
(iv) A general pervasive mood of unhappiness or depression; or
(v) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(8) Specific learning disability means a disorder in one or more of
the basic psychological processes involved in understanding or in using
language, spoken or written, which may manifest itself in an inability
to listen, think, speak, read, write, spell, or to do mathematical
calculations. The term includes such conditions as perceptual
handicaps, brain injury, minimal brain dysfunction, dyslexia, and
developmental aphasia. The term does not include children who have
learning problems which are primarily the result of vision, hearing, or
motor handicaps, or mental retardation, or of environmental, cultural,
or economic disadvantage.
(9) Speech impaired means a communication disorder, such as
stuttering, impaired articulation, or a voice impairment, which
adversely affects a child's educational performance.
(10) Visually handicapped means a visual impairment which, even with
correction, adversely affects a child's educational performance. The
term includes partially seeing, but not fully blind, children.
(11) Severely emotionally disturbed means a condition such as
schizophrenia, autism or the presence of the following characteristics
over a prolonged period of time and to a marked degree, which seriously
affects educational performance and requires intensive individual
therapy (which may be conducted either in or out of the school setting),
individual instruction, and supervision:
(i) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(ii) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers:
(iii) Inappropriate types of behavior or feelings under normal
circumstances;
(iv) A general pervasive mood of unhappiness or depression; or
(v) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(12) Severely and profoundly retarded means a degree of mental
retardation (as defined in paragraph (i)(3) of this section) which
severely restricts and delays major aspects of intellectual functioning
so as to require intensive small group instruction and supervision.
(13) Students requiring home/hospital based instruction means
students provided a program of instruction in a home or hospital setting
because in the judgement of a physician a student cannot receive
instruction in a regular public school facility without endangering the
health or safety of the student or of other students.
(14) Multihandicapped means concomitant impairments (such as mentally
retarded with a minor additional handicap such as speech impaired) the
combination of which causes educational problems that can not be
accommodated in regular education programs or in part-time special
education programs.
(15) Blind means the possession of a central vision acuity of 20/200
or less in the better eye with correcting glasses or a peripheral field
of vision so contracted that its widest diameter is less than 20%.
(16) Full-time -- High Service Level means a program of special
education and related services provided to an exceptional student which
consists of fifteen or more hours per week (or 60% or more of the total
instructional time) of instruction and/or required related services (as
described in the students individualized education program), provided
outside of the regular classroom. In geographically isolated, smaller
schools where facilities are limited, a full time program may consist of
fifteen or more hours per week (or 60% or more of the total
instructional time) of specialized individual or small group instruction
or required related services regardless of where the services are
actually provided (including the regular classroom).
(17) Part-time -- Moderate Service Level means any program of regular
education modified to provide specialized instruction and/or required
related services (as described in the student's individualized education
program) which does not provide at least the number of hours in the
definition of Full-time -- High Service Level Exceptional Child Program
set forth in paragraph (i)(14) of this section.
(18) Classification of a student in full or part-time service levels
in residential care programs shall be based upon prior classification of
the student in an instructional program serving his/her handicapping
condition.
(j) Resident means a student officially enrolled in the residential
care program of a Bureau operated or funded school and actually
receiving supplemental services provided to all students who are
provided room and board in a boarding school or a dormitory during those
weeks when student membership counts are conducted. Such students must
be members of the instructional program in the same boarding school in
which they are counted as residents. To be counted as dormitory
residents, students must be enrolled in and be current members of a
public school in the community in which they reside.
/1/ 45 CFR 121a was redesignated as 34 CFR 300 at 45 FR 77368, Nov.
21, 1980.
25 CFR 39.12 Entitlement for instructional purposes.
BIA educational funds for the instruction of elementary and secondary
Indian children shall be computed according to the following weighted
student unit factors:
25 CFR 39.13 Entitlement for residential purposes.
Basic funds for student residential purposes shall be computed
according to the following weighted student unit factors:
25 CFR 39.14 Entitlement for small schools.
To compensate for the additional costs of operating small schools,
qualified schools shall receive the following adjustments:
(a) Instructional programs in day and boarding schools. For each
separate small school having an instructional average daily membership
count (called x) of less than 100 students, the formula ((100-x) divided
by 200) times x shall be used to generate add-on weighted pupil units
for each such school.
(b) Boarding school residential programs. For each separate small
boarding school having a resident average daily membership count (called
y) of less than 100 students, the formula ((100^y) divided by 200) times
y shall be used to generate add-on weighted pupil units for each such
boarding school.
(c) Dormitory residential programs serving public schools. For each
small dormitory program having an average daily membership count (called
z) of less than 100 students, the formula ((100^z) divided by 200) times
z shall be used to generate add-on weighted pupil units for each
dormitory.
25 CFR 39.15 Alaskan school cost supplements.
To meet the statutory requirements for a salary supplement for
Alaskan educational staff, and add-on weight of .25 will be used as a
factor by which all pupil program-generated weighted students shall be
supplemented. Such generated Alaskan cost supplements will be added to
the weighted pupil units generated by each school in the same manner as
small school units.
25 CFR 39.16 Computation of school entitlements.
The sum of all weighted student units, including any small school and
any Alaskan school cost supplements shall be computed for each school
under the management of the Director. The total number of units
generated by each approved school shall be multiplied by a base dollar
value which is equivalent to a base weight of 1.0 in the formula. This
base value shall be computed annually by the Director by dividing the
total of all weighted students (WSU) generated by all approved schools
into the total amount appropriated for distribution through the Indian
School Equalization Formula.
25 CFR 39.17 Comparability with public schools.
(a) In no case shall a Bureau or contract school attended by an
Indian student receive less under these regulations than the average
payment from the Federal funds received per Indian student, under other
provisions of law, by the public school district in which the student
resides. Any school which is funded at a lower level per student under
the ISEP than either the average daily expenditure per student for
instructional costs in the public schools in the State in which it is
located, or the amount per Indian student which the local public school
district in which it is located receives from all Federal funding
sources, shall present documentation of this fact to the Director of the
Office of Indian Education Programs.
(b) Upon verification that comparisons in the documentation received
cover comparative expenditures, and that the inequity indeed exists, the
Director shall adjust the school's allocation to equal the payment
per-Indian student of the public school district or State involved.
(c) Funds for such adjustment shall be taken from the Formula
Implementation Set Aside established under 39.78 of these regulations.
25 CFR 39.18 Recomputations of current year entitlements.
The Director shall continuously monitor the processes by which the
final allocation of each school's entitlement is made. When changes
occur either in the total amount of funds available for the operations
of schools or in the total number of weighted student units for all
schools due to a change in the number of weighted student units reported
or altered by auditing, the Director shall consider whether adjustments
are necessary in order that the full available appropriations are fairly
allocated to the schools, and that all funds are fully allotted to
schools.
25 CFR 39.19 Phase-in provisions.
(a) Limits on excess gains. No school shall receive a percentage
increase in its total fund entitlement, over the comparable budget
amount per school in the FY 79 Bureau Education budget, which is greater
than the following percentage ratios:
(1) In FY 80 -- 20%
(2) In FY 81 -- 70%
(b) Limits on excess losses. No school shall receive a percentage
decrease in its total fund entitlement, below the comparable budget
amount in the FY 79 Bureau Education budget, which is greater than the
following percentage ratios:
(1) In FY 80 -- 10%
(2) In FY 81 -- 30%
(c) Effects of limits on losses and gains. Local school gains in
excess of the above percentage limits for each of the limited years
shall be returned to the common base for all schools and distributed
through the formula. Funds to limit losses in excess of the above
limits shall be withdrawn from the common base for all schools and
distributed to the schools subject to such excess losses.
(d) Transfer of fiscal accountability. To allow time for developing
fiscal accountability, knowledge, skill and responsibility at the local
school level and in order to support accountability by responsible
Fiscal Agents under section 3679 of the Revised Statutes (the
Anti-Deficiency Act), a period of one year (FY 1980) shall be used
during which the legal allottee for each Bureau-operated school shall be
the Education Superintendent of the Agency within which the school is
located. In the case of off-reservation boarding schools and other
Bureau-operated schools not served by an Agency Education Office, the
Area Education Director shall be the legal allottee. Further allocation
of funds under this rule shall be fully in accordance with the Indian
School Equalization Program and Formula, and expenditures shall be made
in accordance with the financial planning provisions of section E of
this rule.
(e) Beginning in FY 1981, the allottee shall be as otherwise
determined in this rule.
25 CFR 39.20 Development of uniform, objective and auditable student
weighted area placement criteria and guidelines.
The Director shall develop: (a) Uniform, objective and auditable
placement criteria and guidelines for placement of students in
dormitories and residential care programs of boarding schools and in
special weighted program areas which expand upon the definitions in this
part; and (b) a uniform and auditable system of enrollment criteria and
attendance boundaries for each school in the Bureau educational program.
The Director shall publish these criteria and guidelines in the Bureau
Manual (BIAM) and widely disseminate them to each school prior to
September 1, 1980, so that appropriate student placements can occur
before the FY 1981 October student count.
25 CFR 39.21 Future considerations for weighted programs.
(a) Within twelve months of the final publication of this rule, the
Director shall review the following factors in depth, and determine
whether to incorporate each into the weighted pupil formula:
(1) A rural isolation adjustment.
(2) A staff cost adjustment.
(3) A gifted and talented student program.
(4) A vocational education program.
(5) A facilities operation and maintenance program.
(6) Additional institutional size factors.
(b) The Director may also recommend incorporation of other factors,
based upon the Bureau's experience in the first year's operation of the
ISEP, and upon the Standards to be developed under section 1121 of the
Act.
(c) The Director shall also review the adequacy of the weighted
factors, procedures, criteria and definitions now in this rule,
throughout part 39. On the basis of this review, the Director shall
present a comprehensive report of findings, with recommendations for
amendment of this rule, to the Secretary, who shall incorporate them in
a Notice of Proposed Rulemaking to include a minimum of sixty (60) days
for public comment.
25 CFR 39.22 Authorization of new program development, and termination
of programs.
(a) Within one year of the final publication of this rule, the
Secretary shall develop uniform procedures and criteria for the
authorization of new schools where no Bureau funded or operated school
program has previously existed, and for authorization of expansions of
existing Bureau funded or operated school programs to serve additional
age groups not previously served. These procedures and criteria shall
be published as amendments to this rule under a new Notice of Proposed
Rulemaking, which shall contain provisions for a minimum of sixty (60)
days of public review and comment prior to final publication.
(b) Procedures and criteria developed under this section shall be
integrated with existing procedures under 25 CFR part 271 for
determining contractable functions of the Bureau, in order to produce a
coherent system for authorization of Tribally initiated program
development under contracting procedures of Pub. L. 93-638, which is
compatible with Bureau initiated program development.
(c) Procedures and criteria developed under this rule shall also
contain provisions for making decisions regarding closing schools and
terminating Bureau programs of education. These shall provide for full
consultation with the Indian persons and Tribes served by the programs
and schools involved in any such decisions.
25 CFR 39.23 Review of contract schools supplemental funds.
Before the end of formula phase-in, the Director shall consider the
impact on equalization of supplemental funds appropriated for aid to
schools under the Johnson O'Malley Act and under title IV of the Indian
Education Act, which are available to contract schools but not to Bureau
schools, and determine appropriate adjustments, if any. Any adjustments
in the ISEP which results from this review shall be effected by formal
revision of this rule, under a Notice of Intended Rulemaking published
in the Federal Register, and shall be subject to public comment for a
minimum of sixty (60) days prior to final rulemaking.
25 CFR 39.23 Subpart C -- Formula Funding Administrative Procedures
25 CFR 39.30 Definitions.
As used in this subpart, the term:
(a) Certifying the validity of student counts means that counts of
student ADM have been accurately recorded in compliance with
specifications of these rules, and that the Agency Superintendent of
Schools, the local school supervisor, and local school board
chairperson, where a school board exists, testify to and confirm the
correctness of this count.
(b) Count week means the last full week in September for the purposes
of calculating allotments.
(c) Student classification means any special student need area that
receives a separate weighting through the Indian School Equalization
Formula.
(44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30,
1982 and amended at 49 FR 36368, Sept. 17, 1984)
25 CFR 39.31 Conditions of eligibility for funding.
(a) To be eligible for direct formula funding as established in
Subpart B of this part, a day school, boarding school, or dormitory must
meet minimum standards, or, failing to do so, must include in its
financial plan steps acceptable to the Director for taking corrective
action to meet the standards to be prescribed pursuant to section 1121
of the Education Amendments of 1978 (Pub. L. 95-561; 25 U.S.C. 2001).
Until such standards are prescribed, the Director shall determine
eligibility for funding in accordance with established procedures for
authorizing Bureau operated schools.
(b) To be eligible for direct formula funding, a tribally operated
day or boarding school or dormitory must meet the requirements of part
271 of this chapter (25 CFR part 271) for receipt of Bureau Education
funds under contracts for school operation.
25 CFR 39.32 Annual computation of average daily membership.
(a) Average daily membership (ADM) as defined in 39.2(f) shall be
determined during the last full school week in September during which
all students eligible under the definition shall be counted by student
program classification.
(b) The Director shall direct the receipt and management of
information necessary to obtain timely ADM reports from schools. Agency
education offices and, in the case of off-reservation boarding schools,
Area education offices together with each school's supervisor and school
board chairperson where a board exists shall be responsible for
certifying the validity of each school's student counts. The September
ADM will be used to determine final allotments for the school year.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.33 Special education unduplicated count provision.
In counting special education ADM with the exception of speech
therapy, no child shall be counted or funded twice for participation in
more than one special education program.
25 CFR 39.34 Substitution of a count week.
A school may petition the Director to substitute another week in the
same month for the specified count week if it can be established that to
use the specified count week would result in grossly inaccurate student
counts. Where tribal ceremonial days are known in advance, such a
petition shall be submitted in advance of the determined count week.
25 CFR 39.35 Computation of average daily membership (ADM) for
tentative allotments.
Tentative allotments for each future year's funding shall be based on
the ADM for the September count week of the current year.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.36 Declining enrollment provision.
If the decline of a school's average daily membership exceeds ten
percent in any given school year, the school may elect to request
funding based on the average of the current and previous years'
September ADM count.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.37 Auditing of student counts.
The Secretary shall provide for auditors as required to assure
timeliness and validity in reporting student counts for formula funding.
25 CFR 39.38 Failure to provide timely and accurate student counts.
(a) Responsible Bureau school, Agency, Area, and Central Office
administrators may be dismissed for cause, or otherwise penalized, for
submission of invalid or fraudulent annual student ADM counts or
willfully inaccurate counts of student participation in weighed program
areas. A person who knowingly submits or causes to be submitted to a
Federal official or employee false information upon which the
expenditure of Federal funds is based, may be subject to criminal
prosecution under provisions such as sections 286, 287, 371, or 1001 of
title 18, U.S. Code.
(b) Failure of responsible Federal officials to perform
administrative operations which are essential to the ISEP, on a timely
basis, shall result in swift disciplinary action by Bureau supervisory
personnel, under existing procedures. Failure or refusal of Bureau
supervisory personnel to take disciplinary action shall result in
disciplinary action against them by higher level supervisors.
25 CFR 39.39 Delays in submission of ADM counts.
(a) If a Bureau operated or funded school delays submission of an ADM
count, by more than (2) weeks beyond the final count week in November,
for that school, the Director shall set aside an amount equal to the
tentative allotment for that school out of the funds available for
allotment, and shall proceed to compute the initial allotments for all
other schools in the Bureau school system, based upon remaining funds
available for allotment. The allotment for the school which has failed
to submit a timely ADM count shall be computed when the ADM count is
received, but shall not exceed the amount set aside therefore. Any
amount remaining in the set-aside fund, after computation of the
allotment, shall be transferred into the Formula Implementation
Set-Aside Fund, and distributed in accordance with provisions of 39.78
in subpart F.
(b) In no case shall the Director delay the computation of initial
allotments for schools which have submitted timely ADM counts while
waiting for those schools which have failed to submit.
25 CFR 39.39 Subpart D -- Direct Allotment of Formula Entitlements
25 CFR 39.50 Definitions.
As used in this subpart, the term:
(a) Apportionment means that part of a school's allotment received
each quarter as an authorization to obligate funds.
(b) Approved apportionment schedules means that approval given for
the quarterly obligation of funds for a given appropriation of funds for
the Bureau.
(c) Authorization to obligate means that approval given to a school
to incur obligations of funds against a given appropriation.
(d) Final allotment means that notice of funds available to schools,
based on the September student count as computed through the Indian
School Equalization Formula (ISEF) based on full distribution of Indian
School Equalization Program (ISEP) funds available for the fiscal year.
(e) Initial allotment means that notice of funds available to schools
based on the September student count as computed through the Indian
School Equalization Formula prior to any adjustments due to fluctuating
student counts.
(f) Responsible fiscal agent means the local school supervisor of a
Bureau operated school except where such authority is designated to the
Agency Superintendent of Education by a school board decision of record
or by a written agreement signed by both parties. For contract schools,
the responsible fiscal agent shall be designated in an action of record
by the contractor.
(g) Tentative allotment means that notice of funds available to
schools based on the September student count as computed through the
Indian School Equalization Formula based on a proposed appropriation in
the President's budget for the next fiscal year.
(44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30,
1982 and amended at 49 FR 36368, Sept. 17, 1984)
25 CFR 39.51 Notice of allotments.
The Director shall notify school administrators and boards of
allotments of funds based on the September ADM count established under
subpart B of this part according to the following schedule:
(a) Tentative allotments shall be made by March 15 of the prior
fiscal year;
(b) Initial allotments shall be made not later than November 15 of
the fiscal year; and
(c) Final allotments shall be made not later than January 15 of the
fiscal year.
(49 FR 36368, Sept. 17, 1984)
25 CFR 39.52 Initial allotments.
The Assistant Secretary -- Indian Affairs, as requested by the
Director, shall make initial allotments to Bureau operated schools,
Agency Education Offices, and Central and Area Offices. The Assistant
Secretary -- Indian Affairs shall make initial allotments for tribally
operated schools to appropriate Agency Superintendents of Education, or
as otherwise provided by the Director.
25 CFR 39.53 Obligation of funds.
(a) Authority to obligate funds in the Bureau operated schools shall
be governed by provisions of the Bureau Manual (42 BIAM).
(b) Authority to obligate funds in tribally operated contract schools
shall be governed by contracting procedures of 25 CFR part 271.
(c) Authority to obligate funds in all Bureau funded and operated
schools shall be based upon the tentative allotment ( 39.51) for the
period beginning October 1 of any fiscal year. The tentative allotment
as restricted by a continuing resolution, if applicable, would govern
until computation and notification of initial allotments as described in
this sub-part, as adjusted by the Director in accordance with 39.75,
39.78, 39.90, 39.102 and 39.111.
25 CFR 39.54 Apportionment of entitlements to schools.
(a) Bureau operated schools. The Director shall make quarterly
apportionments directly to the local school supervisor or to the
school's responsible fiscal agent as specifically delegated in
accordance with 39.55 of this part. Such quarterly apportionments will
be made as determined in 39.53 of this part.
(b) Contract schools. The Agency Superintendent of Education, or
another agent as designated by the Director, shall be responsible
through the contracting officer in accordance with 25 CFR part 271 for
effecting and adjusting contracts with tribally operated schools.
25 CFR 39.55 Responsible local fiscal agent.
The responsible fiscal agent shall:
(a) Expend funds solely in accordance with the local educational
financial plan, as ratified or amended by the local school board, unless
in the case of Bureau operated schools, this plan has been overturned
under the appeal process prescribed in these rules, in which case
expenditures shall be made in accordance with the local educational
financial plan as determined by the Agency Superintendent of Education.
(b) Sign all documents required for the obligation and or payment of
funds and documentation of receipt of goods and services.
(c) Report at least quarterly to the local school board on the
amounts expended, amounts obligated and amounts currently remaining in
funds budgeted for each program of services in the local financial plan.
(d) Recommend changes in budget amounts, as required for effective
management of resources to carry out the local financial plan, and
incorporate such changes in the budget as are ratified by the local
school board, subject to provisions for appeal and overturn.
25 CFR 39.56 Financial records.
Each responsible fiscal agent receiving funds under the ISEP shall
maintain expenditure records in accordance with financial planning
system procedures as required herein.
25 CFR 39.57 Access to and retention of local educational financial
records.
The Comptroller General, the Assistant Secretary, the Director, or
any of their duly authorized representatives shall have access for audit
and examination purposes to any of the local schools' accounts,
documents, papers and records which are related or pertinent to the
school's operation. The provisions of 25 CFR 271.47 will be applicable
in the case of tribally contracted schools.
25 CFR 39.58 Expenditure limitations for Bureau operated schools.
(a) Expenditure of allotments shall be made in accordance with
applicable federal regulations and local education financial plans, as
defined in 39.60(b) of subpart E.
(b) Where there is disagreement between the Area or Agency support
service staff and the responsible fiscal agent regarding the propriety
of the obligation or disbursement of funds, appeal shall be made to the
Director.
25 CFR 39.58 Subpart E -- Local Educational Financial Plan
25 CFR 39.60 Definitions.
As used in this subpart, the term:
(a) Consultation means soliciting and recording the opinions of
school boards regarding each element in the local financial plan, as set
forth below, and incorporating those opinions to the greatest degree
feasible in the development of the local educational financial plan at
each stage thereof.
(b) Local educational financial plan means that plan which programs
dollars for educational services for a particular Bureau operated or
funded school which has been ratified in an action of record by the
local school board, or determined by the superintendent under the appeal
process set forth in this subpart.
(c) Budget means that element in the local educational financial plan
which shows all costs of the plan by discrete programs and sub-cost
categories thereunder.
25 CFR 39.61 Development of local educational financial plans.
A local educational financial plan shall be developed by the local
school supervisor, in active consultation with the local school board,
based on the tentative allotment received as provided in 39.51.
25 CFR 39.62 Minimum requirements.
The local financial plan shall include, at a minimum, each of the
following elements:
(a) Separate programing of funds for each group of Indian students
for whom a discrete program of services is to be provided. This must
include at a minimum each program for which funds are allotted to the
school through the Indian School Equalization Program;
(b) A brief description, or outline, of the program of student
services to be provided for each group identified;
(c) A budget showing the costs projected for each program, as
determined by the Director through the development of a uniform cost
accounting system related to the Indian School Equalization Program;
(d) A statement of the percentage relationship between the total of
the anticipated costs for each program and the amount the students
served by that program will generate under the Indian School
Equalization Formula. Beginning in FY 1981, there shall also be
included a statement of the cost incurred for each program in the
preceding fiscal year and the amount received for each such program as
the result of the Indian School Equalization Formula. For exceptional
child programs the plan must provide that at least 80% of the funds
generated by students served by the program be spent on those students;
(e) A provision for certification by the chairman of the school board
that the plan as shown, or as amended, has been ratified in an action of
record by the school board; or
(f) Except in the case of contract schools, a provision for
certification by the Agency Superintendent of Education that he or she
has approved the plan as shown, or as amended, in an action overturning
the rejection or amendment of the plan by the school board.
25 CFR 39.63 Procedures for development of the plan.
(a)(1) Within thirty (30) days after receipt of the tentative
allotment for the coming school year, the school supervisor shall meet
and consult with the local school board on the local financial plan.
(2) The school supervisor shall discuss at this meeting the present
program of the school and any proposed changes he or she wishes to
recommend. The school board members shall be given every opportunity to
express their own ideas as well as their views on the supervisor's
recommendations. Subsequently the school supervisor shall present a
draft plan to the school board with recommendations concerning each of
the elements outlined in this subpart.
(b) Within sixty (60) days of receipt of the tentative allotment, the
school board shall review the local financial plan as prepared by the
school supervisor and, by a quorum vote, shall have the authority to
ratify, reject or amend such financial plan.
(c) The school board shall have the authority, at any time following
the ratification of the financial plan on its own determination or in
response to the supervisor, to revise such plan to meet needs not
foreseen at the time of preparation of the plan.
(d) If the supervisor does not wish to file an appeal, he or she
shall transmit a copy of the approved local financial plan within two
weeks of the school board action, along with the official documentation
of the school board action, to the office of the Agency Superintendent
of Education. Later revisions to the financial plan must be transmitted
in the same manner.
(e) In the event that the school board does not act within the
prescribed deadline, the financial plan shall be referred to the Agency
Superintendent of Education for ratification, subject to subsequent
amendment by the school board in accordance with paragraph (c) of this
section.
(f) The Agency Superintendent of Education will review the local
financial plan for compliance with prescribed laws and regulations or
may refer the plan to the Solicitor's Office for legal review. If the
Superintendent notes any problem with the plan, he or she shall notify
the local board and local supervisor of the problem within two weeks of
receipt of the local financial plan and shall make arrangements to
assist the local school supervisor and board to correct the problem. If
the Superintendent is not able to correct the problem, it shall be
referred to the Director of the Office of Indian Education.
25 CFR 39.64 Procedures for financial plan appeals.
(a) If the supervisor of a school finds an action of the local school
board, in rejecting or amending the local financial plan, to be
unacceptable in his or her judgment as a professional educator, the
supervisor may appeal to the Agency Superintendent of Education under
the following procedures and conditions:
(1) The appeal must be presented in writing, within ten (10)
consecutive days of the supervisor's receipt of the school board
decision which is appealed.
(2) The written appeal shall contain, at a minimum, the following
information and documentation:
(i) All descriptive information concerning the element(s) in the
local financial plan being appealed, substantially as presented to the
school board prior to its decision.
(ii) Official documentation of the school board's decision amending
or rejecting the element(s) being appealed.
(iii) A statement of the school supervisor's reasons for appealing
the board's actions.
(iv) Signed certification by the supervisor that his/her reason for
appeal has been presented to the chairperson of the school board, and
that the school board has been offered full opportunity to submit a
counter statement to the Superintendent.
(3) If the supervisor of the school is also the Superintendent, the
appeal shall be made following the above procedures to the Director, who
shall follow procedures set forth below, as acting Superintendent for
the appeal.
(b) Within ten (10) consecutive days of receiving the appeal, the
Agency Superintendent of Education shall review the appeal documents to
determine if they are complete according to the criteria established in
this subpart, and if so shall notify both the school supervisor and the
school board of a date for an informal conference.
(c) Within twenty-five (25) consecutive days of receiving the
referral for approval, the Superintendent shall:
(1) Hear any arguments on either or both sides of the appeal issue(s)
at the option of either the supervisor of the school board involved.
(2) Following the informal conference, either sustain or reject the
appeal for good cause, which the Superintendent shall set out in writing
to both the supervisor and school board.
(d) Nothing in this subsection shall be construed as enabling the
supervisor of a tribally operated school to appeal decisions of a
contract school board to the Agency Superintendent for Education, nor as
empowering the Agency Superintendent for Education to overturn any
action of a contract school board under this appeal process as
established in Pub. L. 93-638.
(e) Within 180 days after the effective date of this subpart, the
Assistant Secretary shall develop and publish in the Federal Register
procedures for a formal hearing process which shall be available to
school boards who believe their decisions regarding the financial plan
have been overturned for other than good cause.
25 CFR 39.64 Subpart F -- Contingency Funds
25 CFR 39.70 Definitions.
As used in this subpart, the term:
(a) Cumulative total means the sum of all funds carried over from the
previous fiscal year(s) as unobligated and the amount for the current
year.
(b) Temporary replacement means the substitution of a structure on a
temporary basis in lieu of the original permanent structure that has
been lost to use. The temporary use will expire at the time that
arrangements are completed for the availability of a structure similar
to the original.
25 CFR 39.71 Establishment of the School Disaster Contingency Fund.
The Bureau's annual budget justifications shall identify an amount
for a separate budget account entitled the School Disaster Contingency
Fund (SDCF). All schools and dormitories receiving support under the
provisions of subparts B and C of this part are eligible for disaster
aid from this contingency fund.
25 CFR 39.72 Continuing and cumulative provisions.
Unobligated funds from the School Disaster Contingency Fund shall be
continued over at the end of a fiscal year in the same account for the
next year, except when otherwise provided in appropriations acts. New
funds shall be added when appropriated but the Fund should not exceed a
$1.5 million cumulative total unless otherwise determined by the
Assistant Secretary.
25 CFR 39.73 Purposes.
Disbursements from the School Disaster Contingency Fund shall be for
the following purposes:
(a) Costs of replacement of items in the following categories
including shipment and installation, in the event of their destruction
by earthquake, fire, flood, storm, or other ''acts of God,'' and acts of
massive and catastrophic vandalism where such costs are not already
covered in an insurance policy in force at the time of destruction and
where such destruction could not have been prevented by prudent action
by the officials responsible for the care of such items:
(1) Educational materials and supplies.
(2) Equipment and furnishings.
(3) Dormitory materials and supplies, for student use, and dormitory
equipment and furnishings, including those necessary for staff living
space, if integral to the dormitory operation.
(4) Food services supplies, furnishings and equipment not a fixed
part of structures.
(5) Office supplies and equipment for minimum essential
administrative operations.
(6) Janitorial supplies and cleaning equipment.
(7) Student clothing and personal supplies if destroyed along with a
school facility.
(8) Fuel supplies, tanks, lines, connections, meters, etc.
(9) Transportation equipment not otherwise provided for through the
General Services Administration.
(10) Costs of repair of utility systems or components thereof, as
necessary to restore utility services.
(b) Costs of temporary replacement of school facilities in the event
of their destruction by earthquake, fire, flood, storm or other ''acts
of God,'' until they can be reconstructed. These costs may include
purchase of or movement of portable structures, including costs of
delivery, installation, and connection to utility systems. They may
also include costs of any fixed equipment which is integral to such
structures. Structure types for which such temporary replacement costs
may be paid or reimbursed are as follows:
(1) Employee quarters, if required for employee housing due to the
isolation of the duty station, and on other housing is available within
a reasonable commuting distance. Reasonable commuting distance will be
determined under existing policies or by the Director.
(2) Dormitories, including employee apartment space if integral to
the operation of the dormitory.
(3) Offices required for minimum essential administrative operations
at the local school level.
(4) Academic facilities, including classrooms, kindergartens,
libraries and special instructional spaces such as vocational shops and
home economics rooms.
(5) Kitchens and dining facilities, including laundry and
multipurpose spaces.
(6) Infirmaries, clinics and health service spaces, in school
locations in which such services are not otherwise available.
(7) Separate restroom facilities, if none are otherwise available for
operation of instructional and dormitory programs.
25 CFR 39.74 Application procedures.
Application for disbursement from the School Disaster Contingency
Fund shall be made to the Director of the Office of Indian Education
Programs, through the Agency Superintendent of Education for the school
affected. Applications shall be subject to review and comment by the
Superintendent, and the Area Director for Education of the Area in which
the school is located, but shall not require the approval of these
officers. Such review and comment activities shall be carried out
concurrently with the Director's processing of the application so that
there are no delays in the transmission of the application to the
Director. The Director shall develop such application forms and
requests for information and documentation as are necessary to prove
both loss and the fact that replacement costs are outside the normal
budgetary capacity of the school operation at either the local school,
Agency or Area levels.
25 CFR 39.75 Disbursement procedures.
Disbursements from the SDCF shall be made only on the direct
authorization of the Director, on the merits of each such application
received, on a first come, first served basis and in amounts determined
at the Director's discretion in accordance with the purposes and
expenditure prohibitions set forth in this section.
25 CFR 39.76 Prohibitions of expenditures.
(a) The following costs shall not be reimbursed or paid under the
SDCF:
(1) Capital expenditures for construction of permanent facilities.
(2) Capital expenditures for reconstruction or refurbishment of
facilities no longer in use except where such expenditure is the most
cost effective way of temporarily replacing other destroyed facilities.
(3) Temporary replacement of facilities or replacement of equipment
which has simply become outmoded and obsolete, or which has been
''condemned'' or declared unserviceable by administrative procedures,
which is either still in existence or has been razed or destroyed as the
result of an administrative decision.
(4) Costs of continued normal program operations which are not
increased by a disaster.
(5) Personnel costs, except for temporary personnel hired to meet an
emergency situation.
(6) Start-up costs for new or expanding school programs.
(7) Costs of repairs necessitated by neglect, or failure to provide
routine scheduled maintenance and minor repair.
(8) Replacement costs of personal property of school employees,
regardless of value or circumstances of destruction.
(9) General budgetary shortfalls due to improper fiscal management.
(10) Budgetary shortfalls from a past fiscal period, after funds have
been carried forward in the SDCF to a new fiscal period.
(11) Costs of replacement of items stolen or destroyed by deliberate
vandalism, neglect, or abandonment.
(12) Costs of items, services or activities for which budgetary
provisions are made in other budget categories of the Bureau not subject
to distribution under the Indian School Equalization Program.
(b) Temporary replacement costs for the following structure types
shall not be paid or reimbursed from the SDCF:
(1) Recreational structures, such as auditoriums, field houses,
clubs, canteens, chapels, student centers, grandstands, gymnasiums, etc.
(2) Auxiliary buildings not used in student instructional or
dormitory programs, such as warehouses, storage sheds, garages,
firehouses, maintenance shops, law enforcement centers, instructional
materials and audio-visual centers, and employees' clubs.
(3) Temporary replacement costs shall be paid or reimbursed only to
the extent necessary to permit expeditious continued operation of the
school dormitory care programs affected by the destruction of
facilities.
25 CFR 39.77 Transfer of funds from Facilities Engineering for other
contingencies.
In order to reimburse schools for the costs of unforeseen and
extraordinary procurement costs and for major repairs of reconstruction
resulting from the disaster, the Director may request a transfer of
funds from funds appropriated for Bureau Facilities Engineering to the
School Disaster Contingency Fund for such purposes. When a separate
formula is established by regulation for school maintenance and
operations, an appropriate separate contingency fund shall be
established to cover such costs.
25 CFR 39.78 Establishment of a formula implementation set-aside fund.
There shall be set aside an amount not to exceed $2 million dollars
to be used during fiscal year 1980 by the Director to facilitate the
implementation of formula funding under this part. The fund is to
provide the means of adjusting particular local school entitlements
which are allocated in error due to underprojections, data error,
misclassification of students, and similar reporting errors, or to
provide for the initial funding of new schools under the formula, which
have been started after the spring ADM counts, without reducing
allotments made for other schools. Balances in this set-aside fund
shall be apportioned through the formula during the first week in April
by the Director or at such earlier time as he or she deems that
significant ADM reporting fluctuations have ceased.
25 CFR 39.79 Prohibition.
The formula implementation set-aside fund shall not be used as a
discretionary fund by the Director for any purpose, and it shall be
allocated solely through the Indian School Equalization Formula.
25 CFR 39.79 Subpart G -- School Board Training
25 CFR 39.90 Establishment of a school board training fund.
An amount shall be set aside annually for the purpose of providing
training for school board members as authorized by Pub. L. 95-561,
section 1129(d). Each school board shall receive a flat sum, initially
for FY 1980 to be set at $5,000, with Alaska and off-reservation
boarding schools to receive an additional 25 percent of this flat sum
amount per annum.
25 CFR 39.91 Other technical assistance and training.
The provision of funds under 39.90 of this subpart does not relieve
the Director of the responsibility for assuring that adequate technical
assistance and training services are provided to school boards to the
greatest extent possible. The provision of assistance under this
subpart does not preclude a school board or its trial governing body
from receiving financial or other assistance from the Bureau under the
Indian Self-Determination and Education Assistance Act (88 Stat. 2203;
Pub. L. 93-638; 25 U.S.C. 450 et seq.).
25 CFR 39.92 Training activities.
Training funds provided under this part may be used for training in
the following subject areas:
(a) Educational philosophy;
(b) Community school programs;
(c) Legal aspects of being a school board member;
(d) School board operations and procedures;
(e) Fiscal management;
(f) Formula funding;
(g) Personnel matters;
(h) Union negotiations;
(i) Contracting procedures and obligations;
(j) Special curriculum areas;
(k) Students' rights and responsibilities;
(l) Education agency relations;
(m) Alternative sources of Federal grants;
(n) Juvenile justice;
(o) Teachers training and inservice options;
(p) Needs assessment, program development, proposal writing; and
(q) Other training activities school boards deem appropriate and
applicable to their situation and which are approved by the Director.
25 CFR 39.93 Allowable expenditures.
Allowable expenditures under this subpart are limited to:
(a) Contracting with individuals and organizations for training
services,
(b) Membership fees in school boards' associations and purchase of
their materials and publications,
(c) Membership reimbursement for subsistence and travel expenses
incurred while participating in training activities; and
(d) Cooperative contracts with other school boards for joint training
or technical assistance activities.
25 CFR 39.94 Limitations on expenditures.
(a) No expenditure may be authorized except in accordance with a
decision of record by the school board and each payment shall be made
under written authorization of the board chairperson.
(b) Expenditures under this subpart may not be made for school board
members' stipends or honorariums associated with participation in
training activities. Payments for such may, however, come from the
school's operational budget, if so designated and approved in the
school's operational budget, if so designated and approved in the
school's local educational finance plan. The maximum amounts of such
payments shall be determined in accordance with the laws or regulations
of the tribe involved and shall be subject to approval by the Director.
In the absence of such tribal laws or regulations, such maximums shall
be determined by the Director in consultation with the school board.
Payments under this subpart may not be made to any employee of a school
served by the school board being trained or assisted.
25 CFR 39.95 Reporting of expenditures.
An accounting of all expenditures of school board training funds
shall be maintained as a supplement to each school's public accounting
records.
25 CFR 39.96 Provision for annual adjustment.
The allocation of $5,000 per school may be annually adjusted by the
Director.
25 CFR 39.97 Training for agency school board.
Provisions for training agency school board members, except as they
may also be members of local school boards, are not included in these
local school board training funds. If required, such provision shall be
incorporated in agency or area office educational administration
training plans and budgets.
25 CFR 39.97 Subpart H -- Student Transportation
25 CFR 39.100 Definitions.
As used in this subpart, the term:
(a) Basic transportation miles means the daily average of all bus
miles logged for round trip home-to-school transportation of day
students.
(b) Transported student means the average number of students
transported to school on a daily basis.
(c) School bus means a passenger vehicle, operated by an operator in
the employ of, or under contract to, a Bureau operated or funded school,
who is qualified to operate such a vehicle under State or Federal
regulations governing the transportation of students; which vehicle is
used to transport day students to and/or from home and the school.
25 CFR 39.101 Purpose and scope.
The purpose of this section is to provide funds to each school for
the round trip transportation of students between home and the school
site.
25 CFR 39.102 Allocation of transportation funds.
Transportation funds for FY 1980 shall be allocated to each school as
follows:
(a) Day students. Funds shall be allocated to each school which
provides daily transportation of students between the student's
residence and the school site by the following formula:
(1) 180 ($.85 per basic transportation mile + $.61 per transported
student).
(2) The allocation shall be based on the daily average of transported
students and basic transportation miles computed during the October and
November count periods.
(3) This formula shall not apply to any dormitory which provides
daily transportation between dormitory and the public school which the
dormitory student attends.
(b) Boarding school and dormitory students. Funds shall be allocated
to each boarding school and dormitory for the transportation of resident
students according to the following criteria:
(1) For each student whose home is more than 1 mile and no more than
100 miles from the boarding school or dormitory, the school shall
receive $3.20 per mile per student per year. The miles per student
shall be the shortest driving distance one way from the student's home
to the school site. This provision applies only to those students for
whom ground transportation is provided and for whom it is not necessary
to provide air transportation.
(2) For each student whose home is more than 100 and no more than 350
miles from the boarding school or dormitory, the school shall receive
$1.60 per mile per student per year. The miles per student shall be the
shortest driving distance one way from the student's home to the school
site. This provision applies only to those students for whom ground
transportation is provided and for whom it is not necessary to provide
air transportation.
(3) For each student whose home is more than 350 miles from the
boarding school or dormitory, the school shall receive $.48 per mile per
student per year. The miles per student shall be the shortest driving
distance one way from the student's home agency to the school site.
This provision applies only to those students for whom ground
transportation is provided and for whom it is not necessary to provide
air transportation.
(4) For each student whose home is more than 350 miles from the
boarding school or dormitory and for whom it is necessary to provide
airplane transportation, the school shall receive $.60 per mile per
student flown per year. The miles per student shall be the actual one
way air miles between the airport closest to the school site and the
closest to the student's home. Airplane transportation shall be
provided only when ground transportation is unavailable or not
cost-effective.
(5) For each student attending Mt. Edgecumbe Boarding School, Sitka,
Alaska, who requires airplane transportation, the school shall receive
$1.05 per mile per student flown per year. The miles per student shall
be the one way air miles between the Sitka, Alaska airport and the
airport nearest the student's home.
(6) At least 80% of the funds received by the school under 3, 4, and
5 above must be used for student travel between home and school.
25 CFR 39.103 Annual transportation formula adjustment.
The Director will review transportation allotment factors each year
and make changes in factors based on changes in transportation costs.
25 CFR 39.103 Subpart I -- Interim Maintenance and Minor Repair Fund
25 CFR 39.110 Establishment and funding of an Interim Maintenance and
Minor Repair Fund.
There is established in the Division of Facilities Management a
separate temporary fund entitled the Interim Maintenance and Minor
Repair Fund. The Assistant Secretary shall cause the distribution of an
amount of $1 million, under the FY 1980 Appropriation for the Bureau,
from budget activity 3500, ''General Management and Facilities
Operation'', to the direct use of schools, and shall create an
appropriate account or subaccount for the Interim Maintenance and Minor
Repair Fund and credit these funds thereto.
25 CFR 39.111 Conditions for distribution.
Funds from the Interim Maintenance and Minor Repair Fund shall be
distributed to Bureau operated and funded schools and shall be
separately earmarked in local school financial plans solely for
expenditure at the discretion of the school supervisor for cost of
school facility maintenance and minor repair. These funds shall be used
to meet immediate minor repair and maintenance needs.
25 CFR 39.112 Allocation.
(a) Interim Maintenance and Minor Repair funds shall be allocated to
all Bureau operated and contract schools based on the number of square
feet of floor space used for that school's educational program, for
student residence and for support facilities. Staff quarters shall be
specifically excluded from the computation.
(b) Square footage figures used in determining school allocations
shall be taken from the facilities inventory maintained by the Division
of Facilities Engineering.
(c) In those cases, such as contract schools, where square footage
figures are not now available, it shall be the responsibility of the
Bureau's Division of Facilities Engineering to correct the information.
(d) Schools in Alaska shall receive a 25% cost adjustment increase in
the computation of their allocation.
25 CFR 39.113 Use of funds.
Funds allocated under this provision for maintenance and minor repair
shall be used for no other purpose.
25 CFR 39.114 Limitations.
Nothing in this provision shall be interpreted as relieving the
Bureau branch of Facilities Management or its field offices of any
responsibility for continuing to provide maintenance and repair service
to schools through existing procedures.
25 CFR 39.114 Subpart J -- Administrative Cost Formula
Source: 56 FR 35795, July 26, 1991, unless otherwise noted.
25 CFR 39.120 Purpose and scope.
The purpose of this subpart is to provide funds at the agency and
area education offices for FY 1991 and future years for administration
of all Bureau of Indian Affairs education functions, including but not
limited to school operations, continuing education, early childhood
education, post-secondary education and Johnson-O'Malley Programs.
25 CFR 39.121 Definitions.
(a) Agency Education Office means a field office of the Office of
Indian Education Programs providing administrative direction and
supervision to one or more Bureau-operated schools as well as being
responsible for all other education functions serving tribes within that
agency's jurisdiction.
(b) Area Education Office means a field office of the Office of
Indian Education Programs responsible for all education functions
serving tribes not serviced by an agency education office an in some
cases providing administrative direction to one or more off-reservation
boarding schools not under an agency education office.
25 CFR 39.122 Allotment of education administrative funds.
The total annual budget for agencies/areas shall be allotted to the
Director and through him/her to agency and area education offices. This
total budget shall be distributed to the various agency and area
education offices as follows:
(a) Each agency or area education office as defined above shall
receive a base amount of $50,000 for basic administrative costs; and
(b) Each agency or area education office as defined above shall
receive an amount under these funds equal to two percent of the total
higher education, Johnson-O'Malley and adult education funds
administered by each office, except that the Navajo Agencies are
restricted to a maximum of $50,000 for administering the
Johnson-O'Malley and higher education programs; and
(c) Eighty percent of the remaining funds shall be distributed
proportionately based on the number of schools operated under the
jurisdiction of each agency or area education office, with
Bureau-operated schools counting as 1 and contract/grant schools
counting as 0.6; and
(d) The remaining twenty percent shall be distributed proportionately
based on the total weighted student units generated by all schools under
the jurisdiction of each agency or area education office.
25 CFR 39.123 Allotment exception for FY 1991.
For FY 1991 only, the Director may reserve an amount equal to no more
than one half of the funds received in FY 1990 by those offices to be
closed in FY 1991 to cover severance pay costs, lump sum leave payments
and relocation costs for those individuals affected by the closures.
Any balance uncommitted by March 31, 1991, shall be distributed in
accordance with the formula in 39.122.
25 CFR 39.123 Subpart K -- Pre-kindergarten Programs
25 CFR 39.130 Interim fiscal year 1980 and fiscal year 1981 funding for
pre-kindergarten programs previously funded by the Bureau.
Those schools having pre-kindergarten programs funded fully or in
part from Bureau education funds in fiscal year 1979 shall be funded
from Bureau education funds by the Director in fiscal year 1980 and
fiscal year 1981 at their fiscal year 1979 Bureau education funding
levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for
each Bureau funded school shall be deducted from the school's fiscal
year 1979 Bureau Education Budget amount prior to application of the
phase-in provision detailed in 39.19.
25 CFR 39.131 Addition of pre-kindergarten as a weight factor to the
Indian School Equalization Formula in fiscal year 1982.
The Director, in consultation with the tribes and school boards,
shall determine appropriate weight factors needed to include
pre-kindergarten programs in the Indian School Equalization Formula in
fiscal year 1982. Based on a needs assessment, to be completed by
January 1, 1980, pre-kindergarten programs shall be included in the
Bureau's education request for fiscal year 1982.
25 CFR 39.131 Subpart L -- Contract School Operation and Maintenance Fund
25 CFR 39.140 Definitions.
Contract school operation and maintenance costs for fiscal year 1979
means the sum of costs for custodial salaries and fringe benefits,
related supplies and equipment and equipment repair, insurance, and
school operation utilities costs, where such costs are not paid by the
Division of Facilities Management or other noneducation Bureau sources.
25 CFR 39.141 Establishment of an interim fiscal year 1980 operation
and maintenance fund for contract schools.
There is established in the Division of Facilities Management a
separate fund entitled the Contract School Operation and Maintenance
Fund. The Secretary shall cause the distribution of an amount of $2.5
million, under the fiscal year 1980 appropriation for the Bureau, from
budget activity 3500. ''General Management and Facilities Operations'',
to the schools through this fund and shall create an appropriate account
or subaccount for the Contract School Operation and Maintenance Fund.
25 CFR 39.142 Distribution of funds.
(a) Each contract school shall receive in fiscal year 1980 a portion
of the Contract School Operation and Maintenance Fund determined by the
percentage share which that school's fiscal year 1979 operation and
maintenance cost represents in the total fiscal year 1979 operation and
maintenance cost for all such schools.
(b) To be eligible for these funds, a contract school shall submit a
detailed report of actual operation and maintenance costs for fiscal
year 1979 to the Director by November 23, 1979. These cost figures will
be subject to verification by the Director to assure their accuracy
prior to the allotment of any funds under this subpart.
(c) Any funds generated under this subpart shall be included in the
computation of the phase-in amount as set forth in 39.19 if
supplemental operation and maintenance funds were included in a school's
fiscal year 1979 3100 contract funds.
25 CFR 39.143 Future consideration of contract school operation and
maintenance funding.
The Assistant Secretary shall arrange for full funding for operation
and maintenance of contract schools by fiscal year 1981.
25 CFR 39.143 PART 40 -- ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS
AND OTHER ASSISTANCE FOR HIGHER EDUCATION
Sec.
40.1 Appropriations for loans or grants.
40.2 Working scholarships.
40.3 Applications.
40.4 Security.
40.5 Repayments.
Authority: Sec. 11, 48 Stat. 986; 25 U.S.C. 471.
Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 40.1 Appropriations for loans or grants.
Funds appropriated by Congress for the education of Indians may be
used for making educational loans and grants to aid students of
one-fourth or more degree of Indian blood attending accredited
institutions of higher education or other accredited schools offering
vocational and technical training who reside within the exterior
boundaries of Indian reservations under the jurisdiction of the Bureau
of Indian Affairs or on trust or restricted lands under the jurisdiction
of the Bureau of Indian Affairs. Such educational loans and grants may
be made also to students of one-fourth or more degree of Indian blood
who reside near the reservation when a denial of such loans or grants
would have a direct effect upon Bureau programs within the reservation.
After students meeting these eligibility requirements are taken care of,
Indian students who do not meet the residency requirements but are
otherwise eligible may be considered.
(33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 40.2 Working scholarships.
Working scholarships may be granted to Indians who wish to earn their
board and room by part-time work at Federal boarding schools that are
located near a college, trade, or vocational school.
25 CFR 40.3 Applications.
Applications for educational loans, grants, and working scholarships
shall be submitted through the superintendent or officer in charge of
the agency at which the applicant is enrolled in the manner prescribed
by the Commissioner.
25 CFR 40.4 Security.
If a borrower or cosigner has security to offer for an educational
loan it must be given in an amount adequate to protect the loan.
25 CFR 40.5 Repayments.
Repayment schedules for educational loans may provide not to exceed
two years for repayment for each year in school.
25 CFR 40.5 PART 41 -- GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND NAVAJO COMMUNITY COLLEGE
25 CFR 40.5 Subpart A -- Tribally Controlled Community Colleges
Sec.
41.1 Purpose.
41.2 Scope.
41.3 Definitions.
41.4 Eligible recipients.
41.5 Eligible activities.
41.6 HHS participation.
41.7 Feasibility studies.
41.8 Grants.
41.9 Reports.
41.10 Technical assistance.
41.11 General provisions.
41.12 Annual budget.
41.13 Criminal penalities.
25 CFR 40.5 Subpart B -- Navajo Community College
41.20 Policy.
41.21 Scope.
41.22 Definitions.
41.23 Eligible activities.
41.24 Grants.
41.25 Reports.
41.26 Technical assistance.
41.27 General provisions.
41.28 Criminal penalties.
Authority: Secs. 114 and 203(a), Pub. L. 95-471, 25 U.S.C. 1815, 25
U.S.C. 640c-1(c).
Source: 44 FR 67042, Nov. 21, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 40.5 Subpart A -- Tribally Controlled Community Colleges
25 CFR 41.1 Purpose.
The policy of the Department of the Interior is to support and
encourage the establishment, operation, and improvement of tribally
controlled community colleges to ensure continued and expanded
educational opportunities for Indian students. The regulations in this
subpart prescribe procedures for providing financial and technical
assistance to this end under the Tribally Controlled Community College
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801
et seq.).
25 CFR 41.2 Scope.
The regulations in this subpart are applicable to the provision of
financial and technical assistance to Community Colleges under title I
of the Act. They do not apply to the provision of assistance to Navajo
Community College. Subpart B of this part applies to assistance to
Navajo Community College under title II of the Act.
25 CFR 41.3 Definitions.
As used in this subpart A:
(a) Academic Term means a semester, trimester, or other such period
(not less than six (6) weeks in duration) into which a community college
normally subdivides its academic year, but does not include a summer
term.
(b) Academic Year means a twelve month period established by a
community college and approved by the Director of Education as the
annual period for the operation of the college's education programs.
(c) The Act means the Tribally Controlled Community College
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et
seq.).
(d) Assistant Secretary means the Assistant Secretary for Indian
Affairs of the Department of the Interior, or his/her duly authorized
representative.
(e) Community College means an institution of higher education which
(1) is formally controlled or operated and managed by the governing body
of an Indian Tribe or by the governing bodies of two or more Indian
Tribes, or (2) is established or is otherwise sanctioned or chartered by
resolution, ordinance, or other official action (which is still in full
force and effect) of such governing body or bodies. However, for
purposes of this definition, only one such institution shall be
recognized with respect to any one Tribe. A Community College that
meets the requirements of this definition with respect to more than one
Tribe must meet such requirements with respect to at least one Tribe
that has no other currently formally controlled, operated and managed,
established, sanctioned, or chartered Community College.
(f) Director of Education means the Director of the Office of Indian
Education Programs of the Bureau of Indian Affairs, or his/her duly
authorized representative.
(g) Full Time Equivalent or FTE, means the number of Indian students
(1) enrolled full-time for an entire academic term at a community
college, calculated on the basis of registrations as in effect at the
conclusion of the sixth week of an academic term, plus (2) the full-time
equivalent of the number of other Indian students who are enrolled
part-time for an entire academic term at a community college (determined
on the basis of the quotient of the sum of credit hours for which all
such part-time students are registered during such academic term,
divided by twelve (12)), calculated on the basis of registrations as in
effect at the conclusion of the sixth week of an academic term. The
formula for calculating the Indian FTE for an academic term is expressed
mathematically as FTE=FT+PTCR/12 where FT is the number of full time
Indian students (those carrying 12 or more credit hours at the end of
the sixth week of the academic term) and PTCR is the number of credit
hours for which part-time Indian students are registered at the end of
the sixth week of an academic term.
(h) Indian means a person who is a member of an Indian Tribe and is
eligible to receive services from the Secretary of the Interior because
of his/her status as an Indian.
(i) Indian Tribe means an Indian tribe, band, nation, pueblo,
rancheria, or other organized group or community, including any Alaskan
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 the special programs and services provided by
the United States to Indians because of their status as Indians.
(j) Institution of Higher Education as defined in Pub. L. 95-471
(incorporating in Part 1201 of the Higher Education Act of 1965), means
an educational institution in any State which
(1) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate,
(2) Provides an educational program for which it awards a bachelor's
degree or provides not less than a two-year program which is acceptable
for full credit toward such a degree,
(3) Is a public or other nonprofit institution, and
(4) Is accredited by a nationally recognized accrediting agency or
association or, if not so accredited,
(A) Is an institution with respect to which the Commissioner of
Education has determined that there is satisfactory assurance,
considering the resources available to the institution, the period of
time, if any, during which it has operated, the effort it is making to
meet accreditation standards and the purpose for which this
determination is being made, that the institution will meet the
accreditation standards of such an agency or association within a
reasonable time, or
(B) Is an institution whose credits are accepted, on transfer, by not
less than three institutions which are so accredited, for credit on the
same basis as if transferred from an institution so accredited.
Such term also includes any school which provides not less than a
one-year program of training to prepare students for gainful employment
in a recognized occupation and which meets the provisions of clauses
(1), (2), (3), and (4). Such term also includes a public or nonprofit
private educational institution in any State which, in lieu of the
requirement in clause (1), admits as regular students persons who are
beyond the age of compulsory school attendance in the State in which the
institution is located and who have the ability to benefit from the
training offered by the institution.
(k) National Indian Organization means any organization of Indians,
found by the Director of Education to be nationally based, representing
a substantial Indian constituency, and expert in the field of Indian
education. Notice of such findings shall be published in the Federal
Register with an opportunity for comment from the public and no such
finding shall be effective earlier than 30 days after publication.
(l) Operating expenses of education programs means the obligations
and expenditures of a community college for post-secondary activities,
including administration, instruction, attendance, health and other
student services, operation, maintenance and repair of plant, fixed
charges, and other related expenses, but not including expenditures for
the acquisition or construction of academic facilities. (The term
academic facilities means structures suitable for use as classrooms,
laboratories, libraries, and related facilities necessary or appropriate
for instruction of students, or for research, or for administration of
the educational or research programs of an institution of higher
education or as dormitories or student services buildings, and
maintenance, storage, support, or utility facilities essential to
operation of the foregoing facilities.)
(m) Part-time means registered for less than twelve (12) credit hours
for an academic term; full-time means registered for twelve (12) or
more credit hours for an academic term.
(n) Unused portion of received funds means the amount of financial
assistance provided under this subpart to a Community College for an
academic year which has not been obligated or expended by the Community
College by July 1 of that academic year.
25 CFR 41.4 Eligible recipients.
Financial assistance under this subpart shall be available only to a
Community College which:
(a) Is governed by a board of directors, regents, or trustees, a
majority of whom are Indians;
(b) Demonstrates its adherence to stated goals, a philosophy, or a
plan of operation which is directed to meet the needs of Indians, and
has formally adopted, in writing, such goals, philosophy, or plan of
operation, which may be in the form of a constitution, by-laws, or
policy statement of the Community College;
(c) If in operation for more than one year, has students a majority
of whom are Indian; and
(d) Upon completion of a feasibility study, receives a positive
determination, and;
(e) Is not in violation of 41.11 of this subpart.
25 CFR 41.5 Eligible activities.
Financial assistance under this subpart shall be available to defray
only the operating expenses of education programs of Community Colleges.
Financial assistance under this subpart shall not be used for religious
worship or sectarian instruction, but nothing in this subpart shall be
construed as barring instruction in comparative religions or cultures or
in languages of Indian tribes.
25 CFR 41.6 HHS participation.
The Assistant Secretary for Indian Affairs is authorized to enter
into an agreement with the Assistant Secretary for Education, Department
of Health and Human Services, and to revise such agreement as necessary,
to assist the Director of Education in the development of plans,
procedures, and criteria for feasibility studies under this subpart, and
to provide the Director with technical assistance in conducting such
feasibility studies, including determinations as to the reasonable
number of students required to support a Community College.
(44 FR 67042, Nov. 21, 1979. Redesignated at 47 FR 13327, Mar. 30,
1982; 48 FR 13414, Mar. 31, 1983)
25 CFR 41.7 Feasibility studies.
(a) Grants under 41.8 of this subpart may be made to a Community
College only after a positive determination of feasibility as provided
in this section.
(b) Within thirty (30) days of receiving a resolution or other duly
authorized request from the governing body of one or more Indian Tribes,
the Director of Education shall initiate a feasibility study to
determine whether there is justification to encourage and maintain a
Community College for such tribe or tribes. The feasibility study shall
give consideration to the following factors:
(1) Financial feasibility based upon potential enrollment;
(2) Evidence of low tribal levels of tribal matriculation in and
graduation from postsecondary educational institutions;
(3) Tribal, linguistics, or cultural differences;
(4) Isolation;
(5) Presence of alternate education sources;
(6) Proposed curriculum;
(7) The benefits of continued and expanded educational opportunities
for Indian students.
(c) The Director of Education will issue detailed guidelines for
conducting and analyzing the feasibility studies.
(d) Feasibility studies under this section shall be conducted in
consultation with the tribal governing body or bodies involved or their
designated representatives. Each feasibility study shall be completed
and filed by the Director of Education within sixty (60) days after the
feasibility study has been initiated. The study shall be filed with (1)
the Assistant Secretary, (2) the tribal governing body or bodies
requesting the studies, and (3) with the board of directors, regents, or
trustees of the Community College, if already established.
(e) In the case of any feasibility study which results in a negative
determination by the Director of Education, a Tribe requesting the study
may within thirty (30) days of receipt of the study or of notice of such
determination file a notice of appeal with the Assistant Secretary.
Following the timely filing of a Tribe's notice of appeal, the Tribe and
Community College shall have a right to a formal review of the
feasibility study, including a hearing upon reasonable notice within
sixty (60) days before the Assistant Secretary (or his/her designee,
other than the Director of Education or any federal employee under the
Director's supervision). At the hearing, the appealing Tribe or the
Community College (or both) may present additional evidence or arguments
to justify feasibility. Within thirty (30) days of the hearing, the
Assistant Secretary shall issue a written ruling either confirming,
modifying, or reversing the original determination. The ruling, which
shall be final for the Department, shall be mailed or otherwise
delivered to the appealing Tribe and the Community College within one
week of its issuance. In any case where the original negative
determination is not reversed, the Assistant Secretary's ruling shall
specify the grounds for the decision and state the manner in which the
determination related to each of the factors specified.
(f) A negative determination shall not prevent a Tribe from
requesting another feasibility study, but no more than one feasibility
study shall be requested for any given Community College per year.
25 CFR 41.8 Grants.
(a) Each Community College which has received a positive feasibility
study determination under 41.7 of this subpart shall be entitled to
apply for financial assistance under this subpart.
(b) Except with respect to applications for grants for the 1979-1980
academic year, each Community College shall make an application to the
Director of Education before January 31, of the year preceding the
academic year for which financial assistance is requested. Each
application must contain the following information:
(1) The name and address of the Community College and the names of
the members of the governing board and the number of its members who are
Indian;
(2) A statement that the Community College has received a positive
feasibility determination and the date thereof;
(3) A written statement of the goals, philosophy, or proposed plan of
operation sufficient to demonstrate that its education program or
proposed program is designed to meet the needs of Indians;
(4) In the case of a Community College which has been in operation
for more than one year, a statement of the total number of FTE Indian
students and the total number of all FTE students;
(5) If the Community College has not yet begun operations, a
statement of expected enrollment, including the total number of FTE
students and the number of FTE Indian students;
(6) The name and address of the Indian Tribe or Tribes which control
or operate and manage, or have established, sanctioned, or chartered the
Community College, and a statement as to which of those Tribes have not
done so with respect to any other Community College;
(7) A curriculum, which may be in the form of a college catalog or
like publication;
(8) A proposed budget, showing total expected operating expenses of
education programs and expected revenues from all sources for the
academic year to which the information applies;
(9) An assurance that the Community College will not deny admission
to any Indian student because that student is not a member of a specific
tribe or because such student is a member of a specific tribe, and will
comply with the requirements set forth in 41.11 of this subpart
together with any request and justification for a specific waiver of any
requirement of 25 CFR part 276 which the Community College believes to
be inappropriate;
(10) Certification by the chief executive officer of the Community
College that the information on the application is complete and correct
and that the application has been filed with the governing body or
bodies of the Tribe or Tribes which control or have sanctioned or
chartered it.
(c)(1) Within thirty (30) days of receiving an application required
under paragraph (b) of this section, the Director of Education shall
review the application submitted by the Community College and any
comments with respect thereto filed by the Tribe(s) or by any national
Indian organization(s) whose assistance has been requested by the
Community College, and make a grant award in an amount determined under
paragraph (d) of this section to the Community College if the
application qualifies the Community College to receive a grant.
(2) In the case of any Community College whose application is not
approved, the Director shall promptly send a notice of such action to
the Community College. Such notice shall include a statement of the
specific reasons for not approving the application and a statement
advising the College of its right within thirty (30) days to amend or
supplement the application on file to rectify the defect.
(3) Final disapproval of a grant application by the Director after
the thirty day period referred to in paragraph (c)(2) of this section,
or a failure of the Director of Education to approve an application
within thirty (30) days of its receipt may be appealed by a Community
College in the same manner as provided in paragraphs (d) and (f) of
41.7.
(4) A Grant award under an approved application shall be evidenced by
a grant agreement, signed by the Director of Education, incorporating
the application and the provisions required by 41.11.
(d)(1) In fiscal year 1980, each Community College which qualifies
for a grant will receive a grant for academic year 1979-80; thereafter
each Community College which qualifies for a grant shall receive a grant
for the academic year commencing after the date of approval of its
application. Except as provided in paragraph (d)(3) of this section
grants shall be in an amount equal to $4,000 multiplied by the number of
FTE Indian students in attendance at such college during each academic
term divided by the number of academic terms in the academic year,
except that no such grant shall exceed the annual operating expenses of
the education programs provided by the Community College. The
mathematical formula for calculating the base grant is BG (Base Grant)=
where FTE is the Indian FTE for each of the academic terms during the
academic year calculated in conformity with 41.3(g) of this subpart and
N is the number of academic terms in the academic year.
(2) For the first Federal fiscal year for which funds are
appropriated for grants under this subpart, not less than eight (8) nor
more than fifteen (15) grants shall be approved; priority in awarding
such grants shall be given to Community Colleges which are operating on
October 17, 1978, and which have a history of service to the Indian
people. (If more than fifteen (15) Community Colleges meeting these two
(2) conditions submit applications for the first fiscal year, a further
priority for awarding grants among them shall be given to those who
appear to be in the best position to fulfill the purpose of the Act and
to those whose continued existence would be threatened if they did not
receive such a grant).
(3) All grants under this section shall be subject to the
availability of appropriations and the amount thereof shall be ratably
reduced for all Community Colleges if the sums appropriated for any
fiscal year for financial assistance under this subpart are not
sufficient to pay the full amounts to which the eligible Community
Colleges are otherwise entitled under paragraph (d)(1) of this section.
(e) The Director of Education shall authorize payments to each such
Community College in advance installments by letter of credit or
Treasury check in an amount equal to fifty percent (50%) of the grant
amount available for allotment to such Community College for such
academic year under paragraph (d) of this section on or before October
1st of such College's academic year (except for 1979-80) or the first
day on which appropriations for the fiscal year beginning on such date
are available for obligation by BIA whichever occurs later, based on the
number of FTE Indian students calculated on the basis of registrations
as in effect at the conclusion of the sixth week of the final academic
term of the preceding academic year. On or before January 1st (or such
other date that is the first day of the fifth month) of such College's
academic year, payments shall be made in the form of advance
installments to each Community College in an amount equal to
seventy-five percent (75%) of the grant amount available for allotment
to such Community College for such academic year under paragraph (d) of
this section, calculated on the basis of registrations at the conclusion
of sixth week of the academic year, less the amount previously advanced
for such academic year. On or before July 1st (or such other date that
is the first day of the eleventh month) of each such academic year the
balance of the grant amount to which each College is entitled under
paragraph (d) of this section shall be paid to such College. In the
event that additional sums are appropriated to which such Community
Colleges are entitled under section 110(a) of the Act and paragraph (d)
of this section, these amounts shall be included in such final payments.
(f) If with respect to any academic year the amounts of financial
assistance hereunder have been ratably reduced as provided in paragraph
(d)(3) of this section and additional funds have not been appropriated
to pay the full amount of such reductions on or before June 1st of such
year, the Director of Education shall notify each Community College of
such fact in writing, and each Community College shall report in writing
to the Director of Education on or before July 1st of such year the
amount of unused portion of received funds. The total of such reported
unused portions of received funds shall be reallocated by the Director
of Education in proportion to the amount of financial assistance to
which each Community College is entitled under paragraph (d) but which
has not been provided due to the ratable reductions provided for
therein, (except that no Community College shall receive more than the
total annual cost of the education programs provided by such College)
and payments shall be made reflecting such reallocations on or before
August 1st of such academic year.
(g) If the Director of Education determines that a Community College
has received, through mistake or fraud, payments of financial assistance
under this subpart to which it was not entitled, the Director shall
promptly notify the college, which may appeal the Director's
determination under the procedures set forth in 41.7, and adjust the
amount of payments to the college under this subpart for the same or
subsequent academic years to compensate for such overpayments or
otherwise attempt to recover such overpayments.
(h) Eligibility for grants under this subpart shall not, by itself,
bar a Community College from qualifying for or receiving financial
assistance under any other Federal program for which it may qualify.
25 CFR 41.9 Reports.
Each Community College receiving financial assistance under this
subpart shall provide to the Director of Education on or before December
1st of each year a report which shall include an accounting of the
amounts and purposes for which such financial assistance was expended
during the preceding academic year; the annual cost of education
programs of the Community College from all sources for such academic
year; and a final report of the performance based upon the criteria set
forth in the Community College's stated goals, philosophy or plan of
operation. Upon reasonable cause, the Director of Education may extend
the period for submitting the annual report. Each Community College
shall in addition report to the Director of Education its FTE Indian
student enrollment for each academic term of the academic year within
three weeks of the date such FTE calculation is made.
25 CFR 41.10 Technical assistance.
The Director of Education shall furnish technical assistance either
directly or through contract to any Community College requesting it.
Such assistance shall be initiated within thirty (30) days of a
Community College's request in writing. In any case, where the type and
source of technical assistance is specified in the request, the
Director, to the extent possible or feasible, shall provide the type of
technical assistance through the source so specified. Technical
assistance may include, but is not limited to, consulting services for
the development of programs, plans, and feasibility studies and
accounting, and other technical advice. In awarding of contracts for
technical assistance, preference shall be given to an organization
designated by the Community College to be assisted. Denials of requests
for technical assistance under this section shall be made in writing and
sent to the applicant within thirty (30) days of the request, together
with a statement of the reason for denial. An appeal under this section
may be undertaken in the same manner as in the case of negative
determinations of feasibility under 41.7 of his subpart.
25 CFR 41.11 General provisions.
The general requirements for grant administration in this section are
applicable to all grants provided under this subpart to Community
Colleges:
(a) Services or assistance provided to Indians by Community Colleges
aided under this subpart shall be provided in a fair and uniform manner,
and admission to any such Community College shall not be denied to any
Indian student because such individual is not a member of a specific
Indian tribe or because such individual is a member of a specific Indian
tribe.
(b) Except as may be otherwise provided in this subpart, any
Community College receiving financial assistance under this subpart
shall comply with part 276 of this title, subject to any express waiver
of specific inappropriate provisions of part 276 that may be granted by
the Assistant Secretary after request and justification by the Community
College.
(c) A Community College shall have the right to appeal any adverse
decision of the Director of Education under a grant agreement to the
Assistant Secretary by filing written notice of appeal with the
Assistant Secretary within thirty (30) days after the adverse decision.
Within thirty (30) days after receiving notice of appeal, the Assistant
Secretary shall conduct a formal hearing at which time the College may
present evidence and argument to support its appeal. Within thirty (30)
days of the hearing, the Assistant Secretary shall issue a written
ruling on the appeal confirming, modifying, or reversing the Director of
Education's decision, the Assistant Secretary shall state in detail the
basis for his/her ruling. The ruling of the Assistant Secretary on an
appeal shall be final for the Department of the Interior.
25 CFR 41.12 Annual budget.
Appropriations under title I of the Tribally Controlled Community
College Assistance Act of 1978 shall be separately identified in the
Bureau of Indian Affairs Budget Justification. Funds appropriated for
grants under this subpart shall not be commingled with other funds
expended by the Bureau of Indian Affairs.
25 CFR 41.13 Criminal penalties.
Persons submitting or causing to be submitted to the Bureau any false
information in connection with any application, report, or other
document, upon which the provision of Federal financial assistance or
any other payment of Federal funds is based, may be subject to criminal
prosecution under provisions such as sections 287, 371, or 1001 of title
18, U.S. Code.
25 CFR 41.13 Subpart B -- Navajo Community College
25 CFR 41.20 Policy.
It is the policy of this Department to support and encourage the
establishment, operation, and improvement of tribally controlled
community colleges in order to ensure continued and expanded educational
opportunities for Indian students. The regulations in this subpart
prescribe procedures for providing financial and technical assistance to
this end for the Navajo Community College under the Navajo Community
College Act, as amended (25 U.S.C. 640a-c).
25 CFR 41.21 Scope.
The regulations in this subpart are applicable to the provision of
financial and technical assistance to Navajo Community College pursuant
to the Navajo Community College Act of December 15, 1971 (Pub. L.
92-189, 85 Stat. 646, 25 U.S.C. 640a-c) as amended by the Navajo
Community College Assistance Act of 1978, Title II of the Tribally
Controlled Community College Assistance Act of 1978 (Pub. L. 95-471, 92
Stat. 1325, 1329, 25 U.S.C. 640c). Regulations applicable to Tribally
Controlled Community Colleges other than Navajo Community College are
found in subpart A of this part 41.
25 CFR 41.22 Definitions.
As used in this subpart:
(a) Academic Term means a semester, trimester, or other such period
(not less than six (6) weeks in duration) into which the college
normally subdivides its academic year, but does not include a summer
term.
(b) Academic Year means a twelve month period established by the
college and approved by the Director of Education as the annual period
for the operation of the college's education programs.
(c) The Act means the Navajo Community College Act of December 15,
1971 (Pub. L. 92-189, 85 Stat. 646) as amended by the Navajo Community
College Assistance Act of 1978, (Pub. L. 95-471, title II, 92 Stat.
1329, 25 U.S.C. 640a et seq.).
(d) Assistant Secretary means the Assistant Secretary for Indian
Affairs of the Department of the Interior or his/her duly authorized
representative.
(e) College means the institution known as Navajo Community College
established by the Navajo Tribe.
(f) Director of Education means the Director of the Office of Indian
Education Programs of the Bureau of Indian Affairs, or his/her duly
authorized representative.
(g) Full Time Equivalent or FTE means the number of Indian students
(1) enrolled full-time for an entire academic term at the College,
calculated on the basis of registrations as in effect at the conclusion
of the sixth week of an academic term, plus (2) the full-time equivalent
of the number of other Indian students who are enrolled part-time for an
entire academic term at the College (determined on the basis of the
quotient of the sum of credit hours for which all such part-time
students are registered during such academic term divided by (12)),
calculated on the basis of registrations as in effect at the conclusion
of the sixth week of an academic term. The formula for calculating the
Indian FTE for an academic term is expressed mathematically as
FTE=FT+PTCR/12 where FT is the number of full time Indian students
(those carrying 12 or more credit hours at the end of the sixth week of
the academic term) and PTCR is the number of credit hours for which
part-time Indian students are registered at the end of the sixth week of
an academic term.
(h) Indian means a person who is a member of an Indian tribe and is
eligible to receive services from the Secretary of the Interior because
of his/her status as an Indian.
(i) Indian Tribe means an Indian tribe, band, nation, pueblo,
rancheria, or other organized group or community, including any Alaskan
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 the special programs and services provided by
the United States to Indians because of their status as Indians.
(j) Operating and Maintenance Expenses of Education Programs means
the obligation and expenditures by the College for post-secondary
education activities including administration, instruction, attendance,
health and other student services, operation, maintenance and repair of
plant, and fixed charges, and other related expenses, but not including
obligations or expenditures for the acquisition or construction of
academic facilities (as defined in 41.3(1) of subpart A).
25 CFR 41.23 Eligible activities.
Financial assistance under this subpart shall be available to defray
only the operating and maintenance expenses of education programs of the
College. Financial assistance under this subpart shall not be used for
religious worship or sectarian instruction, but nothing in this subpart
shall be construed as barring instruction in comparative religions or
cultures or in languages of Indian tribes.
25 CFR 41.24 Grants.
(a) Navajo Community College is entitled to annual grants for
operation and maintenance of the College in amounts based upon the
number of Full-Time Equivalent Indian students in attendance.
(b) Annually, in the manner and within the deadline established by
the Director of Education, the Navajo Community College shall submit an
application in the form of a statement of its FTE enrollment (total and
Indian) for the next academic year. The statement shall include a
description of the College's curriculum, which may be in the form of a
College catalog or like publication, and a proposed budget showing total
expected operating expenses of educational programs and expected revenue
from all sources for the academic year for which the information
applies. The statement shall be certified by the chief executive
officer of the College and shall certify that a copy of that statement
has been submitted to the Navajo Tribe.
(c) Annual budget request for the College shall be sparately
identified in the Bureau of Indian Affairs Budget Justifications. Funds
appropriated for grants under this subpart shall not be commingled with
other funds appropriations historically expended by the Bureau of Indian
Affairs for programs and projects normally provided on the Navajo
Reservation for Navajo beneficiaries.
(d) Within thirty (30) days of submission of the statement required
under paragraph (b) of this section, the Director of Education shall
make a grant award to the College in an amount determined under
paragraph (e) of this section. The grant award shall be evidenced by a
grant agreement signed by the Director of Education, incorporating the
grant application and including the provisions required by 41.27 of
this subpart.
(e) The College shall be eligible to receive a grant for the fiscal
year beginning October 1, 1979, and for each succeeding year, in an
amount equal to $4,000 multiplied by the number of FTE Indian students
in attendance at the College during each academic term divided by the
number of academic terms in the academic year, except that no such grant
shall exceed the annual operating expenses of the education programs
provided by the College. The mathematical formula for calculating the
base grant is BG (Base Grant)=
where FTE is the Indian FTE for each of the academic terms during the
academic year calculated in conformity with 41.22(g) of this subpart
and N is the number of academic terms in the academic year. The amount
and payment of such grants shall be subject to the availability of
annual appropriations.
(f) The Director of Education shall authorize payments to the College
in advance installments by letter of credit or Treasury check in an
amount equal to fifty percent (50%) of the grant amount available for
allotment to the College for such academic year under paragraph (e) of
this section on or before October 1st of such academic year (except
1979-80) or the first day on which appropriations for the fiscal year
beginning on such date are available for obligation by BIA, whichever
occurs later, based on the number of FTE Indian students calculated on
the basis of registrations as in effect at the conclusion of the sixth
week of the final academic term of the preceding year. On or before
January 1st (or such other date that is the first day of the fifth
month) of such academic year, payment shall be made in the form of such
advance installments to the College in an amount equal to seventy-five
percent (75%) of the grant amount available for allotment to the College
for such academic year under paragraph (e) of this section, calculated
on the basis of registrations as in effect at the conclusion of the
sixth week of the academic year, less the amount previously advanced for
such academic year. On or before July 1st (or such other date that is
the first day of the eleventh month) of such academic year, the balance
of the grant amount to which the College is entitled under paragraph (e)
of this section shall be paid to the College. In the event that
additional sums are appropriated for the benefit of the College, these
sums shall be included in the final payment.
(g) Overpayments of grants under this subpart may be recovered in the
manner provided by 41.8(g) of Subpart A.
(h) Payments to the Navajo Community College under this subpart shall
not disqualify the College from applying for or receiving grants or
contracts under any other Federal programs for which it may qualify.
25 CFR 41.25 Reports.
The Navajo Community College shall provide the Director of Education
on or before September 1st of each year a report which shall include an
accounting of the amounts and purposes for which financial assistance
under this subpart was expended during the preceding academic year, the
annual cost of the education programs of the College from all sources
for such academic year, and a final report of the performance based upon
the criteria set forth in the College's stated goals, philosophy or plan
of operation. Upon reasonable cause, the Director of Education may
extend the period for submitting the annual report. The college shall
in addition report to the Director of Education its FTE Indian Student
enrollment for each academic term of the academic year within three
weeks of the date such FTE calculation is made.
25 CFR 41.26 Technical assistance.
The Director of Education shall furnish technical assistance, either
directly or through contract, to the College when requested in writing.
Such assistance shall be initiated within thirty (30) days of the
College's request. In any case in which the form and source of
technical assistance is specified in the request, the Director of
Education shall to the extent possible or feasible provide technical
assistance in the form requested and through the source so specified.
Technical assistance may include, but is not limited to, consulting
services in the development of annual statements and reports required
under this subpart and accounting, and other technical advice and
assistance.
25 CFR 41.27 General provisions.
The general requirements for grant administration in this section are
applicable to all grants provided under this subpart to the Navajo
Community College.
(a) Services or assistance provided to Indians by the College with
the financial assistance provided under this subpart shall be provided
in a fair and uniform manner, and admission to the College shall not be
denied any Indian student because such individual is not a member of a
specific Indian tribe or because such individual is a member of a
specific Indian tribe.
(b) Except as may be otherwise provided in this subpart, the College
shall comply with part 276 of this Title, subject to express waiver of
specific inappropriate provisions of part 276 that may be granted, after
request and justification by the College by the Assistant Secretary.
(c) In addition to any other right the college may have under this
subpart, the College shall have the right to appeal any adverse decision
of the Director of Education under a grant agreement to the Assistant
Secretary by filing written notice of appeal with the Assistant
Secretary within thirty (30) days of the adverse decision. Within
thirty (30) days after receiving notice of appeal, the Assistant
Secretary shall conduct a formal hearing at which time the College may
present evidence and argument to support its appeal. Within thirty (30)
days of the hearing, the Assistant Secretary shall issue a written
ruling on the appeal confirming, modifying or reversing the decision of
the Director of Education. In the case of a ruling not reversing the
Director of Education's decision, the Assistant Secretary shall state in
detail the basis for his/her ruling. The ruling of the Assistant
Secretary on an appeal shall be final for the Department of the
Interior.
25 CFR 41.28 Criminal penalties.
Persons submitting or causing to be submitted to the Bureau any false
information in connection with any application, report, or other
document, upon which the provision of the Federal financial assistance,
or any other payment of Federal funds, is based, may be subject to
criminal prosecution under provisions such as sections 287, 371, or 1001
of Title 18, U.S. Code.
25 CFR 41.28 PART 42 -- STUDENT RIGHTS AND DUE PROCESS PROCEDURES
Sec.
42.1 Purpose.
42.2 Application to Bureau schools.
42.3 Rights of the individual student.
42.4 Due process.
42.5 Application to schools under Bureau contract.
Authority: 5 U.S.C. 301.
Source: 39 FR 32741, Sept. 11, 1974, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 42.1 Purpose.
The regulations in this part govern establishing programs of student
rights and due process procedures in Bureau of Indian Affairs schools
and in schools that are operating under contract with the Bureau of
Indian Affairs.
25 CFR 42.2 Application to Bureau schools.
All Bureau of Indian Affairs schools shall be governed by the
regulations set forth in this part and said regulations shall be
expressly included as a part of the local school regulations of each
Bureau of Indian Affairs school. Upon admission, all students of Bureau
of Indian Affairs schools shall be given a copy of the school
regulations governing the conduct of students and shall be notified of
any amendments thereto.
25 CFR 42.3 Rights of the individual student.
Individual students at Bureau of Indian Affairs schools have, and
shall be accorded, the following rights:
(a) The right to an education.
(b) The right to be free from unreasonable search and seizure of
their person and property, to a reasonable degree of privacy, and to a
safe and secure environment.
(c) The right to make his or her own decisions where applicable.
(d) The right to freedom of religion and culture.
(e) The right to freedom of speech and expression, including symbolic
expression, such as display of buttons, posters, choice of dress, and
length of hair, so long as the symbolic expression does not unreasonably
and in fact disrupt the educational process or endanger the health and
safety of the student or others.
(f) The right to freedom of the press, except where material in
student publications is libelous, slanderous, or obscene.
(g) The right to peaceably assemble and to petition the redress of
grievances.
(h) The right to freedom from discrimination.
(i) The right to due process. Every student is entitled to due
process in every instance of disciplinary action for alleged violation
of school regulations for which the student may be subjected to
penalties of suspension, expulsion, or transfer.
25 CFR 42.4 Due process.
Due process shall include:
(a) Written notice of charges within a reasonable time prior to a
hearing. Notice of the charges shall include reference to the
regulation allegedly violated, the facts alleged to constitute the
violation, and notice of access to all statements of persons relating to
the charge and to those parts of the student's school record which will
be considered in rendering a disciplinary decision.
(b) A fair and impartial hearing prior to the imposition of
disciplinary action absent the actual existence of an emergency
situation seriously and immediately endangering the health or safety of
the student or others. In an emergency situation the official may
impose disciplinary action not to exceed a temporary suspension, but
shall immediately thereafter report in writing the facts (not
conclusions) giving rise to the emergency and shall afford the student a
hearing which fully comports with due process, as set forth herein, as
soon as practicable thereafter.
(c) The right to have present at the hearing the student's parent(s)
or guardian(s) (or their designee) and to be represented by lay or legal
counsel of the student's choice. Private attorney's fees are to be
borne by the student.
(d) The right to produce, and have produced, witnesses on the
student's behalf and to confront and examine all witnesses.
(e) The right to a record of hearings of disciplinary actions,
including written findings of fact and conclusions in all cases of
disciplinary action.
(f) The right to administrative review and appeal.
(g) The student shall not be compelled to testify against himself.
(h) The right to have allegations of misconduct and information
pertaining thereto expunged from the student's school record in the
event the student is found not guilty of the charges.
25 CFR 42.5 Application to schools under Bureau contract.
Non-Bureau of Indian Affairs schools which are funded under contract
with the Bureau of Indian Affairs must also recognize these student
rights.
25 CFR 42.5 PART 43 -- MAINTENANCE AND CONTROL OF STUDENT RECORDS IN
BUREAU SCHOOLS
Sec.
43.1 Purpose and scope.
43.2 Definitions.
43.3 Student rights.
43.4 Annual notification of rights.
43.5 Access to records.
43.6 Limitations on access.
43.7 Access rights.
43.8 Destruction of records.
43.9 Procedures for granting access.
43.10 Right to challenge.
43.11 Informal proceedings.
43.12 Right to a hearing.
43.13 Right of appeal.
43.14 Consent.
43.15 Content of consent.
43.16 Copy to be provided to parents or eligible students.
43.17 Release of information for health or safety emergencies.
43.18 Record of access.
43.19 Transfer of information by third parties.
43.20 Directory information.
43.21 Standards for collection and maintenance of student records.
43.22 Assuring integrity of records.
43.23 Conduct of employees.
Authority: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat.
1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.
Source: 43 FR 52024, Nov. 8, 1978, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 43.1 Purpose and scope.
This part contains the regulations of the Bureau of Indian Affairs,
U.S. Department of the Interior, governing the maintenance, control, and
accessibility of student records. This part will apply to all
educational institutions under the jurisdiction of the Bureau of Indian
Affairs, whether operated under contract or otherwise.
25 CFR 43.2 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary -- Indian
Affairs, Department of the Interior.
(b) Educational institution means any institution operated under the
jurisdiction of the Bureau of Indian Affairs either directly or by
contract, including, but not limited to, schools or dormitories from
which Indian students attend public schools.
(c) Eligible student means a student who has become 18 years of age
or is attending an institution of post-secondary education. When a
student becomes an eligible student, the permission required of and the
rights given to the parents of the student shall thereafter only be
required of and given to the student.
(d) Parent means a natural parent, an adoptive parent, the legal
guardian, or a legal custodian of a student. (Where the natural parents
are unavailable, a required written parental consent may be obtained
from the person who has assumed custody of the student.) For purposes of
the Education of All Handicapped Children Act, the term parent also
includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
(e) Student records means those records, files, documents, and other
materials which contain information directly related to a student and
which are maintained by an educational institution, or by a person
acting for that institution. The term does not include:
(1) Records of any educational personnel which are in the sole
possession of the maker and which are not accessible or revealed to any
other person except a substitute.
(2) Records made and maintained in the normal course of business
which relate exclusively to persons who are employed in an educational
institution but do not attend that institution.
(3) Directory information as given in 43.20.
(4) Records on a student who is 18 years of age or older, or is
attending an institution of post-secondary education, which are made or
maintained by a physician, psychiatrist, psychologist, or other
recognized professional or paraprofessional acting in his professional
or paraprofessional capacity, or assisting in that capacity, and which
are made, maintained, or used only in connection with the provision of
treatment to the student, and are not available to anyone other than
persons providing such treatment, except that such records can be
personally reviewed by a physician or other appropriate professional of
the student's choice.
25 CFR 43.3 Student rights.
The regulations in this part do not prevent educational institutions
from giving noneligible students rights similar to those given to
parents and eligible students. Educational institutions may do so at
their discretion.
25 CFR 43.4 Annual notification of rights.
(a) Each educational institution to which this part applies and which
maintains records on students shall inform parents or eligible students
of the rights given them by this part.
(b) In meeting the requirement in paragraph (a) of this section the
educational institution shall give notice to parents and eligible
students at least annually of the following:
(1) The types of education records and information contained in them
which are directly related to students and maintained by the
institution.
(2) The name and position of the official responsible for maintaining
each type of record, the persons who have access to those records, and
the purpose for which they have access.
(3) The policies of the institution for reviewing and expunging those
records.
(4) The procedures established by the institution under 43.5.
(5) The procedures for challenging the content of education records
including those in 43.10.
(6) The cost, if any, which will be charged to the parent or eligible
student for reproducing copies of records under 43.5.
(7) The categories of information which the institution has
designated as ''directory information'' under 43.20.
(c) The notice given to a parent or eligible student under this
section shall be in a language considered by the institution to be
understandable by the parent or eligible student.
25 CFR 43.5 Access to records.
Educational institutions shall give parents of students or eligible
students, who are or have been in attendance at the institutions, access
to student records, except as stated in 43.6.
25 CFR 43.6 Limitations on access.
Educational institutions are not required to make available to
students the following materials:
(a) Financial records of the parents of the student or any
information contained in those records.
(b) Confidential letters and statements of recommendations, which
were placed in any student's record prior to January 1, 1975, and which
are not used for purposes other than those for which they were
specifically intended.
(c) Those records listed in 43.2(e) which are exempt from the
definition of student records.
25 CFR 43.7 Access rights.
The right of access specified in 43.5 shall include:
(a) The right to obtain a list of the types of student records which
are maintained by the institution.
(b) The right to inspect and review the content of those records.
(c) The right to obtain copies of those records, the cost, if any,
not to exceed the actual cost to the educational institution of
reproducing the copies.
(d) The right to a response from the institution to reasonable
requests for explanations and interpretations of those records.
(e) The right to an opportunity for a hearing to challenge the
content of records.
(f) If any material or document in the record of a student includes
information on more than one student, the right to inspect and review
only that portion of such material or document as relates to that
particular student or to be informed of the specific information
contained in such part of such materials.
25 CFR 43.8 Destruction of records.
This part does not prevent educational institutions from destroying
any records, if not otherwise prevented by law. However, access shall
be granted under 43.5 before destroying student records where the
parent or eligible student has requested access. Only records which are
no longer relevant or necessary may be destroyed, subject to 43.23(c).
25 CFR 43.9 Procedures for granting access.
Each educational institution shall establish appropriate procedures
for granting a request by parents for access to the records of their
children, or by eligible students for access to their own records within
a reasonable period of time. In no case shall access be withheld more
than forty-five (45) days after the request has been made.
25 CFR 43.10 Right to challenge.
Each educational institution shall give parents of students and
eligible students, who are or have been in attendance at the
institution, an opportunity to challenge the content of the student's
records to:
(a) Insure that the records are not inaccurate, misleading, or
otherwise violating the privacy or other rights of students.
(b) Provide an opportunity for correcting or deleting any inaccurate,
misleading, or otherwise inappropriate data in the record.
(c) Insert into such records a written comment by the parents or
eligible students pertaining to the content of such records.
25 CFR 43.11 Informal proceedings.
Educational institutions may attempt to resolve differences with the
parent of a student or the eligible student regarding the content of the
student's records through informal meetings and discussions with the
parent or eligible student.
25 CFR 43.12 Right to a hearing.
Upon the request of the educational institution, the parent, or
eligible student, a hearing shall be conducted under the procedures
adopted and published by the institution. Such procedures shall include
at least the following elements:
(a) The hearing shall be conducted and decided within a reasonable
period of time following the request for the hearing.
(b) The hearing shall be informal and a verbatim record of
proceedings will not be required. Interpreters will be utilized when
necessary.
(c) The hearing shall be conducted by an institutional official or
other party who does not have a direct interest in the outcome of the
hearing.
(d) The parents or eligible student shall be given a full and fair
opportunity to present evidence relevant to the issues raised under
43.10.
(e) Within a reasonable period of time after the hearing ends, the
hearing official shall make his recommendation in writing to the head of
the educational institution. Within 20 days after receipt of the
recommendation, the head of the institution shall issue his decision in
writing to the parent or eligible student.
25 CFR 43.13 Right of appeal.
If any parent or eligible student is adversely affected by the
decision of the head of the institution, that party shall have appeal
rights as given in 25 CFR part 2. However, each official decision shall
be issued within 30 days from receipt of the appeal.
25 CFR 43.14 Consent.
Educational institutions shall not permit access to or the release of
student records or personally identifiable information contained in
them, other than directory information of students, without the written
consent of the parents or of an eligible student, to any party other
than the following:
(a) Local school officials, including teachers within the educational
institution, who have been determined by the institution to have
legitimate educational interests in the records.
(b) Officials of other schools or school systems at which a student
is interested in enrolling. The student or parent must be notified of
such release except in cases involving Bureau of Indian Affairs schools.
All Bureau of Indian Affairs schools are considered to be components of
one school system whether operated under contract or otherwise.
(c) Persons having official involvement with a student's application
for or grant of financial aid.
(d) Parents of a dependent student as defined in section 152 of the
Internal Revenue Code of 1954, as amended.
(e) Accreditation agencies in order to carry out their accrediting
functions.
(f) U.S. Office of Education officials and other governmental
education officials when deemed necessary by the institution to carry
out their official functions.
(g) An education testing center or similar institution as a part of
its validation research which has been authorized by the school.
(h) In an emergency, any person to whom the information is necessary
in the discretion of the school's administration in order to protect the
student's health and safety, subject to 43.17.
(i) Indian groups, contractors, grantees, professional social service
organizations and personnel performing professional services, when
necessary to carry out an official function authorized by the Bureau of
Indian Affairs.
(j) Pursuant to the order of a court of competent jurisdiction;
however, the parent or eligible student must be notified of such order
in advance of compliance therewith by the educational institution.
25 CFR 43.15 Content of consent.
The consent of a parent or eligible student requested under this part
for the release of student records shall be in writing, signed and dated
by the person giving the consent. The consent shall include:
(a) A specification of the records to be released.
(b) The reasons for release.
(c) The names of the parties to whom the records will be released.
25 CFR 43.16 Copy to be provided to parents or eligible students.
Where the consent of a parent or eligible student is required under
this part for the release of student records, a copy of the records to
be released shall be provided on request to:
(a) The student's parents or the eligible student.
(b) The student who is not an eligible student, if desired by the
parents.
25 CFR 43.17 Release of information for health or safety emergencies.
(a) Educational institutions may release information from student
records to appropriate persons in an emergency if the information is
necessary to protect the health or safety of a student or other person.
The factors to be used in determining whether records may be released
under this section include the following:
(1) The seriousness of the threat to the health or safety of the
student or other persons.
(2) The need for those records to meet the emergency.
(3) Whether the persons to whom the records are released are in a
position to deal with the emergency.
(4) The extent to which time is of the essence in dealing with the
emergency.
25 CFR 43.18 Record of access.
(a) Each educational institution shall maintain a record kept with
the student records of each student, which will indicate all parties
other than those specified in 43.14 which have requested or obtained
access to those records and which will indicate specifically the
legitimate interest that each party had in obtaining this information.
(b) A record of access shall be available only to:
(1) Parents or eligible students.
(2) The school official and his or her assistants who are responsible
for the custody of such records.
(3) Persons or organizations authorized in and under the conditions
of 43.14.
25 CFR 43.19 Transfer of information by third parties.
(a) Educational institutions shall not release personal information
on a student except on the condition that the party to which the
information is being transferred will not permit any other party to have
access to the information without the written consent of the parents or
of the eligible students.
(b) With any information released to a party under paragraph (a) of
this section, educational institutions shall include a written statement
which informs the party of the requirement in paragraph (a) of this
section.
25 CFR 43.20 Directory information.
(a) Any educational institution making public directory information
shall make a reasonable effort to individually notify the parent or
eligible student of the categories of information which it has
designated as directory information. The institution shall allow a
reasonable period of time after notice has been given for a parent or
eligible student to inform the institution that any or all of the
information designated should not be released without the prior consent
of the parent or eligible student.
(b) Directory information may include the following: A student's
name, address, telephone listing, date and place of birth, major field
of study, participation in officially recognized activities and sports,
weight and height of members of athletic teams, dates of attendance,
degrees and awards received, and the most recent previous educational
agency or institution attended by the student, tribe, agency, area, name
of parent, sex, and classification (grade). No other information may be
included. Educational institutions have the right to limit the content
of directory information.
25 CFR 43.21 Standards for collection and maintenance of student
records.
(a) Records shall contain only information about an individual which
is relevant and necessary to accomplish a purpose of the Bureau required
to be accomplished by statute or Executive order of the President.
(b) Student records which are used in making any determination about
any student shall be maintained with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the student in making the determination.
(c) Information which may be used in determining a student's rights,
benefits, and privileges under Federal programs shall be collected
directly from the student or his parents, to the greatest extent
practicable. In deciding whether collection of information from a
parent or eligible student, as opposed to a third-party source is
practicable, the following factors among others may be considered:
(1) Whether the nature of the information sought is such that it can
only be obtained from a third party.
(2) Whether the cost of collecting the information from the parent or
student is unreasonable, when compared with the cost of collecting it
from a third party.
(3) Whether there is a risk that information collected from third
parties, if inaccurate, could result in an adverse determination to the
student concerned.
(4) Whether the information, if supplied by the parent or student,
would have to be verified by a third party.
(5) Whether provisions can be made for verification by the parent of
student of information collected from third parties.
(d) Each individual parent or eligible student who is asked to supply
information about himself which will be added to a system of student
records shall be notified of the basis for requesting the information,
how it may be used, and what the consequences, if any, are of not
supplying the information. At a minimum, the notice to the parent or
eligible student must state:
(1) The authority (whether granted by statute or Executive Order of
the President) which authorizes requesting the information and whether
disclosure of such information is mandatory or voluntary.
(2) The principle purpose or purposes for which the information is
intended to be used.
(3) The routine uses which may be made of the information.
(4) The effects, if any, of not providing all or any part of the
requested information.
(e) When information is collected on a standard form, the notice to
the parent or eligible student shall be on the form or on a tear-off
sheet attached to the form or on a separate sheet, whichever, is most
practical.
(f) When information is collected by an interviewer, the interviewer
shall provide the parent or eligible student with a written notice which
the individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual and
need not provide a copy to the individual unless the individual requests
that a copy be mailed to him.
(g) A parent or eligible student may be asked to acknowledge, in
writing, that he has been given the notice required by this section.
(h) No student records may be maintained describing how any
individual exercises rights guaranteed by the first amendment to the
Constitution unless:
(1) Expressly authorized by statute or by the individual about whom
the student record is maintained; or
(2) Pertinent to and within the scope of an authorized law
enforcement activity.
25 CFR 43.22 Assuring integrity of records.
(a) Student records shall be maintained with appropriate
administrative, technical and physical safeguards to insure the security
and confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity which could result in
substantial harm, embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained.
(b) When maintained in manual form, student records shall be
maintained, at a minimum, subject to the following safeguards, or
safeguards giving comparable protection:
(1) Areas in which the student records are maintained or regularly
used shall be posted with an appropriate warning, stating that access to
the records is limited to authorized persons. The warning shall also
summarize the requirements of 43.23 and state that employees may be
subject to a criminal penalty for the unauthorized disclosure of student
records.
(2) During working hours, the area in which the student records are
maintained or regularly used shall be occupied by authorized personnel,
or access to the student records shall be restricted by their storage in
locked metal file cabinets or a locked room.
(3) During nonworking hours, access to the student records shall be
restricted by their storage in locked metal file cabinets or a locked
room.
(4) Where a locked room is the method of security provided for a
system, the educational institution responsible for the system shall, no
later than December 31, 1978, supplement that security by:
(i) Providing lockable file cabinets or containers for the student
records, or
(ii) Changing the lock or locks for the room so that they may not be
opened with a master key. For the purpose of this paragraph, a master
is a key which may be used to open rooms other than the room containing
student records, unless those rooms are used by officials or employees
authorized to have access to the student records.
(c) When maintained in computerized form, student records shall be
maintained, at a minimum, subject to safeguards based on those
recommended in the National Bureau of Standards' booklet, ''Computer
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30,
1975), and any supplements to it, which are adequate and appropriate to
assure the integrity of records in the system.
(d) The education institution responsible for a system of student
records shall be responsible for assuring that specific procedures are
developed to assure that the student records in the system for which it
is responsible are maintained with security meeting the regulations in
this section. These procedures shall be in writing and shall be posted
or otherwise periodically brought to the attention of employees working
with the student records contained in the system.
25 CFR 43.23 Conduct of employees.
(a) Employees whose duties require handling of student records shall,
at all times, take care to protect the integrity, security, and
confidentiality of these records.
(b) No employee of the educational institution may disclose student
records unless disclosure is permitted under 43.14 or made to the
parent of the student or eligible student to whom the record pertains.
(c) No employee of the educational institution may alter or destroy a
student record, unless:
(1) Alteration or destruction is properly undertaken in the course of
the employee's regular duties, or
(2) Alteration or destruction is required by an authorized
administrative decision or the decision of a court of competent
jurisdiction.
(d) The educational institution responsible for a system of student
records shall be responsible for assuring that employees with access to
the system are made aware of the requirements of this section.
25 CFR 43.23 PART 45 -- SPECIAL EDUCATION
25 CFR 43.23 Subpart A -- General
Sec.
45.1 General responsibility.
45.2 Provisions of early childhood special education programs and
services.
45.3 Children of ages eighteen through twenty-one.
45.4 Full educational opportunity.
45.5 Definitions.
25 CFR 43.23 Subpart B -- Identification and Evaluation of Handicapped
Children
45.11 Child find.
45.12 Child find -- elements.
45.13 Register of children.
45.14 General entry screening.
45.15 Periodic school screening.
45.16 Screening personnel.
45.17 Screening results and referrals.
45.18 Individual evaluations.
45.19 Evaluation procedures.
45.20 Individual evaluation objectives.
45.21 Formation of multi-disciplinary evaluation teams.
45.22 Composition of multi-disciplinary evaluation teams.
45.23 Content of individual evaluations.
45.24 Test administration.
45.25 Location of evaluation.
45.26 Multi-disciplinary evaluation team procedures.
45.27 Emergency evaluation and placement.
45.28 Independent educational evaluation.
45.29 Additional procedures for evaluating specific learning
disabilities.
25 CFR 43.23 Subpart C -- Provision of Special Education and Related
Services
45.30 Free appropriate public education.
45.31 Individualized education program (IEP).
45.32 Content of individualized education program (IEP).
45.33 Individualized education program (IEP) development.
45.34 Placement recommendation in the IEP.
45.35 Approval of IEP and placement recommendation.
45.36 Parent participation.
45.37 IEP implementation and placement.
45.38 IEP revision, review of placement.
45.39 Re-evaluation.
45.40 Extended school year services.
45.41 Outcome goals.
45.42 Related services.
45.43 Non-academic and extracurricular services.
45.44 Physical education and athletics.
45.45 Expulsion/suspension.
45.46 Geographic accessibility.
45.47 Architectural barriers and program accessibility.
45.48 Handicapped children in private schools placed or referred by
agencies.
45.49 Handicapped children in private schools placed by parents.
25 CFR 43.23 Subpart D -- Procedural Safeguards
45.51 Notice to parents.
45.52 Parental consent.
45.53 Rights of handicapped children.
45.54 Access rights.
45.55 Confidentiality of information.
45.56 Surrogate parents.
45.57 Conciliation/mediation.
45.58 Initiation of hearings.
45.59 Hearing officers.
45.60 Impartial hearing officer.
45.61 Hearing reports.
45.62 Timeliness and convenience of hearings and reviews.
45.63 Administrative appeal: impartial review.
25 CFR 43.23 Subpart E -- Personnel
45.65 In-service training.
45.66 Qualifications of staff.
25 CFR 43.23 Subpart F -- School Administration
45.70 Assurance of compliance.
45.71 Annual evaluation.
45.72 Comparability of facilities.
45.73 Non-discrimination.
25 CFR 43.23 Subpart G -- Responsibilities of the Division
45.74 The Division.
45.75 Monitoring.
45.76 Complaint procedures.
45.77 Use of available funds.
45.78 Children for whom the Division of Social Services has accepted
financial responsibility.
45.79 Cooperative agreements.
45.80 Bureau of Indian Affairs Advisory Committee for Exceptional
Children.
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 20 U.S.C. 1411-1420.
Source: 50 FR 34102, Aug. 23, 1985, unless otherwise noted.
25 CFR 43.23 Subpart A -- General
25 CFR 45.1 General responsibility.
(a) Schools are responsible for providing a free appropriate
education to all handicapped Indian children enrolled in a school
operated or funded by the Bureau of Indian Affairs (BIA) who are between
the ages of five (5) and twenty-one (21). Children whose fifth birthday
occurs on or before December 31 or whose twenty-second birthday occurs
during the course of the regular school year shall be regarded as
eligible children for the entire school year.
(b) The BIA has the responsibility to ensure the provision of a free
appropriate education until a handicapped child successfully completes a
secondary school program, voluntarily withdraws or attains the age of
twenty-two (22) years, regardless of whether the handicapped child is
provided special education and related services:
(1) By a school directly;
(2) Through a contract entered into by the school with a public or
private agency;
(3) By an educational cooperative of which the school is a member;
or
(4) By an approved public or non-public school program (following
placement or referral).
25 CFR 45.2 Provision of early childhood special education programs and
services.
(a) Children from birth to four (4) years of age, who are not
enrolled in BIA funded or operated schools, may receive special
education services through coordination with Head Start and other
existing Early Childhood Special Education programs (ECSE).
(b) Early Childhood Special Education (ECSE) means specially designed
special education and related services, to meet the unique needs of a
child under the age of five (5) years whose handicap or impairment
adversely affects the child's educational performance or learning
abilities.
25 CFR 45.3 Children of ages eighteen through twenty-one.
A child of ages eighteen (18) through twenty-one (21) shall be
entitled to all of the rights given to children and parents by this
part.
25 CFR 45.4 Full educational opportunity.
A full educational opportunity must be provided to all handicapped
children, ages five (5) through twenty-one (21) who are enrolled in
schools operated or funded by the BIA.
25 CFR 45.5 Definitions.
(a) Agency means an organizational unit of the Bureau which provides
direct services to the governing body or bodies of one or more specified
Indian tribes. The term includes Bureau Area Education offices only
with respect to off-reservation boarding schools, cooperative schools,
and tribally operated contract schools located in the Area for which the
Director has not designated an Agency.
(b) Agency Superintendent for Education means the Bureau official in
charge of Bureau education programs and functions in an Agency, and who
reports to the Director, Office of Indian Education Programs (OIEP).
(c) Approved public or non-public school means:
(1) Either a public school operated by an intermediate educational
unit, a local education agency or other public agency (as those terms
are defined in 34 CFR 300.7, 300.8, 300.11) of a State which receives
funds under part B of the Education of the Handicapped Act, as amended
(20 U.S.C. 1411-1420) pursuant to a current annual program plan approved
by the Secretary of Education; or
(2) A non-public school located in a State determined by the State
educational agency to be in full compliance with all applicable State
and Federal special education requirements.
(d) Area Education Program Administrator means the Bureau official in
charge of Bureau Education programs and functions in a Bureau Area
office and who reports to the Director.
(e) Assistant Secretary means the Assistant Secretary -- Indian
Affairs, Department of the Interior, or his/her designee.
(f) Boarding school means a Bureau school offering a residential
center and support services as well as an academic program.
(g) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(h) Child identification means the identification, location, and
individual evaluation of handicapped children.
(i) Cooperative agreements means an agreement between schools
operated or funded by the BIA and state and local education agencies for
the provision of special education and related services to handicapped
children enrolled or eligible to be enrolled in the BIA school.
(j) Counseling services means services provided by qualified social
workers (with training as counselors), psychologists, guidance
counselors, or other qualified personnel.
(k) Days mean consecutive calendar days.
(l) Director means the Director, Office of Indian Education Programs.
(m) The Division means the Branch of Exceptional Education, Office of
Indian Education Programs, Bureau of Indian Affairs, Department of the
Interior.
(n) EHA means part B of the Education of the Handicapped Act as
amended by the Education for All Handicapped Children Act of 1975 (Pub.
L. 94-142), 20 U.S.C. 1411-1420, and the regulations issued by the U.S.
Department of Education, 34 CFR 300.1.
(o) Handicapped child means a child evaluated in accordance with the
requirements of this Part who is determined to be mentally retarded,
hard of hearing, deaf, deaf-blind, speech impaired, visually
handicapped, seriously emotionally disturbed, multi-handicapped,
orthopedically impaired, other health impaired or as having specific
learning disabilities and who because of these impairments needs special
education and related services. The terms used in this definition are
defined as follows:
(1) Deaf means a hearing impairment which is so severe that the child
is impaired in processing linguistic information through hearing, with
or without amplification, which adversely affects educational
performance.
(2) Deaf-blind means concomitant hearing and visual impairments, the
combination of which causes such severe communication and other
developmental and educational problems that they cannot be accommodated
in special education programs solely for deaf or blind children.
(3) Hard of hearing means a hearing impairment, whether permanent or
fluctuating, which adversely affects a child's educational performance
but which is not included under the definition of deaf in this section.
(4) Mentally retarded means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, which adversely
affects a child's educational performance.
(5) Multi-handicapped means concomitant impairments (such as mentally
retarded-blind, mentally retarded-orthopedically impaired, etc., but not
including speech impaired), the combination of which causes such severe
educational problems that they cannot be accommodated in special
education programs solely for one of the impairments. The term does not
include deaf-blind children.
(6) Orthopedically impaired means a severe orthopedic impairment
which adversely affects a child's educational performance. The term
includes impairments caused by congenital anomaly (e.g., clubfoot,
absence of member, etc.), impairments caused by disease (e.g.,
poliomyelitis, bone tuberculosis, etc.), and impairments from other
causes (e.g., cerebral palsy, amputations, and fractures or burns which
cause contractures).
(7) Other health impaired means (i) having an autistic condition
which is manifested by severe communication and other developmental and
educational problems; or (ii) having limited strength, vitality or
alertness, due to chronic or acute health problems such as a heart
condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell
anemia, hemophilia, epilepsy, lead poisoning, leukemia, or diabetes,
which adversely affects a child's educational performance.
(8) Seriously emotionally disturbed is defined as follows:
(i) The term means a condition exhibiting one or more of the
following characteristics over a long period of time and to a marked
degree, which adversely affects educational performance including:
(A) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(B) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers;
(C) Inappropriate types of behavior or feelings under normal
circumstances;
(D) A general pervasive mood of unhappiness or depression; or
(E) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(ii) The term includes children who are schizophrenic. The term does
not include children who are socially maladjusted, unless it is
determined that they are seriously emotionally disturbed.
(9) Specific learning disability means a disorder in one or more of
the basic psychological processes involved in understanding or in using
language, spoken or written, which may manifest itself in an imperfect
ability to listen, think, speak, read, write, spell, or to do
mathematical calculations. The term includes such conditions as
perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia,
and developmental aphasia. The term does not include children who have
learning problems which are primarily the result of visual, hearing, or
motor handicaps, or mental retardation, or emotional disturbance, or of
environmental, cultural, or economic disadvantage.
(10) Speech impaired means a communication disorder, such as
stuttering, impaired articulation, a language impairment, or a voice
impairment, which adversely affects a child's educational performance.
(11) Visually handicapped means a visual impairment which even with
correction, adversely affects a child's educational performance. The
term includes both partially seeing and blind children.
(p) Independent education evaluation means an evaluation conducted by
a qualified examiner who is not employed by the Agency responsible for
the education of the child in question.
(q) Individualized Education Program (IEP) means the written
individualized education for a handicapped child which is consistent
with all the requirements of 45.31 -- 45.38 of this part.
(r) Indian means a person who is a member of an Indian tribe.
(s) Indian Tribe means any Indian Tribe, Band, Nation, Rancheria,
Pueblo, Colony or Community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
recognized by the Secretary as eligible for the special programs and
services provided through the Bureau to Indians because of their status
as Indians.
(t) Individual Intelligent Quotient (IQ) test means any individual
test, device, or measure which purports to assess a child's current
mental abilities, capacity, intellectual functioning, intellectual
development or aptitude, but does not include achievement test or
adaptive behavior scales.
(u) In-service training means training other than that received by an
individual in a full-time program which leads to a degree.
(v) Least Restrictive Environment (LRE) means that to the maximum
extent appropriate, handicapped children in public or private
institutions or other care facilities, are educated with children who
are not handicapped; and that special classes, separate schooling or
other removal of handicapped children from the regular environment
occurs only when the nature or severity of the handicap is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
(w) Native language when used with reference to a person of limited
English-speaking ability, means the language normally used by that
person, or in the case of a child, the language normally used by the
parents of the child. In all direct contact with a child (including
evaluation of the child), communication would be in the language
normally used by the child and not that of the parents, if there is a
difference between the two.
(x) Parent means a parent, a guardian, or person acting as a parent
of a child, or a surrogate parent who has been appointed in accordance
with 45.56. The term parent is defined to include persons acting in the
place of a parent, such as a grandmother or step-parent with whom a
child lives, as well as persons who are legally responsible for a
child's welfare.
(y) Parental consent means: (1) that the parent has been fully
informed of all information relevant to the activity for which consent
is sought, in his or her native language, or other mode of
communication; (2) the parent understands and agrees in writing to the
carrying out of the activity for which his or her consent is sought, and
the consent describes that activity and lists the records (if any) which
will be released and to whom; and (3) the parent understands that the
granting of consent is voluntary on the part of the parent and may be
revoked at any time.
(z) Parent counseling and training means assisting parents in
understanding the special needs of their child and providing parents
with information about child development.
(aa) Physical education means the development of physical and motor
fitness; fundamental motor skills and patterns; skills in aquatics,
dance, individual, and group games and sports. The term includes
special physical education, adaptive physical education, movement
education and motor development.
(bb) Related services means transportation and such developmental,
corrective, and other supportive services as are required to assist a
handicapped child to benefit from special education and includes speech
pathology and audiology, psychological services, physical and
occupational therapy, recreation, early identification and assessment of
disabilities in children, counseling services, and medical services for
diagnostic or evaluation purposes. The term also includes school health
services, social work services in schools, and parent counseling and
training.
(cc) School means educational or residential centers operated by or
under contract with the Bureau of Indian Affairs offering services to
Indian students under the authority of a local school board and the
direction of the school supervisor. A school may be located on more
than one physical site. The term school, unless otherwise specified, is
meant to encompass day schools, boarding schools, cooperative schools,
and contract schools as those terms are commonly used. The term school
shall also encompass private schools, facilities, and institutions, with
which the Bureau of Indian Affairs may contract for services to
handicapped Indian children.
(dd) Section 504 means section 504 of the Rehabilitation Act of 1973,
29 U.S.C. 794.
(ee) Special education means specially designed instruction, at no
cost to the parent, to meet the unique needs of a handicapped child,
including classroom instruction, instruction in physical education, home
instruction, and instruction in hospitals and institutions.
(ff) Special education coordinator means the qualified employee of an
Area/Agency responsible for ensuring that all requirements of this part
are complied with by the schools within the jurisdiction of the
Area/Agency.
(gg) Supervisor or school supervisor means the individual in the
position of authority at any school.
(hh) Tribally operated contract school means a school (other than a
public school) which is financially assisted under a contract with the
Bureau.
(ii) Vocational education means organized educational programs which
are directly related to the preparations of individuals for paid or
unpaid employment, or for additional preparation for a career requiring
other than a baccalaureate or advanced degree.
25 CFR 45.5 Subpart B -- Identification and Evaluation of Handicapped Children
25 CFR 45.11 Child find.
Each Agency must insure that every child within its jurisdiction
between the ages of birth and twenty-two years who is suspected of being
handicapped and in need of special education and related services is
identified and located. A formal child find effort must be conducted at
least once each school year and must include procedures to identify
children:
(a) Enrolled in a regular education program operated by the schools
of the Agency;
(b) Enrolled in a pre-school or day-care program on or near the
reservation; or
(c) Currently out-of-school, including dropouts but excluding
children who have graduated or otherwise successfully completed
programs. Schools shall conduct child find activities for in-school
identification as described in 45.12.
25 CFR 45.12 Child find -- elements.
Each Agency shall:
(a) Conduct a formal community survey through any effective method to
identify children of all ages who may be in need of special education
and related services.
(b) Regularly present or distribute child find information at tribal
government or agency meetings, tribal fairs, chapter/district meetings,
etc.
(c) Establish a system of in-school identification by which each
local school supervisor or designee refers children whose academic
performance, attendance, or other behavior indicates the possibility of
a handicapping condition for an individual evaluation.
(d) Establish a procedure by which child identification data is
regularly collected from the Indian Health Service, local Headstart
programs, day care facilities, group homes, local public and non-public
schools, the state education agency (of the state in which the Agency is
located), tribal agencies and/or organizations and any other appropriate
education, health, welfare or social service organization in the
community served by the Agency. A formal procedure for the exchange of
information between the State Organizational Unit conducting the ''Early
Periodic Screening, Diagnosis and Treatment Program'' (mandated by Title
XIX of the Social Security Act) for the state in which the school is
located and the Agency in which the school is located shall be
established within 180 days from the effective date of this part.
(e) Publish public information articles and programs in local media,
including announcements of times, dates, and places of free orientation
workshops and free screening.
(f) Initiate annual community-wide communication to all parents of
school age children which describes the special education program. Such
communication shall emphasize the availability of programs and services
for school age children.
25 CFR 45.13 Register of children.
Each school shall maintain information on each handicapped child
enrolled in the program. All information collected and maintained must
be kept in accordance with the confidentiality requirements of Pub. L.
94-142 and the Privacy Act.
25 CFR 45.14 General entry screening.
Each school shall participate in a screening program for all newly
enrolled children and children who have not previously been screened in
the school. Such screening shall be conducted by the school in order to
identify those children who should be referred for a full individual
evaluation. The general entry screening shall consist of the following
elements, appropriately adapted for use with children of his/her
particular age. This screening must be completed within thirty (30)
days of the child's enrollment and include at a minimum:
(a) An appropriate vision screening;
(b) An appropriate hearing screening;
(c) A screening of the child's primary language skills;
(d) The administration by a classroom teacher of a general screening
instrument (i.e., rating scale) to provide information regarding:
(1) Current academic performances,
(2) Social and emotional behavior,
(3) Gross motor skills,
(4) Fine motor skills,
(5) Any observable health problems, and
(6) The teachers impression of the need for additional assessment.
25 CFR 45.15 Periodic school screening.
(a) At a minimum, schools must annually screen all students enrolled
in odd numbered grades (i.e., first, third, fifth, seventh, ninth and
eleventh grades) within the first thirty (30) days of enrollment.
(b) For schools using a non-graded system, the screening must occur
every other year, beginning with the first level of enrollment at the
school. The periodic school screening must meet the requirements set
forth in 45.14. Nothing in this part exempts newly enrolled students in
even numbered grades, kindergarten, or pre-school from being screened as
required in 45.14.
25 CFR 45.16 Screening personnel.
The school shall utilize personnel who are trained to do the specific
screening which is being performed.
25 CFR 45.17 Screening results and referrals.
The school supervisor or designee shall review all results obtained
through the screening procedures indicated in 45.14-15 with the
classroom teacher as a team within ten (10) days of completion of this
screening and determine if an individual evaluation is warranted.
(a) Upon the determination that an individual evaluation is needed,
the school supervisor or designee shall within twenty (20) days complete
the following:
(1) Inform the parents of the screening results and the
recommendations of the team.
(2) Explain parental rights as required in 45.51 to the parents.
(3) Obtain parental consent to perform an individual evaluation.
(4) When parental consent for an individual evaluation is obtained a
formal referral must be prepared according to procedures established by
the Agency Special Education Coordinator in consultation with the school
supervisor. The referral shall be fowarded to the appropriate personnel
for action.
(b) Should parental consent be denied, possible alternatives to
formal evaluation such as modifications to the regular classroom program
must be considered and discussed with the parent and classroom teacher
prior to implementing due process procedures as provided in 45.58. The
discussion required in this part must be held within five (5) days of
formal denial of consent and any modifications agreed upon must be
implemented within thirty (30) days. If no agreement can be reached
through these ''conciliation'' measures the due process procedures in
45.58 should be considered.
(c) Nothing in this part is to be interpreted as prohibiting the
child's parent, teacher or school administrator from referring a child
for an individual evaluation should they feel that an evaluation is
needed regardless of the screening cycle.
(d) Screening scales completed on children must be kept in the
child's cumulative file until the succeeding scale is completed. If a
child is placed in a Special Education Program, the screening results
will then become a part of the child's handling file. The child, once
placed, will become exempt from the screening procedures conducted
thereafter.
25 CFR 45.18 Individual evaluations.
(a) An individual evaluation must be conducted after receiving
parental consent when:
(1) The child is referred based on the screening results, or
(2) Requested by the parent, teacher or administrator in writing.
(b) A student must be re-evaluated when:
(1) A disagreement occurs between the school and parent regarding a
change of placement from one program to another (i.e., full-time special
education to regular classroom, part-time special education to regular
classroom, etc.),
(2) A change is proposed for the identification of a student's
handicapping condition to a different condition (i.e., seriously
emotionally disturbed to specific learning disabled, mentally retarded
to specific learning disability, etc.),
(3) A child is currently enrolled in a special education program and
the last evaluation was administered three years ago, or
(4) Requested by the parent.
25 CFR 45.19 Evaluation procedures.
Procedures for selecting testing and evaluation materials and
procedures developed for the purpose of evaluation and placement of
handicapped children will not be racially or culturally discriminatory.
Materials or procedures shall be provided and administered in the
child's native (primary) language or mode of communication unless it is
clearly not feasible to do so. No single procedure shall be the sole
criterion for determining an appropriate educational program for a
child. Assessment instruments should be selected on a child-by-child
basis. Assessments must be reported in such a manner as to indicate
present levels of the child's performance, to determine the need for
special education and related services. Based on the individual needs
of the child, additional specialized assessments may be required.
Assessment reports should contain a summary of the diagnosis and
specific educational recommendations for remediation. Assessment of a
handicapped child will be multi-disciplinary, in order to provide a
comprehensive view of the child from the perspective of the school,
home, and community.
(a) For the purposes of non-discriminatory testing and evaluation
practices, the following shall apply:
(1) Assessment instruments shall be appropriately adapted when used
with children of impaired sensory, physical, or speaking skills and such
adaptation shall consider each child's age and socio-economic and
cultural background.
(2) Specialists implementing evaluation procedures must be familiar
with local, cultural, language, and social patterns and practices.
(3) Interpretors, in the native language and/or sign language may be
used throughout all phases of the evaluation.
(4) Communication with parents and the child shall be in the native
language of the home (through the use of an interpretor) unless the
English language is well understood by the parents, guardians, or child.
(5) Local community norms shall be considered when norm referenced
tests are used.
(6) Criterion referenced instruments should be used.
(7) Developmental checklist(s) should be used where appropriate.
(8) Instruments shall be administered only by trained personnel and
according to the producer's instructions.
(9) Instruments shall assess specific abilities, not merely produce a
single IQ score.
(10) No one result shall determine placement.
(b) Assessment instruments should be adapted in accordance with the
producers instructions to meet the individual needs of the child being
evaluated. This requires that:
(1) Instruments be adapted according to age, socioeconomic, and
cultural background of each child before or during a child's evaluation.
(2) Instruments be adapted for children with perceptual problems
either before or during an evaluation.
(c) Evaluation shall be conducted in educationally related areas to
verify a child's suspected need for special education. Evaluations
shall be accomplished through coordination with the school supervisor
and the Agency Special Education Coordinator when appropriate.
(d) An assessment by a psychologist shall be provided when
appropriate to the child's needs. Such assessment may include:
(1) An individually appropriate psychological examination culminating
in specific recommendations, based upon the child's developmental and
social history.
(2) Observation of the child in familiar surroundings, such as a
classroom or home.
(3) Inventory of sensory, motor, language, perceptual, attentional,
cognitive, affective, attitudinal, self-image, interpersonal,
behavioral, interest and vocational factors, in regard to the child's
maturity, integrity and interaction with the educational and/or home
context.
(e) An assessment by a nurse, social worker, or a counselor shall be
provided when appropriate for the child. Such assessment of pertinent
family history and home situation factors shall include:
(1) A description of pertinent family history and individual
developmental history and estimates of adaptive behavior at home in the
neighborhood and in local peer groups.
(2) Estimates of adaptive behavior shall be based to the greatest
possible degree on information obtained by direct observation or
interview of the child and/or parent in the neighborhood setting.
(f) Each qualified specialist providing an assessment component shall
give the child a professionally sound, complete and suitable
individualized examination or assessment in the context of the child's
physical, developmental, social and educational history and current
circumstances.
(g) Individual evaluations shall be conducted on a child unless there
are written and documented reasons determined on an individual basis,
for waiving evaluations. Acceptable reasons may include but are not
limited to circumstances where:
(1) The parents refuse to permit an evaluation.
(2) The parents arrange for an equivalent evaluation of their child
by a qualified professional.
(3) An equivalent evaluation has been completed within the past three
(3) years.
25 CFR 45.20 Individual evaluation objectives.
The objectives of an individual evaluation are to:
(a) Determine where a child is handicapped;
(b) Diagnose and evaluate the nature and extent of the effect of such
impairment or condition on the educational performance of the child;
and
(c) Assess the need for special education and related services and to
recommend intervention strategies.
25 CFR 45.21 Formation of multi-disciplinary evaluation teams.
(a) The school supervisor will be responsible for the overall conduct
of the individual evaluation and shall collect and review all pertinent
information regarding the child to be evaluated.
(b) The Special Education Coordinator shall coordinate through the
school supervisor, the selection of a multi-disciplinary evaluation team
for the conduct of the evaluation.
25 CFR 45.22 Composition of multi-disciplinary evaluation teams.
The multi-disciplinary evaluation team shall be composed of qualified
persons appropriate to complete an assessment of the suspected
disability. In all cases the classroom teacher (or other instructional
staff member) familiar with the child and a person knowledgeable with
respect to the suspected disability must be included on the team.
25 CFR 45.23 Content of individual evaluations.
Each individual evaluation must include:
(a) An assessment of the child's educational status which includes:
(1) A history of the child's prior evaluations.
(2) A statement of the child's attendance pattern to include schools
attended and average daily attendance in prior years.
(3) An educational history including:
(i) The child's academic grades.
(ii) The child's achievement and aptitude test scores and a statement
of the child's current academic standing or school readiness.
(iii) Previous educational strategies used to remediate the child's
educational need.
(iv) A statement of the child's social relations with groups, peers,
and adults based on classroom and teacher observations.
(v) A description of the child's academic strengths that promote
learning.
(vi) A description of the child's physical limitations and behavior
that inhibit learning.
(vii) A statement of the child's attentional capacity and
communication skills.
(b) A health assessment which includes:
(1) Present and past medical review.
(2) Physical examination.
(3) Current existing medical conditions and prescribed treatment(s).
(c) An assessment by a psychologist, including an individual
psychological examination culminating in specific recommendations, as
contained in 45.19.
(d) Children who have a speech impairment as their primary handicap
may not need a complete battery of assessments (e.g., psychological,
physical, or adaptive behavior). However, a qualified speech-language
pathologist will:
(1) Evaluate each speech impaired child using procedures that are
appropriate for the diagnosis and appraisal of speech and language
disorders, and
(2) Where necessary, make referrals for additional assessments needed
to make an appropriate placement decision. For example, if a child is
suspected of being seriously emotionally disturbed, the child should be
evaluated by either a clinical psychologist or a psychiatrist.
25 CFR 45.24 Test administration.
Agencies shall insure, at a minimum, that:
(a) Tests and other evaluation materials:
(1) Are provided and administered in the child's native language or
other mode of communication, unless it is clearly not feasible to do so;
(2) Have been validated for the specific purpose for which they are
used; and
(3) Are administered by trained personnel in conformance with the
instructions provided by their producer;
(b) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a single general intelligence quotient;
(c) Tests are selected and administered so as best to ensure that
when a test is administered to a child with impaired sensory, manual, or
speaking skills, the test results accurately reflect the child's
aptitude or achievement level or whatever other factors the test
purports to measure rather than reflecting the child's impaired sensory,
manual, or speaking skills (except where those skills are the factors
which the test purports to measure);
(d) No single procedure is used as the sole criterion for determining
an appropriate educational program for a child;
(e) The child is assessed in all areas related to the suspected
disability, including, where appropriate, health, vision, hearing,
social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities;
(f) Tests, to the greatest extent possible, are free from racial,
cultural and sexual bias; and
(g) Determinations of mental retardation are based on an assessment
of a variety of factors including adaptive behavior and past and current
development activities (e.g., indices or manifestations of social,
intellectual, adaptive, verbal, motor, language, emotional and self-care
development for age).
25 CFR 45.25 Location of evaluation.
(a) The evaluation shall take place in the school or at another
facility which is jointly approved by the child's parents and school
officials.
(b) When a child has been referred for an evaluation and, at the time
of such referral, such child is in a hospital or is otherwise living
away from home, the Agency shall make appropriate arrangements for the
provision of the evaluation.
25 CFR 45.26 Multi-disciplinary evaluation team procedures.
(a) Each individual evaluation must be completed, with full attention
to its comprehensiveness and thoroughness, within thirty days from the
date of written parental consent. An extension of time of thirty
additional days may be approved in writing by the Agency Superintendent
for Education after written documentation by the school that unusual
circumstances exist preventing completion of the individual evaluation
in the specified time. No more than one extension may be approved in
connection with a single individual evaluation unless approved in
writing by the Director, or designee.
(b) The comprehensive assessment must reflect a compilation of
information drawn from different assessment sources. The depth of the
assessment in each area will vary based on the initial review of
screening information conducted by the school supervisor.
(c) The Special Education Coordinator is responsible for ensuring
that full and complete records of information collected or generated in
connection with an individual evaluation are maintained. A report
setting forth a full written explanation of the findings and the
recommendations made by the multi-disciplinary evaluation team must be
prepared. The report must include:
(1) A description of the child's present level of functioning;
(2) A description of the needs of the child in rank order of
importance;
(3) A recommendation of the types of services which should be
provided for each listed need;
(4) A written summary of the procedures employed, the results, and
the diagnostic impression;
(5) A proposed date for the review of the child's progress prior to
the review required in 45.38, if such assessment so indicates; and
(6) Criteria by which at that time, the effectiveness of the child's
program may be determined.
(d) Each member of the multi-disciplinary evaluation team shall
certify in writing whether the report prepared by the team reflects his
or her conclusions, and if not, shall submit a separate statement
presenting his or her conclusions. The report must be prepared no later
than fifteen (15) days after completion of the evaluation.
(e) Members of the multi-disciplinary evaluation teams must be
responsible for all aspects of the individual evaluation including: the
selection; administration and interpretation of evaluation materials;
the collection of all appropriate social and cultural background and
adaptive behavior information related to each evaluation; and the
confidentiality of information collected during the individual
evaluation.
25 CFR 45.27 Emergency evaluation and placement.
(a) Where a child demonstrates documented instances of dangerously
assaultive or self-abusive behavior, the school supervisor may approve a
temporary change in placement (i.e., to a special education setting
other than the regular classroom) on an emergency basis. The school
supervisor shall immediately notify the Special Education Coordinator of
the placement. The Agency shall no later than the following day
determine the appropriateness of the placement and initiate the
evaluation process.
(b) The parent shall be informed immediately of the child's behavior
and shall participate (if possible within the constraints of time) in
the emergency placement decision and consent for evaluation will be
obtained.
(c) An individual evaluation must be completed within fifteen days of
the emergency placement. Procedures as outlined in 45.23 must be
followed. A final placement determination, made by the IEP committee,
must be made within five (5) days following completion of the individual
evaluation.
25 CFR 45.28 Independent educational evaluation.
(a) The parents of a handicapped child have the right under this part
to obtain an independent educational evaluation of the child, subject to
paragraphs (b) through (e) of this section. Each school/Agency shall
provide to parents, on request, information about where an independent
educational evaluation may be obtained.
(b) A parent has the right to an independent education evaluation at
public expense if the parent disagrees with an evaluation obtained by
the school or Agency. However, the school or Agency may initiate a
hearing in accordance with the procedures of this part to show that its
evaluation is appropriate. If the final decision is that the evaluation
is appropriate, the parent still has the right to an independent
educational evaluation, but not at school expense.
(c) If the parent obtains an independent educational evaluation at
private expense, the results of the evaluation:
(1) Must be considered by the school in any decision made with
respect to the provision of a free appropriate public education to the
child; and
(2) May be presented as evidence at a hearing regarding that child.
(d) If a hearing officer requests an independent educational
evaluation as part of a hearing, the cost of the evaluation must be at
school or Agency expense.
(e) Whenever an independent evaluation is at school or Agency
expense, the criteria under which the evaluation is obtained, including
the location of the evaluation and the qualifications of the examiner,
must be the same as the criteria which the school or Agency uses when it
initiates an evaluation.
25 CFR 45.29 Additional procedures for evaluating specific learning
disabilities.
(a) In evaluating a child suspected of having a specific learning
disability, in addition to the requirements of 45.22, each Agency shall
include on the multi-disciplinary evaluation team:
(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular classroom
teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified to
teach a child of his or her age; and
(4) At least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-language
pathologist, or remedial reading teacher.
(b) At least one team member other than the child's regular teacher
shall observe the child's academic performance in the regular classroom
setting. (In the case of a child of less than school age or out of
school, a team member shall observe the child in an environment
appropriate for a child of that age.)
(c) The team may determine that a child has a specific learning
disability if:
(1) The child does not achieve commensurate with his or her age and
ability levels in one or more of the areas listed in paragraph (c)(2) of
this section, when provided with learning experiences appropriate for
the child's age and ability levels; and
(2) The team finds that a child has a severe discrepancy between
achievement and intellectual ability in one or more of the following
areas:
(i) Oral expression;
(ii) Listening comprehension;
(iii) Written expression;
(iv) Basic reading skill;
(v) Reading comprehension;
(vi) Mathematics calculation; or
(vii) Mathematics reasoning.
(d) The multi-disciplinary team may not identify a child as having a
specific learning disability if the severe discrepancy between ability
and achievement is primarily the result of:
(1) A visual, hearing, or motor handicap;
(2) Mental retardation;
(3) Emotional disturbance; or
(4) Environmental, cultural or economic disadvantage.
(e) The multi-disciplinary team shall prepare a written report of the
results of the evaluation. The report must include a statement of:
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination;
(3) The relevant behavior noted during the observation of the child;
(4) The relationship of that behavior to the child's academic
functioning;
(5) The educationally relevant medical findings, if any;
(6) Whether there is a severe discrepancy between achievement and
ability which is not correctable without special education and related
services; and
(7) The determination of the team concerning the effects of
environmental, cultural, or economic disadvantage.
(f) Each team member shall certify in writing whether the report
reflects his or her conclusion. If it does not reflect his or her
conclusion, the team member must submit a separate statement presenting
his or her conclusions. The report must be prepared no later than
fifteen (15) days after completion of the evalution.
25 CFR 45.29 Subpart C -- Provision of Special Education and Related Services
25 CFR 45.30 Free appropriate public education.
(a) Each BIA funded or operated school must ensure that a free
appropriate public education is provided to every handicapped Indian
child enrolled in the school between the ages of five (5) and twenty-one
(21) years.
(b) An appropriate education is one which meets the needs of a
handicapped child as set forth in the individual education program in
the least restrictive educational setting. An appropriate education
involves the provision of regular education, special education and
related aids or services and may include pre-school, elementary school,
or secondary school education.
(c) The provision of a free education is the provision of educational
and related services without cost to the child (or parents), except for
those fees that are imposed on a non-handicapped child, and may consist
of the provision of free services or the payment of the costs of the
program. Transportation must be provided in order to assure access of
persons to services.
25 CFR 45.31 Individualized education program (IEP).
If, as a result of the determination of a multi-disciplinary team, a
child is diagnosed as being handicapped and in need of special education
and related services, schools are required to develop an IEP within
thirty (30) days from the date of receipt of the written individual
evaluation report. The IEP shall set forth the approach which will be
taken to ensure that the child will be provided a free, appropriate
education.
25 CFR 45.32 Content of individualized education program (IEP).
At a minimum, the IEP must contain:
(a) A statement of the child's present levels of educational
performance;
(b) A statement of annual goals, including short term instructional
objectives;
(c) A statement of the specific special education and related
services to be provided to the child, and the extent to which the child
will be able to participate in regular education programs;
(d) The projected dates for initiation of services and the
anticipated duration of the services;
(e) Appropriate objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis, whether the
short term instructional objectives are being achieved;
(f) A description of the nature and duration of physical education
services to be provided to the child; and
(g) A statement that all services recommended by the
multi-disciplinary team are being provided, or if all recommended
services are not provided, a justification for the exclusion of the
services.
25 CFR 45.33 Individualized education program (IEP) development.
(a) Overall responsibility for the development of each IEP rests with
the school supervisor.
(b) The IEP shall be developed by a committee which shall hold at
least one meeting and includes among its members the following:
(1) The School Supervisor, or designee (who shall chair the
committee) other than the child's teacher, who is qualified to provide
or supervise the provision of special education;
(2) The child's teacher and/or other relevant instructional staff;
(3) One or both of the child's parents;
(4) The child, where appropriate; and
(5) Other individuals at the discretion of the parent, Agency, or
school.
(c) For a handicapped child who has been evaluated for the first
time, the Agency shall insure:
(1) That a member of the evaluation team participates in the meeting;
or
(2) That the representative of the school, the child's teacher, or
some other person is present at the meeting, who is knowledgeable about
the evaluation procedures used with the child and is familiar with the
results of the evaluation.
(d) Upon receiving written application from the school, the Agency
Superintendent for Education may allow the school to postpone the
development of an initial IEP to the beginning of a new school year, if
the written evaluation report is completed within fifteen (15) days of
the end of the current school year and, if the Agency Superintendent for
Education determines that an IEP need not be implemented during the
summer.
(e) Schools must prepare a progress report related to the
instructional objectives specified in the IEP for each handicapped child
and must include it with, or in lieu of the grading report prepared by
the school for all elementary and secondary students.
25 CFR 45.34 Placement recommendation in the IEP.
(a) Placement recommendations shall be made by the School Supervisor
or designee in concert with the IEP committee and shall be incorporated
in the IEP.
(b) The appropriate placement must be selected from the following:
(1) The regular classroom;
(2) The regular classroom with consultation;
(3) The regular classroom with resource teacher;
(4) The regular classroom with itinerant resource teacher;
(5) The regular classroom in conjunction with a resource room;
(6) A self-contained special classroom with part-time instruction in
regular class;
(7) A self-contained special class (regular campus);
(8) A self-contained special class in a special day facility;
(9) Homebound instruction; and
(10) Instruction in hospitals and residential facilities.
(c) Schools may not decline to propose placement for a child or
recommend to parents that a child be enrolled ''voluntarily'' in a
non-BIA operated/funded school program. In selecting from the continuum
of alternative settings, no handicapped child may be proposed for
placement in any alternative settings unless it can be demonstrated that
the nature or severity of the child's disability is such that education
in regular class (in the school the child attends if not handicapped)
with the use of supplementary aids and services cannot be achieved
satisfactorily. Each school must insure that a continuum of alternative
placements which meets the particular needs of each enrolled handicapped
child is available.
(d) Placement of a handicapped child in a boarding school operated by
the Bureau which concurrently enrolls non-handicapped children of the
same age and grade shall be considered a placement in a regular school
campus.
(e) Alternative placements may be provided directly by the school, or
through cooperative arrangements with local and state education agencies
or, except as provided in paragraph (h) of this section, through
contractual arrangements with approved non-public schools, agencies or
institutions.
(f) Alternative (9), homebound instruction may be selected only when
the handicapped child:
(1) Currently possesses a physical impairment or illness which
directly (or because of treatment required) precludes the movement of
the child from a hospital or home environment to the general education
environment; or
(2) Has been determined (after an individual evaluation) to require a
program of continuous mental health care and treatment which would be
seriously disrupted by movement to the general educational environment.
The proposed homebound instruction should permit the return of the child
to the general education environment at a specified date. The Agency
Superintendent for Education must be immediately notified in writing of
each homebound placement made by the school.
(g) Alternative placement (10) may be selected only when the health
or safety of the child precludes the child's attendance at a nearby
school for special education services.
(h) Alternative placements (1) through (8) may not be provided
through contractual arrangements with approved non-BIA operated/funded
schools, Agencies or institutions if there are a sufficient number of
handicapped children with similar educational needs who live within the
attendance area served by the school to justify the allocation of one
teacher.
(i) Handicapped individuals who do not meet the age requirements of
the Bureau may be served by the local school, provided they are not
counted for ISEP formula funding, with the approval of the local school
board and the Agency Superintendent for Education, and so long as such
placement does not dilute the quality and/or quantity of services
provided to eligible handicapped students.
(j) If the multi-disciplinary team determines that a residential
placement for a child is appropriate they should notify the Agency
Special Education Coordinator in writing. Upon receipt of such notice,
the Special Education Coordinator, with the approval of the Agency
Superintendent for Education, will consult with the Education Specialist
for institutional placement to determine that the placement is in
compliance with Federal laws regarding the education of handicapped
children.
25 CFR 45.35 Approval of IEP and placement recommendation.
(a) The school must attempt to schedule a meeting which includes the
school supervisor or designee, the child's parent(s), and the receiving
teacher and others as identified in 45.33.
(b) The parent(s) of the child must be provided full and effective
written notice of the meeting and all reasonable efforts must be made by
the school supervisor to ensure parental participation. The written
notice to parents shall also contain the following information:
(1) A statement that the evaluation has been completed and that the
parents have the right to meet with the School Supervisor, the Special
Education Coordinator or any member of the IEP committee to discuss and
plan the IEP.
(2) A statement that all papers relevant to the evaluation, including
the actual written assessments, are available for inspection by the
parents or a designated representative of the parents;
(3) A statement that the parent has a right to an independent
evaluation as provided in 45.28;
(4) A statement of the parent's options under paragraph (c) of this
section and a form for indicating the option selected by the parent;
and
(5) A statement explaining the consequences of the parent's rejection
of the proposed IEP under the due process procedures established by
45.58.
(c) The parent of a child, upon receipt of full and effective notice,
may exercise any of the following options (by giving written notice to
the school):
(1) To accept or reject a written evaluation finding that the child
does not need special education;
(2) To accept or reject the IEP. A parent may accept an IEP in whole
or in part and the school shall immediately implement the mutually
accepted elements of the IEP;
(3) To accept a modified IEP that has been mutually agreed upon with
the School Supervisor or designee following the meeting described in
paragraph (a) of this section; or
(4) To postpone a decision on the IEP until the completion of an
independent evaluation; and
(5) To obtain an independent evaluation of their child.
(d) This meeting may be the first and only full meeting of the IEP
committee. The meeting must include a thorough discussion of the
results of the child's individual evaluation, the child's proposed IEP
and the child's proposed educational placement. The school supervisor
or designee should take whatever action is necessary to insure that the
parents understand the proposed IEP and the proposed educational
placement before requesting consent for placement. At the close of the
final meeting, each member of the committee shall sign the completed IEP
to signify their participation and agreement with the educational plan.
25 CFR 45.36 Parent participation.
(a) Each school shall take steps to encourage that one or both of the
parents of the handicapped child are present at each meeting including:
(1) Try to schedule the meeting at a mutually agreed upon time and
place.
(2) Notifying parents of the meeting early enough to insure that they
will have an opportunity to attend.
(b) The notice under paragraph (a)(2) of this section must indicate
the purpose, time, and location of the meeting, and who will be in
attendance.
(c) If neither parent can attend, the school shall use other methods
to insure parent participation, including individual or conference
telephone calls.
(d) A meeting may be conducted without a parent in attendance if the
school is unable to convince the parents that they should attend. In
this case the school must have a record of its attempts to arrange a
mutually agreed on time and place such as:
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
(e) The school shall take whatever action is necessary to insure that
the parent understands the proceedings at a meeting, including arranging
for an interpreter for parents who are deaf or whose native language is
other than English.
(f) The school shall give the parent a copy of the IEP.
25 CFR 45.37 IEP implementation and placement.
(a) For newly identified children, the IEP must be implemented and
educational placement must be made:
(1) Within thirty (30) days after the written parental approval of
the placement has been received; or
(2) In cases involving due process, placement will be made within
thirty (30) days of the final written decision of the hearing officer,
unless an appeal is filed by the aggrieved party.
(b) If the school cannot, within thirty (30) days, provide any or all
of the services called for in the IEP the School Supervisor must consult
the Agency Superintendent for Education on alternate means of providing
the services to fully implement the IEP. The Agency Superintendent for
Education must make provision for the service within fourteen (14) days
of the consultation.
25 CFR 45.38 IEP revision, review of placement.
Consistent with the requirements of 45.37, the IEP must be reviewed
and updated annually. The review and revision of the IEP must be
completed no later than the first day of school of the next full term.
Whenever possible, the review shall be scheduled near the time that
there may be a change in the personnel providing the major services to
the child under the IEP, as when the child is to move from one grade or
school to another. The review shall be conducted as follows:
(a) The school supervisor, the parents, and the person(s) providing
the major services to the child under the IEP shall meet and make a
careful review of the child's progress based upon the progress reports
submitted by the school during the grading period, and the observations
of those working with the child.
(b) The School Supervisor shall invite (in writing) the child's
parents and, where appropriate, the child, to attend and participate in
the review meeting. The School Supervisor or the parents may, at their
discretion, invite other person(s) who have worked with, are working
with, or will be working with the child to attend the review meeting.
(c) The participants in the review meeting shall determine:
(1) Whether the child has achieved the goals set forth in the IEP;
(2) Whether the child has met the criteria which indicate readiness
to enter a less restrictive program;
(3) Whether the program the child is in should be specifically
modified to make it more suitable to the child's needs; and
(4) Whether it is desirable to refer the child for an individual
re-evaluation.
(d) The participants in the review meeting shall review the current
IEP and revise it as appropriate in accordance with 45.34. If a
re-evaluation of the child is scheduled in accordance with 45.39, the
revision of the new IEP shall be deferred until completion of the
re-evaluation. If the parent is unable to attend the review meeting,
the school shall provide the parent with copies of all relevant
documents within five (5) days after the review meeting has been
completed.
(e) During the annual review, the description of current educational
performance in the IEP must be updated and the overall educational
needs, long-term educational goals, short-term objectives, and related
services modifications made. Schools are required to rewrite sections
of the IEP only to the extent necessary to update or modify the plan.
25 CFR 45.39 Re-evaluation.
Parental approval is not required for the conduct of a re-evaluation
if the child has been initially placed and his/her individualized
education program has been reviewed following the requirements of this
part. Notice of the conduct of the re-evaluation must be provided to
the parent prior to re-evaluation. A written summary of the
re-evaluation must be provided to the parents within five (5) days of
the scheduled review meeting. A child must be re-evaluated at least
every three (3) years.
25 CFR 45.40 Extended school year services.
(a) The IEP may provide for continuous instruction (uninterrupted by
the regular summer recess) whenever:
(1) Continuous instruction is likely to be necessary in order to
sustain, with only minor regression, current important educational
skills and information retention; or
(2) The child lives in a residential facility or institution.
(b) The extension of an IEP for a ten (10) to twelve (12) month
instructional program shall not result in a more restrictive change in
placement on the continuum of alternative placements nor shall it
constitute a basis for any deviation from any other educational
placement requirement of 45.34 of this part. However, the increased
isolation of handicapped children which could result from the operation
of an instructional program for handicapped children during a period of
time when non-handicapped children are not attending school would not
violate any requirements of this part.
25 CFR 45.41 Outcome goals.
IEP's for children over the age of fifteen (15) years may contain, as
appropriate, either a description of regular and/or special education
instructional services leading to the attainment of a regular high
school diploma before the age of twenty-two or a program of regular or
special vocational education leading to participation in a
work-experience (or sheltered employment) program and the attainment of
an appropriate level of vocational proficiency to permit, whenever
possible, the child's entry into competitive employment upon or before
reaching the age of twenty-two.
25 CFR 45.42 Related services.
The school must ensure that each handicapped child has developmental,
corrective and other supportive services (to the maximum extent
feasible) to benefit from special education.
25 CFR 45.43 Non-academic and extracurricular services.
(a) Non-academic and extracurricular services and activities must be
offered in a way which allows equal opportunity for handicapped children
to participate in services and activities.
(b) Non-academic and extracurricular services, meals and recess
periods must be provided in the most integrated setting appropriate to
the needs of the child.
25 CFR 45.44 Physical education and athletics.
(a) Handicapped children must be provided an equal opportunity for
participation in physical education courses and inter-scholastic, club
or intramural athletics sponsored by the school.
(b) Physical education services must be provided to handicapped
children in the regular physical education program and may not be
different from those provided other children, unless:
(1) The child is enrolled full time in a separate facility or needs
specially designed physical education; and
(2) A separate physical education setting is the least restrictive
environment.
25 CFR 45.45 Expulsion/suspension.
A handicapped child may not be expelled or suspended from school if
the behavior for which action is being taken is related to the child's
disability. If the child's behavior is so disruptive that the education
of others is impaired, a review of the child's IEP and placement as
described in 45.38 of this part must be undertaken in order to meet the
needs of the child.
25 CFR 45.46 Geographic accessibility.
Consistent with the requirements of the IEP, the educational
placement of a child must be as close to the child's home as possible.
The placement of a handicapped child in an off-reservation boarding
school operated by the Bureau shall not be regarded as inconsistent with
this requirement to the extent that similarly situated non-handicapped
students are also placed in such a school.
25 CFR 45.47 Architectural barriers and program accessibility.
(a) Facilities used by schools, directly, or through contractual
arrangement, must be accessible to and usable by handicapped children.
The accessibility standards of the American National Standards Institute
(ANSI A117.1-1961 (R 1971)) shall be followed. Schools located in
isolated locations may make application to the Director for an annual
waiver of any standard. Such a request must be based on documented
inability to meet the standards. In no event may architectural barriers
prevent a handicapped child from being educated in the least restrictive
educational environment as defined in 45.34.
(b) Program accessibility (i.e., where each program or activity, when
viewed in its entirety, is readily accessible to handicapped children)
must be ensured in all existing facilities.
(c) Program accessibility may be accomplished through the following
methods:
(1) Redesign of equipment;
(2) Reassignment of classes or other services to accessible building;
(3) Assignment of aides to children;
(4) Home visits;
(5) Alteration of existing facilities; or
(6) Other methods.
(d) The method for accomplishing program accessibility which offers
programs and activities to children in the least restrictive
environment.
25 CFR 45.48 Handicapped children in private schools placed or referred
by agencies.
Requirements of this section apply to handicapped children who are or
have been placed in or referred to a private school or facility by an
Agency as a means of providing special education and related services.
(a) Each Agency shall insure that a handicapped child who is placed
in or referred to a private school or facility is:
(1) Provided special education and related services in conformance
with an IEP which meets the requirements under 45.30 -- 45.38 at no
cost to the parents; and
(2) At a school or facility which meets the standards that apply to
the Agencies (including the requirements in this part).
(b) In implementing the requirements of this part the Agency shall:
(1) Monitor compliance through procedures such as written reports,
on-site visits, and parent questionnaires;
(2) Disseminate copies of applicable standards to each private school
and facility to which an Agency has referred or placed a handicapped
child;
(3) Provide an opportunity for those private schools and facilities
to participate in the development and revision of BIA standards which
apply to them; and
(c) Assure that handicapped children have all of the rights of a
non-handicapped child.
25 CFR 45.49 Handicapped children in private schools placed by parents.
(a) If a handicapped child has available a free appropriate public
education and the parents choose to place the child in a private school
or facility, the Agency is not required by this part to pay for the
child's education at the private school or facility.
(b) Disagreements between a parent and a public agency regarding the
availability of a program appropriate for the child, and the question of
financial responsibility, are subject to the due process procedures
under 45.57 through 45.63.
25 CFR 45.49 Subpart D -- Procedural Safeguards
25 CFR 45.51 Notice to parents.
(a) Written notice must be given to the parents of a handicapped
child a reasonable time before the school:
(1) Proposes to initiate or change the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to the child, or
(2) Refuses to initiate or change the identification, evaluation, or
educational placement of the child or the provision of a free
appropriate public education to the child.
(b) The notice described under paragraph (a) of this section must
include:
(1) A full explanation of all the procedural safeguards available to
the parents including confidentiality requirements;
(2) A description of the proposed (or refused) action, explaining the
reasons for such action and describing any options which were considered
and rejected;
(3) A description of each evaluation procedure, test, record or
report used as a basis for the action and any other relevant factors;
(4) The name(s) of the employee(s) of the school who may be contacted
for further information;
(5) Language understandable to the general public, provided in the
language of the parent or other mode of communication used by the
parent(s) unless clearly not feasible.
(c) The notice must be communicated orally (where necessary) in the
primary language or other mode of communication to insure that the
parent understands the content.
(d) If an interpreter is used as part of the procedure for providing
full and effective notice, the school must maintain a written statement,
signed by the interpreter, to the effect that the parent understood the
content of the matter presented.
25 CFR 45.52 Parental consent.
(a) Parental consent must be obtained before:
(1) Conducting a preplacement evaluation; and
(2) Initial placement of a handicapped child in a program providing
special education and related services.
(b) Parental consent must also be obtained before personally
identifiable information is:
(1) Disclosed to anyone other than officials of participating
agencies collecting or using the information consistant with the
dislosure provisions of the Privacy Act of 1974, as amended;
(2) Used for any purpose other than meeting a requirement under this
part; or
(3) Used for purposes other than those previously specified to the
parent.
25 CFR 45.53 Rights of handicapped children.
Handicapped children shall have the right to:
(a) Non-discrimination on the basis of being handicapped;
(b) A free appropriate education;
(c) An independent educational evaluation as provided in this part,
and careful consideration of the results of an independent evaluation
with respect to the provision of a free appropriate education;
(d) Be accompanied and represented by persons of his/her choice at
any meeting or conference required or permitted by this part;
(e) Inspect and review all relevant records with respect to the
identification, evaluation and placement of the child and the provisions
of a free appropriate education;
(f) A hearing on any action for which notice is required with
opportunity for direct participation, representation by counsel, and
other procedural rights;
(g) Appeal to the Agency Superintendent for Education, or the Area
Education Program Administrator, as appropriate, and to the Director
relating to identification, evaluation or placement or to the provision
of a free, appropriate education;
(h) A surrogate parent, when appropriate;
(i) A copy of the full written explanation and findings of the
individual evaluation as soon as it is completed together with a full
oral explanation (effectively communicated) of both the findings and the
recommendations;
(j) A personal consultation with the members of the
multi-disciplinary team;
(k) Full and effective notice of proposed actions as provided in this
part;
(l) Parental approval or disapproval as provided in this part; and
(m) Information concerning any free or low-cost legal and other
relevant services available upon request or if a hearing is initiated.
25 CFR 45.54 Access rights.
(a) Each school and Agency must permit parents to inspect and review
any records directly relating to their children which are collected and
maintained by them or by a party acting for the school.
(b) A parental request to inspect and review records must be honored
without unnecessary delay and before any meeting regarding an IEP or
hearing relating to the identification, evaluation, or placement of the
child, and in no case more than fourteen (14) days after the request has
been made. The right to inspect and review educational records under
this section includes:
(1) The right to a response to reasonable requests for explanations
and interpretations of the records;
(2) The right to request that copies of the records containing the
information be provided at no cost to the parents;
(3) The right to have a representative of the parent (authorized in
writing) inspect and review the records.
(4) The right to place a statement in the records a school maintains
on a child. Such statement may comment on any information or set forth
any reason for disagreeing with the decisions of the Agency. Any
explanation placed in the records must be maintained by the Agency. If
the contested portion of the record is disclosed to any party, the
parent's explanation must also be disclosed.
(c) The parent shall be presumed to have authority to inspect and
review records relating to his or her child unless the school has been
advised, in writing, that the parent does not have the authority under
applicable tribal or state law governing such matters as guardianship,
separation, and divorce.
(d) A record of parties obtaining access to education records (except
access by parents and authorized employees of the school) must be kept
and must include the name of the party, and the date access took place.
(e) Parents, upon request, shall be provided with a list of the types
and the purpose of the authorized use of education records of their
child.
(f) If any education record includes information on more than one
child, the parents of those children shall have the right to inspect and
review only the information relating to their child or to be informed of
that specific information.
(g) A parent who believes that information in the education records
is inaccurate or misleading or violates the privacy or other rights of
the child, may request that the information be amended. The school or
Agency must decide whether to amend the information as requested within
fourteen (14) days of receipt of request. If the school or Agency
decides to refuse to amend the information, it must inform the parent of
the refusal and advise the parent of the right to a hearing.
25 CFR 45.55 Confidentiality of information.
(a) The confidentiality of personally identifiable information must
be protected at collection, storage, disclosure, and destruction stages.
(b) One person designated by the school must assume responsibility
for insuring the confidentiality of any personally identifiable
information.
(c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the policies
and procedures set forth in this subpart.
(d) Schools must maintain, for public inspection, a current listing
of the names and positions of the employees who may have access to
personally identifiable information.
(e) Schools must inform parents when personally identifiable
information collected, maintained, or used under this part is no longer
needed to provide educational services to the child. The information
must be destroyed at the request of the parents. However, a permanent
record of a student's name, address, phone number, grades, attendance
record, classes attended, grade level completed, and year completed may
be maintained without time limitation.
25 CFR 45.56 Surrogate parents.
(a) After documented, repeated and reasonable efforts to identify and
locate a parent of a handicapped child, or of a child suspected of being
a handicapped child, or whenever a child is a ward of a court, the
School Supervisor must institute a proceeding before an appropriate
tribunal to determine the need for a surrogate parent and, if need is
found, for the appointment of a surrogate parent.
(b) The person appointed as a surrogate parent shall:
(1) Have no interest that conflicts with the interests of the child
and shall not be a present employee of the school involved in the
education or care of the child or a present employee of Office of Indian
Education Programs;
(2) Have knowledge and skills that insure adequate representation of
the child; and
(3) Wherever possible, be a member of the child's extended family, or
if that is not possible, a member of the same tribe as the child.
(c) The surrogate parent shall represent the child in all matters
relating to the identification, individual evaluation and educational
placement of the child and the provision of a free appropriate public
education.
(d) Surrogate parents may not be appointed for the sale purpose of
representing parents at the IEP conference.
(e) Payment of fees for service as a surrogate parent does not, in
and of itself, render a person an employee of the BIA.
25 CFR 45.57 Conciliation/mediation.
(a) The school must make all reasonable efforts consistent with its
obligations under this part, to resolve informally any ongoing disputes
between the parent and the school.
(b) Prior to the initiation of a due process hearing, the Bureau
shall attempt to intervene with the mediation process. The following is
a statement which describes this technique.
(1) Mediation is a dispute resolution process which is
non-adversarial in nature. It seeks not to declare winners or losers,
but to find reconciliation between disputing parties. This process is
conducted through the skills of a trained mediator. Its focus is the
mutually satisfactory resolution of disputes. No third party acts as
judge or jury. The parties themselves arrive at an assessment through
the process. Mediation can be initiated by either a parent or the
Bureau in order to resolve informally a disagreement with respect to the
identification, evaluation, or educational placement of, or the free
appropriate education provided to an Indian child. Mediation shall
consist of, but not be limited to, an informal discussion of the
differences between the parties in an effort to resolve those
differences. The parents and the appropriate school officials may
attend mediation sessions between the parties in an effort to resolve
those differences.
(2) Mediation must be conducted, attempted, or refused in writing by
concerned parties of the handicapped child whose education is at issue
before a request for, or initiation of, a hearing authorized by this
part. Any request by the Bureau for a hearing shall state in writing
how this requirement has been satisfied. No stigma may be attached to
the refusal of the concerned parties to mediate or to an unsuccessful
attempt to mediate. Mediation may not be used to deny or delay a
parent's right to impartial due process hearing.
25 CFR 45.58 Initiation of hearings.
(a) If the parent disagrees with any action taken by a school for
which full and effective notice to parents is required by this part, a
hearing may be initiated by the parent of a handicapped child or a child
suspected of being a handicapped child, by sending a written request for
hearing to the Agency Superintendent for Education. The Agency
Superintendent for Education must acknowledge receipt of the written
request within five (5) days of actual receipt.
(b) Hearings may be initiated by a school by providing full and
effective notice to parents in any instance where, after reasonable
efforts at conciliation, a parent either fails to provide written
approval of a proposed action, or provides a formal disapproval.
(c) Whenever a hearing is initiated, full and effective notice of the
initiation of the hearing must be provided by the hearing officer to all
persons concerned.
(d) The written notice of hearing shall include:
(1) A statement of the date, time, place and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which
the hearing is to be held;
(3) A reference to the particular sections of the statutes or
regulations involved; and
(4) A short and plain statement of matters asserted.
25 CFR 45.59 Hearing officers.
(a) A proposed hearing officer must be selected by the Agency
Superintendent for Education within one (1) day of receipt of a request
for a hearing, from a list established and maintained by the Agency.
(b) After selecting a proposed hearing officer, the Agency
Superintendent for Education must, within three (3) days, give the
parent(s) and the school full and effective notice of the name of the
proposed hearing officer.
(c) The parent and school, each upon notice of the selection of
proposed hearing officer, may request that the Agency/Area determine
that the person so proposed is not impartial and may exercise one
automatic disqualification during the appointment process. The Director
shall resolve all challenges for cause (i.e., partiality).
(d) If the proposed hearing officer is automatically disqualified or
found to be not impartial by the Director, the Agency Superintendent for
Education must within three (3) days designate another person.
(e) Final appointment of a hearing officer occurs whenever a proposed
hearing officer is selected by the Agency Superintendent for Education
and the parent or the school fails to notify the Agency Superintendent
for Education of a decision to challenge the impartiality of the
proposed hearing officer or of a decision to automatically disqualify
the proposed hearing officer (available only once for each party), or
when the Director determines that no doubt exists as to the impartiality
of a proposed hearing officer.
25 CFR 45.60 Impartial hearing officer.
(a) A hearing may not be conducted:
(1) By a person who is an employee of a school, or of the BIA, who is
involved in the education or care of the child, or
(2) By any person having a personal or professional interest which
would conflict with his or her objectivity in the hearing.
(b) A person who otherwise qualifies to conduct a hearing under
paragraph (a) of this section is not an employee of the Agency solely
because he or she is paid by the Agency to serve as a hearing officer.
25 CFR 45.61 Hearing reports.
(a) Any party to a hearing has the right to:
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of
handicapped children. The cost for such counsel or expert
representatives shall be borne by the party employing them:
(2) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any evidence at the hearing that has
not been disclosed to that party at least five (5) days before the
hearing;
(4) Obtain a written or electronic verbatim record of the hearing;
and
(5) Obtain written findings of fact and decisions.
(b) Parents involved in hearings must be given the right to:
(1) Have the child who is the subject of the hearing present; and
(2) Open the hearing to the public.
25 CFR 45.62 Timelines and convenience of hearings and reviews.
(a) The Agency shall ensure that a final decision is reached by the
hearing officer and a copy of the decision is mailed to each of the
parties within 45 days after receipt of a request for a hearing.
(b) A copy of the decision made in a review conducted by the
Assistant Secretary -- Indian Affairs must be mailed to each of the
parties within 30 days of the request for a review.
(c) The hearing or reviewing officer may grant specific extensions of
time at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place which is reasonably convenient to the
parents and child involved.
25 CFR 45.63 Administrative appeal: impartial review.
(a) A decision made in a hearing conducted under this subpart is
final, unless a party to the hearing appeals the hearing decision.
(b) A party aggrieved by the findings and decision in the hearing
may, within ten (10) days of the decision, appeal to the Assistant
Secretary -- Indian Affairs who may designate an official to conduct the
review.
(c) The Official conducting the review shall:
(1) Examine the entire hearing record;
(2) Insure that the procedures at the hearing more consistent with
the requirements of due process;
(3) Seek additional evidence if necessary. If a hearing is held to
receive additional evidence, the rights in 45.62 apply;
(4) Afford the parties an opportunity for oral or written argument,
or both, at the discretion of the reviewing official;
(5) Make an independent decision on completion of the review; and
(6) Provide written findings and the decision to the parties.
(d) The Department of the Interior considers the decision made by the
reviewing official as final.
25 CFR 45.63 Subpart E -- Personnel
25 CFR 45.65 In-service training.
(a) Each Agency must provide a written plan which insures that
ongoing in-service training programs are made available to all personnel
who are engaged in the education of handicapped children. To avoid
duplication, Agencies and schools must jointly determine training needs.
(b) Each plan must:
(1) Describe the process used in determining the in-service training
needs of personnel engaged in the education of handicapped children;
(2) Identify the areas in which training is needed (i.e.
individualized education programs, non-discriminatory assessment, least
restrictive environment, procedural safeguards, and surrogate parents);
(3) Specify the groups requiring training (i.e. special education
teachers, regular teachers, administrators, psychologists,
speech-language pathologists, audiologists, physical education teachers,
physical therapists, occupational therapists, medical personnel,
parents, volunteers, hearing officers, and surrogate parents);
(4) Describe the content and nature of training for each area under
paragraph (b)(2) of this section;
(5) Describe how the training will be provided in terms of:
(i) Location and scope; and
(ii) Staff training source (i.e. college and university staff, state,
school, Agency personnel, and non-Agency personnel);
(6) Specify:
(i) The funding sources to be used;
(ii) The timeframe for providing staff training; and
(iii) Procedures for effective evaluation of the extent to which
program objectives are met.
25 CFR 45.66 Qualifications of staff.
Job qualifications requirements shall be in conformance with 25 CFR
38.4 of the BIA Education Personnel Regulations.
25 CFR 45.66 Subpart F -- School Administration
25 CFR 45.70 Assurance of compliance.
In connection with each annual application for assistance under this
part, each School Supervisor must sign a written assurance that the
special education elementary and secondary program operated by the
school is currently in compliance with and will, in the future, be
operated in compliance with this part and any other applicable Federal
law.
25 CFR 45.71 Annual evaluation.
Each Agency must insure that an annual evaluation of the
effectiveness of programs in meeting the educational needs of
handicapped children is completed. The annual evaluation will be
performed in accordance with the following:
(a) The evaluation will be based on the projections made in each
agency/school funding application and must include an evaluation of the
individual education programs.
(b) Local School Boards and parents must be given the opportunity to
be involved in the evaluation.
(c) The Agency Special Education Coordinator will, through a review
and comparison of the report with monitoring findings, certify the
validity for the annual report.
(d) The Agency Special Education Coordinator will compile the reports
and submit the compilation to the Division of Exceptional Education.
(e) The Division will consolidate the evaluation data into a single
report on the BIA special education programs.
25 CFR 45.72 Comparability of facilities.
Facilities which are identifiable as being for handicapped children
and the services and activities provided therein, must meet the same
standards and level of quality as do facilities, services and activities
provided to non-handicapped children.
25 CFR 45.73 Non-discrimination.
(a) No Bureau of Indian Affairs operated and/or funded school shall
deny admission to any qualified Indian handicapped child on the basis of
handicap.
(b) Each school must provide each handicapped Indian child enrolled
therein whatever educational support services (including tutoring,
access to instructional equipment, auxiliary aids) are necessary to
permit the child to fully benefit from the program of special education
and related services.
25 CFR 45.73 Subpart G -- Responsibilities of the Division
25 CFR 45.74 The Division.
(a) The Division of Exceptional Education shall provide staff
assistance to the Director, Office of Indian Education Programs to
insure conformance with the requirements of this part. The Division
shall prepare and submit the annual program plan required by the
Education of the Handicapped Act. The Division shall be under the
supervision of a Division Chief who reports to the Director.
(b) The Director is responsible for educational programs for
handicapped children and has overall responsibility for insuring that
every handicapped Indian child enrolled in a Bureau operated or funded
school is provided a free appropriate education, and that all
requirements of this part are fully complied with by schools, Agencies,
and Areas.
25 CFR 45.75 Monitoring.
(a) The Division of Exceptional Education shall monitor and evaluate
the compliance of schools, Agencies, Areas and other affected public and
non-public agencies with the requirements of this part consistent with
written procedures. This monitoring will include:
(1) Data collection;
(2) On-site visits;
(3) Review of special education Federal fund utilization;
(4) Review of IEP implementation; and
(5) Review of the continued need for residential placements.
(b) Schools, Agencies, Areas, non-public school programs and other
affected Agencies shall keep timely, complete and accurate compliance
reports. These reports shall contain information to enable the Division
to ascertain compliance with the requirements of this part.
(c) Schools, Agencies, Areas, non-public school programs and other
affected Agencies must permit the staff of the Division of Exceptional
Education access to books, records, accounts, and other pertinent
information necessary to ascertain compliance.
(d) The Division of Exceptional Education may conduct inquiries on
behalf of an individual child or group of children, regarding failure to
comply with any provision of this part.
(e) The Division of Exceptional Education shall monitor
implementation of the procedural safeguard requirements of this part.
(f) The Division will provide a written report on the findings and
will recommend actions for compliance to the responsible Agency. The
Agency has the responsibility of providing this information to the
individual school boards and appropriate school officials.
25 CFR 45.76 Complaint procedures.
(a) The Director shall receive, review, and resolve complaints and
act on any allegations of substance on actions taken by a school or
Agency that are contrary to the requirements of this part.
(b) In carrying out the requirements of paragraph (a) of this section
the Division will assist Agencies to achieve compliance through:
(1) Technical assistance;
(2) Negotiation; and/or
(3) Third party mediation.
(c) Failure to comply with the requirements of this part (after
appropriate action as described in paragraph (b) of this section) shall
result in sanctions under existing BIA procedures including the
withholding of Pub. L. 94-142 Subpart B funds until the Agency or
school achieves compliance with the requirements of this part.
25 CFR 45.77 Use of available funds.
The Director shall insure that all funds to which schools become
entitled because of the enrollment of handicapped children, be used for
the identification, evaluation, and the provision of a free, appropriate
education to handicapped Indian children.
25 CFR 45.78 Children for whom the Division of Social Services has
accepted financial responsibility.
(a) After the effective date of this part, no handicapped Indian
child in the care of the Division of Social Services may be placed in,
or referred to any public or private residential facility until the
Director is consulted and the education component has been approved.
(b) The Director shall insure that no later than one (1) year from
the effective date of this part, every handicapped child currently the
responsibility of the Division of Social Services in a public or private
residential facility has been evaluated and provided an IEP in full
conformance with the requirements of this part. The need of the
children for continued residentially-based education services will be
carefully accessed during this process.
(c) Nothing in this part relieves an insurer or similar third party
from an otherwise valid obligation to provide or pay for services
provided to a handicapped child.
25 CFR 45.79 Cooperative agreements.
(a) The Director, or designee, is authorized to enter into
cooperative agreements with state and local education agencies for the
provision of special education and related services to handicapped
children enrolled in schools, operated and/or funded by the Bureau.
(b) The Director may not enter into any cooperative agreement for the
provision of special education and related services with state or local
education agencies which, with respect to any aspect of the cooperative
special education program, discriminates or has the effect of
discriminating, against any child on the basis of race, creed, national
origin, tribal affiliation, religion, sex, handicap or eligibility for
services provided by the Bureau.
(c) The Director is responsible for ensuring that every eligible
Indian handicapped child participating in a cooperative special
education program is provided a free, appropriate education in the least
restrictive environment consistent with the procedural safeguards
required by 45.34.
25 CFR 45.80 Bureau of Indian Affairs Advisory Committee for
Exceptional Children.
(a) The BIA Advisory Committee for Exceptional Children has been
chartered under and is subject to the provisions of the Federal Advisory
Committee Act, Pub. L. 92-463. The membership of the BIA Advisory
Committee for Exceptional Children must be composed of persons involved
in or concerned with the education of handicapped Indian children. The
membership shall include, but not be limited to:
(1) Handicapped individuals.
(2) Teachers of handicapped children.
(3) Parents of handicapped children.
(4) Agency and school officials.
(5) Special education program administrators.
(b) The advisory committee shall:
(1) Advise the Secretary of Interior, through the Assistant Secretary
-- Indian Affairs, of unmet special education needs of Indian children;
(2) Comment publicly on the annual program plan and rules or
regulations proposed for issuance by the Assistant Secretary -- Indian
Affairs regarding the education of handicapped Indian children attending
BIA operated or funded schools and the procedures for distribution of
funds under this part; and
(3) Assist the Assistant Secretary -- Indian Affairs in developing
and reporting such information and evaluation.
(c) The advisory committee shall meet as often as necessary to
conduct its business.
(d) By July 1 of each year, the advisory committee shall submit an
annual report of panel activities and suggestions to the Director and
the Assistant Secretary -- Indian Affairs. This report must be made
available to the public.
(e) Official minutes must be kept on all panel meetings and shall be
made available to the public upon request.
(f) All advisory committee meetings and agenda items must be publicly
announced prior to the meeting, and meetings must be open to the public.
(g) Interpreters and other necessary services must be provided at
committee meetings for committee members or participants.
(h) The advisory panel shall serve without compensation but will be
reimbursed for travel and expenses, in compliance with current Federal
travel regulations, as published by GSA, for attending meetings and
performing duties.
25 CFR 45.80 SUBCHAPTER F -- TRIBAL GOVERNMENT
25 CFR 45.80 PART 61 -- PREPARATION OF ROLLS OF INDIANS
Sec.
61.1 Definitions.
61.2 Purpose.
61.3 Information collection.
61.4 Qualifications for enrollment and the deadline for filing
application forms.
61.5 Notices.
61.6 Application forms.
61.7 Filing of application forms.
61.8 Verification forms.
61.9 Burden of proof.
61.10 Review of applications by tribal authorities.
61.11 Action by the Director or Superintendent.
61.12 Appeals.
61.13 Decision of the Assistant Secretary on appeals.
61.14 Preparation, certification and approval of the roll.
61.15 Special instructions.
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25 U.S.C. 1401 et seq.
, as amended; Pub. L. 100-139; Pub. L. 100-580; Pub. L. 101-42.
Source: 50 FR 46430, Nov. 8, 1985, unless otherwise noted.
25 CFR 61.1 Definitions.
As used in these regulations:
Act means any act of Congress authorizing or directing the Secretary
to prepare a roll of a specific tribe, band, or group of Indians.
Adopted person means a person whose natural parents' parental rights
have been given to others to exercise by court order.
Approved roll means a roll of Indians approved by the Secretary.
Assistant Secretary means the Assistant Secretary of the Interior for
Indian Affairs or an authorized representative acting under delegated
authority.
Basic roll means the specified allotment, annuity, census or other
roll designated in the Act or Plan as the basis upon which a new roll is
to be compiled.
Commissioner means the Commissioner of Indian Affairs or an
authorized representative acting under delegated authority.
Descendant(s) means those persons who are the issue of the ancestor
through whom enrollment rights are claimed; namely, the children,
grandchildren, etc. It does not include collateral relatives such as
brothers, sisters, nieces, nephews, cousins, etc. or adopted children,
grandchildren, etc.
Director means the Area Director of the Bureau of Indian Affairs area
office which has administrative jurisdiction over the local field office
responsible for administering the affairs of the tribe, band, or group
for which a roll is being prepared or an authorized representative
acting under delegated authority.
Enrollee(s) means persons who have met specific requirements for
enrollment and whose names appear on a particular roll of Indians.
Lineal ancestor means an ancestor, living or deceased, who is related
to a person by direct ascent; namely, the parent, grandparent, etc. It
does not include collateral relatives such as brothers, sisters, aunts,
uncles, etc., or adopted parents, grandparents, etc.
Living means born on or before and alive on the date specified.
Plan means any effective plan prepared under the provisions of the
Act of October 19, 1973, Pub. L. 93-134, 87 Stat. 466, as amended,
which authorizes and directs the Secretary to prepare a roll of a
specific tribe, band, or group of Indians.
Secretary means the Secretary of Interior or an authorized
representative acting under delegated authority.
Sponsor means any person who files an application for enrollment or
appeal on behalf of another person.
Staff Officer means the Enrollment Officer or other person authorized
to prepare the roll.
Superintendent means the official or other designated representative
of the Bureau of Indian Affairs in charge of the field office which has
immediate administrative responsibility for the affairs of the tribe,
band, or group for which a roll is being prepared.
Tribal Committee means the body of a federally recognized tribal
entity vested with final authority to act on enrollment matters.
Tribal Governing Document means the written organizational statement
governing the tribe, band, or group of Indians and/or any valid
document, enrollment ordinance, or resolution enacted thereunder.
25 CFR 61.2 Purpose.
The regulations in this part 61 are to govern the compilation of
rolls of Indians by the Secretary of the Interior pursuant to statutory
authority. The regulations are not to apply in the compilation of
tribal membership rolls where the responsibility for the preparation and
maintenance of such rolls rests with the tribes.
25 CFR 61.3 Information collection.
The Office of Management and Budget has informed the Department of
the Interior that the information collection requirements contained in
61.4 need not be reviewed by them under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
25 CFR 61.4 Qualifications for enrollment and the deadline for filing
application forms.
(a) The qualifications which must be met to establish eligibility for
enrollment and the deadline for filing application forms will be
included in this part 61 by appropriate amendments to this section;
except that, when an Act or Plan states the qualifications for
enrollment and the deadline for filing application forms and specifies
that the regulations contained in this part 61 will apply, amendment to
this section will not be required for the procedures contained in this
part 61 to govern the preparation of the roll; provided further, the
provisions contained in this part 61 that were in effect when the
regulations were amended to include paragraphs (r), (s), (w), (x), (y),
and (z) shall control the preparation of the rolls under paragraphs (r),
(s), (w), (x), (y), and (z) of this section.
(b) Pembina Band of Chippewa Indians. (1) Pursuant to Section 7(a)
of the Act of December 31, 1982, Pub. L. 97-403, 96 Stat. 2022, a roll
is to be prepared and used as the basis for the distribution of an
apportioned share of judgment funds awarded the Pembina Chippewa Indians
in dockets numbered 113, 191, 221 and 246 of the Court of Claims of all
persons who:
(i) Are of at least 1/4 degree Pembina Chippewa blood;
(ii) Are citizens of the United States;
(iii) Were living on December 31, 1982;
(iv) Are not members of the Red Lake Band of Chippewa Indians, the
Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of the
Rocky Boy's Reservation, or Minnesota Chippewa Tribe, or the Little
Shell Band of Chippewa Indians of Montana; and
(v) Are enrolled or are lineal descendants of persons enrolled:
(A) As Pembina descendants under the provisions of the Act of July
29, 1971 (85 Stat. 158), for the disposition of the 1863 Pembina Award,
or
(B) On the McCumber roll of the Turtle Mountain Indians of 1892, or
(C) On the Davis roll of the Turtle Mountain Indians of 1904; or
(D) As Chippewa on the tentative roll of the Rocky Boy Indians of May
30, 1917, or the McLaughlin census report of the Rocky Boy Indians of
July 7, 1917, or the Roe Cloud Roll of Landless Indians of Montana; or
(vi) Are able to establish Pembina ancestry on the basis of any other
rolls or records acceptable to the Secretary.
(2) Application forms for eligibility must be filed with the
Superintendent, Turtle Mountain Agency, Bureau of Indian Affairs,
Belcourt, North Dakota 58316, by March 10, 1986. Application forms
filed after that date will be rejected for failure to file on time
regardless of whether the applicant otherwise meets the qualifications
for eligibility.
(3) Each application for enrollment as a member of any of the tribes
specified in paragraph (b)(1)(iv) of this section, except the Red Lake
Band of Chippewa Indians, which may be rejected by the tribes shall be
reviewed by the Superintendent to determine whether the applicant meets
the qualifications for eligibility as a descendant of the Pembina Band
of Chippewas under paragraph (b)(1) of this section. Each rejection
notice shall contain a statement to the effect that the application is
being given such review.
(c) Cherokee Band of Shawnee Indians. (1) Pursuant to section 5 of
the Act of December 20, 1982, Pub. L. 97-372, 96 Stat. 1815, a roll is
to be prepared and used as the basis for the distribution of an
apportioned share of judgment funds awarded the Shawnee Tribe in dockets
64, 335, and 338 by the Indian Claims Commission and in docket 64-A by
the U.S. Court of Claims of all persons of Cherokee Shawnee ancestry:
(i) Who were living on December 20, 1982;
(ii) Who are lineal descendants of the Shawnee Nation as it existed
in 1854, based on the roll of the Cherokee Shawnee compiled pursuant to
the Act of March 2, 1889 (25 Stat. 994), or any other records acceptable
to the Secretary including eligibility to share in the distribution of
judgment funds awarded the Absentee Shawnee Tribe of Oklahoma on behalf
of the Shawnee Nation in Indian Claims Commission docket 334-B as a
Cherokee Shawnee descendant; and
(iii) Who are not members of the Absentee Shawnee Tribe of Oklahoma
or the Eastern Shawnee Tribe of Oklahoma.
(2) Application forms for enrollment must be filed with the Director,
Muskogee Area Office, Bureau of Indian Affairs, Federal Building,
Muskogee, Oklahoma 74401, by May 9, 1986. Application forms filed after
that date will be rejected for inclusion on the roll being prepared for
failure to file on time regardless of whether the applicant otherwise
meets the qualifications for enrollment.
(d) Miami Indians of Indiana. (1) Pursuant to section 3 of the Act
of December 21, 1982, Pub. L. 97-376, 96 Stat. 1828, a roll is to be
prepared and used as the basis for the distribution of an apportioned
share of judgment funds awarded the Miami Tribe of Oklahoma and the
Miami Indians of Indiana in dockets 124-B and 254 by the U.S. Court of
Claims of all persons of Miami Indian ancestry:
(i) Who were living on December 21, 1982;
(ii) Whose name or the name of a lineal ancestor appears on:
(A) The roll of Miami Indians of Oklahoma and Indiana prepared
pursuant to the Act of June 2, 1972 (86 Stat. 199), or
(B) The roll of Miami Indians of Indiana of June 12, 1895, or
(C) The roll of ''Miami Indians of Indiana, now living in Kansas,
Quapaw Agency, I.T., and Oklahoma Territory,'' prepared and completed
pursuant to the Act of March 2, 1895 (28 Stat. 903), or
(D) The roll of the Eel River Miami Tribe of Indians of May 27, 1889,
prepared and completed pursuant to the Act of June 29, 1888 (25 Stat.
223), or
(E) The roll of the Western Miami Tribe of Indians of June 12, 1891
(26 Stat. 1001); and
(iii) Who are not members of the Miami Tribe of Oklahoma.
(2) Application forms for enrollment must be filed with the Director,
Muskogee Area Office, Bureau of Indian Affairs, Federal Building,
Muskogee, Oklahoma 74401, by May 9, 1986. Application forms filed after
that date will be rejected for inclusion on the roll being prepared for
failure to file on time regardless of whether the applicant otherwise
meets the qualifications for enrollment.
(e) Cow Creek Band of Umpqua Tribe of Indians. (1) Pursuant to
section 5 of the Cow Creek Band of Umpqua Tribe of Indians Distribution
of Judgment Funds Act of October 26, 1987, Pub. L. 100-139, a tribal
membership roll is to be prepared comprised of all persons who are able
to establish that they are of Cow Creek or other Indian ancestry
indigenous to the United States based on any rolls or records acceptable
to the Secretary and were not members of any other Federally recognized
Indian tribe on July 30, 1987; and:
(i) Who are named on the tribal roll dated September 13, 1980, the
so-called Interrogatory No. 14 roll;
(ii) Who are descendants of individuals named on the tribal roll
dated September 13, 1980, the so-called Interrogatory No. 14 roll, and
were born on or prior to October 26, 1987; or
(iii) Who are descendants of individuals who were considered to be
members of the Cow Creek Band of Umpqua Tribe of Indians for the
purposes of the treaty entered between such Band and the United States
on September 19, 1853.
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P.O. Box 539,
Siletz, Oregon 97380 by June 1, 1990. Application forms filed after
that date will be rejected for inclusion on the tribal membership roll
for failure to file on time regardless of whether the applicant
otherwise meets the qualifications for enrollment.
(f) Cow Creek Band of Umpqua Tribe of Indians descendants. (1)
Pursuant to section 6(a)(1) of the Cow Creek Band of Umpqua Tribe of
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L.
100-139, a roll of nontribal members eligible to participate in the
Higher Education and Vocational Training Program and the Housing
Assistance Program of the Cow Creek Band of Umpqua Tribe of Indians is
to be prepared of individuals:
(i) Who are descended from persons considered members of the Cow
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered
into between such band and the United States on September 19, 1853 (10
Stat. 1027), as ratified by the Senate on April 12, 1854; and
(ii) Who did not share or are not descendants of persons who shared
in the distribution of funds under the Act entitled ''An Act to provide
for the termination of Federal supervision over the property of the
Klamath Tribe of Indians located in the State of Oregon and the
individuals members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ''An Act to
provide for the termination of Federal supervision over the property of
certain tribes and bands of Indians located in western Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 691 et seq.).
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539,
Siletz, Oregon 97380. Upon receipt of an application form, the
Superintendent shall furnish a copy to the Cow Creek Band of Umpqua
Tribe of Indians.
(g) Cow Creek Band of Umpqua Tribe of Indians descendants. (1)
Pursuant to section 6(a)(2) of the Cow Creek Band of Umpqua Tribe of
Indians Distribution of Judgment Funds Act of October 26, 1987, Pub. L.
100-139, a roll of nontribal members eligible to participate in the
Elderly Assistance Program of the Cow Creek Band of Umpqua Tribe of
Indians is to be prepared of individuals:
(i) Who are descended from persons considered members of the Cow
Creek Band of Umpqua Tribe of Indians for purposes of the treaty entered
into between such Band and the United States on September 19, 1853 (10
Stat. 1027), as ratified by the Senate on April 12, 1854;
(ii) Who did not share or are not descendants of persons who shared
in the distribution of funds under the Act entitled ''An act to provide
for the termination of Federal supervision over the property of the
Klamath Tribe of Indians located in the State of Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 564 et seq.), or under the Act entitled ''An Act to
provide for the termination of Federal supervision over the property of
certain tribes and bands of Indians located in western Oregon and the
individual members thereof, and for other purposes,'' approved August
13, 1954 (25 U.S.C. 691 et seq.); and
(iii) Who were 50 years or older as of December 31, 1985.
(2) Application forms for enrollment must be filed with the
Superintendent, Siletz Agency, Bureau of Indian Affairs, P. O. Box 539,
Siletz, Oregon 97380 by April 25, 1988, and with the Cow Creek Band of
Umpqua Tribe of Indians. Application forms filed after that date will
be rejected for failure to file on time regardless of whether the
applicant otherwise meets the qualifications for eligibility for
inclusion on the roll of persons eligible to participate in the Elderly
Assistance Program, but will be considered for inclusion on the roll of
persons eligible to participate in the Higher Education and Vocation
Training Program and the Housing Assistance Program. Upon receipt of an
application form, the Superintendent shall furnish a copy to the Cow
Creek Band of Umpqua Tribe of Indians.
(h) Indians of the Hoopa Valley Indian Reservation. Pursuant to
section 5 of the Hoopa-Yurok Settlement Act of October 31, 1988, Pub.
L. 100-580, a roll of Indians of the Reservation eligible to participate
in certain settlement provisions is to be prepared of all persons:
(1) Who were born on or prior to and living on October 31, 1988; and
(2) Who are citizens of the United States; and
(3) Who were not, on August 8, 1988, enrolled members of the Hoopa
Valley Tribe; and
(4) Who meet the criteria to qualify as an ''Indian of the
Reservation'' under one of the following standards established by the
U.S. Court of Claims in its March 31, 1982, decision, and the United
States Claims Court in its May 14, 1987, and March 1, 1988, decisions in
the cases of Short v. United States, (Cl. Ct. No. 102-63):
(i) Standards A-E which are:
(A) Allottees of land on any part of the Reservation, living on
October 1, 1949, and lineal descendants of allottees living on October
1, 1949;
(B) Persons living on October 1, 1949, and resident on the
reservation at that time, who have received Reservation benefits or
services, and hold an assignment, or can make other proof that though
eligible to receive an allotment, they have not been allotted, and the
lineal descendants of such persons, living on October 1, 1949;
(C) Persons living on June 2, 1953, who have at least 1/4 degree
Reservation blood, as defined in paragraph (h)(6)(i) of this section,
have forebears born on the Reservation and were resident on the
Reservation for 15 years prior to June 2, 1953;
(D) Persons of at least 1/4 degree Indian blood, born after October
1, 1949, and before August 9, 1963, to a parent who is or would have
been, when alive a qualified Indian of the Reservation under the
standards in paragraphs (h)(4)(i) (A), (B) and (C) of this section, or
has previously been held entitled to recover in the Short cases;
(E) Persons born on or after August 9, 1963, who are of at least 1/4
degree Indian blood, derived exclusively from the qualified parent or
parents who is or would have been, when alive, a qualified Indian of the
Reservation under the standards in paragraphs (h)(4)(i) (A), (B) and (C)
of this section, or has previously been held entitled to recover in the
Short cases; or
(ii) Manifest Injustice Standard which is: Persons who do not
qualify under the standards in paragraph (h)(4)(i) of this section, but
who it would be manifestly unjust to exclude from enrollment. To
qualify under the manifest injustice standard, persons must adequately
demonstrate all of the following:
(A) A significant degree of Indian blood (at least 1/4 degree Indian
blood, and
(B) Personal connections to the Reservation shown through a
substantial period of residence on the Reservation (nearly ten years of
residence), and
(C) Personal ties to the land of the Reservation and/or ties to the
land through a lineal ancestor; and
(5) Who file or have filed on their behalf application forms for
enrollment with the Superintendent, Northern California Agency, Bureau
of Indian Affairs, P.O. Box 494879, Redding, California 96049, by April
10, 1989. Applications filed after that date will not be considered for
inclusion on the roll regardless of whether the applicant otherwise
meets the qualifications for enrollment, except for plaintiffs
determined to be an ''Indian of the Reservation'' in the Short cases,
who will, if they otherwise meet the requirements of the Act, be
included on the roll.
(6) As used in paragraph (h) of this section:
(i) Reservation blood means the blood of the following tribes or
bands: Yurok; Hoopa/Hupa; Grouse Creek;
Hunstand/Hoonsotton/Hoonsolton; Miskut/Miscotts/Miscolts;
Redwood/Chilula; Saiaz/Nongatl/Siahs; Sermaltion; South Fork;
Tish-tang-atan; Karok; Tolowa; Sinkyone/Sinkiene; Wailake/Wylacki;
Wiyot/Humboldt; and Wintun.
(ii) Short cases means the cases entitled Jessie Short et al. v.
United States, (Cl. Ct. No. 102-63); Charlene Ackley v. United States,
(Cl. Ct. No. 460-78); Bret Aastadt v. United States, (Cl. Ct. No.
146-85L); and Norman Giffen v. United States, (Cl. Ct. No. 746-85L).
(i) (Reserved)
(j) Coquille Tribe of Indians. (1) Pursuant to section 7 of the
Coquille Restoration Act of June 28, 1989, Pub. L. 101-42, a tribal
membership roll is to be prepared comprised of persons of Coquille
Indian ancestry:
(i) Who were born on or before and living on June 28, 1989;
(ii) Who possess at least one-eighth ( 1/8) degree or more Indian
blood;
(iii) Who are not enrolled members of another federally recognized
tribe; and
(iv) Whose names were listed on the Coquille roll prepared pursuant
to the Act of August 30, 1954 (68 Stat. 979; 25 U.S.C. 771), and
approved by the Bureau of Indian Affairs on August 29, 1960;
(v) Whose names were not listed on but who met the requirements to be
listed on the Coquille roll prepared pursuant to the Act of August 30,
1954, and approved by the Bureau of Indian Affairs on August 29, 1960;
or
(vi) Who are lineal descendants of persons, living or dead,
identified in paragraphs (j)(1)(iv) and (j)(1)(v) of this section.
(2) To establish eligibility for inclusion on the tribal membership
roll, all persons must file an application form with the Superintendent,
Siletz Agency, Bureau of Indian Affairs, P.O. Box 539, Siletz, Oregon
97380 by January 10, 1991. Application forms filed after that date will
be rejected for inclusion on the roll being prepared for failure to file
on time regardless of whether the applicant otherwise meets the
qualifications for enrollment.
(3) For the purposes of establishing eligibility under paragraph (j)
of this section, any available evidence establishing Coquille ancestry
and the required degree of Indian blood shall be accepted. However,
information shown on the Coquille roll prepared pursuant to the Act of
August 30, 1954, shall be accepted as conclusive evidence of Coquille
ancestry and blood degree information shown on the January 1, 1940,
census roll of nonreservation Indians of the Grand Ronde-Siletz Agency
shall be accepted as conclusive evidence in determining degree of Indian
blood for applicants.
(4) For the purposes of establishing eligibility under paragraph (j)
of this section, persons who may be enrolled members of another
federally recognized tribe or tribes may submit a conditional
relinquishment of membership document in the other tribe or tribes with
their application forms. A conditional relinquishment of membership
document in the other tribe or tribes with their application forms. A
conditional relinquishment will be accepted by the Superintendent only
if it is executed by the person himself or herself unless the person is
legally incompetent, in which case the legal guardian and only the legal
guardian may execute the conditional relinquishment document. In the
case of minors, only the parent or legal guardian may execute a
conditional relinquishment document.
(k)-(q) (Reserved)
(r) Mdewakanton and Wahpakoota Tribe of Sioux Indians. (1) All
lineal descendants of the Mdewakanton and Wahpakoota Tribe of Sioux
Indians who were born on or prior to and were living on October 25,
1972, whose names or the name of a lineal ancestor appears on any
available records and rolls acceptable to the Secretary of the Interior
and who are not members of the Flandreau Santee Sioux Tribe of South
Dakota, the Santee Sioux Tribe of Nebraska, the Lower Sioux Indian
Community at Morton, Minn., the Prairie Island Indian Community at
Welch, Minn., or the Shakopee Mdewakanton Sioux Community of Minnesota
shall be entitled to be enrolled under title I, section 101(b) of the
act of October 25, 1972 (86 Stat. 1168), to share in the distribution of
funds derived from a judgment awarded the Mississippi Sioux Indians.
(2) Applications for enrollment must have been filed with the
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main
Street, Aberdeen, S. Dak. 57401, and must have been received no later
than November 1, 1973. Applications received after that date will be
denied for failure to file in time regardless of whether the applicant
otherwise meets the requirements for enrollment.
(3) Each application for enrollment with any of the tribes named in
paragraph (r)(1) of this section which may be rejected by the tribes
shall be reviewed by the Director to determine whether the applicant
meets the requirements for enrollment as a descendant of the Mdewakanton
and Wahpakoota Tribe of Sioux Indians under paragraph (r)(1) of this
section. Each rejection notice issued by the tribes shall contain a
statement to the effect that the application is being given such review.
(s) Sisseton and Wahpeton Mississippi Sioux Tribe. (1) All lineal
descendants of the Sisseton and Wahpeton Mississippi Sioux Tribe who
were born on or prior to and were living on October 25, 1972, whose
names or the name of a lineal ancestor appears on any available records
and rolls acceptable to the Secretary of the Interior and who are not
members of the Devils Lake Sioux Tribe of North Dakota, the Sisseton and
the Wahpeton Sioux Tribe of South Dakota, or the Assiniboine and Sioux
Tribes of the Fort Peck Reservation shall be entitled to be enrolled
under title II, section 201(b) of the act of October 25, 1972 (86 Stat.
1168), to share in the distribution of certain funds derived from a
judgment awarded the Mississippi Sioux Indians.
(2) Applications for enrollment must have been filed with the
Director, Aberdeen Area Office, Bureau of Indian Affairs, 820 South Main
Street, Aberdeen, S. Dak. 57401, and must have been received no later
than November 1, 1973. Applications received after that date will be
denied for failure to file in time regardless of whether the applicant
otherwise meets the requirements for enrollment.
(3) Each application for enrollment with any of the tribes named in
paragraph (s)(1) of this section which may be rejected by the tribes
shall be reviewed by the Director to determine whether the applicant
meets the requirements for enrollment as a descendant of the Sisseton
and Wahpeton Mississippi Sioux Tribe under paragraph (s)(1) of this
section. Each rejection notice issued by the tribe shall contain a
statement to the effect that the application is being given such review.
(t)-(v) (Reserved)
(w) Lower Skagit Tribe of Indians. (1) All persons of Lower Skagit
ancestry born on or prior to and living on February 18, 1975, who are
lineal descendants of a member of the tribe as it existed in 1859 based
on the 1919 Roblin Roll and other records acceptable to the Assistant
Secretary, shall be entitled to have their names placed on the roll, to
be prepared and used as the basis to distribute the judgment funds
awarded the Lower Skagit Tribe in Indian Claims Commission docket 294.
Proof of Upper Skagit ancestry will not be acceptable as proof of Lower
Skagit ancestry.
(2) Applications for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 88201, and must have been received by close
of business on May 31, 1977. Applications received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(x) Kikiallus Tribe of Indians. (1) All persons of Kikiallus
ancestry born on or prior to and living on February 18, 1975, who are
lineal descendants of a member of the tribe as it existed in 1859 based
on the 1919 Roblin Roll and other records acceptable to the Assistant
Secretary, shall be entitled to have their names placed on the roll, to
be prepared and used as the basis to distribute the judgment funds
awarded the Kikiallus Tribe in Indian Claims Commission docket 263.
(2) Applications for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 98021, and must have been received by close
of business on May 31, 1977. Applications received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(y) Swinomish Tribe of Indians. (1) All persons of Swinomish
ancestry born on or prior to and living on December 10, 1975, who are
lineal descendants of a member of the tribe as it existed in 1859 based
on the 1919 Roblin Roll and other records acceptable to the Assistant
Secretary, shall be entitled to have their names placed on the roll, to
be prepared and used as the basis to distribute the judgment funds
awarded the Swinomish Tribe in Indian Claims Commission docket 233.
(2) Application for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 98201, and must have been received by close
of business on May 31, 1977. Applications received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(z) Samish Tribe of Indians. (1) All persons of Samish ancestry born
on or prior to and living on December 10, 1975, who are lineal
descendants of a member of the tribe as it existed in 1859 based on any
records acceptable to the Secretary, shall be entitled to have their
names placed on the roll to be prepared and used as the basis to
distribute the judgment funds awarded the Samish Tribe in Indian Claims
Commission docket 261.
(2) Applications for enrollment must have been filed with the
Superintendent, Puget Sound Agency, Bureau of Indian Affairs, 3006 Colby
Avenue, Everett, Washington 98201, and must have been received by close
of business on May 31, 1977. Applicants received after that date will
be denied for failure to file in time regardless of whether the
applicant otherwise meets the requirements for enrollment.
(3) Payment of shares will be made in accordance with parts 87 and
115 of this chapter.
(50 FR 46430, Nov. 8, 1985, as amended at 53 FR 11272, Apr. 6, 1988;
54 FR 14193, Apr. 7, 1989; 55 FR 7494, Mar. 2, 1990; 55 FR 41519, Oct.
12, 1990; 56 FR 10806, Mar. 14, 1991)
25 CFR 61.5 Notices.
(a) The Director or Superintendent shall give notice to all Directors
of the Bureau of Indian Affairs and all Superintendents within the
jurisdiction of the Director, of the preparation of the roll for public
display in Bureau field offices. Reasonable efforts shall be made to
place notices for public display in community buildings, tribal
buildings, and Indian centers.
(b) The Director or Superintendent shall, on the basis of available
residence data, publish, and republish when advisable, notices of the
preparation of the roll in appropriate locales utilizing media suitable
to the circumstances.
(c) The Director or Superintendent shall, when applicable, mail
notices of the preparation of the roll to previous enrollees or tribal
members at the last address of record or in the case of tribal members,
the last address available.
(d) Notices shall advise of the preparation of the roll and the
relevant procedures to be followed including the qualifications for
enrollment and the deadline for filing application forms to be eligible
for enrollment. The notices shall also state how and where application
forms may be obtained as well as the name, address, and telephone number
of a person who may be contacted for further information.
25 CFR 61.6 Application forms.
(a) Application forms to be filed by or for applicants for enrollment
will be furnished by the Director, Superintendent, or other designated
persons, upon written or oral request. Each person furnishing
application forms shall keep a record of the names of individuals to
whom forms are given, as well as the control numbers of the forms and
the date furnished. Instructions for completing and filing applications
shall be furnished with each form. The form shall indicate prominently
the deadline for filing application forms.
(b) Among other information, each application form shall contain:
(1) Certification as to whether application form is for a natural
child or an adopted child of the parent through whom eligibility is
claimed.
(2) If the application form is filed by a sponsor, the name and
address of sponsor and relationship to applicant.
(3) A control number for the purpose of keeping a record of forms
furnished interested individuals.
(4) Certification that the information given on the application form
is true to the best of the knowledge and belief of the person filing the
application. Criminal penalties are provided by statute for knowingly
filing false information in such applications (18 U.S.C. 1001).
(c) Application forms may be filed by sponsors on behalf of other
persons.
(d) Every applicant or sponsor shall furnish the applicant's mailing
address on the application form. Thereafter, the applicant or sponsor
shall promptly notify the Director or Superintendent of any change in
address, giving appropriate identification of the application, otherwise
the mailing address as stated on the form shall be acceptable as the
address of record for all purposes under the regulations in this part
61.
25 CFR 61.7 Filing of application forms.
(a) Application forms filed by mail must be postmarked no later than
midnight on the deadline specified. Where there is no postmark date
showing on the envelope or the postmark date is illegible, application
forms mailed from within the United States, including Alaska and Hawaii,
received more than 15 days and application forms mailed from outside of
the United States received more than 30 days after the deadline
specified in the office of the designated Director or Superintendent,
will be denied for failure to file in time.
(b) Application forms filed by personal delivery must be received in
the office of the designated Director or Superintendent no later than
close of business on the deadline specified.
(c) If the deadline for filing application forms falls on a Saturday,
Sunday, legal holiday, or other nonbusiness day, the deadline will be
the next working day thereafter.
(d) The provisions of this section shall not apply in the preparation
of the rolls under paragraphs (r), (s), (w), (x), (y) and (z) of 61.4.
25 CFR 61.8 Verification forms.
If the Director or Superintendent is preparing a roll of Indians by
adding names of eligible persons to and deleting names of ineligible
persons from a previously approved roll, and individuals whose names
appear on the previously approved roll are not required to file
applications for enrollment, a verification form, to be completed and
returned, shall be mailed to each previous enrollee using the last
address of record. The verification form will be used to ascertain the
previous enrollee's current name and address and that the enrollee is
living, or if deceased, the enrollee's date of death. Name and/or
address changes will only be made if the verification form is signed by
an adult enrollee, if living, or the parent or guardian having legal
custody of a minor enrollee, or an authorized sponsor. The verification
form may also be used by any sponsor to notify the Director or
Superintendent of the date of death of a previous enrollee.
25 CFR 61.9 Burden of proof.
The burden of proof rests upon the applicant or tribal member to
establish eligibility for enrollment. Documentary evidence such as
birth certificates, death certificates, baptismal records, copies of
probate findings, or affidavits, may be used to support claim of
eligibility for enrollment. Records of the Bureau of Indian Affairs may
be used to establish eligibility.
25 CFR 61.10 Review of applications by tribal authorities.
(a) If tribal review is applicable, the Director or Superintendent
shall submit all applications to the Tribal Committee for review and
recommendations or determinations; except that, in the cases of adopted
persons where the Bureau of Indian Affairs has assured confidentiality
to obtain the information necessary to determine the eligibility for
enrollment of the individual or has the statutory obligation to maintain
the confidentiality of the information, the confidential information may
not be released to the Tribal Committee, but the Director or
Superintendent shall certify as to the eligibility for enrollment of the
individual to the Tribal Committee.
(b) The Tribal Committee shall review all applications and make its
recommendations or determinations in writing stating the reasons for
acceptance or rejection for enrollment.
(c) The Tribal Committee shall return the applications to the
Director or Superintendent with its recommendations or determinations
and any additional evidence used in determining eligibility for
enrollment within 30 days of receipt of the applications by the Tribal
Committee. The Director or Superintendent may grant the Tribal
Committee additional time, upon request, for its review.
(d) Acceptance of an individual for enrollment by the Tribal
Committee does not insure the individual's eligibility to share in the
distribution of the judgment funds.
25 CFR 61.11 Action by the Director or Superintendent.
(a) The Director or Superintendent shall consider each application,
all documentation, and when applicable, tribal recommendations or
determinations.
(b) The Director or Superintendent, when tribal recommendations or
determinations are applicable, shall accept the recommendations or
determinations of the Tribal Committee unless clearly erroneous.
(1) If the Director or Superintendent does not accept the tribal
recommendation or determination, the Tribal Committee shall be notified
in writing, by certified mail, return receipt requested, or by personal
delivery, of the action and the reasons therefor.
(2) The Tribal Committee may appeal the decision of the Director or
Superintendent not to accept the tribal recommendation or determination.
Such appeal must be in writing and must be filed pursuant to part 62 of
this chapter.
(3) Unless otherwise specified by law or in a tribal governing
document, the determination of the Director or Superintendent shall only
affect the individual's eligibility to share in the distribution of
judgment funds.
(c) The Director or Superintendent, upon determining an individual's
eligibility, shall notify the individual, parent or guardian having
legal custody of a minor, or sponsor, as applicable, in writing of the
decision. If an individual files applications on behalf of more than
one person, one notice of eligibility or adverse action may be addressed
to the person who filed the applications. However, the notice must list
the name of each person involved. Where an individual is represented by
a sponsor, notification of the sponsor of eligibility or adverse action
shall be considered to be notification of the individual.
(1) If the Director or Superintendent determines that the individual
is eligible, the name of the individual shall be placed on the roll.
(2) If the Director or Superintendent determines that the individual
is not eligible, he/she shall notify the individual's parent or guardian
having legal custody of a minor, or sponsor, as applicable, in writing
by certified mail, to be received by the addressee only, return receipt
requested, and shall explain fully the reasons for the adverse action
and the right to appeal to the Secretary. If correspondence is sent out
of the United States, registered mail will be used. If a certified or
registered notice is returned as ''Unclaimed'' the Director or
Superintendent shall remail the notice by regular mail together with an
acknowledgment of receipt form to be completed by the addressee and
returned to the Director or Superintendent. If the acknowledgment of
receipt is not returned, computation of the appeal period shall begin on
the date the notice was remailed. Certified or registered notices
returned for any reason other than ''Unclaimed'' need not be remailed.
(d) Except as provided in paragraph (c)(2) of this section, a notice
of adverse action is considered to have been made and computation of the
appeal period shall begin on the earliest of the following dates:
(1) Of delivery indicated on the return receipt;
(2) Of acknowledgment of receipt;
(3) Of personal delivery; or
(4) Of the return by the post office of an undelivered certified or
registered letter.
(e) In all cases where an applicant is represented by an attorney,
the attorney shall be recognized as fully controlling the application on
behalf of the applicant and service on the attorney of any document
relating to the application shall be considered to be service on the
applicant. Where an applicant is represented by more than one attorney,
service upon one of the attorneys shall be sufficient.
(f) To avoid hardship or gross injustice, the Director or
Superintendent may waive technical deficiencies in applications or other
submissions. Failure to file by the deadline does not constitute a
technical deficiency.
25 CFR 61.12 Appeals.
Appeals from or on behalf of tribal members or applicants who have
been denied enrollment must be in writing and must be filed pursuant to
part 62 of this chapter. When the appeal is on behalf of more than one
person, the name of each person must be listed in the appeal. A copy of
part 62 of this chapter shall be furnished with each notice of adverse
action.
25 CFR 61.13 Decision of the Assistant Secretary on appeals.
The decision of the Assistant Secretary on an appeal shall be final
and conclusive and written notice of the decision shall be given the
individual, parent or guardian having legal custody of a minor, or
sponsor, as applicable. The name of any person whose appeal has been
sustained will be added to the roll. Unless otherwise specified by law
or in a tribal governing document, the determination of the Assistant
Secretary shall only affect the individual's eligibility to share in the
distribution of the judgment funds.
25 CFR 61.14 Preparation, certification and approval of the roll.
(a) The staff officer shall prepare a minimum of five copies of the
roll of those persons determined to be eligible for enrollment. The
roll shall contain for each person a roll number, name, address, sex,
date of birth, date of death, when applicable, and when required by law,
degree of Indian blood, and, in the remarks column, when applicable, the
basic roll number, date of the basic roll, name and relationship of
ancestor on the basic roll through whom eligibility was established.
(b) A certificate shall be attached to the roll by the staff officer
or Superintendent certifying that to the best of his/her knowledge and
belief the roll contains only the names of those persons who were
determined to meet the qualifications for enrollment.
(c) The Director shall approve the roll.
25 CFR 61.15 Special instructions.
To facilitate the work of the Director or Superintendent, the
Assistant Secretary may issue special instructions not inconsistent with
the regulations in this part 61.
25 CFR 61.15 PART 62 -- ENROLLMENT APPEALS
Sec.
62.1 Definitions.
62.2 Purpose.
62.3 Information collection.
62.4 Who may appeal.
62.5 An appeal.
62.6 Filing of an appeal.
62.7 Burden of proof.
62.8 Advising the tribal committee.
62.9 Action by the Superintendent.
62.10 Action by the Director.
62.11 Action by the Assistant Secretary.
62.12 Special instructions
Authority: 5 U.S.C. 301, 25 U.S.C. 2 and 9.
Source: 52 FR 30160, Aug. 13, 1987, unless otherwise noted.
25 CFR 62.1 Definitions.
As used in these regulations:
Assistant Secretary means the Assistant Secretary of the Interior for
Indian Affairs or an authorized representative acting under delegated
authority.
Bureau means the Bureau of Indian Affairs of the Department of the
Interior.
Commissioner means the Commissioner of Indian Affairs or an
authorized representative acting under delegated authority.
Department means the Department of the Interior.
Director means the Area Director of the Bureau of Indian Affairs area
office which has administrative jurisdiction over the local field office
responsible for administering the affairs of a tribe, band, or group of
Indians or an authorized representative acting under delegated
authority.
Secretary means the Secretary of the Interior or an authorized
representative acting under delegate authority.
Sponsor means any authorized person, including an attorney, who files
an appeal on behalf of another person.
Superintendent means the official or other designated representative
of the Bureau of Indian Affairs in charge of the field office which has
immediate administrative responsibility with respect to the affairs of a
tribe, band, or group of Indians or an authorized representative acting
under delegated authority.
Tribal Committee means the body of a federally recognized tribal
entity vested with final authority to act on enrollment matters.
Tribal governing document means the written organizational statement
governing a tribe, band or group of Indians and/or any valid document,
enrollment ordinance or resolution enacted thereunder.
Tribal member means a person who meets the requirements for
enrollment in a tribal entity and has been duly enrolled.
25 CFR 62.2 Purpose.
(a) The regulations in this part are to provide procedures for the
filing and processing of appeals from adverse enrollment actions by
Bureau officials.
(b) The regulations in this part are not applicable and do not
provide procedures for the filing of appeals from adverse enrollment
actions by tribal committees, unless:
(1) The adverse enrollment action is incident to the preparation of a
tribal roll subject to Secretarial approval; or
(2) An appeal to the Secretary is provided for in the tribal
governing document.
25 CFR 62.3 Information collection.
In accordance with the Office of Management and Budget regulations
contained in 5 CFR 1320.3, approval of the information collection
requirements contained in this part is not required.
25 CFR 62.4 Who may appeal.
(a) A person who is the subject of an adverse enrollment action may
file or have filed on his/her behalf an appeal. An adverse enrollment
action is:
(1) The rejection of an application for enrollment by a Bureau
official incident to the preparation of a roll for Secretarial approval;
(2) The removal of a name from a tribal roll by a Bureau official
incident to review of the roll for Secretarial approval;
(3) The rejection of an application for enrollment or the
disenrollment of a tribal member by a tribal committee when the tribal
governing document provides for an appeal of the action to the
Secretary;
(4) The change in degree of Indian blood by a tribal committee which
affects a tribal member when the tribal governing document provides for
an appeal of the action to the Secretary;
(5) The change in degree of Indian blood by a Bureau official which
affects an individual; and
(6) The certification of degree of Indian blood by a Bureau official
which affects an individual.
(b) A tribal committee may file an appeal as provided for in 61.11
of this chapter.
(c) A sponsor may file an appeal on behalf of another person who is
subject to an adverse enrollment action.
25 CFR 62.5 An appeal.
(a) An appeal must be in writing and must be filed with the Bureau
official designated in the notification of an adverse enrollment action,
or in the absence of a designated official, with the Bureau official who
issued the notification of an adverse enrollment action; or when the
notification of an adverse action is made by a tribal committee with the
Superintendent.
(b) An appeal may be on behalf of more than one person. However, the
name of each appellant must be listed in the appeal.
(c) An appeal filed by mail or filed by personal delivery must be
received in the office of the designated Bureau official or of the
Bureau official who issued the notification of an adverse enrollment
action by close of business within 30 days of the notification of an
adverse enrollment action, except when the appeal is mailed from outside
the United States, in which case the appeal must be received by the
close of business within 60 days of the notification of an adverse
enrollment action.
(d) The appellant or sponsor shall furnish the appellant's mailing
address in the appeal. Thereafter, the appellant or sponsor shall
promptly notify the Bureau official with whom the appeal was filed of
any change of address, otherwise the address furnished in the appeal
shall be the address of record.
(e) An appellant or sponsor may request additional time to submit
supporting evidence. A period considered reasonable for such
submissions may be granted by the Bureau official with whom the appeal
is filed. However, no additional time will be granted for the filing of
the appeal.
(f) In all cases where an appellant is represented by a sponsor, the
sponsor shall be recognized as fully controlling the appeal on behalf of
the appellant. Service of any document relating to the appeal shall be
on the sponsor and shall be considered to be service on the appellant.
Where an appellant is represented by more than one sponsor, service upon
one of the sponsors shall be sufficient.
25 CFR 62.6 Filing of an appeal.
(a) Except as provided in paragraph (b) of this section, a
notification of an adverse enrollment action will be mailed to the
address of record or the last available address and will be considered
to have been made and computation of the appeal period shall begin on:
(1) The date of delivery indicated on the return receipt when notice
of the adverse enrollment action has been sent by certified mail, return
receipt requested; or
(2) Ten (10) days after the date of the decision letter to the
individual when notice of the adverse enrollment action has not been
sent by certified mail return receipt requested and the letter has not
been returned by the post office; or
(3) The date the letter is returned by the post office as undelivered
whether the notice of the adverse enrollment action has been sent by
certified mail return receipt requested or by regular mail.
(b) When notification of an adverse enrollment action is under the
regulations contained in part 61 of this chapter, computation of the
appeal period shall be in accordance with 61.11.
(c) In computing the 30 or 60 day appeal period, the count begins
with the day following the notification of an adverse enrollment action
and continues for 30 or 60 calendar days. If the 30th or 60th day falls
on a Saturday, Sunday, legal holiday, or other nonbusiness day, the
appeal period will end on the first working day thereafter.
25 CFR 62.7 Burden of proof.
(a) The burden of proof is on the appellant or sponsor. The appeal
should include any supporting evidence not previously furnished and may
include a copy or reference to any Bureau or tribal records having a
direct bearing on the action.
(b) Criminal penalties are provided by statute for knowingly filing
false or fraudulent information to an agency of the U.S. government (18
U.S.C. 1001).
25 CFR 62.8 Advising the tribal committee.
Whenever applicable, the Superintendent or Director shall notify the
tribal committee of the receipt of the appeal and shall give the tribal
committee the opportunity to examine the appeal and to present such
evidence as it may consider pertinent to the action being appealed. The
tribal committee shall have not to exceed 30 days from receipt of
notification of the appeal in which to present in writing such
statements as if may deem pertinent, supported by any tribal records
which have a bearing on the case. The Director or Superintendent may
grant the tribal committee additional time, upon request, for its
review.
25 CFR 62.9 Action by the Superintendent.
When an appeal is from an adverse enrollment action taken by a
Superintendent or tribal committee, the Superintendent shall acknowledge
in writing receipt of the appeal and shall forward the appeal to the
Director together with any relevant information or records; the
recommendations of the tribal committee, when applicable; and his/her
recommendations on the appeal.
25 CFR 62.10 Action by the Director.
(a) Except as provided in paragraph (c) of this section, when an
appeal is from an adverse enrollment action taken by a Superintendent or
tribal committee, the Director will consider the record as presented
together with such additional information as may be considered
pertinent. Any additional information relied upon shall be specifically
identified in the decision. The Director shall make a decision on the
appeal which shall be final for the Department and which shall so state
in the decision. The appellant or sponsor will be notified in writing
of the decision. Provided that, the Director may waive his/her
authority to make a final decision and forward the appeal to the
Assistant Secretary for final action.
(b) When an appeal is from an adverse enrollment action taken by a
Director, the Director shall acknowledge in writing receipt of the
appeal and shall forward the appeal to the Assistant Secretary for final
action together with any relevant information or records; the
recommendations of the tribal committee, when applicable; and his/her
recommendations.
(c) The Director shall forward the appeal to the Assistant Secretary
for final action together with any relevant information or records; the
recommendations of the tribal committee, when applicable; and his/her
recommendations when the adverse enrollment action which is being
appealed is either:
(1) The change in degree of Indian blood by a tribal committee which
affects a tribal member and the tribal governing document provides for
an appeal of the action to the Secretary; or
(2) The change in degree of Indian blood by a Bureau official which
affects an individual.
25 CFR 62.11 Action by the Assistant Secretary.
The Assistant Secretary will consider the record as presented,
together with such additional information as may be considered
pertinent. Any additional information relied upon shall be specifically
identified in the decision. The Assistant Secretary shall make a
decision on the appeal which shall be final for the Department and which
shall so state in the decision. The appellant or sponsor will be
notified in writing of the decision.
25 CFR 62.12 Special instructions.
To facilitate the work of the Director, the Assistant Secretary may
issue special instructions not inconsistent with the regulations in this
part 62.
25 CFR 62.12 PART 65 -- PREPARATION OF A MEMBERSHIP ROLL OF DELAWARE
INDIANS OF WESTERN OKLAHOMA
Sec.
65.1 Definitions.
65.2 Purpose.
65.3 Qualifications for enrollment and the deadline for filing.
65.4 Notices and application forms.
65.5 Filing of applications.
65.6 Burden of proof.
65.7 Action by the Tribe.
65.8 Action by the Superintendent.
65.9 Appeals.
65.10 Decision of the Secretary on appeals.
65.11 Preparation of roll.
65.12 Certification and approval of the roll.
65.13 Special instructions.
Authority: 5 U.S.C. 301; R.S. secs. 463 and 465; 25 U.S.C. 2 and
9, and sec. 10, Pub. L. 96-318, 94 Stat. 968, 971.
Source: 45 FR 82919, Dec. 17, 1980, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 65.1 Definitions.
As used in these regulations:
(a) 1980 Act means the Act of Congress approved August 1, 1980 (94
Stat. 968), Pub. L. 96-318, which authorizes and directs the Secretary
to prepare rolls of persons who meet the requirements specified in the
Act and to distribute certain judgment funds to such persons.
(b) Secretary means the Secretary of the Interior or his/her
authorized representative.
(c) Assistant Secretary means the Assistant Secretary of the Interior
for Indian Affairs or his/her authorized representative.
(d) Director means the Area Director, Anadarko Area Office, Bureau of
Indian Affairs or his/her authorized representative.
(e) Superintendent means the Superintendent, Anadarko Agency, Bureau
of Indian Affairs or his/her authorized representative.
(f) Staff Officer means the Enrollment Officer or other person
authorized to prepare the roll.
(g) Tribe means the Delaware Tribe of Western Oklahoma.
(h) Tribal Executive Committee means the governing body of the
Delaware Tribe of Western Oklahoma.
(i) Tribal Membership Committee means the tribal committee
responsible for preparing and maintaining the tribal membership roll.
(j) Tribal Membership Roll means the list of names of persons who the
tribe recognizes as members.
(k) Tribal Member means a person who has been enrolled by the tribe
and whose name appears on the tribal membership roll.
(l) Living means born or prior to and living on the date specified.
(m) Lineal descendants means those persons who are the issue of the
ancestor through whom enrollment rights are claimed, namely the
children, grandchildren, etc. It does not include collateral relatives
such as brothers, sisters, nieces, nephews, cousins, etc.
(n) Constitution and Bylaws means the written organizational
framework for the governing of the tribe.
(o) Sponsor means parent, recognized guardian, next friend, next of
kin, spouse, executor or administrator of estate, the Superintendent, or
other person who files an application for enrollment or appeal on behalf
of another person. Where an adult or guardian having custody of a minor
authorizes a sponsor to act on behalf of an individual, that sponsor
assumes the burden of proof of eligibility and will be recognized as
fully representative of the applicant in all matters arising under this
part. Service on the sponsor of any document relating to the
application or appeal shall be considered to be service on the
individual.
(p) 1968 enrollee means an individual whose name appeared on the roll
of persons eligible to share in the distribution of certain judgment
funds prepared pursuant to the Act of Congress approved September 21,
1968 (82 Stat. 861), Pub. L. 90-508, who established eligibility on the
basis that his/her name or the name of a lineal ancestor was on or was
eligible to be on the constructed base census roll as of 1940 of the
Absentee Delaware Tribe of Western Oklahoma, approved by the Secretary.
(q) 1972 enrollee means an individual whose name appeared on the roll
of persons eligible to share in the distribution of certain judgment
funds prepared pursuant to the Act of Congress approved October 3, 1972
(86 Stat. 762), Pub. L. 92-456, who established eligibility on the
basis that his/her name or the name of a lineal ancestor was on or was
eligible to be on the constructed base census roll as of 1940 of the
Absentee Delaware Tribe of Western Oklahoma, approved by the Secretary.
25 CFR 65.2 Purpose.
The regulations in this part are to govern the compilation of a
membership roll of persons who meet the requirements specified in
section 4 of the 1980 Act to serve as the basis for distributing
judgment funds awarded the Delaware Tribe of Indiana and the Absentee
Delaware Tribe of Western Oklahoma in Indian Claims Commission dockets
27-A and 241, 289, and 27-B and 338, 27-E and 202, and 27.
25 CFR 65.3 Qualifications for enrollment and the deadline for filing.
(a) The membership roll shall contain the names of persons living on
August 1, 1980, who are citizens of the United States; and whose names
appear on the tribal membership roll of the Delaware Tribe of Western
Oklahoma, i.e., they meet the following requirements:
(1) The criteria specified in Article III of the constitution and
bylaws of the Delaware Tribe of Western Oklahoma which states, in part:
Section 1. The membership of the Delaware Tribe of Western Oklahoma
shall consist of the following persons; provided they have not received
land or money by virtue of having been enrolled as a member of another
Indian tribe:
(a) Those persons who prior to the ratification of this amendment
(December 24, 1975) qualified for membership under previous membership
requirements.
(b) All persons of Delaware Indian blood who received an allotment of
land pursuant to the provisions of the Act of March 2, 1895 (28 Stat.
876), shall be included as full blood members of the tribe.
(c) All living lineal descendants of individuals eligible for
membership under the provisions of Section 1(b) and Section 2 of the
Article, who possess at least one-eighth ( 1/8) degree Delaware Indian
blood and one of whose natural parents is a member of the Delaware Tribe
of Western Oklahoma.
(d) All persons born on or after the effective date of the
Constitution and Bylaws, (December 24, 1975) both of whose natural
parents are members of the Delaware Tribe of Western Oklahoma regardless
of Delaware Indian blood.
Section 2. All persons identified in Section 1(b) of this Article
shall be considered as possessing 4/4ths degree Delaware Indian blood
for the purpose of computing eligibility of their descendants for
membership under Section 1(c) or 1(d) of this Article. Brothers and
sisters of Delaware Indian blood of all persons identified in Section
1(b) shall likewise be considered as possessing 4/4ths degree Delaware
Indian blood.
(2) They are adopted into membership by the tribe pursuant to any
ordinance or resolution adopted by the tribe in accordance with Article
III, Section 5 of the constitution and bylaws, and approved by the
Secretary or his/her authorized representative.
(b) They file an application with the Superintendent, Anadarko
Agency, Anadarko, Oklahoma 73005. Applications must be received by the
Superintendent no later than close of business on March 17, 1981.
Applications received after that date will be denied for inclusion on
the roll being prepared for failure to file on time regardless of
whether the applicant otherwise meets the requirements for enrollment.
However, persons denied for late-filed applications may be considered
for enrollment as members of the tribe for future purposes. If the
filing deadline falls on a Saturday, Sunday, legal holiday or other
nonbusiness day, the deadline will be the next working day thereafter.
Except that current tribal members shall not be required to file
applications in accordance with this paragraph.
25 CFR 65.4 Notices and application forms.
(a) The Director shall mail to each 1968 enrollee and/or 1972
enrollee at the last address of record a notice advising them of the
preparation of rolls of Delaware Indians pursuant to the 1980 Act, the
requirements for enrollment, and the need to file or have filed on their
behalf a completed application form before the deadline specified in
65.3 in order to be eligible to share in the distribution of judgment
funds. The notice shall also state how and where application forms may
be obtained.
(b) Application forms to be filed by applicants for enrollment will
be furnished by the Superintendent, or other designated persons, upon
written or oral request. Each person furnishing application forms shall
keep a record of the names of individuals to whom applications are
given, as well as the control numbers of the forms and the date
furnished. Instructions for completing and filing applications shall be
furnished with each form. The form shall indicate prominently the
deadline for filing applications.
(c) Among other information, each application shall contain:
(1) Certification as to whether the application is for a natural
child or an adopted child of the parent through whom eligibility is
claimed.
(2) If the application is filed by a sponsor, the name and address of
sponsor and relationship to applicant.
(3) A control number for the purpose of keeping a record of
applications furnished interested individuals.
25 CFR 65.5 Filing of applications.
(a) Any person not already a tribal member who desires to be enrolled
and who believes he/she meets the requirements for enrollment specified
in the 1980 Act and the regulations in this part, including any person
who has previously been denied enrollment by the Tribal Membership
Committee, must file or have filed for them a completed application form
with the Superintendent or other designated person on or before the
deadline specified in 65.
(b) Written application forms for minors, mentally incompetent
persons or other persons in need of assistance, for members of the Armed
Services or other services of the U.S. Government and/or members of
their families stationed in Alaska, Hawaii, or elsewhere outside the
continental United States, or for a person who died after June 12, 1979,
may be filed by the sponsor on or before the deadline.
(c) Every applicant or sponsor shall furnish the applicant's mailing
address on the application. Thereafter, he/she shall promptly notify
the Superintendent of any change in address, giving appropriate
identification of the application, otherwise the address as stated shall
be acceptable as the proper address.
(d) Criminal penalties are provided by statute for knowingly filing
false information in such applications (18 U.S.C. 1001).
25 CFR 65.6 Burden of proof.
The burden of proof of eligibility for enrollment rests upon the
person filing the application. Documentary evidence such as birth
certificates, death certificates, baptismal records, copies of probate
findings or affidavits must be used to support claims for enrollment.
Records of the Bureau of Indian Affairs may also be used to establish
eligibility.
25 CFR 65.7 Action by the Tribe.
(a) Applications received by the Superintendent shall be submitted to
the Tribal Membership Committee for review. The Tribal Membership
Committee shall, by resolution, make their decision. The decision shall
state the reason(s) for approval or rejection of the applicant for
tribal membership.
(b) The Tribal Enrollment Committee shall prepare a tribal membership
roll brought current as of August 1, 1980, and submit it to the
Superintendent for review.
25 CFR 65.8 Action by the Superintendent.
(a) The Superintendent shall review the tribal membership roll and
determine that only the names of persons who meet the requirements
specified in 65.3 appear on the membership roll. If the Superintendent
determines that the inclusion or omission of a name is clearly
erroneous, he/she shall remove or add the name of the person. The
Superintendent shall notify the Tribal Enrollment Committee of any such
actions and the reasons therefor. The determination by the
Superintendent shall only affect the individual's eligibility to share
in the distribution of the judgment funds.
(b) Upon determining an individual's eligibility, the Superintendent
shall notify the tribal member, parent or guardian having legal custody
of a minor tribal member, applicant, or sponsor, as applicable, in
writing of the decision. If the Superintendent decides the tribal
member or applicant is not eligible, he/she shall notify the individual
or sponsor, as applicable, in writing by certified mail, to be received
by the addressee only, return receipt requested, and shall explain fully
the reasons for the adverse action and of the right to appeal to the
Secretary. If correspondence is sent out of the United States, it may
be necessary to use registered mail. If an individual has filed
applications on behalf of more than one person, one notice of
eligibility or adverse action may be addressed to the applicant or
sponsor who filed the applications. However, said notice must list the
name of each applicant involved. If a certified or registered notice is
returned as ''Unclaimed'' the Superintendent shall remail the notice by
regular mail together with an acknowledgement of receipt form to be
completed by the addressee and returned to the Superintendent. If the
acknowledgement of receipt is not returned, computation of the appeal
period shall begin on the date the notice was remailed. Certified or
registered notices returned for any reason other than ''Unclaimed'' need
not be remailed.
(c) A notice of eligibility or adverse action is considered to have
been made on the date:
(1) Of delivery indicated on the return receipt;
(2) Of acknowledgement of receipt;
(3) Of personal delivery; or
(4) Of the return by the post office of an undelivered certified or
registered letter.
(d) In all cases where an applicant is represented by an attorney,
such attorney will be recognized as fully controlling the same on behalf
of his/her client; and service of any document relating to the
application shall be considered to be service on the applicant he/she
represents. Where an applicant is represented by more than one
attorney, service upon one of the attorneys shall be sufficient.
(e) To avoid hardship or gross injustice, the Superintendent may
waive technical deficiencies in applications or other submissions.
Failure to file by the deadline does not constitute a technical
deficiency.
25 CFR 65.9 Appeals.
Appeals from tribal members or applicants who have been denied
enrollment must be in writing and must be filed pursuant to part 62 of
this subchapter, a copy of which shall be furnished with each notice of
adverse action.
25 CFR 65.10 Decision of the Secretary on appeals.
The decision of the Secretary on an appeal shall be final and
conclusive, and written notice of the decision shall be given to the
tribal member, applicant, or sponsor. When so directed by the
Secretary, the Assistant Secretary shall cause to be entered on the roll
the name of any person whose appeal has been sustained. The
determination by the Secretary shall only affect the individual's
eligibility to share in the distribution of judgment funds.
25 CFR 65.11 Preparation of roll.
The staff officer shall prepare a minimum of 5 copies of the roll of
those persons determined to be eligible for enrollment. The names of
the persons whose appeals are sustained will be added to the roll when
they establish eligibility. In addition to other information which may
be shown, the complete roll shall contain for each person an
identification number, name, address, sex, date of birth, date of death
(if applicable), degree of tribal blood, and the authority for
enrollment.
25 CFR 65.12 Certification and approval of the roll.
A certificate shall be attached to the roll by the Superintendent
certifying that to the best of his/her knowledge and belief the roll
contains only the names of those persons who were determined to meet the
requirements for enrollment. The Director shall approve the roll.
25 CFR 65.13 Special instructions.
To facilitate the work of the Superintendent, the Assistant Secretary
may issue special instructions not inconsistent with the regulations in
this part.
25 CFR 65.13 PART 66 -- PREPARATION OF ROLLS OF DELAWARE INDIANS
Sec.
66.1 Definitions.
66.2 Purpose.
66.3 Qualifications for enrollment and the deadline for filing.
66.4 Application and information forms.
66.5 Filing of applications.
66.6 Burden of proof.
66.7 Action by the Director.
66.8 Appeals.
66.9 Decision of the Secretary on appeals.
66.10 Preparation of the rolls.
66.11 Certification and approval of the rolls.
66.12 Special instructions.
Authority: 5 U.S.C. 301; R.S. secs. 463 and 465; 25 U.S.C. 2 and
9, and sec. 10 of Pub. L. 96-318, 94 Stat. 968, 971.
Source: 45 FR 82923, Dec. 17, 1980, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 66.1 Definitions.
As used in these regulations:
(a) 1980 Act means the Act of Congress approved August 1, 1980 (94
Stat. 968), Pub. L. 96-318, which authorizes and directs the Secretary
to prepare rolls of persons who meet the requirements specified in the
Act and to distribute certain judgment funds to such persons.
(b) 1972 Act means the Act of Congress approved October 3, 1972 (86
Stat. 762), Pub. L. 92-456, which authorized the disposition of certain
judgment funds awarded the Delaware Tribe of Indians and the Absentee
Delaware Tribe of Western Oklahoma.
(c) 1972 enrollee means an individual whose name appeared on the roll
of persons eligible to share in the distribution of certain judgment
funds pursuant to the 1972 Act except those persons who established
eligibility on the basis that their name or the name of a lineal
ancestor was on or was eligible to be on the constructed base census
roll as of 1940 of the Absentee Delaware Tribe of Western Oklahoma,
approved by the Secretary.
(d) 1968 Act means the Act of Congress approved September 21, 1968
(82 Stat. 861), Pub. L. 90-508, which authorized the disposition of
funds awarded the Delaware Nation of Indians in Indian Claims Commission
Docket 337.
(e) 1968 enrollee means an individual whose name appeared on the roll
of persons eligible to share in the distribution of certain judgment
funds pursuant to the 1968 Act except those persons who established
eligibility on the basis that their name or the name of a lineal
ancestor was on or was eligible to be on the contructed base census roll
as of 1940 of the Absentee Delaware Tribe of Western Oklahoma, approved
by the Secretary.
(f) Secretary means the Secretary of the Interior or his/her
authorized representative.
(g) Assistant Secretary means the Assistant Secretary of the Interior
for Indian Affairs or his/her authorized representative.
(h) Director means the Area Director, Muskogee Area Office, Bureau of
Indian Affairs, or his/her authorized representative.
(i) Staff Officer means the Enrollment Officer or other person
authorized to prepare the roll.
(j) Living means born on or prior to and living on the date
specified.
(k) Lineal ancestor means an ancestor, living or deceased, who is
related to the applicant by direct ascent; namely, parent, grandparent,
etc. It does not include collateral relatives such as brothers,
sisters, aunts, uncles, etc.
(l) Sponsor means parent, recognized guardian, next friend, next of
kin, spouse, executor or administrator of estate, the Superintendent, or
other person who files an application for enrollment or appeal on behalf
of another person. Where an adult or guardian having legal custody of a
minor authorizes a sponsor to act on behalf of an individual, that
sponsor assumes the burden of proof of eligibility and will be
recognized as fully representative of the applicant in all matters
arising under this part. Service on the sponsor of any document
relating to the application or appeal shall be considered to be service
on the individual.
(m) Kansas Delaware Tribe of Indians, Incorporated means the
corporation which represents that group of persons who establish
eligibility through a lineal ancestor named on the ''Registry'' filed in
the Office of the Commissioner of Indian Affairs pursuant to Article 9
of the Treaty with the Delaware Indians of July 4, 1866 (14 Stat. 793).
Nothing in these regulations shall be construed as recognizing the
Kansas Delaware Tribe of Indians, Incorporated, as a federally
recognized Indian tribe.
(n) Delawares of Idaho, Incorporated means the corporation which
represents that group of persons who establish eligibility through a
lineal ancestor name on the ''Register'' prepared pursuant to the
agreement dated April 8, 1867, between the Delaware Tribe of Indians and
the Cherokee Nation. Nothing in these regulations shall be construed as
recognizing the Delawares of Idaho, Incorporated, as a federally
recognized Indian Tribe.
25 CFR 66.2 Purpose.
The regulations in this part are to govern the compilation of a roll
of persons who meet the requirements specified in section 2 of the 1980
Act and the compilation of a roll of persons who meet the requirements
specified in section 5 of the 1980 Act to serve as the basis for
distributing judgment funds awarded the Delaware Tribe of Indians and
the Absentee Delaware Tribe of Western Oklahoma in Indian Claims
Commission dockets 27-A and 241, 289, and 27-B and 338, 27-E and 202,
and 27.
25 CFR 66.3 Qualifications for enrollment and the deadline for filing.
(a) The roll prepared pursuant to section 2 of the 1980 Act shall
contain the names of persons who meet the following requirements:
(1) They were living on August 1, 1980, and on October 3, 1972;
(2) They are citizens of the United States;
(3) The name of a lineal ancestor appears on the ''Registry'' filed
in the Office of the Commissioner of Indian Affairs pursuant to Article
9 of the Treaty with the Delaware Indians of July 4, 1866 (14 Stat. 793)
or the ''Register'' prepared pursuant to the agreement dated April 8,
1867, between the Delaware Tribe of Indians and the Cherokee Nation;
(4) They were not 1972 enrollees or were not eligible to be 1972
enrollees; and
(5) Their name does not appear on the membership roll of the Delaware
Tribe of Western Oklahoma prepared pursuant to section 4 of the 1980
Act.
(b) The roll prepared pursuant to section 5 of the 1980 Act shall
contain the names of persons who meet the following requirements:
(1) They were living on August 1, 1980;
(2) They are citizens of the United States;
(3) Their name or the name of a lineal ancestor appears on any of the
following rolls or records:
(i) The ''Registry,'' filed in the Office of the Commissioner of
Indian Affairs pursuant to Article 9 of the Treaty with the Delaware
Indians of July 4, 1866 (14 Stat. 793);
(ii) The Delaware (Cherokee Delaware) Indian per capita payroll
approved by the Secretary of the Interior on April 20, 1906; or
(iii) The ''Register'' prepared pursuant to the agreement of April 8,
1867, between the Delaware Tribe of Indians and the Cherokee Nation.
(4) Their name does not appear on the membership roll of the Delaware
Tribe of Western Oklahoma prepared pursuant to section 4 of the 1980
Act.
(c) Applications must be filed with the Area Director, Bureau of
Indian Affairs, Federal Building, Muskogee, Oklahoma 74401, and must be
received in his/her office no later than the close of business on March
17, 1981. Applications received after that date will be rejected for
failure to file on time, regardless of whether the applicant otherwise
meets the requirements for enrollment. If the filing deadline falls on
a Saturday, Sunday, legal holiday or other nonbusiness day, the deadline
will be the next working day thereafter. Except that, 1968 enrollees
and/or 1972 enrollees shall not be required to file applications in
accordance with this paragraph. Only those 1968 enrollees and/or 1972
enrollees, however, who meet the requirements set out in this section
shall be eligible for enrollment under the 1980 Act.
25 CFR 66.4 Application and information forms.
(a) The 1968 enrollees and/or 1972 enrollees shall be requested to
complete an information form advising the Director of any changes in
name and/or address and may be requested to furnish additional
information or documentation. The Director shall mail an information
form to each person whose name appeared on the rolls prepared pursuant
to the 1968 Act and/or the 1972 Act using the last address of record.
Changes to the enrollees' records will be made only if the information
form is signed by an adult 1968 and/or 1972 enrollee, if living, or the
parent or guardian having legal custody of a minor 1968 and/or 1972
enrollee or person specifically authorized by the enrollee, or parent or
legal guardian, to act on his/her behalf. The information form may also
be used to notify the Director of the date of death of a deceased 1968
and/or 1972 enrollee.
(b) Applications to be filed by applicants for enrollment will be
furnished by the Director, or other designated persons upon written or
oral request. Each person furnishing application forms shall keep a
record of the names of individuals to whom applications are given, as
well as the control numbers of the forms and the date furnished.
Instructions for completing and filing applications shall be furnished
with each form. The form shall indicate prominently the deadline for
filing applications.
(c) Among other information, each application shall contain:
(1) Certification as to whether the application is for a natural
child or an adopted child of the parent through whom eligibility is
claimed.
(2) If the application is filed by a sponsor, the name and address of
the sponsor and relationship to applicant.
(3) A control number for the purpose of keeping a record of
applications furnished interested individuals.
25 CFR 66.5 Filing of applications.
(a) Any person, except a 1968 enrollee and/or 1972 enrollee, who
desires to be enrolled and believes he/she meets the requirements for
enrollment specified in the 1980 Act and the regulations in this part
must file or have filed for him/her a completed application form with
the Director or other designated person or before the deadline specified
in 66.3.
(b) Written application forms for minors, mentally incompetent
persons or other persons in need of assistance, for members of the Armed
Services or other services of the U.S. Government and/or members or
their families stationed in Alaska, Hawaii, or elsewhere outside the
continental United States, or for a person who died after August 1,
1980, may be filed by the sponsor on or before the deadline.
(c) Every applicant or sponsor shall furnish the applicant's mailing
address on the application. Thereafter, he/she shall promptly notify
the Director of any change in address, giving appropriate identification
of the application, otherwise the address as stated shall be acceptable
as the proper address.
(d) Criminal penalties are provided by statute for knowingly filing
false information in such applications. (18 U.S.C. 1001).
25 CFR 66.6 Burden of proof.
The burden of proof of eligibility for enrollment rests upon the
person filing application. Documentary evidence such as birth
certificates, baptismal records, death certificates, copies of probate
findings or affidavits must be used to support claims for enrollment.
25 CFR 66.7 Action by the Director.
(a) The Director shall consider each application and the record for
each 1968 enrollee and/or 1972 enrollee. Upon determining an
applicant's or 1968 and/or 1972 enrollee's eligibility under paragraph
(a) of 66.3 and under paragraph (b) of 66.3, the Director shall notify
the person or sponsor, as applicable, in writing of his/her decision.
If the decision is favorable, the name of the person shall be placed on
the roll. If the Director decides the person is not eligible, he/she
shall notify the person or sponsor, as applicable, in writing by
certified mail, to be received by the addressee only, return receipt
requested, and shall explain fully the reasons for rejection and of the
right to appeal to the Secretary. (If correspondence is sent out of the
United States, it may be necessary to use registered mail.) If an
individual files applications on behalf of more than one person, one
notice of eligibility or rejection may be addressed to the individual
who filed the applications. However, said notice must list the name of
each person involved. If a certified or registered notice is returned
as ''Unclaimed'' the Director shall remail the notice by regular mail
together with an acknowledgement of receipt form to be completed by the
addressee and returned to the Director. If the acknowledgement of
receipt is not returned, computation of the appeal period shall begin on
the date the notice was remailed. Certified or registered notices
returned for any reason other than ''Unclaimed'' need not be remailed.
(b) A notice of eligibility or rejection is considered to have been
made on the date:
(1) Of delivery indicated on the return receipt;
(2) Of acknowledgement of receipt;
(3) Of personal delivery, or;
(4) Of the return by the post office of an undelivered certified or
registered letter.
(c) In all cases where an applicant is represented by an attorney,
such attorney will be recognized as fully controlling the same on behalf
of his/her client; and service of any document relating to the
application shall be considered to be service on the applicant he/she
represents. Where an applicant is represented by more than one
attorney, service upon one of the attorneys shall be sufficient.
(d) The Director shall consider those persons who claim or establish
eligibility through a lineal ancestor named on the ''Registry'' filed in
the Office of the Commissioner of Indian Affairs pursuant to article 9
of the treaty with the Delaware Indians of July 4, 1866 (14 Stat. 793),
as being affiliated with the Kansas Delaware Tribe of Indians,
Incorporated, and those persons who claim or establish eligibility
through a lineal ancestor named on the ''Register'' prepared pursuant to
the agreement dated April 8, 1867, between the Delaware Tribe of Indians
and the Cherokee Nation, as being affiliated with the Delawares of
Idaho, Incorporated. Except that, persons who were 1972 enrollees or
were eligible to be enrolled under the 1972 Act even though they are
also lineal descendants of a person named on one of the above records
shall be considered affiliated with the Cherokee Delawares for the
purposes of the 1980 Act. The Director shall consider those persons who
claim or establish eligibility because their name or the name of a
lineal ancestor appears on the Delaware (Cherokee Delaware) Indian per
capita payroll approved by the Secretary of the Interior on April 20,
1906, as being affiliated with the Cherokee Delawares.
(e) To avoid hardship or gross injustice, the Director may waive
technical deficiencies in applications or other submissions. Failure to
file by the deadline does not constitute a technical deficiency.
25 CFR 66.8 Appeals.
Appeals from rejected persons must be in writing and must be filed
pursuant to part 62 of this subchapter, a copy of which shall be
furnished with each notice of rejection.
25 CFR 66.9 Decision of the Secretary on appeals.
The decision of the Secretary on an appeal shall be final and
conclusive, and written notice of the decision shall be given to the
person or sponsor. When so directed by the Secretary, the Assistant
Secretary shall cause to be entered on the roll the name of any person
whose appeal has been sustained.
25 CFR 66.10 Preparation of the rolls.
The staff officer shall prepare a minimum of 5 copies of the roll of
persons determined to be eligible for enrollment under paragraph (a) of
66.3 and a roll of persons determined eligible for enrollment under
paragraph (b) of 66.3, after the Director has made a determination as
to the eligibility of each applicant and 1968 enrollee and/or 1972
enrollee. The names of persons whose appeals are sustained will be
added to the roll when they establish eligibility. In addition to other
information which may be shown, the complete roll shall contain for each
person an identification number, name, address, sex, date of birth and
in the remarks column, when applicable, the section of the 1980 Act
under which they qualify and whether they are affiliated with the Kansas
Delaware Tribe of Indians, Incorporated, or the Delawares of Idaho,
Incorporated.
25 CFR 66.11 Certification and approval of the rolls.
A certificate shall be attached to the rolls by the staff officer
certifying that to the best of his/her knowledge and belief the rolls
contain only the names of those persons who were determined to meet the
requirements for enrollment. The Director shall approve the rolls.
25 CFR 66.12 Special instructions.
To facilitate the work of the Director, the Assistant Secretary may
issue special instructions not inconsistent with the regulations in this
part.
25 CFR 66.12 PART 75 -- REVISION OF THE MEMBERSHIP ROLL OF THE EASTERN
BAND OF CHEROKEE INDIANS, NORTH CAROLINA
Sec.
75.1 Definitions.
75.2 Purpose.
75.3 Announcement of revision of roll.
75.4 Basic membership roll.
75.5 Removal of deceased persons from the roll.
75.6 Additions to the roll.
75.7 Applications for enrollment.
75.8 Applications for minors and incompetents.
75.9 Application form.
75.10 Where application forms may be obtained.
75.11 Proof of relationship.
75.12 Enrollment Committee.
75.13 Tenure of Enrollment Committee.
75.14 Appeals.
75.15 Current membership roll.
75.16 Eligibility for enrollment of persons born after August 21,
1957.
75.17 Relinquishment of membership.
75.18 Adoption.
75.19 Distribution of judgment funds.
Authority: Sec. 2, 71 Stat. 374.
Source: 24 FR 201, Jan. 8, 1959, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 75.1 Definitions.
As used in this part:
(a) Band means the Eastern Band of Cherokee Indians in North
Carolina.
(b) Reservation means the lands of the Eastern Band of Cherokee
Indians in the counties of Jackson, Swain, Graham, Cherokee and Haywood
in North Carolina.
(c) Tribal Council means the Tribal Council of the Eastern Band of
Cherokee Indians in North Carolina.
(d) Announcement means the announcement of the revision of the
membership roll issued as required in 75.3.
(e) Tribal Enrollment Office means the Tribal Enrollment Clerk
working in concert with the Enrollment Committee.
(f) Tribal Enrollment Clerk means the individual working in the
Tribal Enrollment Office.
(g) Enrollment Committee means the three individuals appointed by the
Tribal Council in accordance with 75.12.
(24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960;
38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 75.2 Purpose.
The regulations in this part are to govern the revision, as
authorized by the Act approved August 21, 1957 (71 Stat. 374), of the
membership roll of the Eastern Band of Cherokee Indians, North Carolina,
prepared and approved in accordance with the Act of June 4, 1924 (43
Stat. 376), and the Act of March 4, 1931 (46 Stat. 1518).
25 CFR 75.3 Announcement of revision of roll.
When the Tribal Council has authorized the expenditure of tribal
funds to supply sufficient staff to perform the work necessary to revise
the membership roll of the Band and such staff has been employed and
when the application forms and other necessary documents have been
devised and printed, the Principal Chief, or in his absence the Vice
Chief or the Chairman of the Tribal Council shall announce that a
revision of the membership roll of the Band shall commence on a
specified date. The date specified shall be not less than 15 days nor
more than 30 days from the date of issuance of the announcement. A
press release should be prepared announcing the date the revision of the
roll shall begin, together with other pertinent information such as the
membership requirements and where application forms may be obtained.
The press release should be distributed to all newspapers and radio
stations within the region of the Reservation with a request that it be
given wide publicity. Copies of the press release should also be posted
in the Agency Office and at various other public places throughout the
Reservation as well as in Post Offices of the towns adjacent to the
Reservation.
25 CFR 75.4 Basic membership roll.
All persons whose names appear on the roll of the Eastern Band of
Cherokee Indians of North Carolina, prepared and approved pursuant to
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46
Stat. 1518), shall be members of the Band.
25 CFR 75.5 Removal of deceased persons from the roll.
The name of any person who was not alive as of midnight August 21,
1957, shall be stricken from the basic membership roll by the Tribal
Enrollment Office upon receipt of a death certificate or other evidence
of death acceptable to the Tribal Enrollment Office.
(38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.6 Additions to the roll.
There shall be added to the roll of the Band the names of persons
living on August 21, 1957, who meet the following qualifications:
(a) Persons born during the period, beginning on or after June 4,
1924, and ending midnight August 21, 1957, who are direct descendants of
persons whose names appear on the roll prepared and approved pursuant to
the act of June 4, 1924 (43 Stat. 376), and the act of March 4, 1931 (46
Stat. 1518); provided, such persons:
(1) Who applied for membership before August 14, 1963 possess at
least 1/32 degree of Eastern Cherokee Indian blood, and those persons
who apply for membership on or after August 14, 1963, possess at least
1/16 degree Eastern Cherokee Indian blood, except that persons who also
possess Indian blood of another tribe shall not be enrolled if they are
enrolled as members of the other tribe.
(2) Have themselves or have parents who have maintained and dwelt in
a home at sometime during the period from June 4, 1924, through August
21, 1957, on the lands of the Eastern Band of Cherokee Indians in the
counties of Swain, Jackson, Graham, Cherokee and Haywood in North
Carolina, except that this specific part of this section shall not apply
to those persons and members of their families who were temporarily away
from the Reservation due to one or both parents being in the U.S. Armed
Services or who were employed by the U.S. Government and neither shall
it apply to those individuals who were in mental or penal institutions
during this period of time.
(3) Have filed an application for enrollment with the Band in
accordance with the procedures set forth in this part.
(b) A child born out of wedlock to a mother who is either an enrolled
member of the Band, or who meets the qualifications for enrollment as a
member, may be enrolled if such child otherwise meets the requirements
for enrollment as set forth in this section.
(c) A child born out of wedlock to a mother who is not a member of
the Band may be enrolled if the mother files with the Enrollment
Committee proof established in accordance with the laws of North
Carolina as to the paternity of the child and the person adjudged to be
the father is either an enrolled member of the Band, or meets the
requirements for enrollment as a member, and if the child otherwise meet
the requirements for enrollment as set forth in this section.
(24 FR 201, Jan. 8, 1959, as amended at 25 FR 2516, Mar. 25, 1960;
28 FR 8314, Aug. 14, 1963. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 75.7 Applications for enrollment.
Each adult person who believes he meets the requirements for
enrollment established herein may submit to the Tribal Enrollment Office
an application for enrollment as a member of the Eastern Band of
Cherokee Indians.
(38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.8 Applications for minors and incompetents.
Applications for enrollment of minors may be filed by the parent,
next of kin, recognized guardian, or other person responsible for their
care. Applications for enrollment of persons known to be in mental or
penal institutions may be filed by the Principal Chief of the Eastern
Band of Cherokee.
(38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.9 Application form.
The form of application for enrollment will be prepared by the Tribal
Enrollment Office and, in addition to whatever information the
Enrollment Committee may deem necessary, shall contain the following:
(a) The name and address of the applicant. If the application is
filed on behalf of a minor, the name and address of the person filing
the application and his relationship to the minor.
(b) The name, relationship, tribe and roll number of the ancestor or
ancestors through whom enrollment rights are claimed, and whether
applicant is enrolled with another tribe.
(c) The date of death of such ancestor, if deceased.
(38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.10 Where application forms may be obtained.
Application forms will be supplied by the Tribal Enrollment Office of
the Eastern Band of Cherokee Indians, Council House, Cherokee, N.C.
28719, upon request, either in person or by mail.
(38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.11 Proof of relationship.
If the applicant's parents or other Eastern Cherokee ancestors
through whom the applicant claims enrollment rights are unknown to the
Tribal Enrollment Office, the Tribal Enrollment Office may request the
applicant to furnish such additional information and evidence as it may
deem necessary to determine the applicant's eligibility for enrollment.
Failure of the applicant to furnish the information requested may be
deemed sufficient cause for rejection.
(38 FR 9998, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.12 Enrollment Committee.
The Tribal Council shall appoint either from within or without the
membership of the Council, but not from without the membership of the
Band, a committee of three (3) persons to serve as the Enrollment
Committee. The Enrollment Committee shall review all applications for
enrollment filed in accordance with the existing regulations, and shall
determine the qualifications of the applicant for enrollment with the
Band. The Enrollment Committee may perform such other functions
relating to the enrollment and membership in the Band as the Tribal
Council may from time to time direct.
(38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.13 Tenure of Enrollment Committee.
The members of the Enrollment Committee shall be appointed to serve a
term of office of 2 years by each newly elected Tribal Council.
(38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.14 Appeals.
Any person whose application for enrollment has been rejected by the
Enrollment Committee shall have the right to appeal to the Tribal
Council from the determination made by the Enrollment Committee:
Provided, That such appeal shall be made in writing and shall be filed
in the office of the Principal Chief for presentation to the Tribal
Council within sixty (60) days from the date on which the Enrollment
Committee issues notice to the applicant of his rejection. The
applicant may submit with his appeal any additional data to support his
claim to enrollment not previously furnished. The decision of the
Tribal Council as to whether the applicant meets the requirements for
enrollment set forth in this part shall be final. The Tribal Council
shall review no applications for enrollment except in those cases where
the rejected applicant appeals to the Council in writing from the
determination made by the Enrollment Committee.
(38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.15 Current membership roll.
The membership roll of the Eastern Band of Cherokee Indians shall be
kept current by striking therefrom the names of persons who have
relinquished their membership in the Band as provided in 75.17 and of
deceased persons upon receipt of a death certificate or other evidence
of death acceptable to the Tribal Enrollment Office, and by adding
thereto the names of individuals who meet the qualifications and are
accepted for membership in the Band as set forth in this part.
(38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.16 Eligibility for enrollment of persons born after August
21, 1957.
(a) Persons possessing one-sixteenth or more degree Eastern Cherokee
Indian blood and born after August 21, 1957, may be enrolled in either
of the following manners:
(1) An application to have the person enrolled must be filed by or on
behalf of the person by the parent or recognized guardian or person
responsible for his care, which application shall be accompanied by the
applicant's birth certificate or by other evidence of eligibility of the
applicant for enrollment that the Tribal Enrollment Office may require.
(2) In the absence of such application within 6 months after a
person's birth, the Tribal Enrollment Office shall be authorized and
encouraged to obtain evidence relating to the eligibility of the person
for enrollment in the Eastern Band, and present an application in his
behalf to the Enrollment Committee which may proceed to enroll the
person if the evidence submitted meets the criteria.
(b) A person adopted in accordance with applicable laws by either
tribal members or nonmembers, shall be considered for enrollment as a
tribal member if the person otherwise meets the requirements for
enrollment.
(c) A person born to an enrolled member of the Band and an enrolled
member of another Tribe, and said person is enrolled in the other Tribe,
may be transferred from the rolls of the other and added to the rolls of
the Eastern Band if he meets the general requirements for enrollment
and, in addition:
(1) A death certificate or other acceptable evidence of the death of
the parent enrolled in the other Tribe is received and the surviving
parent who is a member of the Eastern Band makes application for
enrollment by way of transfer.
(2) Upon receipt of divorce documents in the Tribal Enrollment
Office, there is evidence of custody of the minors being awarded to the
parent who is a member of the Band and the parent awarded custody makes
application for enrollment of the minors with the Eastern Band by way of
transfer.
(d) In order for a child to be enrolled under paragraph (b) or (c) of
this section, either:
(1) An application to have the child enrolled must be filed on behalf
of the child by the parent or recognized guardian or person responsible
for his care, which application shall be accompanied by the child's
birth certificate or by other evidence as to the eligibility of the
child for enrollment as the Enrollment Committee may require, which
application must be filed within one year from the date of birth of such
child, or
(2) In the absence of such application, the Tribal Enrollment
Committee may on its own motion, proceed to enroll any eligible child
upon receipt by it of such evidence as shall satisfy the Committee as to
the eligibility of the child to be enrolled, within one year from date
of birth of such child.
(28 FR 8315, Aug. 14, 1963, as amended at 29 FR 9326, July 8, 1964;
38 FR 9999, Apr. 23, 1973. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 75.17 Relinquishment of membership.
Any member of the Eastern Band of Cherokee Indians may relinquish his
membership in the Band by filing notice in writing that he no longer
desires to be enrolled as a member of the Band. On receipt of such
notice the name of the members shall be stricken from the roll and he
shall no longer be considered as a member of the Band and shall not be
entitled to share in any use or in any distribution of tribal assets
which may be made in the future to the enrolled members of the Band.
25 CFR 75.18 Adoption.
The Tribal Council of the Eastern Band of Cherokee Indians shall be
empowered to enact ordinances governing the adoption of new members.
(39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.19 Distribution of judgment funds.
The membership roll of the Eastern Band of Cherokee Indians of North
Carolina will be brought up to date as of October 10, 1974, to serve as
the basis for distributing certain judgment funds awarded to the Band in
Indian Claims Commission dockets 282-A through L.
(a) Filing of and action on applications shall be in accordance with
regulations in this part 75, except as otherwise provided in paragraphs
(b) through (g) of this section.
(b) In lieu of notice provisions contained in 75.3, the Commissioner
of Indian Affairs or his authorized representative shall provide notice
of the bringing up to date of the membership roll through publication of
these amended regulations in the Federal Register and through
appropriate press releases and other public notices.
(c) Application forms may be obtained from the Tribal Enrollment
Office of the Eastern Band of Cherokee Indians, Council House, Cherokee,
North Carolina 28719. Completed applications must be received by the
Tribal Enrollment Office no later than midnight January 8, 1975.
(d) Requests for applications for enrollment in the Band received
after midnight of the deadline date will not be furnished until after
the funds have been distributed.
(e) In lieu of the procedures given in 75.14, appeals from rejected
applicants must be in writing and filed pursuant to part 62 of this
subchapter, a copy of which shall be furnished with each notice of
rejection.
(f) The Tribal Council and the Superintendent shall attach separate
statements to the roll certifying that to the best of their knowledge
and belief, the roll contains only the names of those persons who were
determined to meet the requirements for enrollment. The roll shall then
be submitted through the Area Director to the Commissioner for approval.
(g) To facilitate the work of the Tribal Enrollment Committee the
Commissioner may issue special instructions not inconsistent with the
regulations in this part 75.
(39 FR 43391, Dec. 13, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 75.19 PART 76 -- ENROLLMENT OF INDIANS OF THE SAN PASQUAL BAND
OF MISSION INDIANS IN CALIFORNIA
Sec.
76.1 Definitions.
76.2 Purpose.
76.3 Information collection.
76.4 Additions to and deletions from the membership roll and the
deadline for filing application forms.
76.5 Notices.
76.6 Application forms.
76.7 Filing of application forms.
76.8 Verification forms.
76.9 Burden of proof.
76.10 Enrollment Committee election.
76.11 Review of applications by the Enrollment Committee.
76.12 Action by the Superintendent.
76.13 Appeals.
76.14 Decision of the Assistant Secretary of appeals.
76.15 Preparation, certification and approval of the roll.
76.16 Special instructions.
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; and 25 U.S.C. 1401 et
seq. , as amended.
Source: 52 FR 31392, Aug. 20, 1987, unless otherwise noted.
25 CFR 76.1 Definitions.
As used in these regulations:
Adopted person means a person whose biological parents' parental
rights have been given to others to exercise by court order.
Assistant Secretary means the Assistant Secretary of the Interior for
Indian Affairs or an authorized representative acting under delegated
authority.
Band means the San Pasqual Band of Mission Indians in California.
Census Roll means the June 30, 1910, Census Roll of the San Pasqual
Band of Mission Indians.
Commissioner means the Commissioner of Indian Affairs or an
authorized representative acting under delegated authority.
Descendant(s) means those persons who are the issue of the ancestor
through whom enrollment rights are claimed; namely, the children,
grandchildren, etc. It does not include collateral relatives such as
brothers, sisters, nephews, nieces, cousins, etc., or adopted children,
grandchildren, etc.
Director means the Area Director, Sacramento Area Office, Bureau of
Indian Affairs or an authorized representative acting under delegated
authority.
Enrollment Committee means a committee of three (3) members whose
names appear on the membership roll of the San Pasqual Band of Mission
Indians prepared as of January 1, 1959, to assist in enrollment.
General Council means the governing body of the San Pasqual Band of
Mission Indians which consists of all members of the Band 18 years of
age or older.
Living means born on or before and alive on the date specified.
Member(s) means persons who names appear on the membership roll of
the San Pasqual Band of Mission Indians prepared as of January 1, 1959.
Membership roll means the membership roll of the San Pasqual Band of
Mission Indians prepared as of Janaury 1, 1959, and approved October 5,
1966.
Plan means the plan for the use and distribution of judgment funds
awarded the San Pasqual Band of Mission Indians by the U.S. Court of
Claims in Docket 80-A, prepared pursuant to the Act of October 19, 1973,
25 U.S.C. 1401 et seq. , as amended, and effective April 27, 1985.
Secretary means the Secretary of the Interior or an authorized
representative acting under delegated authority.
Sponsor means any person who files an application for enrollment or
appeal on behalf of another person.
Staff officer means the Enrollment Officer of other personal
authorized to prepare the roll.
Superintendent means the Superintendent, Southern California Agency,
Bureau of Indian Affairs, or an authorized representative acting under
delegated authority.
25 CFR 76.2 Purpose.
The regulations in this part 76 are to provide procedures to bring
current the membership roll of the San Pasqual Band of Mission Indians
to serve as the basis for the distribution of judgment funds awarded the
Band by the U.S. Court of Claims in Docket 80-A.
25 CFR 76.3 Information collection.
The Office of Management and Budget has informed the Department of
the Interior that the information collection requirements contained in
this part need not be reviewed by them under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.).
25 CFR 76.4 Additions to and deletions from the membership roll and the
deadline for filing application forms.
(a) The membership roll of the Band shall be brought current to April
27, 1985, by:
(1) Adding the names of persons living on April 27, 1985, who are not
enrolled with some other tribe or band; and
(i) Who would have qualified for the inclusion of their names on the
January 1, 1959, membership roll of the Band had they filed applications
within the time prescribed, or
(ii) Who were born after January 1, 1959, and
(A) Are descendants of Indians whose names appear as members of the
Band on the Census Roll, provided such descendants possess one-eighth (
1/8) or more degree of Indian blood of the Band, or
(B) Are Indians who can furnish sufficient proof to establish that
they are 1/8 or more degree of Indian blood of the Band; and
(iii) Who file or have filed on their behalf application forms with
the Superintendent, Southern California Agency, Bureau of Indian
Affairs, 3600 Lime Street, Suite 722, Riverside, California 92501, by
November 18, 1987. Application forms filed after that date will be
rejected for failure to file on time regardless of whether the applicant
otherwise meets the qualifications for membership. Except that members
whose names appear on the membership roll shall not be required to file
applications in accordance with this paragraph.
(2) Deleting the names of members who have relinquished in writing
their membership in the Band or who have died since January 1, 1959, but
prior to April 27, 1985, for whom certified documentation has been
submitted.
(b) Members whose names appear on the membership roll whose
enrollment was based on information subsequently determined to be
inaccurate may be deleted from the roll subject to the approval of the
Assistant Secretary.
25 CFR 76.5 Notices.
(a) The Director shall give notice to all Directors of the Bureau of
Indian Affairs and all Superintendents within the jurisdiction of the
Director, of the preparation of the roll for public display in Bureau
field offices. Reasonable efforts shall be made to place notices for
public display in community buildings, tribal buildings, and Indian
centers.
(b) The Superintendent shall, on the basis of available residence
data, publish and republish when advisable, notices of the preparation
of the roll in appropriate locales utilizing media suitable to the
circumstances.
(c) The Superintendent shall mail notices of the preparation of the
roll to enrollees at the last address available.
(d) Notices shall advise of the preparation of the roll and the
relevant procedures to be followed including the qualifications for
enrollment and the deadline for filing application forms to be eligible
for enrollment. The notices shall also state how and where application
forms may be obtained as well as the name, address, and telephone number
of a person who may be contacted for further information.
25 CFR 76.6 Application forms.
(a) Application forms to be filed by or for applicants for enrollment
will be furnished by the Director, Superintendent, or other designated
persons, upon written or oral request. Each person furnishing
application forms shall keep a record of the names of individuals to
whom forms are given, as well as the control numbers of the forms and
the date furnished. Instructions for completing and filing applications
shall be furnished with each form. The form shall indicate prominently
the deadline for filing application forms.
(b) Among other information, each application form shall contain:
(1) Certification as to whether application form is for a biological
child or adopted child of the parent through whom eligibility is
claimed.
(2) If the application form is filed by a sponsor, the name and
address of sponsor and relationship to applicant.
(3) A control number for the purpose of keeping a record of forms
furnished interested individuals.
(4) Certification that the information given on the application form
is true to the best of the knowledge and belief of the person filing the
application form. Criminal penalties are provided by statute for
knowingly filing false information in such applications (18 U.S.C.
1001).
(c) Application forms may be filed by sponsors on behalf of other
persons.
(d) Every applicant or sponsor shall furnish the applicant's mailing
address on the application form. Thereafter, the applicant or sponsor
shall promptly notify the Superintendent of any change in address,
giving appropriate identification of the application, otherwise the
mailing address as stated on the form shall be acceptable as the address
of record for all purposes under the regulations in this part 76.
25 CFR 76.7 Filing of application forms.
(a) Application forms filed by mail must be postmarked no later than
midnight on the deadline specified. Where there is no postmark date
showing on the envelope or the postmark date is illegible, application
forms mailed from within the United States, including Alaska and Hawaii,
received more than 15 days and application forms mailed from outside of
the United States received more than 30 days after the deadline
specified in the office of the Superintendent, will be denied for
failure to file in time.
(b) Application forms filed by personal delivery must be received in
the office of the Superintendent no later than close of business on the
deadline specified.
(c) If the deadline for filing application forms falls on a Saturday,
Sunday, legal holiday, or other nonbusiness day, the deadline will be
the next working day thereafter.
25 CFR 76.8 Verification forms.
The Superintendent shall mail a verification form to each member at
the last available address to be completed and returned. The
verification form will be used to ascertain the member's current name
and address and that the member is still living, or if deceased, the
member's date of death. Name and/or address changes will only be made
if the verification form is signed by an adult member, if living, or the
parent or guardian having legal custody of a minor member, or an
authorized sponsor. The verification form may be used by any sponsor to
notify the Superintendent of the date of death of a member.
25 CFR 76.9 Burden of proof.
The burden of proof rests upon the applicant to establish eligibility
for enrollment. Documentary evidence such as birth certificates, death
certificates, baptismal records, copies of probate findings, or
affidavits, may be used to support claims of eligibility for enrollment.
Records of the Bureau of Indian Affairs may be used to establish
eligibility. Except that where the Enrollment Committee recommends the
deletion of the name of a member from the membership roll, the burden of
proof is on the Enrollment Committee.
25 CFR 76.10 Enrollment Committee election.
(a) At a regular or special meeting at which there is a quorum, the
General Council shall elect three (3) persons whose names appear on the
membership roll to serve as members of the Enrollment Committee and two
(2) persons to act as alternates to the Committee. The three (3)
persons receiving the highest number of votes shall constitute the
Enrollment Committee of the Band and the persons receiving the fourth
and fifth highest number of votes shall serve as alternate members of
the Enrollment Committee. The person receiving the highest number of
votes shall serve as chairman of the Enrollment Committee.
(b) The Band may elect the Enrollment Committee prior to September
21, 1987. The term of office for the members of the Enrollment
Committee shall be two (2) years from September 21, 1987. The
Enrollment Committee, so elected, shall replace any Enrollment Committee
previously elected under the regulations contained in this part 76.
25 CFR 76.11 Review of applications by the Enrollment Committee.
(a) The Superintendent shall submit all applications to the
Enrollment Committee for review and recommendations; except that, in
the cases of adopted persons where the Bureau of Indian Affairs has
assured confidentiality to obtain the information necessary to determine
the eligibility for enrollment of the individual or has the statutory
obligation to maintain the confidentiality of the information, the
confidential information may not be released to the Enrollment
Committee, but the Superintendent shall certify as to the eligibility
for enrollment of the applicant to the Enrollment Committee.
(b) The Enrollment Committee shall review all applications and make
its recommendations in writing stating the reasons for acceptance or
rejection for enrollment.
(c) The Enrollment Committee shall return the applications to the
Superintendent with its recommendations and any additional evidence used
in determining eligibility for enrollment within 30 days of receipt of
the applications by the Enrollment Committee. The Superintendent may
grant the Enrollment Committee additional time, upon request, for its
review.
(d) The Enrollment Committee shall also submit the names of members
it recommends be deleted from the membership roll to the Superintendent
stating in writing the reasons for such deletions.
25 CFR 76.12 Action by the Superintendent.
(a) The Superintendent shall accept the recommendations of the
Enrollment Committee unless clearly erroneous.
(1) If the Superintendent does not accept the tribal recommendation,
the Enrollment Committee shall be notified in writing, by certified
mail, return receipt requested, or by personal delivery, of the action
and the reasons therefor.
(2) The Enrollment Committee may appeal the decision of the
Superintendent not to accept the tribal recommendation. Such appeal
must be in writing and must be filed pursuant to part 62 of this
chapter.
(b) The Superintendent, upon determining an individual's eligibility,
shall notify the individual, parent or guardian having legal custody of
a minor, or sponsor, as applicable, in writing of the decision. If an
individual files applications on behalf of more than one person, one
notice of eligibility or adverse action may be addressed to the person
who filed the applications. However, the notice must list the name of
each person involved. Where an individual is represented by a sponsor,
notification of the sponsor of eligibility or adverse action shall be
considered to be notification of the individual.
(1) If the Superintendent determines that the individual is eligible,
the name of the individual shall be placed on the roll.
(2) If the Superintendent determines that the individual is not
eligible, he/she shall notify the individual, parent or guardian having
legal custody of a minor, or sponsor, as applicable, in writing by
certified mail, to be received by the addressee only, return receipt
requested, and shall explain fully the reasons for the adverse action
and the right to appeal to the Secretary. If correspondence is sent out
of the United States, registered mail will be used. If a certified or
registered notice is returned as ''Unclaimed,'' the Superintendent shall
remail the notice by regular mail together with an acknowledgment of
receipt form to be completed by the addressee and returned to the
Superintendent. If the acknowledgment of receipt is not returned,
computation of the appeal period shall begin on the date the notice was
remailed. Certified or registered notices returned for any reason other
than ''Unclaimed'' need not be remailed.
(c) Except as provided in paragraph (b)(2) of this section, a notice
of adverse action is considered to have been made and computation of the
appeal period shall begin on the earliest of the following dates:
(1) Of delivery indicated on the return receipt;
(2) Of acknowledgment of receipt;
(3) Of personal delivery; or
(4) Of the return by the post office of an undelivered certified or
registered letter.
(d) In all cases where an applicant is represented by an attorney,
the attorney shall be recognized as fully controlling the application on
behalf of the applicant and service on the attorney of a document
relating to the application shall be considered to be service on the
applicant. Where an applicant is represented by more than one attorney,
service upon one of the attorneys shall be sufficient.
(e) To avoid hardship or gross injustice, the Superintendent may
waive technical deficiencies in applications or other submissions.
Failure to file by the deadline does not constitute a technical
deficiency.
25 CFR 76.13 Appeals.
Appeals from or on behalf of applicants who have been denied
enrollment must be in writing and must be filed pursuant to part 62 of
this chapter. When the appeal is on behalf of more than one person, the
name of each person must be listed in the appeal. A copy of part 62 of
this chapter shall be furnished with each notice of adverse action.
25 CFR 76.14 Decision of the Assistant Secretary on appeals.
The decision of the Assistant Secretary on an appeal shall be final
and conclusive and written notice of the decision shall be given the
individual, parent or guardian having legal custody of the minor, or
sponsor, as applicable. The name of any person whose appeal has been
sustained will be added to the roll.
25 CFR 76.15 Preparation, certification and approval of the roll.
(a) The staff officer shall prepare a minimum of five (5) copies of
the roll of those persons determined to be eligible for enrollment. The
roll shall contain for each person a roll number, name, address, sex,
date of birth, date of death, when applicable, degree of Indian blood
and in the remarks column, name and relationship of ancestor on the
census roll through whom eligibility was established.
(b) A certificate shall be attached to the roll by the Superintendent
certifying that to the best of his/her knowledge and belief the roll
contains only the names of those persons who were determined to meet the
qualifications for enrollment.
(c) The Director shall approve the roll.
25 CFR 76.16 Special instructions.
To facilitate the work of the Superintendent, the Assistant Secretary
may issue special instructions not inconsistent with the regulations in
this part 76.
25 CFR 76.16 PART 81 -- TRIBAL REORGANIZATION UNDER A FEDERAL STATUTE
Sec.
81.1 Definitions.
81.2 Purpose and scope.
81.3 Group eligibility.
81.4 Assistance from the Department of the Interior.
81.5 Request to call election.
81.6 Entitlement to vote.
81.7 Adoption, ratification, or revocation by majority vote.
81.8 Election board.
81.9 Voting districts.
81.10 District Election Boards.
81.11 Registration.
81.12 Voting list.
81.13 Eligibility disputes.
81.14 Election notices.
81.15 Opening and closing of polls.
81.16 Interpreters.
81.17 Electioneering.
81.18 Manner of voting.
81.19 Absentee voting.
81.20 Ballots.
81.21 Counting of ballots.
81.22 Contesting of election results.
81.23 Posting and certifying election results.
81.24 Approval, disapproval, or rejection action.
Authority: 25 U.S.C. 473a, 476, 477, and 503.
Source: 46 FR 1670, Jan. 7, 1981, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 81.1 Definitions.
As used in this part:
(a) Adult Indian means any Indian as defined in paragraph (i) of this
section who has attained the age of 18 years.
(b) Amendment means any modification, change, or total revision of a
constitution or charter.
(c) Authorizing Officer means the Bureau of Indian Affairs official
having authority to authorize the calling of a Secretarial election.
(d) Cast ballot means an official ballot that is cast in the proper
manner at the proper time by a duly registered voter. A ballot is cast
by duly placing it in the ballot box or, in the case of absentee voting,
when the ballot is duly received through the mail by the election board.
(e) Charter means the charter of incorporation the Secretary may
issue to a reorganized tribe pursuant to Federal Statute.
(f) Commissioner means the Commissioner of Indian Affairs or his/her
authorized representative.
(g) Constitution or Constitution and Bylaws means the written
organizational framework of any tribe reorganized pursuant to a Federal
Statute for the exercise of governmental powers.
(h) Federal Statute means one of the following: (1) The Act of June
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act); (2)
the Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act);
or (3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native
Reorganization Act).
(i) Indian means: (1) All persons who are members of those tribes
listed or eligible to be listed in the Federal Register pursuant to 25
CFR 83.6(b) as recognized by and receiving services from the Bureau of
Indian Affairs; provided, that the tribes have not voted to exclude
themselves from the Act of June 18, 1934, 43 Stat. 984, as amended;
and (2) any person not a member of one of the listed or eligible to be
listed tribes who possesses at least one-half degree of Indian blood.
(j) Invalid ballot means an official cast ballot discovered at the
time the votes are counted which does not comply with the requirements
for voting or is not an official ballot. An invalid ballot is not to be
counted for determining the number of cast ballots.
(k) Member means any Indian who is duly enrolled in a tribe who meets
a tribe's written criteria for membership or who is recognized as
belonging to a tribe by the local Indians comprising the tribe.
(l) Mutilated ballot means an official ballot that has been damaged
to the extent that it is not possible to determine the choice the voter
intended to make. There are two kinds of mutilated official ballots:
(1) A ballot that is mutilated and not cast. In this case, the
mutilated ballot may be exchanged for a new one. If the need arises to
exchange a mutilated absentee ballot, no additional time will be
provided for the new ballot to be received by the election board.
(2) A ballot that is mutilated and cast. A mutilated cast ballot is
to be counted in the same manner as a spoiled cast ballot.
(m) Officer in Charge means the Superintendent, Administrative
Officer, or other official of the local unit of the Bureau of Indian
Affairs (or a Bureau employee that such person might designate) having
administrative jurisdiction over a tribe.
(n) Official ballot means a ballot prepared by the Bureau of Indian
Affairs for use in an election pursuant to this part. It is possible
that an official ballot may be found to be either spoiled or mutilated
at the time the votes are counted.
(o) Registration means the act whereby persons, who are eligible to
vote, become entitled or qualified to cast ballots by having their names
placed on the list of persons who will be permitted to vote.
(p) Reorganized tribe means a tribe whose members have adopted a
constitution pursuant to a Federal Statute.
(q) Reservation means any area established by treaty, Congressional
Act, Executive Order, or otherwise for the use or occupancy of Indians.
(r) Revocation means that act whereby the adult members of a tribe
vote to abandon their constitutional form of government as opposed to
their voting to amend or totally revise it.
(s) Secretarial election means an election held within a tribe
pursuant to regulations prescribed by the Secretary as authorized by
Federal Statute (as distinguished from tribal elections which are
conducted under tribal authority. (See Cheyenne River Sioux Tribe v.
Andrus, 566 F. 2d 1085 (8th Cir., 1977), cert. denied 439 U.S. 820
(1978)).
(t) Secretary means the Secretary of the Interior or his/her
authorized representative.
(u) Spoiled ballot means an official ballot that has been marked in
such a way that it is not possible to determine the intent of the voter,
a ballot that has not been marked at all, or one that has been marked so
as to violate the secrecy of the ballot. There are two kinds of spoiled
official ballots:
(1) A ballot that is spoiled and not cast. In this case, the spoiled
ballot may be exchanged for a new one. If the need arises to exchange a
spoiled absentee ballot, no additional time will be provided for the new
ballot to be received by the election board.
(2) A ballot that is spoiled and cast. A spoiled cast ballot is to
be counted in tabulating the total votes cast in conjunction with
determining whether the required percentage of the qualified voters has
participated in the election.
(v) Tribal government means that entity established pursuant to a
tribal constitution as empowered to speak for the tribe or in the
absence thereof any group or individual that is recognized by the tribal
members as empowered to speak for the tribe.
(w) Tribe means: (1) Any Indian entity that has not voted to exclude
itself from the Indian Reorganization Act and is included, or is
eligible to be included, among those tribes, bands, pueblos, groups,
communities, or Alaska Native entities listed in the Federal Register
pursuant to 83.6(b) of this chapter as recognized and receiving
services from the Bureau of Indian Affairs; and (2) any group of
Indians whose members each have at least one-half degree of Indian blood
for whom a reservation is established and who each reside on that
reservation. Such tribes may consist of any consolidation of one or
more tribes or parts of tribes.
(x) Voting district means a geographical area established to
facilitate a tribal election process.
25 CFR 81.2 Purpose and scope.
(a) The purpose of this part is to provide uniformity and order in:
(1) Holding Secretarial elections for voting on proposed
constitutions when tribes wish to reorganize,
(2) Adopting constitutional amendments,
(3) Ratifying and amending charters,
(4) Revoking constitutions, and
(5) Facilitating the calling of such elections by the Secretary under
provisions of a Federal Statute.
(b) This part may also be used as a guideline by tribes wishing to
hold constitutional elections that are not held pursuant to a Federal
Statute.
(c) Where a discrepancy might appear to exist between these
regulations and a specific requirement of the statute governing the
reorganization of a tribe or ratification and amendment of charters, the
regulations shall be interpreted to conform with the statute.
(d) As much as possible, Secretarial elections shall be scheduled so
as to avoid their being held at the same time as tribal elections in
order to avoid the confusion that results from different requirements
for each kind of election.
25 CFR 81.3 Group eligibility.
(a) No tribe which has voted to exclude itself from the provisions of
the Indian Reorganization Act, or is otherwise precluded by law, may be
reorganized under a Federal Statute. Tribes wishing to reorganize or a
reorganized tribe seeking to amend its constitution and bylaws or
wishing to vote to revoke such document shall do so under the
regulations in this part.
(b) Charters issued to reorganized tribes shall be ratified or
amended under the regulations in this part.
25 CFR 81.4 Assistance from the Department of the Interior.
Representatives of the Department of the Interior will cooperate with
and offer advice and assistance (including the proposing of amendments),
to any tribe in drafting a constitution and bylaws, an amendment, a
charter or charter amendment, or in revocation of constitutions. Any
payments that might be necessary to non-Bureau staff assisting in the
conduct of the election shall be made from tribal funds.
25 CFR 81.5 Request to call election.
(a) The Secretary shall authorize the calling of an election to adopt
a constitution and bylaws or to revoke a constitution and bylaws, upon a
request from the tribal government.
(b) The Secretary shall authorize the calling of an election to adopt
a constitution and bylaws pursuant to a Federal Statute upon receipt of
a petition bearing the signatures of at least 60 percent of the tribe's
adult members.
(c) The Secretary shall authorize the calling of an election to
ratify a charter at the time the charter is issued, but he/she may issue
a charter to a reservation-based tribe only upon petition by at least
one-third of the adult members of the tribe. No ratification, however,
shall be valid unless the tribe has a constitution adopted and approved
pursuant to the relevant Federal Statute.
(d) The Secretary shall authorize the calling of an election on the
adoption of amendments to a constitution and bylaws or a charter when
requested pursuant to the amendment article of those documents. The
election shall be conducted as prescribed in this part unless the
amendment article of the constitution and bylaws or the charter provides
otherwise, in which case the provisions of those documents shall rule
where applicable.
(e) If the amendment provisions of a tribal constitution or charter
have become outdated and amendment can not be effected pursuant to them,
the Secretary may authorize an election under this part to amend the
documents when the recognized tribal government so requests.
(f) Any authorization not acted upon within 90 days (tribes in Alaska
shall be granted 120 days) from the date of issuance will be considered
void. Notification of the election date as provided for in 81.14 shall
constitute the action envisioned in this section. Extension of an
authorization may be granted upon a valid and reasonable request from
the election board. Copies of authorizations shall be furnished the
requesting tribe or petitioners.
(g) In those instances where conflicting proposals to amend a single
constitutional or charter provision are submitted, that proposal first
received by the officer in charge, if found valid, shall be placed
before the voters before any consideration is given other proposals.
Other proposals shall be considered in order of their receipt;
provided, they are resubmitted following final action on the initial
submission. This procedure shall also apply in those instances where
new or revised constitutions are at issue.
25 CFR 81.6 Entitlement to vote.
(a) If the group is a tribe, or tribes, of a reservation and is
acting to effect reorganization under a Federal Statute for the first
time:
(1) Any duly registered adult member regardless of residence shall be
entitled to vote on the adoption of a constitution and bylaws.
(2) Duly registered adult nonresident members and ill or physically
disabled registered adult resident members may vote by absentee ballot
(see 81.19).
(b) If the group is composed of the adult Indian residents of a
reservation:
(1) Any adult duly registered member physically residing on the
reservation shall be entitled to vote.
(2) Absentee voting shall be permitted only for duly registered
residents temporarily absent from the reservation, ill, or physically
disabled.
(c) If the group is a tribe, or tribes, without a reservation as
defined in this part, any duly registered member shall be entitled to
vote on the adoption of a constitution and bylaws by either arriving at
a polling place or by requesting, properly completing, and timely
casting an absentee ballot as determined by the election board pursuant
to the relevant Federal Statute; provided, that outside of Alaska and
Oklahoma, a reservation shall be established for the tribe before it
becomes entitled to vote on the adoption of a constitution.
(d) For a reorganized tribe to amend its constitution and bylaws,
only members who have duly registered shall be entitled to vote;
provided, that registration is open to the same class of voters that was
entitled to vote in the Secretarial election that effected its
reorganization, unless the amendment article of the existing
constitution provides otherwise.
(e) For a reorganized tribe to revoke its constitution and bylaws,
only members who have duly registered shall be entitled to vote;
provided, that registration is open to the same class of voters as was
entitled to vote in the Secretarial election that effected its
reorganization, unless the amendment article of the existing
constitution provides otherwise.
(f) For a reorganized tribe to ratify a charter or to adopt a charter
amendment, any adult member who has duly registered shall be entitled to
vote, provided that if the tribe is of a reservation, only duly
registered members physically residing on the reservation shall be
entitled to vote.
25 CFR 81.7 Adoption, ratification, or revocation by majority vote.
Except as it may be further limited by this part, a contitution and
bylaws, amendments thereto, or charter and charter amendments shall be
considered adopted, ratified, or revoked if a majority of those actually
voting are in favor of adoption, ratification, or revocation. The total
vote cast, however, must be at least 30 percent of those entitled to
vote, unless, with regard to amendments, the constitution provides
otherwise. The names of persons appearing on the registration list who
have not reached eighteen years of age by the date of the election,
shall be removed from the list of registered voters when determining
whether the required percentage of participation has been achieved.
Unless the existing constitution or charter provides otherwise, none of
the actions cited in this section shall become effective until they are
approved by the Secretary. The validity of any charter ratification
shall be dependent upon the tribe first having reorganized. Duly
ratified charters shall be revoked or surrendered only by Act of
Congress.
25 CFR 81.8 Election board.
(a) There shall be an election board consisting of the officer in
charge acting as chairman and at least two representatives of the tribal
governing body or an authorized representative committee. Where such
persons may be unwilling or unable to serve, the chairman shall select
at least two adult members of the tribe to serve. In addition, the
officer in charge may appoint an interpreter and as many clerks and poll
watchers as he/she deems necessary, but they shall not be members of the
board.
(b) It shall be the duty of the board to conduct elections in
compliance with the procedures described in this part and in particular:
(1) To see that the name of each person offering to vote is on the
official list of registered voters;
(2) To keep the ballot boxes locked at all times except when ballots
are being counted;
(3) To see that ballots are cast only by registered voters and that
the voting list is checked to indicate this;
(4) To begin to count the regularly cast ballots immediately after
the close of the polls and then the absentee ballots, pursuant to
81.21;
(5) To post and certify the election returns;
(6) To return the following to the officer in charge:
(i) The ballots (in marked and locked boxes);
(ii) All unused ballots; and
(iii) The completed Certificate of Results of Election. The officer
in charge shall retain the ballots and other material among official
records for at least one year. At the end of one year, the officer in
charge shall forward the contents of the boxes and other related
material to the appropriate Federal Records Center.
25 CFR 81.9 Voting districts.
If: (a) Voting districts have not already been designated for tribal
elections in the tribal constitution or by tribal election ordinance or
resolution; and (b) in the election board's judgment voting districts
are needed, the board shall establish them and designate a polling place
for each district. Where a reservation exists, no voting district may
be established beyond its boundaries.
25 CFR 81.10 District Election Boards.
(a) Where voting districts have been established by the tribal
constitution, ordinance, resolution, or by the election board, the
election board shall appoint district election boards for each district,
which shall have the duties prescribed above for the election board
except that they shall return to the election board: (1) The ballots
(in marked and locked boxes), (2) all unused ballots, and (3) their
certifications of the district election results on the certification
forms prescribed by the election board.
(b) The board will compile the election results for the entire
reservation and transmit them together with the aforementioned ballots
and ballot boxes to the officer in charge.
25 CFR 81.11 Registration.
(a) Only registered voters will be entitled to vote, and all
determinations of the sufficiency of the number of ballots cast will be
based upon the number of registered voters. The election board, upon
receipt of authorization to conduct an election, shall notify by regular
mail all adult members of the tribe, who to its knowledge are eligible
to vote pursuant to 81.6 of the need to register if they intend to
vote. Any tribal member who, to the election board's knowledge, will
become 18 years of age within 150 days (180 days for Alaska tribes) from
the date of authorization and who is otherwise eligible to vote shall
also be notified and shall be eligible to register, provided that such a
person shall not be entitled to vote if election day falls before the
individual's 18th birthday. This notice shall be sent to an
individual's last known address as it appears on the records of the
local unit of the Bureau of Indian Affairs having jurisdiction. Each
notice addressed to a tribal member not residing on the reservation
shall be accompanied by a preaddressed registration form (BIA Form 8302)
which shall set forth the following information in the upper right
corner:
(1) OMB Clearance Number 1076-003, Expires June 30, 1983;
(2) The name and address of the person desiring to register;
(3) A statement with a signature line attesting that the individual
is a tribal member and is at least 18 years of age, or will be within
150 days, (180 days for Alaska tribes) from the date of authorization;
and
(4) The three following statements: ''Completion of and return of
this registration form is necessary if you desire to become qualified to
vote in the forthcoming constitutional or charter election.'' ''This
form, upon completion and return to the election board, shall be the
basis for determining whether you qualify to have your name placed upon
the list of registered voters and receive a ballot'' and ''completion
and return of this form is voluntary.'' Members who qualify as absentee
voters and wish to cast an absentee ballot must complete and return the
above registration form before, or in conjunction with, requesting an
absentee ballot in sufficient time to permit compliance with 81.12.
(b) The following records shall be kept for all notices: (1) Names
and addresses of persons to whom notices are mailed; (2) date of
mailing; and (3) a copy of each return registration request (including
from whom received and date and time of receipt). Tribal members living
on the reservation who desire to vote must register with the election
board in the manner it determines in time to permit compliance with
81.12. Registration procedures for such Indians shall be included in the
notice of the need to register to resident members.
(46 FR 1670, Jan. 7, 1981, as amended at 46 FR 38352, July 27, 1981.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 81.12 Voting list.
The election board shall compile in alphabetical order an official
list of registered voters arranged by voting districts, if any. This
list shall designate, where applicable, those who have requested an
absentee ballot and the members of the tribe who are or will have
attained the age of 18 years within 150 days (180 days for Alaska
tribes) from the date an election is authorized and who have duly
registered to vote. A copy of this list shall be supplied to any
district election board and shall be posted at the headquarters of the
local administrative unit of the Bureau of Indian Affairs, the tribal
headquarters, and at various other public places designated by the
election board at least 20 days prior to the election.
25 CFR 81.13 Eligibility disputes.
The election board shall determine the eligibility of any written
claim to vote presented to it by one whose name does not appear on the
official list of registered voters as well as any written challenge of
the right to vote of anyone whose name is on the list. Its decision
shall be final. It shall rule on all claims no later than ten days
before the election. Any claim not presented at least ten days before
the election shall be disallowed. Nonresident claimants successfully
appealing omission from the list shall immediately be furnished an
absentee ballot. Omission of names from the voters list due to late
registration, if notification (pursuant to 81.14) has been timely
mailed, shall not be considered grounds for challenge.
25 CFR 81.14 Election notices.
Not less than 30 nor more than 60 days notice shall be given of the
date of the election. Such notice shall include the location of where
the results will be posted. The notice shall also advise that persons
must register if they intend to vote. The election board shall
determine whether the notice will be given by television, radio,
newspaper, poster, or mail, or by more than one of these methods and
whether in an Indian language in addition to English. A copy of any
written election notice may be mailed to each registered voter and shall
be posted at the local administrative unit of the Bureau of Indian
Affairs and elsewhere as directed by the election board. At any time
after receiving Secretarial authorization to hold the election, the
board shall make available to the adult members of the tribe the text of
any amendment or proposed constitution and bylaws, amendment thereto,
charter, or charter amendment. The election board may determine the
manner and timing of the distribution. However, the text shall be
posted at least within the local administrative unit of the Bureau and
the tribal headquarters within two days following the giving of notice
of the election date by the election board.
25 CFR 81.15 Opening and closing of polls.
If polling places are established, the polls shall remain open from 8
a.m. to 7 p.m., local time, unless different hours are set by the
election board and the voters are informed of this in the election
notice.
25 CFR 81.16 Interpreters.
Interpreters, where needed, may be provided to explain the manner of
voting to any voter who asks for instructions; provided, that all
reasonable precautions are taken to ensure that the interpreter does not
influence the voter in casting the ballot. The interpreter may
accompany the voter into the booth upon the latter's request.
25 CFR 81.17 Electioneering.
There shall be no electioneering during voting hours within 50 feet
of any voting place. Sample ballots will be permitted in the voting
booth.
25 CFR 81.18 Manner of voting.
(a) Registered voters may vote by arriving at the appropriate polling
place within the prescribed voting hours telling officials their names
and addresses, signing their signature or mark on the voting list, and
by marking and placing in the ballot box the ballots which will be
handed to them. Voting shall be by secret ballot.
(b) Voting may take place at the same time regarding the adoption of
a constitution, the ratification of a charter, or the amendment of such
documents; provided, that entitlement to vote for the proposal is
consistent with 81.6 of this part and, provided further, that no
charter shall be considered ratified if the proposed constitution is not
adopted and approved.
(c) The election board may choose not to use polling places and
provide for the issuance and receipt of ballots entirely through the the
United States Postal Service. In that event, the election board shall
use the appropriate procedures set forth in this part relating to
absentee balloting.
25 CFR 81.19 Absentee voting.
(a) Nonresident members who have registered may vote by absentee
ballot except as prohibited by 81.6. Also, whenever, due to temporary
absence from the reservation, illness, or physical disability, a
registered and otherwise eligible voter is not able to vote at the polls
and notifies the election board, the voter shall be entitled to vote by
absentee ballot. Upon his or her request, the election board shall give
or mail absentee ballots to registered voters who may be entitled to
receive them pursuant to 81.6. At the same time, such voters will also
be provided a copy of the proposal to be voted upon when the full text
does not appear on the ballot. Appropriate records shall be kept of
those from whom requests are received and the date they were received.
The election board shall allow an absentee voter no less than ten days
from the mailing out of an absentee ballot to receive and return the
ballot. This period shall not be afforded absentee voters desiring to
exchange a mutilated or spoiled ballot less than ten days before the
election date. While requests for absentee ballots received less than
ten days before an election will be promptly honored, no absentee ballot
will be counted if received later than either the close of the polls or
after some other deadline established by the election board. The
election board shall furnish election officials the names of individuals
who have been given or had mailed to them an absentee ballot.
(b) Accompanying the absentee ballot shall be:
(1) An inner envelope bearing on the outside, the words ''Absentee
Ballot,''
(2) Instructions for completion of the absentee ballot,
(3) A copy of the proposed amendment, and
(4) A preaddressed outer envelope, imprinted on the back with a
certificate as follows:
I, (name of voter), hereby certify that I am a qualified voter of the
(name) Tribe of Indians; that I will be 18 years of age or over at the
election date and am entitled to vote in the election to be held on
(date of election); and that I cannot appear at the polling place on
the reservation on the date of the election because (indicate one of the
following reasons): I am a non resident voter ; or I expect to be
temporarily absent from the reservation ; or because of illness ; or
physical disability ; or because no polling place has been established
. I further certify that I marked the enclosed ballot in secret.
Signed: XXXXXXX(voter's signature).
(c) The absentee voter shall mark the ballot and the ballot shall
then be folded so as to conceal the marking and be placed in the
envelope marked ''Absentee Ballot'' and the envelope sealed. The voter
shall then place the sealed envelope marked ''Absentee Ballot'' in the
outer envelope, seal it and complete the certificate and mail it. The
preaddressed outer envelope shall be directed to the election board at
the reservation. Absentee ballots must be received by the election
board not later than the close of the polls or as otherwise directed by
the election board.
(d) The election board shall make and keep a record of ballots
mailed, to whom mailed, the date of mailing, the address on the
envelope, the date of the return of the ballot, and from whom received.
After duly recording the receipt date of absentee ballots received on
time, representatives of the election board shall open the outer
envelopes, secure them and place the unmarked inner envelopes containing
the ballots in a separate box reserved for that purpose. After all
other ballots have been counted, the absentee ballots shall be counted
immediately and included in the results of the election.
25 CFR 81.20 Ballots.
(a) Ballots are to be prepared clearly and simply so that it is easy
for the voters to indicate a choice between no more than two
alternatives. For example, if a tribal council or the petitioners
propose to reduce the one-half degree blood quantum required to qualify
for membership but want the voters to decide whether it should be
one-fourth or one-eight, it would not be appropriate to put those two
alternatives on the ballot. Doing so, would deny the voters an
opportunity to vote for keeping the one-half degree blood quantum.
Neither would it be appropriate to include all three blood quantum
alternatives. Rather, those proposing the change should decide which
blood quantum is to be submitted to the voters. The ballot in the
Secretarial election would then give the electors the choice of marking
either ''yes'' or ''no.'' A vote against the proposed change would be in
favor of keeping the one-half degree blood quantum in the example.
(b) In preparing ballots for proposed amendments, care should be
taken to ensure that:
(1) Each proposed amendment addresses only a single question.
(2) If a proposed amendment conflicts with other provisions of the
document being amended, the ballot shall be prepared so that the
question includes all changes in those other directly related provisions
in order to avoid contradictions within the document.
(3) When more than one amendment is being submitted to the voters at
a given election, the proposals shall be identified with alphabetical
designations rather than numerical. The first of the several proposals
would be labeled ''Proposed Amendment A,'' the next would be ''Proposed
Amendment B,'' etc. Those amendments that are adopted and approved
would then be assigned consecutive numbers to follow those assigned any
earlier amendments that may have been make to that governing document.
A statement similar to the following shall appear on each of the
proposed amendments and shall be completed following the election:
Having been duly adopted and approved, Proposed Amendment (A,B,C,
etc.) is hereby designated as Amendment No. -- to the (Constitution,
Charter, etc.) of the (name of tribe) Tribe.
(c) The election board will supply all ballots. Each ballot shall be
stamped in red ink on its face in the same place:
OFFICIAL BALLOT
(Facsimile Signature)
CHAIRMAN, ELECTION BOARD
(d) Should any voter spoil or mutilate a ballot in the course of
voting at a poll, the voter shall destroy it in the presence of the
election officials and the election officials shall then make note of
the destroyed ballot and furnish the voter with another ballot.
(e) Any spoiled or mutilated absentee ballot may be exchanged for a
new one by returning it to the election board with a request for
another. The board shall honor the request promptly and note the dates
of related actions. No extension of time will be granted for receipt of
exchanged ballots that might not be cast on time.
25 CFR 81.21 Counting of ballots.
All duly cast ballots are to be counted. Even though it will not be
possible to determine the intent of the voter regarding spoiled and
mutilated ballots, they are to be counted for purposes of determining
whether the required percentage of voters have cast their ballots in the
election. Invalid ballots shall not be counted for purposes of
determining the required percentage of votes cast.
25 CFR 81.22 Contesting of election results.
Any qualified voter, within three days following the posting of the
results of an election, may challenge the election results by filing
with the Secretary through the officer in charge the grounds for the
challenge, together with substantiating evidence. If in the opinion of
the Secretary, the objections are valid and warrant a recount or new
election, the Secretary shall order a recount or a new election. The
results of the recount or new election shall be final.
25 CFR 81.23 Posting and certifying election results.
(a) The results of the election shall be posted in the local Bureau
of Indian Affairs office, tribal headquarters, and at other appropriate
public places determined by the election board.
(b) The election board shall certify the results of the election on
the following form and transmit them to the local unit of the Bureau of
Indian Affairs:
Pursuant to a Secretarial election authorized by the (title of
authorizing officer) on (date), the attached Constitution and Bylaws
(Amendment, Charter or Charter Amendment) of the (name of tribe) was
submitted to the qualified voters of the tribe and on (date), was duly
(adopted) (ratified) (rejected) or (revoked) by a vote of (number) for
and (number) against and (number) cast ballots found spoiled or
mutilated in an election in which at least 30 percent (or such
''percentages'' as may be required to amend according to the
constitution) of the (number) members entitled to vote, cast their
ballot in accordance with (appropriate Federal statute). Signed: (By
the chairman of the election board and board members.)
Date: --------------------------------------
25 CFR 81.24 Approval, disapproval, or rejection action.
(a) Action to approve or disapprove constitutional actions will be
taken promptly by the authorizing officer following receipt of the
original text of the material voted upon and the original of the
Certificate of Results of Election from the officer in charge.
(1) When required and granted, the authorizing officer shall furnish
a tribe with written approval of constitutional actions. In the absence
of an election challenge, the approval shall be issued promptly
following the expiration of the contest period. Copies of his/her
written approval, the Certificate of Results of Election, and the text
of the material voted upon shall be transmitted to the Commissioner of
Indian Affairs, 18th and C Streets, NW., Washington, DC 20245.
(2) When a proposed constitution or charter action is rejected by the
voters, the authorizing officer shall indicate in writing to the tribe
his/her awareness of the election results and send to the Commissioner
of Indian Affairs in Washington, DC, copies of the communication, the
Certificate of Results of Election and the text of the material voted
upon.
(3) When the authorizing officer disapproves a constitutional action,
he/she shall in writing promptly notify the tribe of the determination
and furnish the Commissioner of Indian Affairs in Washington, DC, a copy
of the communication along with the Certificate of Results of Election
and the text of the material voted upon.
(b) Where Secretarial approval of proposed constitutional and charter
actions is required in conjunction with authorization of an election,
copies of the formal approval shall immediately be furnished the
Commissioner of Indian Affairs in Washington, DC, by the authorizing
officer and be followed in accordance with paragraph (a)(1) of this
section by copies of the Certificate of the Results of Election and the
text of the material voted upon as soon as it is available.
25 CFR 81.24 PART 82 -- PETITIONING PROCEDURES FOR TRIBES REORGANIZED
UNDER FEDERAL STATUTE AND OTHER ORGANIZED TRIBES
Sec.
82.1 Definitions.
82.2 Purpose and scope.
82.3 Applicability to tribal groups.
82.4 Entitlement to petition.
82.5 Sufficiency of a petition.
82.6 Petition format.
82.7 Notarization of petition signatures.
82.8 Filing of petitions.
82.9 Challenges.
82.10 Action on the petition.
82.11 Duration of petition.
Authority: 5 U.S.C. 301, and 25 U.S.C. 2, 9, 473a, 476, 477 and 503.
Source: 46 FR 1675, Jan. 7, 1981, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 82.1 Definitions.
As used in this part:
(a) Area Director means the Director of the Bureau Area Office having
administrative jurisdiction over the petitioners' tribe.
(b) Bureau means the Bureau of Indian Affairs.
(c) Charter means a charter of incorporation the Secretary may issue
to a recognized tribe pursuant to a Federal Statute.
(d) Commissioner means the Commissioner of Indian Affairs or his/her
authorized representative.
(e) Constitution or Constitution and Bylaws means the written
organizational framework of any tribe for the exercise of governmental
powers.
(f) Eligible, entitled, or qualified voter means the status achieved
by a tribal member who meets the requirement of a tribal constitution or
election ordinance to vote in a tribal election; provided, that where a
tribe has reorganized pursuant to a Federal Statute, to be an entitled
or a qualified voter for purposes of this part, the tribal member must
be at least 18 years of age and be eligible to register for voting in a
Secretarial election (see part 81 of this chapter).
(g) Federal Statute means one of the following: (1) The Act of June
18, 1934, 48 Stat. 984, as amended (Indian Reorganization Act), (2) the
Act of June 26, 1936, 49 Stat. 1967 (Oklahoma Indian Welfare Act), or
(3) the Act of May 1, 1936, 49 Stat. 1250 (Alaska Native Reorganization
Act).
(h) Local Bureau Official means the Superintendent, Field
Representative, or other line officer of the Bureau of Indian Affairs
who has local administrative jurisdiction over the tribe concerned.
(i) Local Bureau unit means the Bureau office having local
administrative jurisdiction over the tribe concerned.
(j) Member means any person who is duly enrolled in a tribe, who
meets a tribe's written criteria for membership, or is recognized as
belonging to a tribe by the local Indians comprising that tribe.
(k) Organized tribe means any tribe that has adopted a constitution
outside of a Federal Statute.
(l) Reorganized tribe means any tribe that has adopted a constitution
pursuant to a Federal Statute.
(m) Secretarial election means an election held within a tribe
pursuant to regulations prescribed by the Secretary (as distinguished
from tribal elections which are conducted under tribal authority (See
Cheyenne River Sioux Tribe v. Andrus, 566 F.2d 1085 (8th Cir., 1977),
cert. denied 439 U.S. 820 (1978)).
(n) Secretary means the Secretary of the Interior or his/her
authorized representative.
(o) Spokesman for the petitioners means the authorized voter of a
tribe initiating a petition or designated by the initiators of a
petition to speak on their behalf.
(p) Tribe means any Indian entity that is listed or is eligible to be
listed in the Federal Register pursuant to 83.6(b) of this chapter as
recognized and receiving services from the Bureau that has adopted a
constitution approved by the Secretary or the Commissioner.
25 CFR 82.2 Purpose and scope.
The purpose of this part is to provide uniformity and order in the
formulation and submission of petitions requesting the Secretary or the
Commissioner to call elections to amend tribal constitutions, to issue
charters pursuant to a Federal Statute, and for such other purposes
where constitutions and charters provide for petitioning to effect
action by the Secretary or Commissioner.
25 CFR 82.3 Applicability to tribal groups.
The regulations in this part apply: (a) To any tribe which provides
in its constitution for petitioning the Secretary or the Commissioner to
call elections to amend the tribal constitution; (b) to any tribe whose
constitution or charter provides for petitioning to effect any other
action by the Secretary or Commissioner; and (c) to those tribal
members at least 18 years of age who, pursuant to a Federal Statute, may
wish to petition the Secretary to issue a charter to their tribe.
25 CFR 82.4 Entitlement to petition.
All members eligible to vote in elections conducted by a tribe shall
be entitled to sign petitions to effect actions by the Secretary or
Commissioner within the scope of 82.2; provided, that where a tribe is
reorganized pursuant to a Federal Statute, only persons eligible to
register for Secretarial elections may petition.
25 CFR 82.5 Sufficiency of a petition.
(a) The numerical sufficiency of any petition submitted pursuant to
this part shall be based upon a number determined by the local Bureau
official: (1) By consultation with the tribal governing body regarding
the current number of tribal voters; or (2) for reorganized tribes, the
number of members considered eligible to register for a Secretarial
election and who are at least 18 years of age.
(b) The number shall be made available to the spokesman for the
petitioners upon request along with a cut-off date when, for purposes of
the petition, no further names will be added.
25 CFR 82.6 Petition format.
Petitions may consist of as many pages as are necessary to
accommodate the signatures of the petitioners. However, each sheet of a
petition must set forth at least a summary of the objectives of the
petitioners and must show the date upon which the petition was signed by
each individual as well as the current mailing address of each signer.
25 CFR 82.7 Notarization of petition signatures.
(a) Signatures to a petition must be authenticated in one of the
following ways: (1) Through having each signer subscribe or acknowledge
his/her signature before a notary public; (2) through having the
collector of signatures appeal before a notary and sign, in his/her
presence, on each sheet of the petition, a statement attesting that the
signatures were affixed on the dates shown and by the individuals whose
names appear thereon, and that to the best of his/her knowledge the
signatories are eligible, entitled, or qualified voters.
(b) Only an eligible, entitled, or qualified tribal voter shall be
recognized as a valid collector of petition signatures.
25 CFR 82.8 Filing of petitions.
All petitions submitted pursuant to this part must be filed with the
local Bureau official having administrative jurisdiction over the tribe.
No petitions will be accepted until a spokesman for the petitioners
declares that he/she wishes to make an official filing. Once a
declaration of the official filing is made and the petition is given to
the local Bureau official, that official shall immediately enter on the
petition the date of receipt (this date becomes the date of official
filing) and shall inform the spokesman for the petitioners that no
additional signatures may be added and that no withdrawal of signatures
will be permitted. The local Bureau official shall also acknowledge, in
writing, receipt of the petition, indicating the exact number of
signatures which are attached and the official filing date. Upon this
written acknowledgment of the petition, the local Bureau official shall
publicly post at the local Bureau unit serving the tribe a statement of
the matter proposed in the petition. This statement shall remain posted
for a period of 30 days from the official filing date.
25 CFR 82.9 Challenges.
(a) Once an official filing has been made, the local Bureau official
shall immediately have copies made of the petition and its signatures.
The local Bureau official shall keep these copies at the Agency or field
office for 15 days following the date of official filing, during which
time they shall be available for examination by authorized voters of the
tribe upon request. During this 15-day period, challenges of signatures
may be filed with the local Bureau official.
(b) Challenges will be considered on the following grounds: (1)
Forgery of signatures; and (2) lack of proper qualifications of a
signer. No challenge will be considered which is not accompanied by
supporting evidence in writing. In the event that an individual's name
appears on a petition more than once, all but one of the names shall be
stricken.
25 CFR 82.10 Action on the petition.
(a) Within 30 days after the official filing date, the local Bureau
official shall forward to the Area Director, or when the Area Director
is the local Bureau official, directly to the Commissioner, the original
of the petition and its accompanying signatures, together with
recommendations concerning challenges and conclusions concerning: (1)
The validity of the signatures; (2) the adequacy of the number of
signatures; and (3) the propriety of the petitioning procedure.
(b) The Area Director or the Commissioner, as the case may be, shall
within 45 days after the official filing date decide upon each challenge
and the sufficiency of the petition and announce whether the petition
shall be acted upon. If a decision is reached that the petitioning
action is for any reason insufficient, the spokesman for the petitioners
and the governing body of the tribe will be so informed and given the
reasons for the decision. If a petitioning action warrants action by
the Secretary or Commissioner, the spokesman for the petitioners and the
governing body of the tribe concerned will be so informed. The decision
in such matters shall be final. The procedures for implementing any
action initiated by the acceptance of a petition will be determined in
accordance with pertinent directives and regulations.
25 CFR 82.11 Duration of petition.
Any petition submitted under this part, shall be considered only for
the purpose stated therein. Once a petition has been acted upon, it
shall not be used again.
25 CFR 82.11 PART 83 -- PROCEDURES FOR ESTABLISHING THAT AN AMERICAN
INDIAN GROUP EXISTS AS AN INDIAN TRIBE
Sec.
83.1 Definitions.
83.2 Purpose.
83.3 Scope.
83.4 Who may file.
83.5 Where to file.
83.6 Duties of the Department.
83.7 Form and content of petition.
83.8 Notice of receipt of petition.
83.9 Processing the petition.
83.10 Reconsideration and final action.
83.11 Implementation of decisions.
Authority: 5 U.S.C. 301; secs. 463 and 465 of the Revised Statutes,
25 U.S.C. 2 and 9; and 230 DM 1 and 2.
Source: 43 FR 39361, Sept. 5, 1978, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 83.1 Definitions.
(a) Secretary means the Secretary of the Interior or his authorized
representative.
(b) Assistant Secretary means the Assistant Secretary -- Indian
Affairs, or his authorized representative.
(c) Department means the Department of the Interior.
(d) Bureau means the Bureau of Indian Affairs.
(e) Area Office means the Bureau of Indian Affairs Area Office.
(f) Indian tribe, also referred to herein as tribe, means any Indian
group within the continental United States that the Secretary of
Interior acknowledges to be an Indian tribe.
(g) Indian group or group means any Indian aggregation within the
continental United States that the Secretary of the Interior does not
acknowledge to be an Indian tribe.
(h) Petitioner means any entity which has submitted a petition to the
Secretary requesting acknowledgement that it is an Indian tribe.
(i) Autonomous means having a separate tribal council, internal
process, or other organizational mechanism which the tribe has used as
its own means of making tribal decisions independent of the control of
any other Indian governing entity. Autonomous must be understood in the
context of the Indian culture and social organization of that tribe.
(j) Member of an Indian group means an individual who is recognized
by an Indian group as meeting its membership criteria and who consents
to being listed as a member of that group.
(k) Member of an Indian tribe means an individual who meets the
membership requirements of the tribe as set forth in its governing
document or is recognized collectively by those persons comprising the
tribal governing body, and has continuously maintained tribal relations
with the tribe or is listed on the tribal rolls of that tribe as a
member, if such rolls are kept.
(l) Historically, historical or history means dating back to the
earliest documented contact between the aboriginal tribe from which the
petitioners descended and citizens or officials of the United States,
colonial or territorial governments, or if relevant, citizens and
officials of foreign governments from which the United States acquired
territory.
(m) Continuously means extending from generation to generation
throughout the tribe's history essentially without interruption.
(n) Indigenous means native to the continental United States in that
at least part of the tribe's aboriginal range extended into what is now
the continental United States.
(o) Community or specific area means any people living within such a
reasonable proximity as to allow group interaction and a maintenance of
tribal relations.
(p) Other party means any person or organization, other than the
petitioner who submits comments or evidence in support of or in
opposition to a petition.
25 CFR 83.2 Purpose.
The purpose of this part is to establish a departmental procedure and
policy for acknowledging that certain American Indian tribes exist.
Such acknowledgment of tribal existence by the Department is a
prerequisite to the protection, services, and benefits from the Federal
Government available to Indian tribes. Such acknowledgment shall also
mean that the tribe is entitled to the immunities and privileges
available to other federally acknowledged Indian tribes by virtue of
their status as Indian tribes as well as the responsibilities and
obligations of such tribes. Acknowledgment shall subject the Indian
tribe to the same authority of Congress and the United States to which
other federally acknowledged tribes are subjected.
25 CFR 83.3 Scope.
(a) This part is intended to cover only those American Indian groups
indigenous to the continental United States which are ethnically and
culturally identifiable, but which are not currently acknowledged as
Indian tribes by the Department. It is intended to apply to groups
which can establish a substantially continuous tribal existence and
which have functioned as autonomous entities throughout history until
the present.
(b) This part does not apply to Indian tribes, organized bands,
pueblos or communities which are already acknowledged as such and are
receiving services from the Bureau of Indian Affairs.
(c) This part is not intended to apply to associations,
organizations, corporations or groups of any character, formed in recent
times; provided that a group which meets the criteria in 83.7 (a)
through (g) has recently incorporated or otherwise formalized its
existing autonomous process will have no bearing on the Assistant
Secretary's final decision.
(d) Nor is this part intended to apply to splinter groups, political
factions, communities or groups of any character which separate from the
main body of a tribe currently acknowledged as being an Indian tribe by
the Department, unless it can be clearly established that the group has
functioned throughout history until the present as an autonomous Indian
tribal entity.
(e) Further, this part does not apply to groups which are, or the
members of which are, subject to congressional legislation terminating
or forbidding the Federal relationship.
25 CFR 83.4 Who may file.
Any Indian group in the continental United States which believes it
should be acknowledged as an Indian tribe, and can satisfy the criteria
in 83.7, may submit a petition requesting that the Secretary
acknowledge the group's existence as an Indian tribe.
25 CFR 83.5 Where to file.
A petition requesting the acknowledgment that an Indian group exists
as an Indian tribe shall be filed with the Assistant Secretary -- Indian
Affairs, Department of the Interior, 18th and ''C'' Streets NW.,
Washington, DC 20245. Attention: Federal acknowledgment project.
25 CFR 83.6 Duties of the Department.
(a) The Department shall assume the responsibility to contact, within
a twelve-month period following the enactment of these regulations, all
Indian groups known to the Department in the continental United States
whose existence has not been previously acknowledged by the Department.
Included specifically shall be those listed in chapter 11 of the
American Indian Policy Review Commission final report, volume one, May
17, 1977. The Department shall in- form all such groups of the
opportunity to petition for an acknowledgment of tribal existence by the
Federal Government.
(b) The Secretary shall publish in the Federal Register within 90
days after effective date of these regulations, a list of all Indian
tribes which are recognized and receiving services from the Bureau of
Indian Affairs. Such list shall be updated and published annually in
the Federal Register.
(c) Within 90 days after the effective date of the final regulations,
the Secretary will have available suggested guidelines for the format of
petitions, including general suggestions and guidelines on where and how
to research for required information. The Department's example of
petition format, while preferable, shall not preclude the use of any
other format.
(d) The Department shall, upon request, provide suggestions and
advice to researchers representing a petitioner for their research into
the petitioner's historical background and Indian identity. The
Department shall not be responsible for the actual research on behalf of
the petitioner.
25 CFR 83.7 Form and content of the petition.
The petition may be in any readable form which clearly indicates that
it is a petition requesting the Secretary to acknowledge tribal
existence. All the criteria in paragraphs (a) through (g) of this
section are mandatory in order for tribal existence to be acknowledged
and must be included in the petition.
(a) A statement of facts establishing that the petitioner has been
identified from historical times until the present on a substantially
continuous basis, as ''American Indian,'' or ''aboriginal.'' A
petitioner shall not fail to satisfy any criteria herein merely because
of fluctuations of tribal activity during various years. Evidence to be
relied upon in determining the group's substantically continuous Indian
identity shall include one or more of the following:
(1) Repeated identification by Federal authorities;
(2) Longstanding relationships with State governments based on
identification of the group as Indian;
(3) Repeated dealings with a county, parish, or other local
government in a relationship based on the group's Indian identity;
(4) Identification as an Indian entity by records in courthouses,
churches, or schools;
(5) Identification as an Indian entity by anthropologists,
historians, or other scholars;
(6) Repeated identification as an Indian entity in newspapers and
books;
(7) Repeated identification and dealings as an Indian entity with
recognized Indian tribes or national Indian organizations.
(b) Evidence that a substantial portion of the petitioning group
inhabits a specific area or lives in a community viewed as American
Indian and distinct from other populations in the area, and that its
members are descendants of an Indian tribe which historically inhabited
a specific area.
(c) A statement of facts which establishes that the petitioner has
maintained tribal political influence or other authority over its
members as an autonomous entity throughout history until the present.
(d) A copy of the group's present governing document, or in the
absence of a written document, a statement describing in full the
membership criteria and the procedures through which the group currently
governs its affairs and its members.
(e) A list of all known current members of the group and a copy of
each available former list of members based on the tribe's own defined
criteria. The membership must consist of individuals who have
established, using evidence acceptable to the Secretary, descendancy
from a tribe which existed historically or from historical tribes which
combined and functioned as a single autonomous entity. Evidence
acceptable to the Secretary of tribal membership for this purpose
includes but is not limited to:
(1) Descendancy rolls prepared by the Secretary for the petitioner
for purposes of distributing claims money, providing allotments, or
other purposes;
(2) State, Federal, or other official records or evidence identifying
present members or ancestors of present members as being an Indian
descendant and a member of the petitioning group;
(3) Church, school, and other similar enrollment records indicating
the person as being a member of the petitioning entity;
(4) Affidavits of recognition by tribal elders, leaders, or the
tribal governing body, as being an Indian descendant of the tribe and a
member of the petitioning entity;
(5) Other records or evidence identifying the person as a member of
the petitioning entity.
(f) The membership of the petitioning group is composed principally
of persons who are not members of any other North American Indian tribe.
(g) The petitioner is not, nor are its members, the subject of
congressional legislation which has expressly terminated or forbidden
the Federal relationship.
25 CFR 83.8 Notice of receipt of petition.
(a) Within 30 days after receiving a petition, the Assistant
Secretary shall send an acknowledgment of receipt, in writing, to the
petitioner, and shall have published in the Federal Register a notice of
such receipt including the name and location, and mailing address of the
petitioner and other such information that will identify the entity
submitting the petition and the date it was received. The notice shall
also indicate where a copy of the petition may be examined.
(b) Groups with petitions on file with the Bureau on the effective
date of these regulations shall be notified within 90 days from the
effective date that their petition is on file. Notice of that fact,
including the information required in paragraph (a) of this section,
shall be published in the Federal Register. All petitions on file on
the effective date will be returned to the petitioner with guidelines as
specified in 83.6(c) in order to give the petitioner an opportunity to
review, revise, or supplement the petition. The return of the petition
will not affect the priority established by the initial filing.
(c) The Assistant Secretary shall also notify, in writing, the
Governor and attorney general of any State in which a petitioner
resides.
(d) The Assistant Secretary shall also cause to be published the
notice of receipt of the petition in a major newspaper of general
circulation in the town or city nearest to the petitioner. The notice
will include, in addition to the information in paragraph (a) of this
section, notice of opportunity for other parties to submit factual or
legal arguments in support of or in opposition to the petition. Such
submissions shall be provided to the petitioner upon receipt by the
Federal acknowledgement staff. The petitioner shall be provided an
opportunity to respond to such submissions prior to a final
determination regarding the petitioner's status.
25 CFR 83.9 Processing the petition.
(a) Upon receipt of a petition, the Assistant Secretary shall cause a
review to be conducted to determine whether the petitioner is entitled
to be acknowledged as an Indian tribe. The review shall include
consideration of the petition and supporting evidence, and the factual
statements contained therein. The Assistant Secretary may also initiate
other research by his staff, for any purpose relative to analyzing the
petition and obtaining additional information about the petitioner's
status, and may consider any evidence which may be submitted by other
parties.
(b) Prior to actual consideration of the petition, the Assistant
Secretary shall notify the petitioner of any obvious deficiencies, or
significant omissions, that are apparent upon an initial review, and
provide the petitioner with an opportunity to withdraw the petition for
further work or to submit additional information or a clarification.
(c) Petitions shall be considered on a first come, first serve basis
determined by the date of original filing with the Department. The
Federal acknowledgement project staff shall establish a priority
register including those petitions already pending before the
Department.
(d) The petitioner and other parties submitting comments on the
petition shall be notified when the petition comes under active
consideration. They shall also be notified who is the primary Bureau
staff member reviewing the petition, his backup, and supervisor. Such
notice shall also include the office address and telephone number of the
primary staff member.
(e) A petitioning group may, at its option and upon written request,
withdraw its petition prior to publication by the Assistant Secretary of
his finding in the Federal Register and, may if it so desires, file an
entirely new petition. Such petitioners shall not lose their priority
date by withdrawing and resubmitting their petitions later, provided the
time periods in paragraph (f) of this section shall begin upon active
consideration of the resubmitted petition.
(f) Within 1 year after notifying the petitioner that active
consideration of the petition has begun, the Assistant Secretary shall
publish his proposed findings in the Federal Register. The Assistant
Secretary may extend that period up to an additional 180 days upon a
showing of due cause to the petitioner. In addition to the proposed
findings, the Assistant Secretary shall prepare a report which shall
summarize the evidence for the proposed decision. Copies of such report
shall be available for the petitioner and other parties upon written
request.
(g) Upon publication of the proposed findings, any individual or
organization wishing to challenge the proposed findings shall have a
120-day response period to present factual or legal arguments and
evidence to rebut the evidence relied upon.
(h) After consideration of the written arguments and evidence
rebutting the proposed findings, the Assistant Secretary shall make a
determination regarding the petitioner's status, a summary of which
shall be published in the Federal Register within 60 days from the
expiration of the response period. The determination will become
effective in 60 days from publication unless earlier withdrawn pursuant
to 83.10.
(i) The Assistant Secretary shall acknowledge the existence of the
petitioner as an Indian tribe when it is determined that the group
satisfies the criteria in 83.7.
(j) The Assistant Secretary shall refuse to acknowledge that a
petitioner is an Indian tribe if it fails to satisfy the criteria in
83.7. In the event the Assistant Secretary refuses to acknowledge the
eligibility of a petitioning group, he shall analyze and foward to the
petitioner other options, if any, under which application for services
and other benefits may be made.
25 CFR 83.10 Reconsideration and final action.
(a) The Assistant Secretary's decision shall be final for the
Department unless the Secretary requests him to reconsider within 60
days of such publication. If the Secretary recommends reconsideration,
the Assistant Secretary shall consult with the Secretary, review his
initial determination, and issue a reconsidered decision within 60 days
which shall be final and effective upon publication.
(b) The Secretary in his consideration of the Assistant Secretary's
decision may review any information available to him, whether formally
part of the record or not; where reliance is placed on information not
of record, such information shall be identified as to source and nature,
and inserted in the record.
(c) The Secretary may request reconsideration of any decision by the
Assistant Secretary but shall request reconsideration of any decision,
which in his opinion:
(1) Would be changed by significant new evidence which he has
received subsequent to the publication of the decision; or
(2) A substantial portion of the evidence relied on was unreliable or
was of little probative value; or
(3) The petitioner's or the Bureau's research appears inadequate or
incomplete in some material respect.
(d) Any notice which by the terms of these regulations must be
published in the Federal Register, shall also be mailed to the
petitioner, the Governors and attorney generals of the States involved,
and to other parties which have commented on the proposed findings.
25 CFR 83.11 Implementation of decisions.
(a) Upon final determination that the petitioner is an Indian tribe,
the tribe shall be eligible for services and benefits from the Federal
Government available to other federally recognized tribes and entitled
to the privileges and immunities available to other federally recognized
tribes by virtue of their status as Indian tribes with a
government-to-government relationship to the United States as well as
having the responsibilities and obligations of such tribes.
Acknowledgment shall subject such Indian tribes to the same authority of
Congress and the United States to which other federally acknowledged
tribes are subject.
(b) While the newly recognized tribe shall be eligible for benefits
and services, acknowledgment of tribal existence will not create an
immediate entitlement to existing Bureau of Indian Affairs programs.
Such programs shall become available upon appropriation of funds by
Congress. Requests for appropriations shall follow a determination of
the needs of the newly recognized tribe.
(c) Within 6 months after acknowledgment that the petitioner exists
as an Indian tribe, the appropriate Area Office shall consult and
develop in cooperation with the group, and forward to the Assistant
Secretary, a determination of needs and a recommended budget required to
serve the newly acknowledged tribe. The recommended budget will be
considered along with other recommendations by the Assistant Secretary
in the usual budget-request process.
25 CFR 83.11 PART 87 -- USE OR DISTRIBUTION OF INDIAN JUDGMENT FUNDS
Sec.
87.1 Definitions.
87.2 Purpose.
87.3 Time limits.
87.4 Conduct of hearings of record.
87.5 Submittal of proposed plan by Secretary.
87.6 Extension of period for submitting plans.
87.7 Submittal of proposed legislation by Secretary.
87.8 Enrollment aspects of plans.
87.9 Programming aspects of plans.
87.10 Per capita payment aspects of plans and protection of funds
accruing to minors, legal incompetents and deceased beneficiaries.
87.11 Investment of judgment funds.
87.12 Insuring the proper performance of approved plans.
Authority: 5 U.S.C. 301; 87 Stat. 466, 467, 468.
Source: 39 FR 1835, Jan. 15, 1974, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 87.1 Definitions.
As used in this part 87, terms shall have the meanings set forth in
this section.
(a) Act means the Act of October 19, 1973 (Pub. L. 93-134; 87 Stat.
466, 467, 468).
(b) Secretary means the Secretary of the Interior or his authorized
representative.
(c) Commissioner means the Commissioner of Indian Affairs or his
authorized representative.
(d) Area Director means the Area Director or his equivalent of any
one of the Area Offices of the Bureau of Indian Affairs or his
authorized representative.
(e) Superintendent means the Superintendent or Officer in Charge of
any one of the Agency Offices or other local offices of the Bureau of
Indian Affairs or his authorized representative.
(f) Congressional Committees means the Committees on Interior and
Insular Affairs of the Senate and House of Representatives of the United
States.
(g) Indian tribe or group means any Indian tribe, nation, band,
pueblo, community or identifiable group of Indians, or Alaska Native
entity.
(h) Tribal governing body means, as recognized by the Secretary, the
governing body of a formally organized or recognized tribe or group;
the governing body of any informally organized tribe or group, the
governing body of a formally organized Alaska Native entity or
recognized tribe in Oklahoma, and for the purposes of the Act the
recognized spokesmen or representatives of any descendant group.
(i) Plan means the document submitted by the Secretary, together with
all pertinent records, for the use or distribution of judgment funds, to
the Congressional Committees.
(j) Enrollment means that aspect of a plan which pertains to making
or bringing current a roll of members of an organized, reservation-based
tribe with membership criteria approved or accepted by the Secretary, a
roll of members of an organized or recognized entity in Oklahoma, or
Alaska or elsewhere, or a roll prepared for the purpose of making per
capita payments for judgments awarded by the Indian Claims Commission or
United States Court of Claims; or which pertains to using an historical
roll or records of names, including tribal rolls closed and made final,
for research or other purposes.
(k) Program means that aspect of a plan which pertains to using part
or all of the judgment funds for tribal social and economic development
projects.
(l) Per capita payment means that aspect of a plan which pertains to
the individualization of the judgment funds in the form of shares to
tribal members or to individual descendants.
(m) Use or distribution means any utilization or disposition of the
judgment funds, including programing, per capita payments, or a
combination thereof.
(n) Individual beneficiary means a tribal member or any individual
descendant, found by the Secretary to be eligible to participate in a
plan, who was born on or prior to, and is living on, the approval date
of the plan.
(o) Approval date means the date that a plan is approved by the
Congress. Except for a plan disapproved by either House, the approval
date of a plan shall be the sixtieth (60) day after formal submittal of
a plan by the Secretary to the Congressional Committees, excluding days
on which either the House of Representatives or the Senate is not in
session because of an adjournment of more than three (3) calendar days
to a day certain. In the event a proposed plan is disapproved by either
House, or in the event the Secretary is unable to submit a plan and
therefore proposes legislation, the approval date shall be the date of
the enabling legislation for the disposition of the judgment funds.
(p) Minor is an individual beneficiary who is eligible to participate
in a per capita payment and who has not reached the age of eighteen (18)
years.
(q) Legal incompetent is an individual beneficiary eligible to
participate in a per capita payment and who has been declared to be
under a legal disability, other than being a minor, by a court of
competent jurisdiction, including tribal courts.
(r) Attorney fees and litigation expenses means all fees and expenses
incurred in litigating and processing tribal claims before the Indian
Claims Commission or the United States Court of Claims.
25 CFR 87.2 Purpose.
The regulations in this part govern the preparation of proposed plans
for the use or distribution, pursuant to the Act, of all judgment funds
awarded from the date of the Act to Indian tribes and groups by the
Indian Claims Commission or the United States Court of Claims, excepting
any tribe or group whose trust relationship with the Federal Government
has been terminated and for which there exists legislation authorizing
the disposition of its judgment funds; and of all funds deriving from
judgments entered prior to the date of the Act for which there has been
no enabling legislation.
25 CFR 87.3 Time limits.
(a) The Secretary shall cause to begin as early as possible the
necessary research to determine the identity of the ultimate or present
day beneficiaries of judgments. Such research shall be done under the
direction of the Commissioner of Indian Affairs. The affected tribes or
groups shall be encouraged to submit pertinent data. All pertinent
data, including cultural, political and historical material, and
records, including membership, census and other rolls shall be
considered. If more than one entity is determined to be eligible to
participate in the use or distribution of the funds, the results of the
research shall include a proposed formula for the division or
apportionment of the judgment funds among or between the involved
entities.
(b) The results of all research shall be provided to the governing
bodies of all affected tribes and groups. The Area Director shall
assist the affected tribe or group in arranging for preliminary sessions
or meetings of the tribal governing body, or public meetings. The Area
Director shall make a presentation of the results of the research and
shall arrange for expertise of the Bureau of Indian Affairs to be
available at these meetings to assist the tribe or group in developing a
use or distribution proposal, bearing in mind that under the Act not
less than twenty (20) per centum of the judgment funds, including
investment income thereon, is to be used for tribal programs unless the
Secretary determines that the particular circumstances of the affected
Indian tribe clearly warrant otherwise.
25 CFR 87.4 Conduct of hearings of record.
(a) As soon as appropriate after the tribal meetings have been held
and the Commissioner has reviewed the tribal proposal(s), the Area
Director, or such other official of the Department of the Interior as he
shall designate to act for him, shall hold a hearing of record to
receive testimony on the tribal proposal(s).
(b) The hearing shall be held after appropriate public notice
beginning at least twenty (20) days prior to the date of such hearing,
and after consultation with the governing body of the tribe or group
regarding the date and location of the hearing, to obtain the testimony
of members of the governing body and other representatives, spokesmen or
members of the tribe or group on the proposal(s).
(c) All testimony at the hearing shall be transcribed and a
transcript thereof shall be furnished to the Commissioner and the tribal
governing body immediately subsequent to the hearing. Particular care
shall be taken to insure that minority views are given full opportunity
for expression either during the hearing or in the form of written
communications by the date of the hearing.
(d) Whenever two or more tribes or groups are involved in the use or
distribution of the judgment funds, including situations in which two or
more Area Offices are concerned, every effort shall be made by the Area
Director or Directors to arrange for a single hearing to be conducted at
a time and location as convenient to the involved tribes and groups as
possible. Should the tribes and groups not reach agreement on such time
or place, or on the number of entities to be represented at the hearing,
the Commissioner, after considering the views of the affected tribes and
groups, shall within twenty (20) days of receipt of such advice by the
Area Director, designate a location and date for such hearing and invite
the participation of all entities he considers to be involved and the
Commissioner's decision shall be final.
25 CFR 87.5 Submittal of proposed plan by Secretary.
Subsequent to the hearing of record, the Commissioner shall prepare
all pertinent materials for the review of the Secretary. Pertinent
materials shall include:
(a) The tribal use or distribution proposal or any alternate
proposals;
(b) A copy of the transcript of the hearing of record;
(c) A statement on the hearing of record and other evidence
reflecting the extent to which such proposal(s) meets the desires of the
affected tribe or group, including minorities views;
(d) Copies of all pertinent resolutions and other communications or
documents received from the affected tribe or group, including
minorities;
(e) A copy of the tribal constitution and bylaws, or other
organizational document, if any; a copy of the tribal enrollment
ordinance, if any; and a statement as to the availability or status of
the membership roll of the affected tribe or group;
(f) A statement reflecting the nature and results of the investment
of the judgment funds as of thirty (30) days of the submittal of the
proposed plan, including a statement concerning attorney fees and
litigation expenses;
(g) A statement justifying any compromise proposal developed by the
Commissioner in the event of the absence of agreement among any and all
entities on the division or apportionment of the funds, should two or
more entities be involved;
(h) And a statement regarding the feasibility of the proposed plan,
including a timetable prepared in cooperation with the tribal governing
body, for the implementation of programing and roll preparation.
Within one hundred and eighty (180) days of the appropriation of the
judgment funds the Secretary shall submit a proposed plan, together with
the pertinent materials described above, simultaneously to each of the
Chairmen of the Congressional Committees, at the same time sending
copies of the proposed plan and materials to the governing body of the
affected tribe or group. The one hundred and eighty (180) day period
shall begin on the date of the Act with respect to all judgments for
which funds have been appropriated and for which enabling legislation
has not been enacted.
25 CFR 87.6 Extension of period for submitting plans.
An extension of the one hundred and eighty (180) day period, not to
exceed ninety (90) days, may be requested by the Secretary or by the
governing body of any affected tribe or group submitting such request to
both Congressional Committees through the Secretary, and any such
request shall be subject to the approval of both Congressional
Committees.
25 CFR 87.7 Submittal of proposed legislation by Secretary.
(a) Within thirty (30) calendar days after the date of a resolution
by either House disapproving a plan, the Secretary shall simultaneously
submit proposed legislation authorizing the use or distribution of the
funds, together with a report thereon, to the Chairmen of both
Congressional Committees, at the same time sending copies of the
proposed legislation to the governing body of the affected tribe or
group. Such proposed legislation shall be developed on the basis of
further consultation with the affected tribe or group.
(b) In any instance in which the Secretary determines that
circumstances are not conducive to the preparation and submission of a
plan, he shall, after appropriate consultation with the affected tribe
or group, submit proposed legislation within the 180-day period to both
Congressional Committee simultaneously.
25 CFR 87.8 Enrollment aspects of plans.
An approved plan that includes provisions for enrollment requiring
formal adoption of enrollment rules and regulations shall be implemented
through the publication of such rules and regulations in the Federal
Register. Persons not members of organized or recognized tribes and who
are not citizens of the United States shall not, unless otherwise
provided by Congress, be eligible to participate in the use or
distribution of judgment funds, excepting heirs or legatees of deceased
individual beneficiaries.
25 CFR 87.9 Programing aspects of plans.
In assessing any tribal programing proposal the Secretary shall
consider all pertinent factors, including the following: the percentage
of tribal members residing on or near the subject reservation, including
former reservation areas in Oklahoma, or Alaska Native villages; the
formal educational level and the general level of social and economic
adjustment of such reservation residents; the nature of recent
programing affecting the subject tribe or group and particularly the
reservation residents; the needs and aspirations of any local Indian
communities or districts within the reservation and the nature of
organization of such local entities; the feasibility of the
participation of tribal members not in residence on the reservation;
the availability of funds for programing purposes derived from sources
other than the subject judgment; and all other pertinent social and
economic data developed to support any proposed program.
25 CFR 87.10 Per capita payment aspects of plans and protection of
funds accruing to minors, legal incompetents and deceased beneficiaries.
(a) The per capita shares of living competent adults shall be paid
directly to them. The shares of minors, legal incompetents and deceased
individual beneficiaries, enhanced by investment earnings, shall be held
in individual Indian money (IIM) accounts unless otherwise provided as
set out in this section. While held in IIM accounts, said shares shall
be invested pursuant to 25 U.S.C. 162a and shall be the property of the
minors or legal incompetents or the estates of the deceased individual
beneficiaries to whom the per capita payments were made.
(b)(1) Unless otherwise provided in paragraph (b)(2) of this section,
minors' per capita shares, until the minors attain the age of 18 years,
shall be retained in individually segregated IIM accounts and handled as
provided in 115.4 of this chapter. Should it be determined that the
funds are to be invested pursuant to a trust, minors who will have
reached the age of 18 years within six months after the establishment of
the trust shall have their funds retained at interest in IIM accounts
and paid to them upon attaining their majority.
(2) A private trust for the minors' per capita shares may be
established subject to the approval of the tribal governing body and the
Secretary on the following conditions:
(i) The tribal governing body specifically requests the establishment
of such trust, and the trust provides for segregated amounts to each
individual minor, based on his per capita share, and
(ii) The trust agreement specifically provides that the investment
policy to be followed is that of preserving the trust corpus and of
obtaining the highest interest rates current money markets can safely
provide. The trust agreement must further provide that maturity dates
of investments cannot exceed the period of the trust and that only the
following types of investment shall be made: United States Treasury
obligations; Federal agency obligations; repurchase/resell agreements;
United States Treasury bills; Bankers' acceptance, provided the assets
of the issuing bank exceed $1 billion or the issuing bank pledges full
collateral; Certificates of deposit, provided the assets of the issuing
bank exceed $1 billion or the issuing bank pledges full collateral;
Commercial paper, provided it is rated prime-2 by Moody or A-2 by
Standard and Poor or is obligation of a company with outstanding
unsecured debt rated Aa by Standard and Poor.
(c) The per capita shares of legal incompetents shall be held in IIM
accounts and administered pursuant to the provisions of 115.5 of this
chapter.
(d) The shares of deceased individual beneficiaries, plus all
interest and investment income accruing thereto, shall be paid to their
heirs and legatees upon their determination as provided in 43 CFR part
4, subpart D.
(e) All per capita shares, including all interest and investment
income accruing thereto, while they are held in trust under the
provisions of this section, shall be exempt from Federal and State
income taxes and shall not be considered as income or resources when
determining the extent of eligibility for assistance under the Social
Security Act, as amended.
(f) All per capita shares or portions thereof, including all interest
and investment income accruing thereto, which are not paid out but which
remain unclaimed with the Federal Government shall be maintained
separately and be enhanced by investment, and shall, unless otherwise
provided in an effective plan or in enabling legislation, be subject to
the provisions of the Act of September 22, 1961, 75 Stat. 584. No per
capita share or portion thereof shall be transferred to the U.S.
Treasury as ''Monies Belonging to Individuals Whose Whereabouts are
Unknown.''
(41 FR 48735, Nov. 5, 1976. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 87.11 Investment of judgment funds.
As soon as possible after the appropriation of judgment funds and
pending approval of a plan or the enactment of legislation authorizing
the use or distribution of the funds, the Commissioner shall invest such
funds pursuant to 25 U.S.C. 162a. Investments of judgment funds and of
investment income therefrom will continue to be made by the Commissioner
after the approval of a plan or enactment of use or distribution
legislation to the extent funds remain available for investment under
such plan or legislation, and provided that thereafter investments of
judgment funds made available for tribal use are not undertaken by the
tribe pursuant to authorizing law. Invested judgment funds, including
investment income therefrom, shall be withdrawn from investment only as
currently needed under approved plans or legislation authorizing the use
or distribution of such funds.
25 CFR 87.12 Insuring the proper performance of approved plans.
A timetable prepared in cooperation with the tribal governing body
shall be included in the plan submitted by the Secretary for the
implementation of all programing and enrollment aspects of a plan. At
any time within one calendar year after the approval date of a plan, the
Area Director shall report to the Commissioner on the status of the
implementation of the plan, including all enrollment and programing
aspects, and thenceforth shall report to the Commissioner on an annual
basis regarding any remaining or unfulfilled aspects of a plan. The
Area Director shall include in his first and all subsequent annual
reports a statement regarding the maintenance of the timetable, a full
accounting of any per capita distribution, and the expenditure of all
programing funds. The Commissioner shall report the deficient
performance of any aspect of a plan to the Secretary, together with the
corrective measures he has taken or intends to take.
25 CFR 87.12 PART 88 -- RECOGNITION OF ATTORNEYS AND AGENTS TO
REPRESENT CLAIMANTS
Sec.
88.1 Employment of attorneys.
88.2 Employment by tribes or individual claimants.
Authority: 5 U.S.C. 301.
Cross References: For law and order regulations on Indian
reservations, see part 11 of this chapter. For probate procedure, see
part 15 of this chapter. For regulations governing the admission of
attorneys to practice before the Department of the Interior and the
offices and bureaus thereof, see 43 CFR part 1. For regulations
governing the execution of attorney contracts with Indians, see part 89
of this subchapter.
25 CFR 88.1 Employment of attorneys.
(a) Indian tribes organized pursuant to the Indian Reorganization Act
of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, may
employ legal counsel. The choice of counsel and the fixing of fees are
subject under 25 U.S.C. 476 to the approval of the Secretary of the
Interior or his authorized representative.
(b) Attorneys may be employed by Indian tribes not organized under
the Act of June 18, 1934, under contracts subject to approval under 25
U.S.C. 81 and the Reorganization Plan No. 3 of 1950, 5 U.S.C. 481,
note, by the Secretary of the Interior or his authorized representative.
(c) Any action of the authorized representative of the Secretary of
the Interior which approves, disapproves or conditionally approves a
contract pursuant to paragraph (a) or (b) of this section shall be
final.
(d) Practice of such attorneys before the Bureau of Indian Affairs
and the Department of the Interior is subject to the requirements of 43
CFR 1.1 through 1.7.
(27 FR 11548, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 88.2 Employment by tribes or individual claimants.
All such attorneys or agents seeking approval of their employment by
Indian tribes or desiring to represent individual claimants before the
Indian Bureau shall be required to comply fully with the regulations of
the Department promulgated September 27, 1917, governing admission to
practice, and to take the oath of allegiance and to support the
Constitution of the United States, as required by section 3478 of the
United States Revised Statutes (31 U.S.C. 204).
(22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 88.2 PART 89 -- ATTORNEY CONTRACTS WITH INDIAN TRIBES
Sec.
89.1 Contracts with organized tribes.
89.2 Admission to practice.
89.3 Tentative form of contract.
89.4 Report of Superintendent.
89.5 Fees and expenses.
89.6 Funds in Federal Treasury.
89.7 Statutes governing.
89.8 Selection of counsel.
89.9 Record of council proceedings.
89.10 Resolution required.
89.11 Authentication of resolution.
89.12 Negotiation by tribal business committee.
89.13 Limitation of authority.
89.14 Employment by tribal business committees.
89.15 Vote by secret ballot.
89.16 Notice from the tribe.
89.17 Notice from attorneys.
89.18 Tentative form of contract.
89.19 Execution in quintuplicate.
89.20 Report of superintendent.
89.21 Copies of approved contracts.
89.22 Qualifications of attorneys.
89.24 Fees and expenses.
89.25 Invalid contracts.
89.26 Governing bodies without express authority to contract.
89.30 Contents and approval of contracts.
89.31 Negotiation of contract.
89.32 Notice from the principal officer.
89.33 Notice from attorney.
89.34 Tentative form of contract.
89.35 Execution in quintuplet.
89.40 General policy.
89.41 Exceptions to policy.
89.42 Factors to be considered.
89.43 Procedures.
Authority: 5 U.S.C. 301; secs. 89.1 to 89.6 also issued under 25
U.S.C. 476; secs. 89.7 to 89.29 also issued under 25 U.S.C. 81; secs.
89.30 to 89.35 also issued under 25 U.S.C. 2, 9 and 82(a); secs. 89.40
to 89.43 also issued under 25 U.S.C. 13, 450 et. seq.
Cross Reference: For recognition of attorneys and agents to
represent claimants, see part 88 of this subchapter.
25 CFR 88.2 Tribes Organized Under The Indian Reorganization Act
25 CFR 89.1 Contracts with organized tribes.
(a) Negotiation and execution of tribal attorney contracts with
Indian tribes organized pursuant to the Indian Reorganization Act of
June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479), as amended, shall be
in accordance with the provisions of the approved constitution or
charter of the respective tribes.
(b) The Secretary of the Interior or his authorized representative is
authorized to approve pursuant to 25 U.S.C. 476 the selection of counsel
and the amount of fees and expenses to be paid under any such contract.
(27 FR 11548, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.2 Admission to practice.
Attorneys employed by tribes organized under the Indian
Reorganization Act, shall be required to be admitted to practice before
the Interior Department and the bureaus thereof, under the provisions of
the act of July 4, 1884 (23 Stat. 101; 5 U.S.C. 493).
(22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
Cross Reference: For rules and regulations governing admission to
practice before the Interior Department and the bureaus thereof, see 43
CFR part 1.
25 CFR 89.3 Tentative form of contract.
A tribal council or representative body having authority to employ
legal counsel in behalf of an organized tribe, may, if it desires,
obtain a tentative form of contract by written request directed to the
office of any area director or agency superintendent, or to the
Commissioner of Indian Affairs. Requests for forms should include a
statement of the scope of the intended employment; that is, whether an
attorney is desired for investigation and prosecution of tribal claims
against the United States, or as a general legal counsel in connection
with the ordinary business of the tribe, or specific problems on which
legal advice is desired, or specific matters requiring representation in
court or before committees of Congress and the departments of the
Government. The period for which an attorney is desired should be
stated.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.4 Report of Superintendent.
Contracts executed by organized tribes should be transmitted to the
Area Director by the Superintendent, with a report based upon references
and independent inquiry concerning the qualifications of the attorney
and his ability to perform the services required by the contract, and
including the superintendent's recommendation with reference to approval
of the contract.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.5 Fees and expenses.
Funds held in the treasury of an organized tribe may be used by the
tribe for payment of fees and expenses of an attorney. A contract
providing for payment of fees and/or expenses should be accompanied by
an appropriation act passed by the governing body of the tribe in
accordance with the requirements of the tribal constitution or charter,
appropriating sufficient tribal funds for payment of fees and/or
expenses as provided by the contract. The amount of tribal funds held
in the tribal treasury, not otherwise appropriated and available for
payment of fees and expenses, should be stated.
(22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.6 Funds in Federal Treasury.
Under rulings of the Comptroller General and section 27 of the act of
May 18, 1916 (39 Stat. 158; 25 U.S.C. 123), tribal funds held in the
United States Treasury may not be used for payment of attorney fees and
expenses in the absence of express authorization by Congress.
(22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.6 Tribes Not Organized Under The Indian Reorganization Act
25 CFR 89.7 Statutes governing.
The negotiation and execution of tribal attorney contracts with
tribes not organized under the Indian Reorganization Act must be in
strict accordance with the requirements of section 2103 of the Revised
Statutes of the United States (25 U.S.C. 81).
(22 FR 10538, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.8 Selection of counsel.
Except as stated in 89.12 through 89.15 and 89.26, a tribal
attorney or technical specialist and tribal delegates to execute a
contract shall be selected by a general council or meeting of the tribe,
to be called by the superintendent of the particular reservation.
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.9 Record of council proceedings.
A report should be made of the proceedings of the council, certified
to by the Superintendent or his representative as correct, and a copy
thereof should be sent to the Area Director with the contract.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.10 Resolution required.
The selection of counsel and of tribal delegates to execute a
contract in behalf of the tribe shall be set forth in a resolution or
resolutions which shall be attached to and made a part of the contract.
(22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.11 Authentication of resolution.
The resolution shall be signed by the presiding officer of the
general council, attested by the secretary of the general council, and
certified by the superintendent.
(22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.12 Negotiation by tribal business committee.
A tribal business committee, advisory board, or other similar
representative body having standing authority to act for and in behalf
of the tribe in matters of importance, may, when it finds that there is
a substantial need and demand for retention of tribal counsel, negotiate
with an attorney or attorneys.
(22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.13 Limitation of authority.
The tribal business committee or other representative body, when
proceeding under 89.12 should carefully investigate, with the
assistance of the superintendent if desired, the qualifications of
available attorneys, bearing in mind the purpose for which counsel is
desired and except as provided in 89.14 shall carry on its negotiations
with attorneys subject to the distinct understanding that final action
on the selection and employment of counsel shall be had in a general
council or meeting of the tribe or as otherwise provided under 89.15,
subject to approval by the Secretary of the Interior or his authorized
representative as required by law.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.14 Employment by tribal business committees.
In case the tribal business committee or board has specific authority
from the tribe to employ tribal attorneys and to execute a contract for
that purpose, the tribal business committee or board may negotiate with
attorneys and enter into a contract subject to approval of the Secretary
of the Interior or his authorized representative as provided by law.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.15 Vote by secret ballot.
Those tribes accustomed to act on important tribal matters by secret
ballot or by vote in district meetings, or in some other manner, may
apply through their proper officers to the Area Director for permission
to consider and act upon employment of tribal counsel in the manner
preferred by the tribe rather than by a general council or meeting.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.16 Notice from the tribe.
Notice of intention to negotiate with attorneys should be sent to the
superintendent by the proper tribal officers, accompanied by a full
statement concerning the need for retaining counsel, showing in detail
the purposes for which an attorney is needed, the scope of his intended
employment, and a reference to the tribal funds, if any, which the tribe
believes should be made available for payment of counsel fees and
expenses. The notice and statement should be transmitted to the Area
Director by the Superintendent with the latter's report and
recommendations.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.17 Notice from attorneys.
Attorneys desiring to execute contracts with Indian tribes shall be
required to give written notice directed through the superintendent to
the Area Director in advance of all negotiations.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.18 Tentative form of contract.
A tentative form of contract may be obtained from any agency office,
area office, or the Commissioner of Indian Affairs. When the attorney
or tribe proposing to execute a contract desires to make substantial
changes in the tentative form, the proposed changes should be submitted
through the superintendent to the Area Director for approval as to form
prior to execution of a contract.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.19 Execution in quintuplicate.
The contract should be executed in quintuplicate, and all copies
should be transmitted by the superintendent to the Area Director.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.20 Report of superintendent.
The superintendent should submit a report when transmitting the
contract, setting forth the qualifications and general reputation of the
attorney selected, based upon references and independent inquiry by the
superintendent, and the superintendent's recommendation concerning
approval of the contract.
(22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.21 Copies of approved contracts.
The original of all approved contracts will be retained by the Area
Director with a copy to the tribal governing body, attorney,
Superintendent and Commissioner. The Commissioner's copy should be
completely supported by copies of the recommendation of the
Superintendent or Officer in Charge, Regional Solicitor's or Field
Solicitor's opinions, and any other pertinent data which will permit the
records of the Commissioner's office to reflect the full current status
of approved attorney contracts in each instance.
(27 FR 11549, Nov. 24, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.22 Qualifications of attorneys.
The person selected as attorney should be a reputable member of the
bar, and fully competent to carry the case through the Court of Claims,
and to the Supreme Court of the United States, if necessary.
(22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.24 Fees and expenses.
Under rulings of the Comptroller General and section 27 of the act of
May 18, 1916 (39 Stat. 158; 25 U.S.C. 123), tribal funds held in the
United States Treasury may not be used for payment of attorney fees and
expenses, in the absence of express authorization by Congress. Unless
congressional authority has been obtained for the use of tribal funds,
the payment of attorney fees and expenses shall be contingent upon a
recovery by the Indians in the matters or claims covered in the
contract. In case congressional authority has been obtained for the use
of tribal funds for attorney fees and expenses, the provisions of the
contract concerning the payment of such fees and expenses should
strictly conform to the provisions of the act authorizing the use of the
funds.
(22 FR 10539, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.25 Invalid contracts.
The following is especially pointed out. 25 U.S.C. 81 provides
further that all contracts made in violation of that section shall be
null and void. Under 25 U.S.C. 84 and Reorganization plan No. 3 of
1950, 5 U.S.C. 481 note, no assignment of any such contract shall be
valid without the consent of the Secretary of the Interior or his
authorized representative. 25 U.S.C. 85 declares that no contract with
any individual Indian relating to tribal property shall have any
validity unless the consent of the United States has previously been
given thereto.
(25 FR 1689, Feb. 26, 1960. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.26 Governing bodies without express authority to contract.
In the following cases, the entity or spokesman officially recognized
as having authority to act for a tribe may both negotiate and conclude
contracts for the services of legal counsel pursuant to applicable
provisions of this part:
(a) In the absence of tribal governing documents, or
(b) When such documents do not expressly authorize the governing body
of a tribe to conclude such contracts and do not provide for calling a
tribal meeting to authorize concluding such contracts pursuant to 89.8,
and convening a tribal general council is not deemed feasible.
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.26 Five Civilized Tribes
25 CFR 89.30 Contents and approval of contracts.
All contracts for the services of legal counsel or technical
specialists negotiated and executed with the Choctaw, Chickasaw,
Cherokee, Creek, or Seminole Tribes or Nations, also known as the Five
Civilized Tribes, shall be in strict compliance with the requirements of
section 2103 of the Revised Statutes of the United States (25 U.S.C.
81).
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.31 Negotiation of contract.
That person or governing entity recognized as having authority to act
for and in behalf of any one of the Five Civilized Tribes in matters of
importance may, when it is found there is a substantial need and demand
therefor, negotiate and contract for services of a tribal counsel or
counsels and technical specialist or specialists, subject to the
approval of the Secretary of the Interior or his authorized
representative.
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.32 Notice from the principal officer.
Notice of intention to negotiate with attorneys or with technical
specialists shall be sent by the principal tribal officer to the
Superintendent. Such notice shall be accompanied by a full statement
concerning the need for retaining counsel or specialists, as the case
may be, the purpose for which such assistance is needed and the scope of
the intended employment. The notice and statement shall be transmitted
to the Area Director by the Superintendent together with the latter's
report and recommendations with respect to the approval of such
contract.
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.33 Notice from attorney.
Attorneys desiring to execute contracts with any one of the Five
Civilized Tribes shall be required to give written notice to the Area
Director through the Superintendent having jurisdiction over said tribe.
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.34 Tentative form of contract.
The principal officer of any one of the Choctaw, Cherokee, Creek,
Seminole, and Chickasaw Tribes may, if he desires, obtain a tentative
form of contract by written application to the office of the appropriate
Agency Superintendent. Requests for forms for an attorney contract
should include a statement reciting whether the attorney is desired as a
general legal counsel in connection with the business of the tribe or as
counsel in respect to specific problems on which legal counsel is
desired, or specific matters requiring representation in court or before
committees of Congress and the Departments of Government. Requests for
forms for technical service contracts should include a statement of the
particular type of service required and the purpose for which it is
needed. The anticipated term of each proposed contract should be
stated.
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.35 Execution in quintuplet.
The contract should be executed in quintuplet, and all copies of it
shall be transmitted by the Superintendent to the Area Director.
(37 FR 10440, May 23, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 89.35 Payment of Tribal Attorney Fees With Appropriated Funds
Source: 48 FR 3969, Jan. 28, 1983, unless otherwise noted.
25 CFR 89.40 General policy.
In ordinary circumstances, legal services with respect to trust
resources are provided for Indian tribe(s): (a) By private counsel
employed by tribes when such tribe is financially able and elects to do
so, or (b) by the United States as trustee through the Office of the
Solicitor and/or the Department of Justice. It is the policy of the
Department of the Interior not to use federally appropriated funds to
pay for private counsel to represent Indian tribes. Exceptions to that
policy are listed in 89.41 of this part.
25 CFR 89.41 Exceptions to policy.
The Assistant Secretary -- Indian Affairs upon concurrence of the
Solicitor and receipt of a recommendation as provided by 89.43 may, in
his/her discretion, authorize the direct or indirect expenditure of
appropriated funds to pay reasonable attorney's fees in order to permit
an Indian tribe to secure private legal representation in the following
circumstances:
(a) When a tribe determines it necessary to bring a court action or
to defend itself to protect its trust resources, rights claimed under a
treaty, agreement, executive order, or statute, or its governmental
powers and the Attorney General refuses assistance or advises that
assistance is not otherwise available (Comptroller General's Opinion
B-114868, December 6, 1976).
(b) When a tribe determines it necessary to institute or to defend
itself in an administrative proceeding to protect its trust resources,
rights claimed under a treaty, agreement, executive order, or statute,
or to protect its governmental powers and the Solicitor is unable to
provide representation due to a conflict of interest or other reasons.
(c) When a tribe determines legal assistance necessary, other than
for litigation, pursuant to a contract executed under Pub. L. 93-638
and the Solicitor has determined that the services of his office are not
available.
(d) When a tribe determines it critical, and the Assistant Secretary
-- Indian Affairs finds the concerns of the tribe to have merit after
consultation with and the advice of the Solicitor, to intervene, in a
lawsuit being handled by the Justice Department or in an administrative
proceeding being handled by the Solicitor because the responsible
Government Attorney refuses either to exclude or to include some facet
of the suit or proceedings which the tribe claims renders such legal
representation completely inadequate to protect or in contravention of
the rights and interests of the tribe. Prior to consulting with and
advising the Assistant Secretary -- Indian Affairs, in a lawsuit being
handled by the Justice Department, the Solicitor shall seek the comments
and advice of the Attorney General.
(e) When a tribe determines, and the Assistant Secretary -- Indian
Affairs, after consultation with the Solicitor concurs, that a
substantial possibility of a negotiated settlement or agreement exists.
(f) Payment of fees will not be allowed if such payment was not
authorized before services were performed.
(g) This rule applies to expenditure of appropriated Federal funds
and not a tribe's own funds on deposit in the U.S. Treasury.
25 CFR 89.42 Factors to be considered.
The following factors are to be considered in determining whether
funds should be paid to provide private legal representation for a
tribe.
(a) The merits of the legal position which the tribe asserts.
Greater weight will be given to those cases where the tribe's legal
argument is deemed particularly meritorious than to those cases where
the tribe's position, although not entirely without merit, may be
relatively weak;
(b) The ability of the tribe to pay all or a part of its legal
expenses out of its own funds. A review of the tribe's financial
resources under this subsection will include an examination of the
tribe's total expenditures to determine whether its expenditures for
other purposes comport with the asserted importance of the case for
which it seeks funds;
(c) Whether the question the tribe seeks to litigate is being
litigated in another case by another tribe;
(d) Whether, as a matter of strategy, the issues the tribe seeks to
litigate could be more satisfactorily resolved in another forum, in a
different factual context, or a different time; and
(e) Whether the issue should be litigated at all in preference to a
legislative or other solution.
25 CFR 89.43 Procedures.
The information collection requirements contained in this section do
not require approval by the Office of Management and Budget under 44
U.S.C. 3051 et seq., because it is anticipated there will be fewer than
10 respondents annually.
(a) A tribe or other organization seeking funds under 89.41 shall
submit a written request through the Agency Superintendent and the Area
Director, including
(1) A detailed statement describing the nature and scope of the
problems for which legal services are sought;
(2) A statement of the terms, including total anticipated costs, of
the requested legal services contract;
(3) A current financial statement and a statement that the tribe does
not possess sufficient tribal funds or assets to pay for all or a part
of the legal services sought; and
(4) A statement of why the matter must be handled by a private
attorney as opposed to Department of Justice or Department of Interior
attorneys.
All requests shall be considered by a committee consisting of the
Deputy Assistant Secretary -- Indian Affairs (Policy), or his delegate,
the Director of the Office of Trust Responsibilities in BIA or his
delegate, and the Associate Solicitor -- Indian Affairs or his delegate.
(b) If two of the three committee members recommend approval of a
tribe's request, the request, along with the committee's recommendation,
shall be submitted to the Assistant Secretary for final determination
after consultation with and the advice of the Solicitor. The
committee's recommendation shall indicate the amount of funds
recommended to assist the tribe, the hourly rate allowed, the maximum
amount permitted to be expended in the recommended action and the tribal
contributions, if any. The Assistant Secretary shall approve the
request only with the concurrence of the Solicitor.
(c) The requirements imposed by this policy are supplementary to
those contained in all existing regulations dealing with attorney
contracts with Indian tribes and, in particular, those contained in
parts 88 and 89 of this title.
25 CFR 89.43 PART 90 -- ELECTION OF OFFICERS OF THE OSAGE TRIBE
Sec.
90.1 Definitions.
90.2 Statutory provisions.
90.21 General.
90.30 Nominating conventions and petitions.
90.31 Applicability.
90.32 Election Board.
90.33 Watchers and challengers.
90.35 List of voters.
90.36 Disputes on eligibility of voters.
90.37 Election notices.
90.38 Opening and closing of poll.
90.39 Voters to announce name and residence.
90.40 Ballots.
90.41 Absentee voting.
90.42 Absentee ballots.
90.43 Canvass of election returns.
90.44 Statement of supervisor.
90.45 Electioneering.
90.46 Notification of election of tribal officers.
90.47 Contesting elections.
90.48 Notice of contest.
90.49 Expenses of elections.
Authority: Sec. 9, 34 Stat. 539; sec. 7, 45 Stat. 1478; 71 Stat.
471, unless otherwise noted.
Source: 23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958,
unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 89.43 General
25 CFR 90.1 Definitions.
As used in this part:
(a) The term supervisor means the tribal election official chosen and
appointed by the Principal Chief or Assistant Principal Chief to act as
chairman of the election board and shall in the absence of the
supervisor denote the Assistant Supervisor.
25 CFR 90.2 Statutory provisions.
Section 7 of the act of March 2, 1929 (45 Stat. 1481) provides in
part as follows:
That there shall be a quadrennial election of officers of the Osage
Tribe as follows: A principal chief, an assistant principal chief, and
eight members of the Osage tribal council, to succeed the officers
elected in the year 1928, said officers to be elected at a general
election to be held in the town of Pawhuska, Oklahoma, on the first
Monday in June 1930 and on the first Monday in June each four years
thereafter, in the manner to be prescribed by the Commissioner of Indian
Affairs, and said officers shall be elected for a period of four years
commencing on the 1st day of July following said elections. * * *
25 CFR 90.2 Eligibility
25 CFR 90.21 General.
Only members of the Osage Tribe who will be eighteen years of age or
over on election day and whose names appear on the quarterly annuity
roll at the Osage Agency as of the last quarterly payment immediately
preceding the date of election will be entitled to hold office or vote
for any tribal officers. Each such voter shall be entitled to cast one
ballot and each ballot shall have exactly the same value as the voter's
headright interest shown on the last quarterly annuity roll. Any
fraction of a headright, however, shall be valued as to the first two
decimals only unless such interest is less than one-hundredth of a
share, then it shall have its full value.
(45 Stat. 1481)
(43 FR 8798, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.21 Elections
25 CFR 90.30 Nominating conventions and petitions.
Conventions shall be held on or before the first Monday in April of
the year in which a quadrennial election is held, and there shall be
written reports of such conventions, duly certified by the secretary or
presiding officer showing total number of qualified voters in
attendance, together with the names of candidates nominated for the
various offices: Provided, That at least 25 qualified voters shall have
been in attendance at any such convention; also, names of any
independent candidates nominated by petition of not less than 25
qualified voters, each signature to be witnessed by two persons, shall
be filed with the supervisor not later than 5 p.m. on the first Monday
in April of the year in which a quadrennial election is held in order
that such names may be placed on the official ballot. No person shall
be considered a candidate for tribal office unless and until the
requirements of this section have been met.
(32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.31 Applicability.
The manner of carrying out elections to be held under the act of June
28, 1906 (34 Stat. 539), as amended by the act of March 2, 1929 (45
Stat. 1478), as amended by the act of August 28, 1957 (71 Stat. 471),
is covered in the regulations set forth in this part. The next election
will be held on the first Monday in June 1958 and subsequent elections
will be held on the first Monday in June each four years thereafter.
25 CFR 90.32 Election Board.
The Principal Chief, or in his absence, the Assistant Principal Chief
shall, not more than seventy-five days nor less than sixty-five days
preceding the day appointed by law for the holding of an election of
officers of the Osage Tribe, issue in the form and manner prescribed in
90.37, an election notice and appoint an election board consisting of a
Supervisor who shall be chairman, Assistant Supervisor, five judges, one
of whom in addition to his regular duties shall act as interpreter, and
five clerks, whose duties shall be to conduct the election as provided
in the regulations in this part:
Provided further, That the Superintendent on the recommendation of
the election board may designate extra clerical assistants. Prior to
the date of the election, the election board shall assemble and make
necessary arrangements for the election in a building to be designated
by the Superintendent of the Osage Agency as the polling site and make
the necessary preparation for receiving prospective voters, for
receiving absentee ballots, and see to it that voting booths are
arranged to afford privacy. Members of the election board and any extra
clerical assistants designated by the Superintendent under authority
contained in this section, other than employees of the Osage Agency when
duly appointed or designated as provided for in this part may be
compensated for conducting each quadrennial election at rates to be
fixed by the Osage Tribal Council. If a member of the election board
desires to be relieved from duty for any cause, he shall notify the
Principal Chief or in his absence the Assistant Principal Chief, in
writing to that effect and the Principal Chief, or in his absence the
Assistant Principal Chief shall designate someone else to serve as a
member of the election board. The Supervisor, or in his absence the
Assistant Supervisor, shall see that the rules prescribed for conducting
the election are faithfully carried out. The ballots shall be handed
out by a judge to the voters as they present themselves to vote, after
being identified by a clerk who shall be supplied with a copy of the
list of voters prepared pursuant to 90.35. The judge before handing out
a ballot shall remove the detachable portion. A judge shall receive the
ballot after the voter has indicated his choice thereon by placing an
''X'' mark opposite the name of each candidate for whom he desires his
vote counted and shall deposit same in the balIot box. The duties of
the remaining judges in conjunction with the Supervisor will be to read
the names on the ballot when requested so as to identify the candidates
or furnish such other information as may be desired in that connection
and also to assist prospective voters unable because of language
difficulties or physical incapacity to cast votes for candidates of
their choice, and to undertake such other duties as may be assigned by
the Supervisor.
(27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.33 Watchers and challengers.
Any candidate or political party may name a person to act as watcher
and challenger at any election provided for by the regulations in this
part. Each watcher and challenger shall be appointed in writing by the
candidate or political party he or she represents. The watchers and
challengers shall have the right to be present in the polling place but
outside the voting booths and to watch the election officials, the
balloting, the call, the tally, and the recording of the result of the
vote. It shall be the duty of the watcher to watch, listen, and observe
the count for all candidates voted for to insist upon an honest and fair
count but shall have no further authority than to have the election
judges and clerks note or record any objections to the count and to
challenge the result thereof. The challenger shall have the right to
question any voter and his right to vote. Watchers shall not divulge or
give out any intimation or information as to the count prior to
announcement by the election board and shall be subject to the same
rules governing the election board with regard to leaving and returning
to the polling place. A watcher or challenger shall receive no
compensation for his services.
(27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.35 List of voters.
The Superintendent of the Osage Agency shall compile a list of the
voters of the Tribe who are qualified under 90.21. Such list shall set
forth only the name and last known address of each voter. The
Superintendent shall furnish copies of the list to the Supervisor of the
election board and shall post copies at the headquarters of the Osage
Agency at Pawhuska, Okla., and such other places as the election board
may determine to be appropriate. The compilation, posting and
distribution of copies to the Supervisor of the election board shall be
done as soon as possible after preparation of the last quarterly annuity
roll preceding the election. Copies of the list shall also be made
available to all qualified candidates for office and for the purpose of
checking off the name of each voter as his ballot is cast and for
determining, in the event of question, the right of any individual to
vote.
(27 FR 2458, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.36 Disputes on eligibility of voters.
(a) The election board shall fix a date not less than five days
before the election at which time all complaints will be heard. The
election board shall, at least three days before the date of election,
determine any claim or challenge as to the right of any person to be
listed on the roll of eligible voters.
(b) Any voter of the tribe shall have the right to challenge any
person presenting himself to vote and it shall be the duty of the
supervisor and a judge of the board to make such investigation then and
there as they deem essential, and decide the question of whether or not
a person is a listed voter.
25 CFR 90.37 Election notices.
The election notice shall set forth the place, date and time for
holding the election, qualification of voters, method of nominating
candidates, and closing date for same, method of locating each name on
the ballot and the names of each member of the election board. As soon
as possible a copy of the notice of the election, after approval by the
Superintendent of the Osage Agency, shall be mailed to each qualified
voter at his last known address.
25 CFR 90.38 Opening and closing of poll.
The poll shall remain open without intermission from 8 a.m. to 8 p.m.
on the date of the election. When all else is in readiness for the
opening of the poll the supervisor shall open the ballot box in view of
the other election officers, shall turn same top down to show that no
ballots are contained therein, and shall then lock the box and retain
the key in his possession.
(32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.39 Voters to announce name and residence.
Each voter shall upon presenting himself to vote announce to the
clerk his name, and address.
25 CFR 90.40 Ballots.
The Superintendent of the Osage Agency shall have ballots printed
showing the name and the office for which each candidate has been
nominated and also space for showing the value of the respective
ballots. The Superintendent shall have recorded on a detachable portion
of each ballot the name of the voter. The value of each voter's ballot
shall be recorded on the principal portion of the respective ballots.
Any faction or group has the right to nominate any candidate it chooses,
in accordance with the regulations prescribed in this part. The names
of such candidates shall be printed on the ballot in the manner set
forth as follows:
(a) Under the heading, Principal Chief, with notation to vote for
one, shall appear names of all candidates for that office. Under the
heading, Assistant Chief, with notation to vote for one, shall appear
the names of all candidates for that office. Under the heading, Members
of Council, with notation to vote for eight, shall appear names of all
candidates for council. Names of candidates for office shall appear
only once on ballot, regardless of the fact that they may have been
nominated on more than one ticket. The order in which names of
qualified candidates for office will be placed on the ballot shall be by
lot method of drawing in a manner to be determined by the tribal
council, and to be free from or regardless of party or factional
affiliations. A candidate may use one nickname. Titles and
professional designations will not be shown on the ballot. A record
shall be kept of any ballots that may be mutilated, canceled, or used as
samples.
(b) A space will be provided on each ballot in which the clerk prior
to issuing the ballot shall note the value of the ballot which shall be
exactly the same value as the voter's headright interest as shown on the
last quarterly annuity roll, except any fraction of a headright shall be
valued as to the first two decimals only unless such interest is less
than one one-hundredth then it shall have its full value. As
verification the clerk shall initial the ballot so numbered in the
margin. In addition each ballot shall be stamped ''Official Ballot''
(facsimile signature Supervisor Osage Election Board). Should any voter
spoil or mutilate his ballot in his effort to vote he may surrender the
ballot to the supervisor who shall give the voter in lieu thereof
another ballot which shall show its appropriate value. The spoiled or
mutilated ballot or any portion of a spoiled or mutilated ballot shall
be retained with other records pertaining to the election.
(32 FR 10253, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.41 Absentee voting.
(a) An eligible voter who will be unable to appear at the poll in
Pawhuska on election day shall be entitled to vote by absentee ballot.
Absentee ballots shall be identical to the ballots described in 90.40
with the exception that each such ballot shall be stamped ''Absentee
Ballot,'' and reflect the date of issuance. All applications for
absentee ballots shall be made in writing by the voter. Each ballot
shall indicate the value of the vote to which the voter is entitled.
The supervisor shall maintain a file of all applications, together with
a record of the names and addresses of all persons to whom absentee
ballots are mailed or delivered, including the date of mailing or
delivery. All absentee ballots must be postmarked and be in the
Pawhuska Post Office prior to 8 a.m. on election day.
(b) It shall be the duty of the supervisor, upon receipt of an
application, to mail or deliver to the applicant an envelope containing
a ballot (after removing the detachable portion), and an inner and outer
envelope as described herein. This shall be done not more than 30 days
before the election, except that the envelopes and ballots may be mailed
to absentee voters residing outside the continental limits of the United
States at any time after mailing of the election notice.
(c) If the absentee ballot and accompanying envelopes are to be
mailed to the prospective voter, the written request must be submitted
to the supervisor on or before 5 p.m. of the Wednesday preceding the
election. The absentee ballot and accompanying envelopes may be
delivered personally to the prospective voter any time prior to the
opening of the poll.
(d) The absentee voter shall mark the ballot and seal it only in the
inner envelope. The following shall be printed on the inner envelope:
25 CFR 90.41 Absentee Ballot
25 CFR 90.41 election of officers of the osage tribe
25 CFR 90.41 june -- , 19 --
(e) The absentee voter shall enclose the inner envelope in the outer
envelope and after sealing same shall execute the certificate imprinted
thereon which certificate shall be in the following form:
I will be unable to appear at the poll in Pawhuska, Oklahoma, on the
---- day of June 19 -- and have enclosed my ballot for the election of
officers of the Osage Tribe. 1011
(Voter's signature) -------------------- .
The outer envelope shall be preaddressed as follows: Supervisor,
Osage Election Board, Post Office Box ---- , Pawhuska, Okla. 74056.
(45 Stat. 1481)
(23 FR 1948, Mar. 25, 1958; 23 FR 2026, Mar. 27, 1958, as amended at
43 FR 8799, Mar. 3, 1978. Redesignated at 47 FR 13327, Mar. 30, 1982)
0111Criminal penalties are provided by statute for knowingly filing
false information in such statements (18 U.S.C. 1001).
25 CFR 90.42 Absentee ballots.
The absentee ballots shall remain in the locked box in the post
office, Pawhuska, Okla., until 8 a.m. on the day of election at which
time the supervisor or assistant supervisor of the election board,
accompanied by the Superintendent of the Osage Agency or his designated
representatives, shall receive the locked box from the post office and
shall personally transport the locked box to the polling site where it
shall be delivered immediately to the supervisor or assistant supervisor
of the election board. The supervisor or the assistant supervisor in
the presence of at least two judges shall unlock the locked box
containing the absentee ballots and shall then determine whether the
person whose name is signed to the statement is a qualified voter of the
Osage Tribe and check said voter off the poll list before opening the
outer envelope. After it has been determined which of the absentee
ballots have been cast by duly qualified electors, the supervisor in the
presence of the election board shall cause the valid ballots in the
sealed inner envelopes to be placed in the ballot box.
(32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.43 Canvass of election returns.
(a) Immediately after the polls are closed at 8 p.m., the counting of
the ballots shall commence. The supervisor and not less than two judges
shall remain continuously in the room until the ballots are finally
counted. One or more judges shall act as official counters and two or
more clerks shall record the value of each vote and shall comprise a
vote tallying team. The vote shall be recorded on two tally sheets by
each team of judges and clerks under the name of each candidate for whom
the voter designated his choice. The count shall continue until all
votes have been recorded. The duties of the remaining officials of the
election board will be to assist in conducting the election. After the
vote of each ballot is recorded, the ballot shall be pierced by needle
and string and after the ballots have been so counted, the ends of the
string shall be tied together. After all other ballots have been
counted, the sealed inner envelopes containing the absentee ballots
shall be opened and all ballots found to be valid shall be counted and
treated in the same manner as other valid ballots. All ballots and
mutilated ballots; registration lists of voters, both absentee and
those appearing at the poll; all tally sheets; and all other election
materials shall be placed in the ballot box which shall be locked. The
supervisor shall then deliver the locked ballot box and keys to same to
the Superintendent, Osage Agency, and the box shall be retained in a
safe place until opened by order of the supervisor or election board in
the event a contest is filed. If no contest is filed, the ballots shall
be destroyed 180 days after the election. No information concerning
voting shall be posted or made public information until after 8 p.m.
(b) Should any ballot be marked for more than one principal chief or
assistant chief or for more than eight councilmen, only that section of
the ballot wherein the error was made shall be declared void and the
remaining section or sections shall be counted in the same manner as
other ballots. Absentee ballots shall be declared void when items other
than the ballot are enclosed in the inner envelope, the voter fails to
sign the statement appearing on the outer envelope, and for failure to
seal the inner envelope or enclose the inner envelope in the outer
envelope. Votes cast for individuals whose names are not printed on the
official ballot shall not be counted.
(32 FR 10254, July 12, 1967, as amended at 43 FR 8799, Mar. 3, 1978.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 90.44 Statement of supervisor.
Following the election a statement is to be prepared by the
supervisor pertaining to the conduct of the election and certifying to
the correct tabulation of the votes for each candidate. The statement
shall also set forth the names of the elected candidates and the office
to which each was elected. The statement shall be duly acknowledged
before an officer qualified to administer oaths and delivered to the
Superintendent of the Osage Agency.
(32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.45 Electioneering.
No person shall be allowed to electioneer within the building where
and when the election is in progress and it will be the duty of the
supervisor to request the detail of a police officer to assist him in
maintaining order about the building during the progress of the
election.
25 CFR 90.46 Notification of election of tribal officers.
The Superintendent of the Osage Indian Agency shall in due time give
written notice to candidates of their election to the various tribal
offices and as soon thereafter as practicable such tribal officers shall
appear and subscribe to oath of office before an officer qualified to
administer oaths and such oaths shall be delivered to the Superintendent
and by him transmitted to the Commissioner of Indian Affairs.
25 CFR 90.47 Contesting elections.
Any unsuccessful candidate may before noon on Monday next following
the tribal election file with the supervisor a challenge to the
correctness of the vote cast for the office for which he was a
candidate, which challenge must be accompanied by a deposit of $500.
The election board or the supervisor shall order a recount and proceed
with same as provided in this part. If the recount results in the
contestant being elected, the deposit shall be refunded; otherwise, the
deposit shall be used to defray all expenses of said recount and any
balance not so used shall be returned to the contestant.
(32 FR 10254, July 12, 1967. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.48 Notice of contest.
It shall be the duty of the supervisor, to serve upon the contestee,
or contestees, directly affected by such challenge or contest, a true
copy of said written application, the original of which is required to
be filed with the supervisor. Said service shall be made in person,
where possible, within twenty-four hours after the filing of said
original challenge or contest, and where personal service is impossible
within such time, on account of the absence of contestee, or contestees,
from Osage County, or for any other reason, it is hereby made the duty
of the supervisor to serve a true copy upon the Superintendent of the
Osage Indian Agency:
Provided, That for the purpose of such constructive service, the
Superintendent is hereby made and constituted the service agent of each
and every candidate in all tribal elections, and by filing petition as a
candidate, such candidate shall thereby be presumed conclusively to have
accepted the terms and provisions hereof and specifically the
constructive service as aforesaid.
25 CFR 90.49 Expenses of elections.
All expenses of elections including compensation to the members of
the election board and any clerical assistants designated by the
Superintendent under 90.32, stationery supplies, meals, printing and
postage shall be borne by the Osage Tribe as set forth in an appropriate
Osage Tribal Council resolution establishing current pay scale.
(27 FR 2459, Mar. 15, 1962. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 90.49 PART 91 -- GOVERNMENT OF INDIAN VILLAGES, OSAGE
RESERVATION, OKLAHOMA
Sec.
91.1 Purpose.
91.2 Definitions.
91.3 Description of village reserves.
91.4 Plats of village reserves.
91.5 Tracts reserved from selection by individuals.
91.6 Custody of public buildings and tracts reserved from selection
by individuals; village committees.
91.7 Permits to occupy land for dwelling purposes.
91.8 Sale or mortgage of improvements.
91.9 Inheritance of improvements.
91.10 Renting of improvements.
91.11 Domestic animals in village reserves.
91.12 Business enterprises and public buildings.
91.13 Health, sanitation, and sewerage disposal.
91.14 Confirmation of permits.
91.15 Suspension or amendment of regulations.
Authority: Subdivision 9 of sec. 2, sec. 12, Act of June 28, 1906
(34 Stat. 539), sec. 3, Act of June 24, 1938 (52 Stat. 1034).
Interpret or apply Act of April 18, 1912 (37 Stat. 86).
Source: 28 FR 10203, Sept. 18, 1963, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 91.1 Purpose.
The purpose of the regulations in this part is to establish policies
and procedures for the government of Indian villages, Osage Reservation,
Oklahoma.
25 CFR 91.2 Definitions.
As used in this part:
(a) Secretary means the Secretary of the Interior or his authorized
representative.
(b) Superintendent means the Superintendent or other officer in
charge of Osage Agency.
(c) Council means the Osage Tribal Council, that elected governing
body of the Osage Tribe of Indians.
(d) Tribal Member means any person of Osage Indian blood of whatever
degree, allotted or unallotted.
(e) Minor means any person under 21 years of age.
(f) Resident means an adult tribal member who has resided in the
village for thirty (30) days, in the 12-month period preceding the
election.
25 CFR 91.3 Description of village reserves.
The act of June 28, 1906 (34 Stat. 539), as amended by the act of
June 24, 1938 (52 Stat. 1034), set aside certain tribal lands
exclusively as dwelling sites for the use and benefit of the Osage
Indians until January 1, 1984, unless otherwise provided by Act of
Congress. These lands are described as follows:
(a) Grayhorse Indian Village. The southeast quarter (SE 1/2) of the
southeast quarter (SE 1/4), and the west half (W 1/2) of the southwest
quarter (SW 1/4) of the southeast quarter (SE 1/4), and the south half
(S 1/2) of the northeast quarter (NE 1/4) of the southeast quarter (SE
1/4) of the southwest quarter (SW 1/4), and the south half (S 1/2) of
the north half (N 1/2) of the northeast quarter (NE 1/4) of the
southeast quarter (SE 1/4) of the southwest quarter (SW 1/4), and the
southeast quarter (SE 1/2) of the southeast quarter (SE 1/4) of the
southwest quarter (SW 1/4) of sec. fifteen (15); and the north half (N
1/2) of the northeast quarter (NE 1/4), and the northeast quarter (NE
1/4) of the northwest quarter (NW 1/4) of sec. twenty-two (22), all in
township twenty-four (24) north, range six (6) east of the Indian
meridian, and containing 197.5 acres, more or less.
(b) Hominy Indian Village. Lots Six (6) and Seven (7), and the East
Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section Six (6) in
Township Twenty-two (22) North, Range Nine (9) East of the Indian
Meridian, and containing 160 acres, more or less.
(c) Pawhuska Indian Village. Lots One (1) and Two (2), and the South
Half (S 1/2) of the Northeast Quarter (NE 1/4) of Section Three (3) in
Township Twenty-five (25) North, Range Nine (9) East of the Indian
Meridian, and containing 160 acres, more or less.
(28 FR 10203, Sept. 18, 1963, as amended at 33 FR 8270, June 4, 1968.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 91.4 Plats of village reserves.
Plats of the Grayhorse Indian Village, the Pawhuska Indian Village,
and the Hominy Indian Village, certified by Ralph M. Tolson, Registered
Engineer, on July 5, 1966, are the official plats of dedication of said
villages and shall be filed of record with the county clerk of Osage
County, State of Oklahoma.
(33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 91.5 Tracts reserved from selection by individuals.
The following described tracts, as shown on the plats of the three
villages, are reserved from selection by individuals and are set aside
for sepultural use or for public use by tribal members:
(a) Grayhorse Indian Village:
(1) Public Squares.
(2) Parks, and
(3) Cemetery.
(b) Hominy Indian Village:
(1) Public squares.
(2) Cemetery, and
(3) Lot 1 in block 1 set aside for religious and educational purposes
to the Society of Friends, its Associate Executive Committee of Friends
on Indian Affairs and its or their representative at Hominy, Okla., by
Resolution of the Osage Tribal Council dated June 6, 1956, and approved
by the Assistant Secretary of the Interior, September 7, 1956.
(c) Pawhuska Indian Village:
(1) Wakon Iron Square.
(d) Those individuals who have summer homes or dance arbors located
on the Public Square of the Hominy Indian Village shall be permitted to
retain said summer homes or dance arbors during their lifetimes if they
are maintained in a condition satisfactory to the Hominy Indian Village
Committee. Following the owner's death, the improvements shall be
removed within ninety (90) days or become the property of the Hominy
Indian Village.
(33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 91.6 Custody of public buildings and tracts reserved from
selection by individuals; village committees.
Each of the three (3) villages described herein shall organize a
village committee to provide for the health, safety and welfare of its
inhabitants, for the maintenance of tribal property, and to serve as
custodian and manager of tribal property and improvements located within
said village except that tract described in 91.5(b)(3). Each village
committee shall be composed of five (5) members, domiciled in the
village, one of whom shall be designated by the committee as chairman.
The committees shall be elected biennially by the residents of the
villages, except in the Grayhorse Indian Village where the committee
shall be appointed by the Council from among those tribal members
residing in or historically associated with the village. The procedure
for initial committee elections shall be established by the Council.
Each village committee shall prepare a constitution and by-laws to be
approved by the Council and the Superintendent before said committee
will have any authority to govern, and any changes or amendments thereto
must likewise be approved by the Council and the Superintendent. All
actions of the committee are subject to appeal to the Council whose
decision shall be final: Provided, That such committee shall have no
control or authority to grant permission for the use of tribal property
described in 91.5 for the holding of dances. Such authority shall
remain in the Council and any group or individual using the property for
dance purposes without the written permission of the Council shall be in
violation of these regulations: Provided, further, That the village
committee shall not permit the use of any of the tracts described in
91.5 in any manner that would conflict with Council authorization for
dance purposes.
25 CFR 91.7 Permits to occupy land for dwelling purposes.
The issuance of permits for the use of land for dwelling purposes
within any village reserve described in 91.3 except tracts reserved for
specific purposes by 91.5 will be under the jurisdiction of the
Superintendent. Permits may be issued only to tribal members upon
application to the Superintendent: Provided, That only one permit shall
be issued to any one individual and that erection of a dwelling house
shall be started on such land within six (6) months from date of
approval of the permit or such permit shall be automatically terminated
except that upon written application the Superintendent may extend such
permit for an addition six (6) months: Provided, further, That only one
dwelling shall be constructed under any one permit. Permits shall be
issued for the use of one to three contiguous lots, depending upon the
quality and permanency of the improvements to be placed thereon.
Permits issued under this section shall be made in duplicate in a manner
to be prescribed by the Superintendent. The original copy shall be
filed in the Branch of Realty, Osage Agency, and the duplicate copy
shall be mailed to the permittee.
(33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 91.8 Sale or mortgage of improvements.
No improvements located within the village reserves described in
91.3 shall be sold, mortgaged, transferred or assigned without the
approval of the Superintendent.
(a) Improvements may be mortgaged for home improvements or the
erection of new improvements. Such mortgages shall be made with
acceptable lending agencies and shall be approved by the Superintendent.
The lending agency shall have the right (1) to foreclose the mortgage
and to sell the improvements within six (6) months of the date of
foreclosure judgment to any eligible tribal member with the
understanding that the use of the land on which the improvements are
situated shall be transferable to the new owner; or (2) to foreclose
the mortgage and to sell the improvements to a non-tribal member, who
shall remove the improvements from the village reserve within six (6)
months of the date of sale. In the event of removal of the mortgaged
property, it shall be the responsibility of the lending agency to level
the land on which such improvements were located and to remove all
debris, sidewalks, etc., leaving the premises in an orderly condition.
Failure to make such disposition within the time stated in this
paragraph shall result in forfeiture of the improvements to the village
committee.
(b) Improvements may be sold by the owner thereof with the approval
of the Superintendent. Sale of such improvements shall be accomplished
by bill of sale executed by the owner in triplicate who shall file all
copies with the Superintendent. If the purchaser of such improvements
is a member of the Osage Tribe, the bill of sale shall be accompanied by
a relinquishment of the permit in favor of the vendee for the occupancy
of the land on which such improvements are located. If the purchaser is
not a member of the Osage Tribe, such purchaser shall be required to
endorse an agreement on the reverse of all copies of the bill of sale
that he will (1) remove the improvements from the village reserve within
six (6) months of date of approval of the bill of sale; (2) transfer
the title thereof as provided in this section to a tribal member who is
eligible; or (3) failing to make such disposition within the time
stated forfeit title to the village committee.
(c) Upon approval of the bill of sale by the Superintendent, the
original or certified copy shall be filed in the Branch of Realty, Osage
Agency, the duplicate copy mailed to the purchaser, and the triplicate
copy mailed to the seller.
25 CFR 91.9 Inheritance of improvements.
(a) Upon the death of the owner of improvements in a village reserve,
such improvements shall, in probate matters, be subject to the
jurisdiction of the county courts, State of Oklahoma, and shall be
subject to inheritance or bequest in accordance with applicable State
and Federal laws. The land within a village reserve is held in trust
for the benefit of tribal members and is not subject to inheritance or
purchase.
(b) When such improvements or interests therein are inherited by or
bequeathed to a non-tribal member, he or she shall dispose of such
improvements in the manner provided for disposition of improvements by
purchaser under 91.8: Provided, That when such non-tribal member is a
legally adopted minor child such child may continue to occupy the land
during its minority: Provided, further, That when such non-tribal
member is the surviving spouse such individual, so long as he or she
remains single may continue to occupy the land during his or her
lifetime or may sell the improvements as provided herein and may receive
a proceeds therefrom. In the event such surviving spouse remarries, the
right to continuous occupancy of the land pursuant to this 91.9 shall
terminate and such surviving spouse shall make disposition of such
improvements as provided for purchasers in 91.8. If upon the death of
the surviving spouse title to the improvements vests in a non-tribal
member, they shall be sold as provided in 91.8 and the proceeds
distributed to the persons entitled thereto.
(c) Improvements inherited by tribal members may be occupied or
rented in accordance with 91.10: Provided, No tribal member shall be
issued more than two permits or own more than two sets of improvements,
one of which must be inherited property and one occupied by the tribal
member: Provided, further, No tribal member shall be permitted to
retain more than one set of improvements for rental. If this provision
is violated, the tribal member will have three years, from the date of
written notice from the Superintendent that such provision has been
violated, within which to dispose of the surplus property in accordance
with 91.8.
25 CFR 91.10 Renting of improvements.
The Superintendent may issue a certificate of permission to rent for
a period of one (1) year improvements located on land held under valid
permit, subject to renewal in the discretion of the Superintendent, upon
written application by the owner of such improvements and the
prospective tenant: Provided, That such prospective tenant is a tribal
member and the property to be rented is that heretofore occupied or
inherited by the owner. Certificates of permission issued under this
section may be withdrawn upon 30-day notice to the tenant by the
Superintendent and such tenant expelled from the village reserve. The
application and certificate of permission on a form to be prescribed by
the Superintendent shall be made in triplicate and all copies forwarded
to the Superintendent for action. Upon approval by the Superintendent,
the original copy of the application and certificate shall be filed in
the Branch of Realty, Osage Agency, the duplicate copy of each forwarded
to the owner, and the triplicate copy of each forwarded to the tenant.
25 CFR 91.11 Domestic animals in village reserves.
(a) No livestock shall be permitted to trespass in any village
reserve except that unassigned lots or unplatted areas enclosed by
adequate fences may be leased by the village committee with the approval
of the Superintendent and the proceeds therefrom credited to the account
of the village committee. Trespassing livestock may be impounded by the
village committee. The village committee shall give notice of
impoundment to the owner of the animal, if known, by certified mail or
by posting in the village square. The notice shall advise the owner
that a $10 charge shall be assessed per day for each animal impounded
and a reasonable charge for forage consumed and that the animal or
animals shall be sold at the expiration of twenty (20) days from the
date of mailing or posting the notice. In the event an animal is sold,
the balance after deducting $10 per day for impoundment and a reasonable
forage charge, shall be deposited at the Osage Agency and the owner may
claim said funds if satisfactory proof of ownership is presented to the
Superintendent of the Osage Agency within six (6) months of the date of
sale. After six (6) months, any funds remaining on deposit will become
the property of the village in which the animal was trespassing.
(b) No horses, mules, bovine, hogs, sheep, or goats shall be penned
on assigned lots.
(33 FR 8270, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 91.12 Business enterprises and public buildings.
No permanent business enterprises shall be carried on within the
boundaries of a village reserve and no public buildings shall be erected
on lands within the boundaries of a village reserve except on tracts
described in 91.5 maintained for the use and benefit of tribal members.
The construction or acquisition of dwellings for rental purposes is
prohibited. The village committee may grant permission and charge fees
for temporary concessions within the village reserve during Indian
celebrations, dances, community gatherings, etc., such temporary permits
to last only for the term of activities for which granted.
25 CFR 91.13 Health, sanitation, and sewerage disposal.
Health, sanitation, and sewerage disposal problems within the village
reserves shall be subject to and controlled by applicable County and
State laws.
25 CFR 91.14 Confirmation of permits.
The Superintendent shall prepare a certified list of all current
permittees with a description of lots held, which descriptions shall
conform to the plats certified July 5, 1966. Said list shall be served
by certified mail on the individual permittees and the village committee
chairman and shall be posted at the Osage Agency and each of the three
village squares. Unless a protest is filed with the Superintendent
within ninety (90) days of the mailing and posting, said certified list
of assigned lots and the individual permittees shall be final and
conclusive. Protests may be filed by tribal members claiming an
interest in an assigned lot and such protest shall be determined by the
Superintendent after notice and hearing.
(33 FR 8271, June 4, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 91.15 Suspension or amendment of regulations.
The regulations in this part may be suspended or amended at any time
by the Secretary of the Interior: Provided, That such amendments or
suspension shall not serve to change the terms or conditions of any
mortgage approved in accordance with 91.8(a).
25 CFR 91.15 SUBCHAPTER G -- FINANCIAL ACTIVITIES
25 CFR 91.15 PART 101 -- LOANS TO INDIANS FROM THE REVOLVING LOAN FUND
Sec.
101.1 Definitions.
101.2 Kinds of loans.
101.3 Eligible borrowers under United States direct loan program.
101.4 Applications.
101.5 Approval of loans.
101.6 Modification of loans.
101.7 Management and technical assistance.
101.8 Environmental and Flood Disaster Acts.
101.9 Preservation of historical and archaeological data.
101.10 Federal Reserve Regulation Z and Fair Credit Reporting Act.
101.11 Interest.
101.12 Records and reports.
101.13 Security.
101.14 Maturity.
101.15 Penalties on default.
101.16 Default on loans made by relending organizations.
101.17 Uncollectible loans made by the United States.
101.18 Uncollectible loans made by relending organizations.
101.19 Assignment of loans.
101.20 Relending by borrower.
101.21 Repayments on United States direct loans.
101.22 Repayments on loans made by relending organizations.
101.23 Approval of articles of association and bylaws.
101.24 Loans for expert assistance for preparation and trial of
Indian claims.
101.25 Information collection.
Authority: 25 U.S.C. 1469.
Source: 40 FR 3587, Jan. 23, 1975, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 101.1 Definitions.
As used in this part 101:
Applicant means an applicant for a United States Direct Loan from the
revolving loan fund or a loan from a relending organization.
Commissioner means the Commissioner of Indian Affairs or an
authorized representative.
Cooperative association means an association of individuals organized
pursuant to state, Federal, or tribal law, for the purpose of owning and
operating an economic enterprise for profit with profits distributed or
allocated to patrons who are members of the organization.
Corporation means an entity organized as a corporation pursuant to
state, Federal, or tribal law, with or without stock, for the purpose of
owning and operating an economic enterprise.
Default means failure of a borrower to:
(1) Make scheduled payments on a loan when due,
(2) Obtain the lender's approval for disposal of assets mortgaged as
security for a loan, or
(3) Comply with the covenants, obligations, or other provisions of a
loan agreement.
Economic enterprise means any Indian-owned commercial, industrial,
agricultural, or business activity established or organized for the
purpose of profit, provided that eligible Indian ownership constitutes
not less than 51 percent of the enterprise.
Equity means the borrower's residual ownership, after deducting all
business debt, of tangible business assets used in the business being
financed, on which a lender can perfect a first lien position.
Financing statement means the document filed or recorded in county or
state offices pursuant to the provisions of the Uniform Commercial Code
notifying third parties that a lender has a lien on the chattels and/or
crops of a borrower.
Indian means a person who is a member of an Indian tribe as defined
in this part.
Organization means the governing body of any Indian tribe, or entity
established or recognized by such governing body for the purpose of the
Indian Financing Act.
Other organization means any non-Indian individual, firm,
corporation, partnership, or association.
Partnership means a form of business organization in which two or
more legal persons are associated as co-owners for the purposes of
business or professional activities for private pecuniary gain,
organized pursuant to tribal, state, or Federal law.
Reservation means Indian reservation, California rancheria, public
domain Indian allotment, former Indian reservation in Oklahoma, and land
held by Alaska Native groups incorporated under the provisions of the
Alaska Native Claims Settlement Act (85 Stat. 688), as amended.
Revolving loan fund means all funds that are now or hereafter a part
of the revolving fund authorized by the Act of June 18, 1934 (48 Stat.
986), the Act of June 26, 1936 (49 Stat. 1968) and the Act of April 14,
1950 (64 Stat. 44), as amended and supplemented including sums received
in settlement of debts for livestock pursuant to the Act of May 24,
1950, (64 Stat. 190) and sums collected in repayment of loans made,
including interest or other charges on loans, and any funds appropriated
pursuant to Section 108 of the Indian Financing Act of 1974 (88 Stat.
77).
Secretary means the Secretary of the Interior.
Tribe means any Indian tribe, bank, nation, rancheria, pueblo, colony
or community, including any Alaska Native village or any regional,
village, urban or group corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), as
amended, which is recognized by the Federal Government as eligible for
services from the Bureau of Indian Affairs.
(57 FR 46471, Oct. 8, 1992)
25 CFR 101.2 Kinds of loans.
Loans from the Indian Revolving Loan Fund shall be made for purposes
which will improve and promote the economic development on Indian
reservations.
(a) Loans may be made by the United States to eligible relending
organizations for relending to members for economic enterprises and to
eligible tribes for relending to members, eligible corporations,
cooperative associations, partnerships and subordinate bands and for
financing tribal economic enterprises, which will promote the economic
development of a reservation and/or the group or members thereon. Loans
made by tribes or relending organizations may be for the following
purposes:
(1) To individual Indians or Natives, cooperative associations,
corporations and partnerships, to finance economic enterprises operated
for profit, the operation of which will contribute to the improvement of
the economy of a reservation and/or the members thereon.
(2) To individual Indians or Natives for purposes of purchasing,
constructing or improving housing on a reservation and to be occupied by
the borrower.
(3) To individual Indians and Natives for purposes of obtaining a
college or graduate education and degree in a field which will provide
employment opportunities, provided that adequate funds are not available
from sources such as grants, scholarships or other loan sources.
(4) To individual Indians and Natives for purposes of attending
vocational schools which provide training in desired skills in a field
in which there are employment opportunities, provided that adequate
funds and/or training are not available from grant or scholarship
sources, or federal or state training programs.
Loans may also be made by the United States to tribes for loaning to
or investing in other organizations subject to the provisions in
paragraph (d) of this section.
(b) Direct loans may be made by the United States to eligible tribes,
tribal organizations or corporations and tribal cooperative associations
without fund restrictions. Direct loans to individual Indians,
partnerships, and other non-tribal organizations shall not exceed
$350,000. Direct loans from the United States shall be made for the
following purposes:
(1) To eligible tribes, individual Indians, Natives, or associations
thereof, corporations and partnerships, to finance economic enterprises
operated for profit, the operation of which will contribute to the
improvement of the economy of a reservation and/or the members thereon.
(2) To individual Indians and Natives for purposes of purchasing,
constructing or improving housing on a reservation and to be occupied by
the borrower.
(3) To individual Indians and Natives for purposes of obtaining a
college or graduate education and degree in a field which will provide
employment opportunities, provided that adequate funds are not available
from sources such as grants, scholarships or other loan sources.
(4) To individual Indians and Natives for purposes of attending
vocational schools which provide training in desired skills in a field
in which there are employment opportunities, provided that adequate
funds and/or training are not available from grants or scholarship
sources or federal or state training programs.
(c) Before a United States direct loan is approved, the Commissioner
may require the applicants to prepare a market and capacity report on
existing or proposed economic enterprises for which financing is
requested if the operation involves manufacturing, selling or providing
services.
(d) Loans may be made to eligible tribes and Indian organizations for
use in attracting industries and economic enterprises, the operation of
which will contribute to the economy of a reservation. Tribes and
Indian organizations may receive loans from the revolving loan fund for
investment in or lending to other organizations regardless of whether
they are organizations of Indians. However, not more than 50 percent of
the loan made to an Indian organization may be used for the purpose of
making a loan to or investing in other organizations. Applications for
loans to provide funds for lending to or investing in other
organizations already in operation will be accompanied by:
(1) Audited balance sheets and operating statements of the other
organization for the immediate three preceding years;
(2) Pro forma operating statement and balance sheets for the
succeeding three years reflecting the results of operations after
injection of the additional funds;
(3) Names of owners or if a corporation and stock has been issued,
names of major stockholders and shares of stock owned by each;
(4) A copy of the articles of incorporation and bylaws, if
incorporated, or other organization papers if not incorporated;
(5) Names of members of the board of directors and officers with a
resume of education and experience, and the number of shares of stock
owned by each in the corporation;
(6) Purposes for which loan or investment will be used; and
(7) If for manufacturing, selling or providing services, a market and
capacity report will be prepared. If a proposed operation is to be
established, the information in paragraphs (d) (2) through (7) of this
section will be furnished. The Commissioner may require additional
information on the other organization, if needed, to adequately evaluate
the benefits which the Indian organization will receive and the economic
benefits which will accrue to a reservation. If the loan is for
relending to another organization, the application must show what
security is being offered. If the loan is for investment in another
organization, the equity to be obtained must be shown. Copies of all
agreements, contracts or other documents to be executed by the Indian
organization and the other organization in connection with a loan or
investment shall be submitted with the application for a loan and will
require Commissioner approval prior to disbursement of loan funds to the
Indian organization.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 54 FR 34974, Aug. 23, 1989)
25 CFR 101.3 Eligible borrowers under United States direct loan
program.
(a) Loans may be made from the revolving loan fund to Indians,
eligible tribes and relending organizations, and corporations,
cooperative associations and partnerships having a form of organization
satisfactory to the Commissioner. Loans may be made to applicants only
when, in the judgment of the Commissioner, there is a reasonable
prospect of repayment. Loans may be made only to an applicant who, in
the opinion of the Commissioner, is unable to obtain financing on
reasonable terms and conditions from other sources such as tribal
relending programs, banks, Farmers Home Administration, Small Business
Administration, Production Credit Associations, or Federal Land Banks,
and is also unable to obtain a guaranteed or insured loan pursuant to
title II of the Indian Financing Act of 1974 (88 Stat. 77). In addition,
the applicant will be required to have equity equal to 20 percent of the
total cost of a new enterprise, or 20 percent of the total cost of
expansion of an existing enterprise.
(b) The establishment of a United States direct revolving loan
program on a reservation(s) for making direct loans will require the
approval of the Commissioner. All requests for establishing a United
States direct revolving loan program on a reservation will be
accompanied by reasons for need, estimate of financing needs, and other
sources of financing available to meet the needs. The Commissioner, in
approving a United States direct loan program, may require the
preparation and approval of a plan of operation for conducting the
program.
(c) If local lending conditions and/or the information in an
application for a loan indicate a probability that an applicant may be
able to obtain the loan from other sources, the Commissioner, before
approving a United States direct loan, will require the applicant to
furnish letters from two customary lenders in the area who are making
loans for similar purposes, stating whether or not they are willing to
make a loan to the applicant for the same purposes and amount. If a
customary lender will make the loan on reasonable terms and conditions,
the Commissioner will not approve a United States direct loan.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 54 FR 34974, Aug. 23, 1989; 57 FR 46471, Oct. 8,
1992)
25 CFR 101.4 Applications.
An applicant for a United States direct loan or a loan from a
relending organization conducting a relending program under this part
will submit an application on a form approved by the Commissioner.
Applications shall include the name, current address and telephone
number of the applicant(s); current and prior Taxpayer Identification
Number -- Employer Identification Number if a business entity, Social
Security Number if an individual; and current employer's name, address,
and telephone number; amount of the loan requested; purpose for which
loan funds will be used; and security to be offered; period of the
loan, assets, liabilities and repayment capacity of the applicant;
budgets reflecting income and expenditures of the applicant; and any
other information necessary to adequately evaluate the application. The
borrower must sign a statement declaring no delinquency on Federal taxes
or other Federal debt and borrower's good standing on dealings in
procurement or non-procurement with the Federal Government. The Bureau
will obtain a current credit bureau report and prescribe procedures to
be used in handling loan proceeds. In addition, applications for loans
to finance economic enterprises already in operation will be accompanied
by: (a) A copy of operating statements, balance sheets and budgets for
the prior two operating years or applicable period thereof preceding
submittal of the application; (b) current budget, balance sheet and
operating statements; and (c) pro forma budgets operating statements
and balance sheets showing the estimated results for operating the
enterprise for two years after injection of the loan funds into the
operation. A resume of the applicant's management experience will be
submitted with the application. Applications for loans and requests for
advance of tribal trust funds for relending under the provisions of this
Part shall be accompanied by a declaration of policy and plan of
operation or other acceptable plan for conducting the program.
Applications for loans or modifications thereof, to establish, acquire,
operate, or expand an economic enterprise shall be accompanied by a plan
of operation. Declarations of policy or other plans for conducting a
relending program and plans of operation for economic enterprises
require the approval of the Commissioner before becoming effective. An
application from a corporation, partnership or cooperative association,
for a United States direct loan or a loan under a relending program for
financing an economic enterprise must, in addition to financial
statements and budgets, include a copy of documents establishing the
entity, or the proposed documents to be used in establishing it.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46471, Oct. 8, 1992)
25 CFR 101.5 Approval of loans.
(a) Loan agreements, including those used by relending organizations
in operating a relending program, must be executed on a form approved by
the Commissioner. On direct United States loans, the Commissioner will
approve the loan by issuing a commitment order covering the terms and
conditions for making the loan.
(b) Applications for loans from relending organizations must be
approved, if a tribe, by the governing body or designated committee, or
other approving committee or body authorized to act on credit matters
for a relending organization, before the Commissioner takes action on
the application. This designated governing body of the tribe or
committee must be authorized to act on behalf of the relending
organization as evidenced in the organization's declaration of policy
and plan of operation.
(c) Corporations, partnerships and cooperative associations organized
for the purpose of establishing, acquiring, expanding, and operating an
economic enterprise shall be organized pursuant to federal, state or
tribal law. The form of organization shall be acceptable to the
Commissioner. Economic enterprises which are or will be operated on a
reservation(s) must comply with the requirements of applicable rules,
resolutions and ordinances enacted by the governing body of the tribe.
25 CFR 101.6 Modification of loans.
(a) United States direct loans. Any modification of the terms and
provisions of a United States direct loan agreement must be requested in
writing by the borrower and approved by the Commissioner. The borrower
will submit the request for modification and will indicate the
section(s) of the loan agreement to be modified together with a
justification for the modification. Requests for modifications of loan
agreements will include an agreement to abide by the provisions of the
regulations in this part and future amendments and modifications
thereof. In addition, a current credit bureau report, obtained by the
Bureau of Indian Affairs, will be made a part of the modification
request.
(b) Relending program. Any modification of the terms and provisions
of a loan agreement of a borrower from an organization conducting a
relending program must be in writing, agreed to by the borrower, and
must be approved by the body authorized to act on loans and
modifications thereof as provided in an approved declaration of policy
and plan of operation or other plan. If a request for modification of a
loan has been disapproved by the body authorized to act on the request,
the rejected borrower may request the Commissioner to make a direct loan
from the revolving loan fund if the Commissioner determines that the
rejection is unwarranted.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.7 Management and technical assistance.
Prior to and concurrent with the approval of a United States direct
loan to finance an economic enterprise, the Commissioner will assure
under title V of the Indian Financing Act of 1974 that competent
management and technical assistance is available to the loan applicant
for preparation of the application and/or administration of funds loaned
consistent with the nature of the enterprise proposed to be or in fact
funded by the loan. Assistance may be provided by available Bureau of
Indian Affairs staff, the tribe or other sources which the Commissioner
considers competent to provide needed assistance. Contracting for
management and technical assistance may be used only when adequate
assistance is not available without additional cost. Contracts for
providing borrowers with competent management and technical assistance
shall be in accordance with applicable Federal Procurement Regulations
and the Buy Indian Act of April 30, 1908, chapter 153 (35 Stat. 71), as
amended June 25, 1910, chapter 431, section 25 (36 Stat. 861).
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 54 FR 34975, Aug. 23, 1989)
25 CFR 101.8 Environmental and Flood Disaster Acts.
Loans will not be approved until there is assurance of compliance
with any applicable provisions of the Flood Disaster Protection Act of
1973 (Pub. L. 93-234, 87 Stat. 975), the National Environmental Policy
Act of 1969 (Pub. L. 91-190), (42 U.S.C. 4321) and Executive Order
11514.
25 CFR 101.9 Preservation of historical and archeological data.
(a) On United States direct loans from the revolving loan fund and
modifications thereof to provide additional loan funds which will
involve excavations, road or street construction, land development or
disturbance of land on known or reported historical or archeological
sites, the Commissioner will take or require appropriate action to
assure compliance with the applicable provisions of the Act of June 27,
1960 (74 Stat. 220; (16 U.S.C. 469)), as amended by the Act of May 24,
1974 (Pub. L. 93-291, 88 Stat. 174).
(b) On loans made by relending organizations conducting a relending
program using revolving loan funds, the body authorized to act on loan
applications and modifications thereof will, at the time of taking
action on a loan or request for modification, inform the applicant of
the applicability of this Act to the loan and advise the Commissioner of
compliance or the need to obtain compliance.
25 CFR 101.10 Federal Reserve Regulation Z and Fair Credit Reporting
Act.
(a) United States direct loans and loans made by a relending
organization are subject to the provisions of Federal Reserve Regulation
Z (Truth In Lending, 12 CFR Part 226; Pub. L. 91-508, 84 Stat. 1127).
Economic enterprises which extend credit and require payment of finance
charges on unpaid balances will determine the applicability of
Regulation Z and comply with the requirements thereof. The Commissioner
will issue any necessary instructions to assure compliance with
Regulation Z on United States direct loans.
(b) Relending organizations, through their committee or other body
authorized to act on loan matters on its behalf, will assure compliance
with the applicable provisions of this Act.
(c) The Commissioner will require adherence to the provisions and
requirements of Title VI of the Fair Credit Reporting Act in making
United States direct loans. Relending organizations, through the body
authorized to act on credit matters, will require compliance with the
requirements of the Fair Credit Reporting Act.
25 CFR 101.11 Interest.
(a) The interest to be charged on loans by the United States shall be
at a rate determined by the Secretary of the Treasury in accordance with
section 104, Title I, of the Indian Financing Act of 1974 (Pub. L.
93-262, 88 Stat. 77). The interest rate shall be determined monthly and
shall be effective on advances made on loans during the current calendar
month. The interest rate shall be stated in the promissory note(s)
executed by the borrower(s) evidencing the advance(s).
(b) Additional charges to cover loan administration costs, including
credit reports, may be charged to borrowers.
(c) Education loans may provide for deferral of interest while the
borrower is in school full time or in the military service.
(d) The interest rate on loans made by relending organizations which
are conducting relending programs shall not be less than the rate the
organization pays on its loan(s) from the United States. Relending
organizations which adopt and follow the same procedure in calculating
interest on educational loans as is followed on educational loans made
by the United States, will not be charged interest on loans from the
United States on the amount outstanding on educational loans during the
period the organization is not charging its borrowers interest.
(e) Interest rates on loan advances made by the United States as
shown on promissory notes dated before April 12, 1974, will remain in
effect until the loan is paid in full, refinanced, or modified to extend
the repayment terms. Unless otherwise specifically provided in a loan
contract, the interest rate on advances made after April 12, 1974, will
be at a rate determined pursuant to section 104 of Title I of the Indian
Financing Act of 1974. The interest rate on loans for expert assistance
will be at a rate established in 101.25 herein.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.12 Records and reports.
Loan agreements between the United States and tribes, corporations,
partnerships, cooperative associations and individual Indians for
financing economic enterprises, and to relending organizations, will
require that borrowers establish and maintain accounting and operating
records that are satisfactory to the Commissioner and submit written
reports as required by the Commissioner. The records, accounts, and
loan files shall be available for examination and audit by the
Commissioner at any reasonable time. Unless an exception is approved by
the Commissioner, borrowers will be required to have an annual audit
made of the records of relending programs and economic enterprises
financed with revolving loan funds, by a certified public accountant or
a firm of certified public accountants or other qualified public
accountants satisfactory to the Commissioner.
25 CFR 101.13 Security.
(a) United States direct loans shall be secured by such security as
the Commissioner may require. A lack of security will not preclude the
making of a loan if the proposed use of the funds is sound and the
information in the application and supporting papers correctly show that
expected income will be adequate to pay all expenses and the loan
principal and interest payments, indicating reasonable assurance that
the loan will be repaid. Loans made by relending organizations
conducting a relending program using revolving loan funds will require
borrowers to give security for loans, if available, but the absence of
security will not preclude the making of a loan if the proposed use of
the funds is sound and the information in the application and supporting
papers correctly show that expected income will be adequate to pay all
expenses and the loan principal and interest payments, indicating
reasonable assurance that the loan will be repaid. The declaration of
policy and plan of operation of relending organizations conducting
relending programs will include provisions covering the type and amount
of security to be taken to secure loans made.
(b) Land purchased by an individual Indian with the proceeds of a
loan and land already held in trust or restricted status by the
individual Indian may be mortgaged as security for a loan in accordance
with 25 CFR 152.34 and the Act of March 29, 1956 (70 Stat. 62; (25
U.S.C. 483a)). Mortgages of individually held trust or restricted land
will include only an acreage of the borrower's land which the
Commissioner determines is necessary to protect the loan in case of
default. On proposed foreclosures which involve the sale of
individually held trust or restricted land given as security for a loan,
the tribe of the reservation on which the land is located will be
notified in writing at least thirty calendar days in advance of the
anticipated date of sale. Land purchased by a tribe with the proceeds
of a loan from the revolving loan fund with title taken in a trust or
restricted status, and land already held in a trust or restricted status
by a tribe may not be mortgaged as security for a loan.
(1) Title to any land purchased by a tribe or by an individual Indian
with revolving loan funds may be taken in trust or restricted status
unless the land is located outside the boundaries of a reservation or a
tribal consolidation area approved by the Secretary. Title to any land
purchased by a tribe or an individual Indian which is outside the
boundaries of a reservation or approved consolidation area may be taken
in trust if the purchaser was the owner of trust or restricted interests
in the land before the purchase. Otherwise, title shall be taken in the
name of the purchaser without any restrictions on alienation, control,
or use.
(c) Mortgages of leasehold interests in land held in trust or
restricted status by an individual Indian, may be taken for the purpose
of borrowing capital for the development and improvement of the leased
premises when permitted in the lease or lease modification agreement.
Such mortgages must be approved by the lessor and Commissioner. (70
Stat. 62, (25 U.S.C. 483a)).
(d) Individuals may give assignments of income from trust property as
security for loans. Tribes may give assignments of trust income as
security for loans provided that the assignment shall be specific as to
the source(s) of income being assigned. All assignments of trust income
require approval by the Commissioner before becoming effective.
(e) Chattels may be given as security for a loan. A mortgage on
chattels, the title to which is known to be in trust, requires
Commissioner approval. Non-trust chattels may be mortgaged without
approval of any federal official.
(f) Crops grown on lands held in trust or restricted status for the
benefit of an individual Indian may be given as security for a loan when
approved by the Commissioner. Crops grown on leased, trust or
restricted land may be given as security for a loan when permitted by
the provisions of a lease or when the owner gives written consent.
Approval of the lien document by the Commissioner is required. Crops
grown on trust or restricted land held by a tribe which has been
assigned to an individual for use may be given as security for a loan,
provided the terms of the assignment permit the assignee to give the
crops as secuirty for a loan or the tribe's governing body specifically
gives consent. The lien document requires Commissioner approval. Crops
grown on non-trust or non-restricted land may be mortgaged without the
approval of any federal official.
(g) Title to any personal property purchased with a loan shall be
taken in the name of the purchaser and mortgaged to secure the loan
unless the loan is otherwise adequately secured. Tribes must adhere to
the provisions of their constitutions and bylaws, corporate charters, or
other organizational documents when mortgaging tribal property and
assigning trust income as security for loans.
(h) Relending organizations receiving a loan from the United States
for relending shall be required to assign to the United States as
security for the loan all securities acquired in connection with loans
made to its members, sub-organizations, or associations from such funds,
unless the Commissioner determines that repayment of the loan to the
United States is otherwise reasonably assured. Funds advanced to
finance a tribal economic enterprise shall be secured by an assignment
of net income and net assets of the economic enterprise, unless the
Commissioner determines that it is not feasible to require an assignment
or that repayment of the loan to the United States is otherwise
reasonably assured.
(i) Securing documents or financing statements shall be filed or
recorded in accordance with applicable state or federal laws except for
those customarily filed in Bureau of Indian Affairs offices. Mortgages
on documented vessels will be filed at the customs house designated as
the home port of the vessel as shown on the marine document.
25 CFR 101.14 Maturity.
The maturity of any United States direct loan shall not exceed thiry
years. Loans made will be scheduled for repayment at the earliest
possible date consistent with the purpose of the loan and the repayment
capacity of the borrower.
25 CFR 101.15 Penalties on default.
Unless otherwise provided in the loan agreement between the United
States and a borrower, failure on the part of a borrower to conform to
the terms of the loan agreement will be deemed grounds for the taking of
any one or all of the following steps by the Commissioner:
(a) Discontinue any further advance of funds contemplated by the loan
agreement.
(b) Take possession of any or all collateral given as security and in
the case of individuals, corporation, partnerships or cooperative
associations, the property purchased with the borrowed funds.
(c) Prosecute legal action against the borrower or against officers
of corporations, tribes, bands, credit associations, cooperative
associations, and other organizations.
(d) Declare the entire amount advanced immediately due and payable.
(e) Prevent further disbursement of credit funds under the control of
the borrower.
(f) Withdraw any unobligated funds from the borrower.
(g) Require relending organizations conducting a relending program to
apply all collections on loans to liquidate the debt to the United
States.
(h) Take possession of the assets of a relending organization
conducting a relending program and exercise or arrange to exercise its
powers until the Commissioner has received acceptable assurance of its
repayment of the revolving loan and compliance with the provisions of
the terms of the loan agreement.
(i) Liquidate, operate or arrange for the operation of economic
enterprises financed with revolving loans made to individuals, tribes,
corporations, partnerships and cooperative associations until the
indebtedness is paid or until the Commissioner has received acceptable
assurance of its repayment and compliance with the terms of the loan
agreement.
(j) Report the name and account information of a delinquent borrower
to a credit bureau.
(k) Assess additional interest and penalty charges for the period of
time that payment is not made.
(l) Assess charges to cover additional administrative costs incurred
by the Government to service the account.
(m) Offset amounts owed the borrower under other Federal programs
including other programs administered by the Bureau of Indian Affairs.
(n) Refer the account to a private collection agency to collect the
amount due.
(o) Refer the account to the U.S. Department of Justice for
collection by litigation.
(p) If the borrower is a current or retired Federal employee, take
action to offset the borrower's salary or civil service retirement
benefits.
(q) Refer the debt to the Internal Revenue Service for offset against
any amount owed the borrower as an income tax refund.
(r) Report any written-off debt to the Internal Revenue Service as
taxable income to the borrower.
(s) Recommend suspension or debarment from conducting further
business with the Federal Government.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.16 Default on loans made by relending organizations.
Relending organizations conducting relending programs using revolving
loan funds will follow prudent lending practices in making and servicing
loans and take appropriate actions to protect their interests in the
security given to secure repayment of loans. Declarations of policy and
plans of operation shall include procedures which will be followed in
acting to correct a default, such as modification of loan agreement or
foreclosure and liquidation of security. Relending organizations
employing a general counsel will refer legal questions on foreclosure
procedures and sale of security to their counsel.
25 CFR 101.17 Uncollectable loans made by the United States.
If the Secretary determines that a United States direct loan is
uncollectable in whole or in part or is collectable only at an
unreasonable cost, or when such action would be in the best interest of
the United States, the Secretary may cancel, adjust, compromise, or
reduce the amount of any loan made from the revolving loan fund. The
Commissioner may adjust, compromise, subordinate, or modify the terms of
any mortgage, lease, assignment, contract, agreement, or other document
taken as security for loans. The cancellation of all or part of a loan
shall become effective when signed by the Secretary.
(54 FR 34975, Aug. 23, 1989)
25 CFR 101.18 Uncollectible loans made by relending organizations.
(a) Relending organizations conducting relending programs using
revolving loan funds may, when approved by the Commissioner, chargeoff
as uncollectible all or part of the balance of principal and interest
owing on loans which are considered to be uncollectible. Usually a
chargeoff includes both principal and interest and provides for
cessation of interest accruals on the principal balance owing as of the
date of the chargeoff.
(b) Action to chargeoff a loan will be in the form of a resolution
enacted by the committee or body authorized and responsible for actions
on loan matters for the relending organization. Before action is taken
to chargeoff a loan as uncollectible, the lender will make an effort, to
the extent feasible, to liquidate the security given for a loan and
apply the net proceeds as a repayment on the balance of principal and
interest owed. The chargeoff of a loan by a relending organization as
uncollectible will not reduce the principal balance owed to the United
States. A chargeoff will not release the borrower of the obligation or
the responsibility to make payments when his or her financial situation
will permit. Chargeoff action will not release the lender of
responsibility to continue its efforts to collect the loan.
25 CFR 101.19 Assignment of loans.
A borrower of a direct loan from the United States may not assign the
loan agreement or any interest in it to a third party without the
consent of the Commissioner. Relending organizations which are
conducting relending programs may not assign the loan agreements of
borrowers, or any interest therein, to third parties without the
approval of the Commissioner and the borrower.
25 CFR 101.20 Relending by borrower.
(a) A relending organization may reloan funds loaned to it by the
United States with the approval of the Commissioner. The Commissioner
may authorize such lenders to approve applications for particular types
of loans up to a specified amount.
(b) Loans shall be secured by such securities as the lender and the
Commissioner may require. With the Commissioner's approval, mortgages
of individually held trust or restricted land, leasehold interests,
chattels, crops grown on trust or restricted land, and assignments of
trust income may all be taken as security for loans.
(c) Title to personal property purchased with loans received from
relending organizations using revolving loan funds in its relending
program shall be taken in the name of the borrower.
(d) The term of a loan made by a relending organization conducting a
relending program shall not extend beyond the maturity date of its loan
from the United States, unless an exception is approved by the
Commissioner and the organization has funds available from which to make
scheduled repayment on its loan from the United States. Loans made will
be scheduled for repayment at the earliest possible date consistent with
the purpose for which a loan is made and the indicated repayment
capacity of the borrower.
(e) Securing documents or financing statements shall be filed or
recorded in accordance with federal or state law except those
customarily filed in Bureau of Indian Affairs offices. Mortgages on
documented vessels will be filed at the custom house designated as the
home port of the vessel as shown on the marine document.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982. Further redesignated and amended at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.21 Repayments on United States direct loans.
Repayments on United States direct loans shall be made to the
authorized collection officer of the Bureau of Indian Affairs who shall
issue an official receipt for the repayment and deposit the collection
into the revolving loan fund. Collections will first be applied to pay
interest to date of payment and the balance applied on the principal
installment due. Collections on loans made by relending organizations
which have been declared in default in which the Commissioner has taken
control of the assets of the program (including loans made with balances
owing) will be made to an authorized collection officer of the Bureau of
Indian Affairs who shall issue a receipt to the payor and deposit the
collection in the United States revolving loan fund. The relending
organization's loan from the United States will be credited with the
amounts collected from its borrowers, with the collections applied first
on interest accrued and the balance applied to the principal. Payments
on United States direct loans may be made in advance of due dates
without penalty.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982. Further redesignated at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.22 Repayments on loans made by relending organizations.
Repayments on loans made by a relending organization conducting a
relending program will be made to the officers of the lending
organization or individuals designated and authorized in a declaration
of policy and plan of operation. Collections on loans and other income
to a relending program will be deposited in the lender's revolving loan
account as designated in a declaration of policy and plan of operation.
Collections on loans will be first applied to pay interest to date of
payment with the balance applied to the principal.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982. Further redesignated at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.23 Approval of articles of association and bylaws.
Articles of association and bylaws of relending organizations and
cooperative associations require approval of the Commissioner if they
make application for a revolving credit loan.
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982. Further redesignated at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.24 Loans for expert assistance for preparation and trial of
Indian claims.
(a) Loans may be made to Indian tribes, bands and other identifiable
groups of Indians from funds authorized and appropriated under the
provisions of section 1 of the Act of November 4, 1963 (Pub. L. 88-168,
77 Stat. 301; 25 U.S.C. 70n-1), as amended by the Act of September 19,
1966 (Pub. L. 89-592, 80 Stat. 814) and section 2 of the Act of May 24,
1973 (Pub. L. 93-37, 87 Stat. 73). Loan proceeds may only be used for
the employment of expert assistance, other than the assistance of
counsel, for the preparation and trial of claims pending before the
Indian Claims Commission. Applications for loans will be submitted on
forms approved by the Commissioner and shall include a justification of
the need for a loan. The justification shall include a statement from
the applicant's claims attorney regarding the need for a loan. The
application will be accompanied by a statement signed by an authorized
officer of the applicant certifying that the applicant does not have
adequate funds available to obtain and pay for the expert assistance
needed. The Superintendent and the Area Director will attest to the
accuracy of the statement or point out any inaccuracies. Loans will be
approved by issuance of a commitment order by the Commissioner.
(b) No loan shall be approved if the applicant has funds available on
deposit in the United States Treasury or elsewhere in an amount adequate
to obtain the expert assistance needed or if, in the opinion of the
Commissioner, the fees to be paid the experts are unreasonable on the
basis of the services to be performed by them.
(c) Contracts for the employment of experts are subject to the
provisions of 25 U.S.C. 81 and require approval by the Commissioner.
(d) Vouchers or claims submitted by experts for payment for services
rendered and reimbursement for expenses will be in accordance with the
provisions of the expert assistance contract and shall be sufficiently
detailed and itemized to permit an audit to determine that the amounts
are in accordance with the contract. Vouchers or claims shall be
reviewed by the borrower's claims attorney who will certify on the last
page of the voucher or by attachment thereto, that the services have
been rendered and payment is due the expert and that expenses and
charges for work performed are in accordance with the provisions of the
contract.
(e) Requests for advances under the loan agreement shall be
accompanied by a certificate signed by an authorized officer of the
borrower certifying that the borrower does not have adequate funds
available from its own financial resources with which to pay the expert.
The Superintendent and Area Director will attest to the accuracy of the
statement or point out inaccuracies. A copy of the voucher or claim
from the expert will accompany the request for advance.
(f) Loan funds will be advanced only as needed to pay obligations
incurred under approved contracts for expert assistance. The funds will
be deposited in a separate account, shall not be commingled with other
funds of the borrower, and shall not be disbursed for any other purpose.
(g) Loans shall bear interest at the rate of 5 1/2 percent per annum
from the date funds are advanced until the loan is repaid.
(h) The principal amount of the loan advanced plus interest shall be
repayable from the proceeds of any judgment received by the borrower at
the time funds from the award become available to make the payment.
(77 Stat. 301 (25 U.S.C. 70n-1 to 70n-7))
(40 FR 3587, Jan. 23, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982. Further redesignated at 57 FR 46472, Oct. 8, 1992)
25 CFR 101.25 Information collection.
(a) The collections of information contained in 101.3, 101.4,
101.12, and 101.25 have been approved by the Office of Management and
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number
1076-0020. The information will be used to rate applicants in
accordance with the terms and conditions set forth in section 103 of the
Indian Financing Act, as amended. Response is required to obtain a
benefit in accordance with 25 U.S.C. 1451.
(b) Public reporting burden for this information is estimated to vary
from 15 minutes to 3 hours per response, with an average of one hour per
response, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspects of this collection
of information, including suggestions for reducing the burden, to the
Information Collection Clearance Officer, Bureau of Indian Affairs,
Mailstop 337-SIB, 18th and C Streets NW., Washington, DC 20240; and the
Paperwork Reduction Project (1076-0020), Office of Management and
Budget, Washington, DC 20503.
(54 FR 34975, Aug. 23, 1989. Redesignated at 57 FR 46472, Oct. 8,
1992)
25 CFR 101.25 PART 103 -- LOAN GUARANTY, INSURANCE, AND INTEREST
SUBSIDY
Sec.
103.1 Definitions.
103.2 Purpose.
103.3 Kinds of loans.
103.4 Management and technical assistance.
103.5 Preservation of historical and archeological data.
103.6 Environmental and flood disaster protection.
103.7 Eligible organizations.
103.8 Eligible individuals.
103.9 Eligible lenders.
103.10 Ineligible loans.
103.11 Guaranteed loans.
103.12 Insured loans.
103.13 Amount of guaranty.
103.14 Amount of insurance.
103.15 Applications for loan guaranties or insurance.
103.16 Loan otherwise available.
103.17 Refinancing.
103.18 Furnishing additional information.
103.19 Approval of guaranteed loans.
103.20 Approval of insured loans.
103.21 Modification of loan agreements.
103.22 Protective advances.
103.23 Increase in principal of loans.
103.24 Maturity.
103.25 Amortization.
103.26 Prepayments.
103.27 Amount of security.
103.28 Filing and recording.
103.29 Property purchased with loan funds.
103.30 Land.
103.31 Chattels.
103.32 Crop mortgages.
103.33 Assignments of income.
103.34 Restrictions.
103.35 Release of security.
103.36 Default on guaranteed loans.
103.37 Default on insured loans.
103.38 Subrogated and assigned rights.
103.39 Cancellation.
103.40 Charges upon liquidation.
103.41 Interest.
103.42 Interest subsidy.
103.43 Premium charges.
103.44 Other charges.
103.45 Late charge.
103.46 Loan servicing.
103.47 Restrictions on lenders.
103.48 Title to property purchased with loans.
103.49 Fraud or misrepresentation.
103.50 Loan guaranty and insurance fund.
103.51 Sale or assignment of guaranteed loans.
103.52 Records.
103.53 Suspension of lenders.
103.54 Probate.
103.55 Information collection.
Authority: 25 U.S.C. 1498.
Source: 40 FR 12492, Mar. 19, 1975, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 103.1 Definitions.
As used in this part:
Applicant means one who applies for a guaranteed or insured loan.
Borrower means the Indian organization or individual Indian receiving
a guaranteed or insured loan.
Commissioner means the Commissioner of Indian Affairs or his
authorized representative.
Cooperative Association means an association of individuals organized
pursuant to state, Federal, or tribal law for the purpose of owning and
operating an economic enterprise for profit with profits distributed or
allocated to patrons who are members of the organization.
Corporation means an entity organized as a corporation pursuant to
state, Federal, or tribal law, with or without stock for the purpose of
owning and operating an economic enterprise.
Default means failure of a borrower to:
(1) Make scheduled payments on a loan when due,
(2) Obtain the lender's approval for disposal of assets mortgaged as
security for a loan, or
(3) Comply with the covenants, obligations, or other provisions of a
loan agreement.
Economic enterprise means any Indian-owned commercial, industrial,
agricultural, or business activity established or organized for the
purpose of profit, provided that eligible Indian ownership constitutes
not less than 51 percent of the enterprise.
Equity means the borrower's residual ownership, after deducting all
business debt, of tangible business assets used in the business being
financed, on which a lender can perfect a first lien position.
Financing statement means the document filed or recorded in county or
state offices pursuant to the provisions of the Uniform Commercial Code
notifying third parties that a lender has a lien on the chattels and/or
crops of a borrower.
Guaranty means the obligation assumed by the United States to repay a
specific percentage of a loan upon default of the borrower pursuant to
the regulations in this part.
Indian means a person who is a member of an Indian tribe as defined
in this part.
Insured loan means a loan made pursuant to an agreement approved by
the Commissioner with a financial institution, under which an obligation
is assumed by the United States to indemnify the lender for a percentage
of the loss on loans, pursuant to the regulations in this part.
Interest subsidy means payments which may be made by the United
States to lenders making guaranteed or insured loans to reduce the
interest rate which borrowers pay the lenders to the rate established
pursuant to section 104 of the Indian Financing Act of 1974 (25 U.S.C.
1451 et seq.).
Mortgage means a mortgage or deed of trust evidencing an encumbrance
of land, a mortgage or security agreement executed as evidence of a lien
against crops and chattels, and a mortgage or deed of trust evidencing a
lien on leasehold interests.
Organization means the governing body of any Indian tribe or entity
established or recognized by such governing body for the purpose of the
Indian Financing Act.
Partnership means a form of business organization in which two or
more persons are associated as co-owners for the purposes of business or
professional activities for private pecuniary gain organized under
tribal, state, or Federal law.
Premium means the charges paid by lenders for the guaranty or
insurance of loans under provisions for reimbursement of lenders by the
United States for a percentage of losses incurred.
Reservation means Indian reservation, California rancheria, public
domain Indian allotment, former Indian reservation in Oklahoma, and land
held by Alaska Native groups incorporated under the provisions of the
Alaska Native Claims Settlement Act (85 Stat. 688), as amended.
Secretary means the Secretary of the Interior.
Tribe means any Indian tribe, band, nation, rancheria, pueblo, colony
or community, including any Alaska Native village or any regional,
village, or urban or group corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) as
amended which is recognized by the Federal Government as eligible for
services from the Bureau of Indian Affairs.
(57 FR 46472, Oct. 8, 1992)
25 CFR 103.2 Purpose.
(a) The purpose of this part 103 is to prescribe the terms,
conditions and provisions under which loans made to eligible tribes,
Indian organizations and individual Indians for financing economic
enterprises which contribute beneficially to the economy of an Indian
reservation or for housing on a reservation may be guaranteed or insured
by the United States. Lenders are reimbursed for a percentage of a loss
or losses incurred on loans made under the provisions of this part 103,
as evidenced by an approved guaranty certificate or insurance agreement.
(b) It is also the purpose of this part 103 to prescribe procedures
for payment of an interest subsidy to lenders making guaranteed or
insured loans to reduce the interest to be paid by the borrowers, for
establishing loan guaranty and insurance premiums to be charged, and for
collection of the premium. This program will provide Indians with
additional sources of financing needed to develop and manage their
reservation resources to a higher degree.
25 CFR 103.3 Kinds of loans.
(a) Loans to tribes, eligible Indian organizations, and Indian
individuals for financing economic enterprises which contribute to the
economy of a reservation or its members or for housing on a reservation
to be occupied by the borrower may be guaranteed or insured. Housing
loans may be guaranteed or insured only after a determination has been
made by the Commissioner that other sources of financing are not
available to the applicant on reasonable terms and conditions.
(b) Loans to tribes and organizations for the purchase of land may be
guaranteed or insured only for purchasing land within the exterior
boundaries of a reservation or land outside the exterior boundaries of a
reservation which will be used by the borrower and/or its members for an
economic enterprise which will contribute to the economy of a
reservation. Loans to individuals may be guaranteed or insured for
purchasing trust or restricted land in which the borrower owns an
interest or land within the exterior or outside the exterior boundaries
of a reservation. In all instances, the land must be used by the
borrower in operating an economic enterprise which will contribute to
the economy of a reservation. The Commissioner may require an applicant
for a guaranteed or insured loan for the purchase of land to provide
information showing that financing from other sources is not available
on reasonable terms and conditions. Title to land purchased with a
guaranteed or insured loan may be taken in trust or restricted status
unless the land is located outside the boundaries of a reservation or a
tribal consolidation area approved by the Secretary. Title to any land
purchased by a tribe or an individual Indian which is outside the
boundaries of a reservation or approved consolidation area may be taken
in trust if the purchaser was the owner of a trust or restricted
interest in the land before the purchase. Otherwise, title shall be
taken in the name of the purchaser without any restrictions on
alienation, control or use.
(c) Funds included in loans for the purchase of non-recoverable
items, as well as furniture, passenger carrying automobiles, trucks or
pickups, televisions, radios, and household appliances are not eligible
for guaranty or insurance unless required in the direct operation of an
economic enterprise. Funds included in loans for payment of personal
bills or obligations are not eligible for guaranty or insurance. Funds
included in loans for payment of unsecured debts may be guaranteed or
insured only if justified, due to the applicant's financial position and
clearly to the advantage of the applicant in the operation of an
economic enterprise.
(d) No loans will be guaranteed or insured for the financing of a
relending program.
25 CFR 103.4 Management and technical assistance.
(a) Prior to and concurrent with the issuance of a guaranty
certificate for a loan to finance an economic enterprise, the
Commissioner will assure under title V of the Indian Financing Act that
competent management and technical assistance are available for
preparation of the application and/or administration of funds granted
consistent with the nature of the enterprise proposed to be or that is
in fact funded. Assistance may be provided by available Bureau of
Indian Affairs staff, other government agencies including states, a
tribe, or other sources which the Commissioner considers competent to
provide the needed assistance. Contracting for management and technical
assistance may be used only when adequate assistance is not available
without additional cost. Contracts for providing borrowers with
competent management and technical assistance shall be in accordance
with applicable Federal Procurement Regulations, and the Buy Indian Act
of April 30, 1908, Chapter 431, section 25 (36 Stat. 861).
(b) When submitting to the Commissioner a request for guaranty or
insurance of a loan to finance an economic enterprise, a lender will
include, as part of the request, or separately, its evaluation of the
applicant's need for management and technical assistance, specific areas
of need, and whether the lender will provide such assistance to the
applicant. A lender making loans under the provisions of a general
insurance agreement may determine each applicant's need for management
and technical assistance when financing of an economic enterprise is
involved. If a lender determines that an applicant will need management
and technical assistance, it will notify the Commissioner in writing
indicating the specific areas of need, and whether it will provide such
assistance.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 54 FR 34975, Aug. 23, 1989)
25 CFR 103.5 Preservation of historical and archeological data.
Lenders making guaranteed or insured loans to finance activities
involving excavations, road construction, and land development or
involving the disturbance of land on known or reported historical or
archeological sites will take appropriate action to assure compliance
with applicable provisions of the Act of June 27, 1960 (74 Stat. 220;
16 U.S.C. 469), as amended by the Act of May 24, 1974 (Pub. L. 93-291,
88 Stat. 174), relating to the preservation of historical and
archeological data. Lenders receiving applications for loans which
include funds for purposes which may involve compliance with the
provisions of the Act of June 27, 1960, as amended, may request
assistance and guidance from the Commissioner in assuring compliance
with the requirements of the Act.
25 CFR 103.6 Environmental and flood disaster protection.
Applications for loans to purchase or construct buildings or other
improvements which require compliance with any provisions of the Flood
Disaster Protection Act of 1973 (Pub. L. 93-234, 87 Stat. 975), and
provisions of the National Environmental Policy Act of 1969 (Pub. L.
91-190; 42 U.S.C. 4321) and Executive Order 11514 will not be approved
until the lender has received assurance of compliance with any
applicable provisions of these Acts. Lenders receiving applications
which include funds for purposes which may involve compliance with the
provisions of one or both of these Acts may request assistance and
guidance from the Commissioner in assuring compliance.
25 CFR 103.7 Eligible organizations.
Tribes and Indian organizations having a form of organization
satisfactory to the Commissioner recognized by the Federal Government as
eligible for services from the Bureau of Indian Affairs, and indicating
reasonable assurance of repayment, are eligible for guaranteed or
insured loans. If Indian ownership of an economic enterprise falls
below 51 percent, the borrower shall be in default and the guaranty
shall cease and the interest subsidy shall be discontinued. Cooperative
associations, corporations and partnerships shall be organized pursuant
to state, federal or tribal law. Cooperative associations,
corporations, and partnerships applying for a guaranteed or insured loan
to purchase, establish or operate an economic enterprise on a
reservation must comply with the requirements of applicable rules,
resolutions, or ordinances enacted by the governing body of the tribe,
if applicable.
(40 FR 12492, Mar. 19, 1975; 40 FR 20952, May 15, 1975.
Redesignated at 47 FR 13327, Mar. 30, 1982, as amended at 57 FR 46473,
Oct. 8, 1992)
25 CFR 103.8 Eligible individuals.
Indians who are members of tribes recognized by the federal
government as eligible for services from the Bureau of Indian Affairs
are eligible for guaranteed or insured loans. Individuals applying for
a guaranteed or insured loan to purchase, establish or operate an
economic enterprise on a reservation must comply with the requirements
of applicable rules, resolutions or ordinances enacted by the governing
body of the tribe.
(54 FR 34975, Aug. 23, 1989)
25 CFR 103.9 Eligible lenders.
(a) Those financial institutions subject to examination and
supervision by an agency of the United States, a state, or the District
of Columbia, having the capacity to evaluate, process, disburse, and
service loans, and Indian tribes making loans from their own funds to
other tribes or organizations of Indians, are eligible to have loans
insured under this part 103. Loans made by any lender regularly engaged
in making loans, having the capacity to accept and process applications
and service loans, and which lender is satisfactory to the Commissioner,
may be guaranteed. Any national bank or federal savings and loan
association, or any bank, trust company, building and loan association,
or insurance company authorized to do business in the District of
Columbia may make any loan of which at least 20 percent is guaranteed
under this part 103 without regard to the limitations and restrictions
of any other federal statute with respect to:
(1) Ratio of amount of loan to the value of the property;
(2) Maturity of loans,
(3) Requirement of mortgage or other security,
(4) Priority of lien, or
(5) Percentage of assets which may be invested in real estate loans.
(b) Any guaranty certificate issued pursuant to this part 103 or any
loan insured pursuant to an agreement with a lender approved in
accordance with this part 103 shall be conclusive evidence that the loan
was eligible for guaranty or insurance.
25 CFR 103.10 Ineligible loans.
The following loans are not eligible for guaranty or insurance under
this part 103:
(a) Loans made by any agency or instrumentality of the federal
government.
(b) Loans made by an organization of Indians making loans from funds
borrowed from the United States.
(c) Loans where the interest income is not included as taxable income
under Chapter 1 of the Internal Revenue Code of 1954 as amended.
(d) Loans with repayment terms exceeding thirty years.
(e) Loans which are linked to Federally tax-exempt bond obligations.
(f) Loans to a borrower whose equity, as defined in 103.1, in the
business being financed is less than 20 percent.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46473, Oct. 8, 1992)
25 CFR 103.11 Guaranteed loans.
Loans, except those excluded in 103.10, made by any lender meeting
the requirements of 103.9(a), which are satisfactory to the
Commissioner may be guaranteed. Applications for guaranty will be
considered on a loan by loan basis. No guaranty shall be effective
until issuance of a guaranty certificate by the Commissioner and receipt
of the guaranty premium from the lender. A guaranty certificate shall
be issued only when, in the judgment of the Commissioner, there is a
reasonable prospect of repayment of the loan.
25 CFR 103.12 Insured loans.
(a) Eligible lenders, as prescribed in 103.9, and tribes making
loans from their own funds to other tribes or Indian organizations, may
make insured loans, except those excluded in 103.10 pursuant to the
provisions of an insurance agreement entered into between the
Commissioner and the lender. Insurance agreements may be entered into
by the Commissioner and eligible lenders which will authorize the
lenders to make insured loans to eligible applicants without the
Commissioner's approval of each individual loan. Separate insurance
agreements will be issued by the Commissioner for those loans which
require the issuance of individual insurance agreements.
(b) Lenders will make loans only when there is a reasonable prospect
of repayment. The insurance on any loan made under the provisions of an
insurance agreement will not be effective until receipt of the insurance
premium by the Commissioner.
25 CFR 103.13 Amount of guaranty.
(a) The percentage of a loan that is guaranteed shall be the minimum
necessary to obtain financing for an applicant, but may not exceed 90
percent of the unpaid principal and interest. The liability under the
guaranty shall increase or decrease pro rata with an increase or
decrease in the unpaid portion of the principal amount of the
obligation. No loan to an individual Indian, partnership, or other
non-tribal organization may be guaranteed for an unpaid principal amount
in excess of $500,000 or such maximum amount provided in any amendments
to the Indian Financing Act of 1974.
(b) Applications of minors as determined by applicable state and
federal law, may not be approved unless the natural parents or legal
guardians, with reputations as being responsible individuals, co-sign
the promissory note(s) and securing document(s). Not more than one
guaranteed loan may be in effect with the same borrower at any time
without the prior approval of the Commissioner.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 54 FR 34975, Aug. 23, 1989; 57 FR 46473, Oct. 8,
1992)
25 CFR 103.14 Amount of insurance.
(a) The insurance provisions will apply to loans made by a particular
lender under the terms of an insurance agreement entered into between
the Commissioner and the lender. The insurance procedure will be used
primarily for loans to finance small economic enterprises and
secondarily for housing. A lender may be reimbursed for a loss on a
particular loan in an amount not to exceed 90 percent of the loss on
principal and unpaid accrued interest on the loan. However, the total
reimbursement to a lender for losses may not exceed 15 percent of the
aggregate of insured loans made by it.
(b) Loans for any amount made by tribes from their own funds to other
tribes or Indian organizations will not be insured without the prior
approval of the Commissioner. No loan to finance an economic enterprise
with a principal amount in excess of $50,000 shall be insured without
the prior approval of the Commissioner. No loan to an individual Indian
may be insured which would cause the total unpaid principal amount to
exceed $100,000. Any loan to an individual Indian having a principal
amount in excess of $50,000 will require prior approval of the
Commissioner. No loan to an individual with a principal amount of less
than $2,500 or for a term of less than one year may be insured. No loan
to a tribe or Indian organization for a principal amount of less than
$10,000 for a term of less than one year may be insured. An exception
may be made to these limitations on amounts and time, if approved by the
Commissioner.
(c) Applications of minors may not be approved unless the natural
parents or legal guardians, with reputations as being responsible
individuals, co-sign the promissory note(s) and securing documents. Not
more than one insured loan may be in effect with the same borrower at
any time without the prior approval of the Commissioner.
25 CFR 103.15 Applications for loan guaranties or insurance.
(a) Applicants for loans will deal directly with lenders for both
guaranteed and insured loans. The form of loan applications will be
determined by the lender. The application for a loan guaranty or
insurance, or attachments thereto, must include or show the following:
(1) The name and address of the borrower with the tax identification
number if the borrower is a business entity or the social security
number if an individual;
(2) A statement signed by the borrower that the borrower is not
delinquent with any Federal tax or other obligations;
(3) The plan of operation for the economic enterprise including an
identified target market for the goods or services being offered;
(4) Purpose(s) and the amount of the loan;
(5) Security to be given which shall be itemized with valuations of
such collateral and the method used to value the collateral, the date of
such valuation, who performed the valuation, and the creditor priority
positions;
(6) Hazard and liability insurance to be carried;
(7) Interest rate;
(8) Repayment schedule;
(9) Repayment source(s);
(10) How title to the property to be purchased with the loan will be
taken;
(11) Current financial statements of the loan applicant;
(12) Description and dollar value of the equity or personal
investment to be made by the applicant;
(13) Charges pursuant to 103.44;
(14) Pro forma balance sheets, operating statements and cash flow
statements for at least three years;
(15) Balance sheets and operating statements for the two preceding
years, or applicable period thereof if already in operation;
(16) The lender's evaluation of the economic feasibility of the
enterprise and internal credit memorandum; and
(17) A current credit bureau report on the borrower.
Applications will also show the percentage of guaranty requested.
(b) Reasonable assurance of repayment will be considered to exist:
(1) In the case of individuals, where past operations and future
prospects of the applicant's operations demonstrate ability to repay the
loan from production, earnings, or other assets. Full consideration
will be given to the applicant's managerial ability and experience.
(2) In the case of tribes and Indian organizations, where past
operations or future plans of operations indicate that the economic
enterprise for which financing is requested is economically sound. Full
consideration will be given to arrangements for efficient management of
the economic enterprise for which financing is requested.
(c) The Commissioner may review applications for guaranteed loans
individually and independently from the lending institution.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 54 FR 34975, Aug. 23, 1989; 57 FR 46473, Oct. 8,
1992)
25 CFR 103.16 Loan otherwise available.
If the information in an application for a guaranteed or insured loan
indicates that the applicant may obtain the loan without a guaranty or
insurance, the Commissioner may deny the request for a guaranty or
insurance.
(57 FR 46473, Oct. 8, 1992)
25 CFR 103.17 Refinancing.
(a) Applications for loans to refinance indebtedness will be approved
only if justified and required due to the applicant's financial position
and if clearly to the advantage of the applicant. Applications to
refinance loans to an economic enterprise will be accompanied by
financial and cash flow statements required in 103.15(a) (1) through
(17).
A guaranty of a loan to refinance existing indebtedness will be
considered only if the loan will result in a significantly lower
lender's interest rate to the borrower, or provide a substantially
longer term for repayment of the loan, or decrease the loan-to-asset
value ratio of the business being financed.
(b) Applications for refinancing loans not guaranteed or insured
under this part 103 will not be approved for guaranty or insurance if,
in the opinion of the Commissioner, the submittal of the application is
motivated primarily to obtain guaranty or insurance of a loan which
otherwise would be made.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46473, Oct. 8, 1992)
25 CFR 103.18 Furnishing additional information.
The Commissioner may require either the lender or the borrower, or
both, to furnish additional information or justification for a loan
prior to issuance of a guaranty certificate or insurance agreement where
Commissioner approval of an individual insured loan is required.
25 CFR 103.19 Approval of guaranteed loans.
(a) Upon a lender's approval of an application for a guaranteed loan,
the lender will forward the application in duplicate to the Commissioner
with a ''Request for Guaranty''. The Commissioner will approve the
application by issuance of a ''Guaranty Certificate'' which will show
the percentage amount of the loan guaranteed, the premium to be paid to
the Commissioner and the interest subsidy to be paid on the loan by the
United States.
(b) If the application is not approved, the original will be returned
to the lender with an explanation, and a copy furnished the loan
applicant.
25 CFR 103.20 Approval of insured loans.
After a lender approves a loan eligible for insurance in accordance
with an approved insurance agreement, the lender will proceed as
authorized by the agreement. Applications for insured loans which
require approval by the Commissioner as prescribed in 103.14 will be
forwarded in duplicate to the Commissioner with a ''Request for
Insurance'' signed by the lender. The Commissioner will approve the
application by issuance of an ''Insurance Agreement''. If the
application is not approved, the original will be returned to the lender
with an explanation.
25 CFR 103.21 Modification of loan agreements.
(a) Guaranteed and insured loans may be modified with the approval of
the parties to the original loan agreement. Modification of guaranteed
loans and those insured loans which required Commissioner approval,
requires the Commissioner's approval only if the modification involves,
(1) change of the repayment schedules, (2) changes in the prime
security, (3) change of interest rate, (4) change in the use of loan
funds, (5) increase in the principal amount of a loan, except as
provided in 103.22, (6) change of the plan of operation, (7) amendment
or changes in the organization papers of the borrower, (8) changes in
partnership agreements, and (9) change in the location of an enterprise.
(b) Lenders making insured loans which under the provisions of an
approved insurance agreement do not require Commissioner approval shall
use prudence in approving requests for modifications of loan agreements
and follow the lender's customary procedures and practices which are
used in connection with noninsured loans made by it. Modifications are
to be in compliance with the provisions of 103.13, 103.14, and 103.24.
Lenders making insured loans under the provisions of such an insurance
agreement shall notify the Commissioner not later than 20 days after
approval of a modification of such insured loan. Modifications of the
organization papers of corporations or cooperative associations and
partnership agreements and plans of operation which originally required
Commissioner approval, require approval by the Commissioner upon
modification.
25 CFR 103.22 Protective advances.
When provided for in a loan agreement, and subject to the limitations
on the amounts and terms of loans as provided in 103.13, 103.14, and
103.24, lenders may advance, for certain purposes, up to 10 percent of
the amount for which a guaranteed or insured loan originally was
approved. If the borrower is unable to provide the funds or refuses to
do so, an advance may be made for purposes necessary and proper for the
preservation, maintenance or repair of the property purchased with or
given to secure the loan; for accrued taxes, special assessments,
ground and water rents, and hazard and liability insurance premiums;
and for any other purpose necessary for the protection of the interest
of the lender or borrower. The additional advance will be charged
against the borrower. Repayment of the protective advance shall be
automatically guaranteed or insured at the same percentage rate as
applied to the original amount of the loan upon the Commissioner's
receiving notice from the lender that an additional amount has been
advanced with a statement as to the necessity and purpose(s) of the
advance. Such documentation shall be furnished along with the premium
for the additional amount pursuant to 103.43(b). The amount of any
additional advance shall be scheduled for repayment proportionately over
the remaining installments of the unpaid principal balance of the loan.
The interest rate charged on protective advances as provided for in this
section will be determined in accordance with the provisions of 103.41.
25 CFR 103.23 Increase in principal of loans.
(a) Borrowers requiring additional funds may apply for an increase in
a guaranteed or insured loan with the same lender. Applications to
increase the amount of guaranteed and insured loans which originally
were approved by the Commissioner, require his approval upon increases
in amounts. Lenders making insured loans which under the provisions of
an approved insurance agreement which did not require Commissioner
approval, may approve applications for an increase in the principal of
such loans subject to compliance with the limitations contained in
103.14 and 103.24. Such insured lenders shall immediately notify the
Commissioner upon approval of an increase in the principal of a loan and
remit the premium on the increase pursuant to 103.43(b).
(b) The application for an increase in the amount of a loan must show
the reasons why an increase is needed, the amount and purposes for which
the funds will be used, and the repayment schedule. If the financing
involves an economic enterprise, the application must be accompanied by
the information required in 103.15(a) (1) through (17) of this part.
(c) The interest rate to be charged on principal increases will be
determined in accordance with the provisions of 103.41.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46473, Oct. 8, 1992)
25 CFR 103.24 Maturity.
The period of maturity of guaranteed and insured loans will be
determined according to the circumstances, but may not extend beyond 30
years from the date of the first advance. All maturities will be
consistent with sound business practices and customs of lenders in the
area.
25 CFR 103.25 Amortization.
All loans shall be scheduled for repayment at the earliest
practicable date consistent with the purpose(s) of the loans and the
repayment capacity of the borrowers. Lenders will require amortization
in accordance with customary practices in the area for loans for the
same purposes. Loan payments may be scheduled for repayment either
monthly, quarterly, semi-annually or annually. Balloon installments
shall be avoided.
25 CFR 103.26 Prepayments.
Borrowers whose loans are guaranteed or insured under this part 103
shall have the right to prepay all or any part of the indebtedness at
any time without penalty unless otherwise provided for in the loan
agreement. Lenders and borrowers may agree that prepayments applied to
the latest loan installments may be reapplied to current installment(s)
to cure or prevent any subsequent default. The Commissioner shall be
notified promptly by the lender when payments are made in advance of the
due dates.
25 CFR 103.27 Amount of security.
Lenders will require borrowers to give security, if available, up to
an amount adequate to protect the loan, without consideration of the
guaranty or insurance. The lender shall itemize and describe the
collateral given as security as described in 103.15(a)(5) and (10) of
this part.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46473, Oct. 8, 1992)
25 CFR 103.28 Filing and recording.
(a) All securing documents and financing statements, when applicable,
except assignments of income from trust land and mortgages on documented
vessels, shall be filed or recorded in the appropriate county or other
public office in accordance with state law. Mortgages on documented
vessels will be filed at the Customs House designated as the home port
of the vessel as shown on the marine document. Security interests in
personal property will be perfected in accordance with the provisions of
Article 9 of the Uniform Commercial Code in states in which the code has
been adopted.
(b) Lenders are responsible for filing a copy of assignments of
income from trust land with the office of the Bureau of Indian Affairs
having jurisdiction over the trust land involved and for filing or
recording other securing instruments pursuant to the laws of the state
in which the property is located or in the proper Customs House.
Lenders must also see that: (1) Effective liens are maintained at all
times; (2) taxes on the property included in the securing instruments
are paid promptly to prevent such taxes from becoming a lien taking
priority over a mortgage; and (3) hazard and liability insurance is
obtained and maintained in an amount sufficient to protect the security
against the risks or hazards to which it may be subjected, to the extent
customary in the locality. Failure of a lender to discharge any of
these responsibilities will diminish the amount of the guaranty or
insurance to the extent of any loss caused by the lender's failure,
unless there are extenuating circumstances which in the judgment of the
Commissioner do not justify a reduction of the amount guaranteed or
insured.
25 CFR 103.29 Property purchased with loan funds.
(a) Lenders making guaranteed or insured loans which include funds to
finance construction of buildings, or installation of water, sewage,
electrical or gas lines shall assure that the site is appropriate and
adequate; cost estimates are prepared and are in line with current
costs; plans are prepared by qualified individuals or a firm;
provisions are made to assure compliance with applicable building codes,
zoning and labor laws; and inspections are made by qualified inspectors
during construction and upon completion. Upon receiving applications
involving funds to finance construction, lenders may request assistance
and guidance from the Commissioner on such matters. The Commissioner
may arrange for an inspection of any property purchased with guaranteed
or insured loans at any reasonable time. Property which may be
inspected includes proposed building sites, during and on completion of
construction of buildings; electrical, sewage, water or gas lines; and
livestock and machinery purchased with loan funds.
(b) Lenders will require that any property purchased with a
guaranteed or insured loan, except land purchased by a tribe, title to
which is taken in trust or restricted status, be mortgaged to the lender
as security for the loan, unless the loan is otherwise adequately
secured.
25 CFR 103.30 Land.
(a) Indian individuals may execute mortgages or deeds of trust on
nontrust or unrestricted land as security without the approval of any
Federal official.
(b) Tribal land, title to which is held in a trust or restricted
status, may not be mortgaged unless specifically authorized by Congress.
(c) Individually-owned land held in trust or restricted status may be
mortgaged as security for a loan in accordance with 25 CFR 152.34 and
the Act of March 29, 1956 (70 Stat. 62; 25 U.S.C. 483a). Mortgages of
individually held trust or restricted land will include only the acreage
of the land owned by a borrower, which the Commissioner considers is
adequate to protect the loan in case of default. Mortgages on
individually held trust or restricted land shall be subject to
foreclosure or sale pursuant to the terms of the mortgage. For the
purposes of any foreclosure or sales proceedings, the owner shall be
regarded as vested with an unrestricted fee simple title to the land.
The United States shall not be a necessary party to the proceedings
pursuant to the Act of March 29, 1956 (70 Stat. 62; 25 U.S.C. 483a).
Any conveyance of the land pursuant to such proceedings shall divest the
United States of title to the land. Trust or restricted land given as
security for a loan shall not be sold or title otherwise transferred
without giving the Commissioner and the tribe of the reservation on
which the land is located, or is adjacent to, written notice, at least
45 days in advance of the date of sale or proposed transfer of title.
(d) Tribes, corporations, cooperative associations, partnerships, and
Indian individuals leasing trust or restricted land may, when provided
in the lease and approved by the lessor and the Commissioner, mortgage
their leasehold interest in the leased premises for the purpose of
borrowing capital for the development and improvement of the leased
premises.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46473, Oct. 8, 1992)
25 CFR 103.31 Chattels.
Tribes, organizations and Indian individuals may execute mortgages on
nontrust and unrestricted chattels as security without the approval of
any federal official. If a lender requires, the Commissioner may
approve mortgages of trust or restricted chattels given to secure
guaranteed or insured loans. A tribe must adhere to the provisions of
its constitution, bylaws, charter, or other organizational documents in
mortgaging chattels. Mortgaged chattels shall be subject to foreclosure
or sale pursuant to the terms of the mortgage or security agreement in
accordance with applicable laws.
25 CFR 103.32 Crop mortgages.
Crops grown on leased trust or restricted land may be mortgaged as
security for a loan with the approval of the lessor and the
Commissioner. Individuals owning trust or restricted land may mortgage
crops grown on such land as security for a loan with approval of the
Commissioner. Crops grown on trust or restricted land after severance
from the land and crops grown on nontrust and unrestricted land may be
mortgaged as security without the approval of any Federal official.
25 CFR 103.33 Assignments of income.
(a) A tribe or organization may execute assignments of trust income
from specific sources as security for loans, pursuant to authorization
in its constitution, bylaws, charter, or other organization papers.
Tribes may not execute general assignments of trust income as security
for loans. Assignments of trust income require approval by the
Commissioner before becoming effective.
(b) Assignments of income from the trust or restricted land of an
Indian individual may be executed as security for loans with the
approval of the Commissioner. However, restricted land of heirs or
devisees of members of the Five Civilized Tribes of Oklahoma is subject
to the jurisdiction of Oklahoma state courts under the Act of August 4,
1947 (61 Stat. 73).
25 CFR 103.34 Restrictions.
Unless the security for a loan requires approval of a federal
official, no restrictions shall be placed by any official upon the
security that may be given for a loan. Lenders will document any and
all prior security interests of record with respect to proposed
collateral. Lenders will use caution in making certain that the
security taken is unencumbered. Lenders will follow the same prudent
procedures as if the borrower were a non-Indian or a non-Indian
organization.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46473, Oct. 8, 1992)
25 CFR 103.35 Release of security.
The prime security for a loan will not be released unless the
property is sold and the net proceeds applied to the loan. When
approved by the Commissioner, the prime security may be released when
the property is sold and the proceeds are used to purchase property of
similar nature and use and of at least equal value and lien priority as
the property sold and when the lender, borrower and Commissioner agree
that the sale and such use of the proceeds are necessary for the success
of an economic enterprise. Lenders may release property which is
planned to be sold in the regular course of a business when the proceeds
are to be used for purposes which the lender determines are necessary
and proper in connection with the type of economic enterprise involved.
Releases of security involving trust income or trust or restricted land
will require the prior approval of the Commissioner.
25 CFR 103.36 Default on guaranteed loans.
(a) Within 45 calendar days after the occurrence of a default, the
lender shall notify the Commissioner by certified or registered mail
showing the name of borrower, guaranty certificate number, amount of
unpaid principal, amount of principal delinquent, amount of interest
accrued and unpaid to date of notice, amount of interest delinquent at
time of notice, and other failure of the borrower to comply with
provisions of the loan agreement. Within 60 calendar days after default
on a loan, the lender shall proceed as prescribed in either paragraph
(b), (c), or (d) of this section, unless an extension of time is
requested by the lender and approved by the Commissioner. The request
for an extension shall explain the reason why a delay is necessary and
the estimated date on which action will be initiated. Failure of the
lender to proceed with action within 60 calendar days or the date to
which an extension is approved by the Commissioner shall cause the
guaranty certificate to cease being in force or effect. If the
Commissioner is not notified of the failure of a borrower to make a
scheduled payment or of other default within the required 45 calendar
days, the Commissioner will proceed on the assumption that the scheduled
payment was made and that the loan agreement is current and in good
standing. The Commissioner will then decrease the amount of the
guaranty pro rata by the amount of the due installment and the lender
will have no further claim for guaranty as it applied to the
installment, except for the interest subsidy on guaranteed loans which
may be due.
(b) The lender may make written request that payment be made pursuant
to the provisions of the guaranty certificate or guaranty agreement. If
the Commissioner finds that a loss has been suffered, the lender may be
paid the pro rata portion of the amount guaranteed including unpaid
interest.
(c) The borrower and the lender may agree upon an extension of the
repayment terms or other forbearance for the benefit of the borrower.
The lender may extend all reasonable forbearance if the borrower becomes
unable to meet the terms of a loan. However, such forbearance will not
be extended if it will increase the likelihood of a loss on a loan.
Agreements between a lender and a borrower shall be in writing and will
require approval by the Commissioner.
(d) The lender may advise the Commissioner in writing that suit or
foreclosure is considered necessary and proceed to foreclosure and
liquidation of all security interests. On completion of foreclosure and
liquidation, if the Commissioner determines that a loss has been
suffered, the lender will be reimbursed for the pro rata portion of the
amount of unpaid principal and interest guaranteed. A lender will
submit a claim for reimbursement for losses on a form furnished by the
Commissioner and will furnish any additional information needed to
establish the amount of the claim. On reimbursement of a lender for the
pro rata amount of the loss guaranteed as provided in the guaranty
certificate, the lender will subrogate its rights and interest in the
loan to the United States and assign the loan obligations and security
for the loan to the United States. The Commissioner may establish the
date on which accrual of interest or charges shall cease. This date may
not be later than the date of judgment and decree of foreclosure or
sale. The Commissioner will take any action necessary to protect the
interest of the United States.
Subsequent to subrogation and assignment, any collections shall be
for the account of the United States up to the amount paid on the
guaranty plus any costs or expenses incurred by the United States.
Collections will be deposited in the loan guaranty and insurance fund
established pursuant to this part. Any amounts collected in excess of
those necessary to reimburse the United States for amounts paid under
the guaranty plus costs or expenses shall be paid to the lender up to
the amount of the lender's losses. Any residue from collection shall go
to the borrower.
(57 FR 46473, Oct. 8, 1992)
25 CFR 103.37 Default on insured loans.
Within 45 calendar days after the occurrence of a default of a loan
made under the provisions of an insurance agreement, the lender shall
notify the Commissioner by certified or registered mail giving the name
of the borrower, insurance agreement number, amount of unpaid principal,
amount of delinquent principal, accrued interest unpaid to date of
notice, amount of delinquent interest and description of default.
Within 60 calendar days after default on an insured loan, the lender
shall proceed as prescribed in paragraphs (a) or (b) of this section
unless it has requested, and the Commissioner has approved, an extension
of time. A request for an extension of time will explain the necessity
for an extension and the estimated date on which action will be
initiated. Failure of the lender to proceed within 60 calendar days or
the extended time approved by the Commissioner, will be grounds for the
Commissioner to terminate the loan insurance on the loan involved.
(a) The lender and borrower may agree upon an extension of the
repayment terms of a loan or other forbearance for the benefit of the
borrower. However, such forbearance will not be extended if it will
increase the likelihood of a loss on a loan. Insured loans made under
the provisions of a general insurance agreement authorizing a lender to
make loans under the terms prescribed in the agreement will not require
Commissioner approval of changes in agreements made by the lender and
borrower. Provided, such changes are in compliance with the
requirements of 103.21 and the applicable sections referred to therein.
The lender shall immediately notify the Commissioner within 21 calendar
days of changes made in the agreement. Insured loans made which
originally required the issuance of a separate insurance agreement by
the Commissioner will require Commissioner approval of changes in the
provisions of such loans.
(b) If an insured lender determines that proceeding under paragraph
(a) of this section is contrary to its customary lending practices or is
not in the interest of a borrower, it will be required to exhaust all
reasonable efforts to collect the loan and to liquidate the security to
the fullest extent feasible before submitting a claim for reimbursement
of a loss.
(c) If a lender proceeds under the provisions of paragraph (b) of
this section and suffers a loss, it may submit a claim for reimbursement
for unpaid principal and interest on a form furnished by the
Commissioner and will furnish any additional information needed to
establish the amount of the claim. Claims will be submitted to the
Commissioner within 45 calendar days after completion of the procedures
prescribed in this section. All claims shall be accompanied by evidence
showing that all reasonable efforts to collect the loan have been
exhausted and that security given for the loan has been liquidated to
the extent feasible. If the Commissioner agrees that a loss has
occurred, he will reimburse the lender pursuant to the terms of the
approved insurance agreement under which the loan was insured. Upon
reimbursement by the Commissioner to the lender in whole or in part for
the loss insured, the note and security for the loan or judgment
evidencing the debt shall be assigned to the United States. The lender
shall have no further claim against the United States or the borrower.
The Commissioner will then take such further collection action as may be
warranted. The Commissioner may establish a date upon which accrual of
interest or charges shall cease.
25 CFR 103.38 Subrogated and assigned rights.
The Commissioner will take such action as he deemed appropriate to
realize the maximum recovery upon the rights to which the United States
is subrogated and the security assigned to the United States. Any
amount collected will be deposited in the loan guaranty and insurance
fund.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46474, Oct. 8, 1992)
25 CFR 103.39 Cancellation.
The Secretary may cancel the uncollectable portion of any obligation
assigned to the United States or rights to which the United States is
subrogated and the security assigned to the United States.
(54 FR 34976, Aug. 23, 1989)
25 CFR 103.40 Charges upon liquidation.
Lenders may charge the following against the gross amounts collected
from the sale of security in determining the amounts to be claimed under
a guaranty certificate or insurance agreement:
(a) Reasonable and necessary expenses for preservation of the
security.
(b) Court and attorney costs in a foreclosure or proper judicial
proceeding involving the security.
(c) Other reasonable expenses necessary for collecting the debt or
for repossession, protection, and liquidation of the security.
(d) Other expenses or fees approved in advance by the Commissioner.
(e) Accrued unpaid interest to the date of judgment and decree of
foreclosure or sale, or the date established by the Commissioner that
accrued interest shall cease pursuant to 103.36 and 103.37.
25 CFR 103.41 Interest.
Interest rates charged by lenders on guaranteed and insured loans,
exclusive of loan service charges, if any, shall not exceed such percent
per annum on the principal obligation outstanding as the Commissioner
determines to be reasonable and legal at the time a loan is guaranteed
or insured, taking into account the range of rates prevailing in the
private market for similar loans and the risks assumed by the United
States. Each loan shall show the rate of interest to be charged.
Interest shall be payable at least annually. Once a loan is closed the
interest rate may not be increased except when a variable interest rate
tied to a specified base rate agreed upon by the borrower and the lender
has been approved by the Commissioner. Lenders may not charge interest
on loan funds used for payment of loan service charges.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 54 FR 34976, Aug. 23, 1989)
25 CFR 103.42 Interest subsidy.
(a) The Commissioner may pay an interest subsidy to lenders on loans
which are guaranteed or insured under this part 103 at rates which are
necessary to reduce the interest rate payable by the borrowers to a rate
determined in accordance with title I, section 104, of the Indian
Financing Act of 1974 (Pub. L. 93-262, 83 Stat. 77). The rate of
subsidy will be established by the Commissioner at the time of issuance
of a guaranty certificate or insurance agreement on loans requiring
approval by the Commissioner. Interest subsidy payments by the United
States shall be discontinued on such loans if the lender elects to
discontinue the guaranty or insurance or causes the termination of the
guaranty or insurance by failure to make premium payments as required by
103.43, or when one of the following occurs:
(1) The loan is paid in full prior to the expiration of the original
term.
(2) The loan is refinanced by a new loan.
(3) The repayment schedule on the principal balance owing is extended
beyond the original term, unless an exception is approved by the
Commissioner. The interest subsidy shall only be discontinued as to the
balance which has been extended beyond the original term of the loan.
(4) The lender on a defaulted loan is reimbursed for a guaranteed or
insured loss. The date of the check shall be the date of reimbursement.
(5) Cash flow form the business being financed appears sufficient to
pay for full debt service based on periodic review by the Commissioner.
Cash flow shall be deemed sufficient to pay debt service when earnings
before interest and taxes, after adjustments for extraordinary items,
equal or exceed industry norms.
(b) The lender shall notify the Commissioner that he has made or
modified an insured loan under the provisions of a general insurance
agreement within 20 days of such action and provide the Commissioner
with the following information:
(1) The name and address of the borrower.
(2) Tribal affiliation of the borrower.
(3) Amount of the loan and purpose(s).
(4) The repayment schedule.
(5) The interest rate charged the borrower.
(6) The date(s) funds were advanced.
(c) After receiving notice from the lender, the Commissioner will
establish the interest subsidy rate and notify the lender of the rate
established. The Commissioner may establish procedures requiring
lenders to provide reports which will expedite the prompt payment of
interest subsidies. Interest subsidies will be paid on the unpaid
principal balance owed by a borrower either annually, semiannually,
quarterly or monthly, depending on the time interest is scheduled to be
paid and as near the due date as feasible, but not before. Lenders
shall notify the Commissioner promptly when borrowers pay interest or
principal in advance of the due date(s) provided in the loan agreement.
The interest subsidy rate established by the Commissioner will be in
effect for three years. At the end of the third year the need for
subsidy will be reviewed and extended on an annual basis for the next
two years, if justified.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46474, Oct. 8, 1992)
25 CFR 103.43 Premium charges.
A premium of 2.0 percent of the guaranteed portion of a loan will be
charged to lenders. The lender may increase the principal amount of the
loan by the cost of the premium and charge it to the borrower. The
lender shall pay the premium within 90 days of the date of approval of
the loan guaranty. Existing lenders may elect to modify their Loan
Guaranty and Insurance Agreements with the Bureau of Indian Affairs so
as to pay future premium payments in a lump sum. If the guaranty
premium is not paid within 90 days of approval of the loan guaranty or
modification of the agreement, the Commissioner will send the lender a
notice of non-payment. If the premium is not paid within 30 days of the
receipt of this notice, the guaranty shall be subject to termination.
(57 FR 46474, Oct. 8, 1992)
25 CFR 103.44 Other charges.
Funds may be included in loans for payment of reasonable and
customary costs for legal or architectural services, appraisals,
surveys, compliance inspections, title searches, lien searches,
recordation costs, hazard and liability insurance premiums, taxes and
such other charges as the Commissioner may authorize at the time a loan
is made. Loan service charges, if any, may be charged if authorized in
the loan agreement. Funds included in a loan for payment of loan
service charges may not bear interest pursuant to 103.41. Payment by
the borrower of points, finders fees, loan origination fees, bonuses or
commissions for loans guaranteed under this part is prohibited.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46474, Oct. 8, 1992)
25 CFR 103.45 Late charge.
Lenders may assess borrowers a late charge on any loan installment,
principal only, received more than 30 days after its due date if the
loan agreement at the time of approval contains an authorization to this
effect. The rate shall be specified in the loan agreement. The amount
of late charges assessed may not be guaranteed or insured. Interest may
not be charged on late charges.
25 CFR 103.46 Loan servicing.
(a) The guaranty or insurance of a loan by the Commissioner and the
issuance of an insurance agreement will be based on the requirement that
adequate loan servicing will be performed by the lender. Loan servicing
will be without cost to the borrower, unless the Commissioner authorizes
a charge at the time the loan is made pursuant to 103.44.
Authorizations for such charges shall be in writing and included in the
loan agreement. Lenders are expected to follow accepted standards
employed by prudent lenders in the area in servicing similar type loans.
In servicing loans, lenders will make every effort to prevent and
minimize potential losses. Lenders will use prudence in disbursing loan
funds to borrowers to assure, to the extent feasible, that loan funds
are used only for the purposes for which the loan is made. Unless
approved by the Commissioner, any amounts disbursed for purposes other
than those provided in the loan agreement shall be excluded in the
computing the amount for which the lender may be reimbursed in the event
of a loss on a loan.
(b) Loan servicing must meet the following standards regarding
billing and documentation. Payments must be routinely invoiced, in most
cases on a monthly basis. Invoices shall include the date the payment
is due and the date the payment will be considered late (i.e., grace
period). Borrowers should be encouraged to use pre-authorized debits or
credit cards when making payments. Loan files must contain current
information on payment history, including delinquencies and defaults,
and any subsequent loan action concerning deferrals, refinancing, or
rescheduling. There should be a record of the time and outcome of each
contact with the borrower, including notification of delinquent status,
requests for repayment, and intent to report the delinquent debt to
credit bureaus or to refer debts to collection agencies.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46474, Oct. 8, 1992)
25 CFR 103.47 Restrictions on lenders.
Loan agreements shall not provide that the lender shall have the
right to declare the indebtedness due, or to pursue one or more legal
remedies, if the lender ''shall feel insecure''. This restriction shall
not prevent a lender from taking action against a borrower due to any
act or omission on the part of the borrower which, by the terms of a
note, mortgage, or other loan document, would allow the lender to
declare a loan in default, nor to take action to minimize the loss on a
loan.
25 CFR 103.48 Title to property purchased with loans.
Title to personal property purchased with a guaranteed or insured
loan shall be taken in the name of the borrower without a restriction
against alienation. Title to land purchased with a guaranteed or
insured loan may be taken pursuant to 103.3. Transactions involving
taking title to land purchases in trust or restricted status require
approval of the Commissioner.
25 CFR 103.49 Fraud or misrepresentation.
(a) Lenders shall use prudence in checking and verifying information
contained in loan applications as well as supporting papers and
documents in order to assure their accuracy and the validity of
signatures.
(b) There shall be no liability on the part of the United States to
reimburse an insured lender for that portion of an insured loss on a
loan caused by
(1) The lender's negligence in checking and verifying signatures,
information in the loan application, supporting papers and documents;
(2) The lender's furnishing false information to induce the issuance
of an insurance agreement by the Commissioner;
(3) The lender's furnishing false information in a loan docket on a
loan made under the provisions of a general insurance agreement issued
by the Commissioner; or
(4) The lender's willful or negligent action which resulted in a
fraud, forgery or misrepresentation.
(c) There shall be no liability on the part of the United States to
reimburse a lender on a guaranteed loan for that amount of the
guaranteed loss caused by (1) the lender's negligence in checking and
verifying signatures, information in the loan application, supporting
papers and documents; (2) the lender's furnishing false information to
induce the issuance of a guaranty certificate by the Commissioner; or
(3) the lender's willful or negligent action which permitted a fraud,
forgery or misrepresentation. A reduction will not be made in the
amount of reimbursement on a guaranteed loss to a purchaser, assignee,
or transferee who acquired the loan before maturity for value and did
not directly or by agent participate in or have prior knowledge of a
fraud, forgery or misrepresentation.
25 CFR 103.50 Loan guaranty and insurance fund.
(a) The loan guaranty and insurance fund shall be utilized for all
loan guaranty and insurance operations pursuant to the regulations in
this part 103. All receipts from operations including premium charges
shall be deposited in this fund. All disbursements incident to
administering guaranteed and insured loans shall be made from this fund.
All cash, claims, notes, mortgages, contracts, and property acquired by
the Secretary under this part 103 shall constitute assets of the fund.
All liabilities and obligations of such assets shall be liabilities and
obligations of the fund.
(b) The Commissioner will design an accounting system that will
reflect at all times the financial condition of the fund and the results
from its operation.
(c) Interest subsidies paid by the Commissioner pursuant to 103.42
shall be paid from the loan guaranty and insurance fund and charged
against an ''interest subsidy account'' as an expense of the fund.
25 CFR 103.51 Sale or assignment of guaranteed loans.
Any guaranteed loan, including the security and guaranty certificate,
may be sold to any person. The person acquiring the loan shall notify
the Commissioner in writing with 30 days after acquisition. The notice
will give the name of the borrower, the certificate number, the amount
of principal and interest unpaid on the loan, and the security acquired.
Failure of the acquirer to notify the Commissioner within 30 days of
acquisition will void the guaranty unless the Commissioner authorizes an
exception because of extenuating circumstances.
(40 FR 12492, Mar. 19, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982, as amended at 57 FR 46475, Oct. 8, 1992)
25 CFR 103.52 Records.
Lenders will maintain adequate records on guaranteed and insured
loans made and will submit reports to keep the Commissioner informed
regarding guaranteed and insured loans made. The Commissioner may
prescribe the number of reports to be submitted annually, the dates, and
the forms to be used for reporting. The Commissioner may have the
records of lenders inspected at any reasonable time during regular
business days and hours.
25 CFR 103.53 Suspension of lenders.
Whenever the Commissioner finds that any lender or holder of a
guaranty certificate or insured loan fails to maintain adequate
accounting records, to demonstrate proper ability to adequately service
loans guaranteed or insured, or to exercise proper credit judgment, or
has willfully or negligently engaged in practices detrimental to the
interests of a borrower or of the United States, he may refuse, either
temporarily or permanently, to guarantee or insure any additional loans
made by such lender or certificate holder. He may also bar such lender
or certificate holder from acquiring additional loans guaranteed under
this part 103. However, the Commissioner shall not refuse to pay a
valid guaranty or insurance claim on loans previously made in good
faith.
25 CFR 103.54 Probate.
(a) The estates of deceased borrowers who die possessed of trust
property or funds and who gave as secruity for a guaranteed or insured
loan an assignment of income from trust property, a mortgage or deed of
trust on trust or restricted land, or a lien on trust chattels or crops
growing on trust land will be probated in accordance with the applicable
regulations in subpart D of 43 CFR part 4 and in parts 16 and 17 of 25
CFR. The Superintendent or other Bureau official having jurisdiction
over the trust property and trust funds of a decedent shall promptly
notify the lender on receipt of information confirming the demise of a
borrower. The notice may be given by furnishing the lender with a copy
of the Superintendent's report to the Administrative Law Judge or by
separate letter.
(b) A lender receiving information from a Superintendent or otherwise
learning of the demise of a borrower shall notify the Administrative Law
Judge of the lender's claim against the decedent's trust estate. The
lender's notice to the Administrative Law Judge shall include:
(1) The name of the borrower.
(2) The balance owing on the loan.
(3) The trust property or income given as security for the loan.
(4) A copy of securing documents.
(5) A copy of the guaranty certificate or insurance agreement.
(c) Within 15 days after receiving information that a borrower has
died, the lender shall notify the Commissioner of this fact by
furnishing a copy of the information provided to the Administrative Law
Judge or by separate letter furnishing:
(1) The name of the borrower.
(2) The guaranty certificate number or insurance agreement number.
(3) The balance owing on loan.
(4) Any anticipated action which will be taken to protect the
interests of the lender and the United States.
(d) The notice shall be sent by registered or certified mail.
25 CFR 103.55 Information collection.
(a) The collection of information contained in 103.15 has been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1076-0020. The information will be
used to rate applicant in accordance with the terms and conditions set
forth in 103.4, 103.9, 103.15, 103.36, 103.37, 103.42, 103.43, and
103.52 have been approved by the Office of Management and Budget under
44 U.S.C. 3501 et seq. information will be is sued to rate applicants
in accordance with the terms and conditions set forth in section 103 of
the Indian Financing Act, as amended. Response is required to obtain a
benefit in accordance with 25 U.S.C. 1451.
(b) Public reporting burden for this information is estimated to
average 30 minutes per response, including the time for reviewing
instructions, searching existing data sources, gathering and maintaining
the data needed, and completing and reviewing the collection of
information. Send comments regarding this burden estimate or any other
aspects of this collection of information, including suggestions for
reducing the burden, to the Information Collection Clearance Officer,
Bureau of Indian Affairs, Mailstop 337-SIB, 18th and C Streets NW.,
Washington, DC 20240; and the Paperwork Reduction Project (1076-0020),
Office of Management and Budget, Washington, DC 20503.
(54 FR 34975, Aug. 23, 1989)
25 CFR 103.55 PART 111 -- ANNUITY AND OTHER PER CAPITA PAYMENTS
Sec.
111.1 Persons to share payments.
111.2 Enrolling non-full-blood children.
111.3 Payments by check.
111.4 Election of shareholders.
111.5 Future payments.
Authority: 5 U.S.C. 301.
Source: 22 FR 10549, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 111.1 Persons to share payments.
In making all annuity and other per capita payments, the funds shall
be equally divided among the Indians entitled thereto share and share
alike. The roll for such payments should be prepared on Form 5-322,1012
in strict alphabetical order by families of husband, wife, and unmarried
dependent minor children. Unless otherwise instructed, (a) Indians of
both sexes may be considered adults at the age of 18 years; (b)
deceased enrollees may be carried on the rolls for one payment after
death; (c) where final rolls have been prepared constituting the legal
membership of the tribe, only Indians whose names appear thereon are
entitled to share in future payments, after-born children being excluded
and the shares of deceased enrollees paid to the heirs if determined or
if not determined credited to the estate pending determination; and (d)
the shares of competent Indians will be paid to them directly and the
shares of incompetents and minors deposited for expenditure under the
individual Indian money regulations.
Cross References: For regulations pertaining to the determination of
heirs and approval of wills, see part 15 and 11.30 through 11.32C of
this chapter. For individual Indian money regulations, see part 115 of
this chapter.
0121Forms may be obtained from the Commissioner of Indian Affairs,
Washington, D.C.
25 CFR 111.2 Enrolling non-full-blood children.
Where an Indian woman was married to a white man prior to June 7,
1897, and was at the time of her marriage a recognized member of the
tribe even though she left it after marriage and lived away from the
reservation, the children of such a marriage should be enrolled -- and,
also in the case of an Indian woman married to a white man subsequent to
the above date but who still maintains her affiliation with the tribe
and she and her children are recognized members thereof; however, where
an Indian woman by marriage with a white man after June 7, 1897, has, in
effect, withdrawn from the tribe and is no longer identified with it,
her children should not be enrolled. In case of doubt all the facts
should be submitted to the Bureau of Indian Affairs, Washington, D.C.,
for a decision.
25 CFR 111.3 Payments by check.
All payments should be made by check. In making payments to
competent Indians, each check should be drawn to the order of the
enrollee and given or sent directly to him. Powers of attorney and
orders given by an Indian to another person for his share in a payment
will not be recognized. Superintendents will note in the ''Remarks''
column on the roll the date of birth of each new enrollee and the date
of death of deceased annuitants.
25 CFR 111.4 Election of shareholders.
An Indian holding equal rights in two or more tribes can share in
payments to only one of them and will be required to elect with which
tribe he wishes to be enrolled and to relinquish in writing his claims
to payments to the other. In the case of a minor the election will be
made by the parent or guardian.
25 CFR 111.5 Future payments.
Indians who have received or applied for their pro rata shares of an
interest-bearing tribal fund under the act of March 2, 1907 (34 Stat.
1221; 25 U.S.C. 119, 121), as amended by the act of May 18, 1916 (39
Stat. 128), will not be permitted to participate in future payments made
from the accumulated interest.
25 CFR 111.5 PART 112 -- REGULATIONS FOR PRO RATA SHARES OF TRIBAL
FUNDS
Sec.
112.1 Fee simple patentees.
112.2 Applicants who have received neither fee simple patents nor
certificates of competency.
112.3 Applicants who are mentally or physically incapable of managing
their affairs.
112.4 Interest in pro rata shares not vested rights unless
application approved.
112.5 Basis of distribution; pro rata shares.
112.6 Disposition of pro rata share in event of applicant's death.
112.7 Pro rata shares of minors.
Authority: Sec. 2, 34 Stat. 1221, as amended; 25 U.S.C. 121.
Source: 22 FR 10549, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross Reference: For regulations pertaining to the determination of
heirs and approval of wills, see part 15 and 11.30 through 11.32 of
this chapter.
25 CFR 112.1 Fee simple patentees.
When the applicant has been granted a patent in fee or certificate of
competency, that fact will be accepted as prima facie evidence of his
competency, but in forwarding applications of this class the agent will
give the date on which the patent was issued, report whether in his
judgment the patentee has made proper use of his privileges and would
make good use of his share of the tribal funds if paid to him, and make
a specific recommendation for approval or disapproval of the
application.
25 CFR 112.2 Applicants who have received neither fee simple patents
nor certificates of competency.
In the case of an applicant who has received neither a fee simple
patent nor a certificate of competency, the application must be
accompanied by evidence which will establish the fact that he is capable
of managing his own affairs. In forwarding applications of this class
the superintendent will report fully, as follows:
(a) Is the applicant living on this allotment? If so, is he making
reasonable efforts to cultivate his land and to support himself and
family? If he is not living on his allotment, what is his occupation?
(b) Is any part of his allotment leased? If so, to what extent does
he depend upon the rent therefrom to support himself and family?
(c) Has the applicant been given the privilege of leasing his own
lands; and if so, with what result?
(d) Has he an interest in any inherited land? If he has sold or
leased any inherited land, how has he managed the proceeds?
(e) Is the applicant of good moral character?
(f) Is he addicted to the use of intoxicants? And if so, does this
habit, in the judgment of the agent, unfit him to make proper use of his
share of the tribal funds?
(g) What is his physical condition?
(h) Is the applicant in debt? If so, to what extent and for what
purpose was the debt incurred?
(i) Has the applicant the necessary business qualifications to enable
him to manage his own affairs?
(j) Give such other information concerning the applicant as will aid
the office in determining whether or not to approve his application.
(k) Make a specific recommendation for the approval or disapproval of
the application.
25 CFR 112.3 Applicants who are mentally or physically incapable of
managing their affairs.
Applications of this class must be accompanied by evidence that will
establish the advisability of withdrawing the share. If the application
is approved, the funds will be deposited to the credit of the Indian and
handled as individual Indian money.
In forwarding applications the agent will report fully as follows:
(a) Sex and exact date of birth.
(b) Identify the applicant by allotment and last annuity-roll
numbers.
(c) What is the actual physical condition of the applicant. If
suffering from disease, submit certificate of physician if necessary to
establish disability.
(d) What is the actual mental condition of the applicant? Answer
fully.
(e) What are the material resources of the applicant?
(f) What advantages will accrue to applicant by withdrawal of his or
her share at this time?
(g) Has it been explained to the applicant and does he understand
that if the application is approved the funds will be deposited to his
credit as individual Indian money to be expended under the supervision
of the superintendent?
(h) Make a specific recommendation for the approval or disapproval of
the application.
(22 FR 10549, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 48 FR 13414, Mar. 31, 1983)
Cross Reference: For individual Indian money regulations, see part
115 of this chapter.
25 CFR 112.4 Interest in pro rata shares not vested rights unless
application approved.
On November 6, 1908, the Secretary of the Interior decided, in
effect, that the interest of an Indian in a pro rata share of a tribal
fund does not vest in the Indian an inheritable property until after his
application has been approved by the Secretary and an order signed by
him segregating it from the tribal fund. Applications for shares of
funds under this act may be made at any time, but in view of the
Secretary's decision such applications should be forwarded to the Bureau
by the superintendent as soon as they are completed and filed with him.
Applications from those who are blind, decrepit, etc., must be made
special and forwarded to the Bureau of Indian Affairs, Washington, D.C.,
as soon as possible.
25 CFR 112.5 Basis of distribution; pro rata shares.
In estimating the pro rata share of an individual, the last annuity
payroll prior to July 1, or January 1 of each year will be taken as a
basis of distribution. Where no payment has been made within 1 year,
the last census, if taken within the year, will be the basis. If no
census has been taken or payment made within a year, the last available
record -- either census or annuity roll will be used.
25 CFR 112.6 Disposition of pro rata share in event of applicant's
death.
In the event of the death of an applicant prior to the approval of
his application by the Secretary of the Interior, the share to which he
would have been entitled, if living, will revert to the tribe. In case
of the death of an applicant after approval of his application and the
signing by the Secretary of the Interior of an order for the segregation
of his share, but before payment is made, his share will descend to his
legal heirs and should be deposited to the credit of the estate pending
formal determination thereof.
Cross Reference: For regulations pertaining to the determinations of
heirs and approval of wills, see part 15 and 11.30 through 11.32C of
this chapter.
25 CFR 112.7 Pro rata shares of minors.
The shares of minors will not be withdrawn except when necessary for
their own benefit. The application should be signed by the parent or
guardian and transmitted to the Bureau by the superintendent with his
recommendation as in other cases and a full explanation of the
circumstances which justify the withdrawal. Such shares will be
deposited to the credit of the minors subject to expenditure under the
individual Indian money regulations. The term ''minor,'' as used in
this section, shall be interpreted in conformity with the State law.
Cross Reference: For individual Indian money regulations, see part
115 of this chapter.
25 CFR 112.7 PART 113 -- INDIAN MONEYS, PROCEEDS OF LABOR (IMPL)
Sec.
113.1 Purpose and scope.
113.2 Definitions.
113.3 Sources of IMPL funds.
113.4 Collection and deposit of IMPL funds.
113.5 Investment of IMPL funds.
113.6 Expenditure and use of IMPL funds.
113.7 Development and approval of IMPL use plans.
113.8 Limitations on use of IMPL funds.
Authority: 25 U.S.C. 2, 9, 155.
Source: 46 FR 47774, Sept. 30, 1981, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 113.1 Purpose and scope.
The purpose of these regulations is to set forth the conditions
governing the receipt, deposit, investment, and use of miscellaneous
revenues derived from BIA agencies and schools under the Act of March 3,
1883, as amended (25 U.S.C. 155). These regulations apply only to income
belonging to the federal government and not to tribal funds or moneys
belonging to individual Indians.
25 CFR 113.2 Definitions.
(a) ''Agency'' means any field office of the Bureau officially
designated as an Indian agency and which provides direct services at the
local level to Indians and Indian tribes, who are recognized by the
Bureau as eligible for federal services to Indians because of their
status as Indians.
(b) ''Agency Superintendent'' means the Bureau official in charge of
a Bureau agency.
(c) ''Bureau'' of ''BIA'' means the Bureau of Indian Affairs,
Department of the Interior.
(d) ''Enterprise operation'' means an economic activity operated at a
Bureau agency or school which is designated to provide goods or services
where such goods or services are not available or are not provided in an
effective or satisfactory manner, or which has as its primary purpose
enhancement of the educational experience of Indian students and is only
incidentally commercial in nature.
(e) ''IMPL funds'' means all miscellaneous revenues included within
the definition of IMPL receipts under 113.3 of this part which are
covered into the U.S. Treasury as federal trust funds under Account
14X8500, Indian Moneys, Proceeds of Labor.
(f) ''Pub. L. 638'' means the Indian Self-Determination Act, Act of
January 4, 1975, Title I, Pub. L. 93-638 (25 U.S.C. 450 et seq.).
(g) ''Project basis'' means a short-term Bureau program at an agency
or school aimed at a specific objective which can usually be
accomplished within one year's time, and which supplements on-going
Bureau programs of a more permanent nature.
(h) ''School'' includes any school operated directly by the Bureau of
by an Indian tribe or organization pursuant to a Pub. L. 638 contract
except that tribally controlled previously private contract schools are
not included within the term ''school'' for the purpose of 113.3(a)(1)
of this part.
(i) ''School Supervisor'' means the Bureau official in charge of a
Bureau school.
25 CFR 113.3 Sources of IMPL funds.
(a) IMPL receipts include --
(1) All miscellaneous revenues collected on behalf of the Bureau
through Bureau agencies and schools as income from the sale of goods or
services by the Bureau, gross receipts from leases, rentals, permits,
licenses, and fees for the use of Federal lands, facilities, and
property and revenues from other Bureau activities, including gross
receipts from activities financed by appropriated funds, except as
otherwise provided by Federal statute superseding 25 U.S.C. 155; and
(2) Interest from the investment of IMPL funds.
(b) IMPL receipts do not include --
(1) Special deposits and interest on special deposits except to the
extent provided under part 114;
(2) Funds belonging to individual Indians or Indian tribes;
(3) Fees collected under 25 U.S.C. 413 to cover the cost of work
performed by the Bureau of Indian Affairs for Indian tribes or
individual Indians;
(4) Fees collected under 40 U.S.C. 490 (k) as charges for space and
services in Bureau facilities not in excess of actual operating and
maintenance costs of providing such space or services; or
(5) Fees collected from the lease of federal buildings or the sale of
supplies, equipment, or services to other government bureaus and
departments under 31 U.S.C. 686 (b) or 40 U.S.C. 303b.
25 CFR 113.4 Collection and deposit of IMPL funds.
IMPL receipts will be handled in accordance with the procedures set
forth in Chapter 3 -- Collections, Title 7 Fiscal Procedures, General
Accounting Office Policy and Precedures Manual for Guidance of Federal
Agencies. IMPL receipts will be deposited to appropriate income codes
for Activity 2660, ''IMPL'', as contained in the Bureau Financial
Management Acounts Handbook, as revised.
25 CFR 113.5 Investment of IMPL funds.
IMPL funds not immediately required for expenditure will be invested
by the Bureau as part of its regular investment program and will remain
invested until notice is given that the funds are being allotted from
the trust account for expenditure under an approved program plan.
25 CFR 113.6 Expenditure and use of IMPL funds.
(a) IMPL funds may be used only for the benefit of the agency or
school for which such receipts were collected, and in accordance with an
approved program plan under 113.7.
(b) IMPL funds may only be expended for a program or project at an
agency or school for which the Bureau has statutory authority to operate
and for which funding has been appropriated in the current fiscal year.
They can not be used to fund programs or projects specifically reduced
or disallowed by the Congress. IMPL funds may be expended directly by
the Bureau or pursuant to a Pub. L. 93-638 contract covering tribal
operation of an authorized agency or school program or project.
25 CFR 113.7 Development and approval of IMPL use plans.
(a) Each agency superintendent, school supervisor, or other Bureau
official responsible for a Bureau school or agency shall submit an
annual IMPL program plan for the expenditure of IMPL funds held for, and
IMPL receipts accruing to, such agency or school. Program plans will be
developed within the budget cycle and will utilize guidelines, formats,
exhibits, justifications, costs principles, and other procedures
developed within the Bureau's financial management system.
(b) Each program plan shall be reviewed and approved or disapproved
by the Bureau official having direct line authority over such agency
superintendent, school supervisor, or other appropriate Bureau official.
(c) All expenditures of IMPL funds shall be in accordance with such
program plan and any amendments or revisions thereto. Expenditures
under ''IMPL'' use plans are subject to the same audit, review, and
investigation as expenditures of appropriated funds under other Bureau
programs.
25 CFR 113.8 Limitations on use of IMPL funds.
(a) IMPL funds may not be expended as part of a Pub. L. 638 grant,
but may be expended under a separate Pub. L. 638 contract which
supplements a program pursuant to a Pub. L. 638 grant.
(b) IMPL funds will not be expended for the construction or major
alteration and improvement of Federal facilities, except as specifically
authorized in the Bureau's annual budget or in case of emergency
approved by the Commissioner of Indian Affairs.
(c) IMPL funds may not be expended to acquire lands for tribes or for
the construction of tribal facilities, or for the operation and
maintenance of tribal facilities except where such expenditure
represents a portion of Bureau program costs in situations where such
costs are paid by the Bureau in lieu of rent.
(d) IMPL funds may not be expended for any other use which, from time
to time, may be excluded by executive order or by administrative
limitations issued by the Secretary of the Interior, or his authorized
representative.
25 CFR 113.8 PART 114 -- SPECIAL DEPOSITS
Sec.
114.1 Purpose and scope.
114.2 Definitions.
114.3 Investment of special deposit funds.
114.4 Payment and distribution of interest on special deposit funds.
114.5 Distribution of IMPL Escrow Account.
Authority: 25 U.S.C. 2; 25 U.S.C. 9; Pub. L. 97-100; and Pub. L.
97-257.
Source: 48 FR 48808, Oct. 21, 1983, unless otherwise noted.
25 CFR 114.1 Purpose and scope.
The purpose of these regulations is to set forth the conditions
governing the deposit, investment, and distribution of interest on funds
held by the Bureau in special deposits; and to provide procedures
required for determination of ownership and distribution of funds which
are on deposit in account 14X6703 ''Indian Moneys Proceeds of Labor
Escrow Account -- Pending Determination of Ownership''.
25 CFR 114.2 Definitions.
(a) ''Agency'' means any field office of the Bureau officially
designated as an Indian agency and which provides direct services at the
local level to Indians and Indian tribes, who are recognized by the
Bureau as eligible for federal services to Indians because of their
status as Indians.
(b) ''Agency IMPL Escrow Account'' means that portion of the funds in
14X6703 identifiable to that agency.
(c) ''Beneficiary'' means a potential beneficiary who has signed an
acceptance.
(d) ''Bureau'' or ''BIA'' means the Bureau of Indian Affairs,
Department of the Interior.
(e) ''Claimant'' means an individual (or a tribe) who asserts an
entitlement to a share of the IMPL Escrow Account but has not been
determined as a potential beneficiary.
(f) ''IMPL Escrow Account'' means account 14X6703, Indian Moneys,
Proceeds of Labor Escrow Account -- Pending Determination of
Beneficiaries, U.S. Treasury.
(g) ''Potential Beneficiary'' means an individual or tribe determined
eligible to share in the IMPL Escrow Account provided a proper
acceptance is received on behalf of the individual or tribe involved.
(h) ''Principal account'' means each separate payment or deposit of
money to the Bureau which is held as a special deposit.
(i) ''Special deposit'' means any suspense account used for the
temporary deposit of funds which cannot be credited to specific accounts
or readily distributed, including, but not limited to:
(1) Advance deposits;
(2) Advance deposits on other leases and permits for such Indian
lands;
(3) Advance payments and advance deposits required on sales of timber
and other natural resources from such Indian lands;
(4) Deposits for rights of way over such Indian lands and anticipated
right-of-way damages held until such damages are determined; and
(5) Deposits for grazing fees on such Indian lands.
(j) ''Special deposit funds'' means those funds held in special
deposits.
(k) ''Superintendent'' means the Bureau official in charge of a
Bureau agency.
25 CFR 114.3 Investment of special deposit funds.
It is the policy of the Bureau to invest all special deposit funds
which have been paid to the Bureau on behalf of Indians or Indian tribes
pending the eventual payment for the sale, lease, or other transfer of
tribal or individual Indian property and funds which are deposited
solely for the purpose of guaranteeing performance.
25 CFR 114.4 Payment and distribution of interest on special deposit
funds.
(a) It is the general policy of the Bureau that interest and earnings
from the investment of special deposit funds be credited to the
principal accounts upon which the interest was earned.
(b) At the time that a withdrawal is made from a special deposit
account, the interest earned by the principal account being withdrawn
will be computed and withdrawn from the account as a part of the same
transaction. The interest earned by the subject principal amount will
be computed into two parts:
(1) The portion of interest credited during the prior interest period
which was attributable to this principal, and
(2) The portion of interest which has been earned by this principal
amount but has not yet been credited to the account because the interest
period is not complete. This will be computed by using the month-end
balances since the last interest period times the last period's factor.
(c) No interest will be distributed to accounts which have less than
the minimum average month-end balances as determined by the Division of
Accounting Management. Any such interest not distributed would remain
in the undistributed interest account at the Bureau level to be included
in determining the next six month interest factor.
25 CFR 114.5 Distribution of IMPL Escrow Account.
(a) Determination of potential beneficiaries. Each agency will
determine the potential beneficiaries and their respective shares of the
IMPL Escrow Account at that agency by the following method:
(1) Identify the unobligated balance in the agency IMPL account as of
September 30, 1982, and interest accrued for the period ending September
30, 1982, which has subsequently been transferred into account 14X6703
IMPL Escrow Account Pending Determination of Ownership. This amount
will be called the agency IMPL Escrow Account balance.
(2)(i) Identify the length of time which has been required to
accumulate actual income into the former IMPL account to equal the
current agency IMPL escrow account balance.
(ii) To determine the beginning date for ownership computations,
subtract the length of time identified in paragraph (a)(2)(i) of this
section from April 1, 1981. (Subsequent to April 1, 1981, interest
earned on special deposits has been credited directly to each special
deposit account rather than to an IMPL account.)
(3) Examine the Individual Indian Money (IIM) accounts to determine
the total dollars transferred to each account from the principal in
special deposit accounts during the period identified in paragraph
(a)(2) of this section.
(4) Examine tribal treasury account records to determine the total
dollars transferred to each tribal trust account from the principal in
special deposit accounts during the period identified in paragraph
(a)(2) of this section.
(5) Determine the percentage of the principal transferred from
special deposit accounts into each IIM and tribal trust account. This
is done by dividing the total amount of principal transferred from
special deposit accounts into all accounts at the agency into the total
computed for each IIM and tribal trust account pursuant to paragraphs
(a)(3) and (a)(4) of this section. The formula is as follows:
(6) Multiply this percentage by the agency IMPL Escrow Account
balance to determine each potential beneficiary's share of that balance.
Should this determined share be less than ten dollars ($10.00) no
transfer of funds will be made.
(7) The formula identified in paragraph (a)(5) of this section will
be used in determining potential shares unless there are clear and
available records at the agency level to identify specific amounts. If
the records are used by the agencies they must be made available for
public review upon request.
(b) Notification of determination of potential beneficiaries. Upon
completion of the determination of all potential beneficiaries of an
agency IMPL Escrow Account, the Superintendent shall publish a general
notice which shall contain the following:
(1) Brief history of agency IMPL Escrow account;
(2) Explanation of method of determination of potential
beneficiaries;
(3) Information on availability of specific data;
(4) Instruction to potential beneficiaries on completion of
acceptance forms, explaining that only those who complete the acceptance
forms can receive any funds; and
(5) Establishment of deadline date by which potential beneficiaries
must complete the acceptance forms to receive the funds. This deadline
will be 180 days from the date of the general notice. This general
notice shall be published in the usual and customary manner for making
public such documents. If such usual and customary publication does not
include posting on the agency bulletin board and publication in at least
one local newspaper of general distribution, the posting on the bulletin
board and local newspaper publication shall be done in addition to the
usual and customary manner of publication.
(c) Acceptance by potential beneficiary. Before the funds identified
in paragraph (a) of this section as transferable to a potential
individual or tribal beneficiary can be deposited into that potential
beneficiary's account the following must be completed:
(1) The potential beneficiary must sign an acceptance of the
determination by the Secretary which shall constitute a complete release
and waiver of any and all claims by the potential beneficiary against
the United States relating to the unobligated balance of IMPL accounts
as of the close of business on September 30, 1982.
(2) The acceptance must be signed during the 180 days between the
date of the general notice provided for in paragraph (b) of this section
and the deadline date established therein.
(3) In the case of a potential tribal beneficiary, the acceptance
must be accompanied by a resolution of the appropriate tribal entity
approving the acceptance and authorizing the designated tribal
representative(s) to sign the acceptance. An acceptance on behalf of an
estate account may be signed by the Superintendent if the determination
of heirs has not become final and may be signed on behalf of individual
inherited shares by each heir if the probate determination has become
final. An acceptance on behalf of a minor may be signed by a parent,
guardian or a person acting in loco parentis. An acceptance on behalf
of an adult who has been determined legally incompetent or in need of
assistance in managing his/her affairs pursuant to 25 CFR 115.9 may be
signed by his/her authorized representative.
(d) Distribution. (1) After the expiration of the deadline
established in paragraph (b) of this section, funds of individual
beneficiaries who have completed the acceptance forms will be
transferred from the IMPL Escrow Account into each beneficiary's IIM
account. Funds derived from beneficiary estate accounts for which the
heirs have been determined will be transferred into the heirs' accounts.
Funds derived from beneficiary estate accounts for which the heirs have
not been determined will be transferred into the estate account.
(2) Interest accrued for any period after October 1, 1982 will be
credited to the beneficiary accounts on the same percentage basis as the
original share.
(3) After the expiration of the deadline established in paragraph (b)
of this section, funds of a tribal beneficiary and interest earned
thereon since October 1, 1982 will be transferred into the appropriate
tribal treasury account.
(4) Not more than ten percent (10%) of the funds which may be
transferred to a trust account for any tribe, or to an IIM account for
an individual, may be utilized by the beneficiary to pay for legal or
other representation relating to claims for such funds.
(5) Not more than two percent (2%) of the funds which may be
transferred to a trust account for any tribe, or to an IIM account for
an individual, may be utilized by the BIA to reimburse the BIA for
administrative expenses incurred in determining ownership of the funds.
(e) Appeals. (1) Any potential beneficiary or claimant may appeal
any decision made or action taken by a Superintendent under this
section. Such appeal shall be made in writing and submitted as provided
in 25 CFR part 2.
(2) As provided in part 2, the appeal must be received within 30 days
after receipt of the written notice advising the potential beneficiary
of his/her share of the IMPL Escrow account or advising the claimant
that no share has been determined for him/her. No appeals will be
accepted under this section after September 30, 1985.
(f) Distribution of residual funds. (1) After final administrative
determination of ownership, including final determination of all
appeals, and the completion of all appropriate fund transfers, but not
later than October 1, 1985, any funds remaining in an agency IMPL escrow
account may be expended subject to the approval of the Secretary for any
purpose authorized under the Act of November 2, 1921 (42 Stat. 208; 25
U.S.C. 13) and requested by the governing body(s) of the tribe(s) at the
location(s) where such agency IMPL escrow account is maintained. This
authority to expend the escrow account funds ends September 30, 1987.
(2) The unobligated balances of all IMPL escrow accounts as of the
close of business on September 30, 1987, shall be deposited into
miscellaneous receipts of the U.S. Treasury.
25 CFR 114.5 PART 115 -- INDIVIDUAL INDIAN MONEY ACCOUNTS
Sec.
115.1 Definitions.
115.2 Osage agency.
115.3 Individual accounts.
115.4 Minors.
115.5 Adults under legal disability.
115.6 Voluntary deposits.
115.7 Payments by other Federal agencies.
115.8 Purchase orders.
115.9 Restrictions.
115.10 Procedures relative to restrictions.
115.11 Funds of deceased Indians other than the Five Civilized
Tribes.
115.12 Funds of deceased Indians of the Five Civilized Tribes.
115.13 Assets of Members of the Agua Caliente Band of Mission
Indians.
115.14 Appeals.
115.15 Information collection.
Authority: R.S. 441, as amended, R.S. 463, R.S. 465; 5 U.S.C. 301;
25 U.S.C. 2, 9; 43 U.S.C. 1457.
Source: 23 FR 7942, Oct. 15, 1958, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 115.1 Definitions.
As used in this part:
(a) The term ''individual Indian money accounts'' means those
accounts under the control of the Secretary of the Interior or his
authorized representative belonging to individuals.
(b) The term ''minor'' means an individual who has not reached his
majority as defined by the laws of the State of his domicle.
25 CFR 115.2 Osage agency.
The provisions of this part do not apply to funds the deposit or
expenditure of which is subject to the provisions of part 117 of this
subchapter.
25 CFR 115.3 Individual accounts.
Except as otherwise provided in this part, adults shall have the
right to withdraw funds from their accounts. Upon their application, or
an application made in their behalf by the Secretary or his authorized
representative, their funds shall be disbursed to them. All such
disbursements will be made at such convenient times and places as the
Secretary or his authorized representatives may designate.
25 CFR 115.4 Minors.
(a) Funds, other than a per capita share of judgment funds which
exceeds $100 in total amount at the time actual payment is made,
including the investment income accruing thereto, of a minor may be
disbursed in such amounts deemed necessary in the best interest of the
minor for the minor's support, health, education, or welfare to parents,
legal guardians, fiduciaries, or to persons having the control and
custody of the minor under plans approved by the Secretary, or the minor
directly, upon such conditions as the Secretary may prescribe. The
Secretary will require modification of an approved plan whenever deemed
in the best interest of the minor.
(b) A per capita share of judgment funds which exceeds $100 in total
amount at the time actual payment is made, including the investment
income accruing thereto, of a minor shall not be disbursed until the
minor reaches 18 years of age. At that time, unless the minor is under
legal disability, the minor shall be entitled to withdraw his judgment
funds and accrued investment income as provided in 115.3. If the minor
is under legal disability upon reaching his majority, his judgment funds
and accrued investment income thereon shall be handled pursuant to
115.5.
(41 FR 48736, Nov. 5, 1976. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 115.5 Adults under legal disability.
The funds of an adult who is non compos mentis or under other legal
disability may be disbursed for his benefit for such purposes deemed to
be for his best interest and welfare, or the funds may be disbursed to a
legal guardian or curator under such conditions as the Secretary or his
authorized representative may prescribe.
25 CFR 115.6 Voluntary deposits.
As a general rule, voluntary deposits shall not be accepted. Indians
who require banking service shall be encouraged to utilize commercial
facilities. If in any case it is determined that an exception to this
prohibition should be made to avoid a substantial hardship, the facts in
the case shall be considered by the Secretary or his authorized
representative and an exception will be allowed or denied.
25 CFR 115.7 Payments by other Federal agencies.
Moneys received from the Veterans Administration or other Government
agency pursuant to the act of February 25, 1933 (47 Stat. 907; 25
U.S.C. 14), may be accepted and administered for the benefit of adult
Indians under legal disability or minors for whom no legal guardian or
fiduciary has been appointed.
25 CFR 115.8 Purchase orders.
Purchase orders may be issued only in emergencies upon the request of
any account holder. The Secretary or his authorized representative may
act in emergencies on behalf of an account holder who is unable to make
a request because of illness or incapacity or, to meet expenses of last
illness or funeral.
25 CFR 115.9 Restrictions.
Funds of individuals may be applied by the Secretary or his
authorized representative against delinquent claims of indebtedness to
the United States or any of its agencies or to the tribe of which the
individual is a member, unless such payments are prohibited by acts of
Congress, and against money judgments rendered by courts of Indian
offenses or under any tribal law and order code. Funds derived from the
sale of capital assets which by agreement approved prior to such sale by
the Secretary or his authorized representative are to be expended for
specific purposes, and funds obligated under contractual arrangements
approved in advance by the Secretary or his authorized representative or
subject to deductions specifically authorized or directed by acts of
Congress, shall be disbursed only in accordance with the agreements
(including any subsequently approved modifications thereof) or acts of
Congress. The funds of an adult whom the Secretary or his authorized
representative finds to be in need of assistance in managing his
affairs, even though such adult is not non compos mentis or under other
legal disability, may be disbursed to the adult, within his best
interest, under approved plans. Such finding and the basis for such
finding shall be recorded and filed with the records of the account.
Cross Reference: For rules governing the payment of judgments from
individual Indian money accounts, see 11.26 of this chapter.
25 CFR 115.10 Procedures relative to restrictions.
(a) If under 115.9 an individual's access to funds in the
individual's Indian money account is limited, or it is proposed to pay
creditors, including creditors with judgments from Courts of Indian
Offenses, for which preliminary procedures are prescribed in 25 CFR
11.26, the individual must be notified in writing as follows:
(1) The notice must be given to the individual affected at the
commencement of the restriction or at least 40 days prior to involuntary
distribution of funds from the account.
(2) The notice must state the reasons giving rise to the restriction
or proposed payment.
(3) The notice shall inform the individual of the right to a hearing
and that a request for a hearing must be in writing, received by the
Secretary, or an authorized representative, within 30 days of receiving
the notice of proposed action.
(4) The notice of proposed action shall be sent by Certified
Mail-Return Receipt Requested. The date appearing on the returned
receipt shall constitute the beginning of the restriction period.
(5) The notice shall state that a copy of the rights listed in
paragraph (c) of this section are transmitted along with the notice.
(6) The notice shall advise that if the individual wishes to have the
delinquent claim or money judgment paid without delay and without a
hearing the individual can so request by signing a form furnished for
that purpose with the notice.
(b) If the individual fails to request a hearing, the individual is
deemed to consent to the continued limitation on and/or disbursement of
funds from the IIM Account in accordance with the terms of the notice.
Notwithstanding the continuance of a restriction on an account, if the
amount of funds available in the account exceeds the amount of the
restriction or the amount of the claim such unrestricted funds in excess
of the amount of the restriction or claim shall be available for the
account holder's use.
(c) The Secretary, or an authorized representative, shall conduct a
hearing, if no requested as specified above, to determine whether to
continue to restrict the Individual Indian Money Account, and/or allow
payment of delinquent claims and judgments of tribal courts and courts
of Indian offenses from such accounts. The following are requirements
for such a fair hearing:
(1) The hearing shall be held within 10 working days of the
Secretary's or an authorized representative's receipt of the request for
a hearing.
(2) The individual must be given the opportunity to be heard. This
includes the right to hear the case against the individual; to present
testimony, to present witnesses, and to question and rebut opposing
witnesess. This includes the right to orally present arguments and
evidence. The account holder may be heard on why a judgment of a tribal
court or court of Indian offenses should not be paid from his or her
Individual Indian Money account, but he or she may not relitigate the
facts established by that court.
(3) If the individual desires an attorney or other representative,
one may be retained at the individual's own expense.
(4) The decision to uphold or overturn the proposed action, must be
made by the Secretary, or an authorized representative, and must be
based on information presented or referred to at the hearing. The
decision of an authorized representative of the Secretary may be
appealed as provided in 115.14.
(5) The Secretary, or an authorized representative, shall make
provisions for recording the hearing and shall preserve the record for
the duration of the appeal period. Tape recording the hearing is
sufficient.
(6) The Secretary, or an authorized representative, will advise all
parties concerned, in writing, of a decision with-in 10 working days
after completion of the hearing.
(d) No money except as provided in subsection (b) of this section,
shall be paid from an Individual Indian Money Account or applied against
a delinquent claim or judgment of a tribal court or court of Indian
offenses until the decision on the claim has become final in accordance
with the appeal procedures provided for in 115.14.
(51 FR 2874, Jan. 22, 1986)
25 CFR 115.11 Funds of deceased Indians other than the Five Civilized
Tribes.
Funds of a deceased Indian other than those of the Five Civilized
Tribes may be disbursed
(a) For the payment of obligations previously authorized, including
authorized expenses of last illness;
(b) For authorized funeral expenses;
(c) For support of dependent members of the family of decedent in
such amounts deemed necessary to avoid hardship and consistent with the
value of the estate and the interest of probable heirs;
(d) For necessary expenses to conserve the estate pending the
completion of probate proceedings; and
(e) For probate fees and claims allowed pursuant to part 15 of this
chapter.
(23 FR 7942, Oct. 15, 1958. Redesignated at 47 FR 13327, Mar. 30,
1982 and further redesignated at 51 FR 2874, Jan. 22, 1986)
25 CFR 115.12 Funds of deceased Indians of the Five Civilized Tribes.
Funds of a deceased Indian of the Five Civilized Tribes may be
disbursed to pay ad valorem and personal property taxes, Federal and
State estate and income taxes, obligations approved by the Secretary of
his authorized representative prior to death of decedent, expenses of
last sickness and burial and claims found to be just and reasonable
which are not barred by the statute of limitations, costs of determining
heirs to restricted property by the State courts, and claims allowed
pursuant to part 16 of this chapter.
(23 FR 7942, Oct. 15, 1958. Redesignated at 47 FR 13327, Mar. 30,
1982 and further redesignated at 51 FR 2874, Jan. 22, 1986)
25 CFR 115.13 Assets of Members of the Agua Caliente Band of Mission
Indians.
(a) The provisions of this section apply to money or other property,
except real property, held by the United States in trust for such
Indians, which may be used, advanced, expended, exchanged, deposited,
disposed of, invested, and reinvested by the Director, Palm Springs
Office, in accordance with the Act of October 17, 1968 (Pub. L.
90-597). The management or disposition of real property is covered in
other parts of this chapter.
(b) Investments made by the Director, Palm Springs Office, under the
Act of October 17, 1968, supra, shall be of such a nature as will afford
reasonable protection of the assets of the individual Indian involved.
The Director is authorized to enter into contracts for the management of
the assets (except real property) of individual Indians. The consent of
the individual Indian concerned must be obtained prior to the taking of
actions affecting his assets, unless the Director determines, under the
provisions of section (e) of the Act, that consent is not required.
(c) The Director may, consistent with normal business practices,
establish appropriate fees for reports he requires from guardians,
conservators, or other fiduciaries appointed under State law for members
of the Band.
(33 FR 16636, Nov. 15, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982 and further redesignated at 51 FR 2874, Jan. 22, 1986)
25 CFR 115.14 Appeals.
Appeals from an action taken by an official of the Bureau of Indian
Affairs may be taken pursuant to 25 CFR part 2, subject to the terms of
115.10(c) (2).
(51 FR 2874, Jan. 22, 1986)
25 CFR 115.15 Information collection.
This rule does not contain information collection requirements which
require approval by the Office of Management and Budget under 44 U.S.C.
3501 et. seq.
(51 FR 2875, Jan. 22, 1986)
25 CFR 115.15 Part 116
25 CFR 115.15 PART 116 -- CREATION OF TRUSTS FOR RESTRICTED PROPERTY OF
INDIANS, FIVE CIVILIZED TRIBES, OKLAHOMA
Sec.
116.1 Application for trust.
116.2 Obligations of trust company.
116.3 Secretarial approval discretionary.
116.4 Contents trust agreement.
116.5 Eligibility of appraisers.
116.6 Aiding Indians in formulating trust agreements.
116.7 Trust duration.
116.8 Trustee's security.
116.9 Trustee's compensation.
116.10 Necessary forms.
116.11 Limit restricted property in trust.
116.12 Amendments.
Authority: Sec. 7, 47 Stat. 778.
Source: 22 FR 10552, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 116.1 Application for trust.
Indians desiring to establish trust estates under the provisions of
the said act must make written application therefor to the Secretary of
the Interior through the superintendent or other official in charge of
the Five Civilized Tribes Agency, Muskogee, Oklahoma. The application
shall designate the trustee, the beneficiary or beneficiaries and the
manner in which it is desired the corpus of the estate shall be
distributed upon the termination of the trust. A form of application
will, upon request, be furnished by the said superintendent and should
be filled out and executed in the presence of the field clerk or, in the
office of the superintendent and duly attested by the field clerk or
some other Government employee. The information required by the form of
application and such other information as may be requested concerning
the Indian and his affairs shall be carefully considered by the
superintendent who will affix his recommendation to the application and
forward it to the Secretary of the Interior with his report, which
report shall contain full advice with respect to the education and
business qualifications of the applicant, his ability to read, write and
understand the English language, his reputation for industry and thrift
and what experience, if any, he has had in a business way.
25 CFR 116.2 Obligations of trust company.
The form of proposed trust agreement shall be executed by the trust
company or banking institution selected as trustee, and shall be signed
by and submitted with the application of the Indian, together with a
statement in writing by said trust company or banking institution
similar in form to that prescribed by the Comptroller of the Currency
(or by the State banking department), showing fully the conditions of
said trust company or banking institutions on a day not more than 1
month prior to the date of the application for the creation of the
trust. The agreement must also be accompanied by a written certificate
duly executed by the trustee to the effect that it has not paid or
promised to pay any person other than an officer or employee on its
regular payroll any fee, charge, commission or remuneration for any
service or influence in securing or attempting to secure for it the
trusteeship in that or in other trusts to which the regulations in this
part apply.
25 CFR 116.3 Secretarial approval discretionary.
No such trust agreement will be favorably considered unless in the
judgment of the Secretary of the Interior the trustee therein named is
deemed by him to be on a sound financial basis and otherwise
sufficiently qualified to justify approval of such trust.
25 CFR 116.4 Contents trust agreement.
In addition to the subject matter of the trust, its object and
beneficiaries, duties of trustee, etc., the form of trust agreement
shall contain provisions to the following general effect:
(a) That such of the current income from the corpus of the estate as
may be payable to the Indians of the Five Civilized Tribes of one-half
or more Indian blood shall be remitted by the trustee to the Secretary
of the Interior or such other official as he may designate for
appropriate disposition.
(b) That the trusts declared and each of them shall be irrevocable
except with the approval of the Secretary of the Interior, but, subject
to his approval, the beneficiaries named in any approved trust may be
redesignated by the maker without in any manner otherwise impairing or
altering any of the provisions thereof, particularly the duration of the
trust or the compensation to be paid to the trustee.
(c) That neither the corpus of the trust estate nor the income
derived therefrom is, during the restriction period provided by law,
subject to alienation or incumbrance, or to the satisfaction of any debt
or other liability of any beneficiary of such trust during the said
restricted period.
(d) That if the trust be annulled, canceled or set aside by order of
any court or otherwise, the principal of the trust with all accrued and
unpaid interest shall be returned to the Secretary of the Interior as
restricted individual property.
(e) That the trustee shall render an annual accounting to the
Secretary of the Interior and to the beneficiary or beneficiaries to
whom the income from any such trust for the preceding year or any part
thereof was due and payable, such annual accounting to be submitted
within 30 days following the ending of each annual period of the trust,
and the trustee shall render accounting to the Secretary of the Interior
at any other time on written request by the Secretary of the Interior,
within 30 days from such request.
(f) That except as to U.S. Government bonds and other securities
fully guaranteed by the Federal Government in which such funds in the
hands of the trustee may be invested without limitations, the following
limitations are prescribed on the right of the trustee to invest or
reinvest any part of the corpus or income from the trust:
(1) Not more than 30 percent of the estate may be invested in
securities exclusive of all other limitations contained in this part,
which appear on the current list of legal investments for savings banks
prepared by the superintendent of banks of the State of New York, except
that this authorization shall not include the purchase of public utility
securities or railroad securities which do not represent obligations of
operating companies, or the purchase of stocks: Provided, however, That
in the purchase of such securities not more than 20 percent may be
invested in general obligations issued by States or by any political
subdivisions thereof, and not more than 10 percent may be invested in
public utilities and in railroad securities, or in either of them;
(2) Not more than 15 percent of the trust estate may be invested in
Federal land bank bonds issued under the provisions of the act of July
17, 1916 (39 Stat. 360) as amended;
(3) Not more than 40 percent of the trust estate may be invested in
total loans secured on first deeds of trust or first mortgages on
improved city or farm real estate situated in the States designated in
the trust agreements, but no such loans shall exceed 50 percent of the
value of the real estate and improvements appraised not more than 30
days prior to such investments by one or more appraisers selected with
the approval of the Secretary of the Interior;
(4) No part of the trust fund shall be invested in the purchase of
real estate or stocks for the trust except to protect the trust estate
in foreclosure or other proceedings;
(5) No part of the trust estate shall be invested in any kind of
foreign securities, loans, or other properties, private or public.
25 CFR 116.5 Eligibility of appraisers.
Hereafter no person who is interested directly or indirectly, whether
through intimate personal, financial or business connections, in any
trust company or banking institution designated as trustee under an
approved trust agreement involving restricted Indian property, or who is
an officer, director, or employee of such trust company or banking
institution, shall act as an appraiser of real estate in connection with
the making of loans from the trust estate to be secured by first deeds
of trust or first mortgages. Nor shall any person having an interest in
obtaining such a loan, either personally or as an officer, director or
employee of any company, association or partnership seeking such a loan,
act as an appraiser. An investigation into the qualifications of all
persons selected as appraisers will be made for the purpose of
determining that the persons selected are both competent and
disinterested.
25 CFR 116.6 Aiding Indians in formulating trust agreements.
In the formulation of the trust agreement and the provisions thereof
the superintendent for the Five Civilized Tribes Agency and the other
employees under his supervision will upon request assist the Indian to
the fullest possible extent to the end that he may understand fully the
meaning and the intent of the agreement and make the most satisfactory
provision for the formation and consummation of the trust agreement.
25 CFR 116.7 Trust duration.
Under the terms of the statute no trust shall be established to
continue for a period of more than 21 years after the death of the last
surviving beneficiary named in the trust agreement.
25 CFR 116.8 Trustee's security.
To secure the faithful performance of the duties imposed by the trust
agreement the trustee shall, as required by section 7 of the act (47
Stat. 778), deposit securities of the United States or furnish an
acceptable corporate surety bond in an amount equal to the value of the
trust as fixed and determined by the Secretary of the Interior.
Appraisers will be appointed by the Secretary for the purpose of fixing
the value of the trust and of revising such value from time to time as
the judgment of the Secretary may dictate. Additional or substitute
security may be required at any time when deemed necessary for the
protection of the trust estate and the interest of the Indians.
Trustees pledging United States bonds or notes as security shall execute
on forms1014 prescribed by the Secretary an appropriate resolution and
power of attorney authorizing the sale, assignment or transfer of the
collateral. Only those corporate sureties who hold certificates of
authority from the Secretary of the Treasury to write bonds on which the
United States is obligee are acceptable as sureties. The cost to the
trustee, if any, of furnishing the required bond, will be regarded as a
necessary part of the cost of administering the trust and as such
deductible from the gross income accruing therefrom.
0141Forms may be obtained from the superintendent of the Five
Civilized Tribes Agency, Muskogee, Oklahoma.
25 CFR 116.9 Trustee's compensation.
As compensation for administering the trust the trustee will be
permitted to receive annually not to exceed 5 percent of the gross
annual income from such trust estate, and as further compensation will
also be permitted to receive not to exceed an amount equal to 1 percent
of the corpus of the trust estate, to be paid out of the income first
accruing therefrom, and not to exceed an amount equal to 2 percent of
the corpus of the estate at the time of final distribution based upon
the last valuation made by the Secretary of the Interior prior to such
distribution. By final distribution is meant any distribution to a
beneficiary of any part of the corpus of the trust estate at any time
under the terms of the trust. All fees are to be based on the size of
the trust and the nature of the duties to be performed thereunder. The
foregoing percentage of fees are maximum and alternative, that is,
within such maximum limitations any one or more of said fees may or may
not be allowed within the discretion of the Secretary of the Interior.
25 CFR 116.10 Necessary forms.
In addition to the form of application by the Indians under the act
of January 27, 1933 (47 Stat. 777), there are skeleton forms of trust
agreement and bond which forms are subject to such changes as may be
necessary to meet the requirements of each particular case.
25 CFR 116.11 Limit restricted property in trust.
Not more than three million dollars aggregate value of restricted
Indian property shall be placed in trust pursuant to the regulations in
this part with any one trustee, trust company or other banking
institution authorized by law to act as a fiduciary.
25 CFR 116.12 Amendments.
The regulations in this part may be changed, amended, added to, and
any part thereof eliminated at any time by the Secretary of the
Interior.
25 CFR 116.12 PART 117 -- DEPOSIT AND EXPENDITURE OF INDIVIDUAL FUNDS
OF MEMBERS OF THE OSAGE TRIBE OF INDIANS WHO DO NOT HAVE CERTIFICATES OF
COMPETENCY
Sec.
117.1 Definitions.
117.2 Payment of taxes of adult Indians.
117.3 Payment of taxes of Indians under 21 years of age.
117.4 Disbursement of allowance funds.
117.5 Procedure for hearings to assume supervision of expenditure of
allowance funds.
117.6 Allowance for minors.
117.7 Disbursement or expenditure of surplus funds.
117.8 Purchase of land.
117.9 Construction and repairs.
117.10 Purchase of automotive equipment.
117.11 Insurance.
117.12 Costs of recording and conveyancing.
117.13 Telephone and telegraph messages.
117.14 Miscellaneous expenditure of surplus funds.
117.15 Collections from insurance companies.
117.16 Reimbursement to surplus funds.
117.17 Inactive surplus funds accounts.
117.18 Withdrawal and payment of segregated trust funds.
117.19 Debts of Indians.
117.20 Purchase orders.
117.21 Fees and expenses of attorneys.
117.22 Disbursements to legal guardians.
117.23 Transactions between guardian and ward.
117.24 Compensation for guardians and their attorneys.
117.25 Charges for services to Indians.
117.26 Expenses incurred pending qualification of an executor or
administrator.
117.27 Custody of funds pending administration of estates.
117.28 Payment of claims against estates.
117.29 Sale of improvements.
117.30 Sale of personal property.
117.31 Removal of restrictions from personal property.
117.32 Funds of Indians of other tribes.
117.33 Signature of illiterates.
117.34 Financial status of Indians confidential.
117.35 Appeals.
Authority: 5 U.S.C. 301.
Source: 22 FR 10554, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 117.1 Definitions.
When used in the regulations in this part the following words or
terms shall have the meaning shown below:
(a) ''Secretary'' means the Secretary of the Interior or his
authorized representative.
(b) ''Commissioner'' means the Commissioner of Indian Affairs or his
authorized representative.
(c) ''Superintendent'' means the superintendent of the Osage Agency.
(d) ''Quarterly payment'' means the payment of not to exceed $1,000
which is made each fiscal quarter to or on behalf of an adult Indian,
from the following sources:
(1) The pro rata distribution of tribal mineral income and other
tribal revenues.
(2) The interest on segregated trust funds.
(3) Surplus funds in addition to the income from the foregoing
sources in the amount necessary to aggregate $1,000 when the income from
those sources is less than $1,000 and the Indian has a balance of
accumulated surplus funds in excess of $10,000.
(e) ''Surplus funds'' means all those moneys and securities readily
convertible into cash, except allowance funds and segregated trust
funds, which are held to the credit of an Indian at the Osage Agency and
which may be disbursed, expended or invested only upon authorization by
the Secretary. The term includes:
(1) That portion of the quarterly distribution of tribal income and
interest on segregated trust funds, in excess of $1,000, belonging to an
adult Indian.
(2) The proceeds, including appreciation, of the sale or conversion
of restricted real or personal property (other than partition sales).
(3) Payments made by insurance companies or others for loss or damage
to restricted real or personal property.
(4) All moneys and securities, other than segregated trust funds, to
the credit of an Indian who is less than 21 years of age (except the
income from restricted lands payable as provided by 117.3).
(5) Funds and securities placed to the credit of an Indian upon the
distribution of an Osage estate.
(f) ''Allowance funds'' means that income payable to or on behalf of
a living adult Indian, the expenditure and disbursement of which is not
subject to supervision unless authorized pursuant to the procedure
contained in 117.5. The term includes:
(1) The quarterly payment in an amount not to exceed $1,000.
(2) The rentals and income from restricted lands owned by the Indian.
(3) The rentals and income from restricted lands owned by the minor
children of the Indian, as provided in 117.3.
(4) Income from investments.
(5) Interest on deposits to the credit of the Indian.
(g) ''Segregated trust funds'' means those moneys held in the United
States Treasury at interest to the credit of an Indian which represent
pro rata shares of the segregation of tribal trust funds and the
proceeds of the partition of restricted lands.
25 CFR 117.2 Payment of taxes of adult Indians.
The superintendent may cause to be paid out of any money heretofore
accrued or hereafter accruing to the credit of any adult Indian all
taxes of every kind and character for which such Indian is or may be
liable before paying to or for such person any funds as required by law.
All checks in payment of taxes shall be made payable to the proper
collector. For the purpose of establishing a fund with which to meet
the payment of such taxes when due, the Superintendent may cause the
funds of an adult Indian to be hypothecated in the following manner:
(a) For the payment of ad valorem taxes, one-fourth of the estimated
amount ad valorem taxes from each quarterly payment unless this
procedure would cause the obligation of more than 25 percent of such
quarterly payments, in which event the necessary additional funds shall
be retained from other allowance funds payable to such person under the
law. If there be no other allowance funds available, or if the funds
from these sources are insufficient, one-fourth of the estimated amount
of such ad valorem taxes may be obligated from each quarterly payment.
If an Indian who is liable for ad valorem taxes has no allowance funds,
or such funds are insufficient for the payment thereof, surplus funds
may be used for such payment.
(b)(1) For the payment of income taxes, one-half of the estimated
amount of income taxes from each semi-annual payment of interest on
deposits, but if such interest payments are insufficient to meet this
obligation, additional funds shall be retained from interest on
investments, rentals, or other allowance funds.
(2) Whenever funds are withheld for the purpose of establishing a
fund to meet the payment of taxes, the Indian shall be notified of the
action taken.
25 CFR 117.3 Payment of taxes of Indians under 21 years of age.
All taxes assessed against the restricted lands of Indians less than
21 years of age shall be paid by the superintendent direct to the
collector from the rents and income derived from such lands, and the
balance, if any, of such rents and income shall be paid to the living
parents or parent. If the parents are separated, the balance shall be
paid to the parent having custody of the Indian under 21 years of age.
All other taxes for which an Indian under 21 years of age may be liable
shall be paid from his surplus funds.
25 CFR 117.4 Disbursement of allowance funds.
Except as provided in 117.5, all allowance funds shall be disbursed
to the Indian owner unless the Indian owner directs otherwise in
writing. At the request of the Indian owner, such funds may be retained
by the superintendent as voluntary deposits subject to withdrawal or
other disposition upon demand or direction of the Indian owner. The
superintendent may recognize a power of attorney executed by the Indian
and may disburse the allowance funds of the Indian in conformity
therewith so long as the power of attorney remains in force and effect.
25 CFR 117.5 Procedure for hearings to assume supervision of
expenditure of allowance funds.
(a) Whenever the superintendent has reason to believe that an adult
Indian is wasting or squandering his allowance funds the superintendent
may cause an investigation and written report of the facts to be made.
If the report indicates that the Indian is wasting or squandering his
allowance funds the following notice shall be served upon the Indian, in
person or by registered mail, and a copy thereof shall likewise be
served upon his guardian if the Indian is under guardianship:
Section 1 of the act of February 27, 1925 (43 Stat. 1008) provides in
part as follows:
''All payments to adults not having certificates of competency,
including amounts paid for each minor, shall, in case the Secretary of
the Interior finds that such adults are wasting or squandering said
income, be subject to the supervision of the Superintendent of the Osage
Agency: . . .''
Enclosed is a copy of a report which has been made to me concerning
your handling and management of the income paid to you through the Osage
Agency. This report indicates that you have been wasting and
squandering your payments.
You are hereby notified that a hearing will be held in the Osage
Indian Agency, Pawhuska, Oklahoma, at --- m., on the ----- day of
------------, 19---, before the Superintendent, for the purpose of
taking testimony and evidence to be submitted to the Commissioner of
Indian Affairs for his consideration in determining whether your
payments shall be subject to the supervision of the Superintendent.
You are requested to be present at the hearing at the time and place
designated above. You may introduce at the hearing such testimony and
evidence as you deem appropriate to show that you are not wasting or
squandering your payments and that your payments should continue to be
made to you without supervision for your unrestricted use.
You are entitled to employ an attorney to assist you in this matter.
Upon your request the employees of the Osage Agency will furnish you
with any information you desire concerning your accounts at the Osage
Agency or any of your transactions handled through the Osage Agency.
Date.
Superintendent.
(b) A hearing shall be held pursuant to the notice, the date of which
shall be not less than 30 days after the date of the notice. For good
cause shown to exist the superintendent may continue the hearing to a
later date.
(c) A record of the proceedings, consisting of the superintendent's
preliminary report, the notice and proof of service, all testimony and
evidence introduced at the hearing, and all briefs and letters filed by
the Indian or his attorney shall be submitted to the Commissioner,
together with a recommendation from the superintendent.
(d) Upon a finding by the Commissioner that the Indian is wasting or
squandering his income, his allowance funds shall thereafter be subject
to the supervision of the superintendent. Notice of the decision of the
Commissioner shall be furnished all interested parties.
25 CFR 117.6 Allowance for minors.
The superintendent may disburse from the surplus funds of an Indian
under 21 years of age not to exceed $300 quarterly for the support and
maintenance of the minor. Disbursement may be made to the parent,
guardian, or other person, school or institution having actual custody
of the minor, or, when the minor is 18 years of age or over,
disbursement may be made direct to the minor.
25 CFR 117.7 Disbursement or expenditure of surplus funds.
Except as provided in the regulations in this part, no disbursement
or expenditure of surplus funds of Indians shall be made without the
consent of the Indian owner and until authorization has been obtained
from the Commissioner. Application by an Indian or his legal guardian,
or if he is a minor, by his parent or legal guardian, for the
expenditure of surplus funds shall be presented to the Commissioner,
fully justified with the appropriate attachments such as court orders,
decrees or other papers. Such application shall contain full
information regarding the individual including his cash balance, the sum
invested, the number of shares in the Osage mineral estate, total income
from all sources including that paid on behalf of minors, the family
status and the occupation or industry of the applicant. When request is
made for payment to the individual without supervision, the record of
said individual and his ability to handle such funds shall be shown.
25 CFR 117.8 Purchase of land.
Upon written application of an adult Indian, the superintendent may
disburse not to exceed $10,000 from the surplus funds of such Indian for
the purchase of land, the title to which has been examined and accepted
by the special attorney for the Osage Indians or other legal officer
designated by the Commissioner. In all cases title must be taken by
deed containing a clause restricting alienation or encumbrance without
the consent of the Secretary of the Interior or his authorized
representative.
25 CFR 117.9 Construction and repairs.
Upon written application by an adult Indian, the superintendent may
disburse not to exceed $1,000 during any one fiscal year from the
surplus funds of such Indian to make repairs and improvements to
restricted real property and in addition not to exceed $300 for new
construction. When such expenditures are being made on property
producing an income, reimbursement shall be required from such income
unless otherwise directed by the Commissioner. When an Indian refuses
to make application for funds to defray the cost of repairs necessary to
preserve restricted property, the superintendent may, when authorized by
the Commissioner, expend the surplus funds of the Indian for such
repairs.
25 CFR 117.10 Purchase of automotive equipment.
The superintendent may disburse from the surplus funds of an adult
Indian not to exceed $2,000 for the purchase of automotive equipment
when the Indian agrees in writing to carry property and liability
insurance on the automotive equipment and to reimburse his surplus funds
account from allowance funds within 24 months. No disbursement of
surplus funds for the purchase of automotive equipment shall be made if
the fulfillment of the reimbursable agreement will endanger the payment
of taxes, insurance or other obligations, or result in the inability of
the Indian to meet his current living expenses from allowance funds.
25 CFR 117.11 Insurance.
The superintendent may obtain policies of insurance covering the
restricted property, real or personal, of minor Indians and pay the
premiums thereon from the funds of the minors. Upon application by an
adult Indian the superintendent may procure insurance on any restricted
property, real or personal, owned by the applicant and pay the necessary
premiums from his surplus or allowance funds. When authorized by the
Commissioner, the superintendent may also procure insurance on
restricted property, real or personal, of any adult Indian who neglects
or refuses to take out such insurance.
25 CFR 117.12 Costs of recording and conveyancing.
The superintendent may expend the surplus funds of an Indian to make
direct payment of recording fees and costs, of conveyancing, including
abstracting costs, which are properly payable by the Indian.
25 CFR 117.13 Telephone and telegraph messages.
The superintendent may expend the surplus funds of an Indian to make
direct payment for telephone and telegraph messages sent by the agency
or received at the agency at the instance of the Indian or his guardian
or attorney.
25 CFR 117.14 Miscellaneous expenditure of surplus funds.
Upon application by an adult Indian the superintendent may disburse
the surplus funds of such Indian for the following purposes:
(a) Medical, dental, and hospital expenses for the applicant or a
member of his family, not to exceed one thousand dollars ($1,000) during
any one fiscal year.
(b) Funeral expenses, including the funeral feast, of a deceased
member of his family, in an amount not to exceed one thousand dollars
($1,000).
(c) A tombstone or monument to mark the grave of a deceased member of
his family in amount not to exceed five hundred dollars ($500).
(d) Court costs in any judicial proceeding to which the applicant is
a party.
(e) Bond premiums, except bail and supersedeas bonds.
(f) For miscellaneous purposes, not to exceed five hundred dollars
($500) during any one fiscal year.
25 CFR 117.15 Collections from insurance companies.
Moneys collected from insurance companies for loss or damage to
restricted real or personal property shall be deposited to the credit of
the Indian owner as surplus funds. Moneys so deposited to the credit of
an adult Indian may, upon the written application of the Indian, be
disbursed by the superintendent for the purpose of repairing or
replacing the property. Moneys collected from insurance companies for
loss or damage to unrestricted real or personal property shall be paid
to the Indian for his unrestricted use.
25 CFR 117.16 Reimbursement to surplus funds.
When expenditures have been made from surplus funds upon the
condition, and with the written agreement of the Indian, that
reimbursement or repayment shall be made from future allowance funds,
the superintendent is authorized to withhold from succeeding quarterly
payments or other allowance funds such amounts as may be necessary to
effect reimbursement within a period not exceeding 24 months from date
of the first expenditure under the given authority.
25 CFR 117.17 Inactive surplus funds accounts.
When the balance of surplus funds to the credit of an adult Indian is
less than $300 and when there is no likelihood of its increase within 90
days, the superintendent may disburse the entire balance to the Indian
owner for his unrestricted use.
25 CFR 117.18 Withdrawal and payment of segregated trust funds.
The withdrawal and payment of segregated trust funds will be made
only upon application and satisfactory evidence that the withdrawal and
payment of such funds would be to the best interest of the Indian in
view of all the circumstances shown to exist. The segregated trust
funds of an Indian under guardianship or an Indian under 21 years of age
shall not be released and paid except to a guardian appointed by a
proper court and after the filing of a bond approved by the court
conditioned upon the faithful handling of the funds. Applications for
the withdrawal and payment of segregated trust funds must be made upon
the forms prescribed by the Secretary for that purpose.
25 CFR 117.19 Debts of Indians.
No indebtedness of Indians will be paid from their funds under the
control or supervision of the Secretary unless authorized in writing and
obligated against their accounts by the superintendent or some other
designated employee except in cases of emergency involving the
protection or preservation of life or property, which emergency must be
clearly shown. With this exception, no authorization or obligation
against the account of any Indian for indebtedness incurred by him shall
be made by the superintendent unless specifically authorized by the
regulations in this part.
25 CFR 117.20 Purchase orders.
Purchase orders may be issued by the superintendent for expenditures
authorized by the regulations in this part or for expenditures
specifically authorized by the Commissioner. When necessary to prevent
hardship or suffering, purchase orders may be issued by the
superintendent against the future income of an Indian in an amount not
to exceed 80 percent of the anticipated quarterly payment. The payment
of purchase orders issued against future income shall be contingent upon
the availability of funds.
25 CFR 117.21 Fees and expenses of attorneys.
When payment of an attorney fee for services to an Indian is to be
made from his surplus funds, the employment of the attorney by the
Indian must be approved in advance. All fees will be determined on a
quantum merit basis and paid upon completion of the services. The
superintendent may approve the employment of an attorney, determine the
fee, and disburse the surplus funds of the Indian in payment thereof
when the fee does not exceed $500. Upon application by the Indian and
upon the presentation of properly authenticated vouchers, the
superintendent may disburse the surplus funds of the Indian in an amount
not to exceed $200 in payment of necessary expenses incurred by the
attorney.
25 CFR 117.22 Disbursements to legal guardians.
Any disbursement authorized to be made to an Indian by the
regulations of this part may, when the Indian is under guardianship, be
made by the superintendent to the guardian. All expenditures by a
guardian of the funds of his ward must be approved in writing by the
court and the superintendent.
25 CFR 117.23 Transactions between guardian and ward.
Business dealings between the guardian and his ward involving the
sale or purchase of any property, real or personal, by the guardian to
or from the ward, or to or from any store, company or organization in
which the guardian has a direct interest or concern or contrary to the
policy of the Department and shall not be approved by the superintendent
without specific authority from the Commissioner.
25 CFR 117.24 Compensation for guardians and their attorneys.
(a) The superintendent may approve compensation for services rendered
by the guardian of an Indian on an annual basis, the amount of the
compensation to be determined by application of the following schedule
to the moneys collected by the guardian:
First $1,000 or portion thereof, not to exceed 10 percent.
Second $1,000 or portion thereof, not to exceed 9 percent.
Third $1,000 or portion thereof, not to exceed 8 percent.
Fourth $1,000 or portion thereof, not to exceed 7 percent.
Fifth $1,000 or portion thereof, not to exceed 6 percent.
Sixth $1,000 or portion thereof, not to exceed 5 percent.
Seventh $1,000 or portion thereof, not to exceed 4 percent.
Eighth $1,000 or portion thereof, not to exceed 3 percent.
Ninth $1,000 or portion thereof, not to exceed 2 percent.
All above $9,000 not to exceed 1 percent.
(b) Balance carried forward from previous reports and moneys received
by a guardian or his attorney as compensation shall be excluded in
determining the compensation of the guardian or his attorney.
(c) The attorney for a guardian shall be allowed compensation in an
amount equal to one-half of the amount allowed the guardian under the
foregoing schedule except when such attorney is himself the guardian and
acting as his own attorney, in which event he shall be allowed a fee of
not to exceed one-fourth of the amount allowed the guardian under the
foregoing schedule in addition to the fee as guardian.
(d) The superintendent may in his discretion permit the guardian to
collect rentals from restricted city or town properties belonging to his
ward.
25 CFR 117.25 Charges for services to Indians.
The superintendent shall make the following charges for services to
Indians: Five per cent of all interest and non-liquidating dividends
received from all types of securities, including stocks, bonds, and
mortgages held in trust for individual Indians and interest on group
investments. Such fees shall be deposited in the Treasury of the United
States to the credit of the fund ''Proceeds of Oil and Gas Leases,
Royalties, etc., Osage Reservation, Oklahoma''.
25 CFR 117.26 Expenses incurred pending qualification of an executor or
administrator.
Pending the qualification of the executor or administrator of the
estate of a deceased Indian of one-half or more Indian blood who did not
have a certificate of competency at the time of his death, the
superintendent may authorize the extension of credit for the following
purposes, subject to allowance of claims by the executor or
administrator and approval thereof by the court:
(a) Funeral expenses, including the cost of a funeral feast, in an
amount not to exceed $1,000.
(b) Necessary expenses in hearings before the Osage Agency involving
the approval or disapproval of last wills and testaments.
(c) Expenses necessary to preserve restricted property.
25 CFR 117.27 Custody of funds pending administration of estates.
(a) Estates of Indians of less than one-half Indian blood and estates
of Indians who had certificates of competency. Upon the death of an
Indian of less than one-half Indian blood or an Indian who had a
certificate of competency, the superintendent shall pay to the executor
or administrator of the estate all moneys and securities, other than
segregated trust funds to the credit of the Indian and all funds which
accrue pending administration of the estate.
(b) Estates of Indians of one-half or more Indian blood who did not
have certificates of competency. Upon the death of an Indian of
one-half or more Indian blood who did not have a certificate of
competency at the time of his death, the following classes of funds,
less any amount hypothecated for the payment of taxes as provided in
117.2 shall be paid by the superintendent to the executor or
administrator of the estate:
(1) Allowance funds to the credit of the Indian.
(2) Any quarterly payment authorized prior to the death of the
Indian.
(3) Interest on segregated trust funds and deposits computed to the
date of death.
(4) Rentals and income from restricted lands collected after the
death of the Indian which were due and payable to the Indian prior to
his death.
Except as provided in 117.28, the superintendent shall not pay to
the executor or administrator any surplus funds to the credit of the
Indian or any funds, other than those listed in paragraphs (b) (1), (2),
(3) and (4) of this section which accrue pending administration of the
estate.
25 CFR 117.28 Payment of claims against estates.
The superintendent may disburse to the executor or administrator of
the estate of a deceased Indian of one-half or more Indian blood who did
not have a certificate of competency at the time of his death sufficient
funds out of the estate to pay the following classes of claims approved
by the court:
(a) Debts authorized by the superintendent during the lifetime of the
Indian.
(b) Expenses incurred pending the qualifications of an executor or
administrator under authority contained in 117.26.
(c) Expenses of administration, including court costs, premium on
bond of executor or administrator, transcript fees and appraiser fees.
(d) Living expenses incurred within 90 days immediately preceding the
date of death of the Indian.
(e) Allowance for reasonable living expenses each month for 12 months
to a surviving spouse who is entitled to participate in the distribution
of the estate and who is in need of such support.
(f) Allowance for reasonable living expenses each month for 12 months
for each child of the decedent under 21 years of age who is entitled to
participate in the distribution of the estate and who is in need of such
support.
(g) Insurance premiums and license fees on restricted property.
(h) Not to exceed $1,000 for the preservation and upkeep of
restricted property including the services of a caretaker when
necessary.
(i) Debts incurred during the lifetime of the Indian but not
authorized by the superintendent, if found by the Commissioner to be
just and payable. The superintendent shall disburse no funds to an
executor or administrator for the payment of the foregoing classes of
claims unless the executor or administrator has no other funds in his
hands available for the payment of such claims.
(22 FR 10554, Dec. 24, 1957, as amended at 35 FR 10005, June 18,
1970. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 117.29 Sale of improvements.
The superintendent may approve the sale of improvements on restricted
Indian lands when such improvements are appraised at not more than $500
and when the owner has submitted a written request that the sale be made
and a statement that the improvements can no longer be used by him. The
proceeds of all such sales shall be deposited to the credit of the
Indian as surplus funds. Improvements consisting of buildings, etc.,
located on property within the Osage villages of Pawhuska, Hominy, and
Grayhorse may, upon approval of the superintendent, be disposed of to
other Osage Indians. The superintendent may disburse the surplus funds
of the purchaser to consummate the transaction. Sale of such
improvements to non-Indian or non-Osage Indians must be approved by the
Commissioner.
25 CFR 117.30 Sale of personal property.
The superintendent may approve the sale of restricted personal
property other than livestock. The superintendent may also approve the
sale of livestock when authorized so to do by special or general
instructions from the Commissioner. The proceeds from the sale of
personal property other than livestock shall be deposited to the credit
of the Indian as surplus funds unless the surplus funds from which said
property was purchased have been reimbursed from allowance funds, in
which case the proceeds from such sale shall be disbursed as allowance
funds. If partial reimbursement only has been made, such portion of the
proceeds of sale as may be necessary to complete the reimbursable
agreement shall be deposited to the credit of the Indian as surplus
funds and the balance, if any, shall be disbursed as allowance funds.
The proceeds from the sale of livestock shall be deposited in conformity
with general or specific instructions from the Commissioner.
25 CFR 117.31 Removal of restrictions from personal property.
The superintendent may relinquish title to personal property (other
than livestock) held by the United States in trust for the Indian when
to do so will enable the Indian to use the property as part payment in
the purchase of other personal property and when the remainder of the
purchase price is to be made from other than surplus funds of the
Indian.
25 CFR 117.32 Funds of Indians of other tribes.
The funds of restricted non-Osage Indians, both adults and minors,
residing within the jurisdiction of the Osage Agency, derived from
sources within the Osage Nation and collected through the Osage Agency,
may be disbursed by the superintendent, subject to the condition that
all payments to third persons, including taxes and insurance premiums,
shall be made upon the written authorization of the individual whose
funds are involved, if an adult, and upon the written authorization of
the parent or guardian, if a minor. The funds of restricted non-Osage
Indians who do not reside within the jurisdiction of the Osage Agency
shall be transferred to the superintendent of the jurisdiction within
which the Indian resides, to be disbursed under regulations of the
receiving agency.
25 CFR 117.33 Signature of illiterates.
An Indian who cannot write shall be required to endorse checks
payable to his order and sign receipts or other documents by making an
imprint of the ball of the right thumb (or the left, if he has lost his
right) after his name. This imprint shall be clear and distinct,
showing the central whorl and striations and witnessed by two reputable
persons whose addresses shall be given opposite or following their
names. An Indian may sign by marking ''X'' before two witnesses where
he is unable to attach his thumb mark for physical reasons.
25 CFR 117.34 Financial status of Indians confidential.
The financial status of Indians shall be regarded as confidential and
shall not be disclosed except to the owner of the account or his
authorized agent, unless authorized in advance by the Commissioner.
25 CFR 117.35 Appeals.
Any decision by the superintendent may be appealed to the area
director, any decision by the area director may be appealed to the
Commissioner, and any decision by the Commissioner may be appealed to
the Secretary.
25 CFR 117.35 PART 121 -- DISTRIBUTION OF JUDGMENT FUNDS AWARDED TO THE
OSAGE TRIBE OF INDIANS IN OKLAHOMA
Sec.
121.1 Definitions.
121.2 Purpose.
121.3 Notice of time limit and place for filing claims.
121.4 Issuance of Orders of Distribution.
121.5 Segregation of per capita shares.
121.6 Distribution of share of deceased allottee.
121.7 Notice of orders to claimants and distributees.
121.8 Appeal from an Order of Distribution.
121.9 Disbursement of distributed shares.
121.10 Miscellaneous provisions.
Authority: 5 U.S.C. 301; 86 Stat. 1295.
Source: 38 FR 9163, Apr. 11, 1973, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 121.1 Definitions.
(a) ''Act'' means the act of October 27, 1972 (86 Stat. 1295).
(b) ''Allottee'' means a person whose name appears on the roll of the
Osage Tribe of Indians approved by the Secretary of the Interior on
April 11, 1908, pursuant to the act of June 28, 1906 (34 Stat. 539).
(c) ''Regional Solicitor, Tulsa'' means the Regional Solicitor for
the Tulsa Region of the Office of the Solicitor, U.S. Department of the
Interior, P.O. Box 3156, Tulsa, Oklahoma 74101.
(d) ''Distributee'' means one to whom a distribution is ordered
pursuant to the regulations in this part.
(e) ''Secretary'' means the Secretary of the Interior or his
authorized representative.
(f) ''Superintendent'' means the Superintendent, Osage Agency, Bureau
of Indian Affairs Pawhuska, Oklahoma 74056.
(38 FR 9163, Apr. 11, 1973, as amended at 39 FR 41707, Dec. 2, 1974.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 121.2 Purpose.
The regulations in this part govern the distribution, pursuant to the
act, of judgment funds awarded to the Osage Tribe of Indians of
Oklahoma. All funds appropriated by the act of January 8, 1971 (84
Stat. 1981), in satisfaction of a judgment in the Indian Claims
Commission against the United States in dockets numbered 105, 106, 107,
and 108, together with interest thereon, are to be distributed, except
the sum of $1 million and any funds that revert to the Osage Tribe and
except the amount allowed for attorney fees and expenses and the cost of
distribution.
25 CFR 121.3 Notice of time limit and place for filing claims.
The act provides for distribution of funds to allottees and heirs of
Osage Indian blood of deceased allottees.
(a) All claims for per capita shares by heirs of Osage Indian blood
shall be filed with the Superintendent, Osage Agency, Bureau of Indian
Affairs, Pawhuska, Okla. 74056, not later than April 27, 1974. An
individual who claims as an heir of Osage Indian blood should make a
timely filing of a claim which identifies, by name and allotment number,
each allottee in whose share the individual claims an interest, in order
that the Superintendent may notify the individual when the order of
distribution for each such allottee is made. Failure to file a claim in
this manner may prevent an individual from receiving notice of
distribution in an instance in which he is an interested party. Failure
of an heir of Osage Indian blood to file a claim will not necessarily
prevent the distribution to such heir of the portion of the allottee's
share due that heir if sufficient evidence to support such distribution
is available to the Superintendent. However, no heir who fails to file
a claim within the prescribed period (on or before April 27, 1974) shall
after that period have any right to any distribution other than that
ordered by the Superintendent based on evidence available to the
Superintendent during that period. Unclaimed shares of distributees are
required by statute to revert to the Osage Tribe 6 months after
determination of their right to share.
(b) Distribution of a living allottee's own share will be made
without the filing of a claim.
25 CFR 121.4 Issuance of Orders of Distribution.
The Superintendent, Osage Agency, Bureau of Indian Affairs, Pawhuska,
Okla. 74056, is authorized to issue the Orders of Distribution in
accordance with the act and the regulations in this part. The
Superintendent's decisions thereon shall be final unless a timely appeal
therefrom is filed in accordance with 121.8.
25 CFR 121.5 Segregation of per capita shares.
The Superintendent shall segregate one per capita share for each
allottee for distribution as follows:
(a) One share for distribution to each such allottee who is living on
the date the Order for Distribution for that share is issued; and
(b) One share for distribution to the heir or heirs of Osage Indian
blood of each allottee who is deceased on the date the Order of
Distribution for that share is issued, to be divided among such heirs in
such proportions as shall be computed in accordance with 121.6.
25 CFR 121.6 Distribution of share of deceased allottee.
The Superintendent shall issue an Order of Distribution which, except
as otherwise provided in this 121.6, divides the share of a deceased
allottee leaving heirs of Osage Indian blood in such proportions as the
allottee's heirs of Osage Indian blood would have shared in the estate
of the allottee if the allottee had died intestate leaving one or more
individuals of Osage Indian blood as the allottee's only heirs at law
under the Oklahoma law of intestate succession. In preparing such an
order, the Superintendent shall accept as accurate any unambiguous
determination of heirship, of an allottee or of the heir of an allottee,
either made by the Secretary prior to April 18, 1912, or contained in a
final order of an Oklahoma court after that date. When no such
unambiguous determination is available, such order shall be based upon
all other pertinent heirship evidence available to the Superintendent.
When one or more of the immediate heirs of Osage Indian blood of an
allottee is deceased, the heirs of Osage Indian blood of such deceased
heirs shall be ascertained, successively among all remote heirs of Osage
Indian blood of the allottee, in the sequence in which the deaths of the
heirs occurred until the identities of all living remote heirs of Osage
Indian blood, and the respective proportions of the share to which they
are entitled, have been ascertained. To qualify for distribution as an
heir, it must be established that the distributee and each heir of the
allottee through whom the claim is traced had Osage Indian blood
acquired either from an allottee or from a common ancestor of an
allottee and the distributee.
25 CFR 121.7 Notice of orders to claimants and distributees.
Notice of an Order of Distribution shall be mailed, on the date of
issuance of such order, to the allottee whose share is being distributed
if living, but if not living, to (a) each distributee named therein, (b)
each claimant whose claim asserts entitlement to a portion of the
allottee's share, and (c) each person who had not filed a claim on the
date of issuance of such order but is in that order determined by the
Superintendent to be ineligible to receive a portion of the allottee's
share. Such notice shall be accompanied by a copy of the Order of
Distribution and shall contain instructions for filing an appeal in
accordance with paragraphs (a) or (b) and (c) of 121.8.
25 CFR 121.8 Appeal from an Order of Distribution.
(a) An Order of Distribution of the share of an allottee living on
the date the order is issued shall become final 3 days from the date
thereof unless an appeal is filed by an interested party with the
Superintendent before the expiration of those 3 days.
(b) An Order of Distribution of the share of an allottee who is
deceased on the date the order is issued shall become final 30 days from
the date thereof unless an appeal is filed by an interested party with
the Superintendent before the expiration of those 30 days.
(c) Each appeal must contain a statement of the reasons that the
appellant considers the Order of Distribution to be subject to error,
and each appellant must, at the time of filing his appeal, mail a copy
thereof to each person named as a distributee in the Order of
Distribution. The Superintendent shall furnish a copy of the appeal to
each other interested party to whom a copy of the Order of Distribution
was mailed.
(d) The Regional Solicitor, Tulsa, is authorized to determine appeals
from Orders of Distribution in accordance with the act and the
regulations in this part. The Regional Solicitor's decision thereon
shall be final on the date of the issuance of his decision and shall
constitute the final action of the Department of the Interior in
connection with such appeal.
(e) The Superintendent may, in his discretion for good cause shown,
order partial distribution of any undisputed segment of any share for
which an appeal is pending when such distribution will not be affected
by the appeal decision on the disputed portion of the share.
(38 FR 9163, Apr. 11, 1973, as amended at 39 FR 41707, Dec. 2, 1974.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 121.9 Disbursement of distributed shares.
When an Order of Distribution, either as issued or as amended by
decision on appeal, has become final, the Superintendent shall either
disburse to distributees the amounts distributed to them or deposit such
amounts to appropriate accounts, in accordance with the following
guidelines:
(a) When the amount distributed to any heir is less than $20, the
amount shall be segregated in a special account for that heir until all
Orders of Distribution have become final, at which time the sum of all
amounts thus segregated to such account shall be disbursed or
redeposited as provided in paragraphs (b), (c), (d) and (e) of this
section, if such sum equals or exceeds $20. When such sum is less than
$20, such sum in each of such accounts, and all unclaimed shares, and
all amounts awarded to distributees which remain unclaimed for 6 months
after the Order of Distribution has become final, shall, subsequent to
April 27, 1974, be deposited to the account of the Osage Tribe as sums
which have reverted to it.
(b) Living allottees having certificates of competency shall have
their distributions disbursed directly to them.
(c) Living allottees not having certificates of competency shall have
their distributions deposited to their accounts, subject to withdrawal
by them at their request.
(d) Heirs of Osage Indian blood who are at least 18 years of age and
are not under guardianship shall have their distributions disbursed
directly to them.
(e) Heirs of Osage Indian blood who are under guardianship shall have
their distributions deposited to their accounts, subject to disbursement
to the distributees or their guardians or other persons on their behalf
on such terms and conditions as the Superintendent shall consider to be
in their best interests during their legal disability, after which the
remaining portion shall be disbursed to such distributees.
(f) Heirs of Osage Indian blood who are under 18 years of age shall
have their distributions deposited to their accounts, with the funds
represented by such deposits invested at favorable rates of return for
prudent investments, to be disbursed with earnings thereon only when the
respective distributees for whom they are held shall attain the age of
18 years.
25 CFR 121.10 Miscellaneous provisions.
(a) Powers of attorney, assignments, and orders given to another
person by anyone entitled to share in the payment will not be
recognized.
(b) None of the funds distributed are subject to Federal or State
income taxes.
(c) Claimants are hereby notified that criminal penalties are
provided by statute (18 U.S.C. 1001) for knowingly filing fraudulent
information.
25 CFR 121.10 Part 122
25 CFR 121.10 PART 122 -- MANAGEMENT OF OSAGE JUDGMENT FUNDS FOR
EDUCATION
Sec.
122.1 Purpose and scope.
122.2 Definitions.
122.3 Information collection.
122.4 Establishment of the Osage Tribal Education Committee.
122.5 Selection/nomination process for committee members.
122.6 Duties of the Osage Tribal Education Committee.
122.7 Budget.
122.8 Administrative costs for management of the fund.
122.9 Annual report.
122.10 Appeal.
122.11 Applicability.
Authority: 86 Stat. 1295, 98 Stat. 3103 (25 U.S.C. 331 note).
Source: 54 FR 34155, Aug. 18, 1989, unless otherwise noted.
25 CFR 122.1 Purpose and scope.
(a) The purpose of this part is to set forth procedures and
guidelines to govern the use of authorized funds in education programs
for the benefit of Osage Tribal members, along with application
requirements and procedures used by those eligible persons.
(b) The Osage Tribe by act of Congress, October 27, 1972 (25 U.S.C.
883, 86 Stat. 12950, as amended by Pub. L. 98-605) on October 30, 1984,
provides that $1 million, together with other funds which revert to the
Osage Tribe, may be advanced, expended, invested, or reinvested for the
purpose of financing an education program of benefit to the Osage Tribe
of Indians of Oklahoma, with said program to be administered as
authorized by the Secretary of the Interior.
25 CFR 122.2 Definitions.
Act means Osage Tribe by Act of Congress, October 27, 1972 (25 U.S.C.
883, 86 Stat. 1295), as amended by Pub. L. 98-605.
Allottee means a person whose name appears on the roll of Osage Tribe
of Indians approved by the Secretary of the Interior on April 11, 1908,
pursuant to the Act of June 28, 1906 (34 Stat. 539).
Assistant Secretary means the Assistant Secretary -- Indian Affairs.
Osage Tribal Education Committee means the committee selected to
administer the provisions of this part as specified by 122.6.
Reverted funds means the unpaid portions of the per capita
distribution fund, as provided by the Act, which were not distributed
because the funds were:
(1) Unclaimed within the period specified by the Act; or
(2) For an amount totaling less than $20 due an individual from one
or more shares of one or more Osage allottees.
Secretary means the Secretary of the Department of the Interior or
his/her authorized representative.
25 CFR 122.3 Information collection.
(a) The information collection requirements contained in 122.6 and
122.9 have been approved by the Office of Management and Budget under
U.S.C. 3501 et seq. and assigned clearance numbers 1076-0098 and
1076-0106, respectively. The information collected in 122.6 is used to
determine the eligibility of Osage Indian student applicants for
educational assistance grants. The information collected in 122.9
provides summary review for program evaluation and program planning.
Response to the information collections is required to obtain a benefit
in accordance with 25 U.S.C. 883.
(b) Public reporting burden for this information collection is
estimated to average 30 minutes per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collection
of information. Send comments regarding this burden estimate or any
other aspect of this collection of information, including suggestions
for reducing the burden, to the Bureau of Indian Affairs, Information
Collection Clearance Officer, Room 337 SIB, 18th & C Streets, NW.,
Washington, DC 20240; and the Office of Management and Budget,
Paperwork Reduction Project (1076-0106), Washington DC 20503.
25 CFR 122.4 Establishment of the Osage Tribal Education Committee.
(a) The Osage Tribe, to maintain its right of Tribal autonomy, shall,
at the direction of the Bureau of Indian Affairs, establish the Osage
Tribal Education Committee (OTEC) to fulfill the responsibilities and
provisions of this part as set out in 122.6.
(b) This committee shall be composed of seven (7) members. Five (5)
of the members shall be of Osage blood or descendents of Osage, and two
(2) from the education staff of the Bureau of Indian Affairs.
(1) Of the five Osage members, at least three shall be legal
residents and/or live within a 20-mile radius of one of the three Osage
Indian villages. Of these, at least one member shall reside within the
specified radius of the Pawhuska Indian village; at least one member
shall reside within the specified radius of the Hominy Indian village;
and at least one member shall reside within the specified radius of the
Greyhorse Indian village.
(2) The two remaining Osage committee members will be members at
large.
25 CFR 122.5 Selection/nomination process for committee members.
(a) Selection of the five (5) OTEC members shall be made by the
Assistant Secretary in accordance with the following:
(1) Any adult person of Osage Indian blood who is an allottee or a
descendant of an allottee is eligible to serve on the Osage Tribal
Education Committee.
(2) Nominees for committee membership shall include a brief statement
of interest and qualifications for serving on the committee.
(b) Nominations may be made by any Osage organization, including the
Osage village communities of Greyhorse, Hominy and Pawhuska, by
requesting its candidates to follow procedures outlined in paragraph
(a)(2) of this section.
(c) Nominations shall be delivered by registered mail to the
following address: Osage Tribal Education Committee, c/o Area Education
Programs Administrator, Bureau of Indian Affairs, Muskogee Area Office
-- Room 152, 5th & W, Okmulgee, Muskogee, Oklahoma 74401.
(d) A Nominee Selection Committee composed of OTEC members so
designated by the Assistant Secretary will review all nominations. Upon
completion of this process, the Nominee Selection Committee will forward
its recommendations for final consideration to the Assistant Secretary.
(e) Each member shall be sworn in for a four year term. At the
discretion of the Assistant Secretary, members may succeed themselves
with a recommendation for reappointment from the Nominee Selection
Committee.
(f) The Assistant Secretary may, until a vacancy is filled, appoint
an individual to serve for a temporary period not to exceed 120 days.
25 CFR 122.6 Duties of the Osage Tribal Education Committee.
(a) For the purpose of providing financial assistance to eligible
Osage applicants for educational assistance, the Osage Tribal Education
Committee shall maintain an office and retain all official records at
the Bureau of Indian Affairs offices located at the Federal Building,
Muskogee, Oklahoma.
(b) The Osage Tribal Education Committee shall be responsible for
implementing an overall plan of operation consistent with the policy of
Indian self-determination which incorporates a systematic sequential
process whereby all student applications for financial aid are rated and
ranked simultaneously to enable a fair distribution of available funds.
(1) All applicants shall be rated by a point system appropriate to
applications for education assistance. After all applications are
rated, the Osage Tribal Education Committee will rank the applications
in a descending order for award purposes. No awards shall be made until
all applications are rated against the point system.
(2) Monetary awards shall be for fixed amounts as determined by the
Osage Tribal Education Committee. The fixed amounts shall be itemized
in the committee's annual budgetary request, and the monetary award
amounts shall be consistent with the fixed amounts itemized in the
approved budget.
(3) Payment of the monetary awards shall be made directly to the
student, with half of the amount payable on or before September 15 and
the second half payable on or before February 15, provided the student
is successfully enrolled in an accredited institution of higher
education and meeting the institution's requirement for passing work.
(4) No student will be funded beyond 10 semesters or five academic
years, not to include summer sessions, nor shall any student with a
baccalaureate degree be funded for an additional undergraduate degree.
25 CFR 122.7 Budget.
(a) By August 1 of each year, the Osage Tribal Education Committee
will submit a proposed budget to the Assistant Secretary or to his/her
designated representative for formal approval. Unless the Assistant
Secretary or his/her designated representative informs the committee in
writing of budget restrictions by September 1, the proposed budget is
considered to be accepted.
(b) The investment principal, composed of the one million dollars
appropriated by the Act and reverted funds, must be invested in a
federally insured banking or savings institution or invested in
obligations of the Federal Government. There are no provisions in this
part which shall limit the right of the Osage Tribal Education Committee
to withdraw interest earned from the investment principal; however,
expenditures shall be made against only the interest generated from
investment principal and reverted funds.
(c) All funds deposited will accumulate interest at a rate not less
than that generally available for similar funds deposited at the same
banking or savings institution or invested in the same obligations of
the United States Government for the same period of time.
25 CFR 122.8 Administrative costs for management of the fund.
Funds available for expenditures may be used by the Osage Tribal
Education Committee in the performance of its duties and
responsibilities. Recordkeeping is required and proposed expenditures
are to be attached with the August 1 proposed annual budget to the
Assistant Secretary or his/her designated representative.
25 CFR 122.9 Annual report.
The Osage Tribal Education Committee shall submit an annual report on
OMB approved Form 1076-0106, Higher Education Annual Report, to the
Assistant Secretary or his/her designated representative on or before
November 1, for the preceding 12 month period.
25 CFR 122.10 Appeal.
The procedure for appealing any decision regarding the awarding of
funds under this part shall be made in accordance with 25 CFR part 2,
Appeals from Administrative Action.
25 CFR 122.11 Applicability.
These regulations shall cease upon determination of the legal and
appropriate body to administer the fund and upon the establishment of
succeeding regulations.
25 CFR 122.11 PART 123 -- ALASKA NATIVE FUND
Sec.
123.1 Scope and purpose.
123.2 Definitions.
123.3 Payment of shares of the Fund in the absence of recognition of
an assignment.
123.4 Recognition of assignments.
123.5 Register of recognized assignments.
123.6 Sub-assignment.
123.7 Multiple assignments.
123.8 Disclaimer.
123.9 Cancellation of assignments.
123.10 Decision; finality.
Authority: Secs. 25 and 31, Pub. L. 92-203, 85 Stat. 715, as
amended by Pub. L. 95-178, 91 Stat. 1370 (43 U.S.C. 1624, 1628).
Source: 43 FR 20003, May 10, 1978, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 123.1 Scope and purpose.
(a) The regulations in this part shall apply to all future
distributions of the Alaska Native Fund pursuant to section 6 of the
Alaska Native Claims Settlement Act (43 U.S.C. 1605), except money
reserved for the payment of attorney and other fees as provided in
section 20 of the Act (43 U.S.C. 1619).
(b) These regulations are not intended (1) to alter the distribution
formula of section 6 of the Act (43 U.S.C. 1605), or the redistribution
formulas of sections 7(j) or 7(m) of the Act (43 U.S.C. 1606(j), (m));
or (2) to require the distribution of money in the Fund when not
authorized by the Act, or when the money has been set aside in an escrow
or reserved account pursuant to an order of a court of competent
jurisdiction.
(c) The regulations in this part are intended to implement section 31
of the Act (43 U.S.C. 1628) which authorizes the Secretary to recognize
validly executed assignments of a Regional Corporation's rights to
receive payments from the Fund.
25 CFR 123.2 Definitions.
As used in the regulations in this part.
Act means the Alaska Native claims Settlement Act, as amended (Pub.
L. 92-203, 85 Stat. 715, 43 U.S.C. 1601 et seq.; Pub. L. 95-178, 91
Stat. 1370).
Assignee means the person or entity receiving from a Regional
Corporation an assignment of certain of the corporation's future
interests in the Fund.
Assignor means a Regional Corporation which has assigned to another
certain of its future interests in the Fund.
Assistant Secretary means the Assistant Secretary for Indian Affairs,
U.S. Department of the Interior, or his authorized representative.
Fund means the Alaska Native Fund created by section 6 of the Act (43
U.S.C. 1605).
Payee means the recipient of a distribution from the Fund. The payee
must be a financial corporation such as a bank, credit union, or savings
and loan association which is insured under the Federal Deposit
Insurance Corporation, the National Credit Union Administration, or the
Federal Savings and Loan Insurance Corporation, respectively. The payee
must be capable of receiving payment through the U.S. Treasury's
Financial Communication System.
Regional Corporation means an Alaska Native Regional Corporation
established under the laws of the State of Alaska in accordance with the
provisions of the Act.
Secretary means the Secretary of the Interior.
25 CFR 123.3 Payment of shares of the Fund in the absence of
recognition of an assignment.
(a) All money in the Fund shall be distributed by the Assistant
Secretary at the end of each three months of the fiscal year among the
Regional Corporations on the basis of the relative numbers of Natives
enrolled in each region.
(b) Except as otherwise authorized in the regulations in this part, a
Regional Corporation's quarterly share of the Fund shall be made payable
to the Regional Corporation through a payee designated by the Regional
Corporation.
(c) A Regional Corporation may designate a payee of its quarterly
share at any time, and may change that designation at any time,
Provided, That the Assistant Secretary receive written notification of
any such designation or change in designation at least ten (10) days
before the quarterly distribution date. Any such designation must
include the name and address of the payee and the identifying American
Banking Association number.
25 CFR 123.4 Recognition of assignments.
(a) Upon application of a Regional Corporation, as provided in
paragraph (c) of this section, the Assistant Secretary shall recognize a
validly executed assignment of that portion of a furture interest in the
Fund not subject to the redistribution provisions of sections 7(j) and
7(m) of the Act. A future interest which is not subject to those
redistribution provisions shall be referred to in this section as an
''assignable future interest'' or the ''assignable portion of a
quarterly distribution.''
(b) Such assignments shall only be recognized to the extent that the
Regional Corporation involved is not required to distribute funds
pursuant to subsections (j) or (m) of section 7 of the Act.
(c) Upon recognition of such an assignment, the Assistant Secretary
shall distribute the amount assigned to the payee designated by the
parties to the assignment, and shall continue to pay the amount assigned
to that payee, except as provided by 123.6(b) and 123.9.
(d) A Regional Corporation's application for recognition of an
assignment of a future interest in the Fund
(1) Shall be addressed to the Assistant Secretary for Indian Affairs,
Attn.: Assistant Director, Financial Management, Bureau of Indian
Affairs, U.S. Department of the Interior, Washington, D.C. 20240;
(2) Shall specifically request that the Assistant Secretary recognize
an assignment of a fixed sum to which the Regional Corporation may be
entitled from the Fund;
(3) Shall designate a payee of the amount assigned; (4) shall be
accompanied by a duly-adopted resolution of the Board of Directors of
the Regional Corporation, which resolution authorizes the making of the
assignment and the application for recognition of that assignment by the
Secretary of the Interior, or evidence of stockholder approval when
required by Alaska state law; and
(5) Shall be accompanied by one executed copy and three facsimile
copies of a validly executed assignment of all or a portion of the
Regional Corporation's assignable future interest in the Fund, which
assignment shall contain the following language:
(i) The parties to this assignment agree to seek recognition of this
assignment by the Secretary of the Interior, as authorized by section 4
of the Act of November 15, 1977, Pub. L. 95-178 (91 Stat. 1369, 1370).
(ii) It is understood by the parties to this assignment that in the
event the Secretary of the Interior recognizes this assignment, the
United States reserves the right to assert against the assignee and
successors of the assignee, any setoff or counterclaim which the United
States has, or may have, against the Assignor Corporation.
(e)(1) An assignment may provide that: (i) All of the assignable
portion of each quarterly distribution be paid to the payee designated
in the application for recognition of assignment;
(ii) A fraction of the assignable portion of each quarterly
distribution be paid to the designated payee; or that
(iii) The assignable portion of each quarterly distribution, up to a
stated maximum amount, be paid to the designated payee.
(2) Other formulas for assignment of assignable future interests may
be recognized if (i) such a formula clearly identifies what portion of
each affected quarterly distribution is to be paid to the designated
payee, and (ii) the formula will permit the Assistant Secretary to set
priorities in accordance with 123.7 when subsequent application is made
for recognition of additional assignments.
25 CFR 123.5 Register of recognized assignments.
The Assistant Secretary shall maintain and make available for
inspection by the public a register of requests for recognition of
assignments and assignments recognized by him pursuant to the
regulations in this part. Such register shall list the name of the
Regional Corporation; the name and address of the assignee; the name,
address, American Banking Association number, and account number for
deposit of the payee of the amount assigned; the amount assigned; the
amount paid at each quarterly distribution under the terms of the
assignment; and the date of the Assistant Secretary's recognition.
25 CFR 123.6 Sub-assignment.
(a) Nothing in the regulations in this part shall prohibit an
assignee from making a valid sub-assignment of a Regional Corporation's
rights to receive payments from the Fund. However, the Assistant
Secretary has no authority and shall not recognize any sub-assignment by
the assignee of any future interest of a Regional Corporation in the
Fund.
(b) The Assistant Secretary may accept a re-designation of a new
payee of an assignment recognized by the Assistant Secretary, upon
application of an authorized official of the assignee in accordance with
123.3(c).
25 CFR 123.7 Multiple assignments.
(a) The Assistant Secretary may recognize more than one assignment of
a Regional Corporation's future interests in the Fund. A second or
later assignment of a Regional Corporation's future interest in the
Fund, when recognized in accordance with 123.4, shall be recognized
subject to assignments already recognized.
(b) The Assistant Secretary shall not recognize an assignment of a
Regional Corporation's future interest in the Fund if he has more than
one outstanding application from that Corporation seeking recognition of
such future interests. If more than one application from a Regional
Corporation is pending before the Assistant Secretary, he shall notify
both the Regional Corporation and the assignees of the assignments
sought to be recognized, and seek a written consensus on the priorities
to be established. In the Absence of such a consensus, the Assistant
Secretary shall not recognize any such assignment.
25 CFR 123.8 Disclaimer.
The Assistant Secretary does not guarantee by any action taken
pursuant to the regulations in this part that the entitlement of a
Regional Corporation to any quarterly distribution of the Fund shall be
of any given amount, or that the cumulative entitlement of that
Corporation will reach any given sum.
25 CFR 123.9 Cancellation of assignments.
(a) The Assistant Secretary shall cancel his recognition of an
assignment upon joint application of the assignee and Regional
Corporation involved. Such application must include a resolution of the
Board of Directors of the Regional Corporation, and a validly executed
agreement between the Regional Corporation and assignee cancelling the
assignment and authorizing the Secretary of the Interior to cancel his
recognition of the assignment.
(b) Such cancellation of recognition of an assignment shall be
reflected in the register compiled by the Assistant Secretary as
provided in 123.5.
25 CFR 123.10 Decision; finality.
(a) A decision of the Assistant Secretary not to recognize an
assignment of a future interest in the Fund shall inform the Regional
Corporation what defects, if any, remain in its application for
recognition, and shall provide the corporation with an opportunity to
cure those defects.
(b) A decision of the Assistant Secretary to recognize an assignment
of a Regional Corporation's future interest in the Fund shall not be
subject to reconsideration or administrative appeal, and shall therefore
be final for the Department.
25 CFR 123.10 PART 124 -- PROCEDURES FOR DEPOSITING FUNDS TO THE CREDIT
OF 14X6140-DEPOSITS OF PROCEEDS OF LANDS WITHDRAWN FOR NATIVE SELECTION,
BIA
Sec.
124.1 Purpose.
124.2 Proceeds received by Federal agencies.
124.3 Proceeds received by the State of Alaska.
Authority: 89 Stat. 1145.
Source: 42 FR 32229, June 24, 1977, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 124.1 Purpose.
The purpose of the regulations in this part is to describe the
procedures to be used by all Departments and Agencies of the Federal
Government and the State of Alaska for the deposit of proceeds derived
from contracts, leases, permits, and rights-of-way or easements
pertaining to affected lands or resources in affected lands withdrawn
for Native selection pursuant to the Alaska Native Claims Settlement
Act.
25 CFR 124.2 Proceeds received by Federal agencies.
(a) Direct deposits. (1) Agency will prepare Deposit Ticket (SF
215), using Agency Accounting Station Code 14-20-0650.
(2) In Block (6) Fund Symbol 14X6140 will be inserted as well as the
following:
Credit to Bureau of Indian Affairs, Branch of Finance and Accounting,
P.O. Box 127, Albuquerque, New Mexico 87103.
(3) Memorandum copy and confirmed copy of Deposit Ticket will be
mailed to above address, immediately upon completion and confirmation.
(4) Agency will provide information (lease, contract or other
identification) which will permit depositing agency to identify deposit
with particular plot of land at time distribution of the funds is to be
made. This information can be shown in Block (6) if space permits, or
on an attached listing.
(b) Periodic deposits. (1) In some circumstances, collection from
Withdrawn Lands will be in such small amounts and such frequency as to
be administratively burdensome to make individual deposits to the fund,
or collections may be mixed with collections to be credited to other
funds. In such instances depositing agencies may initially deposit the
collections to their own suspense accounts. Such deposits will then be
transferred to Fund 14X6140 no less frequently than monthly. The ''Pay
to'' side of the SF 1081 will be completed as follows:
Department, Interior.
Bureau, Indian Affairs.
Agency Station Symbol, 14-20-0650.
Address, Albuquerque, NM 87103.
Appropriation or Fund Symbol, 14X6140.
and will be supported by sufficient detail to permit future
identification by depositing agency. An advance copy of the SF 1081,
with supporting documentation will be forwarded to the BIA at
Albuquerque immediately.
(2) Agencies not using the SF 1081 procedures will issue a check made
payable to the Treasurer of the United States, and forward it to:
Juneau Area Office, Bureau of Indian Affairs, P.O. Box 8000 -- B,
Juneau, Alaska 99802.
accompanied by a listing in sufficient detail to permit the
collecting agency to identify the collections with each parcel of land
at the time distribution of the funds is to be made.
25 CFR 124.3 Proceeds received by the State of Alaska.
The State agency responsible for making collections will deposit the
proceeds to the credit of the State of Alaska. A check will then be
issued, payable to the Treasurer of the United States, and will be
forwarded to the Juneau Area Office, Bureau of Indian Affairs,
accompanied by a detailed listing providing information which will
permit identification of the funds with each particular parcel of land
at the time distribution of the funds is to be made. The Juneau Area
Office will deposit all such receipts to the credit of Fund Symbol
14X6140, forwarding the memorandum copy to the Branch of Finance and
Accounting immediately, together with a copy of the detail provided by
the State of Alaska.
25 CFR 124.3 PART 125 -- PAYMENT OF SIOUX BENEFITS
Sec.
125.1 Scope.
125.2 Purpose.
125.3 Definitions.
125.4 Eligibility.
125.5 Application procedure.
125.6 Administration.
125.7 Information collection.
Authority: Act of March 2, 1889, c. 405, 17, 25 Stat. 888, 895;
Act of June 10, 1896, c. 398, 29 Stat. 321, 334; Act of May 21, 1928,
c. 662, 45 Stat. 984; Act of June 18, 1934, c. 576, 14, 48 Stat.
987, 25 U.S.C. 474.
Source: 46 FR 36136, July 14, 1981, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 125.1 Scope.
The regulations in this part govern the payment of ''Sioux benefits''
to allotted Sioux Indians under the Act of March 2, 1889, c. 405, 17,
25 Stat. 888, 895; the Act of June 10, 1896, c. 398, 29 Stat. 321,
334; and the Act of May 21, 1928, c. 662, 45 Stat. 984; and to
unallotted Sioux Indians on the Cheyenne River Indian Reservation under
the Act of June 18, 1934, c. 576, 14, 48 Stat. 987, 25 U.S.C. 474.
25 CFR 125.2 Purpose.
The purpose of these regulations is to implement the provisions of
federal statutes which provide for the payment of ''Sioux benefits'' to
Sioux Indians by setting forth the criteria governing eligibility for
and entitlement to ''Sioux benefits'' and by establishing procedures
governing application for and payment of ''Sioux benefits.''
25 CFR 125.3 Definitions.
As used in this part, the term --
(a) ''Area Director'' means the Area Director, Aberdeen Area Office,
BIA, or his/her delegate.
(b) ''Bureau'' or ''BIA'' means the Bureau of Indian Affairs,
Department of the Interior.
(c) ''Commissioner'' means the Commissioner of Indian Affairs, BIA,
or his/her delegate.
(d) ''Sioux benefits'' means the allotment of stock and farming
equipment plus $50.00 cash as provided for by the Act of March 2, 1889,
c. 405, 17, 25 Stat. 888, 895, or its commuted cash value as provided
in the Act of June 10, 1896, c. 398, 29 Stat. 321, 334.
(e) ''Sioux Indian'' means a member of any of the bands or tribes
comprising the Sioux Nation of Indians to which the Act of March 2,
1889, c. 405, 25 Stat. 888, applied.
(f) ''Single person'' includes all unmarried persons (other than an
unmarried person under the age of eighteen years) and any person who is
legally separated, divorced, or widowed.
(g) ''Head of a family'' means only: (1) A married person who meets
the requirements of 125.4(c)(1) or (2) (if living with his/her spouse)
or 125.4(c)(3) (if not living with his/her spouse), and (2) an
unmarried person under the age of eighteen years who meets the
requirements of 125.4(c)(3).
(h) For the purpose of determining family support under 125.4(c)(2)
and 125.4(c)(3), ''family'' means two or more persons (including the
applicant) related by blood, through marriage, or by adoption to the
applicant and who live together in the same household and are dependent
upon the applicant for all or part of their support.
25 CFR 125.4 Eligibility.
(a) Allotted Sioux Indians. The eligibility of allotted Sioux
Indians for Sioux benefits is governed by the Act of March 2, 1889, c.
405, 17, 25 Stat. 888, 895; the Act of June 10, 1896, c. 398, 29
Stat. 321, 334; and the Act of May 21, 1928, c. 662, 45 Stat. 984.
The Act of June 18, 1934, c. 576 14, 48 Stat. 987, 25 U.S.C. 474, is
inapplicable to any Sioux Indian to whom an allotment of land has been
made under the provisions of the Act of May 29, 1908, c. 216, 19, 35
Stat. 444, 451, or any prior federal statute. Under the applicable
statutes, an allotted Sioux Indian is eligible for Sioux benefits if --
(1) He/she received a valid allotment of land under the provisions of
the Act of May 29, 1908, c. 216, 19, 35 Stat. 444, 451, or any prior
Federal statute (regardless of whether such allotment is still held by
the applicant);
(2) He/she is either a single person over the age of eighteen (18)
years or a head of a family (as provided in 125.4(c));
(3) He/she has duly made application for Sioux benefits, and such
application has been approved during his/her lifetime (as provided in
125.5); and
(4) He/she has not previously been paid Sioux benefits in his/her own
right (as provided in 125.4(d)).
(b) Unallotted Sioux Indians. The Act of June 18, 1934, c. 576,
14, 48 Stat. 987, 25 U.S.C. 474, applies only to Sioux Indians who, but
for the provisions of section 1 of that Act, 25 U.S.C. 461, would have
been eligible for an allotment of land under the provisions of the Act
of May 29, 1908, c. 216, 19, 35 Stat. 444, 451, or any prior Federal
statute, and have not, in fact, been allotted lands under the provisions
of such Federal statutes. That Act has current application only to
unallotted members of the Cheyenne River Sioux Tribe because of the
proviso that the payment of Sioux benefits under that Act would continue
only until such time as the lands available for allotment on each
reservation as of June 18, 1934, would have been exhausted by the
allotment of eighty (80) acres of land to each person receiving Sioux
benefits under that Act. Under this statute a member of the Cheyenne
River Sioux Tribe is eligible for Sioux benefits if --
(1) He/she would be eligible, but for the provisions of the Act of
June 18, 1934, c. 576, 1, 48 Stat. 984, 25 U.S.C. 461, for an
allotment of land under the provisions of the Act of May 29, 1908, c.
216, 19, 35 Stat. 444, 451, or any prior Federal statute, and has not
been allotted lands under the provisions of such Federal statutes;
(2) He/she is either a single person over the age of eighteen (18)
years or a head of a family (as provided in 125.4(c));
(3) He/she has duly made application for Sioux benefits and such
application has been approved during his/her lifetime (as provided in
125.5);
(4) He/she has not previously been paid Sioux benefits in his/her own
right (as provided in 125.4(d)); and
(5) The hypothetical allotment of 80 acres of tribal land to the
applicant would not exhaust the lands available for allotment on the
Cheyenne River Indian Reservation as of June 18, 1934, considering the
allowance of similar hypothetical allotments to other such Indians
previously receiving Sioux benefits under such Act.
(c) Head of a Family. The following criteria apply in determining
head of family status under both 125.4(a) and 125.4(b).
(1) Except as provided in 125.4(c)(2), when an applicant for Sioux
benefits is married and living with his/her spouse, the applicant will
be deemed to be a head of a family if designated as such by both the
applicant and his/her spouse.
(2) When an applicant for Sioux benefits is married and living with
his/her spouse, but the applicant's spouse (i) does not concur in the
applicant's designation as head of the family, or (ii) has previously
received Sioux benefits as head of the family which includes the
applicant, the applicant will be deemed to be a head of a family if the
economic contribution to the support of the family attributable to the
applicant exceeds the contribution by his/her spouse for the eighteen
(18) months period immediately preceding the date of the application for
Sioux benefits.
(3) When an applicant for Sioux benefits is (i) unmarried, or (ii)
married, but not living with his/her spouse, the applicant will be
deemed to be a head of a family if the primary source of economic
contribution to the support of the family is attributable to the
applicant. Welfare or support payment made to the applicant by the
government or his/her spouse shall be deemed attributable to the
applicant.
(4) The Bureau shall not presume that a husband is a head of a family
for purposes of this part solely because of his status as a husband.
The Bureau shall not presume that a wife is not a head of a family for
purposes of this part solely because of her status as a wife.
(5) The Bureau shall not presume that a Sioux woman married to a
non-Sioux man is a head of a family for purposes of this part solely
because of such status. The Bureau shall not presume that a Sioux woman
marrried to a Sioux man in not a head of a family for purposes of this
part solely because of such status.
(d) Double benefits. The prohibition against multiple payment of
Sioux benefits to a person in his/her own right extends to the payment
of Sioux benefits under any Federal statute. However, a person will not
be deemed to have received payment of Sioux benefits in his/her own
right due to the fact that:
(1) Sioux benefits were paid to such person in his/her capacity as an
heir of an Indian who, under prior law, was held to have a vested right
to receive such benefits as of the date of death, or
(2) Sioux benefits have previously been paid to that person's spouse
or former spouse. Although the prohibition against double benefits
would not preclude both spouses from receiving Sioux benefits during
their marriage (assuming they both were otherwise eligible) or preclude
a widowed or divorced applicant from receiving Sioux benefits merely
because his/her spouse had previously received Sioux benefits, an
applicant would not be able to receive Sioux benefits in his/her own
right first as a single adult and again as a head of a family, or vice
versa.
25 CFR 125.5 Application procedure.
(a) Agency Superintendent. Application for Sioux benefits must be
submitted to the Agency Superintendent for the reservation and shall
contain such information as may be prescribed by the Bureau.
Applications must be submitted within the lifetime of the applicant.
Within thirty (30) days of receipt of a completed application, the
Agency Superintendent shall verify the necessary information and forward
the application and relevant documentation to the Area Director along
with his/her recommendation for approval or disapproval.
(b) Area Director. Within fourteen (14) days of receipt of an
application from the Agency Superintendent, the Area Director shall
approve or disapprove the application and notify, in writing, the
applicant and the Agency Superintendent of such decision and, if denied,
the reasons therefor. Failure of the Area Director to act within the
specified time shall have the effect of approval of the application.
(c) Appeal. Approval of an application by the Area Director shall be
final and conclusive. Disapproval of an application may be appealed to
the Commissioner pursuant to the administrative review procedures of 25
CFR part 2, and the Commissioner's determination shall be subject to the
administrative appeal procedures of 43 CFR part 4, subpart D. Approval
of an application on administrative appeal or pursuant to judicial
review shall relate back to the date of the Area Director's decision.
(d) Prior applications. (1) Eligibility for Sioux Benefits will be
determined by an applicant's status as of the date of application,
except that where an applicant's application was disapproved prior to
the promulgation of these regulations under the provisions of previous
Bureau regulations or policies, the applicant may reapply and, if he/she
so requests, have his/her eligibility determined based upon his/her
status as of the date of such prior application, which shall be deemed
to be the date of the application, but nothing in this subsection shall
be construed to allow any application to be made on behalf of a deceased
Sioux Indian whose prior application was disapproved.
(2) Unallotted Sioux Indians of the Pine Ridge and Rosebud
Reservations whose applications were submitted and disapproved prior to
the termination of payment of Sioux benefits on each respective
reservation may reapply for benefits under this subsection within one
year of the effective date of this part and receive payment if their
eligibility under 125.4(b) is established as of the date of such
initial application.
(e) Information collection. The information collection requirements
contained in this part have been approved by the Office of Management
and Budget under 44 U.S.C. 3507 and assigned clearance number 1076-0004.
The information is being collected to provide information necessary for
the Bureau to determine eligibility for Sioux benefits. This
information will be used to grant statutory benefits. The obligation to
respond is required to obtain a benefit.
(46 FR 36136, July 14, 1981; 46 FR 38074, July 24, 1981.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 125.6 Administration.
(a) No payment of Sioux benefits may be made unless an application
therefor has been made and approved during the lifetime of the applicant
as provided by Federal law.
(b) Payment of Sioux benefits shall be made in accordance with a
budget or plan for expenditure submitted by the applicant and approved
by the Agency Superintendent.
(c) The Commissioner shall annually compute the commuted monetary
value of Sioux benefits to be effective on October 1 of that year and
notify the affected tribes and Bureau agencies of such determination.
(d) The Area Director shall annually notify both the Cheyenne River
Sioux Tribe and the Commissioner of the number of Sioux benefits
remaining available to be paid under the provisions of the Act of June
18, 1934, c. 576, 14, 48 Stat. 987, 25 U.S.C. 474.
25 CFR 125.7 Information collection.
The information collection requirements contained in 125.4 and
125.5 have been approved by the Office of Management and Budget under 44
U.S.C. 3501 et seq. and assigned clearance number 1076-0004. The
information is being collected to solicit information necessary to make
a determination of eligibility for Sioux benefits. The information will
be used to determine eligibility for payment. Response is required to
obtain a benefit.
(53 FR 21995, June 13, 1988)
25 CFR 125.7 PART 134 -- PARTIAL PAYMENT CONSTRUCTION CHARGES ON INDIAN
IRRIGATION PROJECTS
Sec.
134.1 Partial reimbursement of irrigation charges; 5 percent per
annum of cost of system, June 30, 1920.
134.2 Landowners financially unable to pay.
134.3 Period for payments extended.
134.4 Annual payment reduced.
134.4a Assessment and collection of additional construction costs.
134.5 Payments to disbursing officer.
134.6 ''Owner'' defined.
134.7 Modifications.
Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C.
385. Interpret or apply sec. 1, 41 Stat. 409; 25 U.S.C. 386.
Source: 22 FR 10643, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 134.1 Partial reimbursement of irrigation charges; 5 percent
per annum of cost of system, June 30, 1920.
In pursuance of the act of February 14, 1920 (41 Stat. 409; 25
U.S.C. 386), regulations governing partial payment of construction
charges on Indian irrigation projects, with the exception of certain
ones mentioned therein, where approved by the Department June 21, 1920,
and require that each owner of irrigable land under any irrigation
system constructed for the benefit of Indians under provisions of law
requiring reimbursement of the cost of such system and to which land,
water for irrigation purposes can be delivered from such system, shall
pay, on or before November 15, 1920, a sum equal to 5 percent of the per
acre cost, as of June 30, 1920, of the construction of the system under
which such land is situated. The per acre cost of a given system as of
June 30, 1920, shall be determined by dividing the total amount expended
for construction purposes on such system up to that day by the total
area of land to which water for irrigation purposes can be delivered on
that date; and on November 15 of each year following the year 1920,
until further notice, the land owners, as therein prescribed, shall pay
5 percent of the per acre construction cost as of June 30, of the
current year, such per acre cost to be determined by dividing the cost
of the system to June 30 of that year by the total area of land to which
water for irrigation purposes can be delivered from the system on that
date. Provision is contained that no payments shall be required under
the regulations in behalf of lands still in process of allotment or
prior to the issuance of the first or trust patent therefor, nor for
lands reserved for school, agency, or other administrative purposes
where the legal title still remains in the United States.
25 CFR 134.2 Landowners financially unable to pay.
Considerable difficulty has been encountered in collecting charges
under the regulations in this part owing to the fact that Indians have
been financially unable to pay the charges, the result being that the
construction charges have accrued against the lands and in cases where
the land is sold for the benefit of the allottee or his heirs under the
regulations, the purchaser is to pay the accrued and future irrigation
charges which make it difficult in some instances, to sell the land at
as favorable terms as might otherwise be secured.
25 CFR 134.3 Period for payments extended.
Furthermore, in recent legislation dealing with specific projects in
the Bureau and also all reclamation projects the policy has been to
extend the payment of such charges over a longer period of years.
25 CFR 134.4 Annual payment reduced.
In view of these conditions the regulations governing this matter are
hereby modified so as to distribute the unaccrued installments over a
period of time so that 2 1/2 percent of the total amount yet due shall
be due and payable on November 15 of each year until further notice.
You shall accordingly ascertain the per acre cost after deducting the
amount of the accrued charges and take 2 1/2 percent of that amount and
a like sum each year so that the amount of the annual installments will
be the same each year. Superintendents are obligated to submit all
proposed lists of sales involving allotments containing irrigable
allotments to the project or supervising engineer for checking, as to
the irrigable acreage and amounts of unpaid construction, operation, and
maintenance charges against such allotments. Each sale forwarded to the
Bureau for action shall be accompanied by contract executed on Form
5-462b where irrigable acreage is involved and after approval thereof a
copy of contract on said form shall be sent to the project engineer for
his records and the charges paid by the purchaser shall be turned over
to the disbursing agent for credit and deposit as instructed in the next
paragraph. The regulations in this part shall not apply to lands in the
Wapato project, on the Yakima Indian Reservation, nor to the irrigation
projects on the Blackfeet, Fort Peck, Flathead, and Crow Reservations,
Montana, for which special regulations have been issued nor to the Fort
Hall Reservation, Idaho, or the San Carlos project, Arizona. 1028
Cross References: For special regulations applying to San Carlos
project, see part 137 of this chapter. For further information
concerning Form 5-462b, see part 159 of this chapter.
0281The special regulations for Wapato, Fort Peck, and Flathead, were
not codified. Operations of the Blackfeet project were discontinued by
the Bureau, July 20, 1938, effective September 30, 1933.
25 CFR 134.4a Assessment and collection of additional construction
costs.
(a) Upon the completion of the construction of an Indian irrigation
project, or unit thereof, subsequent to the determination of the partial
per acre construction assessment rate which was fixed prior to July 1,
1957 pursuant to 134.4 the Secretary of the Interior or his authorized
representative shall determine such additional construction cost and
distribute that cost on a per acre basis against all of the irrigable
lands of the project, or unit thereof, and 1/40th of such per acre
additional construction cost thus determined shall be assessed and
collected annually from the non-Indian landowner of the project, or
unit, thereof. The first installment shall be due and payable on
November 15 of the year following the completion of such additional
construction work or, if such additional construction work on the
project, or unit thereof, has been completed prior to July 1, 1957 and
the per acre annual rate determined, the first installment of the
additional construction cost to be repaid by such non-Indian landowners
shall be due and payable on November 15, 1958. This annual per acre
rate shall be in addition to, and run concurrently with, the per acre
construction rate assessed annually under 134.4.
(b) Project lands in Indian ownership are not subject to assessment
for their proportionate share of the per acre construction cost of the
project, or unit thereof, until after the Indian title to the land has
been extinguished. At that time the total annual per acre assessment
rate against non-Indian lands of the project, or unit thereof, shall be
assessed against the former Indian lands for each and every acre of
irrigable land to which water can be delivered through the project
works, beginning on November 15 of the year following the extinguishment
of the Indian title to the land and on November 15 of each year
thereafter over a forty year period. In cases where the Indian title to
project land was extinguished prior to July 1, 1957 the assessment rate
shall be due and payable on November 15, 1958.
25 CFR 134.5 Payments to disbursing officer.
Payments under this part shall be made to the disbursing officer for
the supervising engineer of the Indian Irrigation Service having
jurisdiction over the irrigation system under which the land for which
payment is made may lie. The sum so collected will then, after proper
credit has been made to the land for which collected, be deposited in
the Treasury of the United States to the credit of the respective funds
used in constructing irrigation systems toward which reimbursement shall
have been made.
25 CFR 134.6 ''Owner'' defined.
The word ''owner'' as used in this part shall be construed to include
any person, Indian or white, or any firm, partnership, corporation,
association, or other organization to whom title to the land capable of
irrigation, as provided in the act of February 14, 1920 (41 Stat. 409;
25 U.S.C. 386), has passed, either by fee or trust patent, or otherwise.
25 CFR 134.7 Modifications.
The act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a), cancelled
all irrigation assessments for construction costs against lands in
Indian ownership which were unpaid at that date and deferred all future
assessments for construction costs until the Indian title to the land
shall have been extinguished.
25 CFR 134.7 PART 135 -- CONSTRUCTION ASSESSMENTS, CROW INDIAN IRRIGATION PROJECT
25 CFR 134.7 Subpart A -- Charges Assessed Against Irrigation District
Lands
Sec.
135.1 Contracts.
135.2 Annual rate of assessments.
135.3 Annual assessments.
135.4 Time of payment.
135.5 Penalty.
135.6 Refusal of water delivery.
25 CFR 134.7 Subpart B -- Charges Assessed Against Non-Indian Lands Not
Included in an Irrigation District
135.20 Private contract lands; assessments.
135.21 Time of payment.
135.22 Penalty.
135.23 Refusal of water delivery.
Authority: Sec. 15, 60 Stat. 338.
Source: 22 FR 10644, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 134.7 Subpart A -- Charges Assessed Against Irrigation District Lands
25 CFR 135.1 Contracts.
Under provisions of the act of Congress approved June 28, 1946 (60
Stat. 333-338), contracts were executed June 28, 1951, by the United
States with the Lower Little Horn and Lodge Grass Irrigation District
and the Upper Little Horn Irrigation District providing for the payment,
over a period of 40 years, by each of the Districts of its respective
share of the sum of $210,726 expended for the construction of the Willow
Creek storage works on account of non-Indian lands within the Districts
entitled to share in the storage water, directly or by substitution.
25 CFR 135.2 Annual rate of assessments.
Within the Lower Little Horn and Lodge Grass Irrigation District
there are 3,196.8 acres for which the District is obligated by contract
to pay its proper share of the total construction costs. Within the
Upper Little Horn Irrigation District there are 1,554.7 acres for which
the District is obligated by contract to pay its proper share of the
total construction costs. There are 3,237.6 acres, more or less,
covered by contracts with private landowners, obligating such owners to
pay their proper share of such construction costs. The total per acre
charge against all such lands is $26.38. This amounts to an annual per
acre rate of $0.6595. For the purpose of this notice the annual per acre
rate is hereby fixed at $0.66. This annual per acre rate of assessment
will continue for a 40-year period within which the total amount of
construction costs of $210,726 is to be repaid without interest. The
amount of each annual installment chargeable against each of the
Districts for the acreage covered by their respective contracts shall be
determined by multiplying the total acreage, under each contract
entitled to Willow Creek storage rights, either directly or by
subsituation, by the per acre annual rate.
25 CFR 135.3 Annual assessments.
Notice is hereby given of an annual assessment of $2,108.05 to be
repaid by the Lower Little Horn and Lodge Grass Irrigation District for
the 3,196.8 acres of irrigable land of the District, and an annual
assessment of $1,025.06 to be repaid by the Upper Little Horn Irrigation
District for the 1,554.7 acres of irrigable land of the District.
Against the amounts due annually by the Districts under this notice,
there shall be allowed any credits due under section 6 of the act of
June 28, 1946. Credits due on behalf of any land shall be reflected by
the respective Districts when placing against such land the annual
assessment on the tax rolls.
25 CFR 135.4 Time of payment.
Annual assessments shall be paid by the Districts to the United
States, one-half thereof on or before February 1 and one-half thereof on
or before July 1 following, of each year commencing with the calendar
year 1952.
25 CFR 135.5 Penalty.
To all assessments not paid on the due date, there shall be added a
penalty of one-half of one percent per month or fraction thereof, from
the due date so long as the delinquency continues.
25 CFR 135.6 Refusal of water delivery.
The right is reserved to the United States to refuse the delivery of
water to each of the said Irrigation Districts in the event of default
in the payment of assessments, including penalties on account of
delinquencies.
25 CFR 135.6 Subpart B -- Charges Assessed Against Non-Indian Lands Not Included in an Irrigation District
25 CFR 135.20 Private contract lands; assessments.
In addition to 4,751.5 acres of non-Indian land included within the
two irrigation Districts dealt with in subpart A, there are 3,237.6
acres of land, more or less, in non-Indian ownership under private
ditches, covered by repayment contracts executed pursuant to the act of
June 28, 1946 (60 Stat. 333-338), obligating such owners to pay their
proper share of such construction costs. The total per acre charge
against all such lands is $26.38. This amounts to an annual per acre
rate of $0.6595. For the purposes of this notice the annual per acre
rate is hereby fixed at $0.66. This annual rate of assessment will
continue for a 40-year period within which the total amount of
construction cost of $210,726 is to be repaid without interest. The
amount of each annual installment chargeable against the lands covered
by each of the several contracts with individual landowners whose lands
are served under private ditches, shall be determined by multiplying the
total acreage, under each contract entitled to Willow Creek storage
rights, either directly or by substitution, by the per acre annual rate.
Against the amounts due annually by the individual landowners whose
lands are served by private ditches, under this notice there shall be
allowed any credits due under section 6 of the act of June 28, 1946.
Credits due on behalf of any land shall be reflected in any statement
submitted to the landowners.
25 CFR 135.21 Time of payment.
The amount of each annual installment, payable under the private
landowner contracts, determined as provided in this part shall be paid
by the landowners to the United States, on or before November 15 of each
year commencing with the calendar year 1951.
25 CFR 135.22 Penalty.
To all assessments not paid on the due date there shall be added a
penalty of one-half of one percent per month or fraction thereof, from
the due date so long as the delinquency continues.
25 CFR 135.23 Refusal of water delivery.
The right is reserved to refuse the delivery of water to any
landowner in the event of default in the payment of assessments,
including penalties on account of delinquencies.
25 CFR 135.23 PART 136 -- FORT HALL INDIAN IRRIGATION PROJECT, IDAHO
Sec.
136.1 Repayment contracts.
136.2 Construction costs.
136.3 Repayment of construction costs.
Authority: Sec. 9, 46 Stat. 1063.
Source: 22 FR 10645, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 136.1 Repayment contracts.
A rehabilitation program was established on the Fort Hall Unit of the
Fort Hall Project in 1936. Based upon the estimated construction costs,
contracts were signed by all non-Indian landowners within the project,
including such landowners within the Little Indian Unit, now a part of
the Fort Hall Unit. Under the terms of their contracts, the landowners
agreed to repay to the Government their pro rata share, on an acreage
basis, of all expenditures for construction and other necessary
improvements for carrying out the approved program, payments not to
exceed $7.50 per acre, based upon an estimated expenditure of
$450,000.00 for a project then considered as covering approximately
60,000 acres.
25 CFR 136.2 Construction costs.
The program of rehabilitation has now been completed at a cost of
$419,186.52. This amount, chargeable on an equal per acre basis against
60,000 acres, amounts to a rate of $6.986 per acre, which rate is hereby
determined to be the per acre cost to be repaid to the United States
under the 1936 contracts.
25 CFR 136.3 Repayment of construction costs.
Under the terms of the contracts, the landowners agreed to repay the
construction cost in forty (40) equal annual installments. Therefore,
the annual per acre installment is hereby fixed at seventeen and
one-half cents (17 1/2 cents) per acre, due and payable on December 1st
of each year, the first payment being due on December 1, 1955. Under
section 4 of the repayment contracts of the landowners and the act of
March 10, 1928 (45 Stat. 210), the charges remain a lien against the
lands until paid.
25 CFR 136.3 PART 137 -- REIMBURSEMENT OF CONSTRUCTION COSTS, SAN
CARLOS INDIAN IRRIGATION PROJECT, ARIZONA
Sec.
137.1 Water supply.
137.2 Availability of water.
137.3 Construction charges.
137.4 Future charges.
137.5 Construction costs limited.
137.6 Power development.
137.7 Private ownership defined.
137.8 Indian lands excluded.
Authority: Sec. 5, 43 Stat. 476.
Source: 22 FR 10645, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 137.1 Water supply.
The engineering report dealt with in section 1 of the act of June 7,
1924 (43 Stat. 475) and other available records show that the storage
capacity of the San Carlos reservoir created by the Coolidge Dam and the
water supply therefor over a period of years will provide for the
irrigation of only 80,000 acres of lands in Indian and public or private
ownership within the San Carlos irrigation project, the balance of the
water supply needed for the additional 20,000 acres of the project to be
provided for by recaptured and return flow water and by means of pumping
the underground supply. The cost of providing the proposed supply and
of operating the works for this latter acreage to be equally distributed
over the entire 100,000 acres of the project regardless of where the
works are placed and operated.
25 CFR 137.2 Availability of water.
Pursuant to section 3 of the act of June 7, 1924 (43 Stat. 475),
requiring the Secretary of the Interior by public notice to announce
when water is actually available for lands in private ownership under
the project and the amount of the construction charges per irrigable
acre against the same which charges shall be payable in annual
installments as provided for therein, this public notice, of which
137.1 is made a part hereof, is hereby given:
The date when a reasonable water supply is actually available for
lands in private ownership under the San Carlos irrigation project is
hereby declared to be the 1st day of December 1932.
25 CFR 137.3 Construction charges.
Each acre of land in private ownership of said project is hereby
charged with $95.25 of construction cost assessable thereto at the date
hereof (Dec. 1, 1932), which sum is based upon 50,000 acres of such
privately owned lands, making a total charge or assessment due from the
owners thereof of $4,762,250 on this date (Dec. 1, 1932), excluding the
cost of operation and maintenance for the calendar year of 1933 which
may be carried into construction cost as provided for by section 3 of
the act of June 7, 1924 (43 Stat. 476), and also excluding interest at
the rate of 4 percent which is charged against such lands by said act.
Of the 50,000 acres constituting the lands in private ownership within
the said project only 46,107.49 acres have at this date (Dec. 1, 1932)
actually been designated as coming within the project. Should this
present designated area be not increased within a reasonable time
herefrom and prior to the due date of the first installment of the
charge fixed in this section, namely, on December 1, 1935, so as to
bring the total designated area up to the 50,000 acres, the per acre
charge fixed in this section shall be proportionately increased against
the then designated area so as to assure reimbursement of the total
indebtedness due the Government by the owners of the lands in private
ownership from the lesser designated acreage.
25 CFR 137.4 Future charges.
The payment of said construction cost and costs of future operation
and maintenance of said project as provided for in said section 3 of the
act of June 7, 1924 (43 Stat. 476), as supplemented or amended and such
contingent project liabilities which may be incurred in accordance with
the provisions of said repayment contract shall be made in accordance
with the provisions of said act of June 7, 1924, as supplemented or
amended and the repayment contract by and between the San Carlos
irrigation and drainage district and the Secretary of the Interior
bearing date of June 8, 1931; the said construction cost incurred
subsequent to this public notice assessable against the lands in private
ownership and costs of operation and maintenance assessed against such
privately owned lands within the project for the first year after this
public notice to be included in the construction cost and such
contingent project liabilities which may be incurred in accordance with
provisions of the repayment contract shall also be repaid to the
Government pursuant to the terms of said act of June 7, 1924, as
supplemented or amended, and the repayment contract and this public
notice.
25 CFR 137.5 Construction costs limited.
The repayment contract /1/ with the San Carlos irrigation and
drainage district, page 13 thereof, contains the following:
In accordance with the foregoing the costs of the San Carlos project
as fixed by the public notice to be issued as aforesaid, unless further
sums shall be agreed to by the Secretary of the Interior and the
district after the execution of this instrument, may amount to but shall
not exceed the sum of $9,556,313.77, except that said total may be
exceeded by the inclusion of any sums expended to safeguard the project
as hereinabove provided for, and any sums expended on account of
contingent liabilities as in the next paragraph hereof provided.
The foregoing and subsequent statements of project costs, the
district's shares of which are to be repaid hereunder, unless otherwise
provided by Congress more favorably to the lands of the project, may be
increased by the addition of sums not now fixed as project charges but
which possibly constitute contingent project liabilities incurred after
the date of the San Carlos Act of June 7, 1924 (43 Stat. 476), or
incurred on account of the Florence-casa Grande project, and so may
become project charges by the judgment of courts of competent
jurisdiction or of other proper authority.
The limitations therein fixed has approximately been reached, there
remaining but $32,815.02 yet to be expended on project works before
reaching that limitation. Upon the expenditure of this additional sum
there shall be no further expenditures of funds for construction,
operation and maintenance of the San Carlos project so far as the
private lands are concerned until the San Carlos irrigation and drainage
district shall, through appropriate action, authorize pursuant to the
terms of the said repayment contract such additional expenditures. This
limitation does not apply to project expenditures for the extension of
the distributing and pumping system regardless of where they may arise.
This class of expenditures being excepted from the limitation on
expenditures contained in the said repayment contract by section 14,
page 10, thereof, which section is known as the ''Equalization of
Expenditures.''
/1/ Contract available at the Bureau of Indian Affairs, Washington,
D.C.
25 CFR 137.6 Power development.
The cost of the power development at the Coolidge Dam is hereby fixed
at $735,000. The net revenues derived from the operation of this power
development shall be disposed of as required by the terms and conditions
of the act of March 7, 1928 (45 Stat. 210) as supplemented or amended.
25 CFR 137.7 Private ownership defined.
The term ''private ownership'' used in this public notice includes
all lands of the San Carlos irrigation project that have or may be
designated by the Secretary of the Interior that are situated outside of
the boundaries of the Gila River Indian Reservation.
25 CFR 137.8 Indian lands excluded.
This public notice, with the exception of that part dealing with
payment in advance each year of operation and maintenance charges
against lands in Indian ownership operated under lease, does not apply
in so far as payments are concerned to Indian lands within the project.
The act of July 1, 1932 (47 Stat. 564; 25 U.S.C. 386a) defers the
collection of construction costs from Indian owned lands so long as the
title to such lands remains in the Indian ownership.
25 CFR 137.8 PART 138 -- REIMBURSEMENT OF CONSTRUCTION COSTS, AHTANUM
UNIT, WAPATO INDIAN IRRIGATION PROJECT, WASHINGTON
Sec.
138.1 Construction costs and assessable acreage.
138.2 Repayment of construction costs.
138.3 Payments.
138.4 Deferment of assessments on lands remaining in Indian
ownership.
138.5 Assessments after the Indian title has been extinguished.
Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C.
385.
Source: 22 FR 10646, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 138.1 Construction costs and assessable acreage.
The construction program has been completed on the Ahtanum Unit of
the Wapato Indian Irrigation Project and the construction costs have
been established as $79,833.64. The area benefited by this development
has been established at 4,765.2 acres. Under the requirements of the
acts of February 14, 1920 (41 Stat. 409) and March 7, 1928 (45 Stat.
210), these costs are to be repaid to the United States Treasury by the
owners of the lands benefited.
25 CFR 138.2 Repayment of construction costs.
The cost per acre under 138.1 is, therefore, established at
$16.7535. Under the provisions of the acts of February 14, 1920 (41
Stat. 409) and March 7, 1928 (45 Stat. 210) is based on forty equal
annual payments, the annual per acre assessment is hereby fixed at $0.42
per acre for the year 1957 and each succeeding year until the entire
cost for each tract shall have been repaid to the United States
Treasury. On those tracts where payments have been made pursuant to
part 134 of this chapter, annual assessments beginning with the year
1957 at the rate of $0.42 per acre will be made until the entire cost of
$16.7535 per acre shall have been repaid to the United States Treasury.
Landowners may pay at any time the total of the then remaining
indebtedness. Under the act of March 10, 1928 (45 Stat. 210) the
unpaid charges stand as a lien against the lands until paid.
(22 FR 10646, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982; 48 FR 13414, Mar. 31, 1983)
25 CFR 138.3 Payments.
Payments are due on December 31 of each year and shall be made to the
official in charge of collections for the project.
25 CFR 138.4 Deferment of assessments on lands remaining in Indian
ownership.
In conformity with the act of July 1, 1932 (47 Stat. 564); 25 U.S.C.
386(a) no assessment shall be made on behalf of construction costs
against Indian-owned land within the project until the Indian title
thereto has been extinguished.
25 CFR 138.5 Assessments after the Indian title has been extinguished.
Indian-owned lands passing to non-Indian ownership shall be assessed
for construction costs and the first assessment shall be due on December
31 of the year that Indian title is extinguished. Assessments against
this land will be at the annual rate of $0.42 per acre and shall be due
as provided in 138.3, and payable promptly thereafter until the total
construction cost of $16.7535 per acre chargeable against the land has
been paid in full.
25 CFR 138.5 PART 139 -- REIMBURSEMENT OF CONSTRUCTION COSTS
WAPATO-SATUS UNIT, WAPATO INDIAN IRRIGATION PROJECT, WASHINGTON
Sec.
139.1 Construction costs and assessable acreage.
139.2 Repayment of construction costs.
139.3 Payments.
139.4 Deferment of assessments on lands remaining in Indian
ownership.
139.5 Assessments after the Indian title has been extinguished.
Authority: Sec. 1, 41 Stat. 409, 45 Stat. 210; 25 U.S.C. 386,
387.
Source: 28 FR 6536, June 26, 1963, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 139.1 Construction costs and assessable acreage.
The construction program has been completed on the Wapato-Satus Unit
of the Wapato Indian Irrigation Project, and the construction costs have
been established by Designation Report dated August 1962 as
$7,903,823.12 for the project and $1,499,073.62 for the ''B'' lands
share of the construction costs in the Bureau of Reclamation reservoirs
on the Yakima River. The area benefited by this development has been
established at 136,559.59 acres divided into 79,025.68 acres of ''A''
land and 57,533.91 acres of ''B'' land. Under the requirements of the
acts of February 14, 1920 (41 Stat. 409), and March 7, 1928 (45 Stat.
210), these costs are to be repaid to the U.S. Treasury by the owners of
the lands benefited.
25 CFR 139.2 Repayment of construction costs.
The cost per acre of the construction under 139.1 is, therefore,
calculated at $57.8782 for ''A'' lands and $83.9337 for ''B'' lands in
non-Indian ownership as established by Designation Report dated August
1962. Under the provisions of the acts cited in 139.1 the annual per
acre assessment for forty equal annual payments, is hereby fixed at
$1.45 per acre for ''A'' lands and $2.10 per acre for ''B'' lands for
the year 1962 and each succeeding year, until the entire cost for each
tract shall have been repaid to the U.S. Treasury. On those tracts where
payments have been made pursuant to uncodified special regulations,
annual assessments beginning with the year 1962 at the rate of $1.45 per
acre for ''A'' lands and $2.10 per acre for ''B'' lands will be made
until the entire cost of $57.8782 per acre for ''A'' lands and $83.9337
per acre for ''B'' lands shall have been repaid to the U.S. Treasury.
Landowners may pay at any time the total of the then remaining
indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the
unpaid charges stand as a lien against the lands until paid.
25 CFR 139.3 Payments.
Payments are due on December 31 of each year and shall be made to the
official in charge of collections for the project.
25 CFR 139.4 Deferment of assessments on lands remaining in Indian
ownership.
In conformity with the act of July 1, 1932 (47 Stat. 564; U.S.C.
386(a)), no assessment shall be made on behalf of construction costs
against Indian-owned land within the project until the Indian title
thereto has been extinguished.
25 CFR 139.5 Assessments after the Indian title has been extinguished.
Indian-owned lands passing to non-Indian ownership shall be assessed
for construction costs and the first assessment shall be due on December
31 of the year that the Indian title is extinguished. The construction
costs against this land will be established as provided by section 5 of
the act of September 26, 1961 (75 Stat. 680). The annual per acre
assessment rate will be determined by dividing the established
construction cost per acre into forty equal payments. ''B'' lands will
also be assessed for reservoir construction costs in the annual per-acre
rate as established in the Designation Report dated August 1962.
Assessments against this land will continue until the entire established
construction costs shall have been repaid to the U.S. Treasury.
Landowners may pay at any time the total of the then remaining
indebtedness. Under the act of March 10, 1928 (45 Stat. 210), the
unpaid charges stand as a lien against the lands until paid.
25 CFR 139.5 PART 140 -- LICENSED INDIAN TRADERS
Sec.
140.1 Sole power to appoint.
140.2 Presidential prohibition.
140.3 Forfeiture of goods.
140.5 Bureau of Indian Affairs employees not to contract or trade
with Indians except in certain cases.
140.9 Application for license.
140.11 License period.
140.12 License renewal.
140.13 Power to close unlicensed stores.
140.14 Trade limited to specified premises.
140.15 License applicable for trading only by original licensee.
140.16 Trade in annuities or gratuities prohibited.
140.17 Tobacco sales to minors.
140.18 Intoxicating liquors.
140.19 Drugs.
140.21 Gambling.
140.22 Inspection of traders' prices.
140.23 Credit at trader's risk.
140.24 Cash payments only to Indians.
140.25 Trade in antiquities prohibited.
140.26 Infectious plants.
Authority: Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as
amended; 25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C.
2 and 9, and 5 U.S.C. 301, unless otherwise noted.
Source: 22 FR 10670, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross References: For law and order regulations on Indian
Reservations, see part 11 of this chapter. For regulations pertaining
to business practices on Navajo, Hopi and Zuni reservations, see part
141 of this chapter. For additional regulation of certain employees
trading with Indians, see 43 CFR part 20.735-28 and 29.
25 CFR 140.1 Sole power to appoint.
The Commissioner of Indian Affairs shall have the sole power and
authority to appoint traders to the Indian tribes. Any person desiring
to trade with the Indians on any reservation may, upon establishing the
fact, to the satisfaction of the Commissioner of Indian Affairs, that he
is a proper person to engage in such trade, be permitted to do so under
such rules and regulations as the Commissioner of Indian Affairs may
prescribe.
25 CFR 140.2 Presidential prohibition.
The President is authorized, whenever in his opinion the public
interest may require, to prohibit the introduction of goods, or of any
particular articles, into the country belonging to any Indian tribe, and
to direct that all licenses to trade with such tribe be revoked, and all
applications therefor rejected. No trader shall, so long as such
prohibition exists, trade with any Indians of or for said tribe.
(R.S. 2132; 25 U.S.C. 263)
25 CFR 140.3 Forfeiture of goods.
Any person other than an Indian of the full blood who shall attempt
to reside in the Indian country, or on any Indian reservation, as a
trader, or to introduce goods, or to trade therein, without a license,
shall forfeit all merchandise offered for sale to the Indians or found
in his possession, and shall moreover be liable to a penalty of $500:
Provided, That this section shall not apply to any person residing among
or trading with the Choctaws, Cherokee, Chickasaws, Creeks, or
Seminoles, commonly called the Five Civilized Tribes: And provided
further, That no white person shall be employed as a clerk by any Indian
trader, except as such trade with said Five Civilized Tribes, unless
first authorized so to do by the Commissioner of Indian Affairs.
(R.S. 2133, as amended; 25 U.S.C. 264)
25 CFR 140.5 Bureau of Indian Affairs employees not to contract or
trade with Indians except in certain cases.
(a) Definitions of terms as used in this part:
(1) ''Indian'' means any member of an Indian tribe recognized as
eligible for the services provided by the Bureau of Indian Affairs who
is residing on a Federal Indian Reservation, on land held in trust by
the United States for Indians, or on land subject to a restriction
against alienation imposed by the United States. The term shall also
include any such tribe and any Indian owned or controlled organization
located on such a reservation or land.
(2) ''Bureau'' or the ''Bureau of Indian Affairs'' means the Bureau
of Indian Affairs and the Office of the Assistant Secretary for Indian
Affairs, both in the Department of the Interior.
(3) ''Employee'' means an officer, employee, or agent of the Bureau
of Indian Affairs.
(4) ''Secretary'' means the Secretary of the Interior.
(5) ''Contract'' means any agreement made or under negotiation with
any Indian for the purchase, transportation or delivery of goods or
supplies.
(6) ''Trading'' means buying, selling, bartering, renting, leasing,
permitting and any other transaction involving the acquisition of
property or services.
(7) ''Commercial trading'' means any trading transaction where an
employee engages in the business of buying or selling services or items
which he/she is trading.
(b) With the exceptions provided in subsection (b) of section 437 of
title 18 U.S. Code, section 437 provides that whoever, being an officer,
employee, or agent of the Bureau of Indian Affairs, has (other than as a
lawful respresentative of the United States) any interest, in such
officer, employee, or agent's name, or in the name of another person
where such officer, employee, or agent benefits or appears to benefit
from such interest:
(1) In any contract made or under negotiation with any Indian, for
the purchase, transportation or delivery of goods or supplies for any
Indian, or
(2) In any purchase or sale of any service or real or personal
property (or any interest therein) from or to any Indian, or colludes
with any person attempting to obtain any such contract, purchase, or
sale, shall be fined not more than $5,000 or imprisoned not more than
six months or both, and shall be removed from office, notwithstanding
any other provision of law concerning termination from Federal
employment.
(c) The further subsections of this section authorize certain
employees contracting and trading with Indians as authorized by the
exceptions in section 437 of title 18 U.S. Code. All such contracting
and trading is subject to the express provision of section 437 that none
of the sales or purchases so authorized may be made if the purpose of
any such sale, trade, or purchase is that of commercially selling,
reselling, trading, or bartering such property.
(d)(1) Under authority granted by section 437(b)(1) of title 18 U.S.
Code, employees of the Bureau of Indian Affairs may with the approval of
an authorized officer of the Bureau, as designated in paragraph (d)(2)
of this section, purchase from or sell to an Indian any service or any
real or personal property, not held in trust by the United States or
subject to a restriction against alienation imposed by the United
States, or any interest in such property. In addition, employees may
purchase from Indians without approval from an authorized officer of the
Bureau any non-trust or unrestricted personal property for home use or
consumption the value of which property does not exceed $1000. Where
the purchase or sale price is less than $1,000, employees may also
purchase motor vehicles for their personal use from Indians or sell
their personal motor vehicles to Indians without obtaining approval of
such purchases or sales from an authorized officer of the Bureau.
Approval must be obtained if the purchase or sale price is $1,000 or
more.
(2) As used in paragraph (d)(1) of this section an authorized officer
of the Bureau of Indian Affairs for employees on reservations and in
agencies or in field service units shall be the superintendent or other
officer in charge of the unit in which the employee is employed. The
authorized officer for the superintendent or officer in charge is his or
her immediate supervisor. The authorized officer for employees in area
offices is the Area Director, and the authorized officer for an Area
Director is his or her immediate supervisor. The authorized officer for
employees in the Central Office is the Deputy Assistant Secretary --
Indian Affairs (Operations).
(e) No employee of the Bureau of Indian Affairs may have any interest
in any purchase or sale involving property or funds which are either
held in trust by the United States for Indians or which are purchased,
sold, utilized, or received in connection with a contract or grant to an
Indian from the Bureau if such employee is employed in the office or
installation of the Bureau which recommends, approves, executes, or
administers such transaction, grant, or contract on behalf of the United
States, except that, as authorized by section 437(b)(1) of title 18 U.S.
Code an employee of the Bureau may have such an interest if such
purchase or sale is approved by an authorized officer of the Bureau, as
designated in paragraphs (e) (3) to (5) of this section, and the
conditions in (e) (1) and (2) of this section are satisfied to the
extent to which they are applicable to the transaction concerned:
(1) The coveyance or granting of any interest in property held in
trust or subject to restriction against alienation imposed by the United
States is otherwise authorized by law.
(2) Trading by employees with Indians which involves property or
funds which are either held in trust by the United States or are subject
to restrictions against alienation imposed by the United States must be
conducted on the basis of sealed bid or public auction. If the trading
involves leases or sales of trust or restricted Indian land it must be
conducted on the basis of sealed bids. Such requirements for sealed bid
or public auction may only be waived by the Assistant Secretary for
Indian Affairs on the basis of a full report showing:
(i) The need for the transaction,
(ii) The benefits accruing to both parties,
(iii) That the consideration for the proposed transaction shall be
not less than the fair market value of the trust or restricted property
or interest therein, unless the employee is involved in a transaction in
accordance with 152.25 (c) or (d) or 162.5(b) (1), (2), or (3) of this
title or the employee is the recipient of a benefit for tribal members
for which a uniform charge to all members is made, and
(iv) An affidavit as follows shall accompany each proposed
transaction: ''I (name) (title), swear (or affirm) that I have not
exercised any undue influence nor used any special knowledge received by
reason of my employment in the Bureau in obtaining the (grantor's,
purchaser's, vendor's) consent to the instant transaction.''
(3) The authorized officer of the Bureau for employees employed on
reservations, in agencies or service units is one who is not a relative
by blood or marriage of the employee, and is not employed at the
employee's reservation, agency or service unit. That officer must also
be employed at not less than one grade level higher than such employee
at the Wahington, District of Columbia, Central Office or at an Area
Office other than that with authority over the employee's reservation,
agency, or service unit.
(4) The authorized officer of the Bureau for employees employed in
Area offices is one who is not a relative by blood or marriage of the
employee, is not employed at the employee's area office, and must be
employed at not less than one grade level higher than the employee at
the Washington, District of Columbia, Central Office.
(5) The authorized officer of the Bureau for employees employed at
the Washington, District of Columbia, Central Office is the Secretary.
(f) Except as provided in subsection (b)(2) of section 437 of title
18 U.S. Code as implemented by this section, nothing in the cited law
shall be construed as preventing any employee of the Bureau who is an
Indian, of whatever degree of Indian blood, from obtaining or receiving
any benefit or benefits made available to Indians generally or to any
member of his or her particular tribe, under any Act of Congress, nor to
prevent any such employee who is an Indian from being a member of or
receiving benefits by reason of his or her membership in any Indian
tribe, corporation, or cooperative association organized by Indians,
when authorized under such rules and regulations as the Secretary or
his/her designee has prescribed or shall prescribe.
(49 FR 25434, June 21, 1984)
25 CFR 140.9 Application for license.
(a) Application for license must be made in writing on Form 5-052,
setting forth the full name and residence of the applicant; if a firm,
the firm name and the name of each member thereof; the place where it
is proposed to carry on the trade; the capital to be invested; the
names of the clerks to be employed; and the business experience of the
applicant. The application must be forwarded through the Superintendent
to the Commissioner of Indian Affairs, accompanied by two satisfactory
testimonials on Form 2-077 as to the character of the applicant and his
employees and their fitness to be in the Indian country, and by an
affidavit of the Superintendent on Form 5-053 that neither he nor any
person for him has any interest, direct or indirect, present or
prospective, in the proposed business or the profits arising therefrom,
and that no arrangement for any benefit to himself or to any other
person on his behalf is contemplated in case the license is granted.
Licensed traders will be held responsible for the conduct of their
employees.
(b) Itinerant peddlers or purveyors of foodstuffs and other
merchandise shall be considered as traders and shall obtain a license or
permit from the Superintendent setting forth the class of trade or
peddling to be carried on, furnishing such character or credit
references, or both, as may be required by the Superintendent. The
period of the license for such itinerant peddlers shall be determined by
the Superintendent.
(c) When a license or permit to trade is issued under the regulations
in this part 140, a fee of $5, payable when the license is issued, shall
be levied against the licensee.
(30 FR 8267, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 140.11 License period.
Licenses to trade shall not be issued unless the proposed licensee
has a right to the use of the land on which the business is to be
conducted. The license period shall correspond to the period of the
lease or permit held by the licensee on restricted Indian land, except
that where the proposed licensee is the owner or beneficial owner or
holds a use right to the land on which the business is to be conducted,
the license period shall be fixed by the Commissioner of Indian Affairs
or his authorized representative, but in no case shall the license
period exceed 25 years.
(30 FR 8268, June 29, 1965. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 140.12 License renewal.
Application for renewal of license must be made to the Commissioner
of Indian Affairs on Form 5-054, through the superintendent, at least 30
days prior to the expiration of the existing license, and the
superintendent must report as to the record the applicant has made as a
trader and his fitness to continue as such under a new license.
25 CFR 140.13 Power to close unlicensed stores.
If persons carry on trade within a reservation with the Indians
without a license, or continue to trade after expiration of the license
without applying for renewal, the superintendent will immediately report
the facts in the case to the Commissioner of Indian Affairs, who may, if
necessary, direct the superintendent to close the stores of such
traders.
25 CFR 140.14 Trade limited to specified premises.
No trade with Indians is permitted at any other place than that
specified in the license. Licenses to not cover branch stores. A
separate license and bond must be furnished for each such store. The
business of a licensed trader must be managed by the bonded principal,
who must habitually reside upon the reservation, and not by an unbonded
subordinate.
25 CFR 140.15 License applicable for trading only by original licensee.
No trader will be allowed to lease, sublet, rent, or sell any of the
buildings which he occupies, for any purpose to any other person or
concern, without the approval of the Commissioner of Indian Affairs. A
license to trade with Indians does not confer upon the trader any right
or privileges in respect to the herding or raising of livestock upon the
reservation. The use of reservation lands, whether tribal or allotted,
for such purposes can be obtained by a trader only upon the terms and
under the restrictions which apply to other persons. His license gives
him no advantage over others in this respect.
25 CFR 140.16 Trade in annuities or gratuities prohibited.
Traders are forbidden to buy, trade for, or have in their possession
any annuity or other goods of any description which have been purchased
or furnished by the Government for the use or welfare of the Indians.
Livestock or their increase purchased by the Government and in
possession or control of the Indians may not be purchased by any trader,
not a member of the tribe to which the owners or possessors of the
cattle belong, except with the written consent of the agent of said
tribe.
25 CFR 140.17 Tobacco sales to minors.
No trader shall sell tobacco, cigars, or cigarettes to any Indian
under 18 years of age.
25 CFR 140.18 Intoxicating liquors.
No trader shall use or permit to be used his premises for any
unlawful conduct or purpose whatsoever. No trader shall use of permit
to be used any part of his premises for the manufacture, sale, gift,
transportation, drinking or storage of intoxicating liquors or beverages
in violation of existing laws relating thereto. Violation of this
section will subject the trader to criminal prosecution, revocation of
license and such other action as may be necessary.
25 CFR 140.19 Drugs.
Traders shall not keep for sale, or sell, give away, or use any
opium, chloral, cocaine, peyote or mescal bean, hashish or Indian hemp
or marihuana, or any compound containing either ingredient, and for
violation hereof the trader's license shall be revoked.
25 CFR 140.21 Gambling.
Gambling, by dice, cards, or in any way whatever, is strictly
prohibited in any licensed trader's store or on the premises.
25 CFR 140.22 Inspection of traders' prices.
It is the duty of the superintendent to see that the prices charged
by licensed traders are fair and reasonable. To this end the traders
shall on request submit to the superintendent or inspecting officials
the original invoice, showing cost, together with a statement of
transportation charges, retail price of articles sold by them, the
amount of Indian accounts carried on their books, the total annual
sales, the value of buildings, livestock owned on reservation, the
number of employees, and any other business information such officials
may desire. The quality of all articles kept on sale must be good and
merchantable.
25 CFR 140.23 Credit at trader's risk.
Credit given Indians will be at the trader's own risk, as no
assistance will be given by Government officials in the collection of
debts against Indians. Traders shall not accept pawns or pledges of
personal property by Indians to obtain credit or loans.
25 CFR 140.24 Cash payments only to Indians.
Traders must not pay Indians in tokens, tickets, store orders, or
anything else of that character. Payment must be made in money, or in
credit if the Indian is indebted to the trader.
25 CFR 140.25 Trade in antiquities prohibited.
Traders shall not deal in objects of antiquity removed from any
historic or prehistoric ruin or monument on land owned or controlled by
the United States.
Cross Reference: For additional regulations pertaining to
preservation of antiquities, see part 261 of this chapter. For
regulations of the Bureau of Land Management regarding antiquities, see
43 CFR part 3.
25 CFR 140.26 Infectious plants.
Traders shall not introduce into, sell, or spread within Indian
reservations any plant, plant product, seed, or any type of vegetation,
which is infested, or infected or which might act as a carrier of any
pests of infectious, transmissible, or contagious diseases, as
determined by the laws and regulations of the State for plant quarantine
and pest control. For the purpose of enforcement of this provision
State officers may enter Indian reservations, with the consent of the
superintendent, to inspect the premises of such traders and otherwise to
execute such State laws and regulations.
25 CFR 140.26 PART 141 -- BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI RESERVATIONS
25 CFR 140.26 Subpart A -- Interpretation and Construction Guides
Sec.
141.1 Purpose.
141.2 Scope.
141.3 Definitions.
141.4 Interpretation and construction.
25 CFR 140.26 Subpart B -- Licensing Requirements and Procedures
141.5 Reservation business license required.
141.6 Approval or denial of license application.
141.7 Bond requirement for a reservation business.
141.8 License period for reservation businesses.
141.9 Application for license renewal.
141.10 License fees for reservation businesses.
141.11 Tribal fees, taxes, and enforcement.
141.12 Peddler's permits.
141.13 Amusement company licenses.
141.14 Trade in livestock restricted.
141.15 Consent to jurisdiction of Hopi and Zuni tribal courts.
25 CFR 140.26 Subpart C -- General Business Practices
141.16 Price marking.
141.17 Health and sanitation requirements.
141.18 Availability of employee authorized to transact business.
141.19 Check cashing.
141.20 Payment for purchase of Indian goods or services.
141.21 Trade confined to premises.
141.22 Subleasing prohibited.
141.23 Posted statement of ownership.
141.24 Attendance at semi-annual meetings.
141.25 Withholding of mail prohibited.
141.26 Trade in antiquities prohibited.
141.27 Trade in imitation Indian crafts prohibited.
141.28 Gambling prohibited.
141.29 Political contributions restricted.
141.30 Retaliation prohibited.
141.31 Trade by Indian Affairs employees restricted.
25 CFR 140.26 Subpart D -- Pawnbroker Practices
141.32 Reservation pawnbroker license required.
141.33 Fees for pawnbroker license.
141.34 Pawnbroker records.
141.35 Pawnbroker disclosure requirements.
141.36 Maximum finance charges on pawn transactions.
141.37 Prepayment.
141.38 Pawn loans; period, notice and sale.
141.39 Sale and redemption of pawn.
141.40 Proceeds of sale.
141.41 Refinancing transaction.
141.42 Lost pawn receipts or tickets.
141.43 Outstanding obligations owed to pledgee.
141.44 Insurance on pawn.
25 CFR 140.26 Subpart E -- Consumer Credit Transactions Other Than Pawn
141.45 Consumer credit applications.
141.46 Credit disclosure statements.
141.47 Monthly billing statement.
141.48 Translation of disclosure statements.
141.49 Usury prohibited.
25 CFR 140.26 Subpart F -- Enforcement Powers, Procedures and Remedies
141.50 Penalty and forfeiture of merchandise.
141.51 Authority to close unlicensed reservation businesses.
141.52 Revocation of license and lease and recovery on bond.
141.53 Cease and desist orders.
141.54 Periodic review of performance.
141.55 Price monitoring and control.
141.56 Show cause procedures.
141.57 Procedures to cancel liability on bond.
141.58 Records, reports and obligations of reservation business
owners.
141.59 Customer complaint procedures.
Authority: 5 U.S.C. 301; secs. 463, 465, Revised Statutes (25
U.S.C. 2 and 9) 230 DM 2.
Source: 40 FR 39835, Aug. 29, 1975, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 140.26 Subpart A -- Interpretation and Construction Guides
25 CFR 141.1 Purpose.
The purpose of the regulations of this part is to prescribe rules for
the regulation of reservation businesses for the protection of Indian
consumers on the Navajo, Hopi and Zuni Reservations as required by 25
U.S.C. 261, 262, 263, and 264.
25 CFR 141.2 Scope.
The regulations of this part apply to all non-members of the Navajo,
Hopi and Zuni Tribes, who engage in retail businesses on the above
respective reservations. These regulations do not apply to businesses
that are wholly owned and operated by either the Navajo, Hopi or Zuni
Tribes, or by individual tribal members within their respective
reservations.
(45 FR 64906, Oct. 1, 1980. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 141.3 Definitions.
For the purposes of this part --
(a) ''Annual percentage rate'' means the annual percentage rate of
finance charge determined in accordance with 12 CFR 226.5, which defines
annual percentage rates.
(b) ''Consumer credit transaction'' means a grant of credit or a loan
that is made by a person regularly engaged in the business of making
loans or granting credit primarily for a personal, family, household, or
agricultural purpose.
(c) ''Draft'' means a writing that is a direction to pay that:
(1) Identifies the person to pay with reasonable certainty;
(2) Is signed by the drawer;
(3) Contains an unconditional order to pay a sum certain in money and
no other promise, order, obligation or power given by the drawer;
(4) Is payable on demand or at a definite time; and
(5) Is payable to order.
(d) ''Finance charge'' means the cost of credit determined in
accordance with 12 CFR 226.4, which defines ''finance charge''.
(e) ''Firm'' means a corporation or a partnership.
(f) ''Gross receipts'' include the following:
(1) All cash received from the conduct and operation of the
licensee's business at the premises described in the application for
license.
(2) Receipts from both wholesale and retail transactions.
(3) Receipts resulting from transactions concluded off the
reservation that originate from the conduct and operation of the
licensee's business on the reservation.
(4) The market value of all property taken in trade on the date when
received and either held by the licensee for purposes other than resale
or credited on any account in payment for merchandise.
(5) Proceeds from the sale of any goods bought from Indians
regardless of where the sale takes place.
(6) Finance charge received on loans, but not the return of
principal.
(g) ''Open end credit'' means consumer credit transactions made on an
account by a plan under which:
(1) The creditor may permit the customer to make purchases or obtain
loans, from time to time, directly from the creditor or indirectly by
use of a credit card, check, or other device, as the plan may provide;
(2) The customer has the privilege of paying the balance in full or
in installments; and
(3) A finance charge may be computed by the creditor from time to
time on an outstanding unpaid balance.
(h) ''Pawnbroker'' means a person whose business includes lending
money secured by personal property deposited with the lender.
(i) ''Peddler'' means a person who offers goods for sale within the
exterior boundaries of the Hopi, Navajo or Zuni Reservations, but does
not do business from a fixed location or site on any of those
reservations.
(j) ''Person'' includes a natural person, a corporation, trust,
estate, partnership, cooperative or association.
(k) ''Replacement value'' means the present cost to the owner of
replacing an item with one having the same quality and usefulness.
(l) ''Reservation business'' means a person that engages at a fixed
location or site within the exterior boundaries of the Navajo, Hopi or
Zuni Reservations in the sale or purchase of goods or services or in
consumer credit transactions with Indians and is not a bank, saving
bank, trust company, savings or building and loan association or credit
union operating under the laws of the United States or the laws of New
Mexico, Arizona or Utah, a business on the Hopi Reservation that is
wholly owned and operated by members of the Hopi Tribe, or a business on
the Zuni Reservation that is wholly owned and operated by members of the
Zuni Tribe.
25 CFR 141.4 Interpretation and construction.
(a) ''Area Director'' refers to the Area Director of the Bureau of
Indian Affairs or the Administrator of the Joint Use Area of the Bureau
of Indian Affairs who has jurisdiction over the land on which a person
does business or intends to do business with Indians.
(b) ''Commissioner'' refers to the Commissioner of Indian Affairs or
a person to whom the Commissioner of Indian Affairs has delegated
authority under this part or under 25 U.S.C. 261, 262, 263, or 264.
(c) ''Superintendent'' refers to the Superintendent of the Bureau of
Indian Affairs who has jurisdiction over the land on which a person does
business or intends to do business with Indians.
(d) ''Tribe'' refers to the tribe that has jurisdiction over the land
on which a person does business or intends to do business with Indians.
25 CFR 141.4 Subpart B -- Licensing Requirements and Procedures
25 CFR 141.5 Reservation business license required.
(a) No person may own or lease a reservation business without a
license issued under the provisions of this subpart.
(b) The applicant shall apply in writing on a form provided by the
Commissioner setting forth the following:
(1) The full name and residence of the applicant.
(2) Three (3) responsible references.
(3) The firm name and the name of each member of the board of
directors if the applicant is a firm.
(4) Satisfactory evidence as to the character, experience and
business ability of the applicant and the employees of the applicant.
(5) Satisfactory evidence of the general fitness of the applicant and
employees of the applicant to reside on the Indian reservation.
(c) Upon the request of the Commissioner, the applicant shall furnish
the following:
(1) The capital invested or to be invested and, of this, the amount
of capital owned and the amount borrowed or to be borrowed.
(2) The name of the lender of any borrowed capital, the date due, the
rate of interest to be paid, and the names of any endorsers and
security.
(3) A copy of any contract or trade agreement whether oral or written
with creditors or financing individuals or institutions, including any
stipulations whereby financing fees are to be paid.
(d) Information that if released might adversely affect the
competitive position of the applicant shall remain confidential.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.6 Approval or denial of license application.
(a) The Commissioner shall approve or deny each license application
and notify the applicant no later than thirty (30) days after receipt of
a completed application.
(b) No application is complete until any clearance or tribal council
approval required by tribal or Federal regulations has been obtained.
(c) The Commissioner may not deny a license to an applicant for the
purpose of limiting competition.
(d) If the application is approved the license shall be issued on a
form provided by the Commissioner.
(e) If the Commissioner denies the license application the applicant
may appeal under the provisions of part 2 of this title no later than
thirty (30) days after the date on which notice of denial of the
application was sent.
25 CFR 141.7 Bond requirement for a reservation business.
(a) An applicant for a license or renewal of a license to operate a
reservation business shall at the time the application is submitted
furnish a bond on a form provided by the Commissioner in the name of the
applicant in the amount of ten thousand dollars ($10,000) or such larger
sum as the Commissioner may designate, with two (2) on more sureties
approved by the Commissioner or with a guaranty company qualified under
the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C. 6-13). The bond
shall be for the same period covered by the license. No licensee may
trade without a bond. Except as provided in paragraph (d) of this
section, no surety may be released from liability until the license
expires.
(b) The bond shall be in favor of the United States for the benefit
of the United States and any customer of the licensee who recovers a
judgment for damages resulting from violation of any law or regulation
affecting or relating to reservation businesses. Any customer who
recovers such a judgment may bring suit on the bond in his or her own
name. The bond shall be conditioned on payment by the licensee of all
judgments for damages resulting from violations of the regulations of
this part.
(c) Any surety for a reservation business on the Hopi or Zuni
Reservation shall agree in writing to submit itself voluntarily to the
jurisdiction of the tribal court for the purpose of adjudicating any
claim arising under the bond.
(d) Any surety on the bond of a licensed reservation business may be
relieved from liabilities by complying with the provisions of 141.57 of
this title.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.8 License period for reservation businesses.
A license to operate a reservation business may not be issued unless
the applicant has a right to use the land on which the business is to be
conducted. The license period shall correspond to the period of the
lease held by the licensee. The license period in no event may exceed
twenty-five (25) years.
25 CFR 141.9 Application for license renewal.
(a) An applicant for renewal of the license to trade shall file an
application on a form provided by the Commissioner with the Area
Director not less than three (3) months prior to the expiration of the
existing license. The Area Director shall report in writing to the
Commissioner on the record the applicant has made as a reservation
business owner and the applicant's present fitness to reside on the
Indian reservation.
(b) The Commissioner may issue a temporary permit for three (3)
months pending consideration of application for license renewal.
(c) Prior to expiration of the existing license or, if issued, the
temporary permit, the Commissioner shall approve or deny the application
for license renewal and notify the applicant.
(d) No license may be renewed until any clearance or tribal council
approval required by tribal or other federal regulations has been
obtained.
(e) If the Commissioner denies the application for renewal, the
applicant may appeal under the provisions of part 2 of this title.
25 CFR 141.10 License fees for reservation businesses.
(a) Prior to the issuance of an initial license, each licensee who is
not a member of the Navajo tribe shall pay the following amount:
(1) If the license is issued before July 1, the licensee shall pay
fifty dollars ($50).
(2) If the license is issued on or after July 1, the licensee shall
pay twenty-five dollars ($25).
(b) Each licensed business owner who is not a member of the Navajo
tribe shall pay on or before January 10 of each year an annual license
fee determined as follows based on the licensee's most recent annual
report:
(1) If the licensee's gross receipts are less than one hundred
thousand dollars ($100,000) for the year or the licensee has not yet
been required to file its first annual report, the license fee is fifty
dollars ($50).
(2) If the licensee's gross receipts for the year are at least one
hundred thousand dollars ($100,000) but not more than four hundred and
ninety-nine thousand nine hundred and ninety-nine dollars ($499,999) the
fee is one hundred dollars ($100).
(3) If the licensee's gross receipts for the year are at least five
hundred thousand dollars ($500,000) but not more than seven hundred and
forty-nine thousand nine hundred and ninety-nine dollars ($749,999), the
fee is two hundred dollars ($200).
(4) If the licensee's gross receipts for the year are seven hundred
fifty thousand dollars ($750,000) or more, the fee is three hundred
dollars ($300).
(c) The Navajo Area Director shall determine the annual license fee
payable by licensees who are enrolled members of the Navajo Tribe. The
license fee for an enrolled member of the Navajo Tribe may not be less
than twenty percent (20%) nor greater than one hundred percent (100
percent) of the amount the licensee would be required to pay if the
licensee were not a tribal member.
(d) All fees are payable to the Area Director and shall be deposited
to the credit of a subaccount of the account ''Indian Monies, Proceeds
of Labor'' and shall be expended in the enforcement of the regulations
of the part.
25 CFR 141.11 Tribal fees, taxes, and enforcement.
(a) The regulations in this part do not preclude the Hopi, Navajo, or
Zuni tribal councils from assessing and collecting such fees or taxes as
they may deem appropriate from reservation businesses.
(b) Nothing in the regulations of this part may be construed to
preclude tribal enforcement of these regulations or consistent tribal
ordinances.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.12 Peddler's permits.
(a) Except as provided in paragraph (b) of this section, no peddler
may offer goods for sale within the exterior boundaries of the Hopi,
Navajo, or Zuni reservations without a peddler's permit. The permit
shall state on its face the class of goods that may be offered for sale.
No peddler may offer for sale any class of goods other than those
listed on the face of the permit.
(b) No peddler who is an enrolled member of a federally recognized
Indian tribe is required to obtain a peddler's permit for offering to
sell the following items:
(1) Coal and wood for non-commercial use,
(2) Homegrown fresh products,
(3) Meat products raised locally by the peddler, or
(4) Arts and crafts made by the peddler or the peddler's family.
(c) The applicant shall apply for a permit in writing on a form
provided by the Commissioner.
(d) Peddlers shall pay such fee and post such surety bond on a form
provided by the Commissioner as the Commissioner requires. The surety
bond required may not be less than five hundred dollars ($500) nor more
than ten thousand dollars ($10,000).
(e) Any surety on the bond of a peddler may be relieved of liability
by complying with the provisions of 141.57.
(25 U.S.C. 261 et seq.)
(43 FR 27826, June 27, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 141.13 Amusement company licenses.
(a) No person may operate a portable dance pavilion, mechanical
amusement device such as a ferris wheel or carousel, or commercial games
of skill within the exterior boundaries of the Navajo, Hopi, or Zuni
Reservations without a license from the Commissioner.
(b) The licensee shall pay such fee as the Commissioner requires.
The fee shall be not less than five dollars ($5) nor more than
twenty-five dollars ($25) per unit.
(c) The licensee shall post a surety bond on a form provided by the
Commissioner in an amount not exceeding ten thousand dollars ($10,000)
and a personal injury and property damage liability bond of not less
than five thousand dollars ($5,000) nor more than fifty thousand dollars
($50,000) as may be required by the Commissioner.
(d) The provisions of this section do not apply to amusement
companies where the contract between the tribe and the amusement company
provides for the payment of a fee to the tribe and for the protection of
the public against personal injury and property damage by bond in the
amounts specified in paragraph (c) of this section.
(e) Any surety on a bond under this section may be relieved of
liability by complying with the provisions of 141.57.
25 CFR 141.14 Trade in livestock restricted.
(a) No person other than an enrolled member of the tribe or any
association, partnership, corporation or business entity wholly owned by
enrolled members of the tribe may purchase livestock from tribal members
without a special permit issued by the Commissioner.
(b) The Commissioner shall issue a permit to each applicant who
establishes to the Commissioner's satisfaction that the applicant is a
fit person to engage in the purchase of livestock and who posts a bond
on a form provided by the Commissioner in the amount of ten thousand
dollars ($10,000). This paragraph does not require a person who has
posted a bond of ten thousand dollars ($10,000) or more under other
provisions of this part to post an additional bond to obtain a permit
under this section.
(c) Any surety on a bond under this section may be relieved of
liability by complying with the provisions of 141.57.
(d) The provisions of this section do not apply to purchases of
livestock made at an organized public auction.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 22937, June 8, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.15 Consent to jurisdiction of Hopi and Zuni tribal courts.
As a condition to doing business on the Hopi or the Zuni Reservation
each applicant for license under this part shall, in accordance with the
constitutions of those tribes, voluntarily submit the applicant and the
applicant's employees or agents to the jurisdiction of the tribal court
for the purpose of the adjudication of any dispute, claim or obligation
arising under tribal ordinance relating to commerce carried out by the
licensee.
25 CFR 141.15 Subpart C -- General Business Practices
25 CFR 141.16 Price marking.
The price of each article offered for sale shall be marked on the
article, its containers or in any other manner that is plain and visible
to the customer and that affords the customer a reasonable opportunity
to learn the price of the article prior to purchase.
25 CFR 141.17 Health and sanitation requirements.
(a) Each licensee shall keep both the premises and the place of
business in a clean and sanitary condition at all times and shall avoid
exposure of foodstuffs to contamination. No licensee may offer for sale
any goods that are banned for health or sanitation reasons from retail
sale by any Federal agency or by the tribe or, where not in conflict
with the tribal regulations, by the State or by any State agency. No
licensee may knowingly offer for sale any food that is contaminated.
(b) All weights and measure shall conform to standards set by the
National Bureau of Standards and to standards, if any, set by the tribe
and, if not in conflict with tribal regulations, to the standards set by
the State.
(c) If training in foodhandling is available from the Indian Health
Service, each person working in a reservation business shall complete
the foodhandler training offered by the Indian Health Service before
handling any food sold by a reservation business.
(d) Any person whom the Service Unit Director of the Indian Health
Service determines is infected with or is a carrier of any communicable
disease in a stage likely to be communicable to persons exposed as a
result of the infected employee's normal duties as a foodhandler may not
be employed by a reservation business.
(e) Each business shall comply with all Federal health regulations
and with all tribal health regulations that are consistent with Federal
regulations. Each business shall comply with State health regulations
that are consistent with tribal and Federal health regulations.
(f) Except as otherwise provided herein, nothing in this section may
be construed as a grant of enforcement powers to any agency of a State
or its subdivisions.
(g) It is the duty of the health officers of the Indian Health
Service to make periodic inspections, recommend improvements, and report
thereon to the Commissioner.
25 CFR 141.18 Availability of employee authorized to transact business.
Each licensee shall provide during normal business hours an employee
authorized in writing to engage in all business transactions that the
licensee normally offers to customers.
25 CFR 141.19 Check cashing.
(a) A reservation business may give a fully negotiable check in
addition to U.S. currency when cashing a draft, check or money order. A
reservation business may not give scrip, credit or other substitute for
U.S. currency when cashing a draft, check or money order.
(b) A reservation business owner or employee may advise a customer
cashing checks, money orders or drafts of the amount due on the
customer's credit accounts, pawn accounts or any other obligation the
customer owes to the business, but in no event may the owner or employee
withhold the proceeds of the check, money order or draft from the
customer on the basis of existing credit obligations.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.20 Payment for purchase of Indian goods or services.
(a) A reservation business shall pay for the purchase of Indian goods
or services with cash or a fully negotiable check. A reservation
business may not pay for Indian goods or services with trade slips or
future credit. In any transaction involving the purchase of Indian
goods on the Navajo Reservation, the reservation business shall furnish
a bill of sale indicating the name of the seller, a description of the
goods, the amount paid for the goods, the date of sale, and the
signature of both parties and shall retain a copy of the bill of sales
in its business records.
(b) A reservation business owner or employee may advise a customer
selling Indian goods or services of the amount due on the customer's
credit accounts, pawn accounts or any other obligation the customer owes
to the business, but in no event may the owner or employee withhold the
proceeds of the sale from the customer on the basis of existing credit
obligations.
25 CFR 141.21 Trade confined to premises.
The licensee shall confine all trade on the reservation to the
premises specified in the license, except, where permitted under
141.14, the buying and selling of livestock and livestock products.
25 CFR 141.22 Subleasing prohibited.
No licensee may lease, sublet, rent, or sell any building that the
licensee occupies for any purpose to any person without the approval of
the Commissioner and the consent of the tribe.
25 CFR 141.23 Posted statement of ownership.
The licensee of a reservation business shall display in a prominent
place a notice that is legible to customers stating the form of the
business entity, the names and addresses of all other reservation
businesses owned in whole or in part by the business entity, and if the
licensee is not a corporation, the names and addresses of the owner or
owners of the business. If the licensee is a corporation the notice
shall list the names and addresses of the members of the Board of
Directors.
25 CFR 141.24 Attendance at semi-annual meetings.
Upon the request of a tribal official designated by the governing
body, each licensee shall attend a semi-annual public meeting of a
tribal governing body to respond to customer inquiries.
25 CFR 141.25 Withholding of mail prohibited.
No owner or employee of a reservation business may open, withhold, or
otherwise delay the delivery of mail.
25 CFR 141.26 Trade in antiquities prohibited.
No licensee may knowingly buy, sell, rent or lease any artifact
created before 1930 that was removed from an historic ruin or monument.
25 CFR 141.27 Trade in imitation Indian crafts prohibited.
No person may introduce or possess for disposition or sale within the
exterior boundaries of the Hopi, Navajo or Zuni Reservations any object
that is represented to be an Indian handicraft unless the object was
produced by an Indian or Indians with the help of only such devices as
allow the manual skill of the maker to condition the shape and design of
each individual's product.
25 CFR 141.28 Gambling prohibited.
No licensee may permit any person to gamble by dice, cards, or in any
way whatever, including the use of any mechanical device, on the
premises of any licensed business.
25 CFR 141.29 Political contributions restricted.
No reservation business owner who is ineligible to vote in a Navajo
tribal election may grant or donate any money or goods to any candidate
for election to Navajo tribal office.
25 CFR 141.30 Retaliation prohibited.
No licensee may refuse service to any customer for the purpose of
retaliating against that customer for enforcing or attempting to enforce
the regulations of this part.
25 CFR 141.31 Trade by Indian Affairs employees restricted.
(a) Except as authorized in this section, no person employed by the
U.S. Government in Indian Affairs may have any interest in any trade
with an Indian or an Indian organization. Employees of the U.S.
Government may trade with an Indian or Indian organization for any
purpose other than to engage in a profit-making activity under the
following conditions:
(1) Where the amount involved is $500 or less a U.S. Government
employee may purchase goods or services from an Indian or Indian
organization.
(2) Where the amount involved is greater than $500 a U.S. Government
employee may, with the approval of the Secretary of the Interior,
purchase goods or services from any Indian or Indian organization.
(b) Lease or sale of home sites or allotments on trust or restricted
Indian land to or from Indian employees of the U.S. Government shall be
made on sealed bids, unless the Commissioner waives this requirement on
the basis of a report showing: (1) The need for the transaction, (2)
the benefits accruing to both parties, and (3) that the consideration
for the proposed transaction is not less than the appraised value of the
land or leasehold interest unless the Indian employee qualifies and is
intending a transaction in accordance with 152.5 (b) and (c) of this
Chapter of 162.5(b)(1), (2) and (3) of this Chapter. An affidavit, as
follows, shall accompany each proposed land transaction:
I,XXXXXXXXXXXXXXXXXXX(Name)
XXXXXXXXXXXXXXXXXXX(Title)
swear (or affirm) that I have not excercised any undue influence nor
used any special knowledge received by reason of my office in obtaining
the (grantor's, purchaser's, vendor's) consent to the instant
transaction.
(c) This section does not prohibit any reservation business from
contracting with the Federal Government to provide postal services to
Indian communities in which Government postal service is unavailable.
(d) Nothing in this section prohibits an Indian employee from
receiving benefits by reason of membership in a tribe or corporation or
cooperative association organized by and operated for Indians.
(e) U.S. Government employees who violate this section are liable to
a penalty of five thousand dollars ($5,000) and shall be removed from
office, see 25 U.S.C. 68.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
Editorial Note: For further information concerning Federal employees
contracting or trading with Indians, see Executive Order 12328 of Oct.
8, 1981 at 46 FR 50357, Oct. 13, 1981.
25 CFR 141.31 Subpart D -- Pawnbroker Practices
25 CFR 141.32 Reservation pawnbroker license required.
(a) No person may accept pawns or pledges of personal property as
security for monies or accounts due by an Indian within the exterior
boundaries of the Navajo, Hopi or Zuni Reservations unless such person
is an agent of a bank, saving bank, trust company, savings or building
and loan association, or credit union operating under the laws of the
United States or the laws of New Mexico, Arizona, or Utah or unless such
person --
(1) Holds a valid license to operate a reservation business,
(2) Holds a valid reservation pawnbroker license, and
(3) Posts a bond on a form provided by the commissioner in the name
of the licensee in the amount of twenty-five thousand dollars ($25,000)
or such larger sum as may be designated by the Commissioner with two (2)
or more sureties approved by the Commissioner or with a guaranty company
qualified under the Act of August 13, 1894 (28 Stat. 279; 6 U.S.C.
6-13).
(b) An applicant for a reservation pawnbroker license shall apply in
writing on a form provided by the Commissioner.
(c) The bond required by paragraph (a) of this section shall be in
favor of the United States for the benefits of the customers of the
licensee and shall specifically indemnify all customers who have
recovered judgment against the licensee for destroyed, lost, misplaced
or misappropriated pawn or other property. Any customer recovering such
a judgment may bring suit on the bond in his or her own name. The bond
shall be for the same period as the license.
(d) Any surety on a bond under this section may be relieved of
liability by complying with the provisions of 141.57.
(e) No person may accept pawns or pledges of personal property as
security for monies or accounts due by an Indian after the effective
date of a tribal ordinance banning the acceptance of pawn on the
reservation.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976;
41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.33 Fees for pawnbroker license.
(a) Prior to the issuance of an initial pawnbroker license, each
licensee who is not a member of the Navajo Tribe shall pay the following
amount:
(1) If the license is issued before July 1, the licensee shall pay
two hundred dollars ($200).
(2) If the license is issued on or after July 1, the licensee shall
pay one hundred dollars ($100).
(b) Each licensed pawnbroker who is not a member of the Navajo Tribe
shall pay on or before January 10 of each year an annual license fee of
two hundred dollars ($200).
(c) The Area Director shall determine the annual license fee payable
by licensees who are enrolled members of the Navajo Tribe. The license
fee for a member of the Navajo Tribe may not be less than twenty percent
(20 percent) nor greater than one hundred percent (100 percent) of the
amount the licensee would be required to pay if the licensee were not
tribal member.
(d) All fees are payable to the Area Director and shall be deposited
to the credit of a subaccount of the account ''Indian Monies, Proceeds
of Labor'' and shall be expended exclusively for the enforcement of the
regulations of this part.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.34 Pawnbroker records.
Each pawnbroker shall keep a written record of the following
information:
(a) Transaction number.
(b) Name of pledgor.
(c) Address of pledgor.
(d) Census number or social security number of pledgor.
(e) Date of transaction.
(f) Replacement value of pawn.
(g) Description of pawned item.
(h) Amount loaned in cash.
(i) Amount loaned as credit.
(j) Finance charge.
(k) Amount financed.
(l) Date and amount of payments made by pledgor.
(m) Date notice of default sent to pledgor.
(n) Date pawned item sold.
(o) Name and address of purchaser.
(p) Amount received upon sale.
(q) Amount of any surplus returned to the pledgor.
(r) Such other information as the Commissioner may require.
25 CFR 141.35 Pawnbroker disclosure requirements.
In all transactions in which pawn is taken the lender shall give the
borrower a written ticket or receipt disclosing the following
information to the extent applicable:
(a) Clear identification of the property pledged.
(b) The date of the transaction.
(c) Amount of the loan.
(d) Name and social security or census number of the pledgor.
(e) Replacement value of the pawn as agreed upon by the pledgor and
pledgee.
(f) Date on which loan is due.
(g) The amount, expressed as a dollar amount, of any finance charges.
(h) The finance charges expressed as an annual percentage rate and
computed in accordance with the provisions of 12 CFR 226.5(b).
(i) The amount, or method of computing the amount, of any charges to
be assessed after the date the loan is due.
(j) A statement of the conditions of default and the pledgor's rights
upon default, as defined by this part.
(k) Identification of the method of computing any unearned portion of
the finance charges in the event of prepayment of the obligation.
25 CFR 141.36 Maximum finance charges on pawn transactions.
No pawnbroker may impose an annual finance charge greater than
twenty-four percent (24 percent) of the unpaid balance for the period of
the loan nor assess late charges or delinquency charges on any loan.
25 CFR 141.37 Prepayment.
(a) Subject to the provisions of paragraph (b) of this section, the
pledgor may prepay in full or in any part the unpaid balance of a loan
at any time without penalty.
(b) When a loan is prepaid the lender may collect the earned portion
of the finance charge or may charge an administrative fee not to exceed
ten percent (10 percent) of the unearned finance charge or two dollars
($2) whichever is greater.
25 CFR 141.38 Pawn loans, period, notice and sale.
(a) The proceeds of all loans secured by pawn and for which a finance
charge is imposed shall be paid only in cash or with a fully negotiable
check.
(b) The period of all such loans shall be no less than twelve (12)
months, subject to the provisions of paragraph (c).
(c) Thirty (30) days prior to the end of the loan period the pledgee
may make a declaration of intention to proceed with sale of the pawned
item by sending notice of intent to the pledgor.
(d) The notice required in paragraph (c) of this section shall be
sent to the pledgor and proof of delivery obtained and shall contain a
description of the item pawned, a statement of the principal and finance
charge owed, a statement of the intention to sell, the date of the sale,
and the procedure for redemption.
(e) Nothing in this section requires the business owner to proceed
with notice and sale if the business owner desires to hold the pawn for
a period longer than the loan period stated in the original agreement.
(f) Unless notice is given under paragraph (c) of this section, or
the loan is refinanced under the provisions of 141.41, no finance
charge may be imposed for the time the loan remains unpaid after the end
of the loan period stated on the pawn ticket.
25 CFR 141.39 Sale and redemption of pawn.
(a) If the retention period has expired and notice as required under
141.38 of this part has been sent and received, the pledgee may proceed
with the sale of the pawn.
(b) The pawn shall be sold no sooner than thirty (30) days but no
later than twelve (12) months after notice of intent to sell has been
given. The sale shall be a public sale, with notice of the time, place,
and manner to be given in a tribal newspaper of general circulation not
less than fourteen (14) days prior to the sale, or in the absence of
such a newspaper, in a commercially reasonable manner. The sale itself
shall also be conducted in a commercially reasonable manner.
(c) A pledgor may redeem pawn which has been put up for sale at any
time before the day it is to be sold by tendering to the pledgee the
face amount of the loan, plus the finance charge assessed on the
original loan. The pledgee may also collect an additional charge
covering the period between the date due and the date of redemption,
provided that the rate of charge does not exceed the finance charge on
the original loan.
(d) The pledgee may buy at the pledgee's own sale if the collateral
is of a type customarily sold in a recognized market or which is the
subject of widely distributed standard price quotations.
(e) Pawn held for more than twelve (12) months after notice of intent
to sell has been given may not be sold, but the pledgor may redeem the
pawn at any time by tendering to the pledgee the face amount of the
loan, plus the finance charge that accrued before the end of the sale
period provided in paragraph (b) of this section.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.40 Proceeds of sale.
(a) The following items shall be deducted from the proceeds of the
sale of pawned items in the following order of priority:
(1) The expense of advertising and conducting the sale, not to exceed
ten percent (10%) of the amount loaned.
(2) The principal amount of the loan, plus any accrued finance
charges.
(3) The finance charge calculated at the annual percentage rate of
the original loan on the unpaid balance of the loan for the period from
the date of default to the date of sale.
(b) Within ten (10) days after the sale of the pledge under this
section, the pledgee shall send a notice to the pledgor informing the
pledgor of the date of the sale, the proceeds of the sale, the allowable
costs of the sale, any additional finance charges, and the amount of any
surplus realized. The pledgee shall obtain proof that the notice was
delivered.
(c) Any proceeds of the sale remaining after the deductions
authorized in paragraph (a) of this section are deemed to be ''surplus''
and shall be paid over to the pledgor or the pledgor's estate in U.S.
currency.
(d) The sale of pledged goods and the application of the proceeds in
accordance with this section extinguishes all rights of action of the
pledgee for any unpaid principal or finance charge on the original loan.
25 CFR 141.41 Refinancing transaction.
(a) Any pawn agreement may be refinanced, either with or without an
increase in the principal amount of the loan, prior to or following the
date of expiration of the original period of the loan upon agreement
between the parties.
(b) Such refinancing constitutes a new transaction for purposes of
all disclosure and record keeping requirements of this part and requires
the issuance of a new ticket or receipt.
(c) The rate of the additional finance charge imposed as part of the
refinancing agreement may not exceed the maximum rate imposed by
141.36.
(d) The total finance charges in a refinancing agreement may not
exceed the sum of the following amounts:
(1) The finance charge that the pledgor would have been required to
pay upon prepayment on the date of refinancing under 141.37 of this
part, except that, for the purpose of computing this amount, no minimum
finance charge or administrative fee may be included, and
(2) Such additional finance charge as is permissible on the balance
of the loan over the remaining period of the loan as extended.
(e) The default and sale procedures of this part apply to a
refinanced pawn transaction in the same manner as they apply to an
original pawn transaction.
25 CFR 141.42 Lost pawn receipts or tickets.
(a) Redemption may not be denied on the sole ground that the pledgor
is unable to produce a receipt or pawn ticket, provided the pledgor
gives a reasonable description of the pawned item or makes an actual
identification of the item. The pledgee may require the pledgor to sign
a receipt for the redeemed pawn. No person other than the pledgor may
redeem pawn without a ticket.
(b) No additional charges may be imposed for the loss of a pawn
receipt or ticket.
25 CFR 141.43 Outstanding obligations owed to pledgee.
If the pledgor tenders payment to be applied toward redemption of a
pawned item, it shall be so applied by the pledgee, irrespective of
other outstanding obligations owed by the pledgor to the pledgee. The
pledgee may not deny the pledgor the right to redeem the pawn.
25 CFR 141.44 Insurance on pawn.
(a) Any licensee under this part who lends money or extends credit
with personal property as security and holds such property as a pledge
shall maintain invault all risk insurance coverage running in favor of
the pledgor for such property in amounts based upon a report issued
monthly to the insurer. Such monthly report shall be an amount not less
than the total agreed replacement value of all pawned items then held by
the licensee.
(b) A copy of the insurance policy shall be available for inspection
at the licensee's place of business and a copy shall be filed with the
Commissioner.
25 CFR 141.44 Subpart E -- Consumer Credit Transactions Other Than Pawn
25 CFR 141.45 Consumer credit applications.
Any reservation business offering credit which is not secured by pawn
shall provide an application for credit to any customer requesting
credit. Within thirty (30) days of the date of application, the lender
shall act upon the application and notify the customer in writing of the
decision with the reason therefor. A business owner who reduces the
amount of credit available to a customer or terminates a credit account
shall provide written notice to the customer stating the reason for the
reduction or termination of such credit.
25 CFR 141.46 Credit disclosure statements.
Upon approval of a credit application the lender shall give the
applicant the following information where applicable in a written
disclosure statement:
(a) The maximum credit limit of the account.
(b) The conditions under which a finance charge may be imposed.
(c) The period in which payment may be made without incurring a
finance charge.
(d) The method used in determining the balance on which the finance
charge is calculated.
(e) The method used to calculate the finance charge.
(f) The periodic rates used and the range of balances to which each
rate applies.
(g) The conditions under which additional charges may be made and the
method for calculating those charges.
(h) A description of any lien that may be acquired on a customer's
property.
(i) The minimum payment that must be made on each billing.
25 CFR 141.47 Monthly billing statement.
On all credit accounts on which a finance charge may be imposed and
for all other credit accounts when requested by the customer, a licensee
shall issue a monthly billing statement to the customer stating the
following information where applicable:
(a) The unpaid balance at the start of the billing period.
(b) The amount and date of each extension of credit and
identification of each item costing more than ten dollars ($10).
(c) Payments made by a customer and other credits, including returns,
rebates, and adjustments.
(d) The finance charge shown in dollars and cents.
(e) The rates used in calculating the finance charge plus the range
of balances to which the finance charge was calculated.
(f) The closing date of the billing cycle.
(g) The unpaid balance at that time.
25 CFR 141.48 Translation of disclosure statements.
Disclosure required by 141.46 and 141.47 shall be made in writing
regardless of the customer's ability to speak, read, or write the
English language. Disclosure to non-English speaking persons shall be
translated orally into the appropriate language.
25 CFR 141.49 Usury prohibited.
No reservation business may take or receive money, goods, or other
things of value for a loan or forbearance on a debt that exceeds in
value the principal plus twenty-four percent (24 percent) per annum
finance charge. Any reservation business contracting for, reserving, or
receiving directly or indirectly, any greater amount shall forfeit the
finance charge.
25 CFR 141.49 Subpart F -- Enforcement Powers, Procedures and Remedies
25 CFR 141.50 Penalty and forfeiture of merchandise.
Any person other than an enrolled member of the tribe who either
resides as a reservation business owner within the exterior boundaries
of the Navajo, Hopi, or Zuni Reservations or introduces or attempts to
introduce goods or to trade therein without a license shall forfeit all
merchandise offered for sale to the Indians or found in the person's
possession and is liable to a penalty of five hundred dollars ($500).
This section may be enforced by commencing an action in the appropriate
United States District Court under the provisions of 28 U.S.C. 1345.
25 CFR 141.51 Authority to close unlicensed reservation businesses.
The Commissioner shall close any reservation business subject to the
provisions of this part that does not hold a valid license or temporary
permit.
25 CFR 141.52 Revocation of license and lease and recovery on bond.
The reservation business owner is subject to revocation of license
and lease and recovery on the bond in whole or in part in the event of
any violation of the regulations of this part after a show cause
proceeding according to the provisions of 141.56.
(41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 141.53 Cease and desist orders.
(a) If the Commissioner believes that violation of the regulations in
this part is occurring, the Commissioner may order the person believed
to be in violation to show cause according to the provisions of 141.56
why a cease and desist order should not be issued.
(b) If the person accused of the violations fails to show cause at
the hearing why such an order should not issue, the Commissioner shall
issue the order.
(c) A person subject to a cease and desist order issued under this
section who violates the order is liable to revocation of license after
a show cause proceeding according to the provisions of 141.56 of this
part.
25 CFR 141.54 Periodic review of performance.
(a) The Commissioner shall review licenses at ten (10) year intervals
to determine whether or not the business is operating in accordance with
these regulations and all other applicable laws and regulations and
whether the business is adequately serving the economic needs of the
community.
(b) If, as a result of the review provided in paragraph (a) of this
section, the Commissioner finds that the licensee has repeatedly
violated these regulations, the Commissioner may order the licensee to
show cause according to the provisions of 141.56 why the licensee's
license should not be revoked.
(c) If the licensee fails to show cause why the license should not be
revoked, the Commissioner shall revoke the license.
25 CFR 141.55 Price monitoring and control.
(a) A reservation business may not charge its customers unfair or
unreasonable prices. To insure compliance with this section, the
Commissioner shall perform audits as provided in 141.58. In performing
those audits the Commissioner may inspect all original books, records,
and other evidences of the cost of doing business. In addition, at
least once a year the Commissioner shall cause to be made a survey of
the prices of flour, sugar, fresh eggs, lard, coffee, ground beef,
bread, cheese, fresh milk, canned fruit, and such other goods as the
Commissioner deems appropriate in all stores licensed under these
regulations and in a representative number of similar stores located in
communities immediately adjoining the reservations. The results of the
survey shall be posted publicly, sent to each licensed business, and
made available to the appropriate agency of the tribal government.
Copies of the survey shall be available at the office of the Area
Director.
(b) If the Commissioner finds that a reservation business is charging
higher prices, especially for basic consumer commodities, than those
charged on the average based on the studies conducted under the
provisions of paragraph (a) of this section, the Commissioner may order
the business owner to show cause under the provisions of 141.56 why an
order should not be issued to reduce prices. If the Commissioner
determines that the prices charged by the business are not economically
justified, based on all of the information, then the Commissioner may
order the business to reduce its price on all items determined to be
priced too high to a reasonable price as determined by the Commissioner,
but in no event to a lower price than the cost of the item increased by
a reasonable mark-up.
25 CFR 141.56 Show cause procedures.
(a) When the Commissioner believes there has been a violation of this
part the Commissioner shall serve the licensee with written notice
setting forth in detail the nature of the alleged violation and stating
what remedial action the Commissioner proposes to take.
(b) The licensee shall have ten (10) days from the date of receipt of
notice in which to show cause why the contemplated remedial action
should not be ordered.
(c) If within the ten (10) day period the Commissioner determines
that the violation may be corrected and the licensee agrees to take the
necessary corrective measure, the licensee shall be given the
opportunity to take the necessary corrective measures.
(d) If the licensee fails within a reasonable time to correct the
violation or to show cause why the contemplated remedial action should
not be ordered, the Commissioner shall order the appropriate remedial
action.
(e) If the Commissioner orders remedial action the licensee may
appeal under the provisions of part 2 of this title not later than
thirty (30) days after the date on which the remedial action is ordered.
25 CFR 141.57 Procedures to cancel liability on bond.
(a) Any surety who wishes to be relieved from liability arising on a
bond issued under this part shall file with the Commissioner a statement
in writing setting forth the desire of the surety to be relieved of
liability and the reasons therefor.
(b) The surety shall mail a copy of the statement by certified mail,
return receipt requested, to the last known address of the licensee
named in the bond.
(c) Twenty (20) days after the statement required in paragraph (b) of
this section is mailed to the licensee and the statement required in
paragraph (a) of this section is filed with the Commissioner, the surety
from all liability thereafter arising on the bond.
(d) If the licensee does not have other bond sufficient to meet the
requirements of this part or has not executed and filed a new or
substitute bond within twenty (20) days after the service of the
statement, the Commissioner shall declare the license and lease void.
(e) No surety is released from liability under the bond for claims
which arose prior to the issuance of the Commissioner's order releasing
the surety.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976;
41 FR 22937, June 8, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.58 Records, reports, and obligations of reservation business
owners.
(a) The Commissioner may, in consultation with interested persons and
agencies, promulgate a model bookkeeping system for use in reservation
businesses. Until such model bookkeeping system is promulgated, each
business owner shall keep records in accordance with generally accepted
accounting principles.
(b) Each reservation business owner shall file with the Area Director
an annual report on or before April 15 in a form approved by the
Commissioner. Reports shall be subject to a yearly audit. The reports
shall contain the names and respective interests of all persons
participating in the business.
(c) The business owner or an employee shall record all sales and
purchases whether for cash or credit. If the business is on the Navajo
Reservation the owner or an employee shall supply the customer with a
copy of the sale transaction containing a description of the article
purchased or sold, the date of the transaction, and the price. A cash
register receipt complies with this paragraph for grocery or dry goods
purchases for cash.
(d) The licensee shall keep a duplicate copy of any writing required
by paragraph (c) of this section for a period of not less than three (3)
years and shall provide the customer or the customer's representative
one copy of those writings upon request.
(40 FR 39837, Aug. 29, 1975, as amended at 41 FR 3288, Jan. 22, 1976;
41 FR 13937, Apr. 1, 1976. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 141.59 Customer complaint procedures.
(a) Any customer of a licensee may file a complaint with the
Commissioner alleging that the licensee has committed a violation of
this part.
(b) Upon receipt of a customer complaint the Commissioner shall
initiate show cause proceedings under the provisions of 141.56 of this
part.
(c) If the Commissioner fails to order remedial action within forty
(40) days from the date the complaint is filed, the complainant may
appeal under the provisions of part 2 of this title not later than
seventy (70) days after the date the complaint is filed.
(d) If the Commissioner orders remedial action, the complainant may
appeal under the provisions of part 2 of this title not later than
thirty (30) days after the date on which the remedial action is ordered.
25 CFR 141.59 PART 142 -- OPERATION OF U.S.M.S. ''NORTH STAR'' BETWEEN
SEATTLE, WASH., AND STATIONS OF THE BUREAU OF INDIAN AFFAIRS AND OTHER
GOVERNMENT AGENCIES, ALASKA
Sec.
142.1 Responsibility for operation.
142.2 Transportation of freight for Federal agencies and others.
142.3 Employment of Natives.
142.4 Prohibition of trade with Natives.
142.5 Passenger rates.
142.6 Private passengers.
142.7 Transportation of children.
142.8 Transportation of Federal employees and their families and
Natives.
142.9 Preferential passengers.
Authority: 5 U.S.C. 301.
Source: 22 FR 10674, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 142.1 Responsibility for operation.
(a) The director of the Seattle Liaison Office, Bureau of Indian
Affairs, Seattle, Washington, under the jurisdiction of the Area
Director, Juneau Area Office, Bureau of Indian Affairs, Juneau, Alaska,
has responsibility for the operation of the ship for the Department of
the Interior, Bureau of Indian Affairs, including repair, upkeep,
payment of bills and employment of personnel.
(b) Itineraries for each voyage shall be made by the Director of the
Seattle Liaison Office in consultation with the Area Director of the
Juneau Area Office, Bureau of Indian Affairs, Juneau, Alaska.
Preference is to be accorded to the work of the Bureau of Indian
Affairs. The Area Director is vested with authority to direct the use
of the ship to perform special services which may arise and to act in
any emergency.
(39 FR 12246, Apr. 4, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 142.2 Transportation of freight for Federal agencies and others.
(a) All agencies of the Federal Government, including activities of
the Bureau of Indian Affairs, Alaskan Natives, cooperatives of Alaskan
Natives, business enterprises owned and operated by Alaskan Natives and
Federal employees shall be charged for freight, lighterage and
longshoring and other terminal charges in accordance with tariff rates
and terminal charges established by the Commissioner of Indian Affairs.
(b) Baggage and other personal property of passengers that cannot be
readily accommodated in the passengers' staterooms will be manifested as
freight and charged for at the established rates.
(c) Commercial freight may be carried between points where adequate
service is not provided by commercial vessels. Commercial freight, when
carried, shall be prepaid at the same tariff rates established under
paragraph (a) of this section.
(d) All freight accepted must be properly manifested, giving the name
and address of the consignor and the consignee, and a description of the
goods, including gross weight.
(e) The liability of the United States for any loss or damage to, or
non-delivery of freight shall be limited as permitted in 46 U.S.C. 746
and the Carriage of Goods by Sea Act (46 U.S.C. 1300-1315), and the
terms of such limitation of liability shall be contained in any document
of title relating to the carriage of goods by sea.
(22 FR 10674, Dec. 24, 1957, as amended at 27 FR 12399, Dec. 14,
1962. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 142.3 Employment of Natives.
Natives shall be employed on the ''North Star'' to fill all positions
for which they are qualified.
25 CFR 142.4 Prohibition of trade with Natives.
Officers and members of the crew on the vessel are prohibited from
engaging in trade with the Natives.
25 CFR 142.5 Passenger rates.
Rates for transportation of passengers shall be established by the
Commissioner and shall be the same for all passengers, except as
provided in 142.7. Rates shall be on file for public inspection at the
Bureau of Indian Affairs offices in Seattle, Washington and Juneau,
Alaska.
25 CFR 142.6 Private passengers.
No private passengers (except Federal employees and their families
and Natives of Alaska) shall be transported on the ''North Star''
between points where adequate services are provided by commercial
vessels. Where such commercial vessels are not available, and where
accommodations can be furnished on the ''North Star'' without detriment
to Government business, private travelers may be transported at the
rates established pursuant to 142.5.
25 CFR 142.7 Transportation of children.
The rates established for the transportation of children shall be
subject to the following rules:
(a) No charge shall be made for transportation of children under two
years of age.
(b) Children who have reached their second birthday, but not their
twelfth birthday shall be transported at half the rate established
pursuant to 142.5 for all other passengers.
25 CFR 142.8 Transportation of Federal employees and their families and
Natives.
(a) All agencies of the Federal Government will be billed at the
rates established pursuant to 142.5 for each employee traveling on
official business.
(b) When not in official travel status, Federal employees and
families of Federal employees will be transported at the rates
established pursuant to 142.5.
(c) Natives of Alaska, who are not indigent, will be charged the same
rates as all other passengers.
25 CFR 142.9 Preferential passengers.
In the booking of passage on the ship, preference shall be given to
employees of the Bureau of Indian Affairs and their families, to Natives
of Alaska, and to Public Health Service personnel traveling in behalf of
the Indian health program, and their families.
25 CFR 142.9 PART 143 -- CHARGES FOR GOODS AND SERVICES PROVIDED TO
NON-FEDERAL USERS
Sec.
143.1 Definitions.
143.2 Purpose.
143.3 Procedures.
143.4 Charges.
143.5 Payment.
Authority: 31 U.S.C. 9701; 25 U.S.C. 2, 13, 413.
Source: 55 FR 19621, May 10, 1990, unless otherwise noted.
25 CFR 143.1 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary -- Indian
Affairs, Department of the Interior, or other employee to whom authority
has been delegated.
(b) Reservation means any bounded geographical area established or
created by treaty, statute, executive order, or interpreted by court
decision and over which a federally recognized Indian Tribal entity may
exercise certain jurisdiction.
(c) Flat fee is the amount prorated to each user based on the total
costs incurred by the Government for the goods/services being provided.
(d) Non-Federal users are persons not employed by the Federal
Government who receive goods/services provided by the BIA.
(e) Goods/Services for the purpose of these regulations are those
provided or performed at the request of an indentifiable recipient and
are above and beyond those which accrue to the public at large.
25 CFR 143.2 Purpose.
(a) The purpose of the regulations in this part is to establish
procedures for the assessment, billing, and collection of charges for
goods/services provided to non-Federal users.
(b) The Assistant Secretary may sell or contract to sell to
non-Federal users within, or in the immediate vicinity of an Indian
Reservation (or former Reservation), any of the following goods/services
if it is determined that the goods/services are not available from
another local source or providing that goods/services is in the best
interest of the Indian tribes or individual Indians. The goods/services
include, but are not limited to:
(1) Electric power;
(2) Water;
(3) Sewage operations;
(4) Landfill operations;
(5) Steam;
(6) Compressed air;
(7) Telecommunications;
(8) Natural, manufactured, or mixed gas;
(9) Fuel oil;
(10) Landscaping; and
(11) Garbage collections.
25 CFR 143.3 Procedures.
(a) All non-Federal users who receive the above listed goods/services
must sign a standard agreement adopted by the Assistant Secretary for
the goods/services. This agreement shall contain the following
statement:
''Application for XXXXX (specify good(s)/service(s)) is hereby
requested at the noted address. In exchange for receiving the requested
good(s)/service(s), the applicant agrees to accept and abide by all
applicable rules, regulations, and rate schedules, including any future
amendments, additions, or changes thereto. If the applicant should fail
to comply with any of the rules, regulations, or rate schedules, the
cost incurred by the United States Government for enforcement of same
shall be charged to the applicant.
(b) Lack of a signed agreement does not invalidate payment
requirements. Any user will be responsible for payment of actual
goods/services received or delivered.
25 CFR 143.4 Charges.
(a) Charges shall be established by the Assistant Secretary and shall
be based upon the total costs (including both direct and indirect) of
goods/services to the Government at that locale. A schedule of charges
will be made available to the public upon request.
(b) All documentation used in establishing charges must be maintained
at the appropriate Bureau of Indian Affairs agency or Area Office and
shall be made available for review by the public upon request.
(c) Established charges may be reviewed, amended, and adjusted
monthly, but not less than annually.
(d) A flat fee may be charged where it is impractical to measure
actual usage by recipients.
(e) Security deposits are authorized under this regulation at the
discretion of the Assistant Secretary. The deposit may not exceed the
amount of one billing cycle. All deposits will be applied to the final
bill.
25 CFR 143.5 Payment.
(a) The Assistant Secretary -- Indian Affairs will establish a
billing cycle that is appropriate to the goods/services being provided.
(b) Payment is due within 30 days after the billing date.
(c) Upon non-payment by the non-Federal user, the Assistant Secretary
may discontinue service. Service may be discontinued after proper
notification by letter. Proper notification shall include:
(1) Written notice to user that payment is due. Such notice shall
afford the user the opportunity to challenge payment or excuse
non-payment within 14 days of the date on the notification letter.
(2) Following the expiration of the 14 day deadline for response, and
after consideration of any such response, the Assistant Secretary --
Indian Affairs may notify the user by letter that if payment is not
received within 10 days of the date on the letter, the service will be
discontinued.
(d) The Assistant Secretary has the discretion to continue services
for health and safety reasons. However, the non-Federal user is still
responsible for payment for goods/services provided.
(e) Once service has been discontinued based on deliquency of
payment, the discontinuance may be appealed under part 2 of this title.
25 CFR 143.5 SUBCHAPTER H -- LAND AND WATER
25 CFR 143.5 PART 150 -- LAND RECORDS AND TITLE DOCUMENTS
Sec.
150.1 Purpose and scope.
150.2 Definitions.
150.3 Maintenance of land records and title documents.
150.4 Location and service areas for land titles and records offices.
150.5 Other Bureau offices with title service responsibility.
150.6 Recordation of title documents.
150.7 Curative action to correct title defects.
150.8 Title status reports.
150.9 Land status maps.
150.10 Certification of land records and title documents.
150.11 Disclosure of land records, title documents, and title
reports.
Authority: Act of June 30, 1834 (4 Stat. 738; 25 U.S.C. 9). Act of
July 26, 1892 (27 Stat. 272; 25 U.S.C. 5). Reorganization Plan No. 3
of 1950 approved June 20, 1949 (64 Stat. 1262). (Act of April 26, 1906
(34 Stat. 137); Act of May 27, 1908 (35 Stat. 312); Act of August 1,
1914 (38 Stat. 582, 598) deal specifically with land records of the Five
Civilized Tribes.)
Source: 46 FR 47537, Sept. 29, 1981, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross-Reference: For further regulations pertaining to proceedings
in Indian probate, see 43 CFR part 4, subpart D.
25 CFR 150.1 Purpose and scope.
These regulations set forth authorities, policy and procedures
governing the recording, custody, maintenance, use and certification of
title documents, and the issuance of title status reports for Indian
land.
25 CFR 150.2 Definitions.
As used in this part.
(a) ''Secretary'' is the Secretary of the Interior or his authorized
representative.
(b) ''Commissioner'' is the Commissioner of Indian Affairs or his
authorized representative.
(c) ''Agency'' is an Indian Agency or other field unit of the Bureau
of Indian Affairs having Indian land under its immediate jurisdiction.
(d) ''Superintendent'' is the designated officer in charge of an
Agency.
(e) ''Tribe'' is a tribe, band, nation, community, rancheria, colony,
pueblo, or other Federally-acknowledged group of Indians.
(f) ''Bureau'' is the Bureau of Indian Affairs.
(g) ''Land'' is real property, including any interests, benefits, and
rights inherent in the ownership of the real property.
(h) ''Indian land'' is an inclusive term describing all lands held in
trust by the United States for individual Indians or tribes, or all
lands, titles to which are held by individual Indians or tribes, subject
to Federal restrictions against alienation or encumbrance, or all lands
which are subject to the rights of use, occupancy and/or benefit of
certain tribes. For purposes of this part, the term Indian land also
includes land for which the title is held in fee status by Indian
tribes, and U.S. Government-owned land under Bureau jurisdiction.
(i) ''Administrative Law Judge'' is an employee of the Office of
Hearing and Appeals, Department of the Interior, upon whom authority has
been conferred by the Secretary to probate the trust or restricted
estates of deceased Indians in accordance with 43 CFR, Part 4, Subpart
D.
(j) ''Land Titles and Records Offices'' are those offices within the
Bureau of Indian Affairs charged with the Federal responsibility to
record, provide custody, and maintain records that affect titles to
Indian lands, to examine titles, and to provide title status reports for
such land.
(k) ''Manager'' is the designated officer in charge of a Land Titles
and Records Office.
(l) ''Title document'' is any document that affects the title to or
encumbers Indian land and is required to be recorded by regulation or
Bureau policy.
(m) ''Recordation'' or ''recording'' is the acceptance of a title
document by the appropriate Land Titles and Records Office. The purpose
of recording is to provide evidence of a transaction, event, or
happening that affects land titles; to preserve a record of the title
document; and to give constructive notice of the ownership and change
of ownership and the existence of encumbrances to the land.
(n) ''Title examination'' means an examination and evaluation by a
qualified title examiner of the completeness and accuracy of title
documents affecting a particular tract of Indian land with certification
of the findings by the Manager of the Land Titles and Records Office.
(o) ''Title status report'' means a report issued after a title
examination which shows the proper legal description of a tract of
Indian land; current ownership, including any applicable conditions,
exceptions, restrictions or encumbrances on record; and whether the
land is in unrestricted, restricted, trust, or other status as indicated
by the records in a Land Titles and Records Office.
25 CFR 150.3 Maintenance of land records and title documents.
The Land Titles and Records Offices within the Bureau are hereby
designated as the offices of record for land records and title documents
and are hereby charged with the Federal responsibility to record,
provide custody, and maintain records that affect titles to Indian land,
to examine titles, and to provide title status reports.
25 CFR 150.4 Locations and service areas for land titles and records
offices.
Shown below are present Land Titles and Records Offices and the
jurisdictional area served by each office.
(a) Aberdeen, S. Dakota Office provides title service for Indian
land located under the jurisdiction of the Aberdeen and Minneapolis Area
Offices, except for Indian land on the White Earth, Isabella, and Oneida
Indian Reservations.
(b) Albuquerque, New Mexico Office provides title services for Indian
land located under the jurisdiction of the Albuquerque, Navajo, and
Phoenix Area Offices.
(c) Anadarko, Oklahoma Office provides title services for Indian land
located under the jurisdiction of the Anadarko Area Office and under the
Miami Agency of the Muskogee Area Office.
(d) Billings, Montana Office provides title services for Indian land
located under the jurisdiction of the Billings Area Office.
(e) Portland, Oregon Office provides title services for Indian land
located under the jurisdiction of the Portland and Sacramento Area
Offices.
25 CFR 150.5 Other Bureau offices with title service responsibility.
(a) Muskogee Area Office is the office of record and performs limited
title functions for all Indian land of the Five Civilized Tribes. The
regulations in this part apply to the Muskogee Area Office to the extent
that they relate to the title services performed by that office.
(b) The Juneau Area Office has title service responsibility for the
Juneau Area. This authority has been largely delegated to the agencies.
The regulations in this part apply to the Juneau Area Office to the
extent practicable.
(c) The Cherokee Agency has title service responsibility for the
Eastern Cherokee Reservation. The regulations in this part apply to the
Cherokee Agency to the extent practicable.
(d) The Bureau Central Office, Washington, D.C., provides title
services for all other Indian land not shown above in 150.4 or in this
section, including the land of the Absentee Wyandottes. The regulations
in this part apply to the Central Office.
25 CFR 150.6 Recordation of title documents.
All title documents shall be submitted to the appropriate Land Titles
and Records Office for recording immediately after final approval,
issuance, or acceptance. Bureau officials delegated authority by the
Secretary to approve title documents or accept title are responsible for
prompt compliance with the recording requirement. Documents submitted
for recording shall be completed in accordance with prescribed Bureau
regulations or instructions.
(a) Title documents other than probate records. The original, a
signed duplicate, or a certified copy of such documents shall be
submitted for recording. Following the recording process, the Land
Titles and Records Office will return those title documents that are
required to be returned to the originating office with appropriate
recording information.
(b) Probate records. In accordance with 43 CFR Part 4, Subpart D,
Administrative Law Judges shall forward the original record of Indian
probate decisions and copies of petitions for rehearing, reopening, and
other appeals to the Land Titles and Records Office which provides
service to the originating Agency. If trust land or Indian heirs
involved in the probate are located within the jurisdictional area of
another Land Titles and Records Office, the Administrative Law Judge
shall also send a duplicate copy to that office. Probate records
submitted by an Administrative Law Judge for recording will be retained
by the Land Titles and Records Office.
25 CFR 150.7 Curative action to correct title defects.
Land Titles and Records Office shall initiate such action as
described below to cure defects in the record discovered during the
recording of title documents or examination of titles.
(a) If an error is traced to a defective title document other than
probate records, the Land Titles and Records Office shall notify the
originating office of the defect.
(b) If errors are discovered in probate records, the Land Titles and
Records Office may initiate corrective action as follows:
(1) An administrative modification shall be issued to modify probate
records to include any Indian land omitted from the inventory if such
property is located in the same state and takes the same line of descent
as that shown in the original probate decision. Authority is delegated
to the Commissioner by 43 CFR 4.272 to make such modifications except on
those Indian reservations covered by special Inheritance Acts (43 CFR
4.300). Copies of administrative modifications shall be distributed to
the appropriate Administrative Law Judge, Agencies with jurisdiction
over the Indian land, and to all persons who share in the estate.
(2) Land Titles and Records Offices shall notify the Superintendent
when modifications are required by Administrative Law Judges for other
types of probate errors. Corrective action is then initiated in
accordance with 43 CFR Part 4, Subpart D.
(3) Land Titles and Records Offices shall issue administrative
corrections to correct probate errors which are clerical in nature and
which do not affect vested property rights or involve questions of due
process. Copies of administrative corrections are distributed to the
appropriate Administrative Law Judge and Agency.
25 CFR 150.8 Title status reports.
Land Titles and Records Offices may conduct a title examination of a
tract of Indian land provide a title status report upon request to those
persons authorized by law to receive such information. Requests for
title status reports shall be submitted by or through the Bureau office
that has administrative jurisdiction over the Indian land. All requests
must clearly identify the tract of Indian land.
25 CFR 150.9 Land status maps.
The Land Titles and Records Offices shall prepare and maintain maps
of all reservations and similar entities within their jurisdictions to
assist Bureau personnel in the execution of their title service
responsibilities. Base maps shall be prepared from plats of official
survey made by the General Land Office and the Bureau of Land
Management. These base maps, showing prominent physical features and
section, township and range lines, shall be used to prepare land status
maps. The land status maps shall reflect the individual tracts, tract
numbers, and current status of the tract. Other special maps, such as
plats and townsite maps, may also be prepared and maintained to meet the
needs of individual Land Titles and Records Offices, Agencies, and
Indian tribes.
25 CFR 150.10 Certification of land records and title documents.
Under the provisions of the Act of July 26, 1892 (27 Stat. 273; 25
U.S.C. 6), an offical seal was created for the use of the Commissioner
of Indian Affairs in authenticating and certifying copies of Bureau
records. Managers of Land Titles and Records Offices are designated as
Certifying Officers for this purpose. When a copy or reproduction of a
title document is authenticated by the official seal and certified by a
Manager, Land Titles and Records Office, the copy or reproduction shall
be admitted into evidence the same as the original from which it was
made. The fees for furnishing such certified copies are established by
a uniform fee schedule applicable to all constituent units of the
Department of the Interior and published in 43 CFR Part 2, Appendix A.
25 CFR 150.11 Disclosure of land records, title documents, and title
reports.
(a) The usefulness of a Land Titles and Records Office depends in
large measure on the ability of the public to consult the records
contained therein. It is therefore, the policy of the Bureau of Indian
Affairs to allow access to land records and title documents unless such
access would violate the Privacy Act, 5 U.S.C. 552a or other law
restricting access to such records, or there are strong policy grounds
for denying access where such access is not required by the Freedom of
Information Act, 5 U.S.C. 552. It shall be the policy of the Bureau of
Indian Affairs that, unless specifically authorized, monetary
considerations will not be disclosed insofar as leases of tribal land
are concerned.
(b) Before disclosing information concerning any living individual,
the Manager, Land Titles and Records Office, shall consult 5 U.S.C.
552a(b) and the notice of routine users then in effect to determine
whether the information may be released without the written consent of
the person to whom it pertains.
25 CFR 150.11 Part 151
25 CFR 150.11 PART 151 -- LAND ACQUISITIONS
Sec.
151.1 Purpose and scope.
151.2 Definitions.
151.3 Land acquisition policy.
151.4 Acquisitions in trust of lands owned in fee by an Indian.
151.5 Trust acquisitions in Oklahoma under Section 5 of the I.R.A.
151.6 Exchanges.
151.7 Acquisition of fractional interests.
151.8 Tribal consent for nonmember acquisitions.
151.9 Requests for approval of acquisitions.
151.10 Factors to be considered in evaluating requests.
151.11 Action on requests.
151.12 Title examination.
151.13 Formalization of acceptance.
151.14 Information collection.
Authority: R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat.
1106, as amended; 46 stat. 1471, as amended; 48 stat. 985, as
amended; 49 Stat. 1967, as amended; 53 Stat. 1129; 63 Stat. 605;
69 Stat. 392, as amended; 70 Stat. 290, as amended; 70 stat. 626;
75 Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat.
174, as amended; 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86
Stat. 216; 86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat.
81; 88 Stat. 1716; 88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 409a,
450h, 451, 464, 465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a,
610, 610a, 622, 624, 640d-10, 1466, and 1495, and other authorizing
acts.
Source: 45 FR 62036, Sept. 18, 1980, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross-Reference: For regulations pertaining to: The inheritance of
interests in trust or restricted land, see Parts 15, 16, and 17 of this
title and 43 CFR Part 4; the purchase of lands under the BIA Loan
Guaranty, Insurance and Interest Subsidy program, see Part 103 of this
title; the exchange and partition of trust or restricted lands, see
Part 152 of this title; land acquisitions authorized by the Indian
Self-Determination and Education Assistance Act, see Parts 272 and 276
of this title; the acquisition of allotments on the public domain or in
national forests, see 43 CFR Part 2530; the acquisition of Native
allotments and Native townsite lots in Alaska, see 43 CFR 2561 and 2564;
the acquisition of lands by Indians with funds borrowed from the
Farmers Home Administration, see 7 CFR 1823 Subpart N, the acquisition
of land by purchase or exchange for members of the Osage Tribe not
having certificates of competency, see 117.8 and 158.54 of this title.
25 CFR 151.1 Purpose and scope.
These regulations set forth the authorities, policy, and procedures
governing the acquisition of land by the United States in trust status
for individual Indians and tribes. Acquisition of land by individual
Indians and tribes in fee simple status is not covered by these
regulations even though such land may, by operation of law, be held in
restricted status following acquisition. Acquisition of land in trust
status by inheritance or escheat is not covered by these regulations.
These regulations do not cover the acquisition of land in trust status
in the State of Alaska, except acquisitions for the Metlakatla Indian
Community of the Annette Island Reserve or it members.
25 CFR 151.2 Definitions.
(a) ''Secretary'' means the Secretary of the Interior or his
authorized representative acting under delegated authority.
(b) ''Tribe'' means any Indian tribe, band, nation, pueblo,
community, rancheria, colony, or other group of Indians, including the
Metlakatla Indian Community of the Annette Island Reserve, which is
recognized by the Secretary as eligible for the special programs and
services from the Bureau of Indian Affairs. For purposes of
acquisitions made under the authority of 25 U.S.C. 488 and 489, or other
statutory authority which specifically authorizes trust acquisitions for
such corporations, ''Tribe'' also means a corporation chartered under
section 17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477) or
section 3 of the Act of June 26, 1936 (49 Stat. 1967; 25 U.S.C. 503).
(c) ''Individual Indian'' means:
(1) Any person who is an enrolled member of a tribe;
(2) Any person who is a descendent of such a member and said
descendant was, on June 1, 1934, physically residing on a federally
recognized Indian reservation;
(3) Any other person possessing a total of one-half or more degree
Indian blood of a tribe;
(4) For purposes of acquisitions outside of the State of Alaska,
''Individual Indian'' also means a person who meets the qualifications
of paragraph (c) (1), (2), or (3) of this section where ''Tribe''
includes any Alaska Native Village or Alaska Native Group which is
recognized by the Secretary as eligible for the special programs and
services from the Bureau of Indian Affairs.
(d) ''Trust land'' or ''land in trust status'' means land the title
to which is held in trust by the United States for an individual Indian
or a tribe.
(e) ''Restricted land'' or ''land in restricted status'' means land
the title to which is held by an individual Indian or a tribe and which
can only be alienated or encumbered by the owner with the approval of
the Secretary because of limitations contained in the conveyance
instrument pursuant to Federal law or because of a Federal law directly
imposing such limitations.
(f) Unless another definition is required by the act of Congress
authorizing a particular trust acquisition, ''Indian reservation'' means
that area of land over which the tribe is recognized by the United
States as having governmental jurisdiction, except that, in the State of
Oklahoma or where there has been a final judicial determination that a
reservation has been disestablished or diminished, ''Indian
reservation'' means that area of land constituting the former
reservation of the tribe as defined by the Secretary.
(g) ''Land'' means real property or any interest therein.
(h) ''Tribal consolidation area'' means a specific area of land with
respect to which the tribe has prepared, and the Secretary has approved,
a plan for the acquisition of land in trust status for the tribe.
25 CFR 151.3 Land acquisition policy.
Land not held in trust or restricted status may only be acquired for
an individual Indian or a tribe in trust status when such acquisition is
authorized by an act of Congress. No acquisition of land in trust
status, including a transfer of land already held in trust or restricted
status, shall be valid unless the acquisition is approved by the
Secretary.
(a) Subject to the provisions contained in the acts of Congress which
authorize land acquisitions, land may be acquired for a tribe in trust
status (1) when the property is located within the exterior boundaries
of the tribe's reservation or adjacent thereto, or within a tribal
consolidation area; or, (2) when the tribe already owns an interest in
the land or, (3) when the Secretary determines that the acquisition of
the land is necessary to facilitate tribal self-determination, economic
development, or Indian housing.
(b) Subject to the provisions contained in the acts of Congress which
authorize land acquisitions or holding land in trust or restricted
status, land may be acquired for an individual Indian in trust status
(1) when the land is located within the exterior boundaries of an Indian
reservation, or adjacent thereto; or, (2) when the land is already in
trust or restricted status.
25 CFR 151.4 Acquisitions in trust of lands owned in fee by an Indian.
Unrestricted land owned by an individual Indian or a tribe may be
conveyed into trust status, including a conveyance to trust for the
owner, subject to the provisions of this part.
25 CFR 151.5 Trust acquisitions in Oklahoma under Section 5 of the
I.R.A.
In addition to acquisitions for tribes which did not reject the
provisions of the Indian Reorganization Act and their members, land may
be acquired in trust status for an individual Indian or a tribe in the
State of Oklahoma under Section 5 of the Act of June 18, 1934 (48 Stat.
985; 25 U.S.C. 465), if such acquisition comes within the terms of this
part. This authority is in addition to all other statutory authority
for such an acquisition.
25 CFR 151.6 Exchanges.
An individual Indian or tribe may acquire land in trust status by
exchange if the acquisition comes within the terms of this part. The
disposal aspects of an exchange are governed by Part 152 of this title.
25 CFR 151.7 Acquisition of fractional interests.
Acquisition of a fractional land interest by an individual Indian or
a tribe in trust status can be approved by the Secretary only if:
(a) The buyer already owns a fractional interest in the same parcel
of land; or
(b) The interest being acquired by the buyer is in fee status; or
(c) The buyer offers to purchase the remaining undivided trust or
restricted interests in the parcel at not less than their fair market
value; or
(d) There is a specific law which grants to the particular buyer the
right to purchase an undivided interest or interests in trust or
restricted land without offering to purchase all of such interests; or
(e) The owner of a majority of the remaining trust or restricted
interests in the parcel consent in writing to the acquisition by the
buyer.
25 CFR 151.8 Tribal consent for nonmember acquisitions.
An individual Indian or tribe may acquire land in trust status on a
reservation other than its own only when the governing body of the tribe
having jurisdiction over such reservation consents in writing to the
acquisition; provided, that such consent shall not be required if the
individual Indian or the tribe already owns an undivided trust or
restricted interest in the parcel of land to be acquired.
25 CFR 151.9 Requests for approval of acquisitions.
An individual Indian or tribe desiring to acquire land in trust
status shall file a written request for approval of such acquisition
with the Secretary. The request need not be in any special form but
shall set out the identity of the parties, a description of the land to
be acquired, and other information which would show that the acquisition
comes within the terms of this part.
25 CFR 151.10 Factors to be considered in evaluating requests.
In evaluating requests for the acquisition of land in trust status,
the Secretary shall consider the following factors:
(a) The existence of statutory authority for the acquisition and any
limitations contained in such authority;
(b) The need of the individual Indian or the tribe for additional
land;
(c) The purposes for which the land will be used;
(d) If the land is to be acquired for an individual Indian, the
amount of trust or restricted land already owned by or for that
individual and the degree to which he needs assistance in handling his
affairs;
(e) If the land to be acquired is in unrestricted fee status, the
impact on the State and its political subdivisions resulting from the
removal of the land from the tax rolls;
(f) Jurisdictional problems and potential conflicts of land use which
may arise; and
(g) If the land to be acquired is in fee status, whether the Bureau
of Indian Affairs is equipped to discharge the additional
responsibilities resulting from the acquisition of the land in trust
status.
25 CFR 151.11 Action on requests.
The Secretary shall review all requests and shall promptly notify the
applicant in writing of his decision. The Secretary may request any
additional information or justification he considers necessary to enable
him to reach a decision. If the Secretary determines that the request
should be denied, he shall advise the applicant of that fact and the
reasons therefor in writing and notify him of the right to appeal
pursuant to Part 2 of this title.
25 CFR 151.12 Title examination.
If the Secretary determines that he will approve a request for the
acquisition of land from unrestricted fee status to trust status, he
shall acquire, or require the applicant to furnish, title evidence
meeting the Standards For The Preparation of Title Evidence In Land
Acquisitions by the United States, issued by the U.S. Department of
Justice. After having the title evidence examined, the Secretary shall
notify the applicant of any liens, encumbrances, or infirmities which
may exist. The Secretary may require the elimination of any such liens,
encumbrances, or infirmities prior to taking final approval action on
the acquisition and he shall require elimination prior to such approval
if the liens, encumbrances, or infirmities make title to the land
unmarketable.
25 CFR 151.13 Formalization of acceptance.
Formal acceptance of land in trust status shall be accomplished by
the issuance or approval of an instrument of conveyance by the Secretary
as is appropriate in the circumstances.
25 CFR 151.14 Information collection.
The information collection requirements contained in 151.9 and
151.12 have been approved by the Office of Management and Budget under
44 U.S.C. 3501 et seq. and assigned clearance number 1076-0100. The
collection of information is from Indian tribes or individuals who
desire to acquire land in trust and who must identify the party(ies)
involved and a description of the land involved. The information will
be used by the Bureau to acquire the land in trust on behalf of the
Indian tribes and individuals. Response is required to obtain a
benefit.
(53 FR 21995, June 13, 1988)
25 CFR 151.14 Part 152
25 CFR 151.14 PART 152 -- ISSUANCE OF PATENTS IN FEE, CERTIFICATES OF
COMPETENCY, REMOVAL OF RESTRICTIONS, AND SALE OF CERTAIN INDIAN LANDS
Sec.
152.1 Definitions.
152.2 Withholding action on application.
152.3 Information regarding status of applications for removal of
Federal supervision over Indian lands.
152.4 Application for patent in fee.
152.5 Issuance of patent in fee.
152.6 Issuance of patents in fee to non-Indians and Indians with whom
a special relationship does not exist.
152.7 Application for certificate of competency.
152.8 Issuance of certificate of competency.
152.9 Certificates of competency to certain Osage adults.
152.10 Application for orders removing restrictions, except Five
Civilized Tribes.
152.11 Issuance of orders removing restrictions, except Five
Civilized Tribes.
152.12 Removal of restrictions, Five Civilized Tribes, after
application under authority other than section 2(a) of the Act of August
11, 1955.
152.13 Removal of restrictions, Five Civilized Tribes, after
application under section 2(a) of the Act of August 11, 1955.
152.14 Removal of restrictions, Five Civilized Tribes, without
application.
152.15 Judicial review of removal of restrictions, Five Civilized
Tribes, without application.
152.16 Effect of order removing restrictions, Five Civilized Tribes.
152.17 Sales, exchanges, and conveyances by, or with the consent of
the individual Indian owner.
152.18 Sale with the consent of natural guardian or person designated
by the Secretary.
152.19 Sale by fiduciaries.
152.20 Sale by Secretary of certain land in multiple ownership.
152.21 Sale or exchange of tribal land.
152.22 Secretarial approval necessary to convey individual-owned
trust or restricted lands or land owned by a tribe.
152.23 Applications for sale, exchange or gift.
152.24 Appraisal.
152.25 Negotiated sales, gifts and exchanges of trust or restricted
lands.
152.26 Advertisement.
152.27 Procedure of sale.
152.28 Action at close of bidding.
152.29 Rejection of bids; disapproval of sale.
152.30 Bidding by employees.
152.31 Cost of conveyance; payment.
152.32 Irrigation fee; payment.
152.33 Partition.
152.34 Approval of mortgage and deeds of trust.
152.35 Deferred payment sales.
Authority: R.S. 161; 5 U.S.C. 301. Interpret or apply sec. 7, 32
Stat. 275, 34 Stat. 1018, sec. 1, 35 Stat. 444, sec. 1 and 2, 36
Stat. 855, as amended, 856, as amended, sec. 17, 39 Stat. 127, 40
Stat. 579, 62 Stat. 236, sec. 2, 40 Stat. 606, 68 Stat. 358, 69
Stat. 666: 25 U.S.C. 378, 379, 405, 404, 372, 373, 483, 355, unless
otherwise noted.
Source: 38 FR 10080, Apr. 24, 1973, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross References: For further regulations pertaining to the sale of
irrigable lands, see parts 160, 159 and 134.4 of this chapter. For
Indian money regulations, see parts 115, 111, 116, and 112 of this
chapter. For regulations pertaining to the determination of heirs and
approval of wills, see part 15 and 11.30 through 11.32C of this
chapter.
25 CFR 152.1 Definitions.
As used in this part:
(a) ''Secretary'' means the Secretary of the Interior or his
authorized representative acting under delegated authority.
(b) ''Agency'' means an Indian agency or other field unit of the
Bureau of Indian Affairs having trust or restricted Indian land under
its immediate jurisdiction.
(c) ''Restricted land'' means land or any interest therein, the title
to which is held by an individual Indian, subject to Federal
restrictions against alienation or encumbrance.
(d) ''Trust land'' means land or any interest therein held in trust
by the United States for an individual Indian.
(e) ''Competent'' means the possession of sufficient ability,
knowledge, experience, and judgment to enable an individual to manage
his business affairs, including the administration, use, investment, and
disposition of any property turned over to him and the income or
proceeds therefrom, with such reasonable degree of prudence and wisdom
as will be apt to prevent him from losing such property or the benefits
thereof. (Act of August 11, 1955 (69 Stat. 666).)
(f) ''Tribe'' means a tribe, band, nation, community, group, or
pueblo of Indians.
25 CFR 152.2 Withholding action on application.
Action on any application, which if approved would remove Indian land
from restricted or trust status, may be withheld, if the Secretary
determines that such removal would adversely affect the best interest of
other Indians, or the tribes, until the other Indians or the tribes so
affected have had a reasonable opportunity to acquire the land from the
applicant. If action on the application is to be withheld, the
applicant shall be advised that he has the right to appeal the
withholding action pursuant to the provisions of part 2 of this chapter.
25 CFR 152.2 Issuing Patents In Fee, Certificates Of Competency Or Orders Re- moving Restrictions
25 CFR 152.3 Information regarding status of applications for removal
of Federal supervision over Indian lands.
The status of applications by Indians for patents in fee,
certificates of competency, or orders removing restrictions shall be
disclosed to employees of the Department of the Interior whose duties
require that such information be disclosed to them; to the applicant or
his attorney, upon request; and to Members of Congress who inquire on
behalf of the applicant. Such information will be available to all
other persons, upon request, 15 days after the fee patent has been
issued by the Bureau of Land Management, or 15 days after issuance of
certificate of competency or order removing restrictions, or after the
application has been rejected and the applicant notified. Where the
termination of the trust or restricted status of the land covered by the
application would adversely affect the protection and use of Indian land
remaining in trust or restricted status, the owners of the land that
would be so affected may be informed that the application has been
filed.
25 CFR 152.4 Application for patent in fee.
Any Indian 21 years of age or over may apply for a patent in fee for
his trust land. A written application shall be made in the form
approved by the Secretary and shall be completed and filed with the
agency having immediate jurisdiction over the land.
25 CFR 152.5 Issuance of patent in fee.
(a) An application may be approved and fee patent issued if the
Secretary, in his discretion, determines that the applicant is
competent. When the patent in fee is delivered, an inventory of the
estate covered thereby shall be given to the patentee. (Acts of Feb.
8, 1887 (24 Stat. 388), as amended (25 U.S.C. 349); June 25, 1910 (36
Stat. 855), as amended (25 U.S.C. 372); and May 14, 1948 (62 Stat.
236; 25 U.S.C. 483), and other authorizing acts.)
(b) If an application is denied, the applicant shall be notified in
writing, given the reasons therefor and advised of his right to appeal
pursuant to the provisions of part 2 of this chapter.
(c) White Earth Reservation: The Secretary will, pursuant to the Act
of March 1, 1907 (34 Stat. 1015), issue a patent in fee to any adult
mixed-blood Indian owning land within the White Earth Reservation in the
State of Minnesota upon application from such Indian, and without
consideration as to whether the applicant is competent.
(d) Fort Peck Reservation: Pursuant to the Act of June 30, 1954 (68
Stat. 358), oil and gas underlying certain allotments in the Fort Peck
Reservation were granted to certain Indians to be held in trust for such
Indians and provisions was made for issuance of patents in fee for such
oil and gas or patents in fee for land in certain circumstances.
(1) Where an Indian or Indians were the grantees of the entire
interest in the oil and gas underlying a parcel of land, and such Indian
or Indians had before June 30, 1954, been issued a patent or patents in
fee for any land within the Fort Peck Reservation, the title to the oil
and gas was conveyed by the act in fee simple status.
(2) Where the entire interest in the oil and gas granted by the act
is after June 30, 1954, held in trust for Indians to whom a fee patent
has been issued at any time, for any land within the Fort Peck
Reservation, or who have been or are determined by the Secretary to be
competent, the Secretary will convey, by patent, without application,
therefor, unrestricted fee simple title to the oil and gas.
(3) Where the Secretary determines that the entire interest in a
tract of land on the Fort Peck Reservation is owned by Indians who were
grantees of oil and gas under the act and he determines that such
Indians are competent, he will issue fee patents to them covering all
interests in the land without application.
25 CFR 152.6 Issuance of patents in fee to non-Indians and Indians with
whom a special relationship does not exist.
Whenever the Secretary determines that trust land, or any interest
therein, has been acquired through inheritance or devise by a
non-Indian, or by a person of Indian descent to whom the United States
owes no trust responsibility, the Secretary may issue a patent in fee
for the land or interest therein to such person without application.
25 CFR 152.7 Application for certificate of competency.
Any Indian 21 years old or over, except certain adult members of the
Osage Tribe as provided in 152.9, who holds land or an interest therein
under a restricted fee patent may apply for a certificate of competency.
The written application shall be made in the form approved by the
Secretary and filed with the agency having immediate jurisdiction over
the land.
25 CFR 152.8 Issuance of certificate of competency.
(a) An application may be approved and a certificate of competency
issued if the Secretary, in his discretion, determines that the
applicant is competent. The delivery of the certificate shall have the
effect of removing the restrictions from the land described therein.
(Act of June 25, 1910 (36 Stat. 855), as amended (25 U.S.C. 372).)
(b) If the application is denied, the applicant shall be notified in
writing, given the reasons therefor and advised of his right to appeal
pursuant to the provisions of part 2 of this chapter.
25 CFR 152.9 Certificates of competency to certain Osage adults.
Applications for certificates of competency by adult members of the
Osage Tribe of one-half or more Indian blood shall be in the form
approved by the Secretary. Upon the finding by the Secretary that an
applicant is competent, a certificate of competency may be issued
removing restrictions against alienation of all restricted property and
terminating the trust on all restricted property, except Osage headright
interests, of the applicant.
Cross-References: For regulations pertaining to the issuance of
certificates of competency to adult Osage Indians of less than one-half
Indian blood, see part 154 of this chapter.
25 CFR 152.10 Application for orders removing restrictions, except Five
Civilized Tribes.
Any Indian not under legal disability under the laws of the State
where he resides or where the land is located, or the court-appointed
guardian or conservator of any Indian, may apply for an order removing
restrictions from his restricted land or the restricted land of his
ward. The application shall be in writing setting forth reasons for
removal of restrictions and filed with the agency having immediate
jurisdiction over the lands.
25 CFR 152.11 Issuance of orders removing restrictions, except Five
Civilized Tribes.
(a) An application for an order removing restrictions may be approved
and such order issued by the Secretary, in his discretion, if he
determines that the applicant is competent or that removal of
restrictions is in the best interests of the Indian owner. The effect
of the order will be to remove the restrictions from the land described
therein.
(b) If the application is denied, the applicant will be notified in
writing, given the reasons therefor and advised of his right to appeal
pursuant to the provisions of part 2 of this chapter.
25 CFR 152.12 Removal of restrictions, Five Civilized Tribes, after
application under authority other than section 2(a) of the Act of August
11, 1955.
When an Indian of the Five Civilized Tribes makes application for
removal of restrictions from his restricted lands under authority other
than section 2(a) of the Act of August 11, 1955 (69 Stat. 666), such
application may be for either unconditional removal of restrictions or
conditional removal of restrictions, but shall not include lands or
interest in lands acquired by inheritance or devise.
(a) If the application is for unconditional removal of restrictions
and the Secretary, in his discretion, determines the applicant should
have the unrestricted control of that land described in his application,
the Secretary may issue an order removing restrictions therefrom.
(b) When the Secretary, in his discretion, finds that in the best
interest of the applicant all or part of the land described in the
application should be sold with conditions concerning terms of sale and
disposal of the proceeds, the Secretary may issue a conditional order
removing restrictions which shall be effective only and simultaneously
with the execution of a deed by said applicant upon completion of an
advertised sale or negotiated sale acceptable to the Secretary.
25 CFR 152.13 Removal of restrictions, Five Civilized Tribes, after
application under section 2(a) of the Act of August 11, 1955.
When an Indian of the Five Civilized Tribes makes application for
removal of restrictions under authority of section 2(a) of the Act of
August 11, 1955 (69 Stat. 666), the Secretary will determine the
competency of the applicant.
(a) If the Secretary determines the applicant to be competent, he
shall issue an order removing restrictions having the effect stated in
152.16.
(b) If the Secretary rejects the application, his action is not
subject to administrative appeal, notwithstanding the provisions
concerning appeals in part 2 of this chapter.
(c) If the Secretary rejects the application, or neither rejects nor
approves the application within 90 days of the application date, the
applicant may apply to the State district court in the county in which
he resides for an order removing restrictions. If that State district
court issues such order, it will have the effect stated in 152.16.
25 CFR 152.14 Removal of restrictions, Five Civilized Tribes, without
application.
Section 2(b) of the Act of August 11, 1955 (69 Stat. 666), authorizes
the Secretary to issue an order removing restrictions to an Indian of
the Five Civilized Tribes without application therefor. When the
Secretary determines an Indian to be competent, he shall notify the
Indian in writing of his intent to issue an order removing restrictions
30 days after the date of the notice. This decision may be appealed
under the provisions of part 2 of this chapter within such 30 days. All
administrative appeals under that part will postpone the issuance of the
order. When the decision is not appealed within 30 days after the date
of notice, or when any dismissal of an appeal is not appealed within the
prescribed time limit, or when the final appeal is dismissed, an order
removing restrictions will be issued.
25 CFR 152.15 Judicial review of removal of restrictions, Five
Civilized Tribes, without application.
When an order removing restrictions is issued, pursuant to 152.14, a
copy of such order will be delivered to the Indian, to any person acting
in his behalf, and to the Board of County Commissioners for the county
in which the Indian resides. At the time the order is delivered written
notice will be given the parties that under the terms of the Act of
August 11, 1955 (69 Stat. 666), the Indian or the Board of County
Commissioners has, within 6 months of the date of notification, the
right to appeal to the State district court for the district in which
the Indian resides for an order setting aside the order removing
restrictions. The timely initiation of proceedings in the State
district court will stay the effective date of the order removing
restrictions until such proceedings are concluded. If the State
district court dismisses the appeal, the order removing restrictions
will become effective 6 months after notification to the parties of such
dismissal. The effect of the issuance of such order will be as
prescribed in 152.16.
25 CFR 152.16 Effect of order removing restrictions, Five Civilized
Tribes.
An order removing restrictions issued pursuant to the Act of August
11, 1955 (69 Stat. 666), on its effective date shall serve to remove all
jurisdiction and supervision of the Bureau of Indian Affairs over money
and property held by the United States in trust for the individual
Indian or held subject to restrictions against alienation imposed by the
United States. The Secretary shall cause to be turned over to the
Indian full ownership and control of such money and property and issue
in the case of land such title document as may be appropriate:
Provided, That the Secretary may make such provisions as he deems
necessary to insure payment of money loaned to any such Indian by the
Federal Government or by an Indian tribe; And provided further, That
the interest of any lessee or permittee in any lease, contract, or
permit that is outstanding when an order removing restrictions becomes
effective shall be preserved as provided in section 2(d) of the Act of
August 11, 1955 (69 Stat. 666).
25 CFR 152.16 Sales, Exchanges And Conveyances Of Trust Or Restricted Lands
25 CFR 152.17 Sales, exchanges, and conveyances by, or with the consent
of the individual Indian owner.
Pursuant to the Acts of May 27, 1902 (32 Stat. 275; 25 U.S.C. 379);
May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70 Stat. 954;
48 U.S.C. 357); March 1, 1907 (34 Stat. 1018; 25 U.S.C. 405); May
29, 1908 (35 Stat. 444; 25 U.S.C. 404); June 25, 1910 (36 Stat. 855;
25 U.S.C. 372), as amended May 25, 1926 (44 Stat. 629; 48 U.S.C.
355a-355d); June 18, 1934 (48 Stat. 984; 25 U.S.C. 464); and May 14,
1948 (62 Stat. 236; 25 U.S.C. 483); and pursuant to other authorizing
acts, trust or restricted lands acquired by allotment, devise,
inheritance, purchase, exchange, or gift may be sold, exchanged, and
conveyed by the Indian owner with the approval of the Secretary or by
the Secretary with the consent of the Indian owner.
25 CFR 152.18 Sale with the consent of natural guardian or person
designated by the Secretary.
Pursuant to the Act of May 29, 1908 (35 Stat. 444; 25 U.S.C. 404),
the Secretary may, with the consent of the natural guardian of a minor,
sell trust or restricted land belonging to such minor; and the
Secretary may, with the consent of a person designated by him, sell
trust or restricted land belonging to Indians who are minor orphans
without a natural guardian, and Indians who are non compos mentis or
otherwise under legal disability. The authority contained in this act
is not applicable to lands in Oklahoma, Minnesota, and South Dakota, nor
to lands authorized to be sold by the Act of May 14, 1948 (62 Stat. 236;
25 U.S.C. 483).
25 CFR 152.19 Sale by fiduciaries.
Guardians, conservators, or other fiduciaries appointed by State
courts, or by tribal courts operating under approved constitutions or
law and order codes, may, upon order of the court, convey with the
approval of the Secretary or consent to the conveyance by the Secretary
of trust or restricted land belonging to their Indian wards who are
minors, non compos mentis or otherwise under legal disability. This
section is subject to the exceptions contained in 25 U.S.C. 954(b).
25 CFR 152.20 Sale by Secretary of certain land in multiple ownership.
Pursuant to the Act of June 25, 1910 (36 Stat. 855), as amended (25
U.S.C. 372), if the Secretary decides that one or more of the heirs who
have inherited trust land are incapable of managing their own affairs,
he may sell any or all interests in that land. This authority is not
applicable to lands authorized to be sold by the Act of May 14, 1948 (62
Stat. 236; 25 U.S.C. 483).
25 CFR 152.21 Sale or exchange of tribal land.
Certain tribal land may be sold or exchanged pursuant to the Acts of
February 14, 1920 (41 Stat. 415; 25 U.S.C. 294); June 18, 1934 (48
Stat. 984; 25 U.S.C. 464); August 10, 1939 (53 Stat. 1351; 25 U.S.C.
463(e)); July 1, 1948 (62 Stat. 1214); June 4, 1953 (67 Stat. 41; 25
U.S.C. 293(a)); July 28, 1955 (69 Stat. 392), as amended August 31,
1964 (78 Stat. 747; 25 U.S.C. 608-608c); June 18, 1956 (70 Stat. 290;
25 U.S.C. 403a-2); July 24, 1956 (70 Stat. 626); May 19, 1958 (72
Stat. 121; 25 U.S.C. 463, Note); September 2, 1958 (72 Stat. 1762);
April 4, 1960 (74 Stat. 13); April 29, 1960 (74 Stat. 85); December
11, 1963 (77 Stat. 349); August 11, 1964 (78 Stat. 389), and pursuant
to other authorizing acts. Except as otherwise provided by law, and as
far as practicable, the regulations in this part 152 shall be applicable
to sale or exchanges of such tribal land.
25 CFR 152.22 Secretarial approval necessary to convey individual-owned
trust or restricted lands or land owned by a tribe.
(a) Individual lands. Trust or restricted lands, except inherited
lands of the Five Civilized Tribes, or any interest therein, may not be
conveyed without the approval of the Secretary. Moreover, inducing an
Indian to execute an instrument purporting to convey any trust land or
interest therein, or the offering of any such instrument for record, is
prohibited and criminal penalties may be incurred. (See 25 U.S.C. 202
and 348.)
(b) Tribal lands. Lands held in trust by the United States for an
Indian tribe, lands owned by a tribe with Federal restrictions against
alienation and any other land owned by an Indian tribe may only be
conveyed where specific statutory authority exists and then only with
the approval of the Secretary unless the Act of Congress authorizing
sale provides that approval is unnecessary. (See 25 U.S.C. 177.)
25 CFR 152.23 Applications for sale, exchange or gift.
Applications for the sale, exchange or gift of trust or restricted
land shall be filed in the form approved by the Secretary with the
agency having immediate jurisdiction over the land. Applications may be
approved if, after careful examination of the circumstances in each
case, the transaction appears to be clearly justified in the light of
the long-range best interest of the owner or owners or as under
conditions set out in 152.25(d).
25 CFR 152.24 Appraisal.
Except as otherwise provided by the Secretary, an appraisal shall be
made indicating the fair market value prior to making or approving a
sale, exchange, or other transfer of title of trust or restricted land.
25 CFR 152.25 Negotiated sales, gifts and exchanges of trust or
restricted lands.
Those sales, exchanges, and gifts of trust or restricted lands
specifically described in the following paragraphs (a), (b), (c), and
(d) of this section may be negotiated; all other sales shall be by
advertised sale, except as may be otherwise provided by the Secretary.
(a) Consideration not less than the appraised fair market value.
Indian owners may, with the approval of the Secretary, negotiate a sale
of and sell trust or restricted land for not less than the appraised
fair market value: (1) When the sale is to the United States, States,
or political subdivisions thereof, or such other sale as may be for a
public purpose; (2) when the sale is to the tribe or another Indian;
or (3) when the Secretary determines it is impractical to advertise.
(b) Exchange at appraised fair market value. With the approval of
the Secretary, Indian owners may exchange trust or restricted land, or a
combination of such land and other things of value, for other lands or
combinations of land and other things of value. The value of the
consideration received by the Indian in the exchange must be at least
substantially equal to the appraised fair market value of the
consideration given by him.
(c) Sale to coowners. With the approval of the Secretary, Indian
owners may negotiate a sale of and sell trust or restricted land to a
coowner of that land. The consideration may be less than the appraised
fair market value, if in the opinion of the Secretary there is a special
relationship between the coowners or special circumstances exist.
(d) Gifts and conveyances for less than the appraised fair market
value. With the approval of the Secretary, Indian owners may convey
trust or restricted land, for less than the appraised fair market value
or for no consideration when the prospective grantee is the owner's
spouse, brother, sister, lineal ancestor of Indian blood or lineal
descendant, or when some other special relationship exists between the
grantor and grantee or special circumstances exist that in the opinion
of the Secretary warrant the approval of the conveyance.
25 CFR 152.26 Advertisement.
(a) Upon approval of an application for an advertised sale, notice of
the sale will be published not less than 30 days prior to the date fixed
for the sale unless for good cause a shorter period is authorized by the
Secretary.
(b) The notice of sale will include (1) terms, conditions, place,
date, hour, and methods of sale, including explanation of auction
procedure as set out in 152.27(b)(2) if applicable; (2) where and how
bids shall be submitted; (3) a statement warning all bidders against
violation of 18 U.S.C. 1860 prohibiting unlawful combination or
intimidation of bidders or potential bidders; and (4) description of
tracts, all reservations to which title will be subject and any
restrictions and encumbrances of record with the Bureau of Indian
Affairs and any other information that may improve sale prospects.
25 CFR 152.27 Procedure of sale.
Advertised sales shall be by sealed bids except as otherwise provided
herein.
(a)(1) Bids, conforming to the requirements set out in the
advertisement of sale, along with a certified check, cashier's check,
money order, or U.S. Treasury check, payable to the Bureau of Indian
Affairs, for not less than 10 percent of the amount of the bid, must be
enclosed in a sealed envelope marked as prescribed in the notice of
sale. A cash deposit may be submitted in lieu of the above-specified
negotiable instruments at the bidder's risk. Tribes submitting bids
pursuant to this paragraph may guarantee the required 10 percent deposit
by an appropriate resolution; (2) the sealed envelopes containing the
bids will be publicly opened at the time fixed for sale. The bids will
be announced and will be appropriately recorded.
(b) The policy of the Secretary recognizes that in many instances a
tribe or a member thereof has a valid interest in acquiring trust or
restricted lands offered for sale.
(1) With the consent of the owner and when the notice of sale so
states, the tribe or members of such tribe shall have the right to meet
the high bid.
(2) Provided the tribe is not the high bidder and when one or more
acceptable sealed bids are received and when so stated in the notice of
sale, an oral auction may be held following the bid opening. Bidding in
the auction will be limited to the tribe, and to those who submitted
sealed bids at 75 percent or more of the appraised value of the land
being auctioned. At the conclusion of the auction the highest bidder
must increase his deposit to not less than 10 percent of his auction
bid.
25 CFR 152.28 Action at close of bidding.
(a) The officer in charge of the sale shall publicly announce the
apparent highest acceptable bid. The deposits submitted by the
unsuccessful bidders shall be returned immediately. The deposit
submitted by the apparent successful bidder shall be held in a special
account.
(b) If the highest bid received at an advertised sale is less than
the appraised fair market value of the land, the Secretary with the
consent of the owner may accept that bid if the amount bid approximates
said appraised fair market value and in the Secretary's judgment is the
highest price that may be realized in the circumstances.
(c) The Secretary shall award the bid and notify the apparent
successful bidder that the remainder of the purchase price must be
submitted within 30 days.
(1) Upon a showing of cause the Secretary may, in his discretion,
extend the time of payment of the balance due.
(2) If the remainder of the purchase price is not paid within the
time allowed, the bid will be rejected and the apparent successful
bidder's 10 percent deposit will be forfeited to the landowner's use.
(d) The issuance of the patent or delivery of a deed to the purchaser
will not be authorized until the balance of the purchase price has been
paid, except that the fee patent may be ordered in cases where the
purchaser is obtaining a loan from an agency of the Federal Government
and such agency has given the Secretary a commitment that the balance of
the purchase price will be paid when the fee patent is issued.
25 CFR 152.29 Rejection of bids; disapproval of sale.
The Secretary reserves the right to reject any and all bids before
the award, after the award, or at any time prior to the issuance of a
patent or delivery of a deed, when he shall have determined such
rejection to be in the best interests of the Indian owner.
25 CFR 152.30 Bidding by employees.
Except as authorized by the provisions of part 140 of this chapter,
no person employed in Indian Affairs shall directly or indirectly bid,
make, or prepare any bid, or assist any bidder in preparing his bid.
Sales between Indians, either of whom is an employee of the U.S.
Government, are governed by the provisions of part 140 of this chapter
(see 25 U.S.C. 68 and 441).
25 CFR 152.31 Cost of conveyance; payment.
Pursuant to the Act of February 14, 1920 (41 Stat. 415), as amended
by the Act of March 1, 1933 (47 Stat. 1417; 25 U.S.C. 413), the
Secretary may in his discretion collect from a purchaser reasonable fees
for work performed or expense incurred in the transaction. The amount
so collected shall be deposited to the credit of the United States as
general fund receipts, except as stated in paragraph (b) of this
section.
(a)(1) The amount of the fee shall be $22.50 for each transaction.
(2) The fee may be reduced to a lesser amount or may be waived, if
the Secretary determines circumstances justify such action.
(b)(1) If any or all of the costs of the work performed or expenses
incurred are paid with tribal funds, an alternate schedule of fees may
be established, subject to approval of the Secretary, and that part of
such fees deemed appropriate may be credited to the tribe.
(2) When the purchaser is the tribe which bears all or any part of
such costs, the collection of the proportionate share from the tribe may
be waived.
25 CFR 152.32 Irrigation fee; payment.
Collection of all construction costs against any Indian-owned lands
within Indian irrigation projects is deferred as long as Indian title
has not been extinguished. (Act of July 1, 1932 (47 Stat. 564; 25
U.S.C. 386a).) This statute is interpreted to apply only where such land
is owned by Indians either in trust or restricted status.
(a) When any person whether Indian or non-Indian acquires Indian
lands in a fee simple status that are part of an Indian irrigation
project he must enter into an agreement, (1) to pay the pro rata share
of the construction of the project chargeable to the land, (2) to pay
all construction costs that accrue in the future, and (3) to pay all
future charges assessable to the land which are based on the annual cost
of operation and maintenance of the irrigation system.
(b) Any operation and maintenance charges that are delinquent when
Indian land is sold will be deducted from the proceeds of sale unless
other acceptable arrangements are made to provide for their payment
prior to the approval of the sale.
(c) A lien clause covering all unpaid irrigation construction costs,
past and future, will be inserted in the patent or other instrument of
conveyance issued to all purchasers of restricted or trust lands that
are under an Indian irrigation project.
Cross-Reference: See part 159 and part 160 and cross-references
thereunder in this chapter for further regulations regarding sale of
irrigable lands.
25 CFR 152.32 Partitions In Kind Of Inherited Allotments
25 CFR 152.33 Partition.
(a) Partition without application. If the Secretary of the Interior
shall find that any inherited trust allotment or allotments (as
distinguished from lands held in a restricted fee status or authorized
to be sold under the Act of May 14, 1948 (62 Stat. 236; 25 U.S.C.
483)), are capable of partition in kind to the advantage of the heirs,
he may cause such lands to be partitioned among them, regardless of
their competency, patents in fee to be issued to the competent heirs for
their shares and trust patents to be issued to the incompetent heirs for
the lands respectively or jointly set apart to them, the trust period to
terminate in accordance with the terms of the original patent or order
of extension of the trust period set out in said patent. (Act of May
18, 1916 (39 Stat. 127; 25 U.S.C. 378).) The authority contained in the
Act of May 18, 1916, is not applicable to lands authorized to be sold by
the Act of May 14, 1948, nor to land held in restricted fee status.
(b) Application for partition. Heirs of a deceased allottee may make
written application, in the form approved by the Secretary, for
partition of their trust or restricted land. If the Secretary finds the
trust lands susceptible of partition, he may issue new patents or deeds
to the heirs for the portions set aside to them. If the allotment is
held under a restricted fee title (as distinguished from a trust title),
partition may be accomplished by the heirs executing deeds approved by
the Secretary, to the other heirs for their respective portions.
25 CFR 152.33 Mortgages and Deeds of Trust to Secure Loans to Indians
25 CFR 152.34 Approval of mortgages and deeds of trust.
Any individual Indian owner of trust or restricted lands, may with
the approval of the Secretary execute a mortgage or deed of trust to his
land. Prior to approval of such mortgage or deed of trust, the
Secretary shall secure appraisal information as he deems advisable.
Such lands shall be subject to foreclosure or sale pursuant to the terms
of the mortgage or deed of trust in accordance with the laws of the
State in which the lands are located. For the purpose of foreclosure or
sale proceedings under this section, the Indian owners shall be regarded
as vested with unrestricted fee simple title to the lands (Act of March
29, 1956.
(70 Stat. 62; 25 U.S.C. 483a)
25 CFR 152.35 Deferred payment sales.
When the Indian owner and purchaser desire, a sale may be made or
approved on the deferred payment plan. The terms of the sale will be
incorporated in a memorandum of sale which shall constitute a contract
for delivery of title upon payment in full of the amount of the agreed
consideration. The deed executed by the grantor or grantors will be
held by the Superintendent and will be delivered only upon full
compliance with the terms of sale. If conveyance of title is to be made
by fee patent, request therefor will be made only upon full compliance
with the terms of the sale. The terms of the sale shall require that
the purchaser pay not less than 10 percent of the purchase price in
advance as required by the Act of June 25, 1910 (36 Stat. 855), as
amended (25 U.S.C. 372); terms for the payment of the remaining
installments plus interest shall be those acceptable to the Secretary
and the Indian owner. If the purchaser on any deferred payment plan
makes default in the first or subsequent payments, all payments,
including interest, previously made will be forfeited to the Indian
owner.
25 CFR 152.35 PART 153 -- DETERMINATION OF COMPETENCY: CROW INDIANS
Sec.
153.1 Purpose of regulations.
153.2 Application and examination.
153.3 Application form.
153.4 Factors determining competency.
153.5 Children of competent Indians.
153.6 Appeals.
Authority: Sec. 12, 41 Stat. 755, 46 Stat. 1495, as amended.
Source: 22 FR 10563, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 153.1 Purpose of regulations.
The regulations in this part govern the procedures in determining the
competency of Crow Indians under Public Law 303, 81st Congress, approved
September 8, 1949.
25 CFR 153.2 Application and examination.
The Commissioner of Indian Affairs or his duly authorized
representative, upon the application of any unenrolled adult member of
the Crow Tribe, shall classify him by placing his name to the competent
or incompetent rolls established pursuant to the act of June 4, 1920 (41
Stat. 751), and upon application shall determine whether those persons
whose names now or hereafter appear on the incompetent roll shall be
reclassified as competent and their names placed on the competent roll.
25 CFR 153.3 Application form.
The application form shall include, among other things: (a) The name
of the applicant; (b) his age, residence, degree of Indian blood, and
education; (c) his experience in farming, cattle raising, business, or
other occupation (including home-making); (d) his present occupation,
if any; (e) a statement concerning the applicant's financial status,
including his average earned and unearned income for the last two years
from restricted leases and from other sources, and his outstanding
indebtedness to the United States, to the tribe, or to others; (f) a
description of his property and its value, including his allotted and
inherited lands; and (g) the name of the applicant's spouse, if any,
and the names of his minor children, if any, and their ages, together
with a statement regarding the land, allotted and inherited, held by
each.
25 CFR 153.4 Factors determining competency.
Among the matters to be considered by the Commissioner of Indian
Affairs in determining competency are the amount of the applicant's
indebtedness to the tribe, to the United States Government, and to
others; whether he is a public charge or a charge on friends and
relatives, or will become such a charge, by reason of being classed as
competent; and whether the applicant has demonstrated that he possesses
the ability to take care of himself and his property, to protect the
interests of himself and his family, to lease his land and collect the
rentals therefrom, to lease the land of his minor children, to prescribe
in lease agreements those provisions which will protect the land from
deterioration through over-grazing and other improper practices, and to
assume full responsibility for obtaining compliance with the terms of
any lease.
25 CFR 153.5 Children of competent Indians.
Children of competent Indians who have attained or upon attaining
their majority shall automatically become competent except any such
Indian who is declared incompetent by a court of competent jurisdiction
or who is incompetent under the laws of the State within which he
resides.
25 CFR 153.6 Appeals.
An appeal to the Secretary of the Interior may be made within 30 days
from the date of notice to the applicant of the decision of the
Commissioner of Indian Affairs.
25 CFR 153.6 PART 154 -- OSAGE ROLL, CERTIFICATE OF COMPETENCY
Sec.
154.1 Definitions.
154.2 Preparation of competency roll.
154.3 Determination of age and quantum of Indian blood.
154.4 Notification; disagreement and decision.
154.5 Issuance of certificate of competency.
154.6 Costs of recording certificates of competency.
154.7 Delivery of cash and securities.
Authority: 62 Stat. 18; 25 U.S.C. 331 note.
Source: 22 FR 10563, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 154.1 Definitions.
When used in the regulations in this part the following words or
terms shall have the meaning shown below:
(a) ''Secretary'' means the Secretary of the Interior.
(b) ''Commissioner'' means the Commissioner of Indian Affairs.
(c) ''Superintendent'' means the superintendent of the Osage Agency.
(d) ''Person'' means an unallotted member of the Osage Tribe of less
than one-half Indian blood who has not received a certificate of
competency.
25 CFR 154.2 Preparation of competency roll.
The superintendent shall cause a roll to be compiled of all persons
who have attained the age of 21 years, and shall add thereto the names
of minors as they attain the age of 21 years. The roll shall include
the names, last known address, date of birth, and the total quantum of
Osage blood and non-Osage Indian blood of each person listed thereon.
25 CFR 154.3 Determination of age and quantum of Indian blood.
(a) The date of birth as shown by the census records of the Osage
Agency shall be accepted as prima facie evidence in determining the age
of a person.
(b) The total quantum of Indian blood of a person shall be computed
and determined as follows:
(1) When the parents of a person are enrolled members, or when one
parent is an enrolled member and the other parent is a descendant of an
enrolled member, or when both parents are descendants of enrolled
members, or when one parent is an enrolled member of descendant of an
enrolled member of the Osage Tribe, and the other parent is of
non-Indian blood, the Osage Agency register of Indian families for the
year ending December 31, 1901, shall be accepted as prima facie evidence
of the quantum of Indian blood.
(2) When one parent of a person is an enrolled member, or the
descendant of an enrolled member of the Osage Tribe, and the other
parent is of non-Osage blood, the Osage Agency register of Indian
families for the year ending December 31, 1901 shall be accepted as
prima facie evidence in determining the quantum of Osage Indian blood.
(3) When one parent of a person is of non-Osage Indian blood, the
certification of the superintendent or other officer in charge of the
Indian Agency having jurisdiction over the affairs of the tribe of which
the non-Osage Indian parent is a member or descendant of a member, as to
such parent's quantum of Indian blood, shall be accepted as prima facie
evidence in determining the quantum of non-Osage Indian blood.
(4) When the non-Osage parent of a person is alleged to be of Indian
blood, and the superintendent or other officer in charge of the Indian
agency having jurisdiction over the affairs of the tribe of which such
parent is an alleged member or descendant of a member thereof, is unable
to certify as to the quantum of Indian blood of such parent, affidavits
as to such parent's quantum of Indian blood, when properly executed by
two qualified individuals, may be accepted.
25 CFR 154.4 Notification; disagreement and decision.
When the superintendent shall have determined that a person, 21 years
or over, is of less than one-half Indian blood, he shall notify such
person of his finding and inform him that if objection is not received
within 20 days from the date of notification, a certificate of
competency will be issued. If the person claims to be of one-half or
more Indian blood and that a certificate of competency should not be
issued, he should submit to the superintendent two affidavits or other
evidence in support of his claim. The claim, affidavits or other
evidence of the person as to his quantum of blood shall be submitted to
the Commissioner of Indian Affairs for a ruling before the certificate
of competency is issued.
25 CFR 154.5 Issuance of certificate of competency.
A certificate of competency shall be issued by the superintendent on
Form 5-182 /1/ to each person heretofore or hereafter attaining the age
of 21 years and who has been determined to be of less than one-half
Indian blood. Such certificate shall be recorded with the county clerk
of Osage County, Oklahoma, before delivering the same to the person
entitled thereto.
/1/ Filed with the original document. Copies may be obtained upon
request at the Bureau of Indian Affairs, Department of the Interior,
Washington, D.C.
25 CFR 154.6 Costs of recording certificates of competency.
The superintendent may expend the surplus funds of a person to make
direct payments of the cost of recording a certificate of competency.
If the person to whom a certificate of competency is issued has no
surplus funds, the cost of recording the same shall be paid from Osage
tribal funds.
25 CFR 154.7 Delivery of cash and securities.
After issuance and recordation of a certificate of competency as
authorized by the regulations in this part, the superintendent shall
deliver to the individual named therein, or the legal guardian thereof,
the original copy of the certificate of competency, together with all
cash, stocks and bonds credited to the account of such individual upon
the books of the Osage Agency, and obtain a receipt therefor.
25 CFR 154.7 PART 156 -- REALLOTMENT OF LANDS TO UNALLOTTED INDIAN
CHILDREN /2/
Sec.
156.1 Relinquishment of original patent.
156.2 Relinquishment when original patent has been lost or destroyed.
Authority: Sec. 3, 36 Stat. 856; 25 U.S.C. 408.
Cross References: For Bureau of Land Management regulations
pertaining to allotments to Indians and Eskimos, see 43 CFR Parts 2530
and 2560. For Bureau of Land Management regulations pertaining to
restored and ceded Indian lands, see 43 CFR Part 1400.
/2/ The reallotment provisions herein dealt with are not applicable
on reservations subject to the Indian Reorganization Act of June 18,
1934 (48 Stat. 984, as amended; 25 U.S.C. 461-479).
25 CFR 156.1 Relinquishment of original patent.
To effect a reallotment under section 3 of the Act of June 25, 1910
(36 Stat. 856; 25 U.S.C. 408), the Indian owner shall endorse on the
original patent a relinquishment of all lands described therein and
explain the purpose of the relinquishment. The relinquishment shall
name the child or children to be reallotted and follow with descriptions
by legal subdivisions of the land. If a part of the allotment is being
retained by the Indian owner, the relinquishment and application for
reallotment may describe only the tract to be reallotted. The
relinquishment must be signed by the original allottee or owner of the
land involved and be acknowledged before a superintendent of an Indian
agency or an officer authorized to administer oaths. The signatures of
those who cannot write must be by thumb mark and be witnessed.
(22 FR 10564, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 156.2 Relinquishment when original patent has been lost or
destroyed.
When the original patent has been lost or destroyed, the
relinquishment and application for reallotment may be submitted in the
form of a letter, which must be accompanied by an affidavit showing the
loss or destruction of the original patent. If no patent has been
issued, that fact should be set out in the letter.
(22 FR 10564, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 156.2 PART 158 -- OSAGE LANDS
Sec.
158.51 Definitions.
158.52 Application for change in designation of homestead.
158.53 Order to change designation of homestead.
158.54 Exchanges of restrictive lands.
158.55 Institution of partition proceedings.
158.56 Partition records.
158.57 Approval of deeds or other instruments vesting title on
partition and payment of costs.
158.58 Disposition of proceeds of partition sales.
Authority: 5 U.S.C. 301. Interpret or apply 62 Stat. 18; 25 U.S.C.
331 note.
Source: 22 FR 10565, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 158.51 Definitions.
When used in this part:
(a) ''Homestead'' means the restricted nontaxable lands, not
exceeding 160 acres, allotted to an enrolled member of the Osage Tribe
pursuant to the act of June 28, 1906 (34 Stat. 539), or the restricted
surplus lands designated in lieu thereof pursuant to the act of May 25,
1918 (40 Stat. 578).
(b) ''Surplus land'' means those restricted lands, other than the
homestead, allotted to an enrolled member of the Osage Tribe pursuant to
the act of June 28, 1906 (34 Stat. 539).
25 CFR 158.52 Application for change in designation of homestead.
Any Osage allottee or the legal guardian thereof may make application
to change his homestead for an equal area of his surplus land. The
application shall give in detail the reasons why such change is desired
and shall be submitted to the Osage Indian Agency on the form
''Application to Change Designation of Homestead.''
25 CFR 158.53 Order to change designation of homestead.
The application of an Osage allottee, or his legal guardian, may be
approved by the Secretary of the Interior, or his authorized
representative, and an order issued to change designation of homestead,
if it is found that the applicant owns an equal area of surplus land.
The expense of recording the order shall be borne by the applicant. The
order to change designation shall be made on the form ''Order to Change
Designation of Homestead.''
25 CFR 158.54 Exchanges of restrictive lands.
Upon written application of the Indians involved, the exchange of
restricted lands between adult Indians, and between adult Indians and
non-Indians, may be approved by the Secretary of the Interior, or his
authorized representative. Title to all lands acquired under this part
by an Indian who does not have a certificate of competency shall be
taken by deed containing a clause restricting alienation or encumbrance
without the consent of the Secretary, or his authorized representative.
In case of differences in the appraised value of lands under
consideration for exchange, the application of an Indian for funds to
equalize such differences may be approved to the extent authorized by
117.8 of this chapter.
25 CFR 158.55 Institution of partition proceedings.
(a) Prior authorization should be obtained from the Secretary, or his
authorized representative, before the institution of proceedings to
partition the lands of deceased Osage allottees in which any interest is
held by an Osage Indian not having a certificate of competency.
Requests for authority to institute such partition proceedings shall
contain a description of the lands involved, the names of the several
owners and their respective interests and the reasons for such court
action. Authorization may be given for the institution of partition
proceedings in a court of competent jurisdiction when it appears to the
best interest of the Indians involved to do so and the execution of
voluntary exchange deeds is impracticable.
(b) When it appears to the best interest of the Indians to do so, the
Secretary's, or his authorized representative's, authorization to
institute partition proceedings may require that title to the lands be
quieted in the partition action in order that the deeds issued pursuant
to the proceedings shall convey good and merchantable title to the
grantee therein. (See section 6, 37 Stat. 87.)
25 CFR 158.56 Partition records.
Upon completion of an action in partition, a copy of the judgment
roll showing schedule of costs and owelty moneys having accrued to or
from the several parties, together with deeds, or other instruments
vesting title on partition, in triplicate, shall be furnished to the
Osage Agency. The original allotment number shall follow the legal
description on all instruments vesting title. When a grantee is a
member of the Osage Tribe who has not received a certificate of
competency, deeds or other instruments vesting title shall contain the
following clause against alienation:
Subject to the condition that while title to the above-described
lands shall remain in the grantee or his Osage Indian heirs or devisees
who do not have certificates of competency, the same shall not be
alienated or encumbered without approval of the Secretary of the
Interior or his authorized representative.
25 CFR 158.57 Approval of deeds or other instruments vesting title on
partition and payment of costs.
Upon completion of the partition proceedings in accordance with the
law and in conformity with the regulations in this part, the Secretary,
or his authorized representative, may approve the deeds, or other
instruments vesting title on partition, and may disburse from the
restricted (accounts) funds of the Indians concerned, such amounts as
may be necessary for payment of their share of court costs, attorney
fees, and owelty moneys.
25 CFR 158.58 Disposition of proceeds of partition sales.
Owelty moneys due members of the Osage Tribe who do not have
certificates of competency shall be paid into the Treasury of the United
States and placed to the credit of the Indians upon the same conditions
as attach to segregated shares of the Osage national fund.
25 CFR 158.58 PART 159 -- SALE OF IRRIGABLE LANDS, SPECIAL WATER
CONTRACT REQUIREMENTS
Cross References: For additional regulations pertaining to the
payment of fees and charges in connection with the sale of irrigable
lands, see part 160 and 134.4 and 152.21 of this chapter. For general
regulations pertaining to the issuance of patents in fee, see part 152
of this chapter.
25 CFR 159.1 Conditions of contract.
(a) The form of contract (Form 5-462b)1019 for sale of irrigable
lands specifically provides that the purchaser will obligate and pay on
a per acre basis all irrigation charges assessed or to be assessed
against the land purchased including accrued assessment, which accrued
assessment shall be paid prior to the approval of the sale, and for the
payment of the construction and operation and maintenance assessments on
the due dates of each year. The agreement is to be acknowledged and
recorded in the county records in which county the land is situated.
The charges incidental to the recording of the instrument shall be paid
by the purchaser at the time of executing the agreement.
(b) A strict compliance with the terms of paragraph (a) of this
section is absolutely necessary and required.
(Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C. 385.
Interprets or applies sec. 1, 41 Stat. 409; 25 U.S.C. 386)
(22 FR 10566, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
Note: On May 12, 1921, Circular No. 1677, re sale of irrigable
lands, was addressed to all superintendents. It was pointed out therein
that the collection of irrigation construction charges was required by
the terms of an act approved February 14, 1920 (41 Stat. 409; 25
U.S.C. 386), and that in addition to the construction charge there was
an operation and maintenance charge assessable annually that must be
paid by the landowners benefited; furthermore, that the purpose of this
circular was to point out to the superintendents the necessity of
advising prospective purchasers that irrigation charges must be paid and
that a so-called paid-up water right was not conveyed with the land. A
form of agreement to be executed by the prospective purchaser
accompanied this circular.
It has been brought to the attention of the Bureau that irrigation
construction charges and operation and maintenance charges have accrued
against irrigable allotments prior to the time of their being advertised
for sale and that the superintendents have failed to provide for payment
of the accrued irrigation charges, with the result that no means are
apparent for their collection.
With a view of preventing any future misunderstanding the form of
contract accompanying Circular No. 1677 has been redrafted and Form
5-462b assigned to it. The circular has been designated ''No. 1677a.''
0191Forms may be obtained from the Commissioner of Indian Affairs,
Washington, D.C.
25 CFR 159.1 PART 160 -- INCLUSION OF LIENS IN ALL PATENTS AND
INSTRUMENTS EXECUTED
Sec.
160.1 Liens.
160.2 Instructions.
160.3 Leases to include description of lands.
160.4 Prompt payment of irrigation charges by lessees.
Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C.
385.
Source: 22 FR 10566, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 160.1 Liens.
The act of March 7, 1928 (45 Stat. 210; 25 U.S.C. 387) creates a
first lien against irrigable lands under all Indian irrigation projects
where the construction, operation and maintenance costs of such projects
remain unpaid and are reimbursable, and directs that such lien shall be
recited in any patent or instrument issued for such lands to cover such
unpaid charges. Prior to the enactment of this legislation similar
liens had been created by legislative authority against irrigable lands
of the projects on the Fort Yuma, Colorado River, and Gila River
Reservations, in Arizona; Blackfeet, Fort Peck, Flathead, Fort Belknap,
and Crow Reservations, Mont.; Wapato project, Yakima Reservation, Wash.;
the irrigable lands on the Colville Reservation within the West Okanogan
irrigation district, Washington, and the Fort Hall Reservation, Idaho.
This legislation, therefore, extends protection similar to that existing
in the legislation applicable to the projects on the reservations above
mentioned.
Cross References: For operation and maintenance charges and
construction costs, see parts 174, 134, and 137 of this chapter.
25 CFR 160.2 Instructions.
All superintendents and other officers are directed to familiarize
themselves with this provision of law, and in all cases involving the
issuance of patents or deeds direct to the Indian or purchaser of Indian
allotments embracing irrigable lands, they will recite in the papers
forwarded to the Department for action the fact that the lands involved
are within an irrigation project (giving the name) and accordingly are
subject to the provisions of this law. This requirement will be in
addition to the existing regulations requiring the superintendents in
case of sales of irrigable lands to obtain from the project engineer a
written statement relative to the irrigability of the lands to be sold,
and whether or not there are any unpaid irrigation charges, together
with the estimated per acre construction cost assessable against the
land involved in the sale. Each sale will also be accompanied by
contract executed in accordance with regulations obligating the
purchaser to pay the accrued charges, namely, construction, operation,
and maintenance, prior to the approval of the sale and to assume and pay
the unassessed irrigation charges in accordance with regulations
promulgated by the Secretary of the Interior.
Cross References: For additional regulations pertaining to the
payment of fees and charges in connection with the sale of irrigable
lands, see part 159 and 134.4 and 152.21 of this chapter.
25 CFR 160.3 Leases to include description of lands.
It is important, also, for superintendents in leasing irrigable lands
to present to the project engineer lists containing descriptions of the
lands involved for his approval of the irrigable acreage and for
checking as to whether or not such lands are in fact irrigable under
existing works. Strict compliance with this section is required for the
purpose of avoiding error.
25 CFR 160.4 Prompt payment of irrigation charges by lessees.
Superintendents will also see that irrigation charges are promptly
paid by lessees, and where such charges are not so paid take appropriate
and prompt action for their collection. Such unpaid charges are a lien
against the land, and accordingly any failure on the part of the
superintendents to collect same increases the obligation against the
land.
25 CFR 160.4 PART 162 -- LEASING AND PERMITTING
Sec.
162.1 Definitions.
162.2 Grants of leases by Secretary.
162.3 Grants of leases by owners or their representatives.
162.4 Use of land of minors.
162.5 Special requirements and provisions.
162.6 Negotiation of leases.
162.7 Advertisement.
162.8 Duration of leases.
162.9 Ownership of improvements.
162.10 Unitization for leasing.
162.11 Conservation and land use requirement.
162.12 Subleases and assignments.
162.13 Payment of fees and drainage and irrigation charges.
162.14 Violation of lease.
162.15 Crow Reservation.
162.16 Fort Belknap Reservation.
162.17 Cabazon, Augustine, and Torres-Martinez Reservations,
California.
162.18 Colorado River Reservation.
162.19 Grazing units excepted.
162.20 San Xavier and Salt River Pima-Maricopa Reservations.
Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9.
Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs.
1, 2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015,
1034, 35 Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat.
128, 41 Stat. 415, as amended, 751, 1232, sec. 17, 43 Stat. 636, 641,
44 Stat. 658, as amended, 894, 1365, as amended, 47 Stat. 1417, sec.
17, 48 Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49 Stat. 781,
sec. 3, 49 Stat. 1967, 54 Stat. 745, 1057, 60 Stat. 308, secs. 1,
2, 60 Stat. 962, sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat.
470, 69 Stat. 539, 540, 72 Stat. 968; 25 U.S.C. 380, 393, 393a, 394,
395, 397, 402, 402a, 403, 403a, 403b, 403c, 413, 415, 415a, 415b, 415c,
415d, 477, 635.
Source: 26 FR 10966, Nov. 23, 1961, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 162.1 Definitions.
As used in this part:
(a) ''Secretary'' means the Secretary of the Interior or his
authorized representative acting under delegated authority.
(b) ''Individually owned land'' means land or any interest therein
held in trust by the United States for the benefit of individual Indians
and land or any interest therein held by individual Indians subject to
Federal restrictions against alienation or encumbrance.
(c) ''Tribal land'' means land or any interest therein held by the
United States in trust for a tribe, band, community, group or pueblo of
Indians, and land that is held by a tribe, band, community, group or
pueblo of Indians subject to Federal restrictions against alienation or
encumbrance, and includes such land reserved for Indian Bureau
administrative purposes when it is not immediately needed for such
purposes. The term also includes lands held by the United States in
trust for an Indian corporation chartered under section 17 of the Act of
June 18, 1934 (48 Stat. 984; 25 U.S.C. 476). This term also includes
assignments of tribal land. Unless the terms of the assignment provide
for the leasing of the land by the holder of the assignment, the tribe
must join with the assignee in the grant of a lease.
(d) ''Government land'' means land, other than tribal land, acquired
or reserved by the United States for Indian Bureau administrative
purposes which are not immediately needed for the purposes for which
they were acquired or reserved and land transferred to or placed under
the jurisdiction of the Bureau of Indian Affairs.
(e) ''Permit'' means a privilege revocable at will in the discretion
of the Secretary and not assignable, to enter on and use a specified
tract of land for a specified purpose. The terms ''lease'', ''lessor'',
and ''lessee'', when used in this part include, when applicable,
''permit'', ''permitter'', and ''permittee'', respectively.
25 CFR 162.2 Grants of leases by Secretary.
(a) The Secretary may grant leases on individually owned land on
behalf of: (1) Persons who are non compos mentis; (2) orphaned minors;
(3) the undetermined heirs of a decedent's estate; (4) the heirs or
devisees to individually owned land who have not been able to agree upon
a lease during the three-month period immediately following the date on
which a lease may be entered into; provided, that the land is not in
use by any of the heirs or devisees; and (5) Indians who have given the
Secretary written authority to execute leases on their behalf.
(b) The Secretary may grant leases on the individually owned land of
an adult Indian whose whereabouts is unknown, on such terms as are
necessary to protect and preserve such property.
(c) The Secretary may grant permits on Government land.
25 CFR 162.3 Grants of leases by owners or their representatives.
The following may grant leases: (1) Adults, other than those non
compos mentis, (2) adults other than those non compos mentis, on behalf
of their minor children, and on behalf of minor children to whom they
stand in loco parentis when such children do not have a legal
representative, (3) the guardian, conservator or other fiduciary,
appointed by a state court or by a tribal court operating under an
approved constitution or law and order code, of a minor or persons who
are non compos mentis or are otherwise under legal disability, (4)
tribes or tribal corporations acting through their appropriate
officials.
25 CFR 162.4 Use of land of minors.
The natural or legal guardian, or other person standing in loco
parentis of minor children who have the care and custody of such
children may use the individually owned land of such children during the
period of minority without charge for the use of the land if such use
will enable such person to engage in a business or other enterprise
which will be beneficial to such minor children.
25 CFR 162.5 Special requirements and provisions.
(a) All leases made pursuant to the regulations in this part shall be
in the form approved by the Secretary and subject to his written
approval.
(b) Except as otherwise provided in this part no lease shall be
approved or granted at less than the present fair annual rental.
(1) An adult Indian owner of trust or restricted land may lease his
land for religious, educational, recreational or other public purposes
to religious organizations or to agencies of the Federal, State or local
government at a nominal rental. Such adult Indian may lease land to
members of his immediate family with or without rental consideration.
For purposes of this section, ''immediate family'' is defined as the
Indian's spouse, brothers, sisters, lineal ancestors, or descendants.
(2) In the discretion of the Secretary, tribal land may be leased at
a nominal rental for religious, educational, recreational, or other
public purposes to religious organizations or to agencies of Federal,
State, or local governments; for purposes of subsidization for the
benefit of the tribe; and for homesite purposes to tribal members
provided the land is not commercial or industrial in character.
(3) Leases may be granted or approved by the Secretary at less than
the fair annual rental when in his judgment such action would be in the
best interest of the landowners.
(c) Unless otherwise provided by the Secretary a satisfactory surety
bond will be required in an amount that will reasonably assure
performance of the contractual obligations under the lease. Such bond
may be for the purpose of guaranteeing:
(1) Not less than one year's rental unless the lease contract
provides that the annual rental shall be paid in advance.
(2) The estimated construction cost of any improvement to be placed
on the land by the lessee.
(3) An amount estimated to be adequate to insure compliance with any
additional contractual obligations.
(d) The lessee may be required to provide insurance in an amount
adequate to protect any improvements on the leased premises; the lessee
may also be required to furnish appropriate liability insurance, and
such other insurance as may be necessary to protect the lessor's
interest.
(e) No lease shall provide the lessee a preference right to future
leases nor shall any lease contain provisions for renewal, except as
otherwise provided in this part. No lease shall be entered into more
than 12 months prior to the commencement of the term of the lease.
Except with the approval of the Secretary no lease shall provide for
payment of rent in advance of the beginning of the annual use period for
which such rent is paid. The lease contract shall contain provisions as
to the dates rents shall become due and payable.
(f) Leases granted or approved under this part shall contain
provisions as to whether payment of rentals is to be made direct to the
owner of the land or his representative or to the official of the Bureau
of Indian Affairs having jurisdiction over the leased premises.
(g) All leases issued under this part shall contain the following
provisions:
(1) While the leased premises are in trust or restricted status, all
of the lessee's obligations under this lease, and the obligations of his
sureties, are to the United States as well as to the owner of the land.
(2) Nothing contained in this lease shall operate to delay or prevent
a termination of Federal trust responsibilities with respect to the land
by the issuance of a fee patent or otherwise during the term of the
lease; however, such termination shall not serve to abrogate the lease.
The owners of the land and the lessee and his surety or sureties shall
be notified of any such change in the status of the land.
(3) The lessee agrees that he will not use or cause to be used any
part of the leased premises for any unlawful conduct or purpose.
(h) Leases granted or approved under this part on individually owned
lands which provide for payment of rental direct to the owner or his
representative shall contain the following provisions:
(1) In the event of the death of the owner during the term of this
lease and while the leased premises are in trust or restricted status,
all rentals remaining due or payable to the decedent or his
representative under the provisions of the lease shall be paid to the
official of the Bureau of Indian Affairs having jurisdiction over the
leased premises.
(2) While the leased premises are in trust or restricted status, the
Secretary may in his discretion suspend the direct rental payment
provisions of this lease in which event the rentals shall be paid to the
official of the Bureau of Indian Affairs having jurisdiction over the
leased premises.
25 CFR 162.6 Negotiation of leases.
(a) Leases of individually owned land or tribal land may be
negotiated by those owners or their representatives who may execute
leases pursuant to 162.3.
(b) Where the owners of a majority interest, or their
representatives, who may grant leases under 162.3, have negotiated a
lease satisfactory to the Secretary he may join in the execution of the
lease and thereby commit the interests of those persons in whose behalf
he is authorized to grant leases under 162.2(a) (1), (2), (3), and (5).
(c) Where the Secretary may grant leases under 162.2 he may
negotiate leases when in his judgment the fair annual rental can thus be
obtained.
25 CFR 162.7 Advertisement.
Except as otherwise provided in this part, prior to granting a lease
or permit as authorized under 162.2 the Secretary shall advertise the
land for lease. Advertisements will call for sealed bids and will not
offer preference rights.
25 CFR 162.8 Duration of leases.
Leases granted or approved under this part shall be limited to the
minimum duration, commensurate with the purpose of the lease, that will
allow the highest economic return to the owner consistent with prudent
management and conservation practices, and except as otherwise provided
in this part shall not exceed the number of years provided for in this
section. Except for those leases authorized by 162.5(b) (1) and (2),
unless the consideration for the lease is based primarily on percentages
of income produced by the land, the lease shall provide for periodic
review, at not less than five-year intervals, of the equities involved.
Such review shall give consideration to the economic conditions at the
time, exclusive of improvement or development required by the contract
or the contribution value of such improvements. Any adjustments of
rental resulting from such review may be made by the Secretary where he
has the authority to grant leases, otherwise the adjustment must be made
with the written concurrence of the owners and the approval of the
Secretary.
(a) Leases for public, religious, educational, recreational,
residential, or business purposes shall not exceed 25 years but may
include provisions authorizing a renewal or an extension for one
additional term of not to exceed 25 years, except such leases of land on
the Hollywood (formerly Dania) Reservation, Fla.; the Navajo
Reservation, Ariz.; N. Mex., and Utah; the Palm Springs Reservation,
Calif.; the Southern Ute Reservation, Colo.; the Fort Mohave
Reservation, Calif., Ariz., and Nev.; the Pyramid Lake Reservation,
Nev.; the Gila River Reservation, Ariz.; the San Carlos Apache
Reservation, Ariz.; the Spokane Reservation, Wash.; the Hualapai
Reservation, Ariz.; the Swinomish Reservation, Wash.; the Pueblos of
Cochiti, Pojoaque, Tesuque, and Zuni, N. Mex.; and land on the Colorado
River Reservation, Ariz., and Calif., as stated in 162.18; which
leases may be made for terms of not to exceed 99 years.
(b) Leases may be made for 25 years for those farming purposes which
require the making of a substantial investment in the improvement of the
land for the production of specialized crops. To determine whether a
long term lease is justified, it is necessary to give consideration to
the nature of the crop to be grown, including the feasibility of growing
the proposed crop. The amount or substantially of the investment, as
well as the necessity of such an investment in order to grow the
proposed crop, are also elements to consider in evaluating the term of
the proposed lease.
(c) Farming leases not granted for the purpose of growing specialized
crops shall not exceed five years for dry-farming land or ten years for
irrigable land.
(d) Grazing leases which require substantial development or
improvement of the land shall not exceed ten years.
(e) Leases granted by the Secretary pursuant to 162.2(a)(3) shall be
for a term of not to exceed two years except as otherwise provided in
162.6(b).
(26 FR 10966, Nov. 23, 1961, as amended at 29 FR 2542, Feb. 18, 1964;
34 FR 3686, Mar. 1, 1969. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 162.9 Ownership of improvements.
Improvements placed on the leased land shall become the property of
the lessor unless specifically excepted therefrom under the terms of the
lease. The lease shall specify the maximum time allowed for removal of
any improvements so excepted.
25 CFR 162.10 Unitization for leasing.
Where it appears advantageous to the owners and advantageous to the
operation of the land a single lease contract may include more than one
parcel of land in separate ownerships, tribal or individual, provided
the statutory authorities and other applicable requirements of this part
are observed.
25 CFR 162.11 Conservation and land use requirement.
Farming and grazing operations conducted under leases granted or
approved under this part shall be conducted in accordance with
recognized principles of good practice and prudent management. Land use
stipulations or conservation plans necessary to define such use shall be
incorporated in and made a part of the lease.
25 CFR 162.12 Subleases and assignments.
(a) Except as provided in paragraphs (b), (c), and (d) of this
section, a sublease, assignment, amendment or encumbrance of any lease
or permit issued under this part may be made only with the approval of
the Secretary and the written consent of all parties to such lease or
permit, including the surety or sureties.
(b) With the consent of the Secretary, the lease may contain a
provision authorizing the lessee to sublease the premises, in whole or
in part, without further approval. Subleases so made shall not serve to
relieve the sublessor from any liability nor diminish any supervisory
authority of the Secretary provided for under the approved lease.
(c) With the consent of the Secretary, the lease may contain
provisions authorizing the lessee to encumber his leasehold interest in
the premises for the purpose of borrowing capital for the development
and improvement of the leased premises. The encumbrance instrument,
must be approved by the Secretary. If a sale or foreclosure under the
approved encumbrance occurs and the encumbrancer is the purchaser, he
may assign the leasehold without the approval of the Secretary or the
consent of the other parties to the lease, provided, however, that the
assignee accepts and agrees in writing to be bound by all the terms and
conditions of the lease. If the purchaser is a party other than the
encumbrancer, approval by the Secretary of any assignment will be
required, and such purchaser will be bound by the terms of the lease and
will assume in writing all the obligations thereunder.
(d) With the consent of the Secretary, leases of tribal land to
individual members of the tribe or to tribal housing authorities may
contain provisions permitting the assignment of the lease without
further consent or approval where a lending institution or an agency of
the United States makes, insures or guarantees a loan to an individual
member of the tribe or to a tribal housing authority for the purpose of
providing funds for the construction of housing for Indians on the
leased premises; provided, the leasehold has been pledged as security
for the loan and the lender has obtained the leasehold by foreclosure or
otherwise. Such leases may with the consent of the Secretary also
contain provisions permitting the lessee to assign the lease without
further consent or approval.
(26 FR 10966, Nov. 23, 1961, as amended at 29 FR 2542, Feb. 18, 1964.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 162.13 Payment of fees and drainage and irrigation charges.
(a) Except as provided in part 174 of this chapter, any lease
covering lands within an irrigation project or drainage district shall
require the lessee to pay annually on or before the due date, during the
term of the lease and in the amounts determined, all charges assessed
against such lands. Such charges shall be in addition to the rental
payments prescribed in the lease. All payments of such charges and
penalties shall be made to the official designated in the lease to
receive such payments.
(b) Unless otherwise provided in this part or by the Secretary, fees
based upon the annual rental payable under the lease shall be collected
on each lease, sublease, assignment, transfer, renewal, extension,
modification, or other instrument issued in connection with the leasing
or permitting of restricted lands under the regulations in this part.
(1) Except where all or any part of the expenses of the work are paid
from tribal funds, in which event an additional or alternate schedule of
fees may be established subject to the approval of the Secretary, the
fee to be paid shall be as follows:
Rental Percent
On the first $500 3
On the next $4,500 2
On all rental above $5,000 1
In no event shall the fee be less than $2.00 nor exceed $250.
(2) In the case of percentage rental leases, the fee shall be
calculated on the basis of the guaranteed minimum rental. Where rental
consists of a stated annual cash rental in addition to a percentage
rental, the estimated revenue anticipated from the percentage rental
shall be mutually agreed upon solely for the purpose of fixing the fee.
The fee to be collected in case of crop-share or other special
consideration leases or permits shall be based on an estimate of the
cash rental value of the acreage, or the estimated value of the lessor's
share of the crops. No fees so collected shall be refunded.
25 CFR 162.14 Violation of lease.
Upon a showing satisfactory to the Secretary that there has been a
violation of the lease or the regulations in this part, the lessee shall
be served with written notice setting forth in detail the nature of the
alleged violation and allowing him ten days from the date of receipt of
notice in which to show cause why the lease should not be cancelled.
The surety or sureties shall be sent a copy of each such notice. If
within the ten-day period, it is determined that the breach may be
corrected and the lessee agrees to take the necessary corrective
measures, he will be given an opportunity to carry out such measures and
shall be given a reasonable time within which to take corrective action
to cure the breach. If the lessee fails within such reasonable time to
correct the breach or to furnish satisfactory reasons why the lease
should not be cancelled, the lessee shall forthwith be notified in
writing of the cancellation of the lease and demands shall be made for
payment of all obligations and for possession of the premises. The
notice of cancellation shall inform the lessee of his right to appeal
pursuant to part 2 of this chapter. Where breach of contract can be
satisfied by the payment of damages, the Secretary may approve the
damage settlement between the parties to the lease, or where the
Secretary has granted the lease, he may accept the damage settlement.
With the consent of the Secretary, leases of tribal land to individual
members of the tribe or to tribal housing authorities for the purpose of
providing lands on which housing for Indians is to be constructed, may
contain a provision prohibiting the cancellation or termination of the
lease during the period that a loan, loan insurance, or loan guarantee
is in effect without the approval of the lender or the agency of the
United States which has made, insured or guaranteed the loan for the
construction of housing on the leased premises.
(29 FR 2542, Feb. 18, 1964. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 162.15 Crow Reservation.
(a) Notwithstanding the regulations in other sections of this part
162, Crow Indians classified as competent under the Act of June 4, 1920
(41 Stat. 751), as amended, may lease their trust lands and the trust
lands of their minor children for farming or grazing purposes without
the approval of the Secretary pursuant to the Act of May 26, 1926 (44
Stat. 658), as amended by the Act of March 15, 1948 (62 Stat. 80).
However, at their election Crow Indians classified as competent may
authorize the Secretary to lease, or assist in the leasing of such
lands, and an appropriate notice of such action shall be made a matter
of record. When this prerogative is exercised, the general regulations
contained in this part 162 shall be applicable. Approval of the
Secretary is required on leases signed by Crow Indians not classified as
competent or made on inherited or devised trust lands owned by more than
five competent devisees or heirs.
(b) The Act of May 26, 1926 (44 Stat. 658), as amended by the Act of
March 15, 1948 (62 Stat. 80), provides that no lease for farming or
grazing purposes shall be made for a period longer than five years,
except irrigable lands under the Big Horn Canal; which may be leased
for periods of ten years. No such lease shall provide the lessee a
preference right to future leases which, if exercised, would thereby
extend the total period of encumbrance beyond the five or ten years
authorized by law.
(c) All leases entered into by Crow Indians classified as competent,
under the above-cited special statutes, must be recorded at the Crow
Agency. Such recording shall constitute notice to all persons. Under
these special statutes, Crow Indians classified as competent are free to
lease their property within certain limitations. The five-year
(ten-year in the case of lands under the Big Horn Canal) limitation is
intended to afford a protection to the Indians. The essence of this
protection is the right to deal with the property free, clear, and
unencumbered at intervals at least as frequent as those provided by law.
If lessees are able to obtain new leases long before the termination of
existing leases, they are in a position to set their own terms. In
these circumstances lessees could perpetuate their leaseholds and the
protection of the statutory limitations as to terms would be destroyed.
Therefore, in implementation of the foregoing interpretation, any lease
which, on its face, is in violation of statutory limitations or
requirements, and any grazing lease executed more than 12 months, and
any farming lease executed more than 18 months, prior to the
commencement of the term thereof or any lease which purports to cancel
an existing lease with the same lessee as of a future date and take
effect upon such cancellation will not be recorded. Under a Crow tribal
program, approved by the Department of the Interior, competent Crow
Indians may, under certain circumstances, enter into agreements which
require that, for a specified term, their leases be approved.
Information concerning whether a competent Crow Indian has executed such
an instrument is available at the office of the Superintendent of the
Crow Agency, Bureau of Indian Affairs, Crow Agency, Montana. Any lease
entered into with a competent Crow Indian during the time such
instrument is in effect and which is not in accordance with such
instrument will be returned without recordation.
(d) Where any of the following conditions are found to exist, leases
will be recorded but the lessee and lessor will be notified upon
discovery of the condition: (1) The lease in single or counterpart form
has not been executed by all owners of the land described in the lease,
(2) there is, of record, a lease on the land for all or a part of the
same term, (3) the lease does not contain stipulations requiring sound
land utilization plans and conservation practices, or (4) there are
other deficiencies such as, but not limited to, erroneous land
descriptions, and alterations which are not clearly endorsed by the
lessor.
(e) Any adult Crow Indian classified as competent shall have the full
responsibility for obtaining compliance with the terms of any lease made
by him pursuant to this section. This shall not preclude action by the
Secretary to assure conservation and protection of these trust lands.
(f) Leases made by competent Crow Indians shall be subject to the
right to issue permits and leases to prospect for, develop, and mine
oil, gas, and other minerals, and to grant rights-of-way and easements,
in accordance with applicable law and regulations. In the issuance or
granting of such permits, leases, rights-of-way or easements due
consideration will be given to the interests of lessees and to the
adjustment of any damages to such interests. In the event of a dispute
as to the amount of such damage, the matter will be referred to the
Secretary whose determination will be final as to the amount of said
damage.
(29 FR 473, Jan. 18, 1964. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 162.16 Fort Belknap Reservation.
Not to exceed 20,000 acres of allotted and tribal lands (nonirrigable
as well as irrigable) on the Fort Belknap Reservation in Montana may be
leased for the culture of sugar beets and other crops in rotation for
terms not exceeding 10 years.
25 CFR 162.17 Cabazon, Augustine, and Torres-Martinez Reservations,
California.
(a) Upon a determination by the Secretary that the owner or owners
are not making beneficial use thereof, restricted lands on the Cabazon,
Augustine, and Torres-Martinez Indian Reservations which are or may be
irrigated from distribution facilities administered by the Coachella
Valley County Water District in Riverside County, California, may be
leased by the Secretary in accordance with the regulations in this part
for the benefit of the owner or owners.
(b) All leases granted or approved on restricted lands of the
Cabazon, Augustine, and Torres-Martinez Indian Reservations shall be
filed for record in the office of the country recorder of the county in
which the land is located, the cost thereof to be paid by the lessee. A
copy of each such lease shall be filed by the lessee with the Coachella
Valley County Water District or such other irrigation or water district
within which the leased lands are located. All such leases shall
include a provision that the lessee, in addition to the rentals provided
for in the lease, shall pay all irrigation charges properly assessed
against the land which became payable during the term of the lease. Act
of August 25, 1950 (64 Stat. 470); Act of August 28, 1958 (72 Stat.
968).
25 CFR 162.18 Colorado River Reservation.
The Act of April 30, 1964 (78 Stat. 188), fixed the beneficial
ownership of the Colorado River Reservation in the Colorado River Indian
Tribes of the Colorado River Reservation and authorized the Secretary of
the Interior to approve leases of said lands for such uses and terms as
are authorized by the Act of August 9, 1955 (69 Stat. 539), as amended
(25 U.S.C. 415, et seq.), including the same uses and terms as are
permitted thereby on the Agua Caliente (Palm Springs), Dania, Navajo,
and Southern Ute Reservations. Regulations in this part 162 govern
leasing under the Act of August 9, 1955. Therefore, part 162 shall also
govern the leasing of lands on the Colorado River Reservation:
Provided, however, That application of this part 162 shall not extend to
any lands lying west of the present course of the Colorado River and
south of sec. 12 of T. 5 S., R. 23 E., San Bernardino base and
meridian in California and shall not be construed to affect the
resolution of any controversy over the location of the boundary of the
Colorado River Reservation; Provided further, That any of the described
lands in California shall be subject to the provisions of this part 162
when and if determined to be within the reservation.
(30 FR 14156, Nov. 10, 1965, as amended at 35 FR 18051, Nov. 25,
1970. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 162.19 Grazing units excepted.
Tribal or individually owned lands within range units established
pursuant to part 166 of this chapter, general grazing regulations, shall
not be leased and permits respecting such lands shall not be issued
under this part.
25 CFR 162.20 San Xavier and Salt River Pima-Maricopa Reservations.
(a) Purpose and scope. The Act of November 2, 1966 (80 Stat. 1112),
provides statutory authority for long-term leasing on the San Xavier and
Salt River Pima-Maricopa Reservations, Ariz., in addition to that
contained in the Act of August 9, 1955 (69 Stat. 539), as amended (25
U.S.C. 415). When leases are made under the 1955 Act on the San Xavier
or Salt River Pima-Maricopa Reservations, the regulations in 162.1
through 162.14 and in 162.19 apply. The purpose of this 162.20 is to
provide regulations for implementation of the 1966 Act. The 1966 Act
does not apply to leases made for purposes that are subject to the laws
governing mining leases on Indian lands.
(b) Duration of leases. Leases made under the 1966 Act for public,
religious, educational, recreational, residential, or business purposes
may be made for terms of not to exceed 99 years. The terms of a grazing
lease shall not exceed 10 years; the term of a farming lease that does
not require the making of a substantial investment in the improvement of
the land shall not exceed 10 years; and the term of a farming lease
that requires the making of a substantial investment in the improvement
of the land shall not exceed 40 years. No lease shall contain an option
to renew which extends the total term beyond the maximum term permitted
by this section.
(c) Required covenant and enforcement thereof. Every lease under the
1966 Act shall contain a covenant on the part of the lessee that he will
not commit or permit on the leased land any act that causes waste or a
nuisance or which creates a hazard to health of persons or to property
wherever such persons or property may be.
(d) Notification regarding leasing proposals. If the Secretary
determines that a proposed lease to be made under the 1966 Act for
public, religious, educational, recreational, residential, or business
purposes will substantially affect the governmental interests of a
municipality contiguous to the San Xavier Reservation or the Salt River
Pima-Maricopa Reservation, as the case may be, he shall notify the
appropriate authority of such municipality of the pendency of the
proposed lease. The Secretary may, in his discretion, furnish such
municipality with an outline of the major provisions of the lease which
affect its governmental interests and shall consider any comments on the
terms of the lease affecting the municipality or on the absence of such
terms from the lease that the authorities may offer. The notice to the
authorities of the municipality shall set forth a reasonable period, not
to exceed 30 days, within which any such comments shall be submitted.
(e) Applicability of other regulations. The regulations of 162.1
through 162.14 and in 162.19 shall apply to leases made under the 1966
Act except where such regulations are inconsistent with this 162.20.
(f) Mission San Xavier del Bac. Nothing in the 1966 Act authorizes
development that would detract from the scenic, historic, and religious
values of the Mission San Xavier del Bac owned by the Franciscan Order
of Friars Minor and located on the San Xavier Reservation.
(33 FR 14641, Oct. 1, 1968. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 162.20 PART 163 -- GENERAL FOREST REGULATIONS
Sec.
163.1 Definitions.
163.2 Scope and information collection.
163.3 Objectives.
163.4 Sustained yield management.
163.5 Cutting restrictions.
163.6 Indian operations.
163.7 Timber sales from unallotted and allotted lands.
163.8 Advertisement of sales.
163.9 Timber sales without advertisement.
163.10 Deposit with bid.
163.11 Acceptance and rejection of bids.
163.12 Contracts required.
163.13 Execution and approval of contracts.
163.14 Bonds required.
163.15 Payment for timber.
163.16 Advance payment for allotment timber.
163.17 Time for cutting timber.
163.18 Deductions for administrative expenses.
163.19 Timber cutting permits.
163.20 Free-use cutting without permits.
163.21 Fire management measures.
163.22 Trespass.
163.23 Revocable road use and construction permits for removal of
commercial forest products.
163.24 Insect and disease control.
163.25 Forest development.
163.26 Appeals under timber contracts and permits.
163.27 Environmental protection.
Authority: Secs. 7, 8, 36 Stat. 857, 25 U.S.C. 406, 407; and sec.
6, 48 Stat. 986, 25 U.S.C. 466; 47 Stat. 1417, 25 U.S.C. 413., sec.
141.23 issued under 5 U.S.C. 301, 25 U.S.C. 2, unless otherwise noted.
Source: 49 FR 1687, Jan. 13, 1984, unless otherwise noted.
25 CFR 163.1 Definitions.
''Approval'' means authorization by the Secretary, Area Director,
Superintendent, tribe or individual Indian in accordance with
appropriate delegations of authority.
''Commercial forest land'' means Indian forest land capable of
bearing merchantable forest products, currently or prospectively
accessible, and not withdrawn from such use.
''Commercial forest resources'' includes all the benefits derived by
man from commercial forest lands such as forest products, soil
productivity, water, fisheries, wildlife, recreation, aesthetic and
other traditional values of the forest.
''Forest products'' includes major forest resources such as lumber,
lath, crating, ties, bolts, logs, bark, pulpwood, fuelwood, posts,
Christmas trees, split products or other marketable materials authorized
for removal.
''Forest protection'' includes the protection of Indian forest
resources from damages and losses by disease, insects, fire, animals
(domestic and wild) and trespass. It also includes protection of wild
lands from fire.
''Indian forest lands'' means lands held in trust by the United
States for Indian tribes, individual Indians, or Alaskan Natives or
lands which are owned by such tribes and individuals subject to
restrictions against alienation. Such lands are considered chiefly
valuable for the production of forest products or to maintain watershed
or other land values enhanced by a forest cover. A formal inspection
and land classification action is not required before applying the
provisions of this part to the management of any particular tract of
land.
''Secretary'' means the Secretary of the Interior or his/her
authorized representative.
''Stumpage rate'' means the stumpage value per thousand board feet or
other unit of measure.
''Stumpage value'' means the value of uncut timber as it stands in
the woods.
''Sustained yield'' means the yield of forest products that a forest
can produce continuously at a given intensity of management.
25 CFR 163.2 Scope and information collection.
(a) The regulations in this part are applicable to all Indian forest
lands except as this part may be superseded by special legislation.
(b) The information collection requirements contained in 163.6(a),
163.7(c)(2), 163.8(a), 163.9(a), 163.10(d), 163.14, 163.19(a),
163.19(d), and 163.23 have been approved by the Office of Management and
Budget under 44 U.S.C. 3504(h) et seq. and assigned clearance number
1076-0080. The information is being collected to properly account for
the resource. The information will be used to conduct program planning
and management of timber resources. Response is required to obtain or
retain a benefit.
25 CFR 163.3 Objectives.
The following objectives apply to the management of Indian forest
lands.
(a) The development, maintenance and enhancement of commercial forest
lands in perpetually productive state by providing effective management
and protection through the application of sound silvicultural and
economic principles to the reforestation, growth and harvesting of
timber and other forest products. This includes making adequate
provision for new forest growth as the timber is removed.
(b) Regulation of the forest resources through the establishment and
development of a timber sales program that is supported by written
tribal objectives, and a long-range multiple use plan (as included in a
forest management plan) that requires sound forest management practices.
(c) The regulation of the commercial forest in a manner which will
insure method and order in harvesting the tree capital, so as to make
possible continuous production and a perpetual forest business.
(d) The development of Indian forests by Indian people to promote
self-sustaining communities, so that Indians may receive from their own
property not only the stumpage value, but also the benefit of whatever
labor and profit it is capable of yielding.
(e) The sale of Indian timber on the open market, when the volume
available and/or utilized for harvest is in excess of that which is
being developed by the local Indian forest enterprise(s).
(f) The preservation of the forest in its natural state whenever the
authorized Indian representatives determine that the recreational,
cultural, aesthetic, or traditional values of the forest represent the
highest and best use of the land to the Indians.
(g) The management and protection of forest resources to retain the
beneficial effects of regulating water runoff and minimizing soil
erosion.
(h) The management and protection of forest lands to maintain and/or
improve timber production, soil productivity, grazing, wildlife,
fisheries, recreation, aesthetic, cultural, and other traditional values
of the forest to the extent that such action is in the best interest of
the Indians.
25 CFR 163.4 Sustained yield management.
To further the objectives enumerated in 163.3, the timber harvest
from Indian forest lands will not be authorized until practical methods
of harvest, based on sound economic, silvicultural and other forest
management principles, have been prescribed. Harvest schedules shall be
directed toward achieving an approximate balance at the earliest
practical time, between maximum net growth and harvest, and shall
salvage timber that is deteriorating from fire damage, insect
infestation, disease, overmaturity or other causes. On all Indian
reservations with commercial forest lands, appropriate management and
operating plans shall be prepared and revised as needed. Such documents
will contain a statement defining the objectives sought and describing
the manner in which the policies of the tribe and the Secretary will be
applied to the forest, with a definite plan of silvicultural management,
analysis of the short-term and long-term effects of the plan, and a
program of action, including a harvest schedule, for a specified period
in the future.
25 CFR 163.5 Cutting restrictions.
(a) Harvesting Indian timber will not be permitted unless provisions
for natural and/or artificial forestation are included in planning the
harvest.
(b) Clearing of large contiguous areas will be permitted only on
lands that, when cleared, will be devoted to a more beneficial use than
growing timber crops. This restriction shall not prohibit clearcutting
when it is silviculturally good practice to harvest a particular stand
of timber by such methods and conforms with 163.3.
25 CFR 163.6 Indian operations.
Indian tribal forest enterprises may be initiated and organized with
consent of the authorized tribal representatives. Such enterprises may
contract for the purchase of non-Indian owned forest products. Subject
to approval by the Secretary the following actions may be taken:
(a) Authorized tribal enterprises may enter into formal agreements
with tribal representatives for the use of tribal forest products, and
with individual Indian owners for allotted forest products.
(b) Authorized officials of tribal enterprises, operating under
approved agreements for the use of tribal or allotted forest products
pursuant to this section, may sell the forest products produced
according to generally accepted trade practices without compliance with
3709 of the Revised Statutes.
(c) With the consent of the Indian owners, such enterprises may,
without advertisement, contract for the purchase of forest products on
Indian lands at stumpage rates authorized by the Secretary.
(d) Determination of and payment for stumpage and/or products
utilized by such enterprises will be authorized in accordance with
163.15. However, the Secretary may issue special instructions for
payment by methods other than those in 163.15.
(e) Performance bonds may or may not be required in connection with
operations on trust lands by such enterprises as determined by the
Secretary.
25 CFR 163.7 Timber sales from unallotted and allotted lands.
(a) If the volume of timber available for harvest on a reservation
exceeds that being developed and/or utilized by local Indian forest
enterprise(s) or individual Indians, open market sales of Indian timber
may be authorized. This provision requires consent of the authorized
representatives of the tribe for tribal timber, and the owners of a
majority Indian interest in trust or restricted timber on allotted
lands. Consent of the Secretary is required in all cases.
(b) On any Indian forest lands not formally designated for retention
in its natural state by authorized Indian representatives, the Secretary
may sell the timber from lands held under a trust or other patent
containing restrictions on alienations without the consent of the owners
when in his/her judgment such action is necessary to prevent loss of
values resulting from fire, insects, diseases, windthrow or other
catastrophes.
(c) Unless otherwise authorized by the Secretary, sales of timber
from unallotted lands, allotted lands, or a combination of these two
ownerships having a stumpage value exceeding $10,000 will not be
approved until:
(1) An examination of the timber to be sold has been made by a forest
officer, and
(2) A report setting forth all pertinent information has been
submitted to the officer authorized to approve the contract as provided
in 163.13. In all such sales the timber shall be appraised and sold at
stumpage rates not less than those established by the Secretary.
25 CFR 163.8 Advertisement of sales.
Except as provided in 163.6, 163.7, 163.9, and 163.19 sales of
timber shall be made only after advertising.
(a) The advertisement shall be approved by the officer who will
approve the contract. Advertised sales shall be made under sealed bids,
or at public auction, or under a combination thereof. The advertisement
may limit sales of Indian timber to Indian forest enterprises, members
of the tribe, or may grant to Indian forest enterprises and/or members
of the tribe who submitted bids the right to meet the higher bid of a
non-member. If the estimated stumpage value of the timber offered does
not exceed $10,000, the advertisement may be made by posters and
circular letters. If the estimated stumpage value exceeds $10,000, the
advertisement shall also be made in at least one edition of a newspaper
of general circulation in the locality where the timber is situated. If
the estimated stumpage value does not exceed $50,000, the advertisement
shall be made for not less than 15 days; if the estimated stumpage
value exceeds $50,000 but not $200,000, for not less than 30 days; and
if the estimated stumpage value exceeds $200,000, for not less than 60
days.
(b) The approving officer may reduce the advertising period because
of emergencies such as fire, insect attack, blowdown, limitation of
time, or when there would be no practical advantage in advertising for
the prescribed periods.
(c) If no contract is executed after such advertisement, the
approving officer may, within one year from the last day on which bids
were to be received as defined in the advertisement, permit the sale of
such timber in the open market. The sale will be made upon the terms
and conditions in the advertisement and at not less than the advertised
value or the appraised value at the time of sale, whichever is greater.
25 CFR 163.9 Timber sales without advertisement.
(a) Sales of timber may be made without advertisement to Indians or
non-Indians with the consent of the authorized representatives of the
tribe for tribal timber or with the consent of the owners of a majority
Indian interest in trust or restricted timber on allotted lands, and the
approval of the Secretary when:
(1) The timber is to be cut in conjunction with the granting of a
right-of-way;
(2) Granting an authorized occupancy;
(3) It must be cut to protect the forest from injury;
(4) It is impractical to secure competition by formal advertising
procedures; or
(5) Otherwise specifically authorized by statutes or regulations.
(b) The approving officer shall establish a documented record of each
negotiated transaction. This will include:
(1) A written determination and finding that the transaction is of a
type or class allowing the negotiation procedures or warranting
departure from the procedures provided in 163.8;
(2) The extent of solicitation and competition, or a statement of the
facts upon which a finding of impracticability of securing competition
is based; and
(3) A statement of the factors on which the award is based, including
a determination as to the reasonability of the price accepted.
(c) This section shall not serve to impede the use of 163.6 as
approved by the Secretary.
25 CFR 163.10 Deposit with bid.
(a) A deposit shall be made with each proposal for the purchase of
either allotted or unallotted Indian timber. Such deposits shall be at
least:
(1) Ten (10) percent if the appraised stumpage value is less than
$100,000 and in any event not less than $1,000 or full value whichever
is less;
(2) Five (5) percent if the appraised stumpage value is $100,000 to
$250,000 but in any event not less than $10,000.
(3) Three (3) percent if the appraised stumpage value exceeds
$250,000 but in any event not less than $12,500.
(b) Deposits shall be in the form of either a certified check,
cashier's check, bank draft, postal money order, or irrevocable
letter-of-credit, drawn payable to the order of the Bureau of Indian
Affairs, or in cash.
(c) The deposit of the apparent high bidder, and of others who submit
written request to have their bids considered for acceptance will be
retained pending acceptance or rejection of the bids. All other
deposits will be returned following the opening and posting of bids.
(d) The deposit of the successful bidder will be retained if the
bidder does not:
(1) Furnish the performance bond required by 163.14 within the time
stipulated in the advertisement of timber sale,
(2) Execute the contract, or
(3) Perform the contract.
(e) This section does not limit or waive any further damages
available under applicable law or the terms of the contract.
25 CFR 163.11 Acceptance and rejection of bids.
(a) Applicants or bidders may be Indian forest enterprises, members
of the tribe, individuals, associations of individuals, partnerships, or
corporations. The high bid received in accordance with any
advertisement issued under authority of this part shall be accepted,
except that the approving officer, having set forth the reason(s) in
writing, shall have the right to reject the high bid if:
(1) The high bidder is considered unqualified to fulfill the
contractual requirement of the advertisement, or
(2) There are reasonable grounds to consider it in the interest of
the Indians to reject the high bid.
(b) If the high bid is rejected, the approving officer may authorize:
(1) Rejection of all bids, or
(2) Acceptance of the offer of another bidder who, at bid opening,
makes written request that their bid and bid deposit be held pending a
bid acceptance.
(c) The officer authorized to accept the bid shall have the
discretion to waive minor technical defects in advertisements and
proposals, such as typographical errors and misplaced entries on forms
that do not affect clarity, value or money deposits.
25 CFR 163.12 Contracts required.
Except as provided in 163.19, in sales of timber with an appraised
stumpage value exceeding $10,000, the contract forms approved by the
Secretary must be used unless a special form for a particular sale or
class of sales is approved by the Secretary. Essential departures from
the fundamental requirements of standard and approved contract forms
shall be made only with the approval of the Secretary. Unless otherwise
directed, the contracts shall require that the proceeds be paid by
remittance drawn to the Bureau of Indian Affairs and transmitted to the
Superintendent. By mutual agreement, contracts may be extended,
modified, or assigned subject to approval of the approving officer, and
may be terminated by the approving officer upon completion or by mutual
agreement.
25 CFR 163.13 Execution and approval of contracts.
(a) All contracts for the sale of tribal timber shall be executed by
the authorized tribal representative(s). Contracts must be approved by
the Secretary to be valid. There shall be included with the contract,
an affidavit executed by the appropriate tribal representative(s)
setting forth the resolution or other authority of the governing body of
the tribe authorizing the sale.
(b) Contracts for the sale of allotted timber shall be executed by
the Indian owners or the Secretary acting pursuant to a power of
attorney from the Indian owner, subject to conditions set forth in
163.7 and 163.13(b) (1), (2), and (3). Contracts must be approved by
the Secretary to be valid.
(1) The Secretary may, after consultation with any legally appointed
guardian, execute contracts on behalf of minors and Indian owners who
are non compos mentis.
(2) The Secretary may execute contracts for those persons whose
ownership in a decedent's estate has not been determined or for those
persons who cannot be located after a reasonable and diligent search and
the giving of notice by publication.
(3) Upon the request of the owner of an undivided but unrestricted
interest in land in which there are trust or restricted Indian
interests, the Secretary may include such unrestricted interest in a
sale of the trust or restricted interests in the timber, pursuant to
this part, and perform any functions required of him/her by the contract
of sale for both the restricted and the unrestricted interests,
including the collection and disbursement of payments for timber and the
deductions as service fees from such payments of sums in lieu of
administrative expenses.
25 CFR 163.14 Bonds required.
Performance bonds will be required in connection with all sales of
Indian timber, except they may or may not be required, as determined by
the approving officer, in connection with the use of timber by tribal
enterprises pursuant to 163.6 or in timber cutting permits issued
pursuant to 163.19. In sales in which the estimated stumpage value,
calculated at the appraised stumpage rates, does not exceed $10,000, the
bond shall be at least 20 percent of the estimated stumpage value. In
sales in which the estimated stumpage value exceeds $10,000 but is not
over $100,000, the bond shall be at least 15 percent of the estimated
stumpage value but not less than $2,000; in sales in which the
estimated stumpage value exceeds $100,000, but is not over $250,000, the
bond shall be at least 10 percent of the estimated stumpage value but
not less than $15,000; and in sales in which the estimated stumpage
value exceeds $250,000, the bond shall be at least 5 percent of the
estimated stumpage value but not less than $25,000. Bonds shall be in a
form acceptable to the approving officer and may include a corporate
surety bond by an acceptable surety company; or cash bond designating
the approving officer to act under a power of attorney; or negotiable
U.S. Government securities supported by appropriate power of attorney;
or an irrevocable letter-of-credit.
25 CFR 163.15 Payment for timber.
(a) The basis of volume determination for timber sold shall be the
Scribner Decimal C log rules, cubic volume, lineal measurement, piece
count, weight, or such other form of measurement as the Secretary may
authorize for use. With the exception of tribal enterprises pursuant to
163.6, payment for timber will be required in advance of cutting.
(b) Methods of payment include advance payments, installment payments
and advance deposits as specified in timber contract documents. Each
advance deposit shall be at least 10 percent of the value of the minimum
volume of timber required to be cut annually, figured at the appraised
stumpage rates: Provided, that the approving officer may reduce the
size of the last advance deposit before the completion of the sale or
before periods of approximately three months or longer during which no
timber cutting is anticipated. If a contract stipulates no minimum
annual cutting requirements, the amount of each advance deposit shall be
determined by the approving officer. The advance payments that may be
required in the sale of trust timber, pursuant to 163.16, shall not
operate to reduce the size of advance deposits required by this section.
25 CFR 163.16 Advance payment for allotment timber.
(a) Unless otherwise authorized by the Secretary, and except in the
case of lump sum (predetermined volume) sales, contracts for the sale of
timber from Indian forest lands shall provide for the payment of up to
25 percent of the stumpage value, calculated at the bid price, within 30
days from the date of approval and before cutting begins. Additional
advance payments may be specified in contracts that are more than three
years in duration. However, no advance payment will be required that
would make the sum of such payment and of advance deposits and advance
payments previously applied against timber cut from each appropriate
ownership exceed 50 percent of the bid stumpage value. For each
appropriate ownership, advance payments shall be credited against the
timber as it is cut and scaled at the stumpage rates governing at the
time of scaling.
(b) Terms and conditions for payment of timber under lump sum sales
shall be specified in timber contract documents. Advance payments are
not refundable.
25 CFR 163.17 Time for cutting timber.
Unless otherwise authorized by the Secretary, the maximum period
which shall be allowed, after the effective date of a timber contract,
for harvesting the estimated volume of timber purchased shall be five
years.
25 CFR 163.18 Deductions for administrative expenses.
In sales of forest products from Indian forest lands, a reasonable
deduction shall be made from the gross proceeds to cover in whole or in
part the cost of managing and protecting the forest lands. Such costs
will include the cost of sale administration, and forest regeneration.
However, such deductions are not intended to cover the costs that are
paid from funds appropriated specifically for fire suppression or forest
pest control. Unless special instructions have been given by the
Secretary as to the amount of the deduction, or the manner in which it
is to be made, the deduction shall be 10% of the gross amount received
for timber sold. Service fees in lieu of administrative deductions
shall be determined in a similar manner.
25 CFR 163.19 Timber cutting permits.
(a) Except as provided in 163.6 and 163.20, all cutting of forest
products that is not done under formal contract, pursuant to 163.12,
shall be done under timber cutting permit forms approved by the
Secretary. Permits will be issued only with the written consent of the
Indian owner(s) or the Secretary, for allotted lands, as authorized in
163.13. To be valid, permits must be approved by the Secretary. Such
consents to the issuance of cutting permits shall stipulate the minimum
product rate at which timber may be sold under permit. Payment and
bonding requirements will be stipulated in the permit document as
appropriate.
(b) Free-use cutting permits may be issued for specified species and
types of forest products. Timber cut under this authority may be
limited as to sale or exchange for other goods or services. The
stumpage value which may be cut in a fiscal year by any individual under
this authority shall not exceed $2,500. Individual shall mean an
individual or any operating entity comprised of several individuals.
(c) Paid permits subject to deductions for administrative expenses,
as provided in 163.18, may be issued. Unless otherwise authorized by
the Secretary, the stumpage value which may be cut under paid permits in
a fiscal year by any individual under this authority shall not exceed
$10,000. This paragraph (c) does not apply to special allotment timber
cutting permits. Individual shall mean an individual or any operating
entity comprised of several individuals.
(d) An Indian having sole beneficial interest in an allotment may be
issued an approved form of special permit to cut and sell designated
timber from such allotment. The special permit shall include provision
for payment by the Indian of administrative expenses pursuant to
163.18. Unless waived by the Secretary, the permit shall also require
the Indian to make a deposit with the Secretary to be returned to the
Indian upon satisfactory completion of the permit or to be used by the
Secretary in his/her discretion for planting or other work to offset
damage to the land or the timber caused by failure to comply with the
provisions of the permit. As a condition to granting a special permit
under authority of this paragraph, the Indian may be required to provide
evidence acceptable to the Secretary that he/she has arranged a bona
fide sale of the timber to be cut, on terms that will protect the
Indian's interests.
25 CFR 163.20 Free-use cutting without permits.
With the consent of the Indian owners and the Secretary, Indians may
cut designated types of forest products from Indian forest lands without
a permit or contract, and without charge. Timber cut under this
authority shall be for the Indian's personal use, and shall not be sold
or exchanged for other goods or services.
25 CFR 163.21 Fire management measures.
(a) The Secretary is authorized to maintain facilities and staff,
hire temporary labor, rent fire fighting equipment, purchase tools and
supplies, and pay for their transportation as needed, to maintain an
adequate level of readiness to meet normal wildfire protection needs and
extinguish forest or range fires on Indian reservations or other Indian
trust lands. No expenses for fighting a fire outside a reservation may
be incurred unless the fire threatens the reservation or other Indian
trust lands or unless such expenses are incurred pursuant to an approved
cooperative agreement with another protection agency. The rates of pay
for fire fighters and for equipment rental shall be the rates for such
fire fighting services that are currently in use by public and private
wildfire protection agencies adjacent to Indian reservations on which a
fire occurs, unless there are in effect at the time different rates that
have been approved by the Secretary. The Secretary may also enter into
reciprocal agreements with any fire organization maintaining protection
facilities in the vicinity of Indian reservations or other Indian trust
lands for mutual aid in wildfire protection. This section does not
apply to the rendering of emergency aid, or agreements for mutual aid in
fire protection pursuant to the Act of May 27, 1955 (69 Stat. 66).
(b) The Secretary will conduct a wildfire prevention program to
reduce the number of person-caused fires on Indian reservations or other
Indian trust lands.
(c) The Secretary is authorized to expend funds for emergency
rehabilitation measures needed to stabilize soil and watershed on Indian
reservations or other Indian trust lands damaged by wildfire.
(d) Upon consultation with the Indian landowners, the Secretary may
use fire as a a management tool on Indian reservations to achieve land
or resource management objectives.
25 CFR 163.22 Trespass.
(a) In addition to liability for trespass on Indian lands, as
indicated in this part, persons responsible for such trespass may be
prosecuted criminally under any applicable federal law. Penalties are
prescribed by the following statutes:
(1) Timber trespass (18 U.S.C. 1853).
(2) Fire trespass (18 U.S.C. 1855, 1856). Tribal ordinances may
apply where appropriate.
(b) The extraction, severance, injury or removal of forest products
from Indian lands under the jurisdiction of the Department of the
Interior, except when authorized by law and the regulations of the
Department, is an act of trespass. Trespassers will be liable in
damages to the United States and the Indian owners, and will be subject
to prosecution for such unlawful acts.
(c) The rule of damages to be applied in cases of timber and other
trespass will be the measure of damages prescribed by the laws of the
State in which the trespass is committed, unless by federal law a
different rule is prescribed or authorized.
(d) The Secretary may identify and forbid the removal of forest
products from restricted or trust Indian lands or direct their removal
to a point of safekeeping when there is reason to believe that such
products were unlawfully cut. Any such forest products that can be
positively identified as Indian trust property should be sold to prevent
their deterioration. When any forest products cut in trespass are found
to be removed to land not under Government supervision, the owner of the
land should be notified that such products are Indian trust property and
any further action should be upon advice of the Office of the Solicitor
of the Department of the Interior. Any forest products sold under this
163.22 may be disposed of under the provisions of this part, insofar as
they are applicable. The Secretary may accept payment of damages in
full in the settlement of civil trespass cases without resort to court
action. The Secretary may also accept a recommended settlement per
Solicitor's Regulations Manual I.4.1 when exercised in accordance with
Departmental procedures contained in 344 DM 3. All other matters
relating to the collection of debts under this section will be in
accordance with departmental Manual, Part 344.
(e) The Secretary will provide for timely action on any reports of
trespass on Indian trust lands including pending Native allotments (25
U.S.C. 9).
25 CFR 163.23 Revocable road use and construction permits for removal
of commercial forest products.
(a) The Secretary may request tribes and/or all other trust
landowners to sign landowners revocable permits designating the
Secretary as Agent for the landowner and empowering him/her to issue
revocable road use and construction permits to users for the purpose of
removing commercial forest products.
(b) When a majority of trust interest in a tract has consented, the
Secretary may issue revocable road use and construction permits for
removal of commercial forest products over and across individually owned
lands. In addition, the Secretary may act for individual owners when:
(1) The individual owner of the land or of an interest therein is a
minor or a person non compos mentis, and the Secretary finds that such
grant, in total or for an interest therein, will cause no substantial
injury to the land or the owner, which cannot be adequately compensated
for by monetary damages;
(2) The whereabouts of the owner of the land or an interest therein
are unknown, and the owners or owner of any interests therein whose
whereabouts are known or majority thereof, consent to the grant;
(3) The heirs or devisees of a deceased owner of the land or interest
therein have not been determined, and the Secretary finds the grant will
cause no substantial injury to the land or any owner thereof, provided
that once the heirs or devisees of the deceased owner are determined,
their consent is obtained.
(c) Nothing in this section shall preclude acquisition of
rights-of-way for roads, subchapter H, part 169, 25 CFR, or conflict
with provisions of that part.
25 CFR 163.24 Insect and disease control.
(a) The Secretary is authorized to protect and preserve from disease,
or the ravages of beetles, or other insects, timber on Indian
reservations or other Indian lands under the jurisdiction of the
Department of the Interior. (Sept. 20, 1922, Ch. 349, 42 Stat. 857).
The Secretary shall consult with authorized tribal representatives or
owners of other Indian lands concerning control actions.
(b) The Secretary is responsible to control and mitigate harmful
effects of insects and diseases on Indian forest lands. The Secretary
will coordinate this control with the Secretary of Agriculture in
accordance with Section 5, Pub. L. 95-313, July 1, 1978, 92 Stat. 336.
25 CFR 163.25 Forest development.
This section pertains to that segment of the forestry program which
addresses the improvement of timber resources. The program shall
consist of forestation, timber stand improvement work, and related
investments that enhance productivity. It shall be conducted with
emphasis on on-site activities. Forest development funds will be used
to establish, re-establish, maintain, and/or improve growth of desirable
commercial timber species and stocking level. Forest development
activities will be planned and executed using cost/benefit analyses as
one of the determinants in establishing priorities.
25 CFR 163.26 Appeals under timber contracts and permits.
Any action taken by an approving officer exercising delegated
authority from the Secretary of the Interior or by a subordinate
official of the Department of the Interior exercising an authority by
the terms of the contract may be appealed. Such appeal shall not stay
any action under the contract unless otherwise directed by the Secretary
of the Interior. Such appeals shall be filed in accordance with the
provision of 25 CFR part 2, Appeals from Administrative Actions, or any
other applicable general regulations covering appeals. Appropriate
Indian representatives shall be notified upon receipt of an appeal
initiated by the purchaser. Likewise, the purchaser shall be notified
upon receipt of an appeal initiated by the seller.
25 CFR 163.27 Environmental protection.
Before implementing these regulations, forestry personnel will review
their timber sale activities for potential environmental impacts in
accordance with the National Environmental Policy Act (NEPA) of 1969 and
applicable Council on Environmental Quality Regulations (40 CFR
1500-1508). NEPA compliance is further explained in Departmental Manual
Part 516 DM (Environmental Quality) and 30 BIAM Supplement 1 (NEPA
Handbook) of the Bureau of Indian Affairs, from which specific guidance
is obtained.
25 CFR 163.27 PART 164 -- SALE OF LUMBER AND OTHER FOREST PRODUCTS
PRODUCED BY INDIAN ENTERPRISES FROM THE FORESTS ON INDIAN RESERVATIONS
Sec.
164.1 Definitions.
164.2 Purpose of regulations.
164.3 Applicability of regulations.
164.4 Sale in open market.
164.5 Advertisement in trade journals and newspapers.
164.6 Advertising, general.
164.7 Proposals for purchase.
164.8 Proposals to government departments.
164.9 Cash sales.
164.10 Payments, discounts, and credit sales.
164.11 Commission sales agents.
164.12 Deposits.
Authority: 54 Stat. 504, as amended; 5 U.S.C. 301, 41 U.S.C. 6b.
Source: 27 FR 12929, Dec. 29, 1962, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 164.1 Definitions.
As used in this part:
(a) ''Secretary'' means Secretary of the Interior or his authorized
representative.
(b) ''Forest products'' means lumber, lath, shingles, crating, ties,
bolts, logs, bark, pulpwood, or other marketable materials obtained from
forests and authorized for removal by the Indian enterprises.
25 CFR 164.2 Purpose of regulations.
The regulations in this part 164 prescribe the terms and conditions
under which forest products produced by Indian tribal enterprises from
the forests of Indian reservations may be sold without compliance with
section 3709 of the Revised Statutes.
25 CFR 164.3 Applicability of regulations.
The regulations in this part 164 are intended to be generally
applicable except that they shall not apply to the Red Lake Reservation
in Minnesota; or, as may be determined by the Secretary, to Indian
enterprises that have entered into approved agreements for the use of
tribal or allotted timber pursuant to 163.6 of this chapter.
25 CFR 164.4 Sale in open market.
The forest products obtained from the forests on Indian reservations
by Indian enterprises may be sold in the open market at such prices as
may be realized through the methods provided in this part 164.
25 CFR 164.5 Advertisement in trade journals and newspapers.
Forest products obtained from Indian reservation forests by Indian
enterprises, may be advertised for sale in lumber trade journals of
general circulation among persons, companies, or corporations interested
in the buying and selling of forest products, and in newspapers in
cities that may afford a favorable market for such forest products.
25 CFR 164.6 Advertising, general.
Advertisement of forest products may also be made by circular letters
and through personal interviews with the trade: Provided, That the
travel expense incident thereto shall not be incurred without specific
authority from the Secretary.
25 CFR 164.7 Proposals for purchase.
Proposals for the purchase of forest products may be made to the
Secretary, and he is authorized to quote prices and consummate sales at
such times and/or such terms as are consistent with the regulations of
this part 164.
25 CFR 164.8 Proposals to government departments.
Proposals to sell may be made to municipalities, counties, states, or
the United States and prices may be quoted to such agencies. Terms and
payment in connection with such sales may be formulated in accordance
with the general practice of such agencies.
25 CFR 164.9 Cash sales.
All forest products of Indian forest enterprises shall be sold for
cash f.o.b. mill or other point of delivery, except as provided in
164.8 and 164.10. Adjustments and allowances on shipments of forest
products after delivery to the buyer are authorized in accordance with
generally accepted trade practices when such adjustments are essential
by reason of off-grade shipments or errors in volume.
25 CFR 164.10 Payments, discounts, and credit sales.
Shipments of forest products on open account shall be made only to
persons or companies who have an acceptable credit rating. Credit on
shipments of forest products sold on open account must not be extended
beyond 60 days from date of receipt by the buyer. A cash discount in
accordance with general trade practice and usually not exceeding two
percent of mill value, may be allowed when the shipment is paid for
within ten days of receipt by the consignee as evidenced by the original
paid freight bill or other acceptable evidence.
25 CFR 164.11 Commission sales agents.
Sales may be made through commission sales agents, for which they may
be paid a commission on f.o.b. mill value of the shipment at approved
rates. Sales may be made to wholesalers on which a discount at approved
rates may be allowed.
25 CFR 164.12 Deposits.
On all agreements to purchase for future delivery a deposit may be
required. Such a deposit may be forfeited if the purchaser does not
comply with the terms of sale. No agreement for sale and future
delivery shall be made for a longer period than 90 days, except with the
approval of the Secretary.
25 CFR 164.12 PART 165 -- SALE OF FOREST PRODUCTS, RED LAKE INDIAN
RESERVATION, MINN.
Sec.
165.1 Definitions.
165.2 Purpose of regulations.
165.3 Applicability of regulations.
165.4 Sale in open market.
165.5 Advertisement in trade journals and newspapers.
165.6 Advertising contracts.
165.7 General advertisement.
165.8 Proposals for purchase.
165.9 Proposals to government departments.
165.10 Cash sales.
165.11 Payments, discounts, and credit sales.
165.12 Commission sales agents.
165.13 Deposits.
165.14 Purchase of timber by the Red Lake Indian Mills.
165.15 Appeals.
Authority: Sec. 9, 39 Stat. 137, as amended; 5 U.S.C. 301, 41
U.S.C. 6b.
Source: 29 FR 4797, Apr. 4, 1964, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross Reference: For General Forest Regulations, see part 163 of
this chapter.
25 CFR 165.1 Definitions.
(a) ''Secretary'' means the Secretary of the Interior or his
authorized representative.
(b) ''Red Lake Indian Mills'' means the tribal enterprise,
established under section 9 of the act of May 18, 1916 (39 Stat. 137),
as amended, for the purpose of producing forest products.
(c) ''Forest Products'' means lumber, lath, shingles, crating, ties,
bolts, logs, bark, pulpwood, or other marketable materials manufactured
or produced by the Red Lake Indian Mills.
(d) ''Red Lake Indian Reservation, Minnesota'' means the Red Lake
Indian Forest and all other forest lands held in trust for the Red Lake
Band of Chippewa Indians.
25 CFR 165.2 Purpose of regulations.
The regulations in this part 165 prescribe the terms and conditions
under which forest products produced by the Red Lake Indian Mills may be
sold without compliance with section 3709 of the Revised Statutes.
25 CFR 165.3 Applicability of regulations.
The regulations in this part 165 apply only to the Red Lake Indian
Mills.
25 CFR 165.4 Sale in open market.
The forest products produced by the Red Lake Indian Mills may be sold
in the open market at such prices as may be realized through the methods
in this part 165.
25 CFR 165.5 Advertisement in trade journals and newspapers.
The Secretary may advertise forest products of the Red Lake Indian
Mills for sale in trade journals of general circulation among persons,
companies, or corporations interested in buying and selling of forest
products, and in newspapers in cities that may afford a favorable market
for such forest products.
25 CFR 165.6 Advertising contracts.
The Secretary may, as he determines, make advertising contracts,
provided that such contracts shall not be executed for periods of more
than one year.
25 CFR 165.7 General advertisement.
Advertisement of forest products may also be made by direct and
circular letters and through personal interviews with the trade:
Provided, That travel expense incident thereto shall not be incurred
without specific authority from the Secretary.
25 CFR 165.8 Proposals for purchase.
Proposals for the purchase of forest products may be made to the
Secretary, and he is authorized to quote prices and consummate sales at
such times and/or such terms as are consistent with the regulations of
this part 165.
25 CFR 165.9 Proposals to government departments.
Proposals may be made by the Secretary to sell to municipalities,
counties, States, or the United States and prices may be quoted to such
agencies. Terms and payment in connection with such sales may be
formulated in accordance with the general practice of such agencies.
25 CFR 165.10 Cash sales.
All forest products of the Red Lake Indian Mills shall be sold for
cash f.o.b. mill or other point of delivery, except as provided in
165.9 and 165.11. Adjustments and allowances on shipments of forest
products after delivery to the buyer are authorized in accordance with
generally accepted trade practices, when such adjustments are essential
by reason of off-grade shipments or errors in volume.
25 CFR 165.11 Payments, discounts, and credit sales.
Shipments of forest products on open account shall be made only to
persons or companies who have an acceptable credit rating. Credit on
shipment of forest products sold on open account shall not be extended
beyond 60 days from date of receipt by the buyer. A cash discount in
accordance with general trade practice and usually not exceeding two
percent of mill value may be allowed when the shipment is paid for
within ten days of receipt by the consignee as evidenced by the original
paid freight bill or other acceptable evidence.
25 CFR 165.12 Commission sales agents.
Sales may be made through commission sales agents, for which they may
be paid a commission on f.o.b. mill value of the shipment at approved
rates. Sales may be made to wholesalers on which a discount at approved
rates may be allowed.
25 CFR 165.13 Deposits.
On all agreements to purchase for future delivery a deposit may be
required. Such a deposit may be forfeited if the purchaser does not
comply with the terms of sale. No agreement for sale and future
delivery shall be made for a longer period than 90 days, except with
approval of the Secretary.
25 CFR 165.14 Purchase of timber by the Red Lake Indian Mills.
The Secretary may purchase, harvest, and manufacture timber or forest
products standing on or severed from lands other than the Red Lake
Indian Reservation, Minnesota, at such times as it may be considered
economically feasible, provided that such purchases are consistent with
approved operating schedules and budget allowances and subject also to
such limitations on expenditures as may be prescribed in annual
appropriation acts.
25 CFR 165.15 Appeals.
Any action taken by an approving officer exercising delegated
authority from the Secretary may be appealed to the Secretary. Such
appeal shall not stay any action taken unless otherwise directed by the
Secretary. Appeals will be filed in accordance with applicable general
regulations covering appeals appearing in this title 25.
25 CFR 165.15 PART 166 -- GENERAL GRAZING REGULATIONS
Sec.
166.1 Definitions.
166.2 General authority.
166.3 Objectives.
166.4 Regulations; scope; exceptions.
166.5 Establishment of range units.
166.6 Grazing capacity.
166.7 Grazing on range units authorized by permit.
166.8 Grazing exempt from permit.
166.9 Authority of the Superintendent to include land in grazing
permits.
166.10 Allocation of grazing privileges.
166.11 Competitive and negotiated sale of grazing privileges.
166.12 Kind of livestock.
166.13 Establishment of grazing fees.
166.14 Duration of grazing permits.
166.15 Assignment, modification, and cancellation of permits.
166.16 Conservation and land use provisions.
166.17 Range improvements; ownership.
166.18 Payment of tribal fees and taxes.
166.19 Special permit requirements and provisions.
166.20 Bonding and insurance requirements.
166.21 Payment of annual grazing fees.
166.22 Payment of preparation fees.
166.23 On-and-off grazing privileges.
166.24 Livestock trespass.
166.25 Control of livestock diseases.
Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25
U.S.C. 9; and by sec. 6, 69 Stat. 986, 25 U.S.C. 466. Interpret or
apply R.S. 2078, 25 U.S.C. 68; R.S. 2117, 25 U.S.C. 179; sec. 3, 26
Stat. 795, 25 U.S.C. 397; sec. 1, 28 Stat. 305, 25 U.S.C. 402; sec.
4, 36 Stat. 856, 25 U.S.C. 403; sec. 1, 39 Stat. 128, 25 U.S.C. 394;
sec. 1, 41 Stat. 1232, 25 U.S.C. 393; C. 158, 47 Stat. 1417, 25
U.S.C. 413; secs. 16, 17, 48 Stat. 987, 988, 25 U.S.C. 476, 477; C.
210, 53 Stat. 840, 25 U.S.C. 68a, 87a; C. 554, 54 Stat. 745, 25
U.S.C. 380; secs. 1, 2, 4, 5, 6, 69 Stat. 539, 540, 25 U.S.C. 415,
415a, 415b, 415c, 415d.
Source: 34 FR 9383, June 14, 1969, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross References: For Navajo grazing regulations, see part 167 of
this chapter. For leasing and permitting of restricted Indian lands for
farming, farm pasture, and business, see part 162 of this chapter.
25 CFR 166.1 Definitions.
(a) ''Tribe'' means a tribe, band, community, group, or pueblo of
Indians.
(b) ''Governing body'' means the general council or the tribal
committee, board, or other membership body recognized by the Secretary
as having the authority to act for the tribe, band, community, pueblo,
or group of Indians.
(c) ''Secretary'' means the Secretary of the Interior.
(d) ''Commissioner'' means the Commissioner of Indian Affairs.
(e) ''Area Director'' means the Director of any established Area of
the Bureau of Indian Affairs.
(f) ''Superintendent'' means the Superintendent of any Agency of the
Bureau of Indian Affairs.
(g) ''Individually owned land'' means land or any interest therein
held in trust by the United States for the benefit of individual Indians
and land or any interest therein held by individual Indians subject to
Federal restrictions against alienation or encumbrance.
(h) ''Tribal land'' means land or any interest therein held by the
United States in trust for a tribe, band, community, group, or pueblo of
Indians subject to Federal restrictions against alienation or
encumbrance, and includes such land reserved for Indian Bureau
administrative purposes when it is not immediately needed for such
purposes. The term also includes lands held by the United States in
trust for an Indian corporation chartered under section 17 of the Act of
June 18, 1934 (48 Stat. 988; 25 U.S.C. 477).
(i) ''Government land'' means land, other than tribal land, acquired
or reserved by the United States for Indian Bureau administrative
purposes which is not immediately needed for the purposes for which it
was acquired or reserved and land transferred to or placed under the
jurisdiction of the Bureau of Indian Affairs.
(j) ''Range unit'' means a tract of range land designated as a
management unit for administration of grazing. A range unit may consist
of tribal, individually owned or Government land or any combination
thereof consolidated for grazing administration.
(k) ''Permit'' means a revocable privilege granted in writing limited
to entering on and utilizing forage by domestic livestock on a specified
tract of land.
(l) ''Adult tribal members,'' for the purposes of this part, means a
member of an Indian tribe, band, community, pueblo, or group, who has
attained the age of 21 years.
(m) ''Immediate family'' means the spouse, brothers, sisters, lineal
ancestors, and descendants of an adult tribal member.
(n) ''Allocation'' means the apportionment of grazing privileges
without competitive bidding including the determination of who may graze
livestock, the number and kind of livestock, and the place such
livestock will be grazed.
25 CFR 166.2 General authority.
It is within the authority of the Secretary to protect individually
owned and tribal lands against waste and to prescribe rules and
regulations under which these lands may be leased or permitted for
grazing. Improper use which threatens destruction of the range and soil
resource is properly considered waste. With respect to reservations
upon which the Indian Reorganization Act of June 18, 1934 (48 Stat.
984), is applicable, the action of the Secretary must follow the
directions in section 6 of that Act which are: ''The Secretary of the
Interior is directed to make rules and regulations for the operation and
maintenance of Indian forestry units on the principle of sustained-yield
management, to restrict the number of livestock grazed on Indian range
units to the estimated carrying capacity of such ranges, and to
promulgate such other rules and regulations as may be necessary to
protect the range from deterioration, to prevent soil erosion, to assure
full utilization of the range, and like purposes.'' It is also the
Secretary's responsibility to improve the economic well being of the
Indian people through proper and efficient resource use.
25 CFR 166.3 Objectives.
It is the purpose of the regulations of this part to:
(a) Preserve, through proper grazing management, the land, water,
forest, forage, wildlife, and recreational values on the reservations
and improve and build up these resources where they have deteriorated.
(b) Promote use of the range resource by Indians to enable them to
earn a living, in whole or in part, through the grazing of their own
livestock.
(c) Provide for the administration of grazing privileges in a manner
which will yield the highest return consistent with sustained yield land
management principles and the fulfillment of the rights and objectives
of tribal governing bodies and individual land owners.
25 CFR 166.4 Regulations; scope; exceptions.
The grazing regulations of this part apply to individually owned,
tribal, and Government lands under the jurisdiction of the Bureau of
Indian Affairs, except as superseded by special written instructions
from the Commissioner in particular instances, or by provisions of any
tribal constitution, bylaws, or charter, heretofore duly ratified or
approved, or by any tribal action authorized thereunder. All forms
necessary to carry out the purpose of the regulations of this part shall
be approved by the Commissioner. Grazing lands not in range units
established under this part may be leased pursuant to part 162 of this
chapter.
25 CFR 166.5 Establishment of range units.
The conservation, development, and effective utilization of the range
resource requires consolidation of small individual and tribal
ownerships and the organization of the total range area into management
units. This shall be done under the direction of the Superintendent,
after consultation with the Indians, in a manner which will best meet
the requirements of Indian needs, land ownership status, and proper land
use. Any contiguous block of Indian and Government rangeland in excess
of 2,560 acres shall be designated as one or more range units. Range
units smaller than 2,560 acres may also be established under this
procedure.
25 CFR 166.6 Grazing capacity.
Subject to approval of the Area Director, the Superintendent shall
prescribe the maximum number of livestock which may be grazed on each
range unit and the season, or seasons, of use to achieve the objectives
cited in 166.3. The grazing capacity so prescribed will take into
consideration the implementation of tribal objectives and programs
requiring grazeable land to support wildlife and other nonlivestock
uses. Stocking rates shall be reviewed on a continuing basis and
adjusted as conditions warrant.
25 CFR 166.7 Grazing on range units authorized by permit.
All grazing use of range units shall be authorized by a grazing
permit except Indians' use of their own land pursuant to 166.8.
Permits on range units containing trust or restricted land which is
entirely tribally owned, or is in combination with Government land, may
be issued by the governing body, subject to approval by the
Superintendent, or by the Superintendent pursuant to 166.9 (b). The
Superintendent shall issue all permits on range units containing trust
or restricted land which is entirely individually owned or is in
combination with tribal and or Government land.
(34 FR 9383, June 14, 1969; 34 FR 11263, July 4, 1969. Redesignated
at 47 FR 13327, Mar. 30, 1982)
25 CFR 166.8 Grazing exempt from permit.
Adult tribal members of any tribe may, without approval of the
Superintendent, graze livestock on their own individually owned grazing
land or other grazing land for which they are responsible on behalf of
those non compos mentis, on behalf of their minor children and on behalf
of minor children or others to whom they stand in loco parentis when
such children do not have a legal representative. The term ''graze
livestock'' means the grazing of livestock which are either owned by
those persons listed above, or if not owned, are under their direct
management and supervision. Grazing of livestock under any other
arrangement requires approval of the Superintendent.
25 CFR 166.9 Authority of the Superintendent to include land in grazing
permits.
(a) The Superintendent may include individually owned land in grazing
permits on behalf of: (1) Orphaned minors; (2) persons who are non
compos mentis and without legal guardians; (3) undetermined heirs or
devisees of a deceased Indian owner; (4) adults whose whereabouts are
unknown; (5) heirs or devisees, none of whom are using the land and who
have not been able to agree upon the permitting of their land during a
3-month period, and after notice from the Superintendent given by
posting a general notice in all Post Offices on the reservation and with
the tribal governing body; (6) those Indian land owners listed in
166.8 who give the Superintendent written authority to grant grazing
privileges; and (7) any other Indian minor or person who is non compos
mentis or otherwise under legal disability, if that person's guardian,
conservator, or other fiduciary, appointed by a State court or by a
tribal court or court of Indian offenses operating under an approved
constitution or law and order code, gives the Superintendent written
authority to grant grazing privileges.
(b) The Superintendent may include tribal land in grazing permits on
behalf of governing bodies who give written authority. When timely
action is not taken by the governing body to give the Superintendent
written authority, or to issue permits pursuant to 166.7 and the
criteria prescribed in 166.10, the Superintendent may proceed to issue
permits on tribal land, subject to veto of the governing body, in order
to prevent resource waste or unreasonable economic loss to the tribe or
its members. The Superintendent shall notify the governing body in
writing of the action he proposes to take and allow a 60-day period
during which the tribal veto may be exercised.
(c) The Superintendent may include Government land in grazing permits
provided such land is not already under revocable permit to the tribe,
in which case, paragraph (b) of this section applies.
25 CFR 166.10 Allocation of grazing privileges.
A tribal governing body may authorize the allocation of grazing
privileges without competitive bidding on tribal and tribally controlled
Government land to Indian corporations, Indian associations, and adult
tribal members of the tribe represented by that governing body. The
Superintendent may implement the governing body's allocation program by
authorizing the allocation of grazing privileges on individually owned
land. The eligibility requirements for allocations shall be prescribed
by the governing body, subject to written concurrence of the
Superintendent. Where timely action is not taken by the governing body
to prescribe satisfactory requirements, the Superintendent shall notify
it in writing that it has a 60-day period during which it may present
requirements. Subject to the approval of the Area Director, the
Superintendent shall prescribe the eligibility requirements after
expiration of the 60-day period in the event satisfactory action is not
taken by the governing body.
(34 FR 9383, June 14, 1969, as amended at 34 FR 11544, July 12, 1969.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 166.11 Competitive and negotiated sale of grazing privileges.
(a) Grazing privileges not exempt from permit under 166.8 and not
reserved for allocation under 166.10 shall be advertised for
competitive public sale by the Superintendent except as otherwise
provided in paragraph (b) of this section. Advertisements shall be (1)
approved by the Area Director prior to publication; (2) shall be for a
30-day period unless otherwise authorized by the Area Director; (3)
shall call for sealed bids; (4) may provide for oral auction subsequent
to sealed bid opening at the discretion of the governing body; and (5)
shall limit the privilege of meeting high sealed bids of non-Indians to
adult tribal members, Indian corporations, and Indian associations,
according to preferences determined by the governing body and concurred
in writing by the Area Director.
(b) The Area Director may authorize the issuance of grazing permits
by negotiation when in his discretion no useful purpose would be served
by advertisement. Negotiated permits shall be limited to the grazing
capacity established pursuant to 166.6.
(34 FR 9383, June 14, 1969; 34 FR 11263, July 4, 1969. Redesignated
at 47 FR 13327, Mar. 30, 1982)
25 CFR 166.12 Kind of livestock.
(a) Tribal governing bodies may determine, subject to the grazing
capacity prescribed by the Superintendent and Area Director the kind of
livestock, e.g., cattle, sheep, etc., that may be grazed on range units
composed entirely of tribal land or in combination with Government land.
(b) The Superintendent shall designate the same kind of livestock to
be grazed on range units composed entirely of individually owned land,
or in combination with tribal and or Government land, as that determined
by governing bodies pursuant to paragraph (a) of this section, unless
the principles of proper land management or efficient permit
administration require otherwise.
25 CFR 166.13 Establishment of grazing fees.
(a) Tribal governing bodies may determine the minimum rental rate to
be charged for the use of tribal lands (1) included in advertisements
for public sale and (2) by allocation, except that allocated Indian
permittees shall be required to pay not less than the reservation
minimum rental rate established by the Area Director pursuant to
paragraph (b) of this section for all non-Indian owned livestock which
they may be authorized to graze on tribal lands. Prior to these
determinations, the Superintendent shall provide the tribe with all
available information including appraisal data concerning the value of
grazing on tribal lands.
(b) The Area Director shall establish a reservation minimum
acceptable grazing rental rate. The reservation minimum rate shall
apply to all grazing privileges permitted on individually owned lands,
to non-Indian owned livestock which allocated permittees may be
authorized to graze on tribal lands, and to all tribal lands when the
governing body fails to establish a rate pursuant to paragraph (a) of
this section. Except as otherwise provided in paragraph (c) of this
section, the rate established shall provide a fair annual return to the
land owners.
(c) Indian landowners, in giving the Superintendent written authority
to grant grazing privileges on their individually owned land, may
stipulate a minimum rate above the reservation minimum set by the Area
Director if justified because of above average value. They may also
stipulate a lower rate than the reservation minimum, subject to approval
of the Superintendent when the permittee is a member of the landowner's
immediate family.
25 CFR 166.14 Duration of grazing permits.
(a) Tribal governing bodies may determine the duration of grazing
permits on range units composed entirely of tribal land or in
combination with Government land, subject to a maximum period of 5 years
except when substantial development or improvement is required, in which
case the maximum period shall be 10 years.
(b) Subject to the same duration limits set forth in paragraph (a) of
this section, the Superintendent shall prescribe the same period of
duration for permits on range units composed entirely of individually
owned land, or in combination with tribal and/or Government land, as
that determined by governing bodies pursuant to paragraph (a) of this
section unless the principles of proper land management or efficient
permit administration require otherwise.
(c) Permits for a period in excess of 5 years shall provide for
review of the grazing fees by the Superintendent at the end of the first
5 years and for adjustment as necessary.
25 CFR 166.15 Assignment, modification, and cancellation of permits.
(a) Grazing permits shall not be assigned, subpermitted, or
transferred without the consent of the contracting parties, including
the surety, and the approval of the Superintendent.
(b) The Superintendent may revoke or withdraw all or any part of a
grazing permit by cancellation or modification on 30 days' written
notice for violation of the permit or because of termination of trust
status of permitted land. In case of cancellation or modification
because of trust termination the action shall be effected on the next
annual anniversary date of the grazing permit following the date of
notice.
(c) The Superintendent may revoke or withdraw all or any part of a
grazing permit by cancellation or modification on 180 days' written
notice for allocated Indian use or for grazing exempt from permit
pursuant to 166.8. Unless otherwise mutually agreed upon by the
interested parties, such actions shall be effected on the annual
anniversary date of the grazing permit following the date of notice
except when such timeliness of notice is not possible, in which case
deferment of the intended action shall not be required to extend beyond
180 days from the date of the notice. Rental fees for grazing
privileges taken for allocation shall not be less than those paid by the
preceding permittee.
25 CFR 166.16 Conservation and land use provisions.
Grazing operations shall be conducted in accordance with recognized
principles of good range management. Stipulations or management plans
necessary to accomplish this may be made a part of the grazing permit.
25 CFR 166.17 Range improvements; ownership.
Improvements placed on the permitted land shall be considered affixed
to the land unless specifically excepted therefrom under the permit
terms. Written permission to construct and to remove improvements must
be secured from the Superintendent. The permit will specify the maximum
time allowed for removal of improvements so excepted.
25 CFR 166.18 Payment of tribal fees and taxes.
Fees and taxes exclusive of annual grazing fees, assessed by the
tribe in connection with grazing permits and with the approval of the
Commissioner or Secretary, shall be billed for by the tribe and paid
annually in advance to the designated tribal official. Failure to make
payment will subject the grazing permit to cancellation and may
disqualify the permittee for future permits.
25 CFR 166.19 Special permit requirements and provisions.
(a) All grazing permits shall contain the following provisions:
(1) While the lands covered by the permit are in trust or restricted
status, all of the permittee's obligations under the permit and the
obligation of his sureties are to the United States as well as to the
owner of the land.
(2) Nothing contained in the permit shall operate to delay or prevent
a termination of Federal trust responsibilities with respect to the land
by the issuance of a fee patent or otherwise during the term of the
permit.
(3) The permittee agrees he will not use, cause, or allow to be used
any part of the permitted area for any unlawful conduct or purpose.
(4) The permit authorizes the grazing of livestock only and the
permittee shall not utilize the permitted area for hay cutting, hunting,
post or timber cutting, or any other use without written authorization
from the responsible Indian or Federal authority.
25 CFR 166.20 Bonding and insurance requirements.
(a) A performance bond satisfactory to the Superintendent may be
required in an amount that will reasonably assure performance of the
contractual obligations. A bond, when required, may be for the purpose
of guarantying the estimated construction cost of any improvement to be
placed on the land which will become the property of the landowner or to
insure compliance with special or additional contractual obligations.
(b) The permittee may be required to provide insurance in an amount
adequate to protect any improvements on the permitted premises; and may
also be required to furnish appropriate liability insurance and such
other insurance as may be necessary to protect the landowner's interest.
25 CFR 166.21 Payment of annual grazing fees.
Annual grazing fees for all grazing permits shall be paid in advance
and the date due shall be a provision of the permit. Payment shall be
made to the Bureau of Indian Affairs unless otherwise provided by the
permit.
25 CFR 166.22 Payment of preparation fees.
Permittees shall pay annually in advance the following fee, in
addition to the grazing fee, to cover the cost of work performed in the
preparation of grazing permits: Provided, That where all or any part of
the expenses of the work are paid from tribal funds an alternate
schedule of fees may be approved by the Commissioner:
In no event shall the fee be less than $2 nor exceed $250.
25 CFR 166.23 On-and-off grazing privileges.
The permittee may be allowed credit for the grazing capacity of other
range lands not covered by the permit, but which are owned or controlled
by him and grazed in common with the permitted lands as a part of the
range unit. The grazing capacity will be determined by the
Superintendent and shown on the grazing permit.
25 CFR 166.24 Livestock trespass.
(a) Acts prohibited on Indian trust, restricted or Government lands.
The following acts are prohibited on Indian trust or restricted lands
under the jurisdiction of the Bureau of Indian Affairs:
(1) The grazing upon or driving across any individually owned,
tribal, or Government lands of any livestock without an approved grazing
or crossing permit.
(2) Allowing livestock to drift and graze on trust or restricted
Indian lands without an approved permit.
(3) The grazing or livestock upon trust or restricted Indian lands
within an area closed to grazing of that class of livestock.
(4) The grazing of livestock by permittee upon an area of trust or
restricted Indian lands withdrawn from use for grazing purposes to
protect it from damage by reason of the improper handling of livestock,
after the receipt of notice from the Superintendent of such withdrawal,
or refusal to remove livestock upon instructions from the Superintendent
when an injury is being done to the Indian lands by reason of improper
handling of livestock.
(b) Unauthorized grazing. The owner of any livestock grazing in
trespass on trust or restricted Indian lands is liable to a penalty of
$1 per head for each animal thereof for each day of trespass (except in
North Dakota, South Dakota, Nebraska and Minnesota where the penalty
shall be $1 per head of cattle regardless of the number of days of
trespass), together with the reasonable value of the forage consumed by
their livestock and damages to property injured or destroyed, and for
expenses incurred in impoundment and disposal. The Superintendent shall
take action to collect all such penalties and damages, reimbursement for
expenses incurred in impoundment and disposal, and seek injunctive
relief when appropriate. All payments for such penalties and damages
shall be credited to the landowners where the trespass occurs except
that the value of forage or crops consumed or destroyed may be paid to
the lessee of the lands not to exceed the rental paid, and reimbursement
for expenses incurred in impoundment and disposal shall be credited as
appropriate.
(c) Notice and order to remove. (1) When it has been determined that
a violation exists and the owner of the unauthorized livestock is known,
written notice shall be served upon the alleged violator or his agent by
certified mail with return receipt requested, or personal delivery and a
copy of the notice shall be sent to any known lien holder. The notice
shall set forth the act consituting the violation, the legal description
of the land where the livestock were observed, the verification of
brands in the State Brand Book, and the regulation alleged to have been
violated. The notice shall also instruct the alleged violator to remove
the livestock within a specified time, allow a specified time from
receipt of the notice to show that there has been no violations, or to
make settlement under 166.24(d). If the alleged violator fails to
comply with the notice, the Superintendent may impound the livestock
under 166.24(f).
(2) When neither the owner of the unauthorized livestock nor his
representative is known, the Superintendent may proceed to impound the
livestock under 166.24(f).
(d) Settlement. The amount due the Indian landowner and/or the
United States in settlement for unauthorized grazing use shall be
determined by the Superintendent as follows:
(1) A penalty of $1 for each animal thereof for each day of trespass,
except in the States of Minnesota, Nebraska, North Dakota, and South
Dakota where the penalty shall be $1 for each animal without regard to
the number of days of trespass.
(2) A reasonable value of forage consumed based upon the average rate
received per month for comparable grazing privileges on the reservation
for the kind of livestock concerned, or the estimated commercial value
for such privileges if no comparable grazing privileges are sold.
(3) Damages to Indian or Government property injured or destroyed.
(4) All expenses incurred in gathering, impounding, caring for, and
disposing of livestock in cases which necessitate impoundment under
166.24(f).
(5) Neither the imposition of any civil penalty nor any action by the
Secretary of the Interior shall preclude either any civil action by the
United States, an Indian, or an Indian tribe for damages caused by
trespassing livestock or prosecution for any offense involved with such
trespass.
(e) Demand for payment. Where the livestock have been removed, but
satisfactory settlement has not been made within the time prescribed
under 166.24(c), a certified letter, return receipt requested, shall be
sent or personally delivered to the livestock owner or his agent, and a
copy of the letter shall be sent to any know lien holder. The letter
shall demand immediate settlement and advise the violator that unless
settlement is received within five working days from date of receipt,
the case may be referred to the Department of Justice for appropriate
action.
(f) Impoundment and disposal. Unauthorized livestock remaining on
trust or restricted Indian or Government lands which are not removed
therefrom within the period prescribed in 166.24(c) may be impounded
and disposed of by the Superintendent as provided herein:
(1) A written notice of intent to impound shall be sent by certified
mail, return receipt requested, or personally delivered to the owner, or
his agent, and a copy of the notice shall be sent to any known lien
holder. Any time after five days of delivery of the notice, the
unauthorized livestock may be impounded.
(2) Where the owner or his agent is unknown, or a known owner or his
agent refuses to accept delivery of the notice, a notice of intent to
impound shall be published in a local newspaper, posted at the nearest
community building and tribal council headquarters, and at a post office
near the Indian or Government lands involved. Any time after five days
of posting of the notice, the unauthorized livestock may be impounded.
(3) Unauthorized livestock that are owned by persons given notice
under paragraphs (f)(1) and (2) of this section may be impounded without
further notice any time within the 12-month period following the
effective date of a notice given under this subsection.
(4) Where there is imminent danger that trespassing livestock will
severely injure a growing or harvestable crop or substantially destroy
the range forage, the livestock may be impounded immediately.
(g) Notice of public sale. Following the impoundment of unauthorized
livestock, a notice of sale of impounded livestock shall be published in
a local newspaper, posted at the nearest community building and tribal
council headquarters, and at a post office near the Indian or Government
lands involved. The notice will describe the livestock and specify the
date, time and place of sale. The date set shall be at least five days
after the publication and posting of such notice. Any known owners or
agents and known lien holders shall be notified in writing by certified
mail, return receipt requested, or by personal delivery of the sale, and
the procedure by which the impounded livestock may be redeemed prior to
the sale as described in 166.24(h).
(h) Redemption. Any owner or known lien holder of the impounded
livestock may redeem them at any time before the time set for the sale
by submitting proof of ownership and the settlement of all obligations
described in 166.24(d).
(i) Sale. If the livestock are not redeemed before the time fixed
for their sale, they shall be sold at public sale to the highest bidder.
If a satisfactory bid is not received, the livestock may be reoffered
for sale, condemned and destroyed, or otherwise disposed of. When
livestock are sold by the Superintendent pursuant to these regulations,
he shall furnish the purchaser a bill of sale or other written
instrument evidencing the sale.
(j) Distribution of proceeds. The net proceeds of the sale, after
deduction of the prescribed penalty and the deduction of the necessary
costs and expenses of the Secretary of the Interior as provided in
166.24(d), shall be paid to the owner of the animal upon satisfactory
proof of ownership submitted within six months of the date of the sale.
Net proceeds of the sale of an animal, not paid to the owner, shall be
deposited in the United States Treasury to the credit of the landowners
where the trespass occurred.
(45 FR 69446, Oct. 21, 1980. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 166.25 Control of livestock diseases.
Whenever livestock on Indian lands become infected with contagious or
infectious diseases, or have been exposed thereto, such livestock must
be treated and the movement thereof restricted in accordance with
applicable Federal and State laws and tribal ordinances.
25 CFR 166.25 Part 167
25 CFR 166.25 PART 167 -- NAVAJO GRAZING REGULATIONS
Sec.
167.1 Authority.
167.2 General regulations.
167.3 Objectives.
167.4 Regulations; scope; exceptions.
167.5 Land management districts.
167.6 Carrying capacities.
167.7 Records.
167.8 Grazing rights.
167.9 Grazing permits.
167.10 Special grazing permits.
167.11 Tenure of grazing permits.
167.12 Grazing fees.
167.13 Trespass.
167.14 Movement of livestock.
167.15 Control of livestock disease and introduction of livestock.
167.16 Fences.
167.17 Construction near permanent livestock water developments.
Authority: R.S. 465, 2117, as amended, sec. 3, 26 Stat. 795, sec.
1, 28 Stat. 305, as amended; 25 U.S.C. 9, 179, 397, 345, 402.
Source: 22 FR 10578, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 167.1 Authority.
It is within the authority of the Secretary of the Interior to
protect Indian tribal lands against waste. Subject to regulations of
this part, the right exists for Indian tribes to authorize the granting
of permits upon their tribal lands and to prescribe by appropriate
tribal action the conditions under which their lands may be used.
25 CFR 167.2 General regulations.
Part 166 of this subchapter authorizes the Commissioner of Indian
Affairs to regulate the grazing of livestock on Indian lands under
conditions set forth therein. In accordance with this authority and
that of the Navajo Tribal Council, the Central Grazing Committee and the
District Grazing Committees, the grazing of livestock on the Navajo
Reservation shall be governed by the regulations in this part.
25 CFR 167.3 Objectives.
It is the purpose of the regulations in this part to aid the Navajo
Indians in achievement of the following objectives:
(a) The preservation of the forage, the land, and the water resources
on the Navajo Reservation, and the building up of those resources where
they have deteriorated.
(b) The protection of the interests of the Navajo Indians from the
encroachment of unduly aggressive and anti-social individuals who may or
may not be members of the Navajo Tribe.
(c) The adjustment of livestock numbers to the carrying capacity of
the range in such a manner that the livestock economy of the Navajo
Tribe will be preserved.
(d) To secure increasing responsibility and participation of the
Navajo people, including tribal participation in all basic policy
decisions, in the sound management of one of the Tribe's greatest
assets, its grazing lands, and to foster a better relationship and a
clearer understanding between the Navajo people and the Federal
Government in carrying out the grazing regulations.
(e) The improvement of livestock through proper breeding practices
and the maintenance of a sound culling policy. Buck and bull pastures
may be established and maintained either on or off the reservation
through District Grazing Committee and Central Grazing Committee action.
25 CFR 167.4 Regulations; scope; exceptions.
The grazing regulations in this part apply to all lands within the
boundaries of the Navajo Reservation held in trust by the United States
for the Navajo Tribe and all the trust lands hereafter added to the
Navajo Reservation. The regulations in this part do not apply to any of
the area described in the Executive order of December 16, 1882, to
individually owned allotted lands within the Navajo Reservation nor to
tribal purchases, allotted or privately owned Navajo Indian lands
outside the exterior boundaries of the Navajo Reservation.
(34 FR 14599, Sept. 19, 1969. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 167.5 Land management districts.
The Commissioner of Indian Affairs has established and will retain
the present land management districts within the Navajo Indian
Reservation, based on the social and economic requirements of the Navajo
Indians and the necessity of rehabilitating the grazing lands. District
boundary changes may be made when deemed necessary and advisable by the
District Grazing Committees, Central Grazing Committee and Tribal
Council, with approval by the Superintendent, Area Director, and the
Commissioner of Indian Affairs.
25 CFR 167.6 Carrying capacities.
(a) The Commissioner of Indian Affairs on June 26, 1943, promulgated
the authorized carrying capacity for each land management district of
the Navajo Reservation.
(b) Recommended adjustments in carrying capacities shall be referred
by the Superintendent to District Grazing Committee, Central Grazing
Committee, and the Navajo Tribal Council for review and recommendations
prior to presentation to the Area Director and the Commissioner of
Indian Affairs for approval.
(c) Upon the request of the District Grazing Committee, Central
Grazing Committee and Navajo Tribal Council to the Superintendent;
recommendations for future adjustments to the established carrying
capacities shall be made by Range Technicians based on the best
information available through annual utilization studies and range
condition studies analyzed along with numbers of livestock and
precipitation data. The recommendations of the Range Technicians shall
be submitted to the Superintendent, the Area Director and the
Commissioner of Indian Affairs.
(d) Carrying capacities shall be stated in terms of sheep units
yearlong, in the ratio of horses, mules, and burros 1 to 5; cattle 1 to
4; goats 1 to 1. The latter figure in each case denotes sheep units.
Sheep, goats, cattle, horses, mules, and burros one year of age or older
shall be counted against the carrying capacity.
25 CFR 167.7 Records.
The District Grazing Committee, the Superintendent, and his
authorized representatives shall keep accurate records of all grazing
permits and ownership of all livestock. Master files shall be
maintained by the Superintendent or his authorized representatives.
(a) The District Grazing Committee shall be responsibile for and
assist in organizing the sheep and goat dipping and horse and cattle
branding program and obtaining the annual live- stock count.
(b) In order to obtain true records of ownership the permittee shall
personally appear at the dipping vat or tallying point designated by the
Grazing Committee with his or her sheep and goats and at branding and
tallying points for cattle and horses. Should the permittee be unable
to appear personally he or she shall designate a representative to act
for and in his or her behalf. The sheep and goats will be dipped and
the cattle and horses will be branded and recorded in the name of the
permittee.
(c) The Superintendent shall prepare and keep current a register
containing the names of all permittees using the range, the number of
each class of stock by age classes grazed annually and the periods
during which grazing shall be permitted in each part thereof. An annual
stock census will be taken to insure that the carrying capacity is not
exceeded. All classes of livestock twelve months of age or over will be
counted against range use and permitted number, except that yearling
colts will not be counted against permitted numbers on all permits with
less than six horses. (Cross Reference 167.9.)
25 CFR 167.8 Grazing rights.
(a) The Superintendent shall determine grazing rights of bona fide
live-stock owners based on recommendations of District Grazing
Committees. Grazing rights shall be recognized for those permittees
having ownership records as established in accordance with 167.7 or who
have acquired grazing rights by marriage, inheritance, purchase or
division of permits. Whenever the permitted number of sheep units
within a district is less than the carrying capacity, new permits to the
carrying capacity limit may be granted as provided in 167.9.
(b) All enrolled members of the Navajo Tribe over 18 years of age are
eligible to acquire and hold grazing permits. Minors under 18 years of
age can get possession of grazing permits only through inheritance or
gift, and in each case Trustees must be appointed by the Tribal Courts
to manage the permits and livestock of such minors until they become 18
years of age and can hold grazing permits in their own right.
(c) No person can hold a grazing permit in more than one district on
the Navajo Reservation.
(d) Determination of rights to grazing permits involved in cases of
divorce, separation, threatened family disruption, and permits of
deceased permittees shall be the responsibility of the Navajo Court of
Indian Offenses under existing laws, rules, and regulations.
25 CFR 167.9 Grazing permits.
(a) All livestock grazed on the Navajo Reservation must be covered by
an authorized grazing permit issued by the Superintendent based upon the
recommendations of the District Grazing Committee. All such grazing
permits will be automatically renewed annually until terminated.
District Grazing Committees shall act on all grazing permit changes
resulting from negotiability within their respective Districts. The
number of livestock that may be grazed under each permit shall be the
number originally permitted plus or minus any changes as indicated by
Transfer Agreements and Court Judgment Orders.
(b) Any permittee who has five or more horses on his current permit
will be required to apply any acquired sheep units in classes of stock
other than horses. If the purchaser wishes more than his present number
of horses, he must have his needs evaluated by the District Grazing
Committee. Yearling colts will be counted against permitted number on
all permits with six or more horses. Yearling colts will not be counted
against permitted number on all permits with less than six horses. In
hardship cases the District Grazing Committee may reissue horses removed
from grazing permits through negotiability to permit holders who are
without sufficient horses on their present permits to meet minimum
needs.
(c) No permittee shall be authorized to graze more than ten head of
horses or to accumulate a total of over 350 sheep units.
(d) Upon recommendation of the District Grazing Committee and with
the approval of the Superintendent, grazing permits may be transferred
from one permittee to another in accordance with instructions provided
by the Advisory Committee of the Navajo Tribal Council, or may be
inherited; provided that the permitted holdings of any individual
permittee shall not exceed 350 sheep units or the equivalent thereof.
Should inheritance or other acquisition of permits increase the holdings
of any permittee to more than 350 sheep units, said permittee shall
dispose of all livestock in excess of 350 sheep units not later than
November 15 following date of inheritance or other acquisition, and that
portion of his or her permit in excess of 350 sheep units within one
year from date of inheritance.
(e) By request of a permittee to sublet all or a part of his or her
regular grazing permit to a member of his family or to any person who
would receive such permit by inheritance, such subletting of permits may
be authorized by the District Grazing Committee and the Superintendent
or his authorized representative.
25 CFR 167.10 Special grazing permits.
The problem of special grazing permits shall be settled by the Bureau
of Indian Affairs working in cooperation with the Tribal Council, or any
Committee designated by it, with a view to terminating these permits at
a suitable date and with the least hardship to the Indians concerned.
25 CFR 167.11 Tenure of grazing permits.
(a) All active regular grazing permits shall be for one year and
shall be automatically renewed annually until terminated. Any Navajo
eligible to hold a grazing permit as defined in 167.8 may become a
livestock operator by obtaining an active grazing permit through
negotiability or inheritance or both.
(b) In many Districts, and portions of all districts, unused grazing
permits or portions of grazing permits are beneficial in aiding range
recovery. Each District Grazing Committee will handle each matter of
unused grazing permit or portions of grazing permits on individual
merits. Where ample forage is available operators will be encouraged to
fill their permits with livestock or dispose of their unused permits
through negotiability. In those areas where forage is in need of
rehabilitation permittees will not be encouraged to stock to their
permitted numbers until the range has sufficiently recovered to justify
the grazing of additional livestock.
25 CFR 167.12 Grazing fees.
Grazing fees shall not be charged at this time. 1020
0201Grazing Committees were organized in May 1953. These committees
have not had ample time to fully acquaint themselves or the stockmen in
their respective districts with all of the various items of range
administration and range management. Also the drought of several years
has not broken. The Navajo Tribe therefore requests that the matter of
establishing regulations regarding the adoption of grazing fees be
deferred until such a time as a full understanding of the advantages of
fees can be had by the majority of the stockmen in all Districts. The
assessment of grazing fees will not aid materially in obtaining proper
range use. At this time it is more important that other sections of
these grazing regulations be adopted and enforced. Resolution of Navajo
Tribal Council No. CJ-22-54 of June 9, 1954.
25 CFR 167.13 Trespass.
The owner of any livestock grazing in trespass in Navajo Tribal
ranges shall be subject to action by the Navajo Court of Indian Offenses
as provided in part 11 of this chapter, however, upon recommendations of
the District Grazing Committee, first offenses may be referred to the
Central Grazing Committee and the Superintendent or his authorized
representative for proper settlement out of court. The following acts
are considered as trespass:
(a) Any person who sells an entire permit must dispose of all his
livestock or be in trespass. Any person selling a portion of his permit
must not run more stock than covered by his remaining permit, or be
subject to immediate trespass.
(b) All persons running livestock in excess of their permitted number
must by April 25, 1959, either obtain permits to cover their total
livestock numbers or reduce to their permitted number, or be in
trespass. Additional time may be granted in unusual individual cases as
determined and approved by the District Grazing Committee, General
Grazing Committee, and the Superintendent or his authorized
representative.
(c) Failure to comply with the provisions in 167.9, shall be
considered as trespass.
(d) Any person who willfully allows his livestock to drift from one
district to another shall be subject to trespass action. The grazing of
livestock in customary use areas extending over District Boundary lines,
when such customary use areas are defined and agreed upon by the
District Grazing Committees involved, shall not be considered as willful
trespass.
(e) The owner of any livestock who violates the customary or
established use units of other permittees shall be subject to trespass
action.
(22 FR 10578, Dec. 24, 1957, as amended at 24 FR 1178, Feb. 17, 1959.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 167.14 Movement of livestock.
Annually, prior to the normal lamb buying season, the Central Grazing
Committee after consultation with District Grazing Committees shall
issue regulations covering the buying period and the procedures and
methods to be used in moving livestock to market. All movements of
livestock other than trucking from buying areas to loading or shipping
points must be authorized by Trailing Permits issued by the District
Grazing Committees on the approved forms. Failure to comply with this
section and with annual lamb buying regulations will be considered as
trespass.
25 CFR 167.15 Control of livestock disease and introduction of
livestock.
(a) The District Grazing Committees with the approval of the
Superintendent shall require livestock to be dipped, vaccinated,
inspected and be restricted in movement when necessary to prevent the
introduction and spread of contagious or infectious disease in the
economic interest of the Navajo stock owners. Upon the recommendation
of the District Grazing Committee livestock shall be dipped annually
when such dipping is necessary to prevent the spread of contagious
diseases. These annual dippings shall be completed on or before
September 1st each year. Livestock, however, may be dipped at other
times when necessary. The Superintendent or his authorized
representative and the District Grazing Committee may also require the
rounding up of cattle, horses, mules, etc., in each District for the
purpose of inspection for disease, vaccinating, branding and other
related operations.
(b) No livestock shall be brought onto the Reservation without a
permit issued by the Superintendent or his authorized representative
following inspection, in order to safeguard Indian livestock from
infections and contagious disease and to insure the introduction of good
quality sires and breeding stock.
(c) Any unusual disease conditions beyond the control measures
provided herein shall be immediately reported by the District Grazing
Committee to the Chairman of the Navajo Tribal Council and the
Superintendent who shall attempt to obtain specialists and provide
emergency funds to control and suppress the disease.
25 CFR 167.16 Fences.
Favorable recommendation from the District Grazing Committee and a
written authorization from the Superintendent or his authorized
representative must be secured before any fences may be constructed in
non-agricultural areas. The District Grazing Committee shall recommend
to the Superintendent the removal of unauthorized existing fences, or
fences enclosing demonstration areas no longer used as such, if it is
determined that such fences interfere with proper range management or an
equitable distribution of range privileges. All enclosures fenced for
the purpose of protecting agricultural land shall be kept to a size
commensurate with the needs for protection of agricultural land and must
be enclosed by legal four strand barbed wire fence or the equivalent.
25 CFR 167.17 Construction near permanent livestock water developments.
(a) The District Grazing Committee shall regulate the construction of
all dwellings, corrals and other structures within one-half mile of
Government or Navajo Tribal developed permanent livestock waters such as
springs, wells, and charcos or deep reservoirs.
(b) A written authorization from the District Grazing Committee must
be secured before any dwellings, corrals, or other structures may be
constructed within one-half mile of Government or Navajo Tribal
developed springs, wells and charcos or deep reservoirs.
(c) No sewage disposal system shall be authorized to be built which
will drain into springs or stream channels in such a manner that it
would cause contamination of waters being used for livestock or human
consumption.
25 CFR 167.17 PART 168 -- GRAZING REGULATIONS FOR THE HOPI PARTITIONED
LANDS AREA
Sec.
168.1 Definitions.
168.2 Authority.
168.3 Purpose.
168.4 Establishment of range units.
168.5 Grazing capacity.
168.6 Grazing on range units authorized by permit.
168.7 Kind of livestock.
168.8 Grazing fees.
168.9 Assignment, modification and cancellation of permits.
168.10 Conservation and land use provisions.
168.11 Range improvements; ownership; new construction.
168.12 Special permit requirements and provisions.
168.13 Fences.
168.14 Livestock trespass.
168.15 Control of livestock diseases and parasites.
168.16 Impoundment and disposal of unauthorized livestock.
168.17 Concurrence procedures.
168.18 Appeals.
168.19 Information collection.
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 640d-8, and 640d-18.
Source: 47 FR 39817, Sept. 10, 1982, unless otherwise noted.
25 CFR 168.1 Definitions.
As used in this part, terms shall have the meanings set forth in this
section.
(a) ''Secretary'' means the Secretary of Interior or his designee;
(b) ''Area Director'' means the officer in charge of the Phoenix
Bureau of Indian Affairs Area Office (or his successor; and/or his
authorized representative) to whom has been delegated the authority of
the Assistant Secretary -- Indian Affairs to act in all matters
pertaining to lands partitioned to the Hopi Tribe under its
jurisdiction, within the boundaries of the former Joint Use Area.
(c) ''Superintendent'' means the Superintendent, Hopi Agency or his
designee.
(d) ''Tribal Government'' means the Hopi Tribal Council, or its duly
designated representative.
(e) ''Project Officer'' means the former Special Project Officer of
the Bureau of Indian Affairs, Administrative Office, Flagstaff, Arizona
86001, who had been delegated the authority of the Commissioner of
Indian Affairs to act in matters respecting the former Joint Use Area.
(f) ''Former Joint Use Area'' means the area established by the
United States District Court for the District of Arizona in the case
entitled Healing v. Jones, 210 F. Supp. 125 (1962), which is inside
the Executive order area (Executive order of December 16, 1882) but
outside Land Management District 6 and which was partitioned by the
judgment of partition dated April 18, 1979.
(g) ''Hopi Partition Area'' means that portion of the Former Joint
Use Area which has been added to the Hopi Tribe's reservation.
(h) ''Range Unit'' means a tract of range land designated as a
management unit for administration of grazing.
(i) ''Range improvements'' means fences, stockwater devices, corrals,
trails and other similar devices or practices which are applied to the
land to enhance range productivity or usability.
(j) ''Permit'' means a revocable privilege granted in writing limited
to entering on and utilizing forage by domestic livestock on a specified
tract of land. The term as used herein shall include written
authorizations issued to enable the crossing or trailing of domestic
livestock across specified tracts or range units.
(k) ''Interim permit'' means a permit granted to members of the
Navajo tribe residing on Hopi Partitioned Lands who meet the
qualifications of 168.6(b) in accordance with Pub. L. 93-531 as
amended.
(l) ''Animal unit'' (AU) means one adult cow with unweaned calf by
her side or equivalent thereof based on comparative forage consumption.
Accepted conversion factors are: sheep and goats, one ewe, doe, buck or
ram equals 0.25 A.U.; one sheep unit year long (SUYL) equals 0.25 Animal
Unit year long; horses and mules, one horse, mule, donkey or burro
equals 1.25 A.U.
(m) ''Tribe'' means the Hopi Tribe including all villages and clans.
(n) ''Allocate'' means to apportion grazing, including the
determination of who may graze livestock, the number and kind of
livestock, and the place such livestock will be grazed.
(o) ''Person awaiting relocation'' means a resident of the Hopi
Partitioned Area who meets each of the following criteria:
(1) Is listed on the Bureau of Indian Affairs enumeration (as defined
in (q) below);
(2) Has a livestock inventory listed with the project Officer (see
(r) below);
(3) Is awaiting relocation under the Settlement Act; and (4) was
grazing livestock on the date of the entry of the Judgment of Partition,
April 18, 1979.
(p) ''Carrying capacity'' means the maximum stocking rate possible
without inducing damage to vegetation or related resources.
(q) ''BIA enumeration'' means the list of persons living on and
improvements located within the former Joint Use Area obtained by
interviews by the Project Officer's staff.
(r) ''Livestock inventory'' means the original list as amended
(developed by the Project Officer in 1976-77) of livestock owned by
persons having customary grazing use in the former Joint Use Area.
(s) ''Settlement Act'' means the Act of December 22, 1974, 88 Stat.
1712, as amended.
(t) ''Life tenant'' means a person who has applied for and been
granted a life estate lease pursuant to section 30 of the Settlement
Act, 25 U.S.C. 640d-28.
25 CFR 168.2 Authority.
It is within the general authority of the Secretary to protect Indian
trust lands against waste and to prescribe rules and regulations under
which these lands may be leased or permitted for grazing. Also, under
the Navajo-Hopi Settlement Act as amended, 25 U.S.C. 640d-8 and 18, the
Secretary is authorized and directed to:
(a) Reduce livestock grazing within the former Joint Use Area to
carrying capacity,
(b) Restore the grazing range potential of the resource to maximum
grazing extent feasible,
(c) Survey, monument and fence the partition boundary,
(d) Protect the rights and property of individuals awaiting
relocation or authorized to reside on life estates, and
(e) To administer conservation practices, including grazing control
and range restoration activities on the Hopi Partitioned Lands.
25 CFR 168.3 Purpose.
These regulations are issued to implement the Secretary's
responsibilities mandated by the Settlement Act and subsequent U.S.
District Court Judgement filed May 4, 1982, in the case, Hopi Tribe v.
Watt, Civ. No. 81-272 PCT-EHC. This portion of the regulations apply
only to lands partitioned to the Hopi Tribe within the former Joint Use
Area.
25 CFR 168.4 Establishment of range units.
The Area Director will use Soil and Range Inventory data to establish
range units on the Hopi Partitioned Area to provide for a surface land
management program to restore the land to its full grazing potential and
maintain that potential to the maximum extent feasible. The
establishment of range units on Hopi Partitioned Lands is subject to the
concurrence of the Hopi Tribe in accordance with 168.17 of these
regulations.
25 CFR 168.5 Grazing capacity.
(a) The Area Director shall prescribe the maximum number of each kind
of livestock which may be grazed on land under his jurisdiction without
inducing damage to vegetation or related resources on each range unit
and the season or seasons of use to achieve the objectives of the land
recovery program required by the Settlement Act.
(b) The Area Director shall review the stocking rate upon which the
grazing permits are issued on a continuing basis and adjust that rate as
conditions warrant.
25 CFR 168.6 Grazing on range units authorized by permit.
Grazing use on range units is authorized only by permits granted
under paragraph (a) or (b) of this section.
(a) Grazing permits to Hopi tribal members on their partitioned
lands. The Area Director shall assign grazing privileges to the Hopi
Tribe for lands within Hopi Partitioned Lands. The tribal government
will then allocate use to their tribal members for permit periods not to
exceed five years. Grazing use by Hopi tribal enterprises may be
authorized. The Area Director will issue permits based on the
determination of the Hopi tribal government.
(b) Interim Grazing Permit for persons awaiting relocation. Navajo
Tribal members who have maintained both a permanent residence on Hopi
Partitioned lands; a livestock inventory since enumeration; and meet
all the criteria listed in 168.1(o), shall be eligible for an interim
grazing allocation on Hopi Partitioned Lands under the following terms
and conditions:
(1) The Area Director shall first verify that an applicant meets the
criteria of the definition in 168.1(o) and will issue all permits.
(2) The permitted number shall not exceed either (i) 10 SUYL (See
168.1(1)) for each eligible family member, or (ii) the grazing
applicant's livestock inventory reduced by voluntary sales as adjusted
by reproduction, in accordance with procedures developed by the Project
Officer based upon the study by Stubblefield and Camfield, 1975 page 5.
The determination of the person to whom permits will be issued and the
number of livestock to be permitted will be based on information
provided by the permit applicant and an assessment of the number of
dependents residing in the immediate household.
(3) The permit shall authorize grazing for a specific number and kind
of animal(s) in a specified range unit. Interim grazing permits will
not be issued in excess of one-half the authorized carrying capacity of
the Hopi Partition area.
(4) Subject to the provisions of 168.9(b), permits shall expire when
the person awaiting relocation is relocated pursuant to the Settlement
Act. No interim permit will be issued for a term greater than one year.
Permits may be reissued upon application and redetermination of
eligibility. All interim permits will expire at the end of the period
provided for completion of relocation, Pub. L. 99-190. When a Navajo
permit holder discontinues grazing livestock or reduces the number being
grazed whether by reason of his relocating or for any other reason, his
grazing permit will be cancelled or reduced and no permit will be issued
in lieu thereof. The total number of authorized animal units grazed by
the Navajo permit holders awaiting relocation will reduced by the number
of animal units authorized under the cancelled or reduced permit.
(47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25,
1986)
25 CFR 168.7 Kind of livestock.
Unless determined otherwise by the Area Director for conservation
purposes, the Hopi Tribe may determine, subject to the authorized
carrying capacity, the kind of livestock that may be grazed by their
tribal members on the range units within the Hopi Partitioned Land area.
25 CFR 168.8 Grazing fees.
(a) The rental value of all uses of Hopi Partitioned lands by persons
who are not members of the Hopi Tribe, including eligible holders of
interim permits, will be determined, and assessed by the Area Director
and paid in accordance with 25 U.S.C. 640d-15.
(b) The Hopi Tribe has established an annual grazing fee to be
assessed all range users on Hopi Partitioned Lands. The annual Hopi
grazing fee shall be paid in full in advance of the annual effective
date of the permit, prior to the issuance of a grazing permit. All
interim permits will expire at the end of the period provided for
completion of relocation, Pub. L. 99-190. Failure of the permittee to
make payment in full in advance will be cause to deny issuance of the
grazing permit.
(47 FR 39817, Sept. 10, 1982, as amended at 51 FR 23052, June 25,
1986)
25 CFR 168.9 Assignment, modification and cancellation of permits.
(a) Grazing permits to Hopi tribal members shall not be reassigned,
subpermitted or transferred without the approval of the permit
issuer(s).
(b) The Area Director may revoke or withdraw all or any part of any
grazing permit in Hopi Partitioned Lands by cancellation or modification
on 30 days written notice of a violation of the permit or special
conditions affecting the land or the safety of the livestock thereon, as
may result from flood, disaster, drought, contagious diseases, etc.
Except in the case of extreme necessity, cancellation or modification
shall be effected on the next annual anniversay date of the grazing
permit following the date of notice. Revocation or withdrawal of all or
any of the grazing permit by cancellation or modification as provided
herein is effective on the date the notice of cancellation or
modification is received and shall be appealable under 25 CFR
part 2.
25 CFR 168.10 Conservation and land use provisions.
Grazing operations shall be conducted in accordance with recognized
principles of good range management. Conservation management plans
necessary to accomplish this will be made a part of the grazing permit
by stipulation.
25 CFR 168.11 Range improvements; ownership; new construction.
Except as provided by the Relocation Act, range improvements placed
on the permitted land shall be considered affixed to the land unless
specifically excepted therefrom under the permit terms. Written
permission to construct or remove improvements must be obtained from the
Hopi Tribe.
25 CFR 168.12 Special permit requirements and provisions.
All grazing permits shall contain the following provisions:
(a) Because the lands covered by the permit are in trust status, all
of the permittees' obligations on the permit and the obligations of his
sureties are to the United States as well as to the beneficial owners of
the lands.
(b) The permittee agrees he will not use, cause, or allow to be used
any part of the permitted area for any unlawful conduct or purpose.
(c) The permit authorizes only the grazing of livestock.
25 CFR 168.13 Fences.
Fencing will be erected by the Federal Government around the
perimeter of the 1882 Executive Order Area, Land Management District 6,
and on the boundary of the former Joint Use Area partitioned to each
tribe by the Judgment of Partition of April 18, 1979. Fencing of other
areas in the former Joint Use Area will be required for a range recovery
program in accordance with the range units established under 168.4.
Such fencing shall be erected at Government expense and ownership shall
be clearly identified by appropriate posting on the fencing.
Intentional destruction of Federal property will be treated as a
violation of 18 U.S.C. 1164.
25 CFR 168.14 Livestock trespass.
The owner of any livestock grazing in trespass on the Hopi
Partitioned Lands Area is liable to a civil penalty of $1 per head per
day for each animal in trespass, together with the replacement value of
the forage consumed and a reasonable value for damages to property
injured or destroyed. The Superintendent may take appropriate action to
collect all such penalties and damages and seek injunctive relief when
appropriate. All payments for such penalties and damages shall be
credited to the Tribe. The following acts are prohibited:
(a) The grazing upon or driving across any of the Hopi Partitioned
Lands of any livestock without an approved grazing or crossing permit;
(b) Allowing livestock to drift and graze on lands without an
approved permit;
(c) The grazing of livestock upon lands within an area closed to
grazing of that class of livestock;
(d) The grazing of livestock by permittees upon any land withdrawn
from use for grazing purpose to protect it from damage, after the
receipt of notice from the Area Director; and
(e) Grazing livestock in excess of those numbers and kinds authorized
on a livestock grazing permit approved by the Area Director.
25 CFR 168.15 Control of livestock diseases and parasites.
Whenever livestock within the Hopi Partitioned Lands become infected
with contagious or infectious diseases or parasites or have been exposed
thereto, such livestock must be treated and the movement thereof
restricted in accordance with applicable laws.
25 CFR 168.16 Impoundment and disposal of unauthorized livestock.
Unauthorized livestock within any range unit of the Hopi Partitioned
Lands which are not removed therefrom within the periods prescribed by
the regulation will be impounded and disposed of by the Superintendent
as provided herein.
(a) When the Area Director determines that unauthorized livestock use
is occurring and has definite knowledge of the kind of unauthorized
livestock, and knows the name and address of the owners, such livestock
may be impounded any time five days after written notice of intent to
impound unauthorized livestock is mailed by certified mail or personally
delivered to such owners or their agent.
(b) When the Area Director determines that unauthorized livestock use
is occurring but does not have complete knowledge of the number and
class of livestock or if the name and address of the owner thereof are
unknown, such livestock will be impounded anytime 15 days after the date
of a General Notice of Intent to Impound unauthorized livestock is first
published in the local newspaper, posted at the nearest chapter house,
and in one or more local trading posts.
(c) Unauthorized livestock on the Hopi Partitioned Lands which are
owned by persons given notice under paragraph (a) of this section, and
any unauthorized livestock in areas for which a notice has been posted
and published under paragraph (b) of this section, will be impounded
without further notice anytime within the twelve-month period
immediately following the effective date of the notice.
(d) Following the impoundment of unauthorized livestock a notice of
sale of impounded livestock will be published in the local newspaper,
posted at the nearest chapter house, and in one or more local trading
posts. The notice will describe the livestock and specify the date,
time and place of sale. The date set shall be at least 5 days after the
publication and posting of such notice.
(e) The owners or their agent may redeem the livestock anytime before
the time set for the sale by submitting proof of ownership and paying
for all expenses incurred in gathering, impounding and feeding or
pasturing the livestock and any trespass fees and/or damages caused by
the animals.
(f) Livestock erroneously impounded shall be returned to the rightful
owner and all expenses accruing thereto shall be waived.
(g) If the livestock are not redeemed before the time fixed for their
sale, they shall be sold at public sale to the highest bidder, provided
his bid is at or above the minimum amount set by the Superintendent
based upon U.S.D.A.'s current Agricultural Statistic's Report for
Arizona. If a bid at or above the minimum is not received the livestock
may be sold at private sale at or above the minimum amount, reoffered at
public sale, condemned and destroyed, or otherwise disposed of. When
livestock are sold pursuant to this regulation, the superintendent shall
furnish the buyer a bill of sale or other written instrument evidencing
the sale.
(h) The proceeds of any sale of impounded livestock shall be applied
as follows: (1) To the payment of all expenses incurred by the United
States in gathering, impounding, and feeding or pasturing the livestock;
(2) in payment of any penalties or damages assessed pursuant to 168.14
of this part which penalties or damages shall be credited to the Hopi
tribe as provided in said section; (3) any remaining amount shall be
paid over to the owner of said livestock upon his submitting proof of
ownership. Any proceeds remaining after payment of the first and second
items noted above not claimed with one year from the date of sale, will
be credited to the Hopi Tribe.
25 CFR 168.17 Concurrence procedures.
(a) Definitions: As used in this section, terms shall have the
meaning set forth as follows:
(1) ''Concurrence'' means agreement by the Area Director and the Hopi
Tribe, speaking through the Chairman of the Tribe (or his designee).
(2) ''Non-concurrence'' means disagreement between the Area Director
and the Hopi Tribe, speaking through the Chairman of the Hopi Tribe (or
his designee), or a failure of the Hopi Tribe to respond to a proposal
by the Area Director in a timely manner.
(3) ''Timely manner'' means a period of thirty days, unless this
period is shortened by the existence of an emergency. Upon request by
the Tribal Council, the Area Director may extend the 30 day period. In
instances where this period applies to the Area Director, he may extend
the period by so notifying the Tribe.
(4) ''An emergency'' is a condition that the Area Director finds
threatens the rights and property of life tenants and persons awaiting
relocation or one that the Area Director finds is causing the condition
of the range land to deteriorate.
(5) ''Conservation practice'' is a program consisting of a series of
acts in conformance with the Bureau's range management policies and
procedures which maintains or seeks to achieve the grazing potential of
range lands on a continuing basis.
(6) ''Range restoration activities'' is a program consisting of a
series of range management acts, including but not limited to procedures
which increase range forage production, reduce erosion, improve range
usability and reduce stocking by issuing grazing permits to persons
residing on Hopi partitioned lands at rates which maximize the carrying
capacity of the range lands on a continuing basis.
(7) ''Grazing control'' is a program consisting of a series of range
management acts, including but not limited to procedures by which
grazing permits are issued to persons residing on Hopi partitioned
lands, which limit the grazing on range lands to its carrying capacity.
(b) The Area Director will seek the participation of the Hopi Tribe
in his investigation, formulation and planning of conservation practices
for Hopi partitioned lands. The Area Director will submit, in writing,
the proposed plan to the Hopi Tribe.
(c) Upon receipt of the Area Director's proposed conservation
practices, the Hopi Tribe will deliver, in writing, to the Area Director
its concurrence or non-concurrence on all of the proposed conservation
practices in a timely manner. The Area Director will continue to seek
Hopi Tribal participation during the review process.
(d) Concurrence of the Hopi Tribe will be sought on all conservation
practices, range restoration activities, and grazing control programs on
the Hopi Partitioned Lands.
(1) If the Area Director and the Hopi Tribe concur on all or part of
the proposed conservation practices in writing in a timely manner, those
practices concurred upon may be immediately implemented.
(2) If the Hopi Tribe does not concur on all or part of the proposed
conservation practices in a timely manner, the Area Director will submit
in writing to the Hopi Tribe a declaration of non-concurrence. The Area
Director will then notify the Hopi Tribe in writing of a formal hearing
to be held not sooner than 15 days from the date of the non-concurrence
declaration.
(i) The formal hearing on non-concurrence will permit the submission
of written evidence and argument concerning the proposal. Minutes of
the hearing will be taken. Following the hearing, the Area Director may
amend, alter or otherwise change his proposed conservation practices.
Except as provided in 168.17(d)(1) of this section, if following the
hearing, the Area Director altered or amends portions of his proposed
plan of action, he will submit those individual altered or amended
portions of the plan to the Tribe in a timely manner for their
concurrence.
(ii) In the event The Tribe fails or refuses to give its concurrence
to the proposal at the hearing, then the implementation of such proposal
may only be undertaken in those situations where the Area Director
expressly determines in a written order, based upon findings of fact,
that the proposed action is necessary to protect the rights and property
of life tenants and/or persons awaiting relocation.
25 CFR 168.18 Appeals.
Appeals from decisions issued under this part will be in accordance
with procedures in 25 CFR part 2.
25 CFR 168.19 Information collection.
The information collection requirement(s) contained in this
regulation have been approved by the Office of Management and Budget
under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-0027.
The information is being collected in order to ascertain eligibility for
the issuance of a grazing permit. Response is mandatory in order to
obtain a permit.
25 CFR 168.19 PART 169 -- RIGHTS-OF-WAY OVER INDIAN LANDS
Sec.
169.1 Definitions.
169.2 Purpose and scope of regulations.
169.3 Consent of landowners to grants of right-of-way.
169.4 Permission to survey.
169.5 Application for right-of-way.
169.6 Maps.
169.7 Field notes.
169.8 Public survey.
169.9 Connection with natural objects.
169.10 Township and section lines.
169.11 Affidavit and certificate.
169.12 Consideration for right-of-way grants.
169.13 Other damages.
169.14 Deposit and disbursement of consideration and damages.
169.15 Action on application.
169.16 Affidavit of completion.
169.17 Change of location.
169.18 Tenure of approved right-of-way grants.
169.19 Renewal of right-of-way grants.
169.20 Termination of right-of-way grants.
169.21 Condemnation actions involving individually owned lands.
169.22 Service lines.
169.23 Railroads.
169.24 Railroads in Oklahoma.
169.25 Oil and gas pipelines.
169.26 Telephone and telegraph lines; radio, television and other
communications facilities.
169.27 Power projects.
169.28 Public highways.
Authority: 5 U.S.C. 301; 62 Stat. 17 (25 U.S.C. 323 -- 328), and
other acts cited in the text.
Source: 33 FR 19803, Dec. 27, 1968, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 169.1 Definitions.
As used in this part 169:
(a) ''Secretary'' means the Secretary of the Interior or his
authorized representative acting under delegated authority. Before
proceeding under these regulations anyone desiring a right-of-way should
inquire at the Indian Agency, Area Field Office, or other office of the
Bureau of Indian Affairs having immediate supervision over the lands
involved to determine the identity of the authorized representative of
the Secretary for the purposes of this part 169.
(b) ''Individually owned land'' means land or any interest therein
held in trust by the United States for the benefit of individual Indians
and land or any interest therein held by individual Indians subject to
Federal restrictions against alienation or encumbrance.
(c) ''Tribe'' means a tribe, band, nation, community, group or pueblo
of Indians.
(d) ''Tribal land'' means land or any interest therein, title to
which is held by the United States in trust for a tribe, or title to
which is held by any tribe subject to Federal restrictions against
alienation or encumbrance, and includes such land reserved for Indian
Bureau administrative purposes. The term also includes lands held by
the United States in trust for an Indian corporation chartered under
section 17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477).
(e) ''Government owned land'' means land owned by the United States
and under the jurisdiction of the Secretary which was acquired or set
aside for the use and benefit of Indians and not included in the
definitions set out in paragraphs (b) and (d) of this section.
25 CFR 169.2 Purpose and scope of regulations.
(a) Except as otherwise provided in 1.2 of this chapter, the
regulations in this part 169 prescribe the procedures, terms and
conditions under which rights-of-way over and across tribal land,
individually owned land and Government owned land may be granted.
(b) Appeals from administrative action taken under the regulations in
this part 169 shall be made in accordance with part 2 of this chapter.
(c) The regulations contained in this part 169 do not cover the
granting of rights-of-way upon tribal lands within a reservation for the
purpose of constructing, operating, or maintaining dams, water conduits,
reservoirs, powerhouses, transmission lines or other works which shall
constitute a part of any project for which a license is required by the
Federal Power Act. The Federal Power Act provides that any license
which shall be issued to use tribal lands within a reservation shall be
subject to and contain such conditions as the Secretary of the Interior
shall deem necessary for the adequate protection and utilization of such
lands. (16 U.S.C. 797(e)). In the case of tribal lands belonging to a
tribe organized under the Act of June 18, 1934 (48 Stat. 984), the
Federal Power Act requires that annual charges for the use of such
tribal lands under any license issued by the Federal Power Commission
shall be subject to the approval of the tribe (16 U.S.C. 803(e)).
25 CFR 169.3 Consent of landowners to grants of right-of-way.
(a) No right-of-way shall be granted over and across any tribal land,
nor shall any permission to survey be issued with respect to any such
lands, without the prior written consent of the tribe.
(b) Except as provided in paragraph (c) of this section, no
right-of-way shall be granted over and across any individually owned
lands, nor shall any permission to survey be issued with respect to any
such lands, without the prior written consent of the owner or owners of
such lands and the approval of the Secretary.
(c) The Secretary may issue permission to survey with respect to, and
he may grant rights-of-way over and across individually owned lands
without the consent of the individual Indian owners when
(1) The individual owner of the land or of an interest therein is a
minor or a person non compos mentis, and the Secretary finds that such
grant will cause no substantial injury to the land or the owner, which
cannot be adequately compensated for by monetary damages;
(2) The land is owned by more than one person, and the owners or
owner of a majority of the interests therein consent to the grant;
(3) The whereabouts of the owner of the land or an interest therein
are unknown, and the owners or owner of any interests therein whose
whereabouts are known, or a majority thereof, consent to the grant;
(4) The heirs or devisees of a deceased owner of the land or an
interest therein have not been determined, and the Secretary finds that
the grant will cause no substantial injury to the land or any owner
thereof;
(5) The owners of interests in the land are so numerous that the
Secretary finds it would be impracticable to obtain their consent, and
also finds that the grant will cause no substantial injury to the land
or any owner thereof.
(36 FR 14183, July 31, 1971. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 169.4 Permission to survey.
Anyone desiring to obtain permission to survey for a right-of-way
across individually owned, tribal or Government owned land must file a
written application therefor with the Secretary. The application shall
adequately describe the proposed project, including the purpose and
general location, and it shall be accompanied by the written consents
required by 169.3, by satisfactory evidence of the good faith and
financial responsibility of the applicant, and by a check or money order
of sufficient amount to cover twice the estimated damages which may be
sustained as a result of the survey. With the approval of the
Secretary, a surety bond may be substituted in lieu of a check or money
order accompanying an application, provided the company issuing the
surety bond is licensed to do business in the State where the land to be
surveyed is located. The application shall contain an agreement to
indemnify the United States, the owners of the land, and occupants of
the land, against liability for loss of life, personal injury and
property damage occurring because of survey activities and caused by the
applicant, his employees, contractors and their employees, or
subcontractors and their employees. When the applicant is an agency or
instrumentality of the Federal or a State Government and is prohibited
by law from depositing estimated damages in advance or agreeing to
indemnification, the requirement for such a deposit and indemnification
may be waived providing the applicant agrees in writing to pay damages
promptly when they are sustained. An application filed by a corporation
must be accompanied by a copy of its charter or articles of
incorporation duly certified by the proper State official of the State
where the corporation was organized, and a certified copy of the
resolution or bylaws of the corporation authorizing the filing of the
application. When the land covered by the application is located in a
State other than that in which the application was incorporated, it must
also submit a certificate of the proper State official that the
applicant is authorized to do business in the State where the land is
located. An application filed by an unincorporated partnership or
association must be accompanied by a certified copy of the articles of
partnership or association, or if there be none, this fact must be
stated over the signature of each member of the partnership or
association. If the applicant has previously filed with the Secretary
an application accompanied by the evidence required in this section, a
reference to the date and place of such filing, accompanied by proof of
current financial responsibility and good faith, will be sufficient.
Upon receipt of an application made in compliance with the regulations
of this part 169, the Secretary may grant the applicant written
permission to survey.
25 CFR 169.5 Application for right-of-way.
Written application identifying the specific use requested shall be
filed in duplicate with the Secretary. The application shall cite the
statute or statutes under which it is filed and the width and length of
the desired right-of-way, and shall be accompanied by satisfactory
evidence of the good faith and financial responsibility of the
applicant. An application filed by a corporation must be accompanied by
a copy of its charter or articles of incorporation duly certified by the
proper State official of the State where the corporation was organized,
and a certified copy of the resolution or bylaws of the corporation
authorizing the filing of the application. When the land covered by the
application is located in a State other than that in which the applicant
was incorporated, it must also submit a certificate of the proper State
official that the applicant is authorized to do business in the State
where the land is located. An application filed by an unincorporated
partnership or association must be accompanied be a certified copy of
the articles of partnership or association, or if there be none, this
fact must be stated over the signature of each member of the partnership
or association. If the applicant has previously filed with the
Secretary an application accompanied by the evidence required by this
section, a reference to the date and place of such filing will be
sufficient. Except as otherwise provided in this section, the
application shall be accompanied by a duly executed stipulation, in
duplicate, expressly agreeing to the following:
(a) To construct and maintain the right-of-way in a workmanlike
manner.
(b) To pay promptly all damages and compensation, in addition to the
deposit made pursuant to 169.4, determined by the Secretary to be due
the landowners and authorized users and occupants of the land on account
of the survey, granting, construction and maintenance of the
right-of-way.
(c) To indemnify the landowners and authorized users and occupants
against any liability for loss of life, personal injury and property
damage arising from the construction, maintenance, occupancy or use of
the lands by the applicant, his employees, contractors and their
employees, or subcontractors and their employees.
(d) To restore the lands as nearly as may be possible to their
original condition upon the completion of construction to the extent
compatible with the purpose for which the right-of-way was granted.
(e) To clear and keep clear the lands within the right-of-way to the
extent compatible with the purpose of the right-of-way; and to dispose
of all vegetative and other material cut, uprooted, or otherwise
accumulated during the construction and maintenance of the project.
(f) To take soil and resource conservation and protection measures,
including weed control, on the land covered by the right-of-way.
(g) To do everything reasonably within its power to prevent and
suppress fires on or near the lands to be occupied under the
right-of-way.
(h) To build and repair such roads, fences, and trails as may be
destroyed or injured by construction work and to build and maintain
necessary and suitable crossings for all roads and trails that intersect
the works constructed, maintained, or operated under the right-of-way.
(i) That upon revocation or termination of the right-of-way, the
applicant shall, so far as is reasonably possible, restore the land to
its original condition.
(j) To at all times keep the Secretary informed of its address, and
in case of corporations, of the address of its principal place of
business and of the names and addresses of its principal officers.
(k) That the applicant will not interfere with the use of the lands
by or under the authority of the landowners for any purpose not
inconsistent with the primary purpose for which the right-of-way is
granted.
When the applicant is the U.S. Government or a State Government or an
instrumentality thereof and is prohibited by law from executing any of
the above stipulations, the Secretary may waive the requirement that the
applicant agree to any stipulations so prohibited.
(33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 169.6 Maps.
(a) Each application for a right-of-way shall be accompanied by maps
of definite location consisting of an original on tracing linen or other
permanent and reproducible material and two reproductions thereof. The
field notes shall accompany the application, as provided in 169.7. The
width of the right-of-way shall be clearly shown on the maps.
(b) A separate map shall be filed for each section of 20 miles of
right-of-way, but the map of the last section may include any excess of
10 miles or less.
(c) The scale of maps showing the line of route normally should be
2,000 feet to an inch. The maps may, however, be drawn to a larger
scale when necessary and when an increase in scale cannot be avoided
through the use of separate field notes, but the scale must not be
increased to such extent as to make the maps too cumbersome for
convenient handling and filing.
(d) The maps shall show the allotment number of each tract of
allotted land, and shall clearly designate each tract of tribal land
affected, together with the sections, townships, and ranges in which the
lands crossed by the right-of-way are situated.
25 CFR 169.7 Field notes.
Field notes of the survey shall appear along the line indicating the
right-of-way on the maps, unless the maps would be too crowded thereby
to be easily legible, in which event the field notes may be filed
separately on tracing linen in such form that they may be folded readily
for filing. Where field notes are placed on separate tracing linen, it
will be necessary to place on the maps only a sufficient number of
station numbers so as to make it convenient to follow the field notes.
The field notes shall be typewritten. Whether endorsed on the maps or
filed separately, the field notes shall be sufficiently complete so as
to permit the line indicating the right-of-way to be readily retraced on
the ground from the notes. They shall show whether the line was run on
true or magnetic bearings, and, in the latter case, the variation of the
needle and date of determination must be stated. One or more bearings
(or angular connections with public survey lines) must be given. The
10-mile sections must be indicated and numbered on all lines of road
submitted.
25 CFR 169.8 Public survey.
(a) The terminal of the line of route shall be fixed by reference of
course and distance to the nearest existing corner of the public survey.
The maps, as well as the engineer's affidavit and the certificate,
shall show these connections.
(b) When either terminal of the line of route is upon unsurveyed
land, it must be connected by traverse with an established corner of the
public survey if not more than 6 miles distant from it, and the single
bearing and distance from the terminal point to the corner computed and
noted on the maps, in the engineer's affidavit, and in the certificate.
The notes and all data for the computation of the traverse must be
given.
25 CFR 169.9 Connection with natural objects.
When the distance to an established corner of the public survey is
more than 6 miles, this connection will be made with a natural object or
a permanent monument which can be readily found and recognized, and
which will fix and perpetuate the position of the terminal point. The
maps must show the position of such mark, and course and distance to the
terminus. There must be given an accurate description of the mark and
full data concerning the traverse, and the engineer's affidavit and the
certificate on the maps must state the connections.
25 CFR 169.10 Township and section lines.
Whenever the line of survey crosses a township or section line of the
public survey, the distance to the nearest existing corner shall be
noted. The maps shall show these distances and the station numbers at
the points of intersections. The field notes shall show these distances
and the station numbers.
25 CFR 169.11 Affidavit and certificate.
(a) There shall be subscribed on the maps of definite location an
affidavit executed by the engineer who made the survey and a certificate
executed by the applicant, both certifying to the accuracy of the survey
and maps and both designating by termini and length in miles and
decimals, the line of route for which the right-of-way application is
made.
(b) Maps covering roads built by the Bureau of Indian Affairs which
are to be transferred to a county or State government shall contain an
affidavit as to the accuracy of the survey, executed by the Bureau
highway engineer in charge of road construction, and a certificate by
the State or county engineer or other authorized State or county officer
accepting the right-of-way and stating that he is satisfied as to the
accuracy of the survey and maps.
25 CFR 169.12 Consideration for right-of-way grants.
Except when waived in writing by the landowners or their
representatives as defined in 169.3 and approved by the Secretary, the
consideration for any right-of-way granted or renewed under this part
169 shall be not less than but not limited to the fair market value of
the rights granted, plus severance damages, if any, to the remaining
estate. The Secretary shall obtain and advise the landowners of the
appraisal information to assist them (the landowner or landowners) in
negotiations for a right-of-way or renewal.
(45 FR 45910, July 8, 1980. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 169.13 Other damages.
In addition to the consideration for a grant of right-of-way provided
for by the provisions of 169.12, the applicant for a right-of-way will
be required to pay all damages incident to the survey of the
right-of-way or incident to the construction or maintenance of the
facility for which the right-of-way is granted.
25 CFR 169.14 Deposit and disbursement of consideration and damages.
At the time of filing an application for right-of-way, the applicant
must deposit with the Secretary the total estimated consideration and
damages, which shall include consideration for the right-of-way,
severance damages, damages caused during the survey, and estimated
damages to result from construction less any deposit previously made
under 169.4. In no case shall the amount deposited as consideration for
the right-of-way over any parcel be less than the amount specified in
the consent covering that parcel. If in reviewing the application, the
Secretary determines that the amounts deposited are inadequate to
compensate the owners, the applicant shall increase the deposit to an
amount determined by the Secretary to be adequate. The amounts so
deposited shall be held in a ''special deposit'' account for
distribution to or for the account of the landowners and authorized
users and occupants of the land. Amounts deposited to cover damages
resulting from survey and construction may be disbursed after the
damages have been sustained. Amounts deposited to cover consideration
for the right-of-way and severance damages shall be disbursed upon the
granting of the right-of-way. Any part of the deposit which is not
required for disbursement as aforesaid shall be refunded to the
applicant promptly following receipt of the affidavit of completion of
construction filed pursuant to 169.16.
25 CFR 169.15 Action on application.
Upon satisfactory compliance with the regulations in this part 169,
the Secretary is authorized to grant the right-of-way by issuance of a
conveyance instrument in the form approved by the Secretary. Such
instrument shall incorporate all conditions or restrictions set out in
the consents obtained pursuant to 169.3. A copy of such instrument
shall be promptly delivered to the applicant and thereafter the
applicant may proceed with the construction work. Maps of definite
location may be attached to and incorporated into the conveyance
document by reference. In the discretion of the Secretary, one
conveyance document may be issued covering all of the tracts of land
traversed by the right-of-way, or separate conveyances may be made
covering one or several tracts included in the application. A duplicate
original copy of the conveyance instrument, permanent and reproducible
maps, a copy of the application and stipulations, together with any
other pertinent documents shall be transmitted by the Secretary to the
office of record for land documents affecting the land covered by the
right-of-way, where they will be recorded and filed.
25 CFR 169.16 Affidavit of completion.
Upon the completion of the construction of any right-of-way, the
applicant shall promptly file with the Secretary an affidavit of
completion, in duplicate, executed by the engineer and certified by the
applicant. The Secretary shall transmit one copy of the affidavit to
the office of record mentioned in 169.15. Failure to file an affidavit
in accordance with this section shall subject the right-of-way to
cancellation in accordance with 169.20.
25 CFR 169.17 Change of location.
If any change from the location described in the conveyance
instrument is found to be necessary on account of engineering
difficulties or otherwise, amended maps and field notes of the new
location shall be filed, and a right-of-way for such new route or
location shall be subject to consent, approval, the ascertainment of
damages, and the payment thereof, in all respects as in the case of the
original location. Before a revised conveyance instrument is issued,
the applicant shall execute such instruments deemed necessary by the
Secretary extinguishing the right-of-way at the original location. Such
instruments shall be transmitted by the Secretary to the office of
record mentioned in 169.15 for recording and filing.
25 CFR 169.18 Tenure of approved right-of-way grants.
All rights-of-way granted under the regulations in this part 169
shall be in the nature of easements for the periods stated in the
conveyance instrument. Except as otherwise determined by the Secretary
and stated in the conveyance instrument, rights-of-way granted under the
Act of February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), for
railroads, telephone lines, telegraph lines, public roads and highways,
access roads to homesite properties, public sanitary and storm sewer
lines including sewage disposal and treatment plants, water control and
use projects (including but not limited to dams, reservoirs, flowage
easements, ditches, and canals), oil, gas, and public utility water
pipelines (including pumping stations and appurtenant facilities),
electric power projects, generating plants, switchyards, electric
transmission and distribution lines (including poles, towers, and
appurtenant facilities), and for service roads and trails essential to
any of the aforestated use purposes, may be without limitation as to
term of years; whereas, rights-of-way for all other purposes shall be
for a period of not to exceed 50 years, as determined by the Secretary
and stated in the conveyance instrument.
(37 FR 12937, June 30, 1972. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 169.19 Renewal of right-of-way grants.
On or before the expiration date of any right-of-way heretofore or
hereafter granted for a limited term of years, an application may be
submitted for a renewal of the grant. If the renewal involves no change
in the location or status of the original right-of-way grant, the
applicant may file with his application a certificate under oath setting
out this fact, and the Secretary, with the consent required by 169.3,
may thereupon extend the grant for a like term of years, upon the
payment of consideration as set forth in 169.12. If any change in the
size, type, or location of the right-of-way is involved, the application
for renewal shall be treated and handled as in the case of an original
application for a right-of-way.
25 CFR 169.20 Termination of right-of-way grants.
All rights-of-way granted under the regulations in this part may be
terminated in whole or in part upon 30 days written notice from the
Secretary mailed to the grantee at its latest address furnished in
accordance with 169.5(j) for any of the following causes:
(a) Failure to comply with any term or condition of the grant or the
applicable regulations;
(b) A nonuse of the right-of-way for a consecutive 2-year period for
the purpose for which it was granted;
(c) An abandonment of the right-of-way.
If within the 30-day notice period the grantee fails to correct the
basis for termination, the Secretary shall issue an appropriate
instrument terminating the right-of-way. Such instrument shall be
transmitted by the Secretary to the office of record mentioned in
169.15 for recording and filing.
(33 FR 19803, Dec. 27, 1968, as amended at 45 FR 45910, July 8, 1980.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 169.21 Condemnation actions involving individually owned lands.
The facts relating to any condemnation action to obtain a
right-of-way over individually owned lands shall be reported immediately
by officials of the Bureau of Indian Affairs having knowledge of such
facts to appropriate officials of the Interior Department so that action
may be taken to safeguard the interests of the Indians.
25 CFR 169.22 Service lines.
(a) An agreement shall be executed by and between the landowner or a
legally authorized occupant or user of individually owned land and the
applicant before any work by the applicant may be undertaken to
construct a service line across such land. Such a service line shall be
limited in the case of power lines to a voltage of 14.5 kv. or less
except lines to serve irrigation pumps and commercial and industrial
uses which shall be limited to a voltage not to exceed 34.5 kv. A
service line shall be for the sole purpose of supplying the individual
owner or authorized occupant or user of land, including schools and
churches, with telephone, water, electric power, gas, and other
utilities for use by such owner, occupant, or user of the land on the
premises.
(b) A similar agreement to that required in paragraph (a) of this
section shall be executed by the tribe or legally authorized occupant or
user of tribal land and the applicant before any work by the applicant
may be undertaken for the construction of a service line across tribal
land. A service line shall be for the sole purpose of supplying an
occupant or user of tribal land with any of the utilities specified in
paragraph (a) of this section. No agreement under this paragraph shall
be valid unless its execution shall have been duly authorized in advance
of construction by the governing body of the Indian tribe whose land is
affected, unless the contract under which the occupant or user of the
land obtained his rights specifically authorizes such occupant or user
to enter into service agreements for utilities without further tribal
consent.
(c) In order to encourage the use of telephone, water, electric
power, gas and other utilities and to facilitate the extension of these
modern conveniences to sparsely settled Indian areas without undue costs
the agreement referred to in paragraph (a) of this section shall only be
required to include or have appended thereto, a plat or diagram showing
with particularity the location, size, and extent of the line. When the
plat or diagram is placed on a separate sheet it shall bear the
signature of the parties. In case of tribal land, the agreement shall
be accompanied by a certified copy of the tribal authorization when
required.
(d) An executed copy of the agreement, together with a plat or
diagram, and in the case of tribal land, an authenticated copy of the
tribal authorization, when required, shall be filed with the Secretary
within 30 days after the date of its execution. Failure to meet this
requirement may result in the removal of improvements placed on the land
at the expense of the party responsible for the placing of such
improvements and subject such party to the payment of damages caused by
his unauthorized act.
25 CFR 169.23 Railroads.
(a) The Act of March 2, 1899 (30 Stat. 990), as amended by the Acts
of February 28, 1902 (32 Stat. 50), June 21, 1906 (34 Stat. 330), and
June 25, 1910 (36 Stat. 859; 25 U.S.C. 312 -- 318); the Act of March
3, 1875 (18 Stat. 482; 43 U.S.C. 934); and the Act of March 3, 1909
(35 Stat. 781), as amended by the Act of May 6, 1910 (36 Stat. 349; 25
U.S.C. 320), authorize grants of rights-of-way across tribal,
individually owned and Government-owned land, except in the State of
Oklahoma, for railroads, station buildings, depots, machine shops, side
tracks, turnouts, and water stations; for reservoirs, material or
ballast pits needed to the construction, repair, and maintenance of
railroads; and for the planting and growing of trees to protect
railroad lines. Rights-of-way granted under the above acts shall be
subject to the provisions of this section as well as other pertinent
sections of this part 169. Except when otherwise determined by the
Secretary, rights-of-way for the above purposes granted under the Act of
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328), shall also be
subject to the provisions of this section.
(b) Rights-of-way for railroads shall not exceed 50 feet in width on
each side of the centerline of the road, except where there are heavy
cuts and fills, when they shall not exceed 100 feet in width on each
side of the road. The right-of-way may include grounds adjacent to the
line for station buildings, depots, machine shops, side tracks,
turnouts, and water stations, not to exceed 200 feet in width by a
length of 3,000 feet, with no more than one station to be located within
any one continuous length of 10 miles of road.
(c) Short spurs and branch lines may be shown on the map of the main
line, separately described by termini and length. Longer spurs and
branch lines shall be shown on separate maps. Grounds desired for
station purposes may be indicated on the map of definite location but
separate plats must be filed for such grounds. The maps shall show any
other line crossed, or with which connection is made. The station
number shall be shown on the survey thereof at the point of
intersection. All intersecting roads must be represented in ink of a
different color from that used for the line for which application is
made.
(d) Plats of railroad station grounds shall be drawn on a scale of
400 feet to an inch, and must be filed separately from the line of
route. Such plats shall show enough of the line of route to indicate
the position of the tract with reference thereto. Each station ground
tract must be located with respect to the public survey as provided in
169.8 and all buildings or other structures shall be platted on a scale
sufficiently large to show clearly their dimensions and relative
positions.
(e) If any proposed railroad is parallel to, and within 10 miles of,
a railroad already built or in course of construction, it must be shown
wherein the public interest will be promoted by the proposed road.
Where the Interstate Commerce Commission has passed on this point, a
certified copy of its findings must be filed with the application.
(f) The applicant must certify that the road is to be operated as a
common carrier of passengers and freight.
(g) The applicant shall execute and file, in duplicate, a stipulation
obligating the company to use all precautions possible to prevent forest
fires and to suppress such fires when they occur, to construct and
maintain passenger and freight stations for each Government townsite,
and to permit the crossing, in a manner satisfactory to the Government
officials in charge, of the right-of-way by canals, ditches, and other
projects.
(h) A railroad company may apply for sufficient land for ballast or
material pits, reservoirs, or tree planting to aid in the construction
or maintenance of the road. The authority to use any land for such
purposes shall terminate upon abandonment or upon failure to use the
land for such purposes for a continuous period of 2 years.
25 CFR 169.24 Railroads in Oklahoma.
(a) The Act of February 28, 1902 (32 Stat. 43), authorizes
right-of-way grants across tribal and individually owned land in
Oklahoma. Rights-of-way granted under that act shall be subject to the
provisions of this section as well as other pertinent sections of this
part 169. Except when otherwise determined by the Secretary, railroad
rights-of-way in Oklahoma granted under the Act of February 5, 1948 (62
Stat. 17; 25 U.S.C. 323-328), shall also be subject to the provisions
of this section.
(b) One copy on tracing linen of the map of definite location showing
the line of route and all lands included within the right-of-way must be
filed with the Secretary. When tribal lands are involved, a copy of the
map must also be filed with the tribal council.
(c) Before any railroad may be constructed or any lands taken or
condemned for any of the purposes set forth in section 13 of the Act of
February 28, 1902 (32 Stat. 47), full damages shall be paid to the
Indian owners.
(d) After the maps have been filed, the matter of damages shall be
negotiated by the applicant directly with the Indian owners. If an
amicable settlement cannot be reached, the amount to be paid as
compensation and damages shall be fixed and determined as provided in
the statute. If court proceedings are instituted, the facts shall be
reported immediately as provided in 169.21.
25 CFR 169.25 Oil and gas pipelines.
(a) The Act of March 11, 1904 (33 Stat. 65), as amended by the Act of
March 2, 1917 (39 Stat. 973; 25 U.S.C. 321), authorizes right-of-way
grants for oil and gas pipelines across tribal, individually owned and
Government-owned land. Rights-of-way granted under that act shall be
subject to the provisions of this section as well as other pertinent
sections of this part 169. Except when otherwise determined by the
Secretary, rights-of-way granted for such purposes under the Act of
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328) shall also be
subject to the provisions of this section.
(b) Rights-of-way, granted under aforesaid Act of March 11, 1904, as
amended, for oil and gas pipelines, pumping stations or tank sites shall
not extend beyond a term of 20 years and may be extended for another
period of not to exceed 20 years following the procedures set out in
169.19 of this part.
(c) All oil or gas pipelines, including connecting lines, shall be
buried a sufficient depth below the surface of the land so as not to
interfere with cultivation. Whenever the line is laid under a road or
highway, the right-of-way for which has been granted under an approved
application pursuant to an act of Congress, its construction shall be in
compliance with the applicable Federal and State laws; during the
period of construction, at least one-half the width of the road shall be
kept open to travel; and, upon completion, the road or highway shall be
restored to its original condition and all excavations shall be
refilled. Whenever the line crosses a ravine, canyon, or waterway, it
shall be laid below the bed thereof or upon such superstructure as will
not interfere with the use of the surface.
(d) The size of the proposed pipeline must be shown in the
application, on the maps, and in the engineer's affidavit and
applicant's certificate. The application and maps shall specify whether
the pipe is welded, screw-joint, dresser, or other type of coupling.
Should the grantee of an approved right-of-way desire at any time to lay
additional line or lines of pipe in the same trench, or to replace the
original line with larger or smaller pipe, written permission must first
be obtained from the Secretary and all damages to be sustained by the
owners must be paid in advance in the amount fixed and determined by the
Secretary.
(e) Applicants for oil or gas pipeline rights-of-way may apply for
additional land for pumping stations or tank sites. The maps shall show
clearly the location of all structures and the location of all lines
connecting with the main line. Applicants for lands for pumping
stations or tank sites shall execute and file a stipulation agreeing as
follows:
(1) Upon abandonment of the right-of-way to level all dikes,
fire-guards, and excavations and to remove all concrete masonry
foundations, bases, and structural works and to restore the land as
nearly as may be possible to its original condition.
(2) That a grant for pumping station or tank site purposes shall be
subservient to the owner's right to remove or authorize the removal of
oil, gas, or other mineral deposits; and that the structures for
pumping station or tank site will be removed or relocated if necessary
to avoid interference with the exploration for or recovery of oil, gas,
or other minerals.
(f) Purely lateral lines connecting with oil or gas wells on
restricted lands may be constructed upon filing with the Secretary a
copy of the written consent of the Indian owners and a blueprint copy of
a map showing the location of the lateral. Such lateral lines may be of
any diameter or length, but must be limited to those used solely for the
transportation of oil or gas from a single tract of tribal or
individually owned land to another lateral or to a branch of the main
line.
(g) The applicant, by accepting a pipeline right-of-way, thereby
agrees that the books and records of the applicant shall be open to
inspection by the Secretary at all reasonable times, in order to obtain
information pertaining in any way to oil or gas produced from tribal or
individually owned lands or other lands under the jurisdiction of the
Secretary.
25 CFR 169.26 Telephone and telegraph lines; radio, television, and
other communications facilities.
(a) The Act of February 15, 1901 (31 Stat. 790), as amended by the
Act of March 4, 1940 (54 Stat. 41; 43 U.S.C. 959); the Act of March 4,
1911 (36 Stat. 1253), as amended by the Act of May 27, 1952 (66 Stat.
95; 43 U.S.C. 961); and the Act of March 3, 1901 (31 Stat. 1083; 25
U.S.C. 319), authorize right-of-way grants across tribal, individually
owned, and Government-owned land for telephone and telegraph lines and
offices, for poles and lines for communication purposes, and for radio,
television, and other forms of communication transmitting, relay, and
receiving structures and facilities. Rights-of-way granted under these
acts shall be subject to the provisions of this section as well as other
pertinent sections of this part 169. Except when otherwise determined
by the Secretary, rights-of-way granted for such purposes under the Act
of February 5, 1948 (62 Stat. 17; 25 U.S.C. 323 -- 328), shall also be
subject to the provisions of this section.
(b) A right-of-way granted under the said Act of March 4, 1911, as
amended, shall be limited to a term not exceeding 50 years from the date
of the issuance of such grant.
(c) No right-of-way shall be granted for a width in excess of 50 feet
on each side of the centerline, unless special requirements are clearly
set forth in the application which fully justify a width in excess of 50
feet on each side of the centerline.
(d) Applicants engaged in the general telephone and telegraph
business may apply for additional land for office sites. The maps
showing the location of proposed office sites shall be filed separately
from those showing the line of route, and shall be drawn to a scale of
50 feet to an inch. Such maps shall show enough of the line of route to
indicate the position of the tract with reference thereto. The tract
shall be located with respect to the public survey as provided in
169.8, and all buildings or other structures shall be platted on a scale
sufficiently large to show clearly their dimensions and relative
positions.
(e) Rights-of-way for poles and lines for communication purposes, and
for radio, television, and other forms of communication transmitting,
relay, and receiving structures and facilities, shall be limited to 200
feet on each side of the centerline of such lines and poles; radio and
television, and other forms of communication transmitting, relay, and
receiving structures and facilities shall be limited to an area not to
exceed 400 feet by 400 feet.
25 CFR 169.27 Power projects.
(a) The Act of March 4, 1911 (36 Stat. 1253), as amended by the Act
of May 27, 1952 (66 Stat. 95; 43 U.S.C. 961), authorizes right-of-way
grants across tribal, individually owned and Government-owned land for
electrical poles and lines for the transmission and distribution of
electrical power. Rights-of-way granted under that act shall be subject
to the provisions of this section as well as other pertinent sections of
this part 169. Except when otherwise determined by the Secretary,
rights-of-way granted for such purposes under the Act of February 5,
1948 (62 Stat. 17; 25 U.S.C. 323 -- 328) shall also be subject to the
provisions of this section.
(b) All applications, other than those made by power-marketing
agencies of the Department of the Interior, for authority to survey,
locate, or commence construction work on any project for the generation
of electric power, or the transmission or distribution of electrical
power of 66 kV or higher involving Government-owned lands shall be
referred to the Office of the Assistant Secretary of the Interior for
Water and Power Resources or such other agency as may be designated for
the area involved, for consideration of the relationship of the proposed
project to the power development program of the United States. Where
the proposed project will not conflict with the program of the United
States, the Secretary, upon notification to the effect, may then proceed
to act upon the application. In the case of necessary changes
respecting the proposed location, construction, or utilization of the
project in order to eliminate conflicts with the power development
program of the United States, the Secretary shall obtain from the
applicant written consent to or compliance with such requirements before
taking further action on the application.
(c) A right-of-way granted under the said Act of March 4, 1911, as
amended, shall be limited to a term not exceeding 50 years from the date
of the issuance of such grant.
(d) Rights-of-way for power lines shall be limited to those widths
which can be justified and in no event shall exceed a width of 200 feet
on each side of the centerline.
(e) The applicant shall make provision, or bear the reasonable cost
(as may be determined by the Secretary) of making provision, for
avoiding inductive interference between any project transmission line or
other project works constructed, operated, or maintained by it on the
right-of-way authorized under the grant and any radio installation,
telephone line, or other communication facilities now or hereafter
constructed and operated by the United States or any agency thereof.
This provision shall not relieve the applicant from any responsibility
or requirement which may be imposed by other lawful authority for
avoiding or eliminating inductive interference.
(f) An applicant for a right-of-way for a transmission line across
Government-owned lands having a voltage of 66 kV or more must, in
addition to the stipulation required by 169.5, execute and file with
its application a stipulation agreeing to accept the right-of-way grant
subject to the following conditions:
(1) The applicant agrees that, in the event it becomes necessary for
the United States to acquire the applicant's transmission line or
facilities constructed on or across such right-of-way, the United States
reserves the right to acquire such line or facilities at a sum to be
determined upon by a representative of the applicant, a representative
of the Secretary of the Interior, and a third representative to be
selected by the other two for the purpose of determining the value of
such property thus to be acquired by the United States.
(2) To allow the Department of the Interior to utilize for the
transmission of electrical power any surplus capacity of the line in
excess of the capacity needed by the holder of the grant for the
transmission of electrical power in connection with the applicant's
operations, or to increase the capacity of the line at the Department's
expense and to utilize the increased capacity for the transmission of
electrical power. Utilization by the Department of surplus or increased
capacity shall be subject to the following terms and conditions:
(i) When the Department desires to utilize surplus capacity thought
to exist in a line, notification will be given to the applicant and the
applicant shall furnish to the Department within 30 days a certificate
stating whether the line has any surplus capacity not needed by the
applicant for the transmission of electrical power in connection with
the applicant's operations, and, if so, the extent of such surplus
capacity.
(ii) In order to utilize any surplus capacity certified by the
applicant to be available, or any increased capacity provided by the
Department at its own expense, the Department may interconnect its
transmission facilities with the applicant's line in a manner
conformable to approved standards of practice for the interconnection of
transmission circuits.
(iii) The expense of interconnection will be borne by the Department,
and the Department will at all times provide and maintain adequate
switching, relaying, and protective equipment so as to insure that the
normal and efficient operation of the applicant's line will not be
impaired.
(iv) After any interconnection is completed, the applicant shall
operate and maintain its line in good condition; and, except in
emergencies, shall maintain in a closed position all connections under
the applicant's control between the applicant's line and the
interconnecting facilities provided by the Department.
(v) The interconnected power systems of the Department and the
applicant will be operated in parallel.
(vi) The transmission of electrical power by the Department over the
applicant's line will be effected in such manner and quantity as will
not interfere unreasonably with the applicant's use and operation of the
line in accordance with the applicant's normal operating standards,
except that the Department shall have the exclusive right to utilize any
increased capacity of the line which has been provided at the
Department's expense.
(vii) The applicant will not be obligated to allow the transmission
over its line by the Department of electrical power to any person
receiving service from the applicant on the date of the filing of the
application for a grant, other than persons entitled to statutory
preference in connection with the distribution and sale of electrical
power by the Department.
(viii) The Department will pay to the applicant an equitable share of
the total monthly cost of maintaining and operating the part of the
applicant's line utilized by the Department for the transmission of
electrical power, the payment to be an amount in dollars representing
the same proportion of the total monthly operation and maintenance cost
of such part of the line as the maximum amount in kilowatts of the power
transmitted on a scheduled basis by the Department over the applicant's
line during the month bears to the total capacity in kilowatts of that
part of the line. The total monthly cost may include interest and
amortization, in accordance with the system of accounts prescribed by
the Federal Power Commission, on the applicant's net total investment
(exclusive of any investment by the Department) in the part of the line
utilized by the Department.
(ix) If, at any time subsequent to a certification by the applicant
that surplus capacity is available for utilization by the Department,
the applicant needs for the transmission of electrical power in
connection with its operations the whole or any part of the capacity of
the line theretofore certified as being surplus to its needs, the
applicant may modify or revoke the previous certification by giving the
Secretary of the Interior 30 months' notice, in advance, of the
applicant's intention in this respect. After the revocation of a
certificate, the Department's utilization of the particular line will be
limited to the increased capacity, if any, provided by the Department at
its expense.
(x) If, during the existence of the grant, the applicant desires
reciprocal accommodations for the transmission of electrical power over
the interconnecting system of the Department to its line, such
reciprocal accommodations will be accorded under terms and conditions
similar to those prescribed in this paragraph with respect to the
transmission by the Department of electrical power over the applicant's
line.
(xi) The terms and conditions prescribed in this paragraph may be
modified at any time by means of a supplemental agreement negotiated
between the applicant and the Secretary of the Interior or his designee.
(g) Applicants may apply for additional lands for generating plants
and appurtenant facilities. The lands desired for such purposes may be
indicated on the maps showing the definite location of the right-of-way,
but separate maps must be filed therefor. Such maps shall show enough
of the line of route to indicate the position of the tract with respect
to said line. The tract shall be located with respect to the public
survey as provided in 169.8, and all buildings or other structures
shall be platted on a scale sufficiently large to show clearly their
dimensions and relative positions.
(33 FR 19803, Dec. 27, 1968, as amended at 38 FR 14680, June 4, 1973.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 169.28 Public highways.
(a) The appropriate State or local authorities may apply under the
regulations in this part 169 for authority to open public highways
across tribal and individually owned lands in accordance with State
laws, as authorized by the Act of March 3, 1901 (31 Stat. 1084; 25
U.S.C. 311).
(b) In lieu of making application under the regulations in this part
169, the appropriate State or local authorities in Nebraska or Montana
may, upon compliance with the requirements of the Act of March 4, 1915
(38 Stat. 1188), lay out and open public highways in accordance with the
respective laws of those States. Under the provisions of that act, the
applicant must serve the Secretary with notice of intention to open the
proposed road and must submit a map of definite location on tracing
linen showing the width of the proposed road for the approval of the
Secretary prior to the laying out and opening of the road.
(c) Applications for public highway rights-of-way over and across
roadless and wild areas shall be considered in accordance with the
regulations contained in part 265 of this chapter.
25 CFR 169.28 PART 170 -- ROADS OF THE BUREAU OF INDIAN AFFAIRS
Sec.
170.1 Purpose.
170.2 Definitions.
170.3 Construction and improvement.
170.4 Approval of road construction activities.
170.4a Selection of road construction projects.
170.5 Right-of-way.
170.5a Employment of Indians.
170.6 Maintenance of Indian roads.
170.6a Contributions from tribes.
170.7 Cooperation with States.
170.8 Use of roads.
170.9 Roadless and wild areas.
170.10 Purpose and objectives.
170.11 Criteria.
170.12 Need for public hearing determined.
170.13 Notice of road construction projects.
170.14 Notice of public hearing.
170.15 Record of hearing proceedings.
170.16 Conducting the public hearing.
170.17 Written statements.
170.18 Hearing statement.
170.19 Appeals.
Authority: 36 Stat. 861; 78 Stat. 241, 253, 257; 45 Stat. 750
(25 U.S.C. 47; 42 U.S.C. 2000e(b), 2000e-2(i); 23 U.S.C. 101(a), 208,
308), unless otherwise noted.
Source: Sections 170.1 to 170.9, 39 FR 27132, July 25, 1974, unless
otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 169.28 Construction and Maintenance of Roads
25 CFR 170.1 Purpose.
The regulations in this part govern the planning, design,
construction, maintenance and general administration of certain Indian
reservation roads and bridges.
25 CFR 170.2 Definitions.
As used in this part:
(a) ''Commissioner'' means the Commissioner of Indian Affairs.
(b) ''Superintendent'' means the Agency Superintendent at all
locations, with the exception that at the Navajo Reservation this term
shall mean the Area Director or his designated representative for public
hearings on arterial roads which cross Agency boundaries of
jurisdiction.
(c) ''State'' means a State or territory or political subdivision
thereof.
(d) ''Indian Reservation Roads and Bridges'' means roads and bridges
that are located within or provide access to an Indian reservation or
Indian trust land or restricted Indian land which is not subject to fee
title alienation without the approval of the Federal Government, or
Indian and Alaska Native villages, groups or communities in which
Indians and Alaskan Natives reside, whom the Commissioner has determined
are eligible for services generally available to Indians under Federal
laws specifically applicable to Indians. (23 U.S.C. 101(a))
(e) ''Indian and Alaskan Native villages, groups, or communities in
which Indian or Alaska Natives reside'' means villages, groups or
communities or portions of villages, groups, or communities in which the
majority of the residents are Indians or Alaska Natives.
(f) ''Federal-Aid Indian Road System'' means those Indian reservation
roads and bridges for which financial aid for construction is available
only from specific appropriations of Federal funds therefor and which
are designated by the Bureau of Indian Affairs and the Federal Highway
Administration. This term does not include roads or bridges on Indian
reservations for which financial aid for construction and improvement is
available to a State under the Federal-Aid Highway Act. (45 Stat. 750)
(g) ''Construction'' means supervising, inspecting, actual building,
and all expenses incidental to the construction and improvement of roads
and bridges including the elimination of roadway hazards and the
acquisition of rights-of-way.
(h) ''Maintenance'' means the act of preserving the entire roadway,
including surface, shoulders, roadsides, structures, and the necessary
traffic control devices as nearly as possible in the as-built condition
and to provide services for the satisfactory and safe use of such roads.
25 CFR 170.3 Construction and improvement.
Subject to the availability of appropriations for Indian reservation
roads and bridges and any other contribution of State or Indian tribal
lands, the Commissioner shall plan, survey, design and construct roads
on the Federal-Aid Indian Road System to provide an adequate system of
road facilities serving Indian lands.
25 CFR 170.4 Approval of road construction activities.
The Secretary of Transportation or his authorized representative
shall approve the location, type, and design of all projects on the
Federal-Aid Indian Road System before any construction expenditures are
made. All such construction shall be under the general supervision of
the Secretary of Transportation or his authorized representative.
(23 U.S.C. 208)
25 CFR 170.4a Selection of road construction projects.
The Commissioner, who is responsible for the planning, surveys and
design, shall keep the appropriate local tribal officials informed of
all technical information relating to the project alternatives of
proposed road developments. The Commissioner shall recommend to the
tribe those proposed road projects having the greatest need as
determined by the comprehensive transportation analysis. Tribes shall
then establish annual priorities for road construction projects.
Subject to the approval of the Commissioner, the annual selection of
road projects for construction shall be performed by tribes. Funds
available for the construction of roads on the Federal-Aid Indian Road
System shall not be used for the capital improvement to privately-owned
property. (39 Stat. 355)
25 CFR 170.5 Right-of-way.
(a) The procedure for obtaining permission to survey and for granting
any necessary right-of-way are governed by part 169 of this chapter.
Tribal consent as required under 169.3(a) may be made by public
dedication where proper tribal authority exists. Before any work is
undertaken for the construction of road projects, the Commissioner shall
obtain the written consent of the Indian landowners. Where an Indian
has an interest in tribal land by virtue of a land use assignment, such
consent shall be obtained from both the landholder of the assignment and
the Indian tribe. Right-of-way easements are to be on a form approved
by the Commissioner.
(b) If it appears that the road might be transferred to the tribe,
the county or the State within 10 years, then before such construction
is undertaken, right-of-way easements for the project shall be obtained
in favor of the United States, its successors and assigns, with the
right to construct, maintain, and repair improvements thereon and
thereover, for such purposes and with the further right in the United
States, its successors and assigns, to transfer the right-of-way
easements by assignment, grant or otherwise.
25 CFR 170.5a Employment of Indians.
The Bureau of Indian Affairs road program shall be administered in
such a way as to provide training and employment of Indians. The
Commissioner may contract with tribes and Indian-owned construction
companies, or the Commissioner may purchase materials, obtain equipment
and employ Indian labor in the construction and maintenance of roads.
(36 Stat. 861; 78 Stat. 241, 253; 78 Stat. 257; 25 U.S.C. 47; 42
U.S.C. 2000e(b), 2000e-2(i); 23 U.S.C. 208(c))
25 CFR 170.6 Maintenance of Indian roads.
The administration and maintenance of Indian reservation roads and
bridges is basically a function of the local Government. Subject to the
availability of funds, the Commissioner shall maintain, or cause to be
maintained, those approved roads on the Federal-Aid Indian Road System.
The Commissioner may also maintain roads not on the Federal-Aid Indian
Road System if such roads meet the definition of ''Indian reservation
road and bridges'' and are approved for maintenance by the Commissioner.
No funds authorized under 23 U.S.C. 208 are available for the
maintenance of roads.
25 CFR 170.6a Contributions from tribes.
The Commissioner may enter into agreements with an Indian tribe for a
contribution from its tribal funds for the construction or maintenance
of roads governed by regulations of this part. However, the tribe must
be able to make such contributions without undue impairment of the
necessary tribal functions.
25 CFR 170.7 Cooperation with States.
The Commissioner may enter into an agreement with the State for
cooperation in the construction and the maintenance of certain Indian
reservation roads and bridges, especially at those locations where road
projects serve non-Indian land as well as Indian land.
(23 U.S.C. 208(d); 23 U.S.C.308(a))
25 CFR 170.8 Use of roads.
(a) Free public use is required on roads eligible for construction
and maintenance with Federal funds under this part. When required for
public safety, fire prevention or suppression, or fish or game
protection, or to prevent damage to unstable roadbed, the Commissioner
may restrict the use of them or may close them to public use.
(b) The Commissioner shall conduct engineering and traffic analysis
in accordance with established traffic engineering practices and
determine the necessary maximum speed limit, maximum vehicular weight
limit and other needed regulatory signs for roads which he maintains.
The Commissioner shall make recommendations to local Government
officials, who are authorized to enact and enforce ordinances on Indian
lands, of his determination of the needed regulatory signs. Such
regulatory signs as are authorized by established ordinances shall be
erected by the Commissioner. At locations under the jurisdiction of the
Court of Indian Offenses the Commissioner shall erect such regulatory
signs as he determines are needed.
25 CFR 170.9 Roadless and wild areas.
Roads passable to motor transportation shall not be constructed under
the regulations in this part within the boundaries of the roadless and
wild areas established in part 265 of this chapter.
25 CFR 170.9 Public Hearings on Road Projects
Authority: 45 Stat. 750; 25 U.S.C. 318a. Interpret or apply sec.
6, 49 Stat. 1521, as amended; 25 U.S.C. 318b.
Source: Sections 170.10 to 170.19, 39 FR 12733, Apr. 8, 1974,
unless otherwise noted. Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 170.10 Purpose and objectives.
The regulations in this subpart govern the calling and conducting of
public hearings on Bureau of Indian Affairs road projects beginning with
road projects scheduled to begin construction in Fiscal Year 1975, and
thereafter. In order to promote coordination and comprehensive planning
of construction activities on Indian reservations, the objectives for
conducting public hearings on proposed road projects are to:
(a) Inform interested persons of the road proposals which affect them
and allow such persons to express their views at those stages of a
project's development when the flexibility to respond to these views
still exists.
(b) Insure that road locations and designs are consistent with the
reservations' objectives and with applicable Federal regulations.
25 CFR 170.11 Criteria.
A public hearing shall be held for each project that:
(a) Is a new route being constructed,
(b) Would significantly change the layout or function of connecting
or related roads or streets,
(c) Would have an adverse effect upon adjacent real property, or
(d) Is expected to be of a controversial nature.
25 CFR 170.12 Need for public hearing determined.
The Superintendent will call a meeting of representatives from the
tribe, the Bureau of Indian Affairs, and other appropriate agencies to
determine for each road project if a public hearing is needed. The
determination will be based on the criteria given in 170.11. More than
one public hearing may be held for a project if necessary.
25 CFR 170.13 Notice of road construction projects.
When no public hearing is scheduled for a road construction project,
notice of the road construction project must be given at least 90 days
before the date construction is scheduled to begin. Such notice should
give the project name and location, the type of improvement planned, the
date construction is scheduled to start, and the name and address of the
office where more information can be obtained. The notice should be
posted or published as determined by the Superintendent.
25 CFR 170.14 Notice of public hearing.
Notice will be given to inform the local public of the scheduled
hearing. The notice should give the date, time, and place of the
scheduled hearing; the project location; the proposed work to be done;
the place where the preliminary plans may be reviewed; and the place
where more information on the project can be obtained. The notice
should be posted or published as determined by the Superintendent.
Notice should be given at least 15 days before the scheduled date of the
public hearing and again, at least 5 days before the hearing date.
25 CFR 170.15 Record of hearing proceedings.
A record of the hearing shall be made. The record shall include
written statements submitted at the hearing or within 5 days following
the hearing.
25 CFR 170.16 Conducting the public hearing.
(a) The Superintendent will appoint a tribal or Bureau of Indian
Affairs official to preside at the public hearing and to maintain a
medium for free and open discussion designed to reach early and amicable
resolution of issues.
(b) The Superintendent shall be responsible for maintaining a record
of the hearing and shall make arrangements for appropriate officials to
be present at the hearing to be responsive to questions which may arise.
(c) The purpose of the hearing and an agenda of items to be discussed
should be presented at the beginning of the hearing. It should be made
clear at the hearing that the tribal chairman or his designated roads
committee are the officials responsible for setting reservation road
priorities and considering the merits of one road project over another.
Sufficient maps and project plans will be available at the hearing for
public review. The hearing audience should be informed of the Bureau's
road construction and right-of-way acquisition procedures on
reservations. If the project will require relocating residences or
businesses, information on relocation services and authorized payments
will be given.
25 CFR 170.17 Written statements.
Written statements may be submitted as well as oral statements made
at the public hearing. Written statements may also be submitted during
the 5 days following the hearing.
25 CFR 170.18 Hearing statement.
If significant issues develop at the public hearing which remain
unresolved, the Superintendent will issue a hearing statement
summarizing the results of the public hearing and his determination as
to the further action to be taken in connection with the proposed
project. The hearing statement shall be issued within 20 days of the
date of the public hearing. The hearing statement will be posted at the
place where the hearing was held, and shall be sent to interested
persons upon request. The hearing statement will outline procedures
whereby the determination may be appealed.
25 CFR 170.19 Appeals.
Any determination concerning the proposed road project may be
appealed in accordance with the procedures set forth in part 2 of this
title.
25 CFR 170.19 PART 171 -- OPERATION AND MAINTENANCE
Sec.
171.1 Administration.
171.2 Irrigation season.
171.3 Domestic and stock water.
171.4 Farm units.
171.5 Delivery points.
171.6 Distribution and apportionment of water.
171.7 Application for and record of deliveries of irrigation water.
171.8 Surface drainage.
171.9 Structures.
171.10 Fencing.
171.11 Obstructions.
171.12 Rights-of-way.
171.13 Crops and statistical reports.
171.14 Carriage agreements and water right applications.
171.15 Leaching water.
171.16 Excess water.
171.17 Delivery of water.
171.18 Service or farm ditches.
171.19 Operation and maintenance assessments.
171.20 Water users' ledgers.
171.21 Health and sanitation.
171.22 Complaints.
171.23 Disputes.
Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C.
385. Sec. 171.4(b) also issued under 34 Stat. 1024, 38 Stat. 583, and
68 Stat. 1026. Secs. 171.4(a), 171.4(c), 171.16(b), and 171.17(f) also
issued under sec. 11, 39 Stat. 142.
Source: 42 FR 30362, June 14, 1977, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 171.1 Administration.
(a) The Agency Superintendent, Project Engineer or such official as
authorized by the Area Director is the Officer-in-Charge of those Indian
Irrigation Projects or units operated or subject to administration by
the Bureau of Indian Affairs, whether or not each project or unit is
specifically mentioned in this part. The Officer-in-Charge is fully
authorized to administer, carry out, and enforce these regulations
either directly or through employees designated by him. Such
enforcement includes the refusal to deliver water.
(b) The Officer-in-Charge is authorized to apply to irrigation
subsistence units or garden tracts only those regulations in this part
which in his judgment would be applicable in view of the size of the
units and the circumstances under which they are operated.
(c) The Officer-in-Charge is responsible for performing such work and
taking any action which in his judgment is necessary for the proper
operation, maintenance and administration of the irrigation project or
unit. In making such judgments, the Officer-in-Charge consults with
water users and their representatives, and with tribal council
representatives, and seeks advice on matters of program priorities and
operational policies. The Officer-in-Charge will be guided by the basic
requirement that the operation will be so administered as to provide the
maximum possible benefits from the project's or unit's constructed
facilities. The operations will insure safe, economical, beneficial,
and equitable use of the water supply and optimum water conservation.
(d) The Secretary of the Interior reserves the right to exercise at
any time all rights, powers, and privileges given him by law, and
contracts with irrigation districts within Indian Irrigation Projects.
Close cooperation between the Indian tribal councils, the project water
users and the Officer-in-Charge is necessary and will be to the
advantage of the entire project.
(e) The Area Director, or his delegated representative, is authorized
to fix as well as to announce, by notice published in the Federal
Register, the annual operation and maintenance assessment rates for the
irrigation projects or units within his area of responsibility. In
addition to the rates, the notices will include such information as is
pertinent to the assessment, payment, and collections of the charges
including penalties and duty of water.
(f) The rates will be based on a carefully prepared estimate of the
cost of the normal operation and maintenance of the project. Normal
operation and maintenance is defined for this purpose as the average per
acre cost of all activities involved in delivering irrigation water and
maintaining the facilities.
(g) San Carlos Irrigation Project, Arizona. The administration,
rights obligations and responsibilities for the operation and
maintenance of this project are set forth in the Repayment Contract
dated June 8, 1931 as supplemented or amended, between the San Carlos
Irrigation and Drainage District and the United States as authorized by
the Act of June 7, 1924 (43 Stat. 475-476) and the Secretarial Order of
June 15, 1938, title ''Order Defining Joint, District and Indian Works
of the San Carlos Federal Irrigation Project: Turning over Operation
and Maintenance of District Works to the San Carlos Irrigation and
Drainage District.'' The regulations appearing in this subchapter apply
only to the Indian lands works and in the San Carlos Irrigation Project
unless specified otherwise, and should not be interpreted or construed
as amending or modifying the District Contract or the Secretarial Order.
(42 FR 30362, June 14, 1977, as amended at 43 FR 8799, Mar. 3, 1978.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 171.2 Irrigation season.
The irrigation season, when water shall be available for irrigation,
will be established by the Officer-in-Charge.
25 CFR 171.3 Domestic and stock water.
Domestic or stock water will not be carried in the project's or
unit's irrigation system when in the judgment of the Officer-in-Charge
such practice will:
(a) Interfere with the operation and maintenance of the system.
(b) Be detrimental to or endanger the canal, lateral system and/or
related structures.
(c) Adversely affect the stored water supply for irrigation.
25 CFR 171.4 Farm units.
For the purpose of delivery of water and the administration of the
project or unit, a farm unit is defined as follows:
(a) For the Blackfeet, Crow, Fort Belknap, and Fort Peck Irrigation
Projects, Montana, and the Colville Irrigation Project, Washington.
(1) Forty (40) or more contiguous acres of land in single ownership
with the exception that those original Indian allotments containing less
than 40 irrigable acres of the same subdivision of the public land
survey shall also be considered farm units.
(2) Forty (40) or more contiguous acres of Indian-owned land under
lease to one party.
(3) Forty (40) contiguous acres in multiple ownership within the same
forty (40) acre subdivision of the public land survey.
(b) For the Fort Hall Irrigation Project, Idaho:
(1) Twenty (20) or more contiguous acres of land in single ownership
covered by one or more water rights contracts.
(2) Twenty (20) or more contiguous acres of Indian-owned land under
lease to one party or being farmed by one Indian.
(3) Ten (10) or more contiguous acres of subdivided land in multiple
ownership.
(c) For the Flathead Irrigation Project, Montana: A contiguous area
of land in single ownership containing not less than one forty (40) acre
subdivision of the public land survey, or the original allotment as
established by the Secretary of the Interior and as recorded or amended
in the records of the Bureau of Land Management. In the case of leased
land, it is defined as a contiguous area under a single lease. For
Bureau of Land Management regulations pertaining to Flathead Project,
see 43 CFR 2211.8, Flathead Irrigation District, Montana.
(d) For the Wapato Irrigation Project (all units), Washington:
(1) Eighty (80) or more contiguous acres in single ownership at the
time of the establishment of the delivery system, or when subsequent
changes of ownership result in larger tracts under single ownership and
the owner requests that this land be treated as a farm unit, whether
covered by one or more water right contracts.
(2) Eighty (80) or more contiguous acres of Indian-owned land under
lease to one person or being farmed by one Indian.
(3) Eighty (80) contiguous acres in multiple ownership: Provided,
That such acreage shall be within the same eight (80) acre subdivision
of the U.S. public land survey.
(4) In all cases where an original Indian allotment consisted of less
than eighty (80) contiguous acres, such original Indian allotment,
whether (i) under single or multiple ownership and/or covered by one or
more water right contracts, (ii) under lease to the same or different
lessees, or (iii) farmed by one or more Indians, shall be treated as a
farm unit.
(e) For all other projects or units: An original allotment,
homestead, an assignment of unallotted tribal lands, or a contiguous,
development lease area.
25 CFR 171.5 Delivery points.
(a) Project operators will deliver irrigation water to one point on
the boundary of each farm unit within the irrigation project. The
Officer-in-Charge may establish additional delivery points when in his
judgment it is impractical for the landowner to irrigate his farm unit
from the one delivery point for such reasons as topography, isolation,
or cost. When irrigation water is supplied from wells, the delivery
point may be established at the well head. Where portions of a farm
unit lie at an elevation too high to be watered by gravity flow from the
normal elevation of water in the project distribution system, no change
will be made in the water level elevation of the project system so as to
place water on such land. Where such land has been included in the
project, the landowner may install and operate pumping equipment at his
own expense to raise the water to such included land from a point
designated by the Officer-in-Charge and in accordance with his
specifications. If the landowner so installs pumping equipment and pays
the construction and maintenance charges, the project will deliver the
same amount of water per acre for this land as the project delivers at
the delivery point for other lands on the project.
(b) If a farm unit for which a project delivery point has been
established is subsequently subdivided into smaller units by the owner
or owners of the farm unit, the following provisions apply:
(1) A plat or map of the subdivision must be recorded and a copy
filed with the Officer-in-Charge. The plat or map must show how the
irrigation water is to be delivered to the irrigable acres in the
subdivision.
(2) No further extensions or alterations in the project's system will
be provided officials to serve the subdivided units, except as agreed to
by the Officer-in-Charge and at the landowner's expense.
(3) Any additional construction necessary to deliver irrigation water
to these units must be mutually worked out between the original owner of
the farm units and the new owners of the subdivided unit at their
expense.
(4) The project will not bear any responsibility for the operation
and maintenance of such internal systems, or the division of irrigation
water after it is delivered to the established project delivery points.
(c) Where project points of delivery have been established for farm
units which are to be combined under lease or ownership into a singular
farm unit to be irrigated by means of a sprinkler of more efficient
system, the Officer-in-Charge may approve the removal or relocation of
project delivery facilities. Such reorganization shall be at the
expense of the landowners or lessees in conformance with established
project standards and a time schedule which will not disrupt water
delivery service to others on the system.
(d) Where a reorganization has been approved and established as in
171.5(c), any reversion requiring reestablishment of removed or
relocated project delivery facilities must be approved by the
Officer-in-Charge and conform to established project standards and time
schedules which will not disrupt water delivery service to other water
users on the system. All expenses incurred shall be the responsibility
of the landowners or lessees.
25 CFR 171.6 Distribution and apportionment of water.
(a) The Officer-in-Charge will establish the method of and procedures
for the delivery and distribution of the available irrigation water
supply. He will endeavor to apportion the water at all times on a fair
and equitable basis between all project water users entitled to the
receipt of irrigation water.
(b) Any person who interferes with the flow of water in or from the
project's storage, carriage or lateral systems or opens or closes or in
any other way changes the position of a headgate or any other water
control structure without specific authority from the Officer-in-Charge
or his designated representative will be subject to prosecution.
Cutting a canal or lateral bank for the purpose of diverting water or
placing an obstruction in such facilities in order to change the flow of
water through a headgate will be considered a violation of this section.
(c) San Carlos Irrigation Project, Arizona -- (1) The portion of the
project's common water supply available for the Indian lands will be
distributed subject to beneficial use in equal per acre amounts to each
acre under irrigation and cultivation, insofar as possible.
(2) All water users (Indian and non-Indian) will be notified at the
beginning of the irrigation season of the amount of stored and pumped
water available. An apportionment of this water will be recommended by
the Officer-in-Charge of the irrigation project to the approval of the
Area Director. Subsequent apportionments may be made if and when
additional water is available.
(3) If it is determined by the Officer-in-Charge that there is water
in excess of demands and available storage facilities, he will promptly
notify all water users that such water is available. This water shall
not be charged against the water apportionment of the land on which it
is used.
(d) Uintah Irrigation Project, Utah -- (1) Water will be delivered to
all lands under the Lakefork, Uintah and Whiterocks Rivers in accordance
with the provisions of the decree of the Federal Court in the cases of
the ''United States v. Dry Gulch Irrigation Company, et al.,'' and the
''United States v. Cedarview Irrigation Company, et al.,'' which
decrees fix the maximum duty of three (3) acre-feet per acre for the
period from March 1 to November 1 of each year. The rate of delivery
will be substantially in accordance with the following schedule except
that it may be modified by the Officer-in-Charge at such times as
changed climatic conditions and the water supply indicate that such
modification would be beneficial to the project.
(2) The rotation method will be used in distributing the water
diverted from the Lakefork, Uintah and Whiterocks Rivers. Rotation
schedules will be prepared under direction of the Officer-in-Charge and
will be put into effect each season as soon as it is determined what
acreage is to be irrigated. A written copy of the water schedule will
be delivered to each water user showing the time that his turn starts on
each tract and the duration of each turn.
(3) In the event a rotation system is adopted for lands receiving
water from the Duchesne River, the same procedure will be used as for
the lands under the Lakefork, Uintah and Whiterocks Rivers. The
Officer-in-Charge will advise all water users sufficiently in advance of
the time the rotation schedule will go into effect.
(e) Wapato Irrigation Project, Washington -- (1) To protect adjoining
lands against seepage and erosion by the excess use of water on the
bench lands of the Wapato-Satus Unit, the maximum delivery of water to
the bench lands shall not exceed 4.5 acre-feet per acre per season.
(2) The rate of delivery to lands of the Satus 2 and Satus 3 subunits
shall not exceed one (1) cubic foot per second for each 50 irrigated
acres.
(3) The measurement and distribution of water for the lands on the
Ahtanum Unit shall take place at the mutually advantageous points on the
Ahtanum Main or Lower Canals. The conveyance of the water from these
points of distribution to the irrigable acres of the farm units shall be
entirely by and at the expense of the individual operators of the farms.
However, when several such users join together to use one single
channel for the conveyance of their water to the points of final
diversion, they shall be jointly responsible for the channel of
conveyance and the apportionment of the water to their respective farm
units.
25 CFR 171.7 Application for and record of deliveries of irrigation
water.
(a) Except when rotation schedules have been established and are
being followed, water users in requesting the delivery of water will so
notify the Officer-in-Charge or his designated representative by such
means and with such advance notice as may be required by system
operations and as established by the Officer-in-Charge. The request
shall indicate the time the water is to be delivered, the period of time
it will be used, the rate of flow desired, and where the water will be
used.
(b) It is the responsibility of the ditchriders during the irrigation
season to maintain records showing the beginning and ending time of each
water delivery, the amount of such delivery, and the estimated acreage
irrigated. Such records are to be filed at the irrigation project
office at the end of the season.
(c) Water users on the Indian portion of the San Carlos Indian
Irrigation Project will submit their requests for water to the
Superintendent, Pima Agency.
25 CFR 171.8 Surface drainage.
(a) The water users will be responsible for all waste water resulting
from their irrigation practices and for its conveyance to project
canals, drains, wasteways or natural drainage channels. Any expenses
involved in doing this will be borne by the water user. Waste water may
be emptied into project constructed ditches only at points designated by
and in a manner approved by the Officer-in-Charge. In those situations
involving two or more landowners and/or water users, it is their
responsibility to work out a satisfactory arrangement among themselves
for the conveyance of their waste water to project ditches or natural
drainage channels.
(b) Waste water shall not be permitted to flow upon or collect in
road or project rights-of-way. Failure to comply with this requirement
could result in the Officer-in-Charge refusing the further delivery of
water.
25 CFR 171.9 Structures.
(a) All structures, including bridges or other crossings, which are
necessary as a part of the project's irrigation and drainage system will
be installed and maintained by the project.
(b) During the construction of a new irrigation project or the
extension of an existing project, bridges, crossings or other structures
may be built by the Officer-in-Charge for private use where justified by
severance agreements or other practical considerations. Title to these
structures may or may not be vested in the United States depending upon
the agreement with the landowner. Structures built partially or wholly
in lieu of severance damages may be required to be maintained by the
landowner even though title remains with the United States.
(c) After a project is completed, additional structures crossing or
encroaching on project canal, lateral or drain rights-of-way which are
needed for private use may be constructed privately in accordance with
plans approved by the Officer-in-Charge or by the project. In either
case the cost of installing such structures will not be at the project's
expense. Such structures will be constructed and maintained under
revocable permits on proper forms issued by the Officer-in-Charge of the
irrigation project to the party or parties desiring such structures.
(d) It it is determined that a crossing constructed for and by the
project is no longer needed for operation and maintenance of the system.
It should be removed. However, if a private party, corporation, State,
or other Federal entity desires to use the crossing, it may be
transferred to such entity by the Officer-in-Charge under a permit which
relieves the United States from any further liability or responsibility
for the crossing, including its maintenance. The following provisions
pertain:
(1) Permits issued in such situations shall stipulate what is
granted, and accepted by the permittee on the condition that the repair
and maintenance of the structure shall be the duty of the permittee or
his successors without cost to the irrigation project.
(2) The permit shall further provide that if any such structure is
not regularly used for a period of one year or is not properly
maintained, the Officer-in-Charge may notify the person responsible for
the structure's maintenance either to remove it or to correct any unsafe
conditions within a period of 90 days.
(3) If the structure is not removed or the unsafe condition corrected
within the time allowed, it may be removed by the Officer-in-Charge, the
cost of such removal to be paid by the party responsible for the
maintenance of the structure.
25 CFR 171.10 Fencing.
Fences across project rights-of-way will not be constructed without
the approval of the Officer-in-Charge. The granting of such approval
shall be dependent upon proper installation so as not interfere with the
flow of water or the passage of project operators and equipment. In
case an unauthorized fence is installed, the landowner shall be notified
to remove it. If it is not removed within a reasonable period of time
or satisfactory arrangements made with the Officer-in-Charge, it may be
removed by project personnel at the landowner's expense.
25 CFR 171.11 Obstructions.
No obstructions of any kind including service or farm ditches, will
be permitted upon project rights-of-way. Due notice will be given to an
operator or landowner to remove any obstructions. If not removed within
a reasonable period of time after notice is given, an obstruction will
be removed by project forces at the expense of the operator or
landowner.
25 CFR 171.12 Rights-of-way.
(a) Rights-of-way reserved for the project's irrigation system are of
sufficient width to permit passage and use of equipment necessary for
construction and proper operation and maintenance of the project's
canals, laterals, and other irrigation works.
(b) In the construction of new irrigation projects or extension of
existing projects, rights-of-way which have not been reserved across
Indian lands will be obtained in accordance with part 169 of this
chapter.
25 CFR 171.13 Crops and statistical reports.
An annual project crops and statistical report shall be prepared by
the Officer-in-Charge. The landowner or farm unit operator shall
cooperate in furnishing such information as requested.
25 CFR 171.14 Carriage agreements and water right applications.
(a) Pine River Indian Irrigation Project, Colorado. If the Area
Director determines that there is sufficient capacity in the project's
carriage and/or distribution system in excess of that required by the
project he is authorized to enter into carriage agreements with
non-project water users to convey non-project water through project
facilities for delivery to non-project lands.
(b) Uintah Indian Irrigation Project, Utah. If the Superintendent
determines that there is sufficient capacity in the irrigation project's
carriage and/or distribution system in excess of that required by the
project, he is authorized to enter into carriage agreements with
non-project water users to convey non-project lands. The Superintendent
is also authorized to enter into carriage agreements with private
irrigation or ditch companies for the conveyance of project water
through non-project facilities for delivery to isolated Indian lands
that cannot be served from project facilities.
(c) Wapato Irrigation Project, Washington. The Project Engineer is
authorized to execute water right applications submitted by landowners
in the project on behalf of the Secretary of the Interior. Such
applications should be submitted on the approved Departmental form.
25 CFR 171.15 Leaching water.
(a) The Officer-in-Charge is authorized to furnish irrigation water
for leaching purposes without the payment of operation and maintenance
charges to any Indian trust land, or patent in fee land covered by a
repayment contract, as an aid to improve land within the project that is
impregnated by alkali or in the development of new project land.
(b) Delivery of such water will depend upon the availability of water
and the preparation of a definite plan of operation by the land operator
satisfactory to the Officer-in-Charge. In addition, the operator shall
agree to meet such reasonable leaching and cropping activities as shall
be prescribed by the Officer-in-Charge.
(c) If prompt and beneficial use of the leaching water is not made by
or before July 1 of the season for which it is granted, the
Officer-in-Charge may declare the leaching permit forfeited. The normal
water charges will be considered as assessed and any delinquency
enforced as though no leaching privilege had been granted.
(d) In the case of patent in fee lands no water will be delivered for
leaching purposes until the annual construction costs, when assessed,
are paid.
25 CFR 171.16 Excess water.
(a) General. On those irrigation projects where a water duty or
water quota has been established each water user will be notified when
his quota of water, as covered by the basic assessment and as announced
in the public notice, has been delivered. In such cases, additional
irrigation water, if available, may be delivered providing the water
user so requests it and agrees to pay for the excess water in accordance
with the excess water provisions as set forth in the public notice.
(b) Flathead Indian Irrigation Project, Montana. (1) After an
agreement has been reached by the Commissioners of the irrigation
district and the Officer-in-Charge as to the duty of water on individual
tracts where water users claim excess requirements above the duty of
water established for the project on account of porous or gravelly
soils, the Officer-in-Charge is authorized to increase the quantity of
water to be delivered to such tracts.
(2) The amount of water delivered in such cases will not exceed four
(4) acre feet per assessable acre except in the Moiese Division where
the amount shall not exceed six (6) acre feet providing there is
sufficient water available in Lower Crow Reservoir without having to
draw on the water supply for the Mission Valley Division.
(3) The charge for such water shall be at the same general rate as
established for project land not having such a porous or gravely
condition.
25 CFR 171.17 Delivery of water.
(a) Irrigation water will not be delivered until the annual operation
and maintenance assessments are paid in accordance with the established
annual rate schedule as set forth in the public notice issued by the
Area Director. Under the following special circumstances, this rule may
be waived and water delivered to:
(1) Trust and restricted lands farmed by the Indian owner when the
Superintendent has certified that the operator is financially unable to
pay the assessment and he has made arrangements to pay such assessments
from the proceeds received from the sale of crops or from any other
source of income. In such cases the unpaid charges will stand as a
first lien against the land until paid but without penalty on account of
delinquency.
(2) Non-Indian lands on which there is an approved deferred payment
contract executed under the provisions of the Act of June 22, 1936 (49
Stat, 1803).
(3) Land on which an adjustment or cancellation of unpaid assessments
has been recommended and final action is pending.
(b) Water will not be delivered to Indian trust or restricted land
that are under lease approved by the Secretary of the Interior or his
authorized representative acting under delegated authority until the
lessee has paid the annual assessed operation and maintenance charges.
(c) No water will be delivered to Indian trust land under a lease
that has been negotiated by an Indian owner until the owner has paid the
annual assessed operation and maintenance charges or has made
satisfactory arrangements for their payment with the Superintendent who
has so notified the Officer-in-Charge.
(d) Water will not be delivered to any lands within an irrigation
district which has executed a repayment contract with the United States
until all irrigation charges, as assessed, are paid in accordance with
the terms and conditions of the contracts and the public notice as
issued by the Area Director.
(e) All irrigation districts may make such rules and regulations as
they may find necessary in regard to the delivery of the water to water
users within the district who are delinquent in their payments to the
district of assessed irrigation charges. Such rules and regulations
will be adhered to by the Officer-in-Charge when it appears to be in the
best interests of the United States and the district to do so.
(f) Water will not be delivered to lands that are subject to
construction assessments not paid in accordance with part 134 of this
chapter.
(g) Flathead Indian Irrigation Project, Montana -- (1) Secretarial
Water Right holders. (i) For all acres recognized by the Secretary of
the Interior as entitled to a ''Secretarial Water Right'', the
Officer-in-Charge is authorized to carry such water in the project's
carriage and distribution system and deliver it: Providing, That
landowner holding such a right requests it and his land is so located
that the water can be delivered without undue expense to the project.
Before this service is provided, the landowner must also agree to pay a
minimum of fifty (50) percent of up to a maximum of one hundred (100)
percent of the annual operation and maintenance charges as assessed
against project lands in the same general area as his. Under such
agreement the project will not be obligated to deliver more than that
allowed for each acre of land under the Secretary's private water right
findings less a proportionate share of the project's normal losses in
transporting the water from the point of entry into the project's system
to the point of delivery.
(ii) ''Secretarial Water rights'' are defined as those rights
allocated to Indian allotments by the Assistant Secretary of the
Interior by his approval on November 25, 1921, of the findings of the
Commission appointed by him to investigage the ''private rights'' on the
Flathead Indian Reservation. Authority: Sec. 9, Act of May 29, 1908
(35 Stat. 449).
(2) Pump lands -- Flathead Irrigation Project. (i) The
Officer-in-Charge is authorized to deliver irrigation water to lands
(pump lands) within a project farm unit that are too high to be served
from the project's gravity flow system: Providing, The holder of legal
title to the lands so requests it in writing and agrees to have such
land designated by the Secretary of the Interior or his authorized
representative as a part of the irrigation project. Land so designated
shall be subject to the assessment and payment of the pro rata per acre
share of the project's construction, operation and maintenance costs the
same as all other lands within the irrigation project in the same
general area. In addition, such ''pump lands'' shall be obligated to
pay an additional assessment on an annual basis as determined by the
Officer-inCharge to defray the cost of pumping the water from the
Flathead River for those lands in the Mission Valley Division, and from
the Little Bitterroot Lake for lands in the Camas Division.
(ii) At the time he submits the request, the landowner must also
agree in writing to include the ''pump lands'' in an existing irrigation
district or a district that may be subsequently formed pursuant to the
laws of the State of Montana. This will not apply to Indian trust or
restricted lands as such lands cannot be included within an irrigation
district.
(iii) A request for the inclusion of ''pump lands'' into the project
will not be considered until the Officer-in-Charge determines that there
is sufficient project water available to serve these lands without
adversely affecting in any way the water entitlement of the designated
project lands for which the project was designed and constructed.
(iv) All costs incidental to the pumping and distribution of the
delivered water from the project farm unit delivery point to the ''pump
lands'' shall be borne by the landowner.
25 CFR 171.18 Service or farm ditches.
The service or farm ditches into which water is delivered from
project canals or laterals must have ample capacity and be maintained by
the water user in proper condition to receive water and convey it to the
place of use with a minimum of loss. Water delivery will be refused to
such ditches not satisfactorily maintained. Project irrigation water
shall be put to beneficial use.
25 CFR 171.19 Operation and maintenance assessments.
(a) Operation and maintenance assessments will be levied against the
acreage within each allotment, farm unit or tribal unit that is
designated as assessable and to which irrigation water can be delivered
by the project operators from the constructed works whether water is
requested or not, unless specified otherwise in this section.
(1) Colville Indian Irrigation Project, Washington. Operation and
maintenance assessments will be levied against all patent in fee and
Indian trust lands to which water can be delivered for irrigation and
for which an application for water has been made by the water user and
approved by the Superintendent.
(2) Wapato Irrigation Project-Toppenish-Simcoe Unit, Washington.
Operation and maintenance assessments will be levied against all lands
which can be irrigated from the constructed works for which application
for water is made annually and approved by the Project Engineer.
(b) Subdivided farm units -- (1) General. (i) Where farm units, as
defined in 171.4 have been subdivided into smaller units, the Area
Director or such official as he may so delegate may, at his discretion,
fix a higher operation and maintenance rate for such subdivided acreage
than the rate fixed for the acreage in the original farm unit. In such
cases the higher rate will also be announced in the annual public
notice.
(ii) In the event higher rates are fixed for a subdivided farm unit,
the individual owners thereof may obtain for their lands the same rate
as fixed for acreages within farm units not so divided by joining in a
written contract with the other owners within the subdivided unit.
Under such a contract, the various owners will appoint an agent in whom
shall be vested full power and authority to enter into a contract with
the Area Director, hereafter referred to as the Contracting Officer, or
such official as he may so authorize, covering the water rights for the
entire area of the several small acreages: Provided, however, Such
contract must not represent less acreage than that included in the
original farm unit unless a smaller unit has been established by project
regulation as eligible for a subdivision contract; And provided
further, That whether the contract involves acreage in one or more farm
units, it must represent contiguous acreages.
(iii) The contract between the agent of the owners of the small
tracts and the Contracting Officer shall be executed on or before
February 1 of the year preceding the next irrigation season. The agent
shall at the time of the execution of this contract, on a form approved
by the Secretary of the Interior, furnish a certified copy of the
contract executed by the several landowners of the subdivided tract
appointing the agent to act in their behalf.
(iv) Any owner of a tract within a subdivided unit, with the written
consent of the owners of a majority of the acreage, under a contract as
set forth in paragraph (b)(1)(iii) of this section, may voluntarily
withdraw from the contract by filing a written notice of his intent to
withdraw with the Contracting Officer on or before February 1 of the
year, such withdrawal is to be effective, together with the consent of
the owners of the majority of the acreage endorsed thereon; Provided,
That, the remaining acreage is contiguous; such withdrawal does not
reduce the remaining acreage under the contract to less than the acreage
included in the original farm unit before it was subdivided or less than
the minimum acreage established on a project as eligible for a
subdivision contract; and all irrigation charges due under said
contract have been paid. Upon the receipt of said notice, the
Contracting Officer, if the notice meets the requirements as herein
provided, shall note his approval thereon and send a copy thereof to the
agent of the landowners. Thereafter the land of the withdrawing owner
shall no longer be subject to the contract.
(v) If one or more owners under a contract desire to withdraw, and
if, by so doing, it would reduce the total remaining contiguous acreage
under the contract to less than the total acreage included in the
original farm unit, or the minimum eligible acreage established on the
project, the contract can be terminated. However, before such a
termination can be approved, a written notice from the owners of the
majority of the acreage must be filed with the Contracting Officer
indicating their consent to and requesting his approval of the
termination. The notice must be filed on or before February 1 of the
year the termination is to become effective, and must include the
payment of any irrigation charges then due under the existing contract.
Upon the receipt of the written notice, the contracting Officer shall
note his approval thereon provided that the requirements set forth
herein are satisfied. A copy of the approved notice will be given to
the agent of the landowners concerned.
(2) Fort Hall Irrigation Project. The Superintendent, Fort Hall
Agency, is authorized to approve contracts as set forth in this section
as well as withdrawals or termination of such contracts. However, no
contracts will be entered into if the total contiguous acreage is less
than 10 acres.
(3) Wapato Irrigation Project. The Project Engineer is authorized to
approve contracts as set forth in paragraph (b) of this section, as well
as withdrawals or termination of such contracts. However, no contracts
will be entered into if the total contiguous acreage is less than 40
acres.
25 CFR 171.20 Water users' ledgers.
(a) Water users' ledgers will be maintained by the Officer-in-Charge
on all irrigation projects or units where irrigation assessments are
levied and collected. Separate entries shall be made in the ledger for
each farm tract, and bills issued to the owner or owners of record.
When payment is received, it will be credited to the proper ledger
account.
(b) When Indian trust or restricted land is leased and the
Officer-in-Charge has been so advised by the Superintendent, irrigation
bills will be submitted to the lessee. Upon receipt of payment, it will
be credited to the Indian owner or owners of record in the ledger
account.
(c) On those projects where irrigation districts have been formed and
have executed repayment contracts, irrigation bills will be rendered to
the district. When payment is received, it will be credited to the
proper ledger accounts.
25 CFR 171.21 Health and sanitation.
Use of Government storage reservoirs, canals, laterals or drains for
disposal of sewage and trash shall not be permitted under any
circumstances. If such conditions occur, and project forces are unable
to correct them, the Officer-in-Charge shall request the Area Director
to arrange for the necessary legal action.
25 CFR 171.22 Complaints.
All complaints must be made in writing to the Project Engineer or the
Officer-in-Charge of the project.
25 CFR 171.23 Disputes.
In case of a dispute between a water user and the Project Engineer or
Officer-in-Charge of the project concerning the application of the
regulations of this part or a decision rendered by such official, the
water user within 30 days may appeal to the Area Director. Further
appeals may be made to the Commissioner of Indian Affairs pursuant to
part 2 of this chapter.
25 CFR 171.23 PART 172 -- PUEBLO INDIAN LANDS BENEFITED BY IRRIGATION
AND DRAINAGE WORKS OF MIDDLE RIO GRANDE CONSERVANCY DISTRICT, NEW MEXICO
Authority: 45 Stat. 312.
25 CFR 172.1 Acreage designated.
Pursuant to the provisions of the act of March 13, 1928 (45 Stat.
312) the contract executed between the Middle Rio Grande Conservancy
District of New Mexico and the United States under date of December 14,
1928, the official plan approved pursuant thereto, as modified, and the
terms of section 24 of a contract between said parties dated September
4, 1936, dealing among other things with the payment of operation and
maintenance and betterment assessments by the United States to the
District, and section 24 of a similar contract dated April 8, 1938
executed by the representative of the United States, on this date, it is
found that a total of 20,242.05 acres of Pueblo Indian lands of the
Pueblos of Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia and
Isleta is susceptible of economic irrigation and cultivation and is
materially benefited by the works constructed by said District. This
acreage is designated as follows:
Lands with recognized water rights not subject to operation and
maintenance or betterment charges by the District and designated as
''now irrigated'' -- 8,847
Lands classified as ''newly reclaimed'' lands (exclusive of the
purchased area) -- 11,074.4
Lands classified as newly reclaimed lands (the area recently
purchased) -- 320.65
Total irrigable area materially benefited -- 20,242.05
(22 FR 10641, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 172.1 PART 173 -- CONCESSIONS, PERMITS AND LEASES ON LANDS
WITHDRAWN OR ACQUIRED IN CONNECTION WITH INDIAN IRRIGATION PROJECTS
Sec.
173.0 Scope.
173.1 Terms used.
173.2 Project engineer's authority.
173.3 Enforcement.
173.4 Permits subject to existing and future rights-of-way.
173.5 Plans, approval thereof.
173.6 Stock grazing.
173.7 Permits, transferable.
173.8 Applications.
173.9 Bonds.
173.10 Payments.
173.11 Supervision of permittees' rates.
173.12 Services from project.
173.13 Permit not a lease.
173.14 Further requirements authorized.
173.15 Permittee subject to State law.
173.16 Reserved area, Coolidge Dam.
173.17 Agricultural and grazing permits and leases.
173.18 Term and renewal of permits.
173.19 Improvements.
173.20 Revocation of permits.
173.21 Notice to vacate.
173.22 Disposition of revenue.
173.23 Organized tribes.
Authority: 52 Stat. 193; 25 U.S.C. 390.
Source: 22 FR 10642, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 173.0 Scope.
The regulations in this part are promulgated governing the granting
of concessions, business, agricultural and grazing leases or permits on
reservoir sites, reserves for canals or flowage areas, and other lands
withdrawn or otherwise acquired in connection with the San Carlos, Fort
Hall, Flathead and Duck Valley or Western Shoshone irrigation projects.
25 CFR 173.1 Terms used.
When used in this part ''Secretary'' refers to the Secretary of the
Interior; ''project'' to the Federal Indian irrigation project on which
concession, lease or permit is granted, and ''project engineer'' to the
engineer in charge of said project.
25 CFR 173.2 Project engineer's authority.
The project engineer is the official charged with the responsibility
for the enforcement of this part. He is vested with the authority to
issue temporary concession permits to applicants for periods not to
exceed 30 days. All except temporary permits shall become effective
when approved by the Secretary.
25 CFR 173.3 Enforcement.
The project engineer shall enforce these and all project regulations
now or hereafter promulgated by the Secretary. Willful violation or
failure to comply with the provisions of this part and all proper orders
of the project engineer shall be cause for revocation of the permit by
the Secretary who shall be the judge of what constitutes such violation.
The project engineer may suspend any permit for cause. The project
engineer shall, immediately after suspending a permit, submit to the
Secretary through the Commissioner of Indian Affairs a detailed report
of the case, accompanied by his reasons for the action and his
recommendations, for final action by the Secretary.
25 CFR 173.4 Permits subject to existing and future rights-of-way.
Use by the permittee of any land authorized under this part shall be
subject to the right of the Secretary to establish trails, roads and
other rights-of-way including improvements thereupon or through the
premises, and the right to use same by the public. No interference
shall be permitted with the continued use of all existing roads, trails
and other rights-of-way and improvements thereon.
25 CFR 173.5 Plans, approval thereof.
No building or other structure shall be erected by permittee except
in accordance with plans, specifications and locations approved by the
project engineer. All premises and appurtenances shall be kept in a
sanitary, safe and sightly condition.
25 CFR 173.6 Stock grazing.
Permittees may graze upon lands covered by such permits, such stock
as may be required in connection with the purposes for which the permit
is issued subject to such restrictions and limitations as may be
prescribed by the project engineer.
25 CFR 173.7 Permits, transferable.
Permits may be transferred only with the approval of the Secretary.
25 CFR 173.8 Applications.
All applications for permits must be made on the approved form. The
project engineer will furnish copies of this form upon request. All
applications must be executed in triplicate.
25 CFR 173.9 Bonds.
Except in cases of temporary concession permits, leases, permits, and
traders' licenses granted under parts 166, 162, and 140 of this chapter,
which are governed by the requirements of those parts, the applicant
shall within 60 days after approval of the application furnish a surety
bond for the faithful performance of the terms of the permit in an
amount equal to the total sum accruing during the period of the permit.
Such bond shall be executed by an approved surety company, or by at
least three individual sureties, whose individual unencumbered assets
are equal to double the amount of the bond. In the case of temporary
concession permits, the permittee shall deposit at the time of receiving
the permit, a sum equal to twice the rental, which sum shall, upon the
expiration of the permit, be refunded to the permittee, if all the terms
and conditions of the permit have been met; otherwise, such sum shall
be retained as liquidated damages.
25 CFR 173.10 Payments.
Each permittee shall pay at the time of receiving the permit the
first year's charge as fixed therein. When a permit extends over a
period of years, the next and succeeding payments shall be due and
payable annually in advance. The full amount accruing under a temporary
permit shall be paid at the time the application is filed.
25 CFR 173.11 Supervision of permittees' rates.
All rates or charges collected by a permittee for services rendered
by the permittee in the operation of the concession granted under a
permit, must be submitted through the project engineer to the Secretary
for approval. Copies of the approved rate schedule shall be posted in
at least two conspicuous places on the premises. Approved rates may not
be changed without first obtaining in the same manner a change in the
rate schedule. The Secretary shall have the right to readjust rates
charged from time to time and to amend or change any permit issued.
Failure to comply with the approved rates automatically makes the permit
subject to cancellation.
25 CFR 173.12 Services from project.
When the facilities of the project make it possible to supply water
for domestic purposes, electricity or any other type of service to the
permittee, the cost of connecting the project facilities shall be borne
by the permittee and the work must be in accordance with standard
practices and accepted by the project engineer, and as provided for in
project regulations. All services rendered by the project to the
permittee shall be paid for at the existing or modified schedule of
rates; or if no schedule has been approved, at a rate to be approved by
the Secretary which will reasonably reimburse the project for the cost
of such services.
25 CFR 173.13 Permit not a lease.
Any permit issued under this part does not grant any leasehold
interest nor cover the sale, barter, merchandising, or renting of any
supplies or equipment except as therein specified. Any permittee who
engages in trade with the Indians must also apply for and receive a
trader's license as provided by part 140 of this chapter.
25 CFR 173.14 Further requirements authorized.
The project engineer is authorized to incorporate into any proposed
permit to meet the needs of any particular case, subject to the approval
of the Secretary, such further special requirements as may be agreed
upon by him and the applicant, such requirements to be consistent with
the general purposes of this part.
25 CFR 173.15 Permittee subject to State law.
The holder of any permit issued under this part shall be subject to
and abide by the laws and regulations of the United States and State
laws if applicable to the conduct of the particular business or activity
conducted by the permittee. Violations of this section shall render the
permit void but shall not release the permittee from any obligations
arising thereunder.
25 CFR 173.16 Reserved area, Coolidge Dam.
No permit for any commercial business or other activity (except
boating concessions confined to the Soda Spring Canyon) shall be issued
to any applicant to operate within a radius of three-fourths of a mile
from the center of the Coolidge Dam, Arizona.
25 CFR 173.17 Agricultural and grazing permits and leases.
(a) Permits or leases may be granted after the lands set forth in
173.0 have been classified as to use and then only for the purpose for
which the land is classified. Permits for grazing lands suitable for
division into range units shall be granted in accordance with part 166
of this chapter; and agricultural lands and all other grazing lands
shall be leased in accordance with part 166 of this chapter.
(b) Lands for which leases or permits are granted pursuant to the
terms and conditions of this part shall not be eligible for benefit
payments under the provisions and conditions of the Crop Control and
Soil Conservation Act of April 27, 1935 (49 Stat. 163; 16 U.S.C.
590a), as amended by the act of February 29, 1936 (49 Stat. 1148; 16
U.S.C. 590g), and subsequent amendatory acts.
25 CFR 173.18 Term and renewal of permits.
No concession granted under the provisions of this part shall extend
for a period in excess of 10 years. An application for the renewal of a
lease, permit, or concession permit shall be treated in the same manner
as an original application under this part. Should there be an
application or applications other than the renewal application for a
permit covering the same area, the renewal application may, if the
applicant has met all the requirements of the expiring permit and has
been a satisfactory permittee, be given preferential consideration for
the renewal of the permit should the applicant meet the highest and most
satisfactory offer contained in the several applications.
25 CFR 173.19 Improvements.
Title to improvements constructed on the premises by the permittee
shall be fixed and determined by the terms of the permit.
25 CFR 173.20 Revocation of permits.
Any permit issued pursuant to this part may be revoked at any time
within the discretion of the Secretary. Agricultural and grazing leases
dealt with in 173.17 shall be subject to cancellation as provided for
in the respective parts 162 and 166 of this chapter, and the conditions
of the instruments executed pursuant thereto.
25 CFR 173.21 Notice to vacate.
A permittee shall within 10 days after notification in writing of the
cancellation of his permit by the Secretary, vacate the premises covered
by the said permit. Any person occupying lands dealt with in the act of
April 4, 1938 (52 Stat. 193) without an approved permit or lease shall
be notified in writing by the project engineer of the requirements of
this part and that for the failure of such person to comply with these
requirements and receive a permit or lease within 60 days after receipt
of the written notice shall constitute a willful violation of this part,
and the project engineer shall submit promptly to the Commissioner of
Indian Affairs a detailed report concerning the case, together with
recommendations looking to the taking of appropriate legal action to
remove such person from the area and to the collection of such funds to
compensate for any use made of the property or damages suffered thereto.
25 CFR 173.22 Disposition of revenue.
Funds derived from concessions or leases under this part except those
so derived from Indian tribal property withdrawn for irrigation purposes
and for which the tribe has not been compensated, shall be available for
expenditure under existing law in the operation and maintenance of the
irrigation project on which collected and as provided for in part 161 of
this chapter. Funds so derived from Indian tribal property withdrawn
for irrigation purposes and for which the tribe has not been
compensated, shall be deposited to the credit of the proper tribe.
25 CFR 173.23 Organized tribes.
Concessions and leases on tribal lands withdrawn or reserved for the
purposes specified in the act of April 4, 1938 (52 Stat. 193) and dealt
with in this part, of any Indian tribe organized under section 16 of the
act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 476) for which the tribe
has not been compensated shall be made by the organized tribe pursuant
to its constitution or charter: Provided, No lease or concession so
made shall be inconsistent with the primary purpose for which the lands
were reserved or withdrawn.
25 CFR 173.23 PART 175 -- INDIAN ELECTRIC POWER UTILITIES
25 CFR 173.23 Subpart A -- General Provisions
Sec.
175.1 Definitions.
175.2 Purpose.
175.3 Compliance.
175.4 Authority of area director.
175.5 Operations manual.
175.6 Information collection.
25 CFR 173.23 Subpart B -- Service Fees, Electric Power Rates and
Revenues
175.10 Revenues collected from power operations.
175.11 Procedures for setting service fees.
175.12 Procedures for adjusting electric power rates except for
adjustments due to changes in the cost of purchased power or energy.
175.13 Procedures for adjusting electric power rates to reflect
changes in the cost of purchased power or energy.
25 CFR 173.23 Subpart C -- Utility Service Administration
175.20 Gratuities.
175.21 Discontinuance of service.
175.22 Requirements for receiving electrical service.
175.23 Customer responsibilities.
175.24 Utility responsibilities.
25 CFR 173.23 Subpart D -- Billing, Payments, and Collections
175.30 Billing.
175.31 Methods and terms of payment.
175.32 Collections.
25 CFR 173.23 Subpart E -- System Extensions and Upgrades
175.40 Financing of extensions and upgrades.
25 CFR 173.23 Subpart F -- Rights-of-Way
175.50 Obtaining rights-of-way.
175.51 Ownership.
25 CFR 173.23 Subpart G -- Appeals
175.60 Appeals to the area director.
175.61 Appeals to the Interior Board of Indian Appeals.
175.62 Utility actions pending the appeal process.
Authority: 5 U.S.C. 301; sec. 2, 49 Stat. 1039-1040; 54 Stat.
422; sec. 5, 43 Stat. 475-476; 45 Stat. 210-211; and sec. 7, 62
Stat. 273.
Source: 56 FR 15136, Apr. 15, 1991, unless otherwise noted.
25 CFR 173.23 Subpart A -- General Provisions
25 CFR 175.1 Definitions.
Appellant means any person who files an appeal under this part.
Area Director means the Bureau of Indian Affairs official in charge
of a designated Bureau of Indian Affairs Area, or an authorized
delegate.
Customer means any individual, business, or government entity which
is provided, or which seeks to have provided, services of the utility.
Customer Service means the assistance or service provided to
customers, other than the actual delivery of electric power or energy,
including but not limited to such items as: Line extension, system
upgrade, meter testing, connections or disconnection, special
meter-reading, or other assistance or service as provided in the
operations manual.
Electric Power Utility or Utility means that program administered by
the Bureau of Indian Affairs which provides for the marketing of
electric power or energy.
Electric Service means the delivery of electric energy or power by
the utility to the point of delivery pursuant to a service agreement or
special contract. The requirements for such delivery are set forth in
the operations manual.
Officer-in-Charge means the individual designated by the Area
Director as the official having day-to-day authority and responsibility
for administering the utility, consistent with this part.
Operations Manual means the utility's written compilation of its
procedures and practices which govern service provided by the utility.
Power Rates means the charges established in a rate schedule(s) for
electric service provided to a customer.
Service means electric service and customer service provided by the
utility.
Service Agreement means the written form provided by the utility
which constitutes a binding agreement between the customer and the
utility for service except for service provided under a special
contract.
Service Fees means the charge for providing administrative or
customer service to customers, prospective customers, and other entities
having business relationships with the utility.
Special Contract means a written agreement between the utility and a
customer for special conditions of service. A special contract may
include, but is not limited to, such items as: Street or area lights,
traffic lights, telephone booths, irrigation pumping, unmetered
services, system extensions and extended payment agreements.
Utility office(s) means the current or future facility or facilities
of the utility which are used for conducting general business with
customers.
25 CFR 175.2 Purpose.
The purpose of this part is to regulate the electric power utilities
administered by the Bureau of Indian Affairs.
25 CFR 175.3 Compliance.
All utility customers and the utilities are bound by the rule in this
part.
25 CFR 175.4 Authority of area director.
The Area Director may delegate authority under this part to the
Officer-in-Charge except for the authority to set rates as described in
175.10 through 175.13.
25 CFR 175.5 Operations manual.
(a) The Area Director shall establish an operations manual for the
administration of the utility, consistent with this part and all
applicable laws and regulations. The Area Director shall amend the
operations manual as needed.
(b) The public shall be notified by the Area Director of a proposed
action to establish or amend the operations manual. Notices of the
proposed action shall be published in local newspaper(s) of general
circulation, posted at the utility office(s), and provided by such other
means, if any, as determined by the Area Director. The notice shall
contain: A brief description of the proposed action; the effective
date; the name, address, and telephone number for addressing comments
and inquiries; and the period of time in which comments will be
received. Notices shall be published and posted at least 30 days before
the scheduled effective date of the operations manual, or amendments
thereto.
(c) After giving consideration to all comments received, the Area
Director shall establish or amend the operations manual, as appropriate.
A notice of the Area Director's decision and the basis for the decision
shall be published and posted in the same manner as the previous
notices.
25 CFR 175.6 Information collection.
The information collection requirements contained in 175.22 have
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1076-0021. This information
is being collected to provide electric power service to customers.
Response to this request is ''required to obtain a benefit.'' Public
reporting for this information collection is estimated to average .5
hours per response, including the time for reviewing instructions,
gathering and maintaining data, and completing and reviewing the
information collection. Direct comments regarding the burden estimate
or any other aspect of this information collection to the Bureau of
Indian Affairs, Information Collection Clearance Officer, room 337-SIB,
1849 C Street, NW., Washington, DC 20240; and the Office of Information
and Regulatory Affairs Project 1076-0021, Office of Management and
Budget, Washington, DC 20502.
25 CFR 175.6 Subpart B -- Service Fees, Electric Power Rates and Revenues
25 CFR 175.10 Revenues collected from power operations.
The Area Director shall set service fees and electric power rates in
accordance with the procedures in 175.11 and 175.12 to generate power
revenue.
(a) Revenues. Revenues collected from power operations shall be
administered for the following purposes, as provided in the Act of
August 7, 1946 (60 Stat. 895), as amended by the Act of August 31, 1951
(65 Stat. 254):
(1) Payment of the expenses of operating and maintaining the utility;
(2) Creation and maintenance of reserve Funds to be available for
making repairs and replacements to, defraying emergency expenses for,
and insuring continuous operation of the utility;
(3) Amortization, in accordance with repayment provisions of the
applicable statutes or contracts, of construction costs allocated to be
returned from power revenues; and
(4) Payment of other expenses and obligations chargeable to power
revenues to the extent required or permitted by law.
(b) Rate and fee reviews. Rates and fees shall be reviewed at least
annually to determine if project revenues are sufficient to meet the
requirements set forth in paragraph (a) of this section. The review
process shall be as prescribed by the Area Director.
25 CFR 175.11 Procedures for setting service fees.
The Area Director shall establish, and amend as needed, service fees
to cover the expense of customer service. Service fees shall be set by
unilateral action of the Area Director and remain in effect until
amended by the Area Director pursuant to this section. At least 30 days
prior to the effective date, a schedule of the service fees, together
with the effective date, shall be published in local newspaper(s) of
general circulation and posted in the utility office(s). The Area
Director's decision shall be final for the Department of the Interior.
25 CFR 175.12 Procedures for adjusting electric power rates except for
adjustments due to changes in the cost of purchased power or energy.
Except for adjustments to rates due to changes in the cost of
purchased power or energy, the Area Director shall adjust electric power
rates according to the following procedures:
(a) Whenever the review described in 175.10(b) of this part
indicates that an adjustment in rates may be necessary for reasons other
than a change in cost of purchased power or energy, the Area Director
shall direct further studies to determine whether a rate adjustment is
necessary and, if indicated, prepare rate schedules.
(b) Upon completion of the rate studies, and where a rate adjustment
has been determined necessary, the Area Director shall conduct public
information meetings as follows:
(1) Notices of public meetings shall be published in local newspapers
of general circulation, posted at the utility office(s), and provided by
such other means, if any, as determined by the Area Director. The
notice shall provide: The date, time, and place of the scheduled
meeting; a brief description of the action; the name, the address, and
the telephone number for addressing comments and inquiries; and the
period of time in which comments will be received. Notices shall be
published and posted at least 15 days before the scheduled date of the
meeting.
(2) Written and oral statements shall be received at the public
meetings. The record of the public meeting shall remain open for the
filing of written statements for five days following the meeting.
(c) After giving consideration to all written and oral statements,
the Area Director shall make a decision about a rate adjustment. A
notice of the Area Director's decision, the basis for the decision, and
the adjusted rate schedule(s), if any, shall be published and posted in
the same manner as the previous notices of public meetings.
(d) Rates shall remain in effect until further adjustments are
approved by the Area Director pursuant to this part.
25 CFR 175.13 Procedures for adjusting electric power rates to reflect
changes in the cost of purchased power or energy.
Whenever the cost of purchased power or energy changes, the effect of
the change on the cost of service shall be determined and the Area
Director shall adjust the power rates accordingly. Rate adjustments due
to the change in cost of purchased power or energy shall become
effective upon the unilateral action of the Area Director and shall
remain in effect until amended by the Area Director pursuant to this
section. A notice of the rate adjustment, the basis for the adjustment,
the rate schedule(s) shall be published and posted in the same manner as
described in 175.12(c) of this part. The Area Director's decision
shall be final for the Department of the Interior.
25 CFR 175.13 Subpart C -- Utility Service Administration
25 CFR 175.20 Gratuities.
All employees of the utility are forbidden to accept from a customer
any personal compensation or gratuity rendered related to employment by
the utility.
25 CFR 175.21 Discontinuance of service.
Failure of customer(s) to comply with utility requirements as set
forth in this part and the operations manual may result in
discontinuance of service. The procedure(s) for discontinuance of
service shall be set forth in the operations manual.
25 CFR 175.22 Requirements for receiving electrical service.
In addition to the other requirements of this part, the customer, in
order to receive electrical service, shall enter into a written service
agreement or special contract for electrical power services.
25 CFR 175.23 Customer responsibilities.
The customer(s) of a utility subject to this part shall:
(a) Comply with the National Electrical Manufacturers Association
Standards and/or the National Electrical Code of the National Board of
Fire Underwriters for Electric Wiring and Apparatus as they apply to the
installation and operation of customer-owned equipment;
(b) Be responsible for payment of all financial obligations resulting
from receiving utility service;
(c) Comply with additional requirements as further defined in the
operations manual;
(d) Not operate or handle the utility's facilities without the
express permission of the utility;
(e) Not allow the unauthorized-use of electricity; and
(f) Not install or utilize equipment which will adversely affect the
utility system or other customers of the utility.
25 CFR 175.24 Utility responsibilities.
A utility subject to this part shall:
(a) Endeavor to provide safe and reliable energy to its customers.
The specific types of service and limitations shall be further defined
in the operations manual;
(b) Construct and operate facilities in accordance with accepted
industry practice;
(c) Exercise reasonable care in protecting customer-owned equipment
and property;
(d) Comply with additional requirements as further defined in the
operations manual;
(e) Read meters or authorize the customer(s) to read meters at
intervals prescribed in the operations manual, service agreement, or
special contract, except in those situations where the meter cannot be
read due to conditions described in the operations manual;
(f) Not operate or handle customer-owned equipment without the
express permission of the customer, except to eliminate what, in the
judgment of the utility, is an unsafe condition; and
(g) Not allow the unauthorized use of electricity.
25 CFR 175.24 Subpart D -- Billing, Payments, and Collections
25 CFR 175.30 Billing.
(a) Metered customers. The utility shall render bills at monthly
intervals unless otherwise provided in special contracts. Bills shall
be based on the applicable rate schedule(s). Unless otherwise
determined, the amount of energy and/or power demand used by the
customer shall be as determined from the register on the utility's meter
at the customer's point of delivery. A reasonable estimate of the
amount of energy and/or power demand may be made by the utility in the
event a meter is found with the seal broken, the utility's meter fails,
utility personnel are unable to obtain actual meter registrations, or as
otherwise agreed by the customer and the utility. Estimates shall be
based on the pattern of the customer's prior consumption, or on an
estimate of the customer's electric load where no billing history
exists.
(b) Unmetered customers. Bills shall be determined and rendered as
provided in the customer's special contract.
(c) Service fee billing. The utility shall render service fee bills
to the customer(s) as a special billing.
25 CFR 175.31 Methods and terms of payment.
Payments shall be made in person or by mail to the utility's office
designated in the operations manual. The utility may refuse, for cause,
to accept personal checks for payment of bills.
25 CFR 175.32 Collections.
The utility shall attempt collection on checks returned by the
customer's bank due to insufficient funds or other cause. An
administrative fee shall be charged for each collection action taken by
the utility other than court proceedings. An unredeemed check shall
cause the customer's account to become delinquent, which may be cause
for discontinuance of service. Only legal tender, a cashier's check, or
a money order shall be accepted by the utility to cover an unredeemed
check and associated charges.
25 CFR 175.32 Subpart E -- System Extensions and Upgrades
25 CFR 175.40 Financing of extensions and upgrades.
(a) The utility may extend or upgrade its electric system to serve
additional loads (new or increased loads).
(b) If funds are not available, but the construction would not be
adverse to the interests of the utility, a customer may contract with
the utility to finance all necessary construction.
(1) A customer may be allowed to furnish required material or
equipment for an extension or upgrade or to install such items or to pay
the utility for such installation. Any items furnished or construction
performed by the customer shall comply with the applicable plans and
specifications approved by the utility.
(2) The utility may arrange to refund all or part of a customer's
payment of construction costs if additional customers are later served
by the same extension or if the Area Director determines that the
service will provide substantial economic benefits to the utility. All
arrangements for refunds shall be stipulated in a special contract.
25 CFR 175.40 Subpart F -- Rights-of-Way
25 CFR 175.50 Obtaining rights-of-way.
Where there is no existing right(s)-of-way for the utility's
facilities, the customer shall be responsible for obtaining all
rights-of-way necessary to the furnishing of service.
25 CFR 175.51 Ownership.
All rights-of-way, material, or equipment furnished and/or installed
by a customer pursuant to this part shall be and remain the property of
the United States.
25 CFR 175.51 Subpart G -- Appeals
25 CFR 175.60 Appeals to the area director.
(a) Any person adversely affected by a decision made under this part
by a person under the authority of an Area Director may file a notice of
appeal with the Area Director within 30 days of the personal delivery or
mailing of the decision. The notice of appeal shall be in writing and
shall clearly identify the decision being appealed. No extension of
time shall be granted for filing a notice of appeal.
(b) Within 30 days after a notice of appeal has been filed, the
appellant shall file a statement of reason(s) with the Area Director.
The statement of reason(s) shall explain why the appellant believes the
decision being appealed is in error, and shall include any argument(s)
that the appellant wishes to make and any supporting document(s). The
statement of reason(s) may be filed at the same time as the notice of
appeal. If no statement of reason(s) is filed, the Area Director may
summarily dismiss the appeal.
(c) Documents are properly filed with the Area Director when they are
received in the facility officially designated for receipt of mail
addressed to the Area Director, or in the immediate office of the Area
Director.
(d) Within 30 days of filing of the statement of reason(s), the Area
Director shall:
(1) Render a written decision on the appeal, or
(2) Refer the appeal to the Office of Hearings and Appeals Board of
Indian Appeals for decision.
(e) Where the Area Director has not rendered a decision with 30 days
of filing of the statement of reasons, the appellant may file an appeal
with the Office of Hearings and Appeals Board of Indian Appeals pursuant
to 175.61.
25 CFR 175.61 Appeals to the Interior Board of Indian Appeals.
(a) An Area Director's decision under this part, except a decision
under 175.11 or 175.13, may be appealed to the Office of Hearings and
Appeals Board of Indian Appeals pursuant to the provisions of 43 CFR
part 4, subpart D, except that a notice of appeal from a decision under
175.12 shall be filed within 30 days of publication of the decision.
The address for the Interior Board of Indian Appeals shall be included
in the operations manual.
(b) Where the Area Director determines to refer an appeal to the
Office of Hearings and Appeals Board of Indian Appeals, in lieu of
deciding the appeal, he/she shall be responsible for making the
referral.
(c) If no appeal is timely filed with the Office of Hearings and
Appeals Board of Indian Appeals, the Area Director's decision shall be
final for the Department of the Interior.
25 CFR 175.62 Utility actions pending the appeal process.
Pending an appeal, utility actions relating to the subject of the
appeal shall be as follows:
(a) If the appeal involves discontinuance of service, the utility is
not required to resume such service during the appeal process unless the
customer meets the utility's requirements.
(b) If the appeal involves the amount of a bill and:
(1) The customer has paid the bill, the customer shall be deemed to
have paid the bill under protest until the final decision has been
rendered on the appeal; or
(2) The customer has not paid the bill and the final decision
rendered in the appeal requires payment of the bill, the bill shall be
handled as a delinquent account and the amount of the bill shall be
subject to interest, penalties, and administrative costs pursuant to
section 3 of the Federal Claims Collection Act of 1966, As amended, 31
U.S.C. 3717.
(c) If the appeal involves an electric power rate, the rate shall be
implemented and remain in effect subject to the final decision on the
appeal.
25 CFR 175.62 PART 178 -- RESALE OF LANDS WITHIN THE BADLANDS AIR FORCE
GUNNERY RANGE (PINE RIDGE AERIAL GUNNERY RANGE)
Sec.
178.1 Purpose.
178.2 Definitions.
178.3 Eligibility to purchase.
178.4 Notice to former owners.
178.5 Special notice to former Indian owners.
178.6 Applications by former owners.
178.7 Conveyance documents.
178.8 Selection of lieu lands.
178.9 Lands formerly held subject to restrictions against alienation.
Authority: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2; 16 U.S.C.
3; 82 Stat. 663.
Source: 34 FR 9985, June 28, 1969, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 178.1 Purpose.
The regulations in this part govern the reacquisition by former
Indian and non-Indian owners of lands, or interests therein, acquired by
the United States of America as a part of the Badlands Air Force Gunnery
Range, sometimes referred to and known as the Pine Ridge Aerial Gunnery
Range. The regulations also govern the acquisition by former Indian
owners of life estates in national monument lands formerly owned by them
and the acquisition of lieu lands when lands formerly owned by them are
not available or are not desired by them for reacquisition. The
legislative authority for reacquisition of lands or interests therein by
former owners is the Act of August 8, 1968 (Pub. L. 90-468; 82 Stat.
663).
25 CFR 178.2 Definitions.
(a) ''Secretary'' means the Secretary of the Interior or his duly
authorized representative.
(b) ''Superintendent'' means the officer in charge of the Pine Ridge
Indian Agency, Pine Ridge, S. Dak.
(c) ''Act'' means the Act of August 8, 1968 (Pub. L. 90-468; 82
Stat. 663).
(d) ''Gunnery Range'' means the area on the Pine Ridge Indian
Reservation in South Dakota that was acquired by the United States for
use of the Air Force commonly known as the Pine Ridge Aerial Gunnery
Range or the Badlands Air Force Gunnery Range.
(e) ''Monument'' means the Badlands National Monument as enlarged by
section 1 of the Act of August 8, 1968 (Pub. L. 90-468).
(f) ''Tribe'' means the Oglala Sioux Tribe of Indians of South
Dakota.
25 CFR 178.3 Eligibility to purchase.
(a) Any former owner of a tract of land or interest in a tract of
land, whether title was held in trust or in fee, which was acquired by
the United States as a part of the Gunnery Range may purchase such tract
pursuant to the provisions of the Act and the regulations set forth in
this part: Provided, Said tract has been declared excess to the needs
of the Department of the Air Force, has been transferred to the
administrative jurisdiction of the Secretary of the Interior, and is not
within the boundaries of the Monument or within that portion of the
Gunnery Range retained for use of the Department of the Air Force.
(b) If a former owner is deceased and is survived by a spouse, the
spouse may purchase under the same terms and conditions as the former
owner except that if the former owner was an Indian whose land was held
in trust and his surviving spouse is a non-Indian, the title to said
tract shall be conveyed to the non-Indian spouse in a fee simple status.
(c) If the former owner is deceased and the spouse is also deceased,
the children of the former owner may repurchase the tract.
(d) If the former owner is not survived by a spouse or children there
exist no repurchase rights involving the tract.
(e) Not more than five former owners may join in purchasing a tract
of land. ''Former owner'' means each person from whom the United States
acquired an interest in a tract of land, or if such person is deceased,
the surviving spouse, or if such spouse is deceased, his children. If
more than five former owners apply to acquire a tract, the
Superintendent shall notify them in writing that it will be necessary
for them to agree among themselves as to the five or less of them who
shall acquire the tract. If agreement among the owners is obtained,
those individuals who are to acquire the tract shall then file an
application to purchase it. The matter of reaching agreement among the
owners is the sole responsibility of said owners and not the
responsibility of the Department of the Interior and/or the Bureau of
Indian Affairs to participate in the negotiations between the owners.
If the former owners fail to reach such an agreement, all applications
for the tract shall be rejected.
25 CFR 178.4 Notice to former owners.
After publication of these regulations, there shall be published in
the Federal Register notice that certain described lands and interests
in lands have been transferred to the administrative jurisdiction of the
Secretary and are available for repurchase by the former owners pursuant
to section 3(b) of the Act. Upon transfer of administrative
jurisdiction over lands that may thereafter be declared excess to the
needs of the Department of the Air Force and acceptance by the
Secretary, notice of such transfer shall be published in the Federal
Register. No attempt shall be made to notify each individual former
non-Indian owner personally, but the transfer of jurisdiction to the
Secretary may be further publicized by the publishing of notice in a
local newspaper of general circulation.
25 CFR 178.5 Special notice to former Indian owners.
(a) The Superintendent shall notify the former Indian owners, in
writing, at their last known addresses of their right to repurchase the
tracts formerly owned by them in those instances where the tracts are
outside of the boundaries of the Monument and are outside of the
boundaries of the area of the Gunnery Range retained by the Department
of the Air Force. Such notice shall include (1) the legal description;
(2) the purchase price thereof; (3) the minimum amount of down payment
required; (4) a recital that balance of purchase price may be paid in
20 annual installments; (5) the annual rate of interest on unpaid
balance; (6) information whether title is to be taken in trust or in
fee; and (7) the date by which the executed application to purchase
must be received in the office of the Superintendent. A form of
application for execution by the former owners shall accompany said
notice, said application to include the legal description of the land,
purchase price and other pertinent information.
(b) In those instances where the tracts of land or portions thereof
are within the boundaries of the area of the Gunnery Range retained by
the Department of the Air Force, the Superintendent shall notify the
former Indian owners, in writing, at their last known addresses that
they may elect to purchase available tracts of land in lieu of the lands
formerly owned by them, said lieu lands to be of substantially the same
value as the tracts originally owned by them. Such notice shall also
advise said former owners that they may, as an alternative, elect to
purchase the tracts formerly owned by them at such time as the tracts
may be declared excess to the needs of the Department of the Air Force
and transferred to the Secretary of the Interior. As to this
alternative, no promise or prediction may be made as to when, or
whether, the land may eventually become surplus to the needs of the
Department of the Air Force, and the notice shall specifically so state.
Such notice shall include (1) the legal description of the land
formerly owned by them; (2) the purchase price of the lieu land which
price shall be computed on the same basis as though the original tract
were available; (3) the minimum amount of down payment required; (4) a
recital that balance of purchase price may be paid in 20 annual
installments; (5) the annual rate of interest on unpaid balance; (6)
information whether title is to be taken in trust or in fee; and (7)
the date by which election to purchase lieu lands or wait until lands
formerly owned by them are declared excess must be received in the
office of the Superintendent. The notice shall be accompanied by a form
for execution by the former owner whereby said owner elects to purchase
lieu lands or to repurchase the tract formerly owned by said owner when
it is declared excess.
(c) In those instances where a tract of land or portion thereof is
within the boundaries of the Monument, the Superintendent shall notify
the former Indian owner, in writing, at his last known address that he
may elect to acquire a life estate in such tract or portion thereof at
no cost but subject to the restrictions on use referred to under
''Conveyance Documents'' ( 257.7). Such notice shall include the legal
description of the lands formerly owned by him upon which he may acquire
a life estate. The notice shall also inform the former owner that he
may elect to purchase any available tract of land in lieu of the lands
formerly owned by him, said lieu lands to have substantially the same
values as the tract originally owned by him. Such notice shall include
(1) the purchase price of the lieu land which price shall be computed on
the same basis as though the original tract were available for purchase;
(2) the minimum amount of down payment required; (3) a recital that
balance of purchase price may be paid in 20 annual installments; (4)
the annual rate of interest on unpaid balance; (5) information whether
title is to be taken in trust or in fee; and (6) the date by which the
election to acquire the life estate or lieu lands must be received in
the Office of the Superintendent. Such notice shall be accompanied by a
form for execution by the former owner whereby said owner elects to
acquire a life estate in the lands formerly owned by said owner or
elects to purchase lieu lands.
25 CFR 178.6 Applications by former owners.
(a) Applications by former Indian owners to purchase lands formerly
owned by them, or to purchase lieu lands, or to take a life estate in a
tract of land within the Monument area should be made on forms furnished
by the Superintendent and filed within the period specified in section
3(b) (5) of the Act. Such applications shall be filed in the Office of
the Superintendent.
(b) A former non-Indian owner may file application to purchase land
pursuant to section 3(b) of the Act within 1 year from the date notice
is published in the Federal Register that the land he formerly owned has
been declared excess to the needs of the Department of the Air Force and
has been transferred to the Secretary. Such application shall be filed
in the Office of the Superintendent. The applicant shall furnish proof
of his ownership or the ownership of his predecessor in interest at the
time of the acquisition of the land by the United States. Upon receipt
of an application to purchase and proof of ownership the Superintendent
shall cause the land to be appraised and thereafter he shall inform the
applicant in writing of the fair market value of the tract which shall
be the purchase price, the minimum amount of down payment required, that
the balance of the purchase price may be paid in 20 annual installments,
and the annual rate of interest on the unpaid balance.
25 CFR 178.7 Conveyance documents.
(a) Where there is an election by a former Indian owner of a tract of
land within the monument boundary to acquire a life estate in such tract
at no cost the following types of provisions and restrictions shall be
applicable to the use thereof:
(1) Agricultural uses are permitted. Only those commercial
activities associated with normal agricultural operations would be
allowed.
(2) Construction or reconstruction of any roads to the property,
including locations and materials used, are subject to approval by the
National Park Service.
(3) Mining activities of all kinds are prohibited inasmuch as the
United States retains all mineral rights.
(4) Residential and other facilities necessary for, or incidental to,
ranching and other agricultural purposes are permitted. This includes,
but is not limited to, barns, sheds, fences, stock dams, wells utilizing
surface or subsurface water, and other needed access accessory
structures.
(5) The cutting of native trees, except for firewood for the personal
use of the grantee, his family or assignee, is prohibited unless
determined by the National Park Service to be essential to the permitted
use of the tract.
(6) All improvements and structures are subject to removal upon
termination of the life estate or they shall be deemed to become the
property of the United States. The family or assignee of the grantee
shall have a reasonable time to vacate the premises upon termination of
the life estate and may harvest annual crops planted during the tenure
of the estate.
(7) Water rights owned by the United States in the premises remain
vested in the United States, but the grantee has a right to reasonable
use of the water.
(8) Grantee must observe and adhere to all applicable Federal, State,
and local laws and regulations, including Federal laws and regulations
for the protection of the black-footed ferret and other wildlife in the
Monument. The United States reserves the right to enter upon the
conveyed lands to assure such compliance and for the exercise of any
other rights and privileges reserved to it.
(9) The conveyed premises must be kept in a neat and orderly
condition and no waste or injury may be committed to the land.
Pollution of water on or adjacent to the property is prohibited.
(10) Reasonable precautions must be taken to prevent, suppress, and
extinguish forest, brush, grass, and other fires on the property.
(11) Grantee may not claim damages for injury by or against the
United States which might be directly attributable to existence of the
Monument.
(12) Other provisions deemed necessary by the National Park Service
in individual circumstances may be included in the conveyance document.
(b) When title to the land being acquired is to be taken in trust for
the purchaser and the purchase is effected by deferred payments as
authorized in section 3(b)(2) of the Act, a sale contract shall be
executed by the purchaser and the Secretary. The down payment shall be
not less than $100 or 20 per centum of the purchase price, whichever is
less. The purchaser shall be entitled to a credit of a pro rata share
of the grazing fees collected by the United States for use of the land
during the grazing year in which the sale contract is executed, which
credit shall be applied as all or a part of the down payment for the
land being purchased. In the event the proportionate share of the
grazing fees credited to the purchaser is less than the required down
payment, the purchaser shall pay the balance of the down payment in
cash, or by certified check, cashier's check, money order, or U.S.
Treasury check, payable to the Bureau of Indian Affairs at the time the
sale contract is executed. Upon execution of the contract by the
Secretary, a deed shall be prepared and executed by the Secretary
conveying title to the land to the United States in trust for the
purchaser. When the sale contract and deed are executed, the balance of
the proportionate share of the grazing fees, if any, due the purchaser
shall be paid to him and the down payment shall be deposited in the U.S.
Treasury to the credit of the United States as general fund receipts.
All subsequent installment payments shall be deposited in a like manner
to the credit of the United States. The sale contract shall include (1)
the legal description of the land; (2) the purchase price; (3) the
amount of down payment; (4) the amount of annual principal installment
payments; (5) the annual rate of interest on unpaid balance; (6) the
due dates of annual installments; (7) a recital that the unpaid balance
is a lien against the land and against all rents, bonuses and royalties
received therefrom; (8) a recital that a delinquency of 90 days in
making annual installment payments will subject the contract to
foreclosure with loss of all payments theretofore made thereon; and (9)
a recital that upon payment being made in full the deed to the United
States in trust for the purchaser will be delivered to the purchaser.
(c) If title to the tract is acquired in a trust status and full
payment therefor is made by the purchaser at the time the application
for purchase is approved, the title shall be conveyed to the United
States of America in trust for the purchaser by a deed executed by the
Secretary.
(d) If the purchaser is to acquire the tract in a fee status and the
purchase is effected by deferred payments as authorized in section
3(b)(2) of the Act, the title shall be conveyed to the purchaser in a
fee status by a deed executed by the Secretary. The purchaser shall
execute a mortgage naming the United States as mortgagee and shall
execute promissory notes for the annual installment payments with the
annual rate of interest set forth therein. The deed and mortgage shall
be recorded in the office of the register of deeds of the county in
which the land is situated, the recording costs to be borne by the
purchaser. Upon payment of the full amount of the mortgage a
satisfaction of mortgage shall be executed by the Secretary and
delivered to the purchaser who shall be responsible for recordation
thereof in the office of the register of deeds.
(e) If the purchaser is to acquire the tract in a fee status and full
payment therefor is made by the purchaser at the time the application
for purchase is approved, the title shall be conveyed to said purchaser
in a fee status by a deed executed by the Secretary. The purchaser
shall be responsible for recordation of the deed in the office of the
register of deeds of the county in which the land is situated.
(f) Each deed executed pursuant to paragraphs (c), (d), and (e) of
this section shall contain a provision that if the tract is offered for
sale by the purchaser within a period of 10 years from the date of said
deed, the tribe shall be notified in writing that the tract is being
offered for sale and of the terms of the offer and said tribe shall have
a period of 60 days to exercise a right of first refusal to purchase
such tract upon the terms set forth in the notice.
(g) All sale documents referred to in this section shall be recorded
in the office of the Bureau of Indian Affairs having custody of the land
title records of the Pine Ridge Indian Reservation pursuant to 25 CFR
part 150.
25 CFR 178.8 Selection of lieu lands.
(a) Lieu lands which may be selected for purchase by former Indian
owners whose lands are within the boundaries of the area retained for
use by the Department of the Air Force or are within the boundaries of
the Monument are defined as (1) those lands heretofore acquired by the
United States for use of the Air Force Gunnery Range which are outside
the boundaries of the Monument and outside the boundaries of the area
retained for use by the Department of the Air Force which are not
selected for repurchase by former owners within 1 year from date of
publication of the notice prescribed in section 3(b)(5) of the Act, and
(2) all of the submarginal lands acquired by the United States under
authority of the National Industrial Recovery Act of 1933 and subsequent
relief acts, within the Pine Ridge Indian Reservation, except those
submarginal lands within the area retained for use by the Department of
the Air Force or within the Monument, administrative jurisdiction over
which was transferred to the Secretary of the Interior by Executive
Order No. 7368, dated April 15, 1938.
(b) The former Indian owners whose lands are within the boundaries of
the area retained for use by the Department of the Air Force or are
within the boundaries of the Monument may elect to purchase lieu lands
of substantially the same value pursuant to section 4(b) and section
4(c) of the Act. Inasmuch as identification of all of the lands from
which lieu selections may be made cannot be determined until the time
has expired for former owners of lands outside of the area used by the
Department of the Air Force and outside the boundaries of the Monument
to purchase the tracts formerly owned by them, former owners who have
filed an election to purchase lieu lands within 1 year from the date of
publication of the notice prescribed in section 3(b)(5) of the Act,
shall be deemed to have filed a timely application to purchase
notwithstanding the fact that a specific tract of land has not been
designated in said election.
(c) Upon the expiration of 1 year from date of publication of the
notice prescribed in section 3(b)(5) of the Act, the Superintendent
shall prepare a complete list of all lands available from which
selections of lieu lands may be made. The Superintendent shall also
prepare a list of all former owners who elected to purchase lieu lands,
numbering them consecutively without regard as to date of receipt of
such election. The numbers shall then be placed on separate uniform
slips of paper and placed in a bowl. The numbers will then be withdrawn
from the bowl and a record made of the order in which they were
withdrawn. The owner of the first number withdrawn shall be afforded
the first opportunity to select lieu lands. The owners of lands
represented by the following numbers will be afforded an opportunity to
select lieu lands in the priority in which their numbers were drawn.
(d) When all selections of lieu lands have been made as provided in
paragraph (c) of this section, the Secretary shall determine the
comparability of the lands originally owned and the lieu selections. If
the lieu selections are not substantially the same value as the lands
originally owned, the owners shall be afforded an opportunity to make
other selections which are substantially the same value.
(e) To determine whether the former Indian owned land and the
selected lieu land in each case are of substantially the same value, the
consideration paid by the United States for each tract may be accepted
as indicative of the value of each tract at the time it was acquired.
If information as to the price paid for any specific tract is not
available, or if for any reason it is concluded that the consideration
paid by the United States for the land is not acceptable evidence as to
value for this purpose, the Secretary shall cause the tracts to be
appraised to determine their comparability. The appraisals of lands
shall be made on the basis of current market values. The lands shall be
considered to be substantially the same value if the differences in
values do not exceed 10 percent of the greater value.
25 CFR 178.9 Lands formerly held subject to restrictions against
alienation.
Former Indian owners who held title to the lands which were acquired
for the gunnery range subject to restrictions against alienation without
the approval of the Secretary of the Interior shall be conveyed title to
the reacquired lands in a trust status in the same manner as though they
had held trust title to the lands taken.
25 CFR 178.9 PART 179 -- LIFE ESTATES AND FUTURE INTERESTS
Sec.
179.1 Purpose, scope, and information collection.
179.2 Definitions.
179.3 Application of State law.
179.4 Distribution of principal and income.
179.5 Value of life estates and remainders.
179.6 Notice of termination of life estate.
Authority: 86 Stat. 530; 86 Stat. 744; 94 Stat. 537; 96 Stat.
2515; 25 U.S.C. 2, 9, 372, 373, 487, 607, and 2201-11.
Source: 53 FR 25953, July 8, 1988, unless otherwise noted.
Cross Reference: For regulations pertaining to income, rents,
profits, bonuses and principal from Indian lands and the recording of
title documents pertaining thereto, see parts 150, Land Records and
Title Documents; 152, Issuance of Patents in Fee, Certificates of
Competency, Removal of Restrictions, and Sale of Certain Indian Lands;
162, Leasing and Permitting; 163, General Forest Regulations; 166,
General Grazing Regulations; 169, Rights-of-Way over Indian Lands;
170, Roads of the Bureau of Indian Affairs; 212, Leasing of Allotted
Lands for Mining; 213, Leasing of Restricted Lands of Members of the
Five Civilized Tribes, Oklahoma, for Mining; 215, Lead and Zinc Mining
Operations and Leases, Quapaw Agency.
25 CFR 179.1 Purpose, scope, and information collection.
(a) These regulations set forth the authorities, policy and
procedures governing the administration of life estates and future
interests in Indian lands by the Secretary of the Interior. These
regulations do not apply to any use rights assigned by tribes, in the
exercise of their jurisdiction over tribal lands, to tribal members.
(b) These regulations do not contain information collection
requirements which require the approval of the Office of Management and
Budget under 44 U.S.C. 3501 et seq.
25 CFR 179.2 Definitions.
''Agency'' means an Indian Agency or other field unit of the Bureau
of Indian Affairs having the Indian land under its immediate
jurisdiction.
''Contract Bonus'' means cash consideration paid or agreed to be paid
as incentive for execution of the contract.
''Income'' means the rents and profits of real property and the
interest on invested principal.
''Indian Land'' means all lands held in trust by the United States
for individual Indians or tribes; or all lands, titles to which are
held by individual Indians or tribes, subject to Federal restrictions
against alienation or encumbrance.
''Principal'' means the corpus and capital of an estate, including
any payment received for the sale or diminishment of the corpus, as
opposed to the income.
''Secretary'' means the Secretary of the Interior or authorized
representative.
''Superintendent'' means the designated officer in charge of an
Agency.
25 CFR 179.3 Application of State law.
In the absence of Federal law or Federally-approved tribal law to the
contrary, the rules of life estates and future interests in the State in
which the land is located shall be applied on Indian land. State
procedural laws concerning the appointment and duties of private
trustees shall not apply.
25 CFR 179.4 Distribution of principal and income.
In all cases where the document creating the life estate does not
specify a distribution of proceeds; or where the vested remainderman
and life tenant have not entered into a written agreement approved by
the Secretary providing for the distribution of proceeds; or where, by
such document or agreement or by the application of State law, the open
mine doctrine does not apply; the Secretary shall:
(a) Distribute all rents and profits, as income, to the life tenant.
(b) Distribute any contract bonus one-half each to the life tenant
and the remainderman.
(c) In the case of mineral contracts, invest the principal, with
interest income to be paid the life tenant during the life estate,
except in those instances where the administrative cost of investment is
disproportionately high, in which case 179.4(d) shall apply. The
principal will be distributed to the remainderman upon termination of
the life estate.
(d) In all other instances, distribute the principal immediately
according to the formulas set forth in 179.5, investing all proceeds
attributable to any contingent remainderman in an account, with
disbursement to take place upon determination of the contingent
remainderman.
25 CFR 179.5 Value of life estates and remainders.
(a) The value of a life estate shall be determined by the formula:
Value of Life Estate = P L, where P = Value of principal, and L = Life
estate factor for the age and sex of the life tenant, as shown in Column
2 on Tables A(1) and A(2).
(b) The value of a remainder shall be determined by the formula:
Value of Remainder = P R, where P = Value of principal, and R =
Remainder factor for the age and sex of the life tenant, as shown in
Column 3 on Tables A(1) and A(2).
25 CFR 179.6 Notice of termination of life estate.
Upon receipt of a renunciation of interest or notice of death of an
Indian or non-Indian who died possessed of a life estate in Indian land,
the Superintendent having jurisdiction shall file a copy of the
renunciation or death certificate or other evidence of death with the
appropriate Bureau of Indian Affairs' Land Titles and Records Office for
recording.
25 CFR 179.6 SUBCHAPTER I -- ENERGY AND MINERALS
25 CFR 179.6 PART 200 -- TERMS AND CONDITIONS: COAL LEASES
Sec.
200.1 -- 200.10 (Reserved)
200.11 Incorporation of coal lease terms and conditions.
Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), as amended.
Source: 54 FR 22188, May 22, 1989, unless otherwise noted.
200.1 -- 200.10 (Reserved)
25 CFR 200.11 Incorporation of coal lease terms and conditions.
(a) All leases of coal on Indian lands, as defined in section 216.101
of this chapter, issued by the Secretary, will include at the time of
issuance, renewal, renegotiation, or readjustment, as applicable, the
following provision:
The Lessee shall comply with all applicable requirements of the
Surface Mining Control and Reclamation Act of 1977, and all regulations
promulgated thereunder, including those codified at 30 CFR part 750.
(b) With respect to leases of coal on Indian lands issued by the
Secretary after August 3, 1977, the Secretary shall, at the time of
issuance, renewal, renegotiation, or readjustment, as applicable,
include and enforce in such leases, terms and conditions related to the
Surface Mining Control and Reclamation Act of 1977, as requested by the
lessor Indian tribe in writing.
25 CFR 200.11 PART 211 -- LEASING OF TRIBAL LANDS FOR MINING
Sec.
211.1 Definitions.
211.1a Exisiting permits or leases on minerals acquired for the Ute
Indian Tribe of the Uintah and Ouray Reservation, Utah, and the Pueblos
of Zia and Jemez, New Mexico.
211.2 Leases to be made by tribes.
211.3 Sale of oil and gas leases.
211.3a Leases for subsurface storage of oil or gas.
211.4 Government employees cannot acquire leases.
211.5 Corporations and corporate information.
211.6 Bonds.
211.7 Lessees to furnish additional information.
211.8 Lands to be in compact body.
211.9 Acreage limitation.
211.10 Term of leases.
211.11 Government reserves right to buy minerals produced.
211.12 Manner of payments.
211.13 Rates of rentals and royalties under oil and gas leases.
211.14 Annual rentals and expenditures for development on leases
other than oil and gas.
211.14a. Suspension of operations and production on leases for
minerals other than oil and gas.
211.15 Royalty rates for minerals other than oil and gas.
211.16 Time of making royalty payments.
211.17 Division orders.
211.18 Inspection of premises, books and accounts.
211.19 Diligence and prevention of waste.
211.20 Permission to start operations.
211.21 Restrictions on operations.
211.22 Penalties.
211.23 Mines to be timbered properly.
211.24 Surrender of leased premises in good condition.
211.25 Fees.
211.26 Assignments and overriding royalties.
211.27 Cancellation.
211.27a Prospecting permits.
211.28 Effective date of regulations.
211.29 Exemption of leases made by organized tribes.
211.30 Forms.
Authority: Secs. 16, 17, 48 Stat. 987, 988, sec. 9, 49 Stat.
1968, sec. 4, 52 Stat. 348; 25 U.S.C. 396d, 476, 477, 509. Interpret
or apply secs. 1, 2, 49 Stat. 1250; 48 U.S.C. 358a, 362, unless
otherwise noted.
Source: 22 FR 10588, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 211.1 Definitions.
(a) The term ''superintendent'' in this part refers to the
superintendent or other officer of the Bureau of Indian Affairs or of
the Government who may have jurisdiction over the lands involved.
(b) The term ''supervisor'' in this part refers to a representative
of the Secretary of the Interior, under direction of the U.S. Geological
Survey, authorized and empowered to supervise and direct operations
under oil and gas or other mining leases, to furnish scientific and
technical information and advice, to ascertain and record the amount and
value of production, and to determine and record rentals and royalties
due and paid.
Cross Reference: For rules and regulations of the Geological Survey,
see 30 CFR chapter II.
25 CFR 211.1 How to Acquire Leases
25 CFR 211.1a Existing permits or leases on minerals acquired for the
Ute Indian Tribe of the Uintah and Ouray Reservation, Utah, and the
Pueblos of Zia and Jemez, New Mexico.
By the Act of July 14, 1956 (70 Stat. 546), title to the minerals
underlying certain lands in Utah was vested in the United States in
trust for the Ute Indian Tribe of the Uintah and Ouray Reservation and
by the Act of August 2, 1956 (70 Stat. 941), title to certain land in
New Mexico and the improvements thereon was declared to be in the United
States of America in trust for the Pueblos of Zia and Jemez, subject to
valid and existing rights. Existing mineral prospecting permits and
mining leases on these lands issued pursuant to 43 CFR and all action on
the permits and leases shall be administered by the Secretary of the
Interior or his authorized representative in accordance with the
regulations set forth in Title 43 of the Code of Federal Regulations,
except as follows:
(a) Appeals from administrative action shall be made pursuant to
applicable regulations set forth in this title.
(b) Payments or reports required by the leases, permits, or
regulations in title 43 CFR shall be made to the Superintendent having
jurisdiction over the land involved instead of the officer of the Bureau
of Land Management designated in title 43 CFR.
(25 FR 12408, Dec. 3, 1960. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 211.2 Leases to be made by tribes.
Indian tribes, bands or groups may, with the approval of the
Secretary of the Interior or his authorized representative, lease their
land for mining purposes. No oil and gas lease shall be approved unless
it has first been offered at an advertised sale in accordance with
211.3. Leases for minerals other than oil and gas shall be advertised
for bids as prescribed in 211.3 unless the Commissioner grants to the
Indian owners written permission to negotiate for a lease. Negotiated
leases, accompanied by proper bond and other supporting papers, shall be
filed with the Superintendent of the appropriate Indian Agency within 30
days after such permission shall have been granted by the Commissioner
to negotiate the lease. The appropriate Area Director is authorized in
proper cases to grant a reasonable extension of this period prior to its
expiration. The right is reserved to the Secretary of the Interior to
direct that negotiated leases be rejected and that they be advertised
for bids. All leases shall be approved by the Secretary of the Interior
or his duly authorized representative.
(23 FR 9393, Dec. 4, 1958. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 211.3 Sale of oil and gas leases.
(a) At such times and in such manner as he may deem appropriate,
after being authorized by the tribal council or other authorized
representative of the tribe, the superintendent shall publish notices at
least thirty days prior to the sale, unless a shorter period is
authorized by the Commissioner of Indian Affairs, that oil and gas
leases on specific tracts, each of which shall be in a reasonably
compact body, will be offered to the highest responsible bidder for a
bonus consideration, in addition to stipulated rentals and royalties.
Each bid must be accompanied by a cashier's check, certified check or
postal money order, payable to the payee designated in the invitation to
bid, in an amount not less than 25 percent of the bonus bid. Within 30
days after notification of being the successful bidder, said bidder must
remit the balance of the bonus, the first year's rental, and his share
of the advertising costs, and shall file with the superintendent the
lease in completed form. The superintendent may, for good and
sufficient reasons, extend the time for the completion and submission of
the lease form, but no extension shall be granted for remitting the
balance of moneys due. If the successful bidder fails to pay the full
consideration within said period, or fails to file the completed lease
within said period or extension thereof, or if the lease is disapproved
through no fault of the lessor or the Department of the Interior, 25
percent of the bonus bid will be forfeited for the use and benefit of
the Indian lessor.
(b) All notices or advertisements of sales of oil and gas leases
shall reserve to the Secretary of the Interior the right to reject all
bids when in his judgment the interests of the Indians will be best
served by so doing, and that if no satisfactory bid is received, or if
the accepted bidder fails to complete the lease, or if the Secretary of
the Interior shall determine that it is unwise in the interests of the
Indians to accept the highest bid, the Secretary may readvertise such
lease for sale, or if deemed advisable, with the consent of the tribal
council or other governing tribal authorities, a lease may be made by
private negotiations. The successful bidder or bidders will be required
to pay his or their share of the advertising costs. Amounts received
from unsuccessful bidders will be returned; but when no bid is accepted
on a tract, the costs of advertising will be assessed against the
applicant who requested that said tract be advertised.
(22 FR 10588, Dec. 24, 1957, as amended at 23 FR 7068, Sept. 12,
1958. Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 211.3a Leases for subsurface storage of oil or gas.
(a) The Secretary of the Interior, or his authorized representative,
may approve, subject to obtaining the prior consent of the Indian
owners, storage leases, or modifications, amendments, or extensions of
oil and gas or other mining leases, on tribal lands subject to lease
under the Act of May 11, 1938 (52 Stat. 347; 25 U.S.C. 396a), and on
allotted lands subject to lease under the Act of March 3, 1909 (35 Stat.
783; 25 U.S.C. 396), to provide for the subsurface storage of oil or
gas, irrespective of the lands from which production is initially
obtained. The storage lease, or modification, amendment, or extension,
shall provide for the payment of such storage fee or rental on such oil
or gas as may be determined adequate in each case, or, in lieu thereof,
for a royalty other than that prescribed in the oil and gas lease when
such stored oil and gas is produced in conjunction with oil or gas not
previously produced.
(b) The Secretary of the Interior or his authorized representative
may approve, subject to obtaining the prior consent of the Indian
owners, a provision in an oil and gas lease, under which storage of oil
and gas is authorized, for continuance of the lease at least for the
period of such storage use and so long thereafter as oil or gas not
previously produced is produced in paying quantities.
(c) Applications for subsurface storage of oil or gas shall be filed
in triplicate with the oil and gas supervisor and shall disclose the
ownership of the lands involved, the parties in interest, the storage
fee, rental, or royalty offered to be paid for such storage, and all
essential information showing the necessity for such project. Enough
copies of the final agreement signed by the Indian owners and other
parties in interest shall be submitted for the approval of the
Secretary, or his authorized representative, to permit retention of five
copies by the Department after approval.
(25 FR 9836, Oct. 14, 1960. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 211.4 Government employees cannot acquire leases.
No lease, assignment thereof, or interest therein will be approved to
any employee or employees of the U.S. Government whether connected with
the Bureau of Indian Affairs or otherwise, and no employee of the
Interior Department shall be permitted to acquire any interest in any
mineral lease covering restricted Indian lands by ownership of stock in
corporations having such leases or in any other manner.
(R.S. 2078; 25 U.S.C. 68)
25 CFR 211.5 Corporations and corporate information.
If the applicant for a lease is a corporation, it shall file evidence
of authority of its officers to execute papers; and with its first
application it shall also file a certified copy of its articles of
incorporation, and, if foreign to the State in which the lands are
located, evidence showing compliance with the corporation laws thereof.
Statements of changes in officers and stockholders shall be furnished by
a corporation lessee to the superintendent January 1 of each year, and
at such other times as may be requested. Whenever deemed advisable in
any case the superintendent may require a corporation applicant or
lessee to file:
(a) Lists of officers, principal stockholders, and directors, with
post-office addresses and number of shares held by each.
(b) A sworn statement of the proper officer showing:
(1) The total number of shares of the capital stock actually issued
and the amount of cash paid into the treasury on each share sold; or,
if paid in property, the kind, quantity, and value of the same paid per
share.
(2) Of the stock sold, how much remains unpaid and subject to
assessment.
(3) The amount of cash the company has in its treasury and elsewhere.
(4) The property, exclusive of cash, owned by the company and its
value.
(5) The total indebtedness of the company and the nature of its
obligations.
(6) Whether the applicant or any person controlling, controlled by or
under common control with the applicant has filed any registration
statement, application for registration, prospectus or offering sheet
with the Securities and Exchange Commission pursuant to the Securities
Act of 1933 or the Securities Exchange Act of 1934 or said Commission's
rules and regulations under said acts; if so, under what provisions of
said acts or rules and regulations; and what disposition of any such
statement, application, prospectus or offering sheet has been made.
(c) Affidavits of individual stockholders, setting forth in what
corporations or with what persons, firms, or associations such
individual stockholders are interested in mining leases on restricted
lands within the State, and whether they hold such interests for
themselves or in trust.
Cross Reference: For rules and regulations of the Securities and
Exchange Commission, see 17 CFR chapter II.
25 CFR 211.6 Bonds.
(a) Lessee shall furnish with each lease a bond (Form 5-154b), and an
assignee of a lease shall furnish with each assignment a bond (Form
5-154m), with an acceptable company authorized to act as sole surety, or
with two or more personal sureties and a deposit as collateral security
of any public-debt obligations of the United States guaranteed as to
principal and interest by the United States, equal to the full amount of
such bonds, or other collateral satisfactory to the Secretary of the
Interior, or show ownership of unencumbered real estate of the value
equal to twice the amount of the bonds. Lessee may file a bond on Form
5-154a without sureties and a deposit as collateral security of
Government bonds equal in value to the full amount of the bond. Lease
bonds shall not be less than the following amounts:
For less than 80 acres $l,000
For 80 acres and less than 120 acres 1,500
For 120 acres and not more than 160 acres 2,000
For each additional 40 acres, or part thereof, above 160 acres 500
Provided, That for leases for minerals other than oil and gas the
Secretary of the Interior or his authorized representative with the
consent of the Indian landowner may authorize a bond for a lesser amount
if, in his opinion, the circumstances warrant and the interests of the
Indian landowners are fully protected: Provided further, That a lessee
may file one bond (Form 5-154f), in the sum of $15,000 for all leases of
minerals, in any one State and which may also include leases on that
part of an Indian reservation extending into State contiguous thereto,
to which the lessee may become a party: And provided further, That the
total acreage covered by the bond shall not exceed 10,240 acres.
(b) In lieu of the bonds required under paragraph (a) of this
section, a lessee may furnish a bond (Form 5-156) in the sum of $75,000
for full nationwide coverage with an acceptable company authorized to
act as sole surety to cover all oil and gas leases and oil and gas
prospecting permits without geographic or acreage limitation to which
the lessee or permittee is or may become a party.
(c) The right is specifically reserved to increase the amount of
bonds and the collateral security prescribed in paragraph (a) of this
section in any particular case when the officer in charge deems it
proper to do so. The nationwide bond may be increased at any time in
the discretion of the Secretary of the Interior.
(22 FR 10588, Dec. 24, 1957, as amended at 26 FR 164, Jan. 10, 1961.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 211.7 Lessees to furnish additional information.
The superintendent may, either before or after approval of a lease,
call for any additional information desired to carry out the regulations
in this part. If a lessee shall fail to furnish the papers necessary to
put his lease and bond in proper form for consideration, the
superintendent shall forward such lease for disapproval.
25 CFR 211.8 Lands to be in compact body.
The area covered by a lease shall be in a reasonably compact body and
shall conform to the system of public-land surveys, except that leases
covering lode ground may consist of one or more adjoining parallelograms
1,500 feet in length by 600 feet in width, as provided by the United
States mining laws. No lease under the regulations in this part shall
convey any extralateral rights, and no coal lease shall have a length
exceeding 1 mile along the outcrop.
25 CFR 211.9 Acreage limitation.
A lessee may acquire more than one lease but no single lease shall be
granted for mining purposes on Indian tribal or restricted Indian lands,
exclusive of Osage and Quapaw lands, in excess of the following acreage
except where the rule of approximation applies:
(a) For oil and gas and all other minerals, except coal, 2,560 acres.
(b) (1) For coal, a lease shall ordinarily be limited to 2,560 acres.
The Commissioner may, however, upon application, approve the combining
of leases held by one or more lessees, or approve the issuance of a
single lease for more than 2,560 acres in a reasonably compact form, if
he shall find that the approval of such larger acreage is in the
interest of the lessor and is necessary to permit the establishment or
construction of thermal electric power plans or other industrial
facilities on or near the reservation. He may prescribe provisions in
such larger leases to require relinquishment of acreage in the event of
failure to construct facilities, or may require advance rental or
minimum royalty payments on a part of the acreage as a condition for
combining leases or issuance of a single lease in excess of 2,560 acres.
(2) The Commissioner, with the consent of the lessor, may alter,
change, or modify the development and producing requirements of the
several leases and provide that operations and production on one lease
shall be deemed to satisfy the development and producing requirements as
to each lease combined.
25 CFR 211.10 Term of leases.
Mining leases may be made for a specified term not to exceed ten
years from the date of approval by the Secretary of the Interior, or his
authorized representative, and as much longer as the substances
specified in the lease are produced in paying quantities.
25 CFR 211.11 Government reserves right to buy minerals produced.
In time of war or other public emergency all of the executive
departments of the United States Government shall have the option to
purchase at the posted market price on the date of sale all or any part
of the substance or substances produced under any lease.
25 CFR 211.11 Rents and Royalties
25 CFR 211.12 Manner of payments.
(a) Except where otherwise provided by the terms of leases where the
tribes are organized under the act of June 18, 1934 (48 Stat. 984; 25
U.S.C. 461-479), all rents and other payments due under leases which
have been or may be approved by the Secretary of the Interior shall be
paid to the superintendent or to such other person as may be designated
by the Secretary of the Interior, for the benefit of the lessors.
Except advance payments for the first year which shall be sent direct to
the superintendent at the time of filing leases, payments of rental and
royalty under leases shall be transmitted through the supervisor, shall
be accompanied by a statement by the lessee, in triplicate, showing the
specific items of rental or royalty that the remittance is intended to
cover, and shall be made at such time or times as the lease provides.
(b) In the event of the discovery of minerals in paying quantities
all advance payments shall be allowed as credit on stipulated royalties
for the year for which such advance payments have been made. No refund
will be made under oil, gas, or other mining leases, in the event that
royalty from production is not sufficient to equal the advance payment,
nor will any part of the moneys so paid be refunded to the lessee
because of any subsequent surrender or cancellation of the lease, nor
shall the lessee be relieved from the obligation to pay said advance
rental annually when it becomes due, by reason of any subsequent
surrender or cancellation of the lease.
25 CFR 211.13 Rates of rentals and royalties under oil and gas leases.
(a) The lessee shall pay, beginning with the date of approval of oil
and gas leases by the Secretary of the Interior, a rental of $1.25 per
acre per annum in advance during the continuance thereof, together with
a royalty of 12 1/2 percent of the value or amount of all oil, gas,
and/or natural gasoline, and/or all other hydrocarbon substances
produced and saved from the land leased, save and except oil, and/or gas
used by the lessee for development and operation purposes on the lease,
which oil or gas shall be royalty free. A higher rate of royalty may be
fixed by the Secretary of the Interior or his authorized representative,
prior to the advertisement of land for oil and gas leases. During the
period of supervision, ''value'' for the purposes of the lease may, in
the discretion of the Secretary of the Interior, be calculated on the
basis of the highest price paid or offered (whether calculated on the
basis of short or actual volume) at the time of production for the major
portion of the oil of the same gravity, and gas, and/or natural
gasoline, and/or all other hydrocarbon substances produced and sold from
the field where the leased lands are situated, and the actual volume of
the marketable product less the content of foreign substances as
determined by the supervisor. The actual amount realized by the lessee
from the sale of said products may, in the discretion of the Secretary
of the Interior, be deemed mere evidence of or conclusive evidence of
such value. When paid in value, such royalties shall be due and payable
monthly on the last day of the calendar month following the calendar
month in which produced; when royalty on oil produced is paid in kind,
such royalty oil shall be delivered in tanks provided by the lessee on
the premises where produced without cost to the lessor unless otherwise
agreed to by the parties thereto, at such time as may be required by the
lessor. The lessee shall not be required to hold such royalty oil in
storage longer than 30 days after the end of the calendar month in which
said oil is produced. The lessee shall be in no manner responsible or
held liable for loss or destruction of such oil in storage by causes
beyond the lessee's control. In determining the value for royalty
purposes of products, such as natural gasoline, that are derived from
treatment of gas, a reasonable allowance for the cost of manufacture
shall be made, such allowance to be two-thirds of the value of the
marketable product unless otherwise determined by the Secretary of the
Interior on application of the lessee or on his own initiative, and that
royalty will be computed on the value of gas or casing-head gas, or on
the products thereof (such as residue gas, natural gasoline, propane,
butane, etc.), whichever is the greater.
(b) If the leased premises produce gas in excess of the lessee's
requirements for the development and operation of said premises, then
the lessor may use sufficient gas, free of charge, for any desired
school or other buildings belonging to the tribe, by making his own
connections to a regulator installed, connected to the well and
maintained by the lessee, and the lessee shall not be required to pay
royalty on gas so used. The use of such gas shall be at the lessor's
risk at all times.
25 CFR 211.14 Annual rentals and expenditures for development on leases
other than oil and gas.
(a) Unless otherwise authorized by the Secretary or his authorized
representative (1) a lease for minerals other than oil and gas shall
provide for a yearly development expenditure of not less than $10 per
acre and (2) all such leases shall provide for a rental payment of not
less than $1 for each acre or fraction of an acre payable on or before
the first day of each lease year.
(b) Within 20 days after the lease year, an itemized statement, in
duplicate, of the expenditure for development under a lease for minerals
other than oil and gas shall be filed with the Superintendent. The
lessee must certify the statement under oath.
25 CFR 211.14a Suspension of operations and production on leases for
minerals other than oil and gas.
The Secretary of the Interior or his authorized representative, after
obtaining the consent of the tribe, may authorize suspension of
operating and producing requirements on mining leases for minerals other
than oil and gas whenever during the primary term of the leases, it is
considered that marketing facilities are inadequate or economic
conditions unsatisfactory. Applications by lessees for relief from all
operating and producing requirements on such mineral leases shall be
filed in triplicate, in the office of the Regional Mining Supervisor of
the Geological Survey and a copy thereof filed with the Superintendent.
Complete information must be furnished showing the necessity for such
relief. Suspension of operations and production shall not relieve the
lessee from the obligations of continued payment of the annual rental or
the minimum royalty.
(24 FR 9510, Nov. 26, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 211.15 Royalty rates for minerals other than oil and gas.
Unless otherwise authorized by the Commissioner of Indian Affairs,
the minimum rates for minerals other than oil and gas shall be as
follows:
(a) For substances other than gold, silver, copper, lead, zinc,
tungsten, coal, asphaltum and allied substances, oil, and gas, the
lessee shall pay quarterly or as otherwise provided in the lease, a
royalty of not less than 10 percent of the value, at the nearest
shipping point, of all ores, metals, or minerals marketed.
(b) For gold and silver the lessee shall pay quarterly or as
otherwise provided in the lease, a royalty of not less than 10 percent
to be computed on the value of bullion as shown by mint returns after
deducting forwarding charges to the point of sale; and for copper,
lead, zinc, and tungsten, a royalty of not less than 10 percent to be
computed on the value of ores and concentrates as shown by reduction
returns after deducting freight charges to the point of sale. Duplicate
returns shall be filed by the lessee with the Superintendent within 10
days after the ending of the quarter or other period specified in the
lease within which such returns are made: Provided, however, That the
lessee shall pay a royalty of not less than 10 percent of the value of
the ore or concentrates sold at the mine unless otherwise provided in
the lease.
(c) For coal the lessee shall pay quarterly or as otherwise provided
in the lease, a royalty of not less than 10 cents per ton of 2,000
pounds of mine run, or coal as taken from the mine, including what is
commonly called ''slack''.
(d) For asphaltum and allied substances the lessee shall pay
quarterly or as otherwise provided in the lease, a royalty of not less
than 10 cents per ton of 2,000 pounds on crude material or not less than
60 cents per ton on refined substances.
25 CFR 211.16 Time of making royalty payments.
Royalty payments under producing oil and gas leases shall be made
monthly on or before the last day of the calendar month following the
calendar month for which such payment is to be made.
25 CFR 211.17 Division orders.
(a) Lessees may make arrangements with the purchasers of oil for the
payment of the royalties to the superintendent by such purchasers, but
such arrangement, if made, shall not operate to relieve a lessee from
responsibility should the purchaser fail or refuse to pay royalties when
due. Where lessees avail themselves of this privilege, division orders
permitting the pipe line companies or other purchasers of the oil to
withhold the royalty interest shall be executed and forwarded to the
supervisor for approval, as pipe line companies are not permitted to
accept or run oil from leased Indian lands until after the approval of a
division order showing that the lessee has a lease regularly approved
and in effect. When the lessee company runs its own oil, it shall
execute an intra-company division order and forward it to the supervisor
for his consideration. The right is reserved for the supervisor to
cancel a division order at any time or require the pipe line company to
discontinue to run the oil of any lessee who fails to operate the lease
properly or otherwise violates the provisions of the lease, of the
regulations in this part, or of the operating regulations.
(b) When oil is taken by authority of a division order, the lessee or
his representative shall be actually present when the oil is gauged and
records are made of the temperature, gravity, and impurities. The
lessee will be held responsible for the correctness and the correct
recording and reporting of all of the foregoing measurements; which,
except lowest gauge, shall be made at the time the oil is turned into
the pipe line. Failure of the lessee to perform properly these duties
will subject the division order to revocation.
Cross Reference: For oil and gas operating regulations of the
Geological Survey, see 30 CFR part 221.
25 CFR 211.18 Inspection of premises, books and accounts.
Lessees shall agree to allow the lessors and their agents or any
authorized representative of the Interior Department to enter, from time
to time, upon and into all parts of the leased premises for the purpose
of inspection, and shall further agree to keep a full and correct
account of all operations and make reports thereof, as required by the
regulations of the Department governing operations on public and
restricted Indian lands; and their books and records, showing manner of
operations and persons interested, shall be open at all times for
examination of such officers of the Department as shall be instructed in
writing by the Secretary of the Interior or authorized by regulations to
make such examination.
25 CFR 211.19 Diligence and prevention of waste.
The lessee shall exercise diligence in drilling and operating wells
for oil and gas on the leased lands while such products can be secured
in paying quantities; carry on all operations in a good and workmanlike
manner in accordance with approved methods and practice, having due
regard for the prevention of waste of oil or gas developed on the land,
or the entrance of water through wells drilled by the lessee to the
productive sands or oil or gas-bearing strata to the destruction or
injury of the oil or gas deposits, the preservation and conservation of
the property for future productive operations, and to the health and
safety of workmen and employees; plug securely all wells before
abandoning the same and to shut off effectually all water from the oil
or gas-bearing strata; not drill any well within 200 feet of any house
or barn on the premises without the lessor's written consent approved by
the superintendent; carry out at his expense all reasonable orders and
requirements of the supervisor relative to prevention of waste, and
preservation of the property and the health and safety of workmen; bury
all pipelines crossing tillable lands below plow depth unless other
arrangements therefor are made with the superintendent; pay the lessor
all damages to crops, buildings, and other improvements of the lessor
occasioned by the lessee's operations: Provided, That the lessee shall
not be held responsible for delays or casualties occasioned by causes
beyond the lessee's control.
25 CFR 211.20 Permission to start operations.
(a) No operations will be permitted on any lease before it it
approved by the Secretary of the Interior.
(b) Written permission must be secured from the supervisor before any
operations are started on the leased premises. After such permission is
secured the operations must be in accordance with the operating
regulations promulgated by the Secretary of the Interior. Copies of the
regulations in this part may be secured from either the supervisor or
the superintendent and no operations shall be attempted without a study
of the operating regulations.
25 CFR 211.21 Restrictions on operations.
(a) Oil and gas leases issued under the provisions of the regulations
in this part shall be subject to imposition by the Secretary of the
Interior of such restrictions as to time or times for the drilling of
wells and as to the production from any well or wells as in his judgment
may be necessary or proper for the protection of the natural resources
of the leased land and in the interest of the lessor. In the exercise
of his judgment the Secretary of the Interior may take into
consideration, among other things, the Federal laws, State laws,
regulations by competent Federal or State authorities, lawful agreements
among operators regulating either drilling or production, or both, and
any regulatory action desired by tribal authorities.
(b) All such leases shall be subject to any cooperative or unit
development plan affecting the leased lands that may be required by the
Secretary of the Interior, but no lease shall be included in any
cooperative or unit plan without prior approval of the Secretary of the
Interior and consent of the Indian tribe affected.
25 CFR 211.22 Penalties.
Failure of the lessee to comply with any provisions of the lease, of
the operating regulations, of the regulations in this part, order of the
superintendent or his representative, or of the orders of the supervisor
or his representative, shall subject the lease to cancellation by the
Secretary of the Interior or the lessee to a penalty of not more than
$500 per day for each and every day the terms of the lease, the
regulations, or such orders are violated; or to both such penalty and
cancellation: Provided, That the lessee shall be entitled to notice and
hearing, within 30 days after such notice, with respect to the terms of
the lease, regulations, or orders violated, which hearing shall be held
by the supervisor, whose findings shall be conclusive unless an appeal
be taken to the Secretary of the Interior within 30 days after notice of
the supervisor's decision, and the decision of the Secretary of the
Interior upon appeal shall be conclusive.
25 CFR 211.23 Mines to be timbered properly.
In mining operations the lessee shall keep the mine well and
sufficiently timbered at all points where necessary, in accordance with
good mining practice, and in such manner as may be necessary to the
proper preservation of the leased property and safety of the workmen.
25 CFR 211.24 Surrender of leased premises in good condition.
On expiration of the term of a lease, or when a lease is surrendered,
the lessee shall deliver to the Government the leased ground with the
mine workings in good order and condition, and bondsmen will be held for
such delivery in good order and condition, unless relieved by the
Secretary of the Interior for cause. It shall, however, be stipulated
that the machinery necessary to operate the mine is the property of the
lessee, but that it may be removed by him only after the condition of
the property has been ascertained by inspection by the Secretary of the
Interior or his authorized agents, to be in satisfactory condition.
25 CFR 211.25 Fees.
Unless otherwise authorized by the Secretary of the Interior or his
authorized representative, each lease, mining permit, sublease, or
assignment shall be accompanied at the time of filing by a fee of $10.
Such fee will not be required on sand and gravel permits issued to
States, counties, or other municipal bodies.
(Sec. 1, 41 Stat. 415, as amended: 25 U.S.C. 413)
(24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 211.26 Assignments and overriding royalties.
(a) Approved leases or any interest therein may be assigned or
transferred only with the approval of the Secretary of the Interior, and
to procure such approval the assignee must be qualified to hold such
lease under existing rules and regulations and shall furnish a
satisfactory bond conditioned for the faithful performance of the
covenants and conditions thereof: Provided, That in order for such
assignment to receive favorable consideration the lessee shall assign
either his whole interest or an undivided interest in the whole lease.
(b) No lease or interest therein or the use of such lease shall be
assigned, sublet, or transferred, directly or indirectly by working or
drilling contract, or otherwise, without the consent of the Secretary of
the Interior.
(c) Assignments of leases, and stipulations modifying the terms of
existing leases, which stipulations are also subject to the approval of
the Secretary of the Interior, shall be filed with the superintendent
within 30 days after the date of execution.
(d) Agreements creating overriding royalties or payments out of
production on oil and gas leases shall not be considered as interests in
the leases as such term is used in this section. Agreements creating
overriding royalties or payments out of production are hereby authorized
and the approval of the Department of the Interior or any agency thereof
shall not be required with respect thereto, but such agreements shall be
subject to the condition that nothing in any such agreement shall be
construed as modifying any of the obligations of the lessee, including,
but not limited to, obligations for diligent development and operation,
protection against drainage, compliance with oil and gas operating
regulations (30 CFR part 221), and the requirement for departmental
approval before abandonment of any well. All such obligations are to
remain in full force and effect, the same as if free of any such
royalties or payments. The existence of agreements creating overriding
royalties or payments out of production, whether or not actually paid,
shall not be considered as justification for the approval of abandonment
of any well. Nothing in this paragraph revokes the requirement for
approval of assignments and other instruments which is required in this
section, but any overriding royalties or payments out of production
created by the terms of such assignments or instruments shall be subject
to the condition stated above. Agreements creating overriding royalties
or payments out of production need not be filed with the Superintendent
unless incorporated in assignments or instruments required to be filed
pursuant to this section.
(22 FR 10588, Dec. 24, 1957, as amended at 23 FR 9738, Dec. 18, 1958.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 211.27 Cancellation.
(a) When, in the opinion of the Secretary of the Interior, the lessee
has violated any of the terms and conditions of a lease or of the
applicable regulations, the Secretary of the Interior shall have the
right at any time after 30 days' notice to the lessee specifying the
terms and conditions violated, and after a hearing, if the lessee shall
so request within 30 days after issuance of the notice, to declare such
lease null and void, and the lessor shall then be entitled and
authorized to take immediate possession of the land.
(b) On the following conditions, the lessee may, on approval of the
Secretary of the Interior, surrender a lease or any part of it:
(1) That he make application for cancellation to the superintendent
having jurisdiction over the land.
(2) That he pay a surrender fee of $1 at the time the application is
made.
(3) That he pay all royalties and rentals due to the date of such
application.
(4) That he make a satisfactory showing that full provision has been
made for conservation and protection of the property and that all wells,
drilled on the portion of the lease surrendered, have been properly
abandoned.
(5) If the lease has been recorded, that he file, with his
application, a recorded release of the acreage covered by the
application.
(6) If the application is for the cancellation of the entire lease or
the entire undivided portion, that he surrender the lease: Provided,
That where the application is made by an assignee to whom no copy of the
lease was delivered, he will be required to surrender only his copy of
the assignment.
(7) If the lease (or portion being surrendered or canceled) is owned
in undivided interests by more than one party, then all parties shall
join in the application for cancellation.
(8) That all required fees and papers must be in the mail or received
on or before the date upon which rents and royalties become due, in
order for the lessee and his surety to be relieved from liability for
the payment of such royalties and rentals.
(9) If there has been a contest respecting a lease or leases, the
approved, the disapproved, or the canceled parts thereof will be held in
the office of the superintendent for 5 days after the Department's
decision has been promulgated, by mail or delivery, and will not be
delivered, if within that period a motion for review and reconsideration
be filed, until such motion is passed upon by the Department.
(10) In the event oil or gas is being drained from the leased
premises by wells not covered by a lease; the lease, or any part of it,
may be surrendered, only on such terms and conditions as the Secretary
of the Interior may determine to be reasonable and equitable.
(c) No part of any advance rental shall be refunded to the lessee nor
shall he be relieved, by reason of any subsequent surrender or
cancellation of the lease, from the obligation to pay said advance
rental when it becomes due.
25 CFR 211.27a Prospecting permits.
With the consent of the tribal authorities the superintendent may
issue permits to prospect for minerals other than oil and gas upon
tribal lands. Such permits must describe the area to be prospected and
definitely state the period of time within which such work is permitted.
No ores shall be removed from the reservation under such permits,
except samples for assay and experimental purposes. A prospecting
permit will not give the permittee any preference right to a lease,
unless specifically so stated in the permit, and all permits granting a
preference right to a lease must comply with all the laws and
regulations applicable to mineral leases on tribal Indian lands.
25 CFR 211.28 Effective date of regulations.
The regulations in this part shall become effective and in full force
from and after the date of approval, and shall be subject to change or
alteration at any time by the Secretary of the Interior: Provided, That
no regulations made after the approval of any lease shall operate to
affect the term of the lease, rate of royalty, rental, or acreage unless
agreed to by both parties to the lease. All former regulations
governing the leasing of tribal lands for mining purposes are superseded
by the regulations in this part.
25 CFR 211.29 Exemption of leases made by organized tribes.
The regulations in this part may be superseded by the provisions of
any tribal constitution, bylaw or charter issued pursuant to the Indian
Reorganization Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 461-479),
the Alaska Act of May 1, 1936 (49 Stat. 1250; 48 U.S.C. 362, 258a), or
the Oklahoma Indian Welfare Act of June 26, 1936 (49 Stat. 1967; 25
U.S.C., and Sup., 501-509), or by ordinance, resolution or other action
authorized under such constitution, bylaw or charter. The regulations
in this part, in so far as they are not so superseded, shall apply to
leases made by organized tribes if the validity of the lease depends
upon the approval of the Secretary of the Interior.
25 CFR 211.30 Forms.
Leases, assignments, and other instruments shall be on forms
prescribed by the Secretary of the Interior or his authorized
representative and may be obtained from the superintendent or other
officer having jurisdiction over the lands.
(24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 211.30 PART 212 -- LEASING OF ALLOTTED LANDS FOR MINING
Sec.
212.1 Definitions.
212.2 Applications.
212.3 No leases made to Government employees.
212.4 Sale of oil and gas leases.
212.4a Leases for subsurface storage of oil or gas.
212.5 Execution of leases by Superintendents.
212.6 Leases for minerals other than oil and gas.
212.7 Requirements of corporate lessees.
212.8 Information; corporate lessees and stockholders.
212.9 Leases of undivided inherited lands.
212.10 Bonds.
212.11 Additional information.
212.12 Term of leases.
212.13 Acreage limitation.
212.14 Payment of rentals and royalties.
212.15 Annual rentals and expenditures for development on leases
other than oil and gas.
212.15a Suspension of operations and production on leases for
minerals other than oil and gas.
212.16 Rentals and royalties for oil and gas leases.
212.17 Preference of Government to purchase oil.
212.18 Royalty rates for minerals other than oil and gas.
212.19 Payment of royalties by purchasers of oil; division orders.
212.20 Time of royalty payments.
212.21 Stipulations.
212.22 Assignments and overriding royalties.
212.23 Cancellations.
212.24 Operation and development regulations.
212.25 Inspection of books and accounts.
212.26 Leases on unrestricted lands.
212.27 Leases executed before removal of restrictions.
212.28 Removal of restrictions.
212.29 Terms applying after relinquishment.
212.30 Removal of restrictions upon part of acreage.
212.31 Fees.
212.32 Forms.
212.33 Individual tribal assignments excluded.
Authority: 35 Stat. 783, as amended; 25 U.S.C. 396, unless
otherwise noted.
Source: 22 FR 10592, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 212.1 Definitions.
(a) The term ''superintendent'' in this part refers to the
superintendent or other officer of the Bureau of Indian Affairs or of
the Government who may have jurisdiction over the allotments involved.
(b) The term ''supervisor'' in this part refers to a representative
of the Secretary of the Interior, under direction of the Director of the
U.S. Geological Survey, authorized and empowered to supervise and direct
operations under oil and gas or other mining leases, to furnish
scientific and technical information and advice, to ascertain and record
the amount and value of production, and to determine and record rentals
and royalties due and paid.
Cross Reference: For rules and regulations of the Geological Survey,
see 30 CFR chapter II.
25 CFR 212.2 Applications.
Application for leases should be made to the superintendent having
jurisdiction over the lands.
25 CFR 212.3 No leases made to Government employees.
No lease, assignment thereof, or interest therein will be approved to
any employee or employees of the U.S. Government whether connected with
the Bureau or otherwise, and no employee of the Interior Department
shall be permitted to acquire any interest in such leases by ownership
of stock in corporations having leases or in any other manner.
(R.S. 2078; 25 U. S. C. 68)
25 CFR 212.4 Sale of oil and gas leases.
(a) At such times and in such manner as he may deem appropriate, the
superintendent shall publish notices at least thirty days prior to the
sale, unless a shorter period is authorized by the Commissioner of
Indian Affairs, that oil and gas leases on specific tracts, each of
which shall be in a reasonably compact body, will be offered to the
highest responsible bidder for a bonus consideration, in addition to
stipulated rentals and royalties. Each bid must be accompanied by a
cashier's check, certified check, or postal money order, payable to the
payee designated in the invitation to bid, in an amount not less than 25
percent of the bonus bid. Within 30 days after notification of being
the successful bidder, said bidder must remit the balance of the bonus,
the first year's rental, and his share of the advertising costs, and
shall file with the superintendent the lease in completed form. The
superintendent may, for good and sufficient reasons, extend the time for
the completion and submission of the lease form, but no extension shall
be granted for remitting balance of monies due. If the successful
bidder fails to pay the full consideration within said period, or fails
to file the completed lease within said period or extension thereof, or
if the lease is disapproved through no fault of the lessor or the
Department of the Interior, 25 percent of the bonus bid will be
forfeited for the use and benefit of the Indian lessor.
(b) All notices or advertisements of sales of oil and gas leases
shall reserve to the Secretary of the Interior the right to reject all
bids when in his judgment the interests of the Indians will be best
served by so doing, and that if no satisfactory bid is received, or if
the accepted bidder fails to complete the lease, or if the Secretary of
the Interior shall determine that it is unwise in the interests of the
Indians to accept the highest bid, the Secretary may readvertise such
lease for sale, or if deemed advisable, with the consent of the Indian
owners, a lease may be made by private negotiations. The successful
bidder or bidders will be required to pay his or their share of the
advertising costs. Amounts received from unsuccessful bidders will be
returned; but when no bid is accepted on a tract, the costs of
advertising will be assessed against the applicant who requested that
said tract be advertised.
25 CFR 212.4a Leases for subsurface storage of oil or gas.
The provisions of 211.3a of this subchapter are applicable to leases
under this part.
(25 FR 9836, Oct. 14, 1960. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 212.5 Execution of leases by Superintendents.
The Superintendent shall execute leases on behalf of unknown owners
of future contingent interests, and on behalf of minors and persons who
are incompetent by reason of mental incapacity.
(24 FR 1568, Mar. 3, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 212.6 Leases for minerals other than oil and gas.
Leases for minerals other than oil and gas shall be advertised for
bids as prescribed in 212.4 unless the Commissioner grants to the
Indian owners written permission to negotiate for a lease. Negotiated
leases, accompanied by proper bond and other supporting papers, shall be
filed with the Superintendent of the appropriate Indian Agency within 30
days after such permission shall have been granted by the Commissioner
to negotiate the lease. The appropriate Area Director is authorized in
proper cases to grant a reasonable extension of this period prior to its
expiration. The right is reserved to the Secretary of the Interior to
direct that negotiated leases be rejected and that they be advertised
for bids. All leases shall be approved by the Secretary of the Interior
or his duly authorized representative (35 Stat. 783; 25 U.S.C. 396).
25 CFR 212.7 Requirements of corporate lessees.
If the applicant for lease is a corporation it shall file evidence of
authority of its officers to execute papers, and with its first
application it shall also file:
(a) A certified copy of its articles of incorporation, and, if
foreign to the State in which the lands are located, evidence showing
compliance with the corporation laws thereof.
(b) Lists of officers, principal stockholders, and directors, with
post office addresses and number of shares held by each.
(c) A sworn statement of the proper officer showing:
(1) The total number of shares of the capital stock actually issued
and the amount of cash paid into the treasury on each share sold; or,
if paid in property, the kind, quantity, and value of the same paid per
share.
(2) Of the stock sold, how much remains unpaid and subject to
assessment.
(3) The amount of cash the company has in its treasury and elsewhere.
(4) The property, exclusive of cash, owned by the company and its
value.
(5) The total indebtedness of the company and the nature of its
obligations.
25 CFR 212.8 Information; corporate lessees and stockholders.
Statements of changes in officers and stockholders shall be furnished
by a corporation lessee to the superintendent on January 1 of each year,
and at such other times as may be requested. Affidavits may also be
required of individual stockholders at any time, setting forth in what
corporations or with what persons, firms, or associations such
individual stockholders are interested in mining leases of restricted
Indian lands within the State, and whether they hold such interests for
themselves or in trust.
25 CFR 212.9 Leases of undivided inherited lands.
(a) If the allottee is deceased and the heirs to or devisees of any
interest in the allotment have not been determined, or, if determined,
some or all of them cannot be located, mining leases of such interests
may be executed by the Superintendent, provided that such leases have
been offered for sale to the highest responsible qualified bidder, at
public auction, or on sealed bids, after at least 30 days' notice and
advertisement unless a shorter period is authorized by the Commissioner
of Indian Affairs.
(b) If the heirs include a life tenant, the lease must be accompanied
by an agreement between such life tenant and the remaindermen, providing
for the division of the rents and royalties subject to approval of the
Commissioner of Indian Affairs or his authorized representative.
Cross Reference: For regulations relating to the establishment of
heirship, see part 15 of this chapter.
25 CFR 212.10 Bonds.
The provisions of 211.6 of this subchapter, or as hereafter amended,
are applicable to leases under this part.
25 CFR 212.11 Additional information.
The superintendent may, either before or after approval of a lease,
call for any additional information desired to carry out the regulations
in this part. If a lessee shall fail to furnish the papers necessary to
put his lease and bond in proper form for consideration, the
superintendent shall forward such lease for disapproval.
25 CFR 212.12 Term of leases.
The provisions of 211.10 of this subchapter, as amended, are
applicable to leases under this part.
25 CFR 212.13 Acreage limitation.
The provisions of 211.9, of this subchapter, as amended, are
applicable to leases under this part.
25 CFR 212.14 Payment of rentals and royalties.
(a) Except as provided in paragraphs (b), (d) and (f) of this
section, all rents, royalties and other payments due under leases which
have been or may be approved in accordance with this part shall be paid
by check or bank draft to the order of the Treasurer of the United
States and transmitted through the supervisor to the Superintendent for
deposit to the credit of the various lessors. When lessees and
purchasers are instructed, in writing, by the Superintendent, which
instructions shall be complete as to lessors for each lease, separate
remittances for each payment due each lessor shall be made to the
Superintendent. Any payments under this paragraph, covering lands or
interests therein from which supervision by the Secretary of the
Interior has been relinquished may continue to be made in the manner
provided by this paragraph until ten days after notice of such
relinquishment of supervision has been mailed to the lessee.
(b) The Superintendent may, in his discretion, whenever it appears to
be in the best interest of any lessor, authorize and direct the lessee
to pay directly to the lessor, the legal guardian of any lessor under
guardianship, or to the parent of any minor, the rents, royalties and
other payments due under leases which have been or may be approved in
accordance with the regulations in this part. Any such authority for
direct payment shall be in writing, addressed to the owner or owners of
the lease, and shall expressly provide for its revocation or
modification at any time, in writing, by the Superintendent, and shall
either name a bank to receive deposit of such payments, or shall give
the mailing address of each lessor. Written authorization for direct
payment and written revocations or modifications thereof shall become a
part of the lease and shall be distributed as in the case of original
leases. All such revocations or modifications shall have a 5-day grace
period after date of receipt. Rents, royalties, and other payments paid
in accordance therewith shall constitute full compliance with the
requirements of the lease pertaining to such payments.
(c) Rents and royalties paid pursuant to paragraphs (a) and (b) of
this section on producing leases shall be supported by statements
acceptable to the Secretary or his duly authorized representative, to be
transmitted to the Supervisor, in duplicate, covering each lease,
identified by contract number and lease number. Such statements shall
show the specific items of rents or royalties for which remittances are
made, shall identify each remittance by the remittance number, date,
amount, and name of each payee, shall show the total amount of royalties
or rental paid, and shall be supported by a copy of the purchaser's
settlement or pipeline statement for each lease under which royalties
are paid.
(d) Rents paid on nonproducing leases pursuant to paragraphs (a) and
(b) of this section shall be supported by a statement, acceptable to the
Superintendent, to be transmitted to the Superintendent covering each
lease, identified by contract number and lease number. Each remittance
shall be identified by the remittance number, date, amount, name of each
payee, and dates of mailing or remittances. Date of mailing, or, if
remittance is sent by registered mail, the date of registration receipts
covering remittances mailed, shall be considered as date of payment.
(e) In the event of the discovery of minerals in paying quantities
all advance payments shall be allowed as credit on stipulated royalties
for the year for which the payment is made. No refund will be made
under oil, gas, or other mining leases, in the event the royalty on
production for any year is not sufficient to equal the advance payment
for that year, nor will any part of the moneys so paid be refunded to
the lessee because of any subsequent surrender or cancellation of the
lease, nor shall the lessee be relieved from the obligations to pay said
advance rental annually when it becomes due by reason of any subsequent
surrender or cancellation of the lease.
(f) For leases other than oil and gas, all advance rental for the
first year shall be paid to the Superintendent at the time of filing the
lease, and the amounts so paid shall be and become the property of the
lessor if the lease be disapproved because of the lessee's failure to
meet the requirements of the law or the regulations in this part, or
because of any other fault or defect chargeable to the lessee.
25 CFR 212.15 Annual rentals and expenditures for development on leases
other than oil and gas.
The provisions of 211.14 of this subchapter, as amended, are
applicable to leases other than oil and gas under this part.
(Secs. 16, 17, 48 Stat. 987, 988, sec. 9, 49 Stat. 1968, sec. 4, 52
Stat. 348; 25 U.S.C. 396d, 476, 477, 509)
25 CFR 212.15a Suspension of operations and production on leases for
minerals other than oil and gas.
The Secretary of the Interior or his authorized representative may
authorize suspension of operating and producing requirements on mining
leases for minerals other than oil and gas whenever it is considered
that marketing facilities are inadequate or economic conditions
unsatisfactory. Applications be lessees for relief from all operating
and producing requirements on such mineral leases shall be filed in
triplicate in the office of the Regional Mining Supervisor of the
Geological Survey and a copy thereof filed with the Superintendent.
Complete information must be furnished showing the necessity for such
relief. Suspension of operations and production shall not relieve the
lessee from the obligations of continued payment of the annual rental or
the minimum royalty.
(24 FR 9511, Nov. 26, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 212.16 Rentals and royalties for oil and gas leases.
The lessee shall pay, beginning with the date of approval of oil and
gas leases by the Secretary of the Interior, a rental of $1.25 per acre
per annum in advance during the continuance thereof, the rental so paid
for any one year to be credited on the royalty for that year, together
with a royalty of 12 1/2 percent of the value or amount of all oil, gas,
and/or natural gasoline, and/or all other hydrocarbon substances
produced and saved from the land leased save and except oil, and/or gas
used by the lessee for development and operation purposes on the lease,
which oil or gas shall be royalty free. A higher rate of royalty may be
fixed by the Secretary of the Interior or his authorized representative,
prior to the advertisement of land for oil and gas leases. During the
period of supervision, ''value'' for the purposes of the lease may, in
the discretion of the Secretary, be calculated on the basis of the
highest price paid or offered (whether calculated on the basis of short
or actual volume) at the time of production for the major portion of the
oil of the same gravity, and gas, and/or natural gasoline, and/or all
other hydrocarbon substances produced and sold from the field where the
leased lands are situated, and the actual volume of the marketable
product less the content of foreign substances as determined by the oil
and gas supervisor. The actual amount realized by the lessee from the
sale of said products may, in the discretion of the Secretary of the
Interior, be deemed mere evidence of or conclusive evidence of such
value. When paid in value, such royalties shall be due and payable
monthly on the last day of the calendar month following the calendar
month in which produced; when royalty on oil produced is paid in kind,
such royalty oil shall be delivered in tanks provided by the lessee on
the premises where produced without cost to the lessor unless otherwise
agreed to by the parties thereto, at such time as may be required by the
lessor. The lessee shall not be required to hold such royalty oil in
storage longer than 30 days after the end of the calendar month in which
said oil is produced. The lessee shall be in no manner responsible or
held liable for loss or destruction of such oil in storage caused by
acts of God. All rental and royalty payments, except as provided in
sections 4(c) and 8(a) of the lease (Form 5-154h, revised April 24,
1935), shall be made by check or draft drawn on a solvent bank, open for
the transaction of business on the day the check or draft is issued, to
the order of the Superintendent. Except the advance rental for the
first year, which, as provided in 212.14 shall be paid to the
superintendent when the lease is filed, payments shall be transmitted
through the oil and gas supervisor, shall be accompanied by a statement
by the lessee, in triplicate, showing the specific items of rental or
royalty that the remittance is intended to cover, and shall be made at
such times as the lease provides. In determining the value for royalty
purposes of products, such as natural gasoline, that are derived from
treatment of gas, a reasonable allowance for the cost of manufacture
shall be made, such allowance to be two-thirds of the value of the
marketable product unless otherwise determined by the Secretary of the
Interior on application of the lessee or on his own initiative, and that
royalty will be computed on the value of gas or casing-head gas, or on
the products thereof (such as residue gas, natural gasoline, propane,
butane, etc.), whichever is the greater.
25 CFR 212.17 Preference of Government to purchase oil.
In time of war or other public emergency any of the executive
departments of the U.S. Government shall have the option to purchase at
the highest posted market price on the date of sale all or any part of
the oil produced under any lease.
25 CFR 212.18 Royalty rates for minerals other than oil and gas.
Unless otherwise authorized by the Commissioner of Indian Affairs,
the minimum rates for minerals other than oil and gas shall be as
follows:
(a) For substances other than gold, silver, copper, lead, zinc,
tungsten, coal, asphaltum and allied substances, oil, and gas, the
lessee shall pay quarterly or as otherwise provided in the lease, a
royalty of not less than 10 percent of the value, at the nearest
shipping point, of all ores, metals, or minerals marketed.
(b) For gold and silver the lessee shall pay quarterly or as
otherwise provided in the lease, a royalty of not less than 10 percent
to be computed on the value of bullion as shown by mint returns after
deducting forwarding charges to the point of sale; and for copper,
lead, zinc, and tungsten, a royalty of not less than 10 percent to be
computed on the value of ores and concentrates as shown by reduction
returns after deducting freight charges to the point of sale. Duplicate
returns shall be filed by the lessee with the Superintendent within 10
days after the ending of the quarter or other period specified in the
lease within which such returns are made: Provided, however, That the
lessee shall pay a royalty of not less than 10 percent of the value of
the ore or concentrates sold at the mine unless otherwise provided in
the lease.
(c) For coal the lessee shall pay quarterly or as otherwise provided
in the lease, a royalty of not less than 10 cents per ton of 2,000
pounds of mine run, or coal as taken from the mine, including what is
commonly called ''slack.''
(d) For asphaltum and allied substances the lessee shall pay
quarterly or as otherwise provided in the lease, a royalty of not less
than 10 cents per ton of 2,000 pounds on crude material or not less than
60 cents per ton on refined substances.
25 CFR 212.19 Payment of royalties by purchasers of oil; division
orders.
(a) Lessees may make arrangement with the purchasers of oil for the
payment of the royalties to the superintendent of such purchasers, but
such arrangement, if made, shall not operate to relieve a lessee from
responsibility should the purchaser fail or refuse to pay royalties when
due. Where lessees avail themselves of this privilege, division orders
permitting the pipe line companies or other purchasers of the oil to
withhold the royalty interest shall be executed and forwarded to the oil
and gas supervisor for approval, as pipe line companies are not
permitted to accept or run oil from leased Indian lands until after the
approval of a division order showing that the lessee has a lease
regularly approved and in effect. The right is reserved for the oil and
gas supervisor to cancel a division order at any time or require the
pipe line company to discontinue to run the oil of any lessee who fails
to operate the lease property or otherwise violates the provisions of
the lease, of the regulations in this part, or of the operating
regulations.
(b) Lessee or his representative shall actually be present when oil
taken under division orders is run by pipe line companies and lessee
shall be responsible for the correct measurement and report of oil so
run; otherwise the approval of division order may be revoked.
Cross Reference: For oil and gas operating regulations of the
Geological Survey, see 30 CFR part 221.
25 CFR 212.20 Time of royalty payments.
Royalty payments on all leases shall be made monthly, on or before
the last day of the calendar month following the calendar month for
which such payment is to be made.
25 CFR 212.21 Stipulations.
The lessee under any lease heretofore approved may, by stipulation
(Form 5-154i), with the consent of the lessor and the approval of the
Secretary of the Interior make such approved lease subject to all the
terms, conditions, and provisions contained in the regulations in this
part and in the lease form currently in use.
25 CFR 212.22 Assignments and overriding royalties.
(a) Leases hereafter approved, or any interest therein, may be
assigned or transferred only with the approval of the Secretary of the
Interior, and to procure such approval the assignee must be qualified to
hold such lease under existing rules and regulations, and shall furnish
a satisfactory bond for the faithful performance of the covenants and
conditions thereof.
(b) No lease or any interest therein or the use of such lease shall
be assigned, sublet, or transferred, directly or indirectly, by working
or drilling contract, or otherwise, without the consent of the Secretary
of the Interior.
(c) Assignments of leases and stipulations modifying the terms of
existing leases shall be filed with the superintendent within 30 days
after the date of execution.
(d) An agreement creating overriding royalties or payments out of
production on oil and gas leases under this part shall be subject to the
provisions of 211.26(d) of this subchapter, or as hereafter amended.
(22 FR 10592, Dec. 24, 1957, as amended at 23 FR 9758, Dec. 18, 1958.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 212.23 Cancellations.
(a) A lease will be cancelled by the Secretary of the Interior for
good cause upon application of the lessor or lessee, or if at any time
the Secretary is satisfied that the provisions of the lease or of any
regulations heretofore or hereafter prescribed have been violated. When
the lessee applies for cancellation he must, before the same will be
considered, pay a surrender fee of $1 and all royalties and rents due to
the date of completion of such application, surrender all parts of the
lease actually delivered to him, and furnish a duly recorded release of
the acreage covered by the application if the lease thereon has been
recorded: Provided, That where the application is made by an assignee
to whom no copy of the lease was delivered he will be required to
surrender only his copy of the assignment.
(b) If the lease is owned in undivided interests by more than one
person, firm, or corporation all shall join in the application for
cancellation.
(c) All required fees and papers must be at least in the mail on or
before the date upon which rents and royalties become due in order for
the lessee and his surety to be relieved from liability for the payment
thereof.
(d) If there has been a contest respecting a lease or leases, the
approved, disapproved or canceled parts thereof will be held in the
office of the superintendent for 5 days after promulgation by him, by
mailing or delivery of the department's decision, and will not be
delivered if within that period a motion for review or reconsideration
be filed until such motion is passed upon by the department.
(e) No part of any advance rentals shall be refunded to the lessee,
nor shall he be relieved from his obligation to pay rentals annually
when due by reason of any subsequent surrender or cancellation of the
lease. Upon cancellation of a lease the lessor shall be entitled to
take immediate possession of the land.
25 CFR 212.24 Operation and development regulations.
(a) Lessees will be required to carry out and observe the operating
regulations now or hereafter in force governing oil and gas operations
on restricted Indian lands. Operations will not be permitted under any
lease requiring approval of the Secretary of the Interior until the
approved lease has been delivered.
(b) All leases issued under the provisions of the regulations in this
part shall be subject to imposition by the Secretary of such
restrictions as to time or times for the drilling of wells and as to the
production from any well or wells as in his judgment may be necessary or
proper for the protection of the natural resources of the leased land
and in the interests of the Indian lessor. In the exercise of his
judgment the Secretary may take into consideration among other things
the Federal laws, State laws or regulations by competent Federal or
State authorities or lawful agreements among operators regulating either
drilling or production or both, and also any regulatory action desired
by tribal authorities.
(c) All leases issued pursuant to the regulations in this part shall
be subject to a co-operative or unit development plan affecting the
leased lands if and when required by the Secretary of the Interior.
25 CFR 212.25 Inspection of books and accounts.
Lessees shall agree to allow the lessors and their agents or any
authorized representative of the Interior Department to enter, from time
to time, upon and into all parts of the leased premises for the purposes
of inspection, and shall further agree to keep a full and correct
account of all operations and make reports thereof, as required by the
regulations of the Department governing operations on public and
restricted Indian lands; and their books and records showing manner of
operations and persons interested shall be open at all times for
examination of such officers of the department as shall be instructed in
writing by the Secretary of the Interior or authorized by regulations to
make such examinations.
25 CFR 212.26 Leases on unrestricted lands.
All leases of any description whatever executed by an allottee on
land from all of which the restrictions against alienation had been
removed before such execution may be executed without any provision for
reference to or supervision by the Secretary of the Interior or any
official of the Department of the Interior; and the superintendent
shall refuse to accept for consideration any lease covering land from
all of which restrictions had been removed before such execution.
25 CFR 212.27 Leases executed before removal of restrictions.
All leases executed before the removal of restrictions against
alienation on land from all of which restrictions against alienation
shall be removed after such execution, if such leases contain specific
provision or approval by the Secretary of the Interior, whether now
filed with the Department of the Interior or presented for consideration
hereafter, will be considered and acted upon by the Department as
heretofore.
25 CFR 212.28 Removal of restrictions.
(a) Oil and gas leases heretofore or hereafter approved and leases
for other minerals now or hereafter in force on land from all of which
restrictions against alienation have been or shall be removed, even if
such leases contain provisions authorizing supervision by the
Department, shall, after such removal of restrictions against
alienation, be operated entirely free from such supervision, and the
authority and power delegated to the Secretary of the Interior in said
leases shall cease, and all payments required to be made to the
superintendent shall thereafter be made to lessor or the then owner of
said land; and changes in regulations thereafter made by the Secretary
of the Interior applicable to oil and gas leases shall not apply to such
leased land from which said restrictions are removed.
(b) In the event restrictions are removed from a part of the land
included in any lease to which this section applies the entire lease
shall continue subject to the supervision of the Secretary of the
Interior, and all royalties thereunder shall be paid to the
superintendent until such time as the lessor and lessee shall furnish
the Secretary of the Interior satisfactory information that adequate
arrangements have been made to account for the oil, gas, or mineral upon
the restricted land, separately from that upon the unrestricted.
Thereafter the restricted land only shall be subject to the supervision
of the Secretary of the Interior: Provided, That the unrestricted
portion shall be relieved from such supervision as in the lease or
regulations provided.
25 CFR 212.29 Terms applying after relinquishment.
Sections 8 and 9 of the approved oil and gas lease (Form 5-154h, as
revised Apr. 24, 1935), relative to relinquishment of supervision and
terms operative after such relinquishment, read as follows:
8. Relinquishment of supervision by the Secretary of the Interior.
Should the Secretary of the Interior, at any time during the life of
this instrument, relinquish supervision as to all or part of the acreage
covered hereby, such relinquishment shall not bind lessee until said
Secretary shall have given 30 days' written notice. Until said
requirements are fulfilled, lessee shall continue to make all payments
due hereunder as heretofore in section 3(c). After notice of
relinquishment has been received by lessee, as herein provided, this
lease shall be subject to the following further conditions:
(a) All rentals and royalties thereafter accruing shall be paid in
the following manner: Rentals and royalties shall be paid to lessor or
his successors in title, or to a trustee appointed under the provisions
of section 9 hereof. Rentals and royalties shall be paid directly to
lessor or his successors in title, or to said trustee as the case may
be.
(b) If, at the time supervision is relinquished by the Secretary of
the Interior, lessee shall have made all payments then due hereunder,
and shall have fully performed all obligations on its part to be
performed up to the time of such relinquishment, then the bond given to
secure the performance hereof, on file in the Indian Office, shall be of
not further force or effect.
(c) Should such relinquishment affect only part of the acreage, then
lessee may continue to drill and operate the land covered hereby as an
entirety: Provided, That the lessee shall pay in the manner prescribed
by section 3(c), for the benefit of lessor such proportion of all
rentals and royalties due hereunder as the acreage retained under the
supervision of the Secretary of the Interior bears to the entire acreage
of the lease, the remainder of such rentals and royalties to be paid
directly to lessor or his successors in title or said trustee as the
case may be, as provided in subdivision (a) of this section.
9. Division of fee. It is covenanted and agreed that should the fee
of said land be divided into separate parcels, held by different owners,
or should the rental or royalty interest hereunder be so divided in
ownership, after the execution of this lease and after the Secretary of
the Interior relinquishes supervision hereof, the obligations of lessee
hereunder shall not be added to or changed in any manner whatsoever save
as specifically provided by the terms of this lease. Notwithstanding
such separate ownership, lessee may continue to drill and operate said
premises as an entirety: Provided, That each separate owner shall
receive such proportion of all rentals and royalties accruing after the
vesting of his title as the acreage of the fee, or rental or royalty
interest, bears to the entire acreage covered by the lease; or to the
entire rental and royalty interest as the case may be: Provided
further, That if, at any time after departmental supervision hereof is
relinquished, in whole or in part, there shall be four or more parties
entitled to rentals or royalties hereunder, whether said parties are so
entitled by virtue of undivided interests or by virtue of ownership
hereby, of separate parcels of the land covered lessee at his election
may withhold the payment of further rentals or royalties (except as to
the portion due the Indian lessor while under restriction), until all of
said parties shall agree upon and designate in writing and in a
recordable instrument a trustee to receive all payments due hereunder on
behalf of said parties and their respective successors in title.
Payments to said trustee shall constitute lawful payments hereunder, and
the sole risk of an improper or unlawful distribution of said funds by
said trustee shall rest upon the parties naming said trustee and their
respective successors in title.
These, or similar provisions, will be contained in all leases.
25 CFR 212.30 Removal of restrictions upon part of acreage.
Should the removal of restrictions affect only part of the acreage
covered by an oil and gas lease containing provisions to the effect that
the royalties accruing under the lease, where the fee is divided into
separate parcels, shall be paid to each owner in the proportion which
his acreage bears to the entire acreage covered by the lease, the lessee
or assignee of such unrestricted portion will be required to make the
reports required by the regulations in this part and the operating
regulations with respect to the beginning of drilling operations,
completion of wells, and production, the same as if the restrictions had
not been removed. In the event the unrestricted portion of the leased
premises is producing, the owners of the lease thereon will be required
to pay the portion of the royalties due the Indian lessor at the time
and in the manner specified by the regulations in this part.
25 CFR 212.31 Fees.
The provisions of 211.25 of this chapter, or as hereafter amended,
are applicable to this part.
(24 FR 7974, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 212.32 Forms.
The provisions of 211.30 of this chapter, or as hereafter amended,
are applicable to this part.
(24 FR 7974, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 212.33 Individual tribal assignments excluded.
The reference in this part to ''allottees'' and ''allotments'' does
not include assignments of tribal lands made pursuant to tribal
constitutions for the use of individual Indians and assignees of such
lands; but such tribal assignments may be leased by Indians to whom
mineral rights have been so assigned, subject to the terms of the tribal
constitution and subject to the approval of the Secretary of the
Interior for such periods of time as are authorized by existing law. In
the leasing of such lands preference will be given to Indian cooperative
associations and to individual Indians.
(Secs. 16, 17, 48 Stat. 987, 988; 25 U.S.C. 476, 477)
25 CFR 212.33 PART 213 -- LEASING OF RESTRICTED LANDS OF MEMBERS OF
FIVE CIVILIZED TRIBES, OKLAHOMA, FOR MINING
Sec.
213.1 Definitions.
213.2 Applications for leases.
213.3 No Government employee shall acquire leases.
213.4 Sale of oil and gas leases.
213.5 Term of oil and gas leases.
213.6 Leases for minerals other than oil and gas.
213.7 Fees.
213.8 Filing of lease deemed constructive notice.
213.9 Noncontiguous tracts.
213.10 Lessor's signature.
213.11 Minor lessors.
213.12 Leases executed by guardians of minors.
213.13 Inherited lands.
213.14 Corporations and corporate information.
213.15 Bonds.
213.16 Additional information may be requested by Area Director.
213.17 Government reserves right to purchase minerals produced.
213.18 Manner of payment of rents and royalties.
213.19 Crediting advance annual payments.
213.20 (Reserved)
213.21 Rate of rents on leases other than oil and gas.
213.22 Expenditures under leases other than oil and gas.
213.23 Royalty rates for minerals other than oil and gas.
213.24 Rate of rents and royalties on oil and gas leases.
213.25 Free use of gas by lessor.
213.26 Rate of royalty on casing-head gas.
213.27 Rate of rental for nonutilized gas wells.
213.28 Royalty payments and production reports.
213.29 Division orders.
213.30 Permission to start operations.
213.31 Restrictions on operations.
213.32 Wells.
213.33 Diligence and prevention of waste.
213.34 Inspection of premises; books and accounts.
213.35 Mines to be timbered properly.
213.36 Surrender of leased premises in good condition.
213.37 Penalties.
213.38 Assignments and overriding royalties.
213.39 Stipulations.
213.40 Cancellations.
213.41 Leases executed but not approved before restrictions removed
from land.
213.42 Operations after removal of restrictions from leased lands.
213.43 Relinquishment of Government supervision.
213.44 Division of royalty to separate fee owners.
213.45 Restrictions especially continued as to certain lands.
213.46 Field clerks.
213.47 Forms.
213.48 Effective date.
213.49 Scope of regulations.
Authority: Sec. 2, 35 Stat. 312, sec. 18, 41 Stat. 426, sec. 1,
45 Stat. 495, sec. 1, 47 Stat. 777; 25 U.S.C. 356. Interpret or
apply secs. 3, 11, 35 Stat. 313, 316, sec. 8, 47 Stat. 779, unless
otherwise noted.
Source: 22 FR 10599, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross Reference: For oil and gas operating regulations of the
Geological Survey, see 30 CFR part 221.
25 CFR 213.1 Definitions.
Area Director. The term ''Area Director'' in this part refers to the
officer in charge of the Five Civilized Tribes Indian Agency.
Supervisor. The term ''supervisor'' in this part refers to a
representative of the Secretary of the Interior under direction of the
Director of the U.S. Geological Survey, authorized and empowered to
supervise and direct operations under oil and gas or other mining
leases, to furnish scientific and technical information and advice, to
ascertain and record the amount and value of production, and to
determine and record rentals and royalties due and paid.
25 CFR 213.1 How To Acquire Leases
25 CFR 213.2 Applications for leases.
Applications for leases should be made to the Area Director.
25 CFR 213.3 No Government employee shall acquire leases.
No lease, assignment thereof, or interest therein will be approved to
any employee or employees of the U.S. Government, whether connected with
the Bureau of Indian Affairs or otherwise, and no employee of the
Department of the Interior shall be permitted to acquire any interest in
such leases covering restricted Indian lands by ownership of stock in
corporations having leases or in any other manner.
(R.S. 2078; 25 U.S.C. 68)
25 CFR 213.4 Sale of oil and gas leases.
(a) At such times and in such manner as he may deem appropriate, the
Area Director shall publish notices at least thirty days prior to the
sale, unless a shorter period is authorized by the Commissioner of
Indian Affairs, that oil and gas leases on specific tracts, each of
which shall be in a reasonably compact body, will be offered to the
highest responsible bidder for a bonus consideration, in addition to
stipulated rentals and royalties. Each bid must be accompanied by a
cashier's check, certified check, or postal money order, payable to the
payee designated in the invitation to bid, in an amount not less than 25
percent of the bonus bid. Within 30 days after notification of being
the successful bidder, said bidder must remit the balance of the bonus,
the first year's rental, and his share of the advertising costs, and
shall file with the Area Director the lease in completed form. The Area
Director may, for good and sufficient reasons, extend the time for the
completion and submission of the lease form, but no extension shall be
granted for remitting the balance of monies due. If the successful
bidder fails to pay the full consideration within said period, or fails
to file the completed lease within said period or extension thereof, or
if the lease is disapproved through no fault of the lessor or the
Department of the Interior, 25 percent of the bonus bid will be
forfeited for the use and benefit of the Indian lessor.
(b) In cases where any part of the bonus bid for a lease is paid
directly to the Indian lessor, upon his signing the lease, the lessee
must procure and file with the lease an affidavit of the lessor, sworn
to before a U.S. Commissioner, Postmaster, Area Director, local
representative of the Area Director, county or district judge, Federal
judge or clerk of a Federal court, showing the amount of bonus so paid,
and the balance thereof must be paid into the office of the Area
Director upon filing the lease. Where possible lessees are requested to
take the lessor to the nearest United States field clerk who will render
all proper assistance in the execution of leases, and before whom the
bonus affidavit may be executed in cases where any part of bonus
consideration is paid directly to the lessor. Where leases are executed
by guardians, under order of court, the affidavit of lessor may be
executed before a notary public.
(c) All notices or advertisements of sales of oil and gas leases
shall reserve to the Secretary of the Interior the right to reject all
bids when in his judgment the interests of the Indians will be best
served by so doing, and that if no satisfactory bid is received, or if
the accepted bidder fails to complete the lease or if the Secretary of
the Interior shall determine that it is unwise in the interests of the
Indians to accept the highest bid, the Secretary may readvertise such
lease for sale, or if deemed advisable, with the consent of the Indian
owners, a lease may be made by private negotiations. The successful
bidder or bidders will be required to pay his or their share of the
advertising costs. Amounts received from unsuccessful bidders will be
returned; but when no bid is accepted on a tract, the costs of
advertising will be assessed against the applicant who requested that
said tract be advertised.
(Secs. 16, 17, 48 Stat. 987, 988, sec. 9, 49 Stat. 1968, sec. 4, 52
Stat. 348; 25 U.S.C. 396d, 476, 477, 509)
25 CFR 213.5 Term of oil and gas leases.
Oil and gas mining leases which require the approval of the Secretary
of the Interior may be made for periods of 10 years from the date of
approval of lease by the Secretary of the Interior and as much longer
thereafter as oil and/or gas is produced in paying quantities.
25 CFR 213.6 Leases for minerals other than oil and gas.
Uncontested mining leases for minerals other than oil and gas shall
be made on forms /1/ prescribed by the Department, for a period of 15
years with the right of renewal on such terms as the superintendent may
prescribe, and shall be subject only to approval by the Area Director.
See provisions of the act of February 14, 1920 (41 Stat. 408). Any
persons aggrieved by any decision or order of the Area Director
approving, rejecting, or disapproving any such lease may appeal from the
same to the Secretary of the Interior within 30 days from the date of
such decision or order.
/1/ For further information regarding forms, see 211.30.
25 CFR 213.7 Fees.
The provisions of 211.25 of this chapter, or as hereafter amended,
are applicable to this part.
(24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 213.8 Filing of lease deemed constructive notice.
The filing of any lease in the office of the Area Director shall be
deemed constructive notice of the existence of such lease. See act of
March 1, 1907.
(34 Stat. 1026)
25 CFR 213.9 Noncontiguous tracts.
No lease will be approved covering two or more noncontiguous tracts
of land, but in such case a lease must be executed on each separate
tract.
25 CFR 213.10 Lessor's signature.
Any Indian who cannot write his name will be required to sign all
official papers by making a distinct thumbprint which shall be
designated as ''right'' or ''left'' thumbmark. Such signatures must be
witnessed by two persons, one of whom must be a U.S. Government employee
(such as field clerk, postmaster, U.S. Commissioner, etc.).
25 CFR 213.11 Minor lessors.
Where the lessor is a minor, certified copies of letters of
guardianship and court orders approving leases must be filed.
25 CFR 213.12 Leases executed by guardians of minors.
Leases executed by guardians of minors under order of court for a
period extending beyond the minority of the minor will be approved
unless it appears that such action would be prejudicial to the interests
of the minor: Provided, That in the event the minor becomes of age
within 1 year from the date of execution of lease the consent of the
minor to the execution of the lease should be obtained and submitted
with the lease for consideration.
25 CFR 213.13 Inherited lands.
Except to prevent loss or waste, leases on undivided inherited lands
will not be approved until the heirship determination has been approved.
If the heirs to undivided inherited lands are undetermined or cannot be
located, or if the heirs owning less than one-half interest in the lands
refuse to sign a lease and it appears necessary to lease the lands to
prevent loss or waste, the Area Director will report the facts to the
Commissioner of Indian Affairs and ask for instructions. Minor heirs
can lease or joint adult heirs in leasing only through guardians under
order of court. Proof of heirship shall be given upon Form F
prescribed. If probate or other court proceedings have established the
heirship in any case, or the land has been partitioned, certified copy
of final order, judgment, or decree of the court will be accepted in
lieu of Form F.
25 CFR 213.14 Corporations and corporate information.
If the applicant for a lease is a corporation, it shall file evidence
of authority of its officers to execute papers; and with its first
application it shall also file a certified copy of its articles of
incorporation, and, if foreign to the State in which the lands are
located, evidence showing compliance with the corporation laws thereof.
Statements of changes in officers and stockholders shall be furnished by
a corporation lessee to the Area Director January 1 of each year, and at
such other times as may be requested.
Whenever deemed advisable in any case the Area Director may require a
corporation applicant or lessee to file:
(a) List of officers, principal stockholders, and directors, with
post office addresses and numbers of shares held by each.
(b) A sworn statement of the proper officer showing:
(1) The total number of shares of the capital stock actually issued
and the amount of cash paid into the treasury on each share sold; or,
if paid in property, the kind of quantity and value of the same paid per
share.
(2) Of the stock sold, how much remains unpaid and subject to
assessment.
(3) The amount of cash the company has in its treasury and elsewhere.
(4) The property, exclusive of cash, owned by the company and its
value.
(5) The total indebtedness of the company and the nature of its
obligations.
(6) Whether the applicant or any person controlling, controlled by or
under common control with the applicant has filed any registration
statement, application for registration, prospectus or offering sheet
with the Securities and Exchange Commission pursuant to the Securities
Act of 1933 or the Securities Exchange Act of 1934 or said Commission's
rules and regulations under said acts; if so, under what provision of
said acts or rules and regulations; and what disposition of any such
statement, application, prospectus or offering sheet has been made.
(c) Affidavits of individual stockholders, setting forth in what
corporations, or with what persons, firms, or associations such
individual stockholders are interested in mining leases on restricted
lands within the State, and whether they hold such interest for
themselves or in trust.
Cross Reference: For regulations of the Securities and Exchange
Commission, see 17 CFR chapter II.
25 CFR 213.15 Bonds.
(a) Lessee shall furnish with each mining lease a bond (Form 5-154b),
and an assignee of a lease shall furnish with each assignment a bond
(Form 5-154m), with an acceptable company authorized to act as sole
surety, or with two or more personal sureties and a deposit as
collateral security of any public-debt obligations of the United States
guaranteed as to principal and interest by the United States, equal to
the full amount of such bonds, or other collateral satisfactory to the
Secretary of the Interior, or show ownership of unencumbered real estate
of the value equal to twice the amount of the bonds. Lessee may file a
bond on Form 5-154a without sureties and a deposit as collateral
security of Government bonds equal in value to the full amount of the
bond. Lease bonds, except as provided in paragraph (c) of this section,
shall not be less than the following amounts:
For less than 80 acres $l,000
For 80 acres and less than 120 acres 1,500
For 120 acres and not more than 160 acres 2,000
For each additional 40 acres, or part thereof, above 160 acres 500
Provided, That for leases for minerals other than oil and gas the
Secretary of the Interior or his authorized representative with the
consent of the Indian landowner may authorize a bond for a lesser amount
if, in his opinion, the circumstances warrant and the interests of the
Indian landowners are fully protected: Provided further, That a lessee
may file a bond (Form 5-154f), in the sum of $15,000 for all leases of
minerals up to 10,240 acres under the jurisdiction of the officer in
charge of the Five Civilized Tribe Agency.
(b) In lieu of the bonds required under paragraph (a) of this
section, a lessee may furnish a bond (Form 5-156) in the sum of $75,000
for full nationwide coverage with an acceptable company authorized to
act as sole surety to cover all oil and gas leases and oil and gas
prospecting permits without geographic or acreage limitation to which
the lessee or permittee is or may become a party.
(c) The right is specifically reserved to increase the amount of
bonds and the collateral security prescribed in paragraph (a) of this
section in any particular case when the officer in charge deems it
proper to do so. The nationwide bond may be increased at any time in
the discretion of the Secretary of the Interior.
(22 FR 10599, Dec. 24, 1957, as amended at 26 FR 164, Jan. 10, 1961.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 213.16 Additional information may be requested by Area Director.
The Area Director, or other Government officer having the matter in
charge or under investigation, may, at any time, either before or after
approval of a lease, call for any additional information desired to
carry out the purpose of the regulations in this part, and such
information shall be furnished within the time specified in the request
therefor. If the lessee fails to furnish the information requested, the
lease will be subject to disapproval or cancellation, whichever is
appropriate.
25 CFR 213.17 Government reserves right to purchase minerals produced.
In time of war or other public emergency any of the executive
departments of the U.S. Government shall have the option to purchase at
the prevailing market price on the date of sale all or any part of the
minerals produced under any lease.
25 CFR 213.17 Rents and Royalties
25 CFR 213.18 Manner of payment of rents and royalties.
(a) Except as provided in paragraph (b) of this section, all rents,
royalties and other payments due under leases which have been or may be
approved in accordance with this part shall be paid by check or bank
draft to the order of the Treasurer of the United States and mailed to
the Area Director for deposit to the credit of the various lessors.
When lessees and purchasers are instructed, in writing, by the Area
Director, which instructions shall be complete as to lessors for each
lease, separate remittances for each payment due each lessor shall be
mailed to the Area Director. Any payments under this paragraph,
covering lands or interests therein from which restrictions have been
removed by death or otherwise, may continue to be made in the manner
provided by this paragraph until ten days after notice of relinquishment
of supervision has been mailed to the lessee.
(b) The Area Director may, in his discretion, whenever it appears to
be in the best interest of any lessor, authorize and direct the lessee
to pay directly to the lessor, or to the legal guardian of any lessor
under guardianship, the rents, royalties and other payments (other than
bonuses and advance payments for the first year) due under leases which
have been or may be approved in accordance with the regulations in this
part. Any such authority for direct payment shall be in writing,
addressed to the owner or owners of the lease, and shall expressly
provide for its revocation or modification at any time, in writing, by
the Area Director. Written authorization for direct payment and written
revocations or modifications thereof shall become a part of the lease
and shall be distributed as in the case of original leases. All such
revocations or modifications shall have a 5-day grace period after date
of receipt. Rents, royalties, and other payments paid in accordance
therewith shall constitute full compliance with the requirements of the
lease pertaining to such payments.
(c) Rents and royalties paid pursuant to paragraphs (a) and (b) of
this section on producing leases shall be supported by statements,
acceptable to the Secretary or his duly authorized representative, to be
transmitted to the Supervisor, in duplicate, covering each lease,
identified by contract number and lease number. Such statements shall
show the specific items of rents or royalties for which remittances are
made, and shall identify each remittance by the remittance number, date,
amount, and name of each payee.
(d) Rents paid on nonproducing leases pursuant to paragraphs (a) and
(b) of this section shall be supported by a statement, acceptable to the
Area Director, to be transmitted to the Area Director covering each
lease, identified by contract number and lease number. Each remittance
shall be identified by the remittance number, date, amount, name of each
payee, and dates of mailing of remittances. Date of mailing, or, if
remittance is sent by registered mail, the date of registration receipts
covering remittances mailed, shall be considered as date of payment.
(e) For leases other than oil and gas, all advance rentals and
royalties for the first year shall be paid to the Area Director at the
time of filing the lease, and the advance royalty and 20 percent of the
first year's rental so paid shall be and become the property of the
lessor, if the lease be disapproved because of the lessee's failure to
meet the requirements of the law or of the regulations in this part or
because of any other fault or defect chargeable to the lessee.
25 CFR 213.19 Crediting advance annual payments.
In the event of discovery of minerals, all advance rents and advance
royalties shall be allowed as credit on stipulated royalties for the
year for which such advance payments have been made. No refund of such
advance payments made under any lease will be allowed in the event the
royalty on production is not sufficient to equal such advance payment;
nor will any part of the moneys so paid be refunded to the lessee
because of any subsequent surrender or cancellation of the lease.
213.20 (Reserved)
25 CFR 213.21 Rate of rents on leases other than oil and gas.
On all mineral leases of allotted lands other than oil and gas
leases, rental shall be paid annually in advance from the date of
approval of the lease, as follows: Fifty cents per acre for the first
year, 75 cents per acre for the second year, and $1 per acre for the
third and each succeeding year of the term of the lease.
25 CFR 213.22 Expenditures under lease other than oil and gas.
(a) On all leases for deposits of minerals other than oil and gas,
there shall be expended for each calendar year the lease is in force,
and for each fraction of a calendar year greater than 6 months, in
actual mining operations, development, or improvements upon the lands
leased, or for the benefit thereof, a sum which, with the annual rental,
shall amount to not less than $5 per acre.
(b) The expenditures for development required by this section upon
application may be waived in writing by the Area Director or other
officer in charge of the Five Civilized Tribes Agency either before or
after the approval of a lease, such waiver to be subject to termination
at any time upon 10 days' written notice to the holder of the lease by
the said Area Director or other officer in charge.
(c) Each lessee, except oil and gas lessees, shall file with the Area
Director an itemized statement in duplicate, within 20 days after the
close of each calendar year, of the amount and character of said
expenditures during such years the statement to be certified under oath
by the lessee or his agent having personal knowledge of the facts
contained therein.
25 CFR 213.23 Royalty rates for minerals other than oil and gas.
Unless otherwise authorized by the Commissioner of Indian Affairs,
the minimum rates for minerals other than oil and gas shall be as
follows:
(a) For substances other than gold, silver, copper, lead, zinc,
tungsten, coal, asphaltum and allied substances, oil, and gas, the
lessee shall pay quarterly or as otherwise provided in the lease, a
royalty of not less than 10 percent of the value, at the nearest
shipping point, of all ores, metals, or minerals marketed.
(b) For gold and silver the lessee shall pay quarterly or as
otherwise provided in the lease, a royalty of not less than 10 percent
to be computed on the value of bullion as shown by mint returns after
deducting forwarding charges to the point of sale; and for copper,
lead, zinc, and tungsten, a royalty of not less than 10 percent to be
computed on the value of ores and concentrates as shown by reduction
returns after deducting freight charges to the point of sale. Duplicate
returns shall be filed by the lessee with the Area Director within 10
days after the ending of the quarter or other period specified in the
lease within which such returns are made: Provided, however, That the
lessee shall pay a royalty of not less than 10 percent of the value of
the ore or concentrates sold at the mine unless otherwise provided in
the lease.
(c) For coal the lessee shall pay quarterly or as otherwise provided
in the lease, a royalty of not less than 10 cents per ton of 2,000
pounds of mine run, or coal as taken from the mine, including what is
commonly called ''slack.''
(d) For asphaltum and allied substances the lessee shall pay
quarterly or as otherwise provided in the lease, a royalty of not less
than 10 cents per ton of 2,000 pounds on crude material or not less than
60 cents per ton on refined substances.
25 CFR 213.24 Rate of rents and royalties on oil and gas leases.
The lessee shall pay, beginning with the date of approval of oil and
gas leases by the Secretary of the Interior, a rental of $1.25 per acre
per annum in advance during the continuance thereof, together with a
royalty of 12 1/2 percent of the value or amount of all oil, gas and/or
natural gasoline, and/or all other hydrocarbon substances produced and
saved from the land leased, save and except oil and/or gas used by the
lessee for development and operation purposes on the lease, which oil or
gas shall be royalty free. A higher rate of royalty may be fixed by the
Secretary of the Interior or his authorized representative, prior to the
advertisement of land for oil and gas leases. During the period of
supervision, ''value'' for the purposes of the lease may, in the
discretion of the Secretary of the Interior be calculated on the basis
of the highest price paid or offered (whether calculated on the basis of
short or actual volume) at the time of production for the major portion
of the oil of the same gravity, and gas, and/or natural gasoline, and/or
all other hydrocarbon substances produced and sold from the field where
the leased lands are situated, and the actual volume of the marketable
product less the content of foreign substances as determined by the
supervisor. The actual amount realized by the lessee from the sale of
said products may, in the discretion of the Secretary of the Interior,
be deemed mere evidence of or conclusive evidence of such value. When
paid in value, such royalties shall be due and payable monthly at such
time as the lease provides; when royalty on oil produced is paid in
kind, such royalty oil shall be delivered in tanks provided by the
lessee on the premises where produced without cost to the lessor unless
otherwise agreed to by the parties thereto, at such time as may be
required by the lessor. The lessee shall not be required to hold such
royalty oil in storage longer than 30 days after the end of the calendar
month in which said oil is produced. The lessee shall be in no manner
responsible or held liable for loss or destruction of such oil in
storage by causes beyond his control.
25 CFR 213.25 Free use of gas by lessor.
If the leased premises produce gas in excess of the lessee's
requirements for the development and operation of said premises, then
the lessor may use sufficient gas, free of charge, for all stoves and
inside lights in the principal dwelling house on said premises, by
making his own connections to a regulator, connected to the well and
maintained by the lessee, and the lessee shall not be required to pay
royalty on gas so used. The use of such gas shall be at the lessor's
risk at all times.
25 CFR 213.26 Rate of royalty on casing-head gas.
(a) On casing-head gas used or sold for the manufacture of
casing-head gasoline the minimum rate of royalty shall be 12 1/2 percent
of the value of the casing-head gas, which value shall be determined and
computed on the basis and in the manner provided in the applicable
operating regulations of the Department.
(b) In cases where gas produced and sold has a value for drip
gasoline, casing-head gasoline content, and as dry gas from which the
casing-head gasoline has been extracted, then the royalties above
provided shall be paid on all such values.
25 CFR 213.27 Rate of rental for nonutilized gas wells.
If the gas from a gas producing well is not marketed or utilized,
other than for operation of the lease, then for each such well the
lessee shall pay such rental as may be determined by the supervisor and
approved by the Secretary of the Interior, calculated from the date of
the completion of the well. Payment of annual gas rentals shall be made
within 30 days from the date such payment becomes due.
25 CFR 213.28 Royalty payments and production reports.
(a) Royalty payments on all oil and gas or other producing leases
shall be made at the rates, and at such time, and in the manner
prescribed by the terms of the lease.
(b) Quarterly reports shall be made by each lessee on nonproducing
leases other than oil and gas within 25 days after December 31, March
31, June 30, and September 30, of each year, upon forms provided,
showing manner of operations and total production during such quarter.
A lessee may include within one sworn statement all leases upon which
there is no production or upon which dry holes have been drilled.
Reports of oil and gas leases where royalty accounting is done in the
field office of the supervisor will be made as required in the operating
regulations.
25 CFR 213.29 Division orders.
(a) Lessees may make arrangements with the purchasers of oil and gas
for the payment of the royalties as provided for in the lease and the
regulations but such arrangement, if made, shall not operate to relieve
a lessee from responsibility should the purchaser fail or refuse to pay
royalties when due. Where lessees avail themselves of this privilege,
division orders should be executed by the lessee and forwarded to the
supervisor for approval. Purchasers may be authorized by the supervisor
to reimburse lessees out of royalties for advance rents and advance
royalties. Copies of written instructions, notices, modifications,
revocations, and authorizations, as provided for in 213.18 (a) and (b),
shall be furnished to purchasers. The right is reserved for the
supervisor to cancel a division order at any time or require the
purchaser to discontinue to run the oil of any lessee who fails to
operate the lease properly or otherwise violates the provisions of the
lease, of the regulations in this part, or of the operating regulations.
(b) When oil is taken by authority of a division order, the lessee or
his representatives shall be actually present when the oil is gauged and
records are made of the temperature, gravity, and impurities. The
lessee will be held responsible for the correctness and the correct
recording and reporting of all the foregoing measurements, which, except
lowest gauge, shall be made at the time the oil is turned into the
pipeline. Failure of the lessee to perform properly these duties will
subject the division order to revocation.
25 CFR 213.29 Operations
25 CFR 213.30 Permission to start operations.
No operations will be permitted on any lease before it is approved.
Written permission must be secured from the supervisor before any
operations are started under any oil and gas lease. Operations must be
in accordance with the operating regulations promulgated by the
Secretary of the Interior. Copies of these regulations may be secured
from either the supervisor or the Area Director and no operations should
be attempted without a study of the operating regulations.
25 CFR 213.31 Restrictions on operations.
(a) Oil and gas leases issued under the provisions of this part shall
be subject to imposition by the Secretary of the Interior of such
restrictions as to time or times for the drilling of wells and as to the
production from any well or wells as in his judgment may be necessary or
proper for the protection of the natural resources of the leased land
and in the interest of the lessor. In the exercise of his judgment the
Secretary of the Interior may take into consideration, among other
things, the Federal laws, State laws, regulations by competent Federal
or State authorities, lawful agreements among operators regulating
either drilling or production, or both.
(b) All such leases shall be subject to any cooperative or unit plan
of development affecting the leased lands that may be required by the
Secretary of the Interior, but no lease shall be included in any
cooperative or unit plan without prior approval of the Secretary of the
Interior. If said plan effects a change in the lease terms, the consent
of the lessor or lessors must be obtained before the plan is effective.
25 CFR 213.32 Wells.
The lessee shall agree (a) to drill and produce all wells necessary
to offset or protect the leased land from drainage by wells on adjoining
lands not the property of the lessor, or in lieu thereof, compensate the
lessor in full each month for the estimated loss of royalty through
drainage: Provided, That during the period of supervision by the
Secretary of the Interior, the necessity for offset wells shall be
determined by the supervisor and payment in lieu of drilling and
producing shall be with the consent of, and in an amount determined by
the Secretary of the Interior; (b) at the election of the lessee to
drill and produce other wells: Provided, That the right to drill and
produce such other wells shall be subject to any system of well spacing
or production allotments authorized and approved under applicable law or
regulations, approved by the Secretary of the Interior and affecting the
field or area in which the leased lands are situated; and (c) if the
lessee elects not to drill and produce such other wells for any period
the Secretary of the Interior may, within 10 days after due notice in
writing, either require the drilling and production of such wells to the
number necessary, in his opinion, to insure reasonable diligence in the
development and operation of the property, or may in lieu of such
additional diligent drilling and production require the payment on and
after the first anniversary date of the lease of not to exceed $1 per
acre per annum, which sum shalI be in addition to any rental or royalty
herein specified.
25 CFR 213.33 Diligence and prevention of waste.
The lessee shall exercise diligence in drilling and operating wells
for oil and gas on the leased lands while such products can be secured
in paying quantities; carry on all operations in a good and workmanlike
manner in accordance with approved methods and practice, having due
regard for the prevention of waste of oil or gas developed on the land,
or the entrance of water through wells drilled by the lessee to the
productive sands or oil or gas-bearing strata to the destruction or
injury of the oil or gas deposits, the preservation and conservation of
the property for future productive operations, and to the health and
safety of workmen and employees; plug securely all wells before
abandoning the same and to shut off effectually all water from the oil
or gas-bearing strata; not drill any well within 200 feet of any house
or barn on the premises without the lessor's written consent approved by
the Area Director; carry out at his expense all reasonable orders and
requirements of the supervisor relative to prevention of waste, and
preservation of the property and the health and safety of workmen; bury
all pipelines crossing tillable lands below plow depth unless other
arrangements therefor are made with the Area Director; pay the lessor
all damages to crops, buildings, and other improvements of the lessor
occasioned by the lessee's operations: Provided, That the lessee shall
not be held responsible for delays or casualties occasioned by causes
beyond his control.
25 CFR 213.34 Inspection of premises; books and accounts.
Lessees shall agree to allow the lessors and their agents or any
authorized representative of the Interior Department to enter, from time
to time, upon and into all parts of the leased premises for the purpose
of inspection, and shall further agree to keep a full and correct
account of all operations and make reports thereof, as required by the
applicable regulations of the Department; and their books and records,
showing manner of operations and persons interested, shall be open at
all times for examination by such officers of the Department as shall be
instructed in writing by the Secretary of the Interior or authorized by
regulations to make such examination.
25 CFR 213.35 Mines to be timbered properly.
In mining operations the lessee shall keep the mine well and
sufficiently timbered at all points where necessary, in accordance with
good mining practice, and in such manner as may be necessary to the
proper preservation of the property leased and safety of workmen.
25 CFR 213.36 Surrender of leased premises in good condition.
On expiration of the term of a lease, or when a lease is surrendered,
the lessee shall deliver to the Government the leased ground, with the
mine workings in case of leases other than oil and gas, in good order
and condition, and the bondsmen will be held for such delivery in good
order and condition, unless relieved by the Secretary of the Interior
for cause. It shall, however, be stipulated that the machinery
necessary to operate any mine is the property of the lessee, but that it
may be removed by him only after the condition of the property has been
ascertained by inspection by the Secretary of the Interior or his
authorized agents, to be in satisfactory condition.
25 CFR 213.37 Penalties.
Failure of the lessee to comply with any provisions of the lease, of
the operating regulations, of the regulations in this part, orders of
the Area Director or his representative, or of the orders of the
supervisor or his representative, shall subject the lease to
cancellation by the Secretary of the Interior or the lessee to a penalty
of not more than $500 per day for each day the terms of the lease, the
regulations, or such orders are violated, or to both such penalty and
cancellation: Provided, That the lessee shall be entitled to notice and
hearing, within 30 days after such notice, with respect to the terms of
the lease, regulations, or orders violated, which hearing shall be held
by the supervisor, whose findings shall be conclusive unless an appeal
be taken to the Secretary of the Interior within 30 days after notice of
the supervisor's decision, and the decision of the Secretary of the
Interior upon appeal shall be conclusive.
25 CFR 213.38 Assignments and overriding royalties.
(a) Leases or any interest therein, may be assigned or transferred
only with the approval of the Secretary of the Interior, and to procure
such approval the assignee must be qualified to hold such lease under
existing rules and regulations, and shall furnish a satisfactory bond
for the faithful performance of the covenants and conditions thereof.
No lease or any interest therein, or the use of such lease, shall be
assigned, sublet, or transferred, directly or indirectly, by working or
drilling contract, or otherwise, without the consent of the Secretary of
the Interior. Assignments of leases shall be filed with the Area
Director within 20 days after the date of execution.
(b) An agreement creating overriding royalties or payments out of
production on oil and gas leases under this part shall be subject to the
provisions of 211.26(d) of this subchapter, or as hereafter amended.
(22 FR 10599, Dec. 24, 1957, as amended at 23 FR 9758, Dec. 18, 1958.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 213.39 Stipulations.
The lessee under any lease heretofore approved may by stipulation
(Form 5-154i) with the consent of the lessor and the approval of the
Secretary of the Interior, make such approved lease subject to all the
terms, conditions, and provisions contained in the lease form and
regulations currently in use. Stipulations shall be filed with the Area
Director within 20 days after the date of execution.
25 CFR 213.40 Cancellations.
(a) When, in the opinion of the Secretary of the Interior, the lessee
has violated any of the terms and conditions of a lease or of the
applicable regulations, or if mining operations are conducted wastefully
and without regard to good mining practice, the Secretary of the
Interior shall have the right at any time after 30 days' notice to the
lessee specifying the terms and conditions violated, and after a
hearing, if the lessee shall so request within 30 days after issuance of
the notice, to declare such lease null and void, and the lessor shall
then be entitled and authorized to take immediate possession of the
land.
(b) On the following conditions, the lessee may, on approval of the
Secretary of the Interior, surrender a lease or any part of it:
(1) That he make application for cancellation to the Area Director
having jurisdiction over the land.
(2) That he pay a surrender fee of $1 at the time the application is
made.
(3) That he pay all royalties and rentals due to the date of such
application.
(4) That he make a satisfactory showing that full provision has been
made for conservation and protection of the property and that all wells,
drilled on the portion of the lease surrendered, have been properly
abandoned.
(5) If the lease has been recorded, that he file, with his
application, a recorded release of the acreage covered by the
application.
(6) If the application is for the cancellation of the entire lease or
the entire undivided portion, that he surrender the lease: Provided,
That where the application is made by an assignee to whom no copy of the
lease was delivered, he will be required to surrender only his copy of
assignment.
(7) If the lease (or portion being surrendered or canceled) is owned
in undivided interests by more than one party, then all parties shall
join in the application for cancellation.
(8) That all required fees and papers must be in the mail or received
on or before the date upon which rents and royalties become due, in
order for the lessee and his surety to be relieved from liability for
the payment of such royalties and rentals.
(9) If there has been a contest respecting a lease or leases, the
approved, the disapproved, or the canceled parts thereof will be held in
the office of the Area Director for 5 days after the Department's
decision has been promulgated, by mail or delivery, and will not be
delivered, if within that period a motion for review and reconsideration
be filed, until such motion is passed upon by the Department.
(10) In the event oil or gas is being drained from the leased
premises by wells not covered by a lease; the lease, or any part of it,
may be surrendered, only on such terms and conditions as the Secretary
of the Interior may determine to be reasonable and equitable.
(c) No part of any advance rental shall be refunded to the lessee nor
shall he be relieved, by reason of any subsequent surrender or
cancellation of the lease, from the obligation to pay said advance
rental when it becomes due.
(d) For proper method of terminating departmental leases covering
lands from which restrictions have been removed see section 3 of the act
of May 27, 1908 (35 Stat. 312).
25 CFR 213.40 Removal of Restrictions
25 CFR 213.41 Leases executed but not approved before restrictions
removed from land.
Leases executed before the removal of restrictions against alienation
on land from all of which restrictions against alienation shall be
removed after such execution, if such leases contain specific provisions
for approval by the Secretary of the Interior, whether now filed with
the Department or presented for consideration hereafter, will be
considered and acted upon by this Department as heretofore but only for
the purpose of approving or disapproving the instrument.
25 CFR 213.42 Operations after removal of restrictions from leased
lands.
(a) Oil and gas leases heretofore approved and leases for other
minerals now or hereafter in force on land from all of which
restrictions against alienation have been or shall be removed, even if
such leases contain provision authorizing supervision by this
Department, shall after such removal of restrictions against alienation,
be operated entirely free from such supervision, and the authority and
power delegated to the Secretary of the Interior in said leases shall
cease and all payments required to be made to the Area Director shall
thereafter be made to the lessor or the then owner of the land, and
changes in regulations thereafter made by the Secretary of the Interior
shall not apply to such leased land from which said restrictions are
removed.
(b) In the event restrictions are removed from a part of the land
included in any lease to which this section applies the entire lease
shall continue subject to the supervision of the Secretary of the
Interior, and all royalties thereunder shall be paid to the Area
Director until such time as the lessor and lessee shall furnish the
Secretary of the Interior satisfactory information that adequate
arrangements have been made to account for the oil, gas or mineral upon
the restricted land separately from that upon the unrestricted.
Thereafter the restricted land only shall be subject to the supervision
of the Secretary of the Interior: Provided, That the unrestricted
portion shall be relieved from such supervision as in the lease or
regulations provided.
25 CFR 213.43 Relinquishment of Government supervision.
All oil and gas leases hereafter executed shall contain the following
relinquishment of supervision clause and terms operative after such
relinquishment, or other provisions similar in substance:
Relinquishment of supervision by the Secretary of the Interior. --
Should the Secretary of the Interior, at any time during the life of
this instrument, relinquish supervision as to all or part of the acreage
covered hereby, such relinquishment shall not bind lessee until said
Secretary shall have given 30 days' written notice. Until said
requirements are fulfilled, lessee shall continue to make all payments
due hereunder as heretofore in section 3(c). After notice of
relinquishment has been received by lessee, as herein provided this
lease shall be subject to the following further conditions:
(a) All rentals and royalties thereafter accruing shall be paid in
the following manner: Rentals and royalties shall be paid to lessor or
his successors in title, or to a trustee appointed under the provision
of section 9 hereof. Rentals and royalties shall be paid directly to
lessor, his successors in title, or to said trustee as the case may be.
(b) If, at the time supervision is relinquished by the Secretary of
the Interior, lessee shall have made all payments then due hereunder,
and shall have fully performed all obligations on its part to be
performed up to the time of such relinquishment, then the bond given to
secure the performance hereof, on file in the Indian Office, shall be of
no further force or effect.
(c) Should such relinquishment affect only part of the acreage, then
lessee may continue to drill and operate the land covered hereby as an
entirety: Provided, That lessee shall pay in the manner prescribed by
section 3(c), for the benefit of lessor such proportion of all rentals
and royalties due hereunder as the acreage retained under the
supervision of the Secretary of the Interior bears to the entire acreage
of the lease, the remainder of such rentals and royalties to be paid
directly to lessor or his successors in title or said trustee as the
case may be, as provided in subdivision (a) of this section.
Division of fee. It is covenanted and agreed that should the fee of
said land be divided into separate parcels, held by different owners, or
should the rental or royalty interests hereunder be so divided in
ownership, after the execution of this lease and after the Secretary of
the Interior relinquishes supervision hereof, the obligations of lessee
hereunder shall not be added to or changed in any manner whatsoever save
as specifically provided by the terms of this lease. Notwithstanding
such separate ownership, lessee may continue to drill and operate said
premises as an entirety: Provided, That each separate owner shall
receive such proportion of all rentals and royalties accruing after the
vesting of his title as the acreage of the fee, or rental or royalty
interest, bears to the entire acreage covered by the lease; or to the
entire rental and royalty interest as the case may be: Provided
further, That, if, at any time after departmental supervision hereof is
relinquished, in whole or in part, there shall be four or more parties
entitled to rentals or royalties hereunder, whether said parties are so
entitled by virtue of undivided interests or by virtue of ownership of
separate parcels of the land covered hereby, lessee at his election may
withhold the payment of further rentals or royalties (except as to the
portion due the Indian lessor while under restriction), until all of
said parties shall agree upon and designate in writing and in a
recordable instrument a trustee to receive all payments due hereunder on
behalf of said parties and their respective successors in title.
Payments to said trustee shall constitute lawful payments hereunder, and
the sole risk of an improper or unlawful distribution of said funds by
said trustee shall rest upon the parties naming said trustee and their
respective successors in title. (The above provisions are copied from
oil and gas mining lease Form 5-154h,1022 revised April 24, 1935.)
0221For information relative to obtaining Form 5-154h, see 211.30.
25 CFR 213.44 Division of royalty to separate fee owners.
Should the removal of restrictions affect only part of the acreage
covered by a lease containing provisions to the effect that the
royalties accruing under the lease, where the fee is divided into
separate parcels, shall be paid to each owner in the proportion which
his acreage bears to the entire acreage covered by the lease, the lessee
or assignee of such unrestricted portion will be required to make the
reports required by the regulations in this part and the operating
regulations with respect to the beginning of drilling operations,
completion of wells, and production the same as if the restrictions had
not been removed. In the event the unrestricted portion of the leased
premises is producing, the owner of the lease thereon will be required
to pay the portion of the royalties due the Indian lessor at the time
and in the manner specified by the regulations in this part.
25 CFR 213.45 Restrictions especially continued as to certain lands.
Restricted lands allotted as either homestead or surplus allotments,
designated as tax exempt under section 4 of the act of May 10, 1928, as
amended May 24, 1928 (45 Stat. 495, 733), the entire interest in which
was acquired by inheritance, gift, devise, or purchase with restricted
funds, by persons of one-half or more Indian blood, after the passage of
the act of January 27, 1933 (47 Stat. 777), continue to be restricted
under the provisions of the last mentioned act and oil and gas leases
thereof are subject to the regulations in this part and all such leases
to be valid must be approved by the Secretary of the Interior. Lands
inherited by or devised to full blood Indians prior to the act of
January 27, 1933 are not affected as to restrictions by the provisions
of said act and may continue to be leased with the approval of the
county court having jurisdiction of the estate of the deceased allottee
and without approval of the Secretary of the Interior (54 L.D. 382; 10
F. (2d), 487). Lands acquired prior to the passage of the act of
January 27, 1933 by Indians of less than full blood, whether such lands
were restricted and tax exempt or restricted and taxable, passed to such
persons free of all restrictions. Inherited homesteads restricted prior
to April 26, 1931, by section 9,2023 of the act of May 27, 1908 (35
Stat. 312), for the benefit of heirs of one-half or more Indian blood
but less than full bloods, born after March 4, 1906, became unrestricted
April 26, 1931, or upon the death prior thereto of the heir born
subsequent to March 4, 1906, and oil and gas leases thereof are not
subject to the regulations in this part nor under the jurisdiction of
the Secretary of the Interior.
0232Repealed restrictions on inherited homesteads, by sec. 2 of the
act of May 10, 1928 (45 Stat. 495).
25 CFR 213.46 Field clerks.
Local representatives known officially as ''field clerks'' are
located in the various districts comprising that part of the State of
Oklahoma occupied by the Five Civilized Tribes. Such field clerks shall
report to and act under the direction of the Area Director. Any and all
counsel and advice desired by allottees concerning deeds, leases, or
other instruments or matters relating to lands allotted to them shall be
furnished by such field clerks free of charge. Field clerks shall not,
during their term of employment, have any personal interest, directly or
indirectly, in any transaction concerning leases covering lands of
allottees or in the purchase or sale of any such lands regardless of
whether the restrictions have or have not been removed. This
prohibition, however, shall not apply to lands which such field clerks
have legally acquired before their employment in the Bureau of Indian
Affairs. Field clerks shall report to the Area Director at the end of
each month the work performed during such period and special reports
shall be made immediately of any apparently illegal transaction
involving the estates or allotments of allottees.
25 CFR 213.47 Forms.
The provisions of 211.30 of this chapter, or as hereafter amended,
are applicable to this part.
(24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 213.48 Effective date.
The regulations in this part shall become effective and in full force
from and after the date of approval (Apr. 27, 1938), and shall be
subject to change or alteration at any time by the Secretary of the
Interior: Provided, That no regulations made after the approval of any
lease shall operate to affect the term of the lease, rate of royalty,
rental, or acreage unless agreed to by both parties to the lease. All
former regulations governing the leasing of individually owned lands of
the Five Civilized Tribes for mining purposes are superseded by the
regulations in this part.
25 CFR 213.49 Scope of regulations.
The regulations in this part shall apply in so far as practicable to
land purchased for Indians under the Oklahoma Indian Welfare Act of June
26, 1936 (49 Stat. 1967; 25 U.S.C. 501-509), as well as to other lands
of individual Indians of the Five Civilized Tribes.
25 CFR 213.49 PART 214 -- LEASING OF OSAGE RESERVATION LANDS, OKLAHOMA,
FOR MINING, EXCEPT OIL AND GAS
Sec.
214.1 Definition.
214.2 Sale of leases.
214.3 Corporate information.
214.4 Bonds.
214.5 Additional information.
214.6 Failure of lessee to complete lease.
214.7 Operation not permitted until lease approved; 160 acres
maximum for single lease.
214.8 Acreage limitation.
214.9 Advance rental.
214.10 Royalty rates.
214.11 Payment of rents and royalties.
214.12 Time of payment of royalties.
214.13 Diligence; annual expenditures; mining records.
214.14 Use of surface lands.
214.15 Homesteads.
214.16 Settlement of damages.
214.17 Use of timber from restricted lands.
214.18 Assignments.
214.19 Cancellation.
214.20 Annual reports by corporate lessees.
214.21 Inspection of lessees' books and records.
214.22 Serving of notices.
213.23 Plat of mine location.
214.24 Forms.
214.25 Forfeiture of lease.
214.26 Fine; notice and hearing.
214.27 Changes in regulations.
214.28 Location of sites for mines and buildings.
214.29 Prospecting; abandonment of mines.
214.30 Lessees must appoint local representative.
Authority: Sec. 3, 34 Stat. 543.
Source: 22 FR 10605, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 214.1 Definition.
The term ''officer in charge'' shall refer to the superintendent of
the Osage Indian Agency and school or other representative of the
Government who may, for the time, be in charge of the Osage Agency and
school, or any person who may be detailed by the Secretary of the
Interior or the Commissioner of Indian Affairs to take charge of leasing
or mining operations under the regulations in this part.
25 CFR 214.2 Sale of leases.
Leases of minerals other than oil and gas may be negotiated with the
tribal council after permission to do so has been obtained from the
officer in charge. Leases with all papers required, shall be filed with
the officer in charge within 30 days from the date of execution by the
lessee and the principal chief of the Osage Tribe. The lease will be
forwarded to the Commissioner of Indian Affairs for consideration by him
and the Secretary of the Interior and will become effective only after
approval by the Secretary of the Interior. If any lease should be
disapproved through no fault of the lessee, all amounts deposited by him
will be promptly refunded.
25 CFR 214.3 Corporate information.
A corporation shall file with its first lease a certified copy of
articles of incorporation, and, if a foreign corporation, evidence
showing compliance with local corporation laws in duplicate; a list of
all stockholders, with their post office addresses, and showing the
number of shares of capital stock held by each; together with a sworn
statement of its proper officer showing:
(a) The total number of shares of the capital stock actually issued,
the number of shares actually sold and the amount of cash paid into the
treasury out of the stock sold, or, if paid in property, kind, quantity,
and value of the same.
(b) Of the stock sold, how much per share remains unpaid and subject
to assessment.
(c) How much cash the company has in its treasury and elsewhere, and
from what source it was received.
(d) What property, exclusive of cash, is owned by the company, and
its value.
(e) What the total indebtedness of the company is, and the nature of
its obligations.
(f) Names of officers and directors.
25 CFR 214.4 Bonds.
Lessee shall furnish with each lease at the time it is filed with the
officer in charge an acceptable bond not less than the following
amounts:
For less than 80 acres $1,000
For 80 acres and less than 120 acres 1,500
For 120 acres and not more than 160 acres 2,000
For each additional 40 acres, or part thereof above 160 acres 500
Provided, That for leases for minerals other than oil and gas the
Secretary of the Interior or his authorized representatives with the
consent of the Indian landowner may authorize a bond for a lesser amount
if, in his opinion, the circumstances warrant and the interests of the
Indian landowners are fully protected: Provided further, That the
lessee shall be allowed to file bond, Form S /1/ covering all leases to
which he or they are or may become parties instead of a separate bond in
each case, such bond to be in the penal sum of $15,000. The right is
reserved to change the amount of the bond in any particular case, or to
require a new bond in the discretion of the Secretary of the Interior.
(26 FR 164, Jan. 10, 1961. Redesignated at 47 FR 13327, Mar. 30,
1982)
/1/ For further information concerning forms, see 214.24.
25 CFR 214.5 Additional information.
The officer in charge may, at any time, either before or after
approval of a lease call for any additional information necessary to
carry out the purpose and intent of the regulations in this part, and
such information shall be furnished within the time specified in the
request therefor.
25 CFR 214.6 Failure of lessee to complete lease.
Should a lessee fail to furnish, within the time specified after his
bid is accepted, the papers necessary to put his lease and bond in
proper form for consideration, the officer in charge shall recommend
that the sale be disapproved and money paid forfeited to the Osage
Tribe.
25 CFR 214.7 Operation not permitted until lease approved; 160 acres
maximum for single lease.
No mining or work of any nature will be permitted upon any tract of
land until a lease covering such tract shall have been approved by the
Secretary of the Interior and delivered to the lessee. All leases shall
be made for such period as the title to the minerals remain in the Osage
Tribe, which time will expire April 8, 1931, unless otherwise provided
by Congress and shall be subject to cancellation or termination as
specified in this part. Leases made by corporations shall be
accompanied by an affidavit by the secretary or president of the company
showing the authority of its officers to execute leases, bonds, and
other papers. No lease shall be made covering more than 160 acres.
25 CFR 214.8 Acreage limitation.
No person, firm, or corporation shall hold under lease at any one
time without special permission from the Secretary of the Interior in
excess of the following areas:
(a) For deposits of the nature of lodes, or veins containing ores of
gold, silver, copper, or other useful metals, 640 acres.
(b) For beds of placer gold, gypsum, asphaltum, phosphate, iron ores,
and other useful minerals, other than coal, lead, and zinc, 960 acres.
(c) For coal, 4,800 acres.
(d) For lead and zinc, 1,280 acres.
25 CFR 214.9 Advance rental.
(a) Lessees shall pay, in addition to other considerations, annual
advance rentals as follows: 15 cents per acre for the first year; 30
cents per acre for the second year; 50 cents per acre for the third
year; and $1 per acre per annum for the fourth and each succeeding year
during the life of any lease: Provided, That all such payments of
advance rentals shall be credits on royalties on production during the
year for which payment of advance rental is made.
(b) The payment of annual advance rental shall not release the lessee
from the obligation to conduct mining operations, as required by the
terms of the lease.
25 CFR 214.10 Royalty rates.
Royalties will be required as follows, subject to the approval of the
President, in accordance with the act of June 28, 1906 (34 Stat. 543):
(a) For gold, silver, or copper lessee shall pay quarterly a royalty
of 10 percent to be computed on the gross value of the ores as shown by
reduction returns after deducting freight and treatment charges.
Duplicate reduction returns shall be filed by the lessee with the
officer in charge within 20 days after the reduction of the ores.
(b) For coal the lessee shall pay a royalty of 10 cents per ton of
2,000 pounds on mine run or coal as taken from the mines, including what
is commonly called ''slack.''
(c) For asphaltum and allied substances, the lessee shall pay
quarterly a royalty of 10 cents per ton of 2,000 pounds on crude
material, and 60 cents per ton on refined substances.
(d) For substances other than gold, silver, copper, lead, zinc, coal,
and asphaltum the lessee shall pay quarterly a royalty of 10 percent of
the value at the nearest shipping point of all ores, metals, or minerals
marketed.
(e) The royalties to be paid for lead and zinc shall be computed for
each mineral at the same rate that the amount of the concentrates of
such mineral bears to the total amount of dirt or rock actually mined,
except as stipulated in this section. The royalty so determined shall
be increased by adding 1 percent for each increase of $10 in the selling
price per ton thereof over and above the following, which shall be the
agreed base or standard:
For zinc -- $50
For lead -- $65
but in no case shall the rate of royalty be less than 5 percent or
more than 20 percent. The percentage of recovery shall be computed as
nearly as practicable upon the ore included in each sale, but where it
is impracticable so to do the officer in charge and the lessee shall
agree upon some other method of computation which will produce
substantially the same result: Provided, That in case of their
disagreement the Commissioner of Indian Affairs shall prescribe a rule
of computation to be followed in such cases.
Note: The royalty would always be determined under this rule by
ascertaining the percentage of recovery were it not for two things: (1)
the flat rates which are fixed as the minimum and the maximum rates of
royalty and (2) variations in the selling price of the ores. Concrete
examples coming under the rule are set forth in the following table:
A similar table might be constructed for royalties on lead, but in so
doing it would be necessary to bear in mind that the base or standard
selling price for the lead is to be $65 instead of $50.
25 CFR 214.11 Payment of rents and royalties.
All rentals, royalties, damages, or other amounts which may become
due under leases approved in accordance with the regulations in this
part shall be paid to the disbursing agent at Pawhuska, Okla. The
remittances shall be in St. Louis exchange, except that where such
exchanges cannot be procured post office or express money orders will be
accepted. All royalties or other payments or claims of the Osage Tribe
arising under such leases shall be a lien upon the mining plant
machinery, and all minerals mined on the property leased or in which the
lessee still retains any right, claim, or interest.
25 CFR 214.12 Time of payment of royalties.
Royalties on all minerals produced in any quarter (January-March,
April-June, July-September, October-December) shall be paid on or before
the 25th day of the month next succeeding, and the remittance shaIl be
accompanied by sworn reports covering all operations, whether there has
been production or not. Annual advance rentals shall be paid within 10
days after the beginning of the lease year.
25 CFR 214.13 Diligence; annual expenditures; mining records.
(a) Lessees shall exercise diligence in the conduct of prospecting
and mining operations, and on all leases referred to in 214.8(a) shall
expend annually in development work a sum which with the annual rental
shall make an amount of not less than $5 per acre. On all leases
referred to in 214.8 (b) and (c) there shall be expended annually in
development work a sum which inclusive of the annual rental shall make
an amount of not less than $1 for each acre or fraction thereof included
in the lease. The lands covered by each lease referred to in 214.8 (d)
shall be prospected for lead and zinc ores by drilling within 1 year
test holes aggregating 2,000 feet unless a sufficient ore body is
discovered to justify the sinking of a shaft to the ore body and the
erecting of a mill when such tract may be released from further
prospecting by the written consent of the superintendent: Provided,
That within 90 days after an ore body of sufficient quantity is
discovered, and shown by the logs or records of the drill holes, to
justify the expenditure, the sinking of a shaft to the ore body, and the
erection of a mill shall be commenced and continued to completion
without cessation of work thereon, barring unavoidable accidents or
causes beyond the control of the lessee.
(b) Lessee shall keep upon the leased premises accurate records of
the drilling, redrilling, or deepening of all holes showing the
formations, and upon the completion of such holes, copies of such
records shall be transmitted to the superintendent by the lessee after
the first completion and of any further drilling thereafter, and a
failure to so furnish report within the time prescribed shall be
considered a violation of the regulations. Lessee shall, before
commencing operations, file with the superintendent a plat and
preliminary statement of how the openings are to be made and the
property developed.
25 CFR 214.14 Use of surface lands.
(a) Lessees may use so much of the surface of the leased land as
shall be reasonably necessary for the prospecting and mining operations
and buildings required by the lease, and shall also have the
right-of-way over and across such land to any point of prospecting or
mining operations, but such use of the surface shall be permissible only
under condition of least injury and inconvenience to the allottee or
owner of the land. Lessees before commencing and during such operations
shall pay all reasonable damages for the use of the surface land and to
any growing crops thereon, or to improvements on said land, or any
damage that during the life of the lease may be occasioned in any manner
whatsoever by the use of the surface, to the allottee or his successor
in interest or assignee, or to a lessee of the surface of said land or
to an oil and gas lessee, damages to be apportioned among the parties
interested in the surface, whether as owner, lessee, or otherwise, as
the parties in interest may mutually agree or as their interests may
appear. If the parties are unable to agree concerning damages the same
shall be determined by arbitration.
(b) All agreements (or authenticated copies thereof) providing for
the settlement of damages shall be filed in the Osage Agency if the
surface owner is a restricted Indian, and all such amounts which may be
due and payable to any such Indian shall be paid to the superintendent
and by him immediately remitted to the Indian entitled thereto. All
sums due as royalty or damages shall be a lien on all equipment on
leased premises.
25 CFR 214.15 Homesteads.
Lessees and those acting under them shall not conduct prospecting or
mining operations within or upon any homestead selection without written
consent of the Secretary of the Interior.
25 CFR 214.16 Settlement of damages.
Any person, other than a lessee or an allottee or the heirs of a
deceased allottee, claiming an interest in any leased tract or in
damages thereto must furnish to the officer in charge a statment in
writing showing his interest, and failure to furnish such statement
shall constitute a waiver of notice and estop said person from claiming
any part of such damages after the same shall have been disbursed.
25 CFR 214.17 Use of timber from restricted lands.
Lessees will not be permitted to use any timber from any Osage lands
not relieved of restrictions upon alienation except under written
agreement with the owner approved by the officer in charge.
25 CFR 214.18 Assignments.
Approved leases or any interest therein may be transferred or
assigned with the consent and approval of the Secretary of the Interior
and not otherwise. Transfers or assignments, when so approved, shall be
subject to the terms and conditions of the original leases and
regulations under which such leases were approved as well as to such
additional requirements as the Secretary of the Interior may prescribe.
The transferee or assignee shall furnish with his transfer or assignment
a satisfactory bond as prescribed in 214.4 in connection with leases.
Any attempt to transfer or assign an approved lease or any interest
therein without the consent and approval of the Secretary of the
Interior shall be absolutely void and shall subject the original lease
to cancellation in the discretion of the secretary.
25 CFR 214.19 Cancellation.
When a lessee makes application for the cancellation of a lease in
whole or in part, all royalties or rentals due up to and including the
date of the application for cancellation must be paid, and that part of
the lease delivered to the lessee shall be surrendered before such
application will be considered. In the event a lease is surrendered for
cancellation in whole or in part, after a new lease year has been
entered upon, the lessee and his surety shall be liable for the advance
rentals required to be paid under the lease for that year, and no part
of such rentals which may have been paid shall be refunded.
25 CFR 214.20 Annual reports by corporate lessees.
Lessees and assignees must submit to the officer in charge on January
1, of each year and at such other times as may be required by the
Secretary of the Interior, a statement containing the information called
for in 214.3(a) and (f) and also showing any changes in officers or
changes in or additions to stockholders. At any time individual
stockholders may be required to show to the satisfaction of the
Secretary of the Interior in what companies or with what persons or
firms they are interested in mining leases on the Osage Reservation and
whether they hold such stock or interest for themselves or in trust.
25 CFR 214.21 Inspection of lessees' books and records.
Lessees shall allow the agents and representatives of the lessor, or
any authorized representative of the Interior Department, to enter, from
time to time, upon and into all parts of the leased premises for the
purpose of inspection, and their books and records showing manner of
operations and persons interested, shall be open at all times for the
examination of such officers of the department as shall be instructed by
the Secretary of the Interior to make such examinations.
25 CFR 214.22 Serving of notices.
Wherever notice is provided for in this part it shall be sufficient
if notice has been mailed to the last known place of address of the
party, and time shall begin to run with the day next ensuing after the
mailing or from the date of delivery of personal notice; but where the
party is outside the State of Oklahoma the officer in charge may, in his
discretion, increase the time allowed.
25 CFR 214.23 Plat of mine location.
Lessees are required, when so requested, to file a plat of their
leases showing exact locations of all mines, proposed locations, power
houses, etc.
25 CFR 214.24 Forms.
Applications, leases, and other papers must be upon forms prepared by
the department, and the superintendent of the Osage Indian school,
Pawhuska, Okla., will furnish prospective lessees with such forms at a
cost of $1 per set.
Form M. Application for mining lease, including financial showing.
Form N. Lease (except lead and zinc).
Form O. Bond.
Form P. Authority of officers to execute papers.
Form Q. Assignment.
Form R. Lease for lead and zinc.
Form S. Collective bond.
25 CFR 214.25 Forfeiture of lease.
On the failure of any lessee or assignee to comply with any
regulation or any obligation in the lease or assignment, the Secretary
of the Interior may cancel and annul such lease without resorting to the
courts and without any further proceeding: Provided, That the party or
parties charged with such violation shall be first given not less than
30 days' notice to show cause why such lease should not be canceled and
annulled or other order made with reference thereto.
25 CFR 214.26 Fine; notice and hearing.
Violation of any of the terms or conditions of any lease or of the
regulations pertaining thereto shall subject the lease to cancellation
by the Secretary of the Interior, or the lessee to a fine of not
exceeding $500 per day for each and every day the terms of the lease or
of the regulations are violated, or the orders of the superintendent in
reference thereto are not complied with, or to both such fine and
cancellation in the discretion of the Secretary of the Interior:
Provided, That the lessee shall be entitled to notice and hearing with
respect to the terms of the lease or of the regulations violated, which
hearing shall be held by the superintendent, whose findings shall be
conclusive unless an appeal be taken to the Secretary of the Interior
within 30 days after notice of the superintendent's decision, and the
decision of the Secretary of the Interior upon appeal shall be
conclusive.
25 CFR 214.27 Changes in regulations.
The regulations in this part are subject to change or alteration at
any time by the Secretary of the Interior.
25 CFR 214.28 Location of sites for mines and buildings.
In event of disagreement between two or more mineral lessees
regarding sites for the location of wells, mines, buildings, plants,
etc., the same shall be determined by the superintendent after
investigation and after due consideration of prior right of any lessee
by reason of date of approval of lease.
25 CFR 214.29 Prospecting; abandonment of mines.
All prospecting or mining operations or the abandonment of a well or
mine shall be subject to the approval of the superintendent, and any
disagreement between lessees of mineral leases regarding operations
likely to result in injury to either lessee shall be determined by the
superintendent, whose decision shall be final, unless an appeal is filed
with the Secretary of the Interior within 30 days after notice of such
decision.
25 CFR 214.30 Lessees must appoint local representative.
Before actual drilling or development operations are commenced on
leased lands, the lessee or assignee shall appoint a local or resident
representative within the State, on whom the superintendent or other
authorized representative of the department may serve notice or
otherwise communicate with in securing compliance with the regulations
in this part and shall notify the superintendent of the name and post
office address of the representative so appointed.
25 CFR 214.30 PART 215 -- LEAD AND ZINC MINING OPERATIONS AND LEASES,
QUAPAW AGENCY
Sec.
215.0 Definitions.
215.1 No operations until lease approved.
215.2 Local representative of lessee.
215.3 Manner and time of royalty payments.
215.4 Leases to be sold at public auction.
215.5 Royalty rates.
215.6 Applications for leases; consent of Indian owners.
215.7 Advertisement of sale of leases.
215.8 Submission of bids.
215.9 Execution of leases.
215.10 Renewal of leases on developed lands.
215.11 New leases where prior leases have been forfeited or
abandoned.
215.12 Advertising costs.
215.13 Bond.
215.14 Payments to be made to superintendent.
215.15 Leases to be accompanied by Form D.
215.16 Requirements of corporate lessees.
215.17 Additional information required.
215.18 Term of leases.
215.19 Forms.
215.20 Assignment.
215.21 Payment of gross production tax on lead and zinc.
215.22 Operations.
215.23 Cooperation between superintendent and district mining
supervisor.
215.23a Suspension of operations and production on leases for
minerals other than oil and gas.
215.24 Books and accounts.
215.25 Other minerals and deep-lying lead and zinc minerals.
Authority: Sec. 26, 41 Stat. 1248; 50 Stat. 68.
Source: 22 FR 10608, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 215.0 Definitions.
The following expressions, wherever used in the regulations in this
part or leases thereunder, shall have the meaning designated in this
section:
(a) Superintendent. The term ''superintendent'' shall mean any
person in charge of the Quapaw Indian Agency, or having supervision
under the direction of the Secretary of the Interior of the Indian
restricted and trust allotted lands thereunder.
(b) Allottee. The term ''allottee'' shall mean any Indian to whom
land has been allotted, or any Indian owner of land or interest therein
as an heir or devisee.
(c) Incompetent Indian. The term ''incompetent Indian'' or
''incompetent'' shall mean any Indian who has been declared by the
Secretary of the Interior to be incompetent to improve or manage his
restricted or trust lands properly or with benefit to himself. The term
shall also include any Indian who is a minor and any Indian who is a
legal incompetent under the laws of the State. The term shall also
apply to any Indian who is in fact incompetent, and the question of
whether an Indian is competent or incompetent at the time of making a
lease of his restricted or trust Indian lands is one for the Secretary
of the Interior to determine.
(d) Lessee. The term ''lessee,'' except where otherwise modified or
limited in the regulations in this part, shall mean any person, firm, or
corporation, their legal representatives, heirs, or assigns, to whom a
lead and zinc mining lease has been made by or on behalf of Indians
under the provisions of the regulations in this part.
(e) Lessor. The term ''lessor,'' except where otherwise modified or
limited in the regulations in this part, shall mean any Indian owning or
having any interest in restricted or trust allotted any inherited lands
under the supervision of the Quapaw Indian Agency, by or for whom a
lease has been executed pursuant to the regulations in this part.
(f) Leased lands. The terms ''leased lands,'' ''leased premises,''
or ''leased tract'' shall mean any leased restricted or trust lands
within and under jurisdiction of the Quapaw Indian Agency allotted to or
inherited by an Indian.
(g) Mining operations. The term ''mining operation'' or
''operations,'' except where otherwise modified or limited in the
regulations in this part or in leases thereunder shall mean actual
drilling, mining, or construction on the leased lands.
25 CFR 215.1 No operations until lease approved.
No operations under any lease executed under the regulations in this
part shall be permitted upon any restricted or trust lands allotted to
or inherited by an Indian until such lease covering such tract shall be
approved by the Secretary of the Interior.
25 CFR 215.2 Local representative of lessee.
Before actual drilling or development operations are commenced on the
leased lands the lessee shall appoint a local or resident representative
within Ottawa County, Oklahoma, on whom the superintendent may serve
notice or otherwise communicate with in securing compliance with the
regulations, and shall notify the superintendent of the name and post
office address of the representative so appointed. In the event of the
incapacity or absence from the county of Ottawa of such designated local
or resident representative, the lessee shall appoint some person to
serve in his stead, and in the absence of such representative or of
notice of the appointment of a substitute any employee of the lessee
upon the leased premises, or the contractor, or other person in charge
of mining operations thereon shall be considered the representative of
the lessee for the purpose of service of orders or notices as provided
in this part, and service upon any employee, contractor, or other person
shall be deemed service on the lessee. Wherever a notice is provided
for in the regulations in this part or in the lease from it shall be
deemed sufficient if notice has been mailed to the last known address of
the lessee or his local or resident representatives, and time shall
begin to run with the day next ensuing after the mailing, or from date
of delivery of personal notice.
25 CFR 215.3 Manner and time of royalty payments.
All royalties belonging to the lessor shall be paid to the
superintendent of the Quapaw Agency at Miami, Okla., or such other
official as the Secretary of the Interior may designate, for the benefit
of the lessor, not later than 15 days from the 1st of each month for ore
and concentrates sold during the preceding month.
25 CFR 215.4 Leases to be sold at public auction.
Except as otherwise provided in the regulations in this part, no lead
and zinc mining lease under this part of restricted or trust allotted
and inherited Indian lands within and under the Quapaw Indian Agency
shall be made except to the highest responsible bidder at public
auction.
25 CFR 215.5 Royalty rates.
(a) In leases offered for sale at public auction under the
regulations in this part the royalty to be paid by the lessee shall be
stipulated at a fixed percent of the gross proceeds of all lead and zinc
ores and concentrates extracted from the leased premises, the royalty to
be computed and based upon each sale of ore or concentrates separately,
the rate of royalty to be determined and fixed by the Secretary of the
Interior in the case of each lease prior to the offering of such lease
for sale. Subject to the right of the Secretary of the Interior to
reject any and all bids, leases offered for sale at public auction shall
be awarded in each case to the responsible bidder submitting the highest
bonus offer.
(b) In leases not offered for sale at public auction but otherwise
made and entered into under the provisions of the regulations in this
part the royalty stipulated and fixed therein shall be such as may be
determined by the Secretary of the Interior or as may be agreed upon in
each case, subject to the approval of the Secretary of the Interior.
(c) It shall be further provided, however, that said sale-price basis
for the determination of the rates and amount of royalty shall not be
less than the highest and best obtainable market price of the lead and
zinc ores and concentrates at the usual and customary place of disposing
of such ores and concentrates at the time of sale: Provided, however,
That the right is reserved to the Secretary of the Interior to determine
and declare such market price if it is deemed necessary for him to do so
for the protection of the interests of the Indian lessor: And provided
further, That the right is reserved to the Secretary of the Interior on
behalf of the Indian lessors to reserve at any time it shall be deemed
to be to the best interests of the Indian lessors and upon due notice to
the lessee, the royalty share of the gross production of the ore and
concentrates and upon such notice that the royalty share of such
production shall be stored and not sold, the lessee shall be required to
store, free of charge to the Indian lessors in the ore bins of said
lessee, said royalty shares of the gross production of ore and
concentrates, provided that the lessee may not be required to store ore
or concentrates for the lessor in amounts greater than one-third of his
bin capacity or for a period longer than 6 months.
25 CFR 215.6 Applications for leases; consent of Indian owners.
(a) Applications or requests by the Indian owners of restricted or
trust land, or by others, that such land be leased or offered for lease
for lead and zinc mining purposes should be addressed to the Secretary
of the Interior and submitted through the superintendent of the Quapaw
Indian Agency. Upon receipt of such applications or requests, the
superintendent shall give consideration thereto and forward the same to
the Commissioner of Indian Affairs with his report and recommendation.
(b) In no instance will a new lease be executed and delivered (or
advertised for sale to the highest bidder) unless the Indian owner
thereof, if an adult who has not been specifically found by the
Secretary of the Interior to be personally incompetent to transact
ordinary business affairs, has agreed to the terms of said lease or the
terms under which said lease is advertised for lease, except in cases
where the land is owned by several co-tenants, and, in such cases, no
such lease shall be given or advertised for sale unless the co-owners or
a majority in interest, if adults, and not specifically declared
incompetent, have first consented thereto: Provided, That in the event
the majority in interest is owned by minors, or adults specifically
found to be incompetent, then and in that event, the Secretary of the
Interior reserves the right to lease the entire tract if, in his
opinion, such leasing will inure to the best interest of the restricted
Indian owners.
25 CFR 215.7 Advertisement of sale of leases.
Upon authority being granted by the Secretary of the Interior to the
superintendent to offer for sale at public auction a lead and zinc
mining lease of any tract or tracts of restricted or trust allotted and
inherited Indian lands, the superintendent shall cause a notice to be
published once a week for at least 4 weeks in some designated newspaper
of general circulation in the county in which the land is located,
setting forth that upon a certain day, which shall be not less than 30
days from the first publication of such notice and at a place to be
named in the notice, the superintendent or other duly authorized
representatives of the Secretary of the Interior will offer for sale at
public auction a lead and zinc mining lease of such lands to the highest
and best bidder, subject to the rules and regulations prescribed by the
Secretary of the Interior, notice to be in such form as may be
prescribed by the Secretary of the Interior.
25 CFR 215.8 Submission of bids.
At the time of public auction bidders may submit their bids in person
or by authorized agents, but in the latter case the bids must be
accompanied by power of attorney duly executed by the real party or
person in interest. Sealed bids may be submitted by mail or otherwise
to the superintendent at his office at Miami, Okla., or delivered to him
at the place set for the sale at any time prior to the hour fixed for
offering the lease for sale. At the time and place of the public
auction and before receiving the public bids the officer in charge shall
announce the amounts and terms of all sealed bids received by him and
the names of the bidders. The persons present, including those, if any,
who may have theretofore submitted sealed bids, shall then be allowed to
offer public bids. Bids must contain the offer of the stipulated and
fixed royalty (see 215.5 as to royalty) and, in addition thereto, the
offer of a bonus payable as follows: 25 percent at time of sale and the
balance before or at time of execution of the lease contract. Bidders
shall be required to submit with their bids a draft or certified check
payable to the order of the superintendent covering the advance rental
for the first year on the proposed leasehold and 25 percent of the
amount of the bonus offered. The superintendent shall, in each case,
determine the highest and best bid, said determination, however, to be
subject to the approval of the Secretary of the Interior. Upon approval
by the Secretary of the Interior of the award, the successful bidder
shall, within 30 days from notice thereof, enter into and execute the
lease contract in accordance with said bid and the regulations in this
part. The lease so executed shall be subject to the approval of the
Secretary of the Interior and may be accepted or rejected by him when
submitted for his approval. The right is reserved to the Secretary of
the Interior, in the event of the rejection of such lease, to authorize
and instruct the superintendent to accept the offer of some competitive
bidder or to readvertise the land for lease. The report of the
superintendent to the Commissioner of Indian Affairs relative to the
auction sale shall contain full information as to all bids received for
the lease rights on the land. If any person or party fails or refuses
to execute a lease after being declared the highest bidder or after
being awarded such lease, the amount tendered with his bid shall be
forfeited to the superintendent for the benefit of the owner of the
land.
25 CFR 215.9 Execution of leases.
Whenever a lease award to a proposed lessee has been approved by the
Secretary of the Interior, as provided in 215.7 and 215.8, the lease
contract shall be executed by the Indian owner of the land, if he be an
adult and not incompetent as defined in 215.0(c). Before any lease is
entered into by the Indian owners or is approved by the Secretary of the
Interior, all the adult and competent owners or co-owners of the tract
of land which it is proposed to lease, shall be furnished by the Bureau
such geological reports as may be available or that can be secured from
the representative of the Geological Survey showing the estimated
mineral reserves on said property, the estimated reasonable value of
such property for mining purposes, and such other data as might
reasonably be necessary to fully advise the owners of said property of
the then present status and mining value of their lands. If the Quapaw
or other Indian owner of the land is a minor, or is otherwise an
incompetent as defined in the regulations in this part, the lease
contract shall be executed by the superintendent for and on behalf of
such minor or such incompetent. The leases executed, either by the
Indian owner of the land or by the superintendent in his behalf, shall
be subject to the approval of the Secretary of the Interior and shall be
effective only upon such approval.
(22 FR 10608, Dec. 24, 1957. Redesignated at 47 FR 13327, Mar. 30,
1982; 48 FR 13414, Mar. 31, 1983)
25 CFR 215.10 Renewal of leases on developed lands.
(a) In cases where the lands have heretofore been leased, and lead
and zinc ores have been discovered hereon, and it shall appear to the
Secretary of the Interior to be advisable and to the best interests of
the Indian owners of the lands that the terms of the existing lease or
leases be extended or that a new lease or leases for an additional
period of time, or that a new lease or leases to take effect upon the
expiration of present valid leases, should, upon application therefor,
be granted to either the present lessees or to parties holding under
assignments, subleases, or mining contracts, from such present lessees,
or to parties who have expended capital in lead and zinc mining
operation and development of the land under such leases, assignments,
subleases, or mining contracts, a new lease or leases or contract of
extension or existing lease or leases as may be authorized by the
Secretary of the Interior may be entered into with the proper party or
parties as may be determined by said Secretary of the Interior, and such
new lease or leases or contract of extension of existing lease or leases
shall be executed subject to the regulations in this part by and between
the Indian owner of the land, if an adult and not incompetent as defined
in 215.0 (c), and said proper party or parties. If the Quapaw or other
Indian owner of the land is a minor or an otherwise incompetent as
defined in 215.0 (c), the superintendent shall execute the new lease or
leases or contract of extension of existing lease or leases for and on
behalf of said Indian minor or incompetent. Said new leases or
contracts of extension of old leases, whether executed by the Indian
owner of the land or by the superintendent for and in his behalf, shall
be subject to the approval of the Secretary of the Interior and shall
become effective only upon such approval. No offering for sale at
public auction or advertisement of sale will be necessary in reference
to contracts of extension of leases, or to leases entered into under
this section, as above provided, but such lease or contract shall be
upon such terms as to bonus and royalty as may be determined and fixed
in each case by the Secretary of the Interior under the provisions of
215.5. The approval by the Secretary of the Interior of new leases or of
the contracts of extension of old leases shall be conclusive as to the
validity of said leases, or contracts of extension of leases, the manner
and method of negotiating the same, and the execution thereof. If,
however, in any case where lands have heretofore been leased and lead
and zinc ores have been discovered thereon, it shall appear to the
Secretary of the Interior that the extension of the existing lease or
leases or the granting of new leases to the present lessees, or to the
persons or parties holding under said lessees by assignment, sublease,
or mining contract, would not be to the best interests of the Indian
owners of the land, the Secretary of the Interior may, at the
expiration, cancellation, or forfeiture of the existing lease, cause the
mining lease rights on said land to be offered for sale at public
auction to the highest bidder. If the lead and zinc mining lease on
said land be offered for sale at public auction, the same procedure
shall be followed as provided in 215.7 through 215.9.
(b) Applications under the provision of this section for a lease or
extension of lease or for the approval of such lease or extension of
lease will not be received or considered prior to the period of 1 year
next preceding the date of the expiration of such valid existing lease
or leases as may be on the land covered by such application.
(c) Applications under the provisions of this section for a lease or
extension of lease or for the approval of such lease or extension of
lease shall be filed with the superintendent of the Quapaw Agency at any
time within the period of 1 year next preceding the date of the
expiration of such valid existing lease or leases as may be on the land
covered by such application, and if the records of or papers in the
office of said superintendent or the records of the county court of
Ottawa County, Okla., indicate that there are any prior existing leases,
subleases, assignments of leases or mining contracts covering any of the
land applied for, the superintendent shall notify all persons having or
claiming any rights or interest in or under said prior existing leases,
subleases, assignments of leases, or mining contract concerning said
application for lease or extension of lease, and that they will be
allowed 10 days in which to file with the superintendent any objection
they may have to the allowance of the application or to the approval of
the new lease or extension of existing lease. If objection or protest
is made by any owner of the land or by any person claiming rights or
interests in or under existing lease, sublease, assignment of lease, or
mining contract, a reasonable time, not exceeding 20 days, shall be
allowed them in which to file their statement or brief in support of
their protest or objection, and a reasonable further time not exceeding
10 days shall be allowed the applicant for new lease or for extension of
existing lease to reply in support of the application. In case of
contest, hearings may be had if deemed necessary by the Secretary of the
Interior or his representative. The application and papers in each case
shall be forwarded by the superintendent of the Quapaw Indian Agency to
the Commissioner of Indian Affairs with his report and recommendation in
regard thereto.
25 CFR 215.11 New leases where prior leases have been forfeited or
abandoned.
In cases where the lands have heretofore been leased and lead and
zinc ores have been discovered but the mines and mining operations have
been abandoned and the leases have been canceled or forfeited or have
expired, special arrangements in the matter of the leasing and mining of
said lands may be made provided the consent thereto of the Secretary of
the Interior be first obtained. Applications containing special offers
as to the terms and conditions may be considered by the Secretary of the
Interior and the leasing of said lands may be made upon such special
terms and conditions as the Secretary of the Interior may in each case
deem to be for the best interests of the Indian owners of the land. If,
however, in any case, it shall appear to the Secretary of the Interior
that the granting of such lease would not be to the best interest of the
Indian owners of the land, the Secretary of the Interior may cause the
mining lease rights on said land to be offered for sale at public
auction to the highest bidder. If the lead and zinc mining lease on
said land be offered for sale at public auction, the same procedure
shall be followed as provided in 215.7 through 215.9.
25 CFR 215.12 Advertising costs.
All advertising costs, publication fees, expenses incurred for
abstracts of lease title, and other expenses incurred in connection with
the advertising and sale of leases and in connection with the execution
of lease contracts shall be borne by the lessee. In the event a lease
of the land is offered to the highest bidder and he fails or refuses to
execute such lease when duly notified and as required by or under the
regulations in this part, and no other bid is accepted, such costs,
fees, and expenses shall be paid from such money as he may have paid
with his bid. If no bid is tendered after a tract is advertised, or if
all bids are refused, said items of expenses shall be charged to the
Indian owner of the land and be paid by him or be paid by the
superintendent from any funds held by such superintendent to the credit
of such Indian owner of the land.
25 CFR 215.13 Bond.
Every mineral lease made and entered into under the regulations in
this part, by an Indian or by the superintendent as his representative
or in his behalf, must be accompanied by a surety bond, executed by the
lessee and by a responsible surety company or two or more satisfactory
sureties, guaranteeing the payment of all deferred installments of bonus
and the payment of all specified royalties and rentals and the
performance of all covenants and agreements undertaken by the lessee.
Such bonds, unless authorized by the Secretary of the Interior or his
authorized representative, with the consent of the Indian landowner,
shall be not less than the following amounts:
For less than 80 acres -- $2,500
For 80 acres and less than 120 acres -- 3,500
For 120 acres or more -- 5,000
Provided, however, That the lessee may, in lieu of such surety bond
and upon execution of a proper penal bond to the United States in the
sum prescribed and a proper power of attorney to the Secretary of the
Interior, submit therewith United States bonds or notes in the aggregate
sum prescribed as security for the carrying out of the terms,
conditions, and provisions of the lease: Provided further, That a
lessee may file in lieu of such individual lease bonds, one bond in a
sum to be fixed by the Secretary of the Interior covering all leases to
which he is or may become a party. The right is specifically reserved
to the Secretary of the Interior to require an increase of the amount of
any bond above the sum named in any particular case where he deems it
necessary to require such increased bond.
(26 FR 164, Jan. 10, 1961. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 215.14 Payments to be made to superintendent.
No bonus, rents, royalties, nor other payments accruing under any
mineral lease executed in accordance with or subject to the regulations
in this part and approved by the Secretary of the Interior shall be paid
direct to the Indian lessor; but all such bonus, rents, royalties, and
other payments accruing under any such lease shall be paid to the
superintendent for the benefit of the Indian lessors, to be deposited by
that officer to the credit of the superintendent in some bank designated
for the deposit of individual Indian moneys.
25 CFR 215.15 Leases to be accompanied by Form D.
Lead and zinc leases should be accompanied, when filed, with
application for approval (Form D)1025 made under oath, and said
application shall set forth the information therein required.
0251For further information concerning forms, see 215.19.
25 CFR 215.16 Requirements of corporate lessees.
(a) When the lessee is a corporation, its first application must be
accompanied by a sworn statement of its proper officers showing:
(1) The total number of shares of the capital stock actually issued
and, specifically, the amount of cash paid into the treasury on each
share sold; or, if paid in property, state kind, quantity, and value of
the same paid per share.
(2) Of the stock sold how much per share remains unpaid and subject
to assessment.
(3) How much cash the company has in its treasury and elsewhere and
from what source it was received.
(4) What property, exclusive of cash, is owned by the company and its
value.
(5) What the total indebtedness of the company is, and, specifically,
the nature of its obligations.
(b) Subsequent applications of the corporation should show briefly
the aggregate amounts of assets and liabilities.
25 CFR 215.17 Additional information required.
Corporations, with their first application, must file one certified
copy of articles of incorporation and, if a foreign corporation,
evidence showing compliance with local corporation laws; also a list
showing officers and stockholders, with post-office addresses and number
of shares held by each. Statements of any changes of officers or any
changes or additions of stockholders must be furnished to the Indian
superintendent on January 1 of each year and at any time when requested.
The right is reserved to the Secretary of the Interior to require of
individual stockholders affidavits setting forth in what companies or
with what persons or firms they are interested in lead and zinc mining
leases, or land under the jurisdiction of the Quapaw Indian Agency, and
whether they hold such stock for themselves or in trust. Evidence must
also be given in a single affidavit (Form I) by the Secretary of the
company or by the president of said company, showing authority of the
officers of the company to execute the lease, bond, and other papers.
25 CFR 215.18 Term of leases.
The term of lead and zinc mining leases executed pursuant to acts of
Congress and under the regulations in this part shall be for such period
of time as may be determined in each case by the Secretary of the
Interior, but in no case shall a lease be made to extend beyond the
restriction or trust period on the lands covered by such lease.
25 CFR 215.19 Forms. 2026
Application, leases, and other papers must be upon forms prescribed
by the Secretary of the Interior. Except as may be otherwise provided
and required by the Secretary of the Interior, the leases and other
papers required under the regulations in this part shall be in
conformity with the forms designated, respectively, as follows:
Form A. Lease of Quapaw Indian land.
Form B. For lease of Indian land other than Quapaw.
Form C. Application by Indian.
Form D. Application for approval of lease.
Form E. Affidavit of lessor (or of superintendent acting for him)
and affidavit of lessee.
Form F. Surety bond.
Form G. Affidavit of surety on personal bond.
Form H. Certificate as to sufficiency of surety on personal bond.
Form I. Affidavit as to authority of officers of corporation to
execute lease and other papers.
Form J. Penal bond (in lieu of surety bond), and accompanying power
of attorney.
Form K. Assignment of lead and zinc lease.
0262Forms may be obtained from the Commissioner of Indian Affairs,
Washington, D.C.
25 CFR 215.20 Assignment.
Leases granted or approved under the regulations in this part may be
assigned and the leased premises may be subleased or sublet, but only
with the consent and authority of the Secretary of the Interior and
subject to his approval as to the terms and conditions of such
assignments, sublease, and subletting contracts and not otherwise, and
provided also that the proposed assignees, sublessee, or sublettee shall
be qualified to hold such lease under the regulations in this part and
shall furnish such bond as may be required by the Secretary of the
Interior, such bond to be with responsible surety to the satisfaction of
the Secretary of the Interior and conditioned for the faithful
performance of the covenants and conditions of the lease. Upon the
filing with the Indian agent of such assignment, financial statement,
and bond, the said agent shall at once give notice in writing to all
restricted Indian owners of said land, advising them of said proposed
assignment, and that if they have any bona fide objections to same, such
objections must be filed in writing within 10 days from the date of said
notice.
25 CFR 215.21 Payment of gross production tax on lead and zinc.
The superintendent of the Quapaw Indian Agency is hereby authorized
and directed to pay at the appropriate times, from the respective
individual Indian funds held under his supervision, such gross
production tax due the State on production of lead and zinc from
restricted lands under his jurisdiction as may be properly assessed
under provisions of law against the royalty interests of the respective
Indian owners in the mineral produced from their lands.
25 CFR 215.22 Operations.
(a) All shafts shall be securely cribbed to a point at least 8 inches
above the immediate surrounding surface and cribbing shall be maintained
in good condition during the life of the mining lease: Provided,
however, That at any time shafts may be permanently sealed by a
reinforced concrete slab after first obtaining the written approval of
the duly authorized representative of the Department of the Interior.
The slab shall be so placed as to prevent caving of the ground around
the shaft collar.
(b) All shafts, prior to the expiration, surrender, or upon
cancellation of the mining lease or abandonment of the property, shall
be permanently sealed so as to prevent the caving of the ground around
the shaft collar: Provided, however, That this requirement may be
waived after first obtaining the written consent of the duly authorized
representative of the Department of the Interior.
(c) All shaft entrances not permanently sealed shall be so fenced,
boxed, or covered as to prevent persons or animals from falling into the
mine when the shaft is not in actual use, and such fencing, boxing, or
covering shall be maintained in good condition during the life of the
mining lease.
(d) All shafts where hoisting is done shall be boxed or fenced on
three sides and the fourth side equipped with a gate which shall be kept
closed when access to the shaft is not necessary.
(e) All churn drill holes shall be securely plugged to the surface
unless used for ventilation or other mining purposes, in which case they
shall be cased or otherwise prevented from caving or becoming a hazard
to persons or animals. If cased, the casing shall extend 4 feet above
the collar of the hole.
25 CFR 215.23 Cooperation between superintendent and district mining
supervisor.
(a) The district mining supervisor of the Miami field office,
Geological Survey, directly or through his assistants, shall receive
from lessees for the superintendent, all notices, reports, drill logs,
maps, and records, and all other information relating to mining
operations required by said regulations to be submitted by lessees, and
shall maintain a file thereof for the superintendent.
(b) The files of the Geological Survey supervisor relating to lead
and zinc leases of Quapaw Indian lands shall be at all times available
for inspection and use by authorized employees of the Bureau of Indian
Affairs, and the employees of the Geological Survey assigned to work
relating to Indian lands shall furnish to authorized employees of the
Bureau of Indian Affairs such information and technical advice as may be
necessary or appropriate to the most efficient cooperation in the
conduct of the work assigned to the two bureaus. Likewise, similar
facilities and service shall be provided for the benefit of the
authorized employees of the Geological Survey by the Bureau of Indian
Affairs.
(c) No orders of any kind will be issued by Geological Survey
representatives to any Indian, but such representatives shall have full
authority to issue and amend orders to operators relative to production
and operations: i.e., the supervision of all operations, including
safety and efficiency, health and sanitation, and prevention of material
or economic waste, such orders to be prepared with the advice of the
local representative of the Bureau of Indian Affairs.
Cross Reference: For regulations of the Geological Survey, see 30
CFR chapter II.
25 CFR 215.23a Suspension of operations and production on leases for
minerals other than oil and gas.
The provisions of 212.15a of this subchapter are applicable to
leases under this part.
(24 FR 9511, Nov. 26, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 215.24 Books and accounts.
(a) The lessee shall maintain books in which shall be kept a correct
account of all ore and rock mined on the tract, of all ore put through
the mill, of all lead and zinc concentrates produced, and of all ore and
concentrates sold and to whom sold, the weight, assay value, moisture
content, base price, dates, penalties, and price received, and the
percentage of lead and zinc recovered. A correct statement of the same
for each month shall be furnished the office of the district mining
supervisor pursuant to 215.23 not later than 15 days after the first of
each month for the preceding month, together with a certificate from the
smelter showing the unit price paid for the mineral purchased and the
amount of ore and concentrates purchased during the month from said
land.
(b) An audit of the lessee's accounts and books shall be made
semiannually, or at such other times as may be directed by the Secretary
of the Interior, by certified public accountants, approved by the
Secretary, and at the expense of the lessee. The lessee shall furnish
free of cost a copy of such semiannual or other audit, through the
office of the district mining supervisor pursuant to 215.23, within 30
days after the completion of each auditing.
25 CFR 215.25 Other minerals and deep-lying lead and zinc minerals.
Except as provided in 215.6(b), leases on Quapaw Indian lands, for
mining minerals other than lead and zinc and for lead and zinc and
associated minerals below the horizon of the rock stratum known as the
Reed Springs Formation, shall be made pursuant to the provisions of part
212 of this subchapter.
(26 FR 1910, Mar. 4, 1961. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 215.25 PART 216 -- SURFACE EXPLORATION, MINING, AND RECLAMATION OF LANDS
25 CFR 215.25 Subpart A -- General Provisions
Sec.
216.1 Purpose.
216.2 Scope.
216.3 Definitions.
216.4 Technical examination of prospective surface exploration and
mining operations.
216.5 Basis for denial of a permit or lease.
216.6 Approval of exploration plan.
216.7 Approval of mining plan.
216.8 Performance bond.
216.9 Reports.
216.10 Inspection: Notice of noncompliance: Revocation.
216.11 Appeals.
216.12 Consultation.
25 CFR 215.25 Subpart B -- Coal Operations
216.100 Applicability.
216.101 Definitions.
216.102 General obligations.
216.103 Signs and markers.
216.104 Postmining use of land.
216.105 Backfilling and grading.
216.106 Disposal of spoil and waste materials in areas other than the
mine workings or excavations.
216.107 Topsoil handling.
216.108 Protection of the hydrologic system.
216.109 Dams constructed of or impounding waste material.
216.110 Revegetation.
216.111 Steep-slope mining.
Authority: 34 Stat. 539, 35 Stat. 312; 25 U.S.C. 355 NT; 35 Stat
781; 25 U.S.C. 396; sec. 1, 49 Stat. 1250; 25 U.S.C. 473a; 49 Stat.
1967, 25 U.S.C. 501, 502; 52 Stat. 347, 25 U.S.C. 396a-f; 5 U.S.C.
301.
25 CFR 215.25 Subpart A -- General Provisions
Source: 34 FR 813, Jan. 18, 1969, unless otherwise noted.
Redesignated at 42 FR 63394, Dec. 16, 1977; and further redesignated
at 47 FR 13327, Mar. 30, 1982.
25 CFR 216.1 Purpose.
It is the policy of this Department to encourage the development of
the mineral resources underlying Indian lands where mining is
authorized. However, interest of the Indian owners and the public at
large requires that, with respect to the exploration for, and the
surface mining of, such minerals, adequate measures be taken to avoid,
minimize, or correct damage to the environment -- land, water, and air
-- and to avoid, minimize, or correct hazards to the public health and
safety. The regulations in this part prescribe procedures to that end.
25 CFR 216.2 Scope.
(a) Except as provided in paragraph (b) of this section, the
regulations in this part provide for the protection and conservation of
nonmineral resources during operations for the discovery, development,
surface mining, and onsite processing of minerals under permits or
leases issued pursuant to statutes pertaining to Indian lands including
but not limited to the following statutes or amendments thereto:
The Act of June 28, 1906 (34 Stat. 539);
The Act of May 27, 1908 (35 Stat. 312);
The Act of March 3, 1909 (35 Stat. 781, 25 U.S.C. 396);
The Act of May 1, 1936 (49 Stat. 1250);
The Act of June 26, 1936 (49 Stat. 1967);
The Act of May 11, 1939 (52 Stat. 347, 25 U.S.C. 396a-f, and 5 U.S.C.
301).
(b) The regulations in this part do not cover the exploration for oil
and gas or the issuance of leases, or operations thereunder, nor
minerals underlying lands, the surface of which is not owned by the
owner of the minerals.
(c) The regulations in this part shall apply only to permits or
leases issued subsequent to the date on which these regulations become
effective and which are subject to the approval of the Secretary of the
Interior or his designated representative.
25 CFR 216.3 Definitions.
As used in the regulations in the part:
(a) ''Superintendent'' means the superintendent or other officer of
the Bureau of Indian Affairs having jurisdiction under delegated
authority, over the lands involved.
(b) ''Mining supervisor'' means the Regional Mining Supervisor, or
his authorized representative, of the Geological Survey authorized as
provided in 30 CFR 211.3 and 231.2 to supervise operations on the land
covered by a permit or lease.
(c) ''Overburden'' means all the earth and other materials which lie
above a natural deposit of minerals and such earth and other materials
after removal from their natural state in the process of mining.
(d) ''Area of land to be affected'' or ''area of land affected''
means the area of land from which overburden is to be or has been
removed and upon which the overburden or waste is to be or has been
deposited, and includes all lands affected by the construction of new
roads or the improvement or use of existing roads to gain access to an
operation and for haulage.
(e) ''Operation'' means all of the premises, facilities, roads, and
equipment used in the process of determining the location, composition
or quality of a mineral deposit, or in developing, extracting, or onsite
processing of a mineral deposit in a designated area.
(f) ''Method of operation'' means the method or manner by which a cut
or open pit is made, the overburden is placed or handled, water is
controlled or affected and other acts performed by the operator in the
process of exploring or uncovering and removing or onsite processing of
a mineral deposit.
(g) ''Holder'' or ''operator'' means the permittee or lessee
designated in a permit or lease.
(h) ''Reclamation'' means measures undertaken to bring about the
necessary reconditioning or restoration of land or water that has been
affected by exploration or mineral development, mining or onsite
processing operations, and waste disposal, in ways which will prevent or
control onsite and offsite damage to the environment.
25 CFR 216.4 Technical examination of prospective surface exploration
and mining operations.
(a)(1) In connection with an application for a permit or lease, the
superintendent shall make, or cause to be made, a technical examination
of the prospective effects of the proposed exploration or surface mining
operations upon the environment. The technical examination shall take
into consideration the need for the preservation and protection of other
resources, including cultural, recreational, scenic, historic, and
ecological values; and control of erosion, flooding, and pollution of
water; the isolation of toxic materials; the prevention of air
pollution; the reclamation by revegetation, replacement of soil or by
other means, of lands affected by the exploration or mining operations;
the prevention of slides; the protection of fish and wildlife and their
habitat; and the prevention of hazards to public health and safety.
(2) A technical examination of an area should be made with the
recognition that actual potential mining sites and mining operations
vary widely with respect to topography, climate, surrounding land uses,
proximity to densely used areas, and other environmental influences and
that mining and reclamation requirements should provide sufficient
flexibility to permit adjustment to local conditions.
(b) Based upon the technical examination, the superintendent shall
formulate the general requirements which the applicant must meet for the
protection of nonmineral resources during the conduct of exploration or
mining operations and for the reclamation of lands or waters affected by
exploration or mining operations. The general requirements shall be
made known in writing to the applicant before the issuance of a permit
or lease and upon acceptance thereof by the applicant, shall be
incorporated in the permit or lease.
(c) In each instance in which an application is made the mining
supervisor shall participate in the technical examination and in the
formulation of the general requirements.
(d) The superintendent may prohibit or otherwise restrict operations
on any part of an area whenever it is determined that such part of the
area described in an application for a permit or lease is such that
previous experience under similar conditions has shown that operations
cannot feasibly be conducted by any known methods or measures to avoid
--
(1) Rock or landslides which would be a hazard to human lives or
endanger or destroy private or public property; or
(2) Substantial deposition of sediment and silt into streams, lakes,
reservoirs; or
(3) A lowering of water quality below standards established by the
appropriate State water pollution control agency, or by the Secretary of
the Interior, or his authorized representative; or
(4) A lowering of the quality of waters whose quality exceeds that
required by the established standards -- unless and until it has been
affirmatively demonstrated to the Secretary of the Interior, or his
authorized representative, that such lowering of quality is necessary to
economic and social development and will not preclude any assigned uses
made of such waters; or
(5) The destruction of key wildlife habitat or important scenic,
historical, or other natural or cultural features.
(e) If, on the basis of a technical examination, the superintendent
determines that there is a likelihood that there will be a lowering of
water quality as described in paragraphs (d) (3) and (4) of this section
caused by the operation, no lease or permit shall be issued until after
consultation with the Federal Water Pollution Control Administration and
a finding by the Administration that the proposed operation would not be
in violation of the Federal Water Pollution Control Act, as amended (33
U.S.C. 466 et seq.), or of Executive Order No. 11288 (31 FR 9261).
Where a permit or lease is involved the Superintendent's determination
shall be made in consultation with the mining supervisor.
25 CFR 216.5 Basis for denial of a permit or lease.
An application for a permit or lease to conduct exploratory or mining
operations may be denied any applicant who has forfeited a required bond
because of failure to comply with a mining plan. However, a permit or
lease may not be denied an applicant because of the forfeiture of a bond
if the lands disturbed under his previous permit or lease have
subsequently been reclaimed without cost to the lessor or the United
States.
25 CFR 216.6 Approval of exploration plan.
(a) Before commencing any surface disturbing operations to explore,
test or prospect for minerals, the operator shall file with the mining
supervisor a plan for the proposed exploration operations. The mining
supervisor shall consult with the superintendent with respect to the
surface protection and reclamation aspects before approving said plan.
(b) Depending upon the size and nature of the operation and the
requirements established pursuant to 216.4 the mining supervisor may
require that the exploration plan submitted by the operator include any
or all of the following:
(1) A description of the area within which exploration is to be
conducted;
(2) Two copies of a suitable map or aerial photograph showing
topographic, cultural and drainage features;
(3) A statement of proposed exploration methods; i.e., drilling,
trenching, etc., and the location of primary support roads and
facilities;
(4) A description of measures to be taken to prevent or control fire,
soil erosion, pollution of surface and ground water, damage to fish and
wildlife or other natural resources, and hazards to public health and
safety both during and upon abandonment of exploration activities.
(c) The mining supervisor shall promptly review the exploration plan
submitted to him by the operator and shall indicate to the operator any
changes, additions, or amendments necessary to meet the requirements
formulated pursuant to 216.4, the provisions of these regulations, and
the terms of the permit.
(d) The operator shall comply with the provisions of an approved
exploration plan. The mining supervisor may, with respect to such a
plan, exercise the authority provided by paragraphs (f) and (g) of
216.7 respecting a mining plan.
25 CFR 216.7 Approval of mining plan.
(a) Before surface mining operations may commence under any permit or
lease, the operator must file a mining plan with the mining supervisor
and obtain his approval of the plan. The mining supervisor shall
consult with the superintendent with respect to the surface protection
and reclamation aspects before approving said plan.
(b) Depending on the size and nature of the operation and the
requirements established pursuant to 216.4 the mining supervisor may
require that the mining plan submitted by the operator include any or
all of the following:
(1) A description of the location and area to be affected by the
operations;
(2) Two copies of a suitable map, or aerial photograph showing the
topography, the area covered by the permit or lease, the name and
location of major topographic and cultural features, and the drainage
plan away from the area affected;
(3) A statement of proposed methods of operating, including a
description of proposed roads or vehicular trails; the size and
location of structures and facilities to be built;
(4) An estimate of the quantity of water to be used and pollutants
that are expected to enter any receiving waters;
(5) A design for the necessary impoundment, treatment or control of
all runoff water and drainage from workings so as to reduce soil erosion
and sedimentation and to prevent the pollution of receiving waters;
(6) A description of measures to be taken to prevent or control fire,
soil erosion, pollution of surface and ground water, damage to fish and
wildlife, and hazards to public health and safety; and
(7) A statement of the proposed manner and time of performance of
work to reclaim areas disturbed by the holder's operation.
(c) In those instances in which the permit or lease requires the
revegetation of an area of land to be affected, the mining plan shall
show:
(1) Proposed methods of preparation and fertilizing the soil prior to
replanting;
(2) Types and mixtures of shrubs, trees, or tree seedlings, grasses
or legumes to be planted; and
(3) Types and methods of planting, including the amount of grasses or
legumes per acre, or the number and spacing of trees, or tree seedlings,
or combinations of grasses and trees.
(d) In those instances in which the permit or lease requires
regrading and backfilling, the mining plan shall show the proposed
methods and the timing of grading and backfilling of areas of land to be
affected by the operation.
(e) The mining supervisor shall review the mining plan submitted to
him by the operator and shall promptly indicate to the operator any
changes, additions, or amendments necessary to meet the requirements
formulated pursuant to 216.4, the provisions of these regulations and
the terms of the permit or lease. The operator shall comply with the
provisions of an approved mining plan.
(f) A mining plan may be changed by mutual consent of the mining
supervisor and the operator at any time to adjust to changed conditions
or to correct any oversight. To obtain approval of a change or
supplemental plan, the operator shall submit a written statement of the
proposed changes or supplement and the justification for the changes
proposed. The mining supervisor shall promptly notify the operator that
he consents to the proposed changes or supplement, or in the event he
does not consent, he shall specify the modifications thereto under which
the proposed changes or supplement would be acceptable. After mutual
acceptance of a change of a plan, the operator shall not depart
therefrom without further approval.
(g) If circumstances warrant or if development of a mining plan for
the entire operation is dependent upon unknown factors which cannot or
will not be determined except during the progress of the operations, a
partial plan may be approved and supplemented from time to time. The
operator shall not, however, perform any operation except under an
approved plan.
25 CFR 216.8 Performance bond.
(a) Upon approval of an exploration plan or mining plan, the operator
shall be required to file a suitable performance bond of not less than
$2,000 with satisfactory surety, payable to the Secretary of the
Interior, and the bond shall be conditioned upon the faithful compliance
with applicable regulations, the terms and conditions of the permit,
lease, or contract, and the exploration or mining plan as approved,
amended or supplemented. The bond shall be in an amount sufficient to
satisfy the reclamation requirements established pursuant to an approved
exploration or mining plan, or an approved partial or supplemental plan.
In determining the amount of the bond consideration shall be given to
the character and nature of the reclamation requirements and the
estimated costs of reclamation in the event that the operator forfeits
his performance bond. In lieu of a surety bond an operator may elect to
deposit cash or negotiable bonds of the U.S. government. The cash
deposit or the market value of such securities shall be equal at least
to the required sum of the bond.
(b) In a particular instance where the circumstances are such as to
warrant an exception, the amount of the bond for a particular operation
may be reduced to less than the required minimum of $2,000.
(c) The superintendent shall set the amount of a bond and take the
necessary action for an increase or for a complete or partial release of
a bond. He shall take action with respect to bonds for leases or
permits only after consultation with the mining supervisor.
25 CFR 216.9 Reports.
(a) Within 30 days after the end of each calendar year, or if
operations cease before the end of a calendar year, within 30 days after
the cessation of operations, the operator shall submit an operations
report to the mining supervisor containing the following information:
(1) An identification of the permit or lease and the location of the
operation.
(2) A description of the operations performed during the period of
time for which the report is filed.
(3) An identification of the area of land affected by the operations
and a description of the manner in which the land has been affected.
(4) A statement as to the number of acres disturbed by the operations
and the number of acres which were reclaimed during the period of time.
(5) A description of the method utilized for reclamation and the
results thereof.
(6) A statement and description of reclamation work remaining to be
done.
(b) Upon completion of such grading and backfilling as may be
required by an approved exploration or mining plan, the operator shall
make a report thereon to the mining supervisor and request inspection
for approval. Whenever it is determined by such inspection that
backfilling and grading have been carried out in accordance with the
established requirements and approved exploration or mining plan, the
superintendent shall issue a release of an appropriate amount of the
performance bond for the area graded and backfilled. Appropriate
amounts of the bond shall be retained to assure that satisfactory
planting, if required, is carried out.
(c)(1) Whenever planting is required by an approved exploration or
mining plan, the operator shall file a report with the superintendent
whenever such planting is completed. The report shall --
(i) Identify the permit or lease;
(ii) Show the type of planting or seeding, including mixtures and
amounts;
(iii) Show the date of planting or seeding;
(iv) Identify or describe the areas of the lands which have been
planted;
(v) Contain such other information as may be relevant.
(2) The superintendent, as soon as possible after the completion of
the first full growing season, shall make an inspection and evaluation
of the vegetative cover and planting to determine if a satisfactory
growth has been established.
(3) If it is determined that a satisfactory vegetative cover has been
established and is likely to continue to grow, any remaining portion of
the surety bond may be released if all requirements have been met by the
operator.
(d)(1) Not less than 30 days prior to cessation or abandonment of
operations, the operator shall report to the mining supervisor his
intention to cease or abandon operations, together with a statement of
the exact number of acres of land affected by his operations, the extent
of reclamation accomplished and other relevant information.
(2) Upon receipt of such report an inspection shall be made to
determine whether operations have been carried out in accordance with
the approved exploration or mining plan.
25 CFR 216.10 Inspection: Notice of noncompliance: Revocation.
(a) The mining supervisor and superintendent shall have the right to
enter upon the lands under a permit or lease, at any reasonable time,
for the purpose of inspection or investigation to determine whether the
terms and conditions of the permit or lease and the requirements of the
exploration or mining plan have been complied with.
(b) If the mining supervisor determines that an operator has failed
to comply with the terms and conditions of a permit or lease, or with
the requirements of an exploration or mining plan, or with the
provisions of applicable regulations, the superintendent shall serve a
notice of noncompliance upon the operator by delivery in person to him
or his agent or by certified or registered mail addressed to the
operator at his last known address.
(c) A notice of noncompliance shall specify in what respects the
operator has failed to comply with the terms and conditions of a permit
or lease or the requirements of an exploration or mining plan, or the
provisions of applicable regulations, and shall specify the action which
must be taken to correct the noncompliance and the time limits within
which such action must be taken.
(d) Failure of the operator to take action in accordance with the
notice of noncompliance shall be grounds for suspension by the mining
supervisor of operations or for the initiation of action for the
cancellation of the permit or lease and for forfeiture of the surety
bond required under 216.8.
25 CFR 216.11 Appeals.
An applicant, permittee, lessee, or lessor aggrieved by a decision or
order of a mining supervisor or superintendent may appeal such decision
or order. An appeal from a decision or order of a superintendent shall
be made pursuant to 25 CFR part 2. An appeal from a decision or order
of a mining supervisor shall be made pursuant to 30 CFR parts 211 and
231.
25 CFR 216.12 Consultation.
A superintendent shall consult with the Indian landowner with respect
to actions he proposes to take under 216.4, 216.6, 216.7, 216.9, and
216.10.
25 CFR 216.12 Subpart B -- Coal Operations
Authority: Secs. 201, 501, Pub. L. 95-87, 91 Stat. 445 (30 U.S.C.
1201) (25 U.S.C. 396d).
Source: 42 FR 63395, Dec. 16, 1977, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 216.100 Applicability.
(a) The performance standards in this subpart shall apply to each
coal mining operation on Indian lands on or after December 16, 1977, and
shall remain applicable to each operation until OSM issues or denies a
permit in accordance with 30 CFR part 750.
(b) The requirements of this subpart shall be incorporated in all
existing and new contracts entered into for coal mining on Indian lands.
(42 FR 63395, Dec. 16, 1977. Redesignated at 47 FR 13327, Mar. 30,
1982 and amended at 49 FR 38476, Sept. 28, 1984)
25 CFR 216.101 Definitions.
As used throughout the regulations in this subpart, except where
otherwise indicated:
Acid drainage means water with a pH of less than 6.0 discharged from
active or abandoned mines and from areas affected by coal mining
operations.
Acid-forming materials means earth materials that contain sulfide
mineral or other materials which, if exposed to air, water, or
weathering processes, will cause acids that may create acid drainage.
Act means the Surface Mining Control and Reclamation Act of 1977,
(Pub. L. 95-87).
Alluvial valley floors means unconsolidated stream-laid deposits
holding streams where water availability is sufficent for subirrigation
or flood irrigation agricultural activities but does not include upland
areas which are generally overlain by a thin veneer of colluvial
deposits composed chiefly of debris from sheet erosion, deposits by
unconcentrated runoff or slope wash, together with talus, other mass
movement accumulation and windblown deposits.
Approximate original contour means that surface configuration
achieved by backfilling and grading of the mined area so that the
reclaimed area, including any terracing or access roads, closely
resembles the general surface configuration of the land prior to mining
and blends into and complements the drainage pattern of the surrounding
terrain, with all highwalls and spoil piles eliminated; water
impoundments may be permitted where the regulatory authority determines
that they are in compliance with 216.108.
Aquifer means a zone, stratum, or group of strata that can store and
transmit water in sufficient quantities for a specific use.
Auger mining means a method of mining coal at a cliff or highwall by
drilling holes laterally into an exposed coal seam from the highwall and
transporting the coal along an auger bit to the surface.
Coal means combustible carbonaceous rock, classified as anthracite,
bituminous, subbituminous, or lignite by A.S.T.M. designation
0-388-666.
Combustible material means organic material that is capable of
burning either by fire or through a chemical process (oxidation)
accompanied by the evolution of heat and a significant temperature rise.
Compaction means the reduction of pore spaces among the particles of
soil or rock, generally done by running heavy equipment over the earth
materials.
Director means the Director, Office of Surface Mining Reclamation and
Enforcement, or his representative.
Disturbed area means those lands that have been affected by surface
coal mining and reclamation operations.
Diversion means a channel embankment, or other manmade structure
constructed for the purpose of diverting water from one area to another.
Downslope means the land surface between a valley floor and the
projected outcrop of the lowest coalbed being mined along each highwall.
Embankment means an artificial deposit of material that is raised
above the natural surface of the land and used to contain, divert, or
store water, support roads or railways, or other similar purposes.
Essential hydrologic functions means, with respect to alluvial valley
floors, the role of the valley floor in collecting, storing, and
regulating the natural flow of surface water and ground water, and in
providing a place for irrigated and subirrigated farming, by reason of
its position in the landscape and the characteristics of its underlying
material.
Flood irrigation means irrigation through natural overflow or the
temporary diversion of high flows in which the entire surface of the
soil is covered by a sheet of water.
Ground water means subsurface water that fills available openings in
rock or soil materials such that they may be considered water-saturated.
Highwall means the face of exposed overburden and coal in an open cut
of a surface or underground coal mine.
Hydrologic balance means the relationship between the quality and
quantity of inflow to, outflow from, and storage in a hydrologic unit
such as a drainage basin, aquifer, soil zone, lake, or reservoir. It
encompasses the quantity and quality relationships between
precipitation, runoff, evaporation, and the change in ground and surface
water storage.
Hydrologic regime means the entire state of water movement in a given
area. It is a function of the climate, and includes the phenomena by
which water first occurs as atmospheric water vapor passes into a liquid
or solid form and falls as precipitation, moves thence along or into the
ground surface, and returns to the atmosphere as vapor by means of
evaporation and transpiration.
Imminent danger to the health and safety of the public means the
existence of any condition, or practice, or any violation of a permit or
other requirement of the Act in a surface coal mining and reclamation
operation, which condition, practice, or violation could reasonably be
expected to cause substantial physical harm to persons outside the
permit area before such condition, practice, or violation can be abated.
A reasonable expectation of death or serious injury before abatement
exists if a rational person, subjected to the same condition or practice
giving rise to the peril, would not expose himself or herself to the
danger during the time necessary for abatement.
Impoundment means a closed basin formed naturally or artificially
built, which is dammed or excavated for the retention of water,
sediment, or waste.
Indian lands means all lands, including mineral interest, within the
exterior boundaries of any Federal Indian reservation, notwithstanding
the issuance of any patent, and including rights-of-way, and all lands
including mineral interests held in trust for or supervised by an Indian
tribe.
Indian Tribe means any Indian Tribe, band, group or community having
a governing body recognized by the Secretary.
Intermittent or perennial stream means a stream or part of a stream
that flows continuously during all (perennial) or for at least one month
(intermittent) of the calendar year as a result of groundwater discharge
or surface runoff. The term does not include an ephemeral stream which
is one that flows for less than one month of a calendar year and only in
direct response to precipitation in the immediate watershed and whose
channel bottom is always above the local water table.
Leachate means a liquid that has percolated through soil, rock, or
waste and has extracted dissolved or suspended materials.
Noxious plants means species that have been included on official
State lists of noxious plants for the State in which the operation
occurs.
Office means the Office of Surface Mining Reclamation and Enforcement
established under Title II of the Act.
Operator means any person, partnership or corporation engaged in coal
mining who removes or intends to remove more than 250 tons of coal from
the earth by mining within 12 consecutive calendar months in any one
location.
Outslope means the exposed area sloping away from a bench or terrace
being constructed as a part of a surface coal mining and reclamation
operation.
Overburden means material of any nature, consolidated or
unconsolidated, that overlies a coal deposit, excluding topsoil.
Permit means an approval by the Secretary of the Interior to conduct
surface coal mining and reclamation operations on Indian lands.
Permittee means a person holding a permit to conduct surface coal
mining and reclamation operations on Indian lands.
Person means an individual, partnership, association, society, joint
stock company, firm, company, corporation, or other business
organization.
Productivity means the vegetative yield produced by a unit area for a
unit of time.
Recharge capacity means the ability of the soils and underlying
materials to allow precipitation and runoff to infiltrate and reach the
zone of saturation.
Recurrence interval means the precipitation event expected to occur,
on the average, once in a specified interval. For example, the 10-year
24-hour precipitation event would be that 24-hour precipitation event
expected to be exceeded on the average once in 10 years. Magnitude of
such events are as defined by the National Weather Service Technical
Paper No. 40, ''Rainfall Frequency Atlas of the U.S.,'' May 1961, and
subsequent amendments or equivalent regional or rainfall probability
information developed therefrom.
Regulatory Authority means the Secretary.
Roads means access and haul roads constructed, used, reconstructed,
improved, or maintained for use in surface coal mining and reclamation
operations, including use by coal-hauling vehicles leading to transfer,
processing, or storage areas. The term includes any such road used and
not graded to approximate original contour within 45 days of
construction other than temporary roads used for topsoil removal and
coal haulage roads within the pit area. Roads maintained with public
funds such as all Federal, State, tribal, and county roads are excluded.
Runoff means precipitation that flows overland before entering a
defined stream channel and becoming streamflow.
Safety factor means the ratio of the available shear strength to the
developed shear stress on a potential surface of sliding determined by
accepted engineering practice.
Secretary means the Secretary of the Interior or his representative.
Sediment means undissolved organic and inorganic material transported
or deposited by water.
Sedimentation pond means any natural or artificial structure or
depression used to remove sediment from water and store sediment or
other debris.
Significant imminent environmental harm to land, air or waste
resources is determined as follows:
(i) An environmental harm is any adverse impact on land, air, or
water resources, including plant and animal life.
(ii) An environmental harm is imminent if a condition, practice or
violation exists which (a) is causing such harm or (b) may reasonably be
expected to cause such harm at any time before the end of the reasonable
abatement time that would be set under 216.123(b) of these regulations.
(iii) An environmental harm is significant if that harm is
appreciable and not immediately reparable.
Slope means average inclination of a surface, measured from the
horizontal. Normally expressed as a unit of vertical distance to a
given number of units of horizontal distance (eg., 1v to 5h=20
percent=11.3 degrees).
Soil horizons means contrasting layers of soil lying one below the
other, parallel or nearly parallel to the land surface soil. It is the
part of the soil in which basis of field characteristics and laboratory
data. The three major soil horizons are --
(1) A horizon. The uppermost layer in the soil profile often called
the surface soil. It is the part of the soil in which organic matter is
most abundant, and where leaching of soluble or suspended particles is
the greatest.
(2) B horizon. The layer immediately beneath the A horizon and often
called the subsoil. This middle layer commonly contains more clay,
iron, or aluminum than the A or C horizons.
(3) C horizon. The deepest layer of the soil profile. It consists
of loose material or weathered rock that is relatively unaffected by
biologic activity.
Spoil means overburden that has been removed during surface mining.
Stabilize means any method used to control movement of soil, spoil
piles, or areas of disturbed earth and includes increasing bearing
capacity, increasing shear strength, draining, compacting, or
revegetating.
Subirrigation means irrigation of plants with water delivered to the
roots from underneath.
Surface Coal Mining Operations means: (a) Activities conducted on
the surface of lands in connection with a surface coal mine and surface
impacts incident to an underground coal mine. Such activities include
excavation for the purpose of obtaining coal including such common
methods as contour, strip, auger, mountaintop removal, box cut, open
pit, and area mining, the uses of explosives and blasting, and in situ
distillation or retorting, leaching or other chemical or physical
processing, and the cleaning, concentrating, or other processing or
preparation, loading of coal for commerce at or near the mine site:
Provided, however, That such activities do not include the extraction of
coal incidental to the extraction of other minerals where coal does not
exceed 16 2/3 per centum of the tonnage of minerals removed for purposes
of commercial use or sale, or coal exploration; and (b) the areas upon
which such activities occur or where such activities disturb the natural
land suface. Such areas shall also include any adjacent land, the use
of which is incidental to any such activities, all lands affected by the
construction of new roads or the improvement or use of existing roads to
gain access to the site of such activities and for haulage and
excavation, workings, impoundments, dams, ventilation shafts, entryways,
refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm
banks, tailings, holes or depressions, repair areas, storage areas,
processing areas, shipping areas and other areas upon which are sited
structures, facilities, or other property or material on the surface,
resulting from or incident to such activities.
Surface coal mining and reclamation operations means surface coal
mining operations and all activities necessary and incidental to the
reclamation of such operations. This term includes the term ''surface
coal mining operations.''
Surface water means water, either flowing or standing, on the surface
of the earth.
Suspended solids means organic or inorganic materials carried or held
in suspension in water that will remain on a 0.45 micron filter.
Ton means 2,000 pounds avoirdupois (.90718 metric ton).
Toxic-forming materials means earth materials or wastes which, if
acted upon by air, water, weathering, or microbiological processes, are
likely to produce chemical or physical conditions in soils or water that
are detrimental to biota or uses of water.
Toxic-mine drainage means water that is discharged from active or
abandoned mines and from other areas affected by coal mining operations
and which contains a substance which through chemical action or physical
effects is likely to kill, injure, or impair biota commonly present in
the area that might be exposed to it.
Valley fill and head-of-hollow fill means a structure consisting of
any materials other than waste placed so as to encroach upon or obstruct
to any degree any natural stream channel other than those minor channels
located on highland areas where overland flow in natural rills and
gullies is the predominant form of runoff. Such fills are normally
constructed in the uppermost portion of a V-shaped valley in order to
reduce the upstream drainage area (head-of-hollow fills). Fills located
further downstream (valley fills) must have larger diversion structures
to minimize infiltration. Both fills are characterized by rock
underdrains and are constructed in compacted lifts from the toe to the
upper surface in a manner to promote stability.
Waste means earth materials, which are combustible, physically
unstable, or acid-forming or toxic-forming, wasted or otherwise
separated from product coal and are slurried or otherwise transported
from coal processing facilities or preparation plants after physical or
chemical processing, cleaning, or concentrating of coal.
Water table means upper surface of a zone of saturation, where the
body of ground water is not confined by an overlying impermeable zone.
25 CFR 216.102 General obligations.
(a) Authorizations to operate. A copy of all current permits,
licenses, approved plans or other authorizations operate the mine shall
be available for inspection at or near the mine site.
(b) Mine maps. Any person conducting surface coal mining and
reclamation operations on and after Dec. 16, 1977, shall submit two
copies of an accurate map of the mine and permit area at a scale of
1:6000 or larger. The maps shall show as of Dec. 16, 1977, the lands
from which coal has not yet been removed, and the lands and structures
which have been used or disturbed to facilitate mining. One copy of the
mine map shall be submitted to the appropriate agency of the local
governing Indian Tribe, and one copy shall be submitted to the
appropriate Regional Director, OSM, before March 16, 1978.
25 CFR 216.103 Signs and markers.
(a) Specifications. All signs required to be posted shall be of a
standard design that can be seen and read easily and shall be made of
durable material. The signs and other markers shall be maintained
during all operations to which they pertain and shall conform to local
ordinances and codes.
(b) Mine and permit identification signs. Signs identifying the mine
area shall be displayed at all points of access to the permit area from
public roads and highways. Signs shall show the name, business address,
and telephone number of the permittee and identification numbers of
current mining and reclamation permits or other authorizations to
operate. Such signs shall not be removed until after release of all
bonds.
(c) Perimeter markers. The perimeter of the permit area shall be
clearly marked by durable and easily recoginzed markers, or by other
means approved by the regulatory authority.
(d) Buffer zone markers. Buffer zones as defined in 216.108 shall
be marked in a manner consistent with the perimeter markers along the
interior boundary of the buffer zone.
(e) Blasting signs. If blasting is necessary to conduct surface coal
mining operations, signs reading ''Blasting Area'' shall be displayed
conspicuously at the edge of blasting areas along access and haul roads
within the mine property. Signs reading ''Blasting Area'' and
explaining the blasting warning and all-clear signals shall be posted at
all entrances to the permit area.
(f) Topsoil markers. Where topsoil or other vegetation-supporting
material is segregated and stockpiled according to 216.107(c), the
stockpiled material shall be marked. Markers shall remain in place
until the material is removed.
25 CFR 216.104 Postmining use of land.
(a) General. All disturbed areas shall be restored in a timely
manner (1) to conditions that are capable of supporting the uses which
they were capable of supporting before any mining, or (2) to higher or
better uses achievable under criteria and procedures of paragraph (d) of
this section.
(b) Determining premining use of land. The premining uses of land to
which the postmining land use is compared shall be those uses which the
land previously supported if the land had not been previously mined and
had been properly managed.
(1) The postmining land use for land that has been previously mined
and not reclaimed shall be judged on the basis of the highest and best
use that can be achieved and is compatible with surrounding areas.
(2) The postmining land use for land that has received improper
management shall be judged on the basis of the premining use of
surrounding lands that have received proper management.
(3) If the premining use of the land was changed within 5 years of
the beginning of mining, the comparison of postmining use to premining
use shall include a comparison with the historic use of the land as well
as its use immediately preceding mining.
(c) Land-use categories. Land use is categorized in the following
groups. Change from one to another land use category in premining to
postmining constitutes an alternate land use and the permittee shall
meet the requirements of paragraph (d) of this section and all other
applicable environmental protection performance standards of this part.
(1) Heavy industry. Manufacturing facilities, powerplants, airports
or similar facilities.
(2) Light industry and commercial services. Office buildings,
stores, parking facilities, apartment houses, motels, hotels, or similar
facilities.
(3) Public services. Schools, hospitals, churches, libraries,
water-treatment facilities, solid-waste disposal facilities, public
parks and recreation facilities, major transmission lines, major
pipelines, highways, underground and surface utilities, and other
servicing structures and appurtenances.
(4) Residential. Single- and multiple-family housing (other than
apartment houses) with necessary support facilities. Support facilities
may include commercial services incorporated in and comprising less than
5 percent of the total land area of housing capacity, associated open
space, and minor vehicle parking and recreation facilities supporting
the housing.
(5) Cropland. Land used primarily for the production of cultivated
and close-growing crops for harvest alone or in association with sod
crops. Land used for facilities in support of farming operations are
included.
(6) Rangeland. Includes rangelands and forest lands which support a
cover of herbaceous or scrubby vegetation suitable for grazing or
browsing use.
(7) Hayland or pasture. Land used primarily for the long-term
production of adapted, domesticated forage plants to be grazed by
livestock or cut and cured for livestock feed.
(8) Forest land. Land with at least a 25 percent tree canopy or land
at least 10 percent stocked by forest trees of any size, including land
formerly having had such tree cover and that will be naturally or
artificially reforested.
(9) Impoundments of water. Land used for storing water for
beneficial uses such as stock ponds, irrigation, fire protection,
recreation, or water supply.
(10) Fish and wildlife habitat and recreation lands. Wetlands fish
and wildlife habitat, and areas managed primarily for fish and wildlife
or recreation.
(11) Combined uses. Any appropriate combination of land uses where
one land use is designated as they primary land use and one or more
other land uses are designated as secondary land uses.
(d) Criteria for approving alternative postmining use of land. An
alternative postmining land use shall be approved by the regulatory
authority, after consultation with the landowner or the land-management
agency on Federal lands, if the following criteria are met.
(1) The proposed land use is compatible with adjacent land use and,
where applicable, with existing Tribal and Federal land use policies and
plans.
A written statement of the views of the authorities with statutory
responsibilities for land use policies and plans shall accompany the
request for approval. The permittee shall obtain any required approval
of Tribal or Federal land management agencies, including any necessary
zoning or other changes necessarily required for the final land use.
(2) Specific plans have been prepared which show the feasibility of
the proposed land use as related to needs, projected land use trends,
and markets and that include a schedule showing how the proposed use
will be developed and achieved within a reasonable timne after mining
and be sustained. The regulatory authority may require appropriate
demonstrations to show that the planned procedures are feasible,
reasonable, and integrated with mining and reclamation, and that the
plans will result in successful reclamation.
(3) Provision of any necessary public facilities is assured as
evidenced by letters of commitment from parties other than the
permittee, as appropriate, to provide them in a manner compatible with
the permittee's plans.
(4) Specific and feasible plans for financing attainment and
maintenance of the postmining land use including letters of commitment
from parties other than the permittee as approprate, if the postmining
land use to be developed by such parties.
(5) The plans are designed under the general supervision of a
regiatered professional engineer, or other appropriate professional, who
will ensure that the plans conform to applicable accepted standards for
adequate accepted standards for adequate land stability, drainage, and
vegetative cover, and aesthetic design appropriate for the postmining
use of the site.
(6) The proposed use or uses will neither present actual or probable
hazard to public health or safety nor will they pose any actual or
probable threat of water flow diminution or pollution.
(7) The use or uses will not involve unreasonable delays in
reclamation.
(8) Necessary approval of measures to prevent or mitigate adverse
effects on fish and wildlife has been obtained from the regulatory
authority and appropriate Tribal and Federal fish and wildlife
management agencies.
(9) Proposals to change premining land uses of range, fish and
wildlife habitat, forest land, hayland, or pasture to a postmining
cropland use, where the cropland would require continuous maintenance
such as seeding, plowing, cultivation, fertilization, or other simiar
practices to be practicable or to comply with applicable Federal and
Tribal laws, shall be reviewed by the regulatory authority to assure
that:
(i) There is a firm written commitment by the permittee or by the
landowner or land manager to provide sufficient crop management after
release of applicable performance bonds to assure that the proposed
postmining cropland use remains practical and reasonable;
(ii) There is sufficient water available and committee to maintain
crop production; and
(iii) Topsoil quality and depth are shown to be sufficient to support
the proposed use.
(10) The regulatory authority has provided by public notice not less
than 45 days nor more than 60 days for interested citizens and Tribal
and Federal agencies to review and comment on the proposed land use.
25 CFR 216.105 Backfilling and grading.
In order to achieve the approximate original contour, the permittee
shall, except as provided in this section, transport, backfill, compact
(where advisable to ensure stability or to prevent leaching of toxic
materials), and grade all spoil material to eliminate all highwalls,
spoil piles, and depressions. Cut-and-fill terraces may be used only in
those situations expressly identified in this section. The postmining
graded slopes must approximate the premining natural slopes in the area
as defined in paragraph (a) of this section.
(a) Slope measurements. (1) To determine the natural slopes of the
area before mining, sufficient slopes to adequately represent the land
surface configuration, and as approved by the regulatory authority in
accordance with site conditions, must be accurately measured and
recorded. Each measurement shall consist of an angle of inclination
along the prevailing slope extending 100 linear feet above and below or
beyond the coal outcrop or the area to be disturbed; or, where this is
impractical, at locations specified by the regulatory authority. Where
the area has been previously mined, the measurements shall extend at
least 100 feet beyond the limits of mining disturbances as determined by
the regulatory authority to be representative of the premining
configuration of the land. Slope measurements shall take into account
natural variations in slope so as to provide accurate representation of
the range of natural slopes and shall reflect geomorphic differences of
the area to be disturbed. Slope measurements may be made from
topographic maps showing contour lines, having sufficient detail and
accuracy consistent with the submitted mining and reclamation plan.
(2) After the disturbed area has been graded, the final graded slopes
shall be measured at the beginning and end of lines established on the
prevailing slope at locations representative of premining slope
conditions and approved by the regulatory authority. These measurements
must not be made so as to allow unacceptably steep slopes to be
constructed.
(b) Final graded slopes. (1) The final graded slopes shall not
exceed either the approximate premining slopes as determined according
to paragraph (a)(1) of this section and approved by the regulatory
authority or any lesser slope specified by the regulatory authority
based on consideration of soil, climate, or other characteristics of the
surrounding area. Postmining final graded slopes need not be uniform.
The requirements of this paragraph may be modified by the regulatory
authority where the mining is reaffecting previously mined lands that
have not been restored to the standards of this section and sufficient
spoil is not available to return to the slope determined according to
paragraph (a)(1) of this section. Where such modifications are
approved, the permittee shall, as a minimum, be required to:
(i) Retain all overburden and spoil on the solid portion of existing
or new benches; and
(ii) Backfill and grade to the most moderate slope possible to
eliminate the highwall which does not exceed the angle of repose or such
lesser slopes as is necessary to assure stability.
(2) On approval by the regulatory authority and in order to conserve
soil moisture, ensure stability, and control erosion on final graded
slopes, cut-and-fill terraces may be allowed if the terraces are
compatible with the postmining land use approved under 216.104, and are
appropriate substitutes for construction of lower grades on the
reclaimed lands. The terraces shall meet the following requirements:
(i) The width of the individual terrace bench shall not exceed 20
feet unless specifically approved by the regulatory authority as
necessary for stability, erosion control, or roads included in the
approved postmining land use plan.
(ii) The vertical distance between terraces shall be as specified by
the regulatory authority to prevent excessive erosion and to provide
long-term stability.
(iii) The slope of the terrace outslope shall not exceed 1v:2h (50
percent). Outslopes which exceed 1v:2h (50 percent) may be approved if
they have a minimum static safety factor of more than 1.5 and provide
adequate control over erosion and closely resemble the surface
configuration of the land prior to mining. In no case may highwalls be
left as part of terraces.
(iv) Culverts and underground rock drains shall be used on the
terrace only when approved by the regulatory authority.
(3) All operations on steep slopes of 20 degrees or more or on such
lesser slopes as the regulatory authority defines as a steep slope shall
meet the provisions of 216.111 of this part.
(c) Mountaintop removal. The requirements of this paragraph shall
apply to surface mining operations which remove entire coal seams in the
upper part of a mountain, ridge, or hill by removing all of the
overburden, and where the requirements for achieving the approximate
original contour of this section cannot be met. Final graded top
plateau slopes on the mined area shall be less than 1v:5h so as to
create a level plateau or gently rolling configuration and the outslopes
of the plateau shall not exceed 1v:2h, except where engineering data
substantiates and the regulatory authority finds that a minimum static
safety factor of 1.5 (or higher factors specified by the regulatory
authority) will be attained. Although the area need not be restored to
approximate original contour, all highwalls, spoil piles, and
depressions except as provided in paragraphs (d) and (e) of this section
shall be eliminated.
(d) Small depressions. The requirement of this section to achieve
approximate original contour does not prohibit construction of small
depressions if they are approved by the regulatory authority to minimize
erosion, conserve soil moisture or promote revegetation. These
depressions shall be compatible with the approved postmining land use
and shall not be inappropriate substitutes for construction of lower
grades on the reclaimed lands. Depressions approved under this section
shall have a holding capacity of less than 1 cubic yard of water or, if
it is necessary that they be larger, shall not restrict normal access
throughout the area or constitute a hazard. Large, permanent
impoundments shall be governed by paragraph (e) of this section and by
216.108.
(e) Permanent impoundments. Permanent impoundments may be retained
in mined and reclaimed areas provided all highwalls are eliminated by
grading to appropriate contour and the provisions for postmining land
use ( 216.104) and protection of the hydrologic balance ( 216.108) are
met. No impoundments shall be constructed on top of areas in which
excess materials are deposited pursuant to 216.106 of this part.
Impoundments shall not be used to meet the requirements of paragraph (j)
of this section.
(f) Definition of thin and thick restored overburden. The thin
overburden provisions of paragraph (g) of this section may apply only
where the final thickness is less than 0.8 of the initial thickness.
The thick overburden provisions of paragraph (h) of this section may
apply only where the final thickness is greater than 1.2 of the initial
thickness. Initial thickness is the sum of the overburden thickness and
coal thickness. Final thickness is the product of the overburden
thickness times the bulking factor to be determined for each mine area.
The provisions of paragraphs (g) and (h) of this section apply only when
operations cannot be carried out to comply with the requirements of
paragraph (a) of this section to achieve the approximate original
contour.
(g) Thin overburden. In surface coal mining operations carried out
continuously in the same limited pit area for more than 1 year from the
day coal-removal operations begin and where the volume of all available
spoil and suitable waste materials is demonstrated to be insufficient to
achieve approximate original contour, surface coal mining operations
shall be conducted to meet, at a minimum, the following standards:
(1) Transport, backfill, and grade, using all available spoil and
suitable waste materials from the entire mine area, to attain the lowest
practicable stable grade, which may not exceed the angle of repose, and
to provide adequate drainage and long-term stability of the regraded
areas.
(2) Eliminate highwalls by grading or backfilling to stable slopes
not exceeding lv:2h (50 percent), or such lesser slopes as the
regulatory authority may specify to reduce erosion, maintain the
hydrologic balance, or allow the approved postmining land use.
(3) Transport, backfill, grade, and revegetate to achieve an
ecologically sound land use compatible with the prevailing land use in
unmined areas surrounding the permit area.
(4) Transport, backfill, and grade to ensure the impoundments are
constructed only where it has been demonstrated to the regulatory
authority's satisfaction that all requirements of 216.108 have been met
and that the impoundments have been approved by the regulatory authority
as meeting the requirements of this part and all other applicable
Federal and Tribal regulations.
(h) Thick overburden. In surface coal mining operations where the
volume of spoil is demonstrated to be more than sufficient to achieve
the approximate original contour surface coal mining operations shall be
conducted to meet at a minimum the following standards:
(1) Transport, backfill, and grade all spoil and wastes not required
to achieve approximate original contour in the surface mining area to
the lowest practicable grade.
(2) Deposit, backfill, and grade excess spoil and wastes only within
the permit area and dispose of such materials in conformance with this
part.
(3) Transport, backfill, and grade excess spoil and wastes to
maintain the hydrologic balance in accordance with this part and to
provide long-term stability.
(4) Transport, backfill, grade and revegetate wastes and excess spoil
to achieve an ecologically sound land use compatible with the prevailing
land uses in unmined areas surrounding the permit area.
(5) Eliminate all highwalls and depressions except as stated in
paragraph (e) of this section by backfilling with spoil and suitable
waste materials.
(i) Regrading or stabilizing rills and gullies. When rills or
gullies deeper than 9 inches form in areas that have been regraded and
the topsoil replaced but vegetation has not yet been established, the
permittee shall fill, grade, or otherwise stabilize the rills and
gullies and reseed or replant the areas according to 216.110. The
regulatory authority shall specify that rills or gullies of lesser size
be stabilized if the rills or gullies will be disruptive to the approved
postmining land use or may result in additional erosion and
sedimentation.
(j) Covering coal and acid-forming, toxic-forming, combustible, and
other waste materials; stabilizing backfilled materials; and using
waste material for fill -- (1) Cover. All exposed coal seams remaining
after mining and any acid-forming, toxic-forming, combustible materials,
or any other waste materials identified by the regulatory authority that
are exposed, used, or produced during mining shall be covered with a
minimum of 4 feet of nontoxic and noncombustible material; or, if
necessary, treated to neutralize toxicity in order to prevent water
pollution and sustained combustion, and to minimize adverse effects on
plant growth and land uses. Where necessary to protect against upward
migration of salts, exposure by erosion, to provide an adequate depth
for plant growth, or to otherwise meet local conditions, the regulatory
authority shall specify thicker amounts of cover using nontoxic
material. Acid-forming or toxic-forming material shall not be buried or
stored in proximity to a drainage course so as to cause or pose a threat
of water pollution or otherwise violate the provisions of 216.108 of
this part.
(2) Stabilization. Backfilled materials shall be selectively placed
and compacted wherever necessary to prevent leaching of toxic-forming
materials into surface or subsurface waters in accordance with 216.108
and wherever necessary to ensure the stability of the backfilled
materials. The method of compacting material and the design
specifications shall be approved by the regulatory authority before the
toxic materials are covered.
(3) Use of waste materials as fill. Before waste materials from a
coal preparation or conversion facility or from other activities
conducted outside the permit area such as municipal wastes are used for
fill material, it must be demonstrated to the regulatory authority by
hydrogeological means and chemical and physical analyses that use of
these materials will not adversely affect water quality, water flow, and
vegetation; will not present hazards to public health and safety; and
will not cause instability in the backfilled area.
(k) Grading along the contour. All final grading, preparation of
overburden before replaceent of topsoil, and placement of topsoil, in
accordance with 216.107, shall be done along the contour to minimize
subsequent erosion and instability. If such grading, preparation or
placement along the contour would be hazardous to equipment operators
then grading, preparation or placement in a direction other than
generally parallel to the contour may be used. In all cases, grading,
preparation or placement shall be conducted in a manner which minimizes
erosion and provides a surface for replacement of topsoil which will
minimize slippage.
25 CFR 216.106 Disposal of spoil and waste materials in areas other
than the mine workings or excavations.
(a) Disposal of spoil in other than valley or head-of-hollow fills.
Spoil not required to achieve the approximate original contour shall be
transported to and placed in a controlled (engineered) manner in
disposal areas other than the mine workings or excavations only if all
the following conditions, in addition to the other requirements of this
part, are met:
(1) The disposal areas shall be within the permit area, and they must
be approved by the regulatory authority as suitable for construction of
fills in accordance with the requirements of this paragraph;
(2) The disposal areas shall be located on the most moderate sloping
and naturally stable areas available as approved by the regulatory
authority. Where possible, fill materials suitable for disposal shall
be placed upon or above a natural terrace, bench, or berm if such
placement provides additional stability and prevents mass movement;
(3) The fill shall be designed using recognized professional
standards, certified by a registered professional engineer, and approved
by the regulatory authority;
(4) Where the slope in the disposal area exceeds 1v:2.8h (36
percent), or such lesser slope designated by the regulatory authority
based on local conditions, measures such as keyway cuts (excavations to
stable bedrock) or rock toe buttresses shall be constructed to stabilize
the fill.
(5) The disposal area does not contain springs, natural water courses
or wet weather seeps unless lateral drains are constructed from the wet
areas to the underdrains in such a manner that infiltration of the water
into the spoil pile will be prevented.
(6) All organic material shall be removed from the disposal area and
the topsoil must be removed and segregated pursuant to 216.107 before
the material is placed in the disposal area. However, if approved by
the regulatory authority, organic material may be used as mulch or may
be included in the topsoil.
(7) The spoil shall be transported and placed in a controlled manner,
concurrently compacted as necessary to ensure mass stability and prevent
mass movement, covered, and graded to allow surface and subsurface
drainage to be compatible with the natural surroundings, and to ensure
long-term stability. The final configuration of the fill must be
suitable for postmining land uses approved in accordance with 216.104.
Terraces shall not be constructed unless approved by the regulatory
authority.
(8) If any portion of the fill interrupts, obstructs, or encroaches
upon any natural drainage channel, the entire fill is classified as a
valley or head-or-hollow fill and must be designed and constructed in
accordance with the requirements of paragraph (b) of this section.
(9) The fill shall be inspected for stability by a registered
engineer or qualified professional specialist during critical
construction periods to assure removal of all organic material and
topsoil, placement of under-drainage systems, and proper construction of
terraces according to the approved plan. The registered engineer or
other qualified professional specialist shall provide a certified report
after each inspection that the fill has been constructed as specified in
the design approved by the regulatory authority.
(b) Disposal of spoil in valley or head-of-hollow fills. Waste
material must not be disposed of in valley or head-of-hollow fills.
Spoil to be disposed of in natural valleys must be placed in accordance
with the following requirements:
(1) The disposal areas shall be within the permit area, and they must
be approved by the regulatory authority as suitable for construction of
fills in accordance with the requirements of paragraph (b) of this
section.
(2) The disposal site shall be near the ridge top of a valley
selected to increase the stability of the fill and to reduce the
drainage area above the fill. Where possible, spoil shall be placed
above a natural terrace, bench, or berm, if such placement provides
additional stability and prevents mass movement.
(3) The fill shall be designed using recognized professional
standards, certified by a registered professional engineer and approved
by the regulatory authority.
(4) All organic material shall be removed from the dispoal area and
the topsoil must be removed and segregated pursuant to 216.107 of this
part before the material is placed in the disposal area. However, if
approved by the regulatory authority, organic material may be used as
mulch or may be included in the topsoil.
(5) Where the slope in the disposal area exceeds 1v:2.8h (36
percent), or such lesser slope designated by the regulatory authority
based on local conditions, measures such as keyway cuts (excavations to
stable bedrock) or rock toe buttresses shall be constructed to stabilize
the fill.
(6) A system of under drains constructed of durable rock shall be
installed along the natural drainage system shall extend from the toe to
the head of the fill and contain lateral drains to each area of
potential drainage or seepage. In constructing the underdrains, no more
than 10 percent of the rock may be less than 12 inches in size and no
single rock may be larger than 25 percent of the width of the drain. No
rock shall be used in underdrains if it tends to easily disintegrate and
thereby clog the drain or if it is acid-forming or toxic-forming. The
minimum size of the main underdrain shall be:
(7) Spoil shall be transported and placed in a controlled manner and
concurrently compacted as specified by the regulatory authority in lifts
that are less than 4 feet thick in order to achieve the densities
designed to ensure mass stability, to prevent mass movement, to avoid
contamination of the rock underdrain and to prevent formation of voids.
The final configuration of the fill must be suitable for postmining land
uses approved in accordance with 216.104.
(8) Terraces shall be constructed to stabilize the face of the fill.
The outslope of each terrace shall not exceed 50 feet in length and the
width of the terrace shall not be less than 20 feet.
(9) The tops of the fill and each terrace shall be graded no steeper
than 1v:20h (5 percent) and shall be constructed to drain surface water
to the sides of the fill where stabilized surface channels shall be
established off the fill to carry drainage away from the fill. Drainage
shall not be directed over the outslope of the fill unless approved by
the regulatory authority.
(10) All surface drainage from the undisturbed area above the fill
shall be diverted away from the fill by approved structures leading into
water courses.
(11) The outslope of the fill shall not exceed 1v:2h (50 percent).
The regulatory authority may require a flatter slope.
(12) The fill shall be inspected for stability by a registered
engineer or qualified professional specialist during critical
construction periods and at least quarterly throughout construction to
assure removal of all organic material and topsoil, placement of under
drainage systems, and proper construction of terraces according to the
approved plan. The registered engineer or other qualified professional
specialist shall provide a certified report, after each inspection that
the fill has been constructed as specified in the design approved by the
regulatory authority.
25 CFR 216.107 Topsoil handling.
To prevent topsoil from being contaminated by spoil or waste
materials, the permittee shall remove the topsoil as a separate
operation from areas to be disturbed. Topsoil shall be immediately
redistributed according to the requirements of paragraph (b) of this
section on areas graded to the approved postmining configuration. The
topsoil shall be segregated, stockpiled, and protected from wind and
water erosion and from contaminants which lessen its capability to
support vegetation if sufficient graded areas are not immediately
available for redistribution.
(a) Topsoil removal. All topsoil to be salvaged shall be removed
before any drilling for blasting, mining, or other surface disturbance.
(1) All topsoil shall be removed unless use of alternative materials
is approved by the regulatory authority in accordance with paragraph
(a)(4) of this section.Where the removal of topsoil results in erosion
that may cause air or water pollution, the regulatory authority shall
limit the size of the area from which topsoil may be removed at any one
time and specify methods of treatment to control erosion of exposed
overburden.
(2) All of the A horizon of the topsoil as identified by soil surveys
shall be removed according to paragraph (a) of this section and then
replaced on disturbed areas as the surface soil layers. Where the A
horizon is less than 6 inches, a 6-inch layer that includes the A
horizon and the uncondsolidated material immediately below the A horizon
(or all unconsolidated material if the total available is less than 6
inches) shall be removed and the mixture segregated and replaced as the
surface soil layer.
(3) Where necessary to obtain soil productivity consistent with
postmining land use, the regulatory authority may require that the B
horizon or portions of the C horizon or other underlying layers
demonstrated to have comparable quality for root development be
segregated and replaced as subsoil.
(4) Selected overburden materials may be used instead of, or as a
supplement to, topsoil where the resulting soil medium is equal to or
more suitable for vegetation, and if all the following requirements are
met:
(i) The permittee demonstrates that the selected overburden materials
or an overburden-topsoil mixture is more suitable for restoring land
capability and productivity by the results of chemical and physical
analyses. These analyses shall include determinations of pH, percent
organic material, nitrogen, phosphorus, potassium, texture class and
water-holding capacity, and such other analyses as required by the
regulatory authority. The regulatory authority also may require that
results of field-site trials or greenhouse tests be used to demonstrate
the feasibility of using such overburden materials.
(ii) The chemical and physical analyses and the results of field-site
trials and greenhouse tests are accompanied by a certification from a
qualified soil scientist or agronomist.
(iii) The alternative material is removed, segregated, and replaced
in conformance with this section.
(b) Topsoil redistribution. (1) After final grading and before the
topsoil is replaced, regraded land shall be sacrificed or otherwise
treated to eliminate slippage surfaces and to promote root penetration.
(2) Topsoil shall be redistributed in a manner that --
(i) Achieves an approximate uniform thickness consistent with the
postmining land uses.
(ii) Prevents excess compaction of the spoil and topsoil; and
(iii) Protects the topsoil from wind and water erosion before it is
seeded and planted.
(c) Topsoil storage. If the permit allows storage of topsoil, the
stockpiled topsoil shall be placed on a stable area within the permit
area where it will not be disturbed or be exposed to excessive water,
wind erosion, or contaminants which lessen its capability to support
vegetation before it can be redistributed on terrain graded to final
contour. Stockpiles shall be selectively placed and protected from wind
and water erosion, unnecessary compaction, and contamination by
undesirable materials either by a vegetative cover as defined in
216.110(g) or by other methods demonstrated to provide equal protection
such as snow fences, chemical binders, and mulching. Unless approved by
the regulatory authority, stockpiled topsoil shall not be moved until
required for redistribution on a disturbed area.
(d) Nutrients and soil amendments. Nutrients and soil amendments in
the amounts and analyses as determined by soil tests shall be applied to
the surface soil layer so that it will support the postmining
requirements of 216.104 and the revegetation requirments of 216.110.
25 CFR 216.108 Protection of the hydrologic system.
The permittee shall plan and conduct coal mining and reclamation
operations to minimize disturbance to the prevailing hydrologic balance
in order to prevent long-term adverse changes in the hydrologic balance
that could result from surface coal mining and reclamation operations,
both on- and off-site. Changes in water quality and quantity, in the
depth to ground water, and in the location of surface water drainage
channels shall be minimized such that the postmining land use of the
disturbed land is not adversely affected and applicable Federal and
Tribal statutes and regulations are not violated. The permittee shall
conduct operations so as to minimize water pollution and shall, where
necessary, use treatment methods to control water pollution. The
permittee shall emphasize surface coal mining and reclamation practices
that will prevent or minimize water pollution and changes in flows in
preference to the use of water treatment facilities. Practices to
control and minimize pollution include, but are not limited to,
stabilizing disturbed areas through grading, diverting runoff, achieving
quick growing stands of temporary vegetation, lining drainage channels
with rock or vegetation, mulching, sealing acid-forming and
toxic-forming materials, and selectively placing waste materials in
backfill areas. If pollution can be controlled only by treatment the
permittee shall operate and maintain the necessary water-treatment
facilities for as long as treatment is required.
(a) Water quality standards and effluent limitations. All surface
drainage from the disturbed area, including disturbed areas that have
been graded, seeded, or planted shall be passed through a sedimentation
pond or a series of sedimentation ponds before leaving the permit area.
Sedimentation ponds shall be retained until drainage from the disturbed
area have met the water quality requirements of this section and the
revegetation requirements of 216.110 have been met. The regulatory
authority may grant exemptions from this requirement only when the
disturbed drainage area within the total disturbed area is small if the
permittee shows that sedimentation ponds are not necessary to meet the
effluent limitations of this paragraph and to maintain water quality in
downstream receiving waters. For purpose of this section only,
disturbed area shall not include those areas in which only diversion
ditches, sedimentation ponds, or roads are installed in accordance with
this section and the upstream area is not otherwise disturbed by the
permittee. Sedimentation ponds required by this paragraph shall be
constructed in accordance with paragraph (e) of this section in
appropriate locations prior to any mining in the affected drainage area
in order to control sedimentation or otherwise treat water in accordance
with this paragraph. Discharges from areas disturbed by surface coal
mining and reclamation operations must meet all applicable Federal and
Tribal laws and regulations and, at a minimum, the following numerical
of effluent limitations:
(1) Any overflow or other discharge of surface water from the
disturbed area within the permit area demonstrated by the permittee to
result from a precipitation event larger than a 10-year, 24-hour
frequency event will not be subject to the effluent limitations of
paragraph (a) of this section.
(2) The permittee shall install, operate, and maintain adequate
facilities to treat any water discharged from the disturbed area that
violates applicable Federal or Tribal laws or regulations or the
limitations of paragraph (a) of this section. If the pH of waters to be
discharged from the disturbed area is normally less than 6.0, an
automatic lime feeder or other neutralization process approved by the
regulatory authority shall be installed, operated, and maintained. If
the regulatory authority finds (i) that small and infrequent treatment
requirements to meet applicable standards do not necessitate use of an
automatic neutralization process, and (ii) that the mine normally
produces less than 500 tons of coal per day, then the regulatory
authority may approve the use of a manual system if the permittee
ensures consistent and timely treatment.
(b) Surface-water monitoring. (1) The permittee shall submit for
approval by the regulatory authority a surface-water monitoring program
which meets the following requirements:
(i) Provides adequate monitoring of all discharge from the disturbed
area.
(ii) Provides adequate data to describe the likely daily and seasonal
variation in discharges from the disturbed area in terms of water flow,
pH, total iron, total manganese, and total suspended solids and, if
requested by the regulatory authority, and other parameter
characteristic of the discharge.
(iii) Provides monitoring at appropriate frequencies to measure
normal and abnormal variations in concentrations.
(iv) Provides an analytical quality control system including standard
methods of analysis such as those specified in 40 CFR part 136.
(v) Provides a regular report of all measurements to the regulatory
authority within 60 days of sample collection unless violations of
permit conditions occur in which case the regulatory authority shall be
notified immediately after receipt of analytical results by the
permittee. If the discharge is subject to regulation by a Federal
permit issued in compliance with the Federal Water Pollution Control Act
Amendment of 1972 (33 U.S.C. 1251-1378), a copy of the completed
reporting form supplied to meet the permit requirements may be submitted
to the regulatory authority to satisfy the reporting requirements, if
the data meet the sampling frequency and other requirements of this
paragraph.
(2) After disturbed areas have been regraded and stabilized in
accordance with this part, the permittee shall monitor surface water
flow and quality. Data from this monitoring shall be used to
demonstrate that the quality and quantity of runoff without treatment
will be consistent with the requirement of this section to minimize
disturbance to the prevailing hydrologic balance and with the
requirements of this part to attain the approved postmining land use.
These data shall provide a basis for approval by the regulatory
authority for removal of water quality or flow control systems and for
determining when the requirements of this section are met. The
regulatory authority shall determine the nature of data, frequency of
collection, and reporting requirements.
(3) Equipment, structures, and other measures necessary to accurately
measure and sample the quality and quantity of surface water discharges
from the disturbed area of the permit area shall be properly installed,
maintained, and operated and shall be removed when no longer required.
(c) Diversion and conveyance of overland flow away from disturbed
areas. In order to minimize erosion and to prevent or remove water from
contacting toxic-producing deposits, overland flow from undisturbed
areas may, if required or approved by the regulatory authority, be
diverted away from disturbed areas by means of temporary or permanent
diversion structures. The following requirements shall be met:
(1) Temporary diversion structures are those used during mining and
reclamation. When no longer needed, these structures shall be removed
and the area reclaimed. Temporary diversion structures shall be
constructed to safely pass the peak runoff from a precipitation event
with a 10-year recurrence interval, or a larger event as specified by
the regulatory authority.
(2) Permanent diversion structures are those remaining after mining
and reclamation and approved for retention by the regulatory authority
and other appropriate Tribal and Federal agencies. To protect fills and
property and to avoid danger to public health and safety, permanent
diversion structures shall be constructed to safely pass the peak runoff
from a precipitation event with a 100-year recurrence interval, or a
larger event as specified by the regulatory authority. Permanent
diversion structures shall be constructed with gently sloping banks that
are stabilized by vegetation. Asphalt, concrete, or other similar
linings shall not be used unless specifically required to prevent
seepage or to provide stability and are approved by the regulatory
authority.
(3) Diversions shall be designed, constructed, and maintained in a
manner to prevent additional contributions of suspended solids to
streamflow or to runoff outside the permit area to the extent possible,
using the best technology currently available. In no event shall such
contributions be in excess of requirements set by applicable Tribal or
Federal law. Appropriate sediment control measures for these diversions
shall include, but not be limited to, maintenances of appropriate
gradients, channel lining, revegetation, roughness structures, and
detention basins.
(d) Stream channel diversions. (1) Flow from perennial and
intermittent streams within the permit area may be diverted only when
the diversions are approved by the regulatory authority and they are in
compliance with tribal and Federal statutes and regulations. When
streamflow is allowed to be diverted, the new stream channel shall be
designed and constructed to meet the following requirements:
(i) The average stream gradient shall be maintained and the channel
designed, constructed, and maintained to remain stable and to prevent
additional contributions of suspended solids to streamflow, or to runoff
outside the permit area to the extent possible, using the best
technology currently available. In no event shall such contributions be
in excess of requirements set by applicable Tribal or Federal law.
Erosion control structures such as channel lining structures, retention
basins, and artificial channel roughness structures shall be used only
when approved by the regulatory agency for temporary diversions where
necessary or for permanent diversions where they are stable and will
require only infrequent maintenance.
(ii) Channel, bank, and flood-plain configurations shall be adequate
to safely pass the peak runoff of a precipitation event with a 10-year
recurrence interval for temporary diversions and a 100-year recurrence
interval for permanent diversions, or larger events as specified by the
regulatory authority.
(iii) Fish and wildlife habitat and water and vegetation of
significant value for wildlife shall be protected in consultation with
appropriate Tribal and Federal fish and wildlife management agencies.
(2) All temporary diversion structures shall be removed and the
affected land regraded and revegetated consistent with the requirements
of 216.105 and 216.110. At the time such diversions are removed, the
permittee shall ensure that downstream water treatment facilities
previously protected by the diversion are modified or removed to prevent
over-topping or failure of the facilities.
(3) Buffer zone. No land within 100 feet of an intermittent or
perennial stream shall be disturbed by surface coal mining and
reclamation operations unless the regulatory authority specifically
authorizes surface coal mining and reclamation operations through such a
stream. The area not to be disturbed shall be designated a buffer zone
and marked as specified in 216.103.
(e) Sediment control measures. Appropriate sediment control measures
shall be designed, constructed, and maintained to prevent additional
contributions of sediment to stream flow or to runoff outside the permit
area to the extent possible, using the best technology currently
available. Sediment control measures may include, but not limited to,
sedimentation ponds, diversion structures, sediment traps, straw dikes,
riprap, check dams, vegetative filters, dugout ponds, and chemical
treatment. Sedimentation ponds may be used individually or in a series
and shall (either individually of in series) meet the following
criteria:
(1) Sedimentation ponds must provide at least a 24-hour detention
time and a surface area of at least 1 square foot for each 50 gallons
per day of inflow for runoff entering the pond(s) that results from a
10-year, 24-hour precipitation event. Runoff diverted, in accordance
with paragraphs (c) and (d) of this section, away from disturbed
drainage areas need not be considered in sedimentation pond design.
Required sedimentation pond surface area and detention time may be
accordingly reduced by the appropriate use of chemical treatment
measures such as flocculation and coagulation if approved by the
regulatory authority.
(2) An additional sediment storage volume must be provided equal to
0.2 acre-feet for each acre of disturbed area within the upstream
drainage area. Upon approval of the regulatory authority, the sediment
storage volume may be reduced in an amount, as demonstrated by the
permittee equal to the sediment removed by other appropriate sediment
control measures.
(3) Ponds may be of the permanent pool or self-dewatering type.
Dewatering-type ponds shall use siphon or other dewatering methods
approved by the regulatory authority to prevent discharges of pollutants
within the design flow.
(4) Spillway systems shall be properly located to maximize the
distances from the point of inflow into the pond to maximize detention
times. Spillway systems shall be provided to safely discharge the peak
runoff from a precipitation event with a 25-year recurrence interval, or
larger event as specified by the regulatory authority.
(5) Sediment shall be removed from sedimentation ponds when the
volume of sediment accumulates to 80 percent of the sediment storage
volume required. Sediment removal shall be done in a manner that
minimizes adverse effects on surface waters due to its chemical and
physical characteristics, on infiltration, on vegetation, and on surface
and ground water quality. Sediment that has been removed from
sedimentation ponds and that meets the requirements for topsoil may be
redistributed over graded areas in accordance with 216.107.
(6) If a sedimentation pond has an embankment that is more than 20
feet in height, as measured from the upstream toe of the embankment to
the crest of the emergency spillway, or has a storage volume of 20
acre-feet or more, the following additional requirements shall be met:
(i) An appropriate combination of principal and emergency spillways
shall be provided to safely discharge the runoff resulting from a
100-year, 6-hour precipitation event, or larger event as specified by
the regulatory authority.
(ii) Ponds shall be designed and constructed with an acceptable
static safety factor of at least 1.5 of maximum design flood elevation
of the pool to ensure embankment slope stability.
(iii) The minimum top width of the embankment shall not be less than
the quotient of H+35/5 where H is the height of the embankment as
measured from the upstream toe of the top of the embankment.
(iv) Ponds shall have appropriate barriers to control seepage along
conduits that extend through the embankment.
(7) All pounds shall be designed and inspected under the supervision
of, and certified after construction by a registered professional
engineer.
(8) All ponds, including those not meeting the size or other criteria
of 30 CFR 77.216(a), shall be examined for structural weakness, erosion,
and other hazardous conditions in accordance with the inspection
requirements contained in 30 CFR 77.216-3.
(9) All ponds shall be removed and the affected land regarded and
revegetated consistent with the requirements of 216.105 and 216.110,
unless the regulatory authority approves retention of the ponds pursuant
to paragraph (k) of this section.
(f) Discharge structures. Discharges from sedimentation ponds and
diversions shall be controlled, where necessary, using energy
dissipators, surge ponds, and other devices to reduce erosion and
prevent deepening or enlargement of stream channels and to minimize
disturbances to the hydrologic balance.
(g) Acid and toxic materials. Drainage from acid-forming and
toxic-forming mine waste materials and soils into ground and surface
water shall be avoided by:
(1) Identifying, burying, and treating where necessary, spoil or
other materials that, in the judgment of the regulatory authority, will
be toxic to vegetation or that will adversely affect water quality if
not treated or buried. Such material shall be disposed of in accordance
with the provision of 216.105(j);
(2) Preventing or removing water from contact with toxic-producing
deposits;
(3) Burying or otherwise treating all toxic or harmful materials
within 30 days, if such materials are subject to wind and water erosion,
or within a lesser period designated by the regulatory authority. If
storage of such materials is approved, the materials shall be placed on
impermeable material and protected from erosion and contact with surface
water. Coal waste ponds and other coal waste materials shall be
maintained according to 216.108(g)(4), and 216.109 shall apply;
(4) Burying or otherwise treating waste materials from coal
preparation plants no later than 90 days after the cessation of the
filling of the disposal area. Burial or treatment shall be in
accordance with 216.105(j);
(5) Casing, sealing or otherwise managing boreholes, shafts, wells,
and auger holes or other more or less horizontal holes to prevent
pollution of surface or ground water and to prevent mixing of ground
waters of significantly different quality. All boreholes that are
within the permit area but are outside the surface coal mining area or
which extend beneath the coal to be mined and into water bearing strata
shall be plugged permanently in a manner approved by the regulatory
authority, unless the boreholes have been approved for use in
monitoring.
(6) Taking such other actions as required by the regulatory
authority.
(h) Ground water -- (1) Recharge capacity of reclaimed lands. The
disturbed area shall be reclaimed to restore approximate premining
recharge capacity through restoration of the capability of the reclaimed
areas as a whole to transmit water to the ground water system. The
recharge capacity should be restored to support the approved postmining
land use and to minimize disturbances to the prevailing hydrologic
balance at the mined area and in associated offsite areas. The
permittee shall be responsible for monitoring according to paragraph
(h)(3) of this section to ensure operations conform to this requirement.
(2) Ground water systems. Backfilled materials shall be placed to
minimize adverse effects on ground water flow and quality, to minimize
offsite effects, and to support the approved postmining land use. The
permittee shall be responsible for performing monitoring according to
paragraph (h)(3) of this section to ensure operations conform to this
requirement.
(3) Monitoring. Ground water levels, infiltration rates, subsurface
flow and storage characteristics, and the quality of ground water shall
be monitored in a manner approved by the regulatory authority to
determine the effects of surface coal mining and reclamation operations
on the recharge capacity of reclaimed lands and on the quantity and
quality of water in ground water systems at the mine area and in
associated offsite areas. When operations are conducted in such a
manner that may affect the ground water system, ground water levels and
ground water quality shall be periodically monitored using wells that
can adequately reflect changes in ground water quantity and quality
resulting from such operations. Sufficient water wells must be used by
the permittee. The regulatory authority may require drilling and
development of additional wells if needed to adequately monitor the
ground-water system. As specified and approved by the regulatory
authority, additional hydrologic tests, such as infiltration tests and
aquifer tests must be undertaken by the permittee to demonstrate
compliance with paragraphs (h) (1) and (2) of this section.
(i) Water rights and replacement. The permittee shall replace the
water supply of an owner of interest in real property who obtains all or
part of his supply of water for domestic, agricultural, industrial, or
other legitimate use from an underground or surface source where such
supply has been affected by contamination, diminution or interruption
proximately resulting from surface coal mine operation by the permittee.
(j) Alluvial valley floors west of the 100th meridian west longitude.
(1) Surface coal mining operations conducted in or adjacent to alluvial
valley floors shall be planned and conducted so as to preserve the
essential hydrologic functions of these alluvial valley floors
throughout the mining and reclamation process. These functions shall be
preserved by maintaining or reestablishing those hydrologic and biologic
characteristics of the alluvial valley floor that are necessary to
support the functions. The permittee shall provide information to the
regulatory authority as required in paragraph (j)(3) of this section to
allow identification of essential hydrologic functions and demonstrate
that the functions will be preserved. The characteristics of an
alluvial valley floor to be considered include, but are not limited to:
(i) The longitudinal profile (gradient), cross-sectional shape, and
other channel characteristics of streams that have formed within the
alluvial valley floor and that provide for maintenance of the prevailing
conditions of surface flow;
(ii) Aquifers (including capillary zones and perched water zones) and
confining beds within the mined area which provide for storage,
transmission, and regulation of natural ground water and surface water
that supply the alluvial valley floors;
(iii) Quantity and quality of surface and ground water that supply
alluvial valley floors;
(iv) Depth to and seasonal fluctuations of ground water beneath
alluvial valley floors;
(v) Configuration and stability of the land surface in the flood
plain and adjacent low terraces in alluvial valley floors as they allow
or facilitate irrigation with flood waters or subirrigation and maintain
erosional equilibrium; and
(vi) Moisture-holding capacity of soils (or plant growth medium)
within the alluvial valley floors, and physical and chemical
characteristics of the subsoil which provide for sustained vegetation
growth or cover through dry months.
(2) Surface coal mining operations located west of the 100th meridian
west longitude shall not interrupt, discontinue, or preclude farming on
alluvial valley floors and shall not materially damage the quantity or
quality of surface or ground water that supplies these valley floors
unless the premining land use has been undeveloped rangeland which is
not significant to farming on the alluvial valley floors or unless the
area of affected alluvial valley floor is small and provides negligible
support for the production from one or more farms. This paragraph
(j)(2) of this section does not apply to those surface coal mining
operations that:
(i) Were in production in the year preceding August 3, 1977, were
located in or adjacent to an alluvial valley floor, and produced coal in
commercial quantities during the year preceding August 3, 1977; or
(ii) Had specific permit approval by the Bureau of Indian Affairs
before August 3, 1977, to conduct surface coal mining operations for an
area within an alluvial valley floor.
(3)(i) Before surface mining and reclamation operations authorized
under paragraph (j)(2) of this section may be issued a new, revised or
amended permit, the permittee shall submit, for regulatory authority
approval, detailed surveys and baseline data to establish standards
against which the requirements of paragraph (j)(1) of this section may
be measured and from which the degree of material damage to the quantity
and quality of surface and ground water that supply the alluvial valley
floors may be assessed. The surveys and data shall include:
(A) A map, at a scale determined by the regulatory authority, showing
the location and configuration of the alluvial valley floor;
(B) Baseline data covering a full water year for each of the
hydrologic functions identified in paragraph (j)(1) of this section;
(C) Plans showing how the operation will avoid, during mining and
reclamation, interruption, discontinuance, or preclusion of farming on
the alluvial valley floors and will not materially damage the quantity
or quality of water in surface and ground water systems that supply such
valley floors;
(D) Historic land use data for the proposed permit area and for farms
to be affected; and
(E) Such other data as the regulatory authority may require.
(ii) Surface mining operations which qualify for the exceptions in
paragraph (j)(2) of this section are not required to submit the plans
prescribed in paragraph (j)(3)(i)(C) of this section.
(k) Permanent impoundments. The permittee may construct, if
authorized by the regulatory agency pursuant to this paragraph and
216.104 permanent water impoundments on mining sites as a part of
reclamation activities only when they are adequately demonstrated to be
in compliance with 216.104 and 216.105 in addition to the following
requirements:
(1) The size of the impoundment is adequate for its intended
purposes.
(2) The impoundment dam construction is designed to achieve necessary
stability with an adequate margin of safety compatible with that of
structures constructed under Pub. L. 83-566 (16 U.S.C. 1006).
(3) The quality of the impounded water will be suitable on a
permanent basis for its intended use and discharges from the impoundment
will not degrade the quality of receiving waters below the water quality
standards established pursuant to applicable Federal and Tribal law.
(4) The level of water will be reasonably stable.
(5) Final grading will comply with the provisions of 216.105 and
will provide adequate safety and access for proposed water users.
(6) Water impoundements will not result in the diminution of the
quality or quantity of water used by adjacent or surrounding landowners
for agricultural, industrial, recreational, or domestic uses.
(l) Hydrologic impact of roads -- (1) General. Access and haul roads
and associated bridges, culverts, ditches, and road rights-of-way shall
be constructed, maintained, and reclaimed to prevent additional
contributions of suspended solids to streamflow, or to runoff outside
the permit area to the extent possible, using the best technology
currently available. In no event shall the contributions be in excess
of requirements set by applicable Tribal or Federal law. All access and
haul roads shall be removed and the land affected regraded and
revegetated consistent with the requirements of 216.105 and 216.110
unless retention of a road is approved as part of a postmining land use
under 216.104 as being necessary to support the postmining land use or
necessary to adequately control erosion and the necessary maintenance is
assured.
(2) Construction. (i) All roads, insofar as possible, shall be
located on ridges or on the available flater and more stable slopes to
minimize erosion. Stream fords are prohibited unless they are
specifically approved by the regulatory authority as temporary routes
across dry streams that will not adversely affect sedimentation and that
will not be used for coal haulage. Other stream crossing shall be made
using bridges, culverts or other structure designed and constructed to
meet the requirements of this paragraph. Roads shall not be located in
active stream channels nor shall they be constructed or maintained in a
manner that increases erosion or causes significant sedimentation or
flooding. However, nothing in this paragraph will be construed to
prohibit relocation of stream channels in accordance with paragraph (d)
of this section.
(ii) In order to minimize erosion and subsequent disturbances of the
hydrologic balance, roads shall be constructed in compliance with the
following grade restrictions or other grades determined by the
regulatory authority to be necessary to control erosion:
(A) The overall sustained grade shall not exceed 1v:10h (10 percent).
(B) The maximum grade greater than 10 percent shall not exceed
1v:6.5h (15 percent) for more than 300 feet.
(C) There shall not be more than 300 feet of grade exceeding 10
percent within each 1,000 feet.
(iii) All access and haul roads shall be adequately drained using
structures such as, but not limited to, ditches, water barriers, cross
drains, and ditch relief drains. For access and haul roads that are to
be maintained for more than 1 year, water-control structures shall be
designed with a discharge capacity capable of passing the peak runoff
from a 10-year, 24-hour precipitation event. Drainage pipe and culverts
shall be constructed to avoid plugging or collapse and erosion at inlets
and outlets. Drainage ditches shall be provided at the toe of all cut
slopes formed by construction of roads. Trash racks and debris basins
shall be installed in the drainage ditches wherever debris from the
drainage area could impair the functions of drainage and sediment
control structures. Ditch relief and cross drains shall be spaced
according to grade. Effluent limitations of paragraph (a) of this
section shall not apply to drainage from access and haul roads located
outside the disturbed area as defined in this section unless otherwise
specified by the regulatory authority.
(iv) Access and haul roads shall be surfaced with durable material.
Toxic- or acid-forming substances shall not be used. Vegetation may be
cleared only for the essential width necessary for road and associated
ditch construction and to serve traffic needs.
(3) Maintenance. (i) Access and haul roads shall be routinely
maintained by means such as, but not limited to, wetting, scraping or
surfacing.
(ii) Ditches, culverts, drains, trash racks, debris basins and other
structures serving to drain access and haul roads shall not be
restricted or blocked in any manner that impedes drainage or adversley
affects the intended purpose of the structure.
(m) Hydrologic impacts of other transport facilities. Railroad
loops, spurs, sidings and other transport facilities shall be
constructed, maintained and reclaimed to control diminution or
degradation of water quality and quantity and to prevent additional
contributions of suspended solids to streamflow, or runoff outside the
permit area to the extent possible, using the best technology currently
available. In no event shall contributions be in excess of requirements
set by applicable Tribal or Federal law.
(n) Discharge of waters into underground mines. Surface and ground
waters shall not be discharged or diverted into underground mine
workings.
25 CFR 216.109 Dams constructed of or impounding waste material.
(a) General. No waste material shall be used in or impounded by
existing or new dams without the approval of the regulatory authority.
The permittee shall design, locate, construct, operate, maintain,
modify, and abandon or remove all dams (used either temporarily or
permanently) constructed of waste materials, in accordance with the
requirements of this section.
(b) Construction of dams. (1) Waste shall not be used in the
construction of dams unless demonstrated through appropriate engineering
analysis, to have no adverse effect on stability.
(2) Plans for dams subject to this section and also including those
dams that do not meet the size of other criteria of 30 CFR 77.216(a),
shall be approved by the regulatory authority before construction and
shall contain the minimum plan requirements established by the Mining
Enforcement and Safety Administration pursuant to 30 CFR 77.216-2.
(3) Construction requirements are as follows: (i) Design shall be
based on the flood from the probable maximum precipitation event unless
the permittee shows that the failure of the impounding structure would
not cause loss of life or severely damage property or the environment,
in which case, depending on site conditions, a design based on a
precipitation event of no less than 100-year frequency may be approved
by the regulatory authority.
(ii) The design freeboard distance between the lowest point on the
embankment crest and the maximum water elevation shall be at least 3
feet to avoid overtopping by wind and wave action.
(iii) Dams shall have minimum safety factors as follows:
(iv) The dam, foundation, and abutments shall be stable under all
conditions of construction and operation of the impoundment. Sufficient
foundation investigations and laboratory testing shall be performed to
determine the factors of safety of the dam for all loading conditions in
paragraph (b)(3)(iii) of this section and for all increments of
construction.
(v) Seepage through the dam, foundation, and abutments shall be
controlled to prevent excessive uplift pressures, internal erosion,
sloughing, removal of material by solution, or erosion of material by
loss into cracks, joints, and cavities. This may require the use of
impervious blankets, previous drainage zones or blankets, toe drains,
relief wells, or dental concreting of jointed rock surface in contact
with embankment materials.
(vi) Allowances shall be made for settlement of the dams and the
foundation so that the freeboard will be maintained.
(vii) Impoundments created by dams of waste materials shall be
subject to a minimum drawdown criteria that allows the facility to be
evacuated by spillways or decants of 90 percent of the volume of water
stored during the design precipitation event within 10 days.
(viii) During construction of dams subject to this section, the
structures shall be periodically inspected by a registered professional
engineer to ensure construction according to the approved design. On
completion of construction, the structure shall be certified by a
registered professional engineer experienced in the field of dam
construction as having been constructed in accordance with accepted
professional practice and the approved design.
(ix) A permanent identification marker, at least 6 feet high that
shows the dam number assigned pursuant to 30 CFR 77.216-1 and the name
of the person operating or controlling the dam, shall be located on or
immediately adjacent to each dam within 30 days of certification of
design pursuant to this section.
(4) All dams, including those not meeting the size of other criteria
of 30 CFR 77.216(a), shall be routinely inspected by a registered
professional engineer, or someone under the supervision of a registered
professional engineer, in accordance with Mining Enforcement and Safety
Administration regulations pursuant to 30 CFR 77.216-3.
(5) All dams shall be routinely maintained. Vegetative growth shall
be cut where necessary to facilitate inspection and repairs. Ditches
and spillways shall be cleaned. Any combustible materials present on
the surface, other than that used for surface stability such as mulch or
dry vegetation, shall be removed and any other appropriate maintenance
procedures followed.
(6) All dams subject to this section shall be certified annually as
having been constructed and modified in accordance with current prudent
engineering practices to minimize the possibility of failures. Any
changes in the geometry of the impounding structure shall be highlighted
and included in the annual certification report. These certifications
shall include a report on existing and required monitoring procedures
and instrumentation, the average and maximum depths and elevations of
any impounded waters over the past year, existing storage capacity of
impounding structures, any fires occurring in the material over the past
year and any other aspects of the structures affecting their stability.
(7) Any enlargements, reductions in size, reconstruction or other
modification of the dams shall be approved by the regulatory authority
before construction begins.
(8) All dams shall be removed and the disturbed areas regraded,
revegetated, and stabilized before the release of bond unless the
regulatory authority approve retention of such dams as being compatible
with an approved postmining land use ( 216.104).
25 CFR 216.110 Revegetation.
(a) General. (1) The permittee shall establish on all land that has
been disturbed, a diverse, effective, and permanent vegetative cover of
species native to the area of disturbed land or species that will
support the planned postmining uses of the land approved according to
216.104.
(2) Revegetation shall be carried out in a manner that encourages a
prompt vegetative cover and recovery of productivity levels compatible
with approved land uses. The vegetative cover shall be capable of
stabilizing the soil surface with respect to erosion. All disturbed
lands, except water areas and surface areas of roads that are approved
as a part of the postmining land use, shall be seeded or planted to
achieve a vegetative cover of the same seasonal variety native to the
area of disturbed land. If both the pre- and postmining land use is
intensive agriculture, planting the crops normally grown will meet the
requirement. Vegetative cover will be considered of the same seasonal
variety when it consists of a mixture of species of equal or superior
utility for the intended land use when compared with the utility of
naturally occurring vegetation during each season of the year.
(b) Use of introduced species. Introduced species may be substituted
for native species only of appropriate field trials have demonstrated
that the introduced species are of equal or superior utility for the
approved postmining land use, or are necessary to achieve a quick,
temporary, and stabilizing cover. Such species substitution shall be
approved by the regulatory authority. Introduced species shall meet
applicable Tribal and Federal seed or introduced species statutes, and
shall not include poisonous or potentially toxic species.
(c) Timing of revegetation. Seeding and planting of disturbed areas
shall be conducted during the first normal period for favorable planting
conditions after final preparation. The normal period for favorable
planting shall be that planting time generally accepted locally for the
type of plant materials selected to meet specific site conditions and
climate. Any disturbed areas, except water areas and surface areas of
roads that are approved under 216.104 as part of the postmining land
use, which have been graded shall be seeded with a temporary cover of
small grains, grasses, or legumes to control erosion until an adequate
permanent cover is established. When rills or gullies, that would
preclude the successful establishment of vegetation or the achievement
of the postmining land use, form in regraded topsoil and overburden
materials as specified in 216.105, additional regrading or other
stabilization practices will be required before seeding and planting.
(d) Mulching. Mulch shall be used on all regraded and topsoiled
areas to control erosion, to promote germination of seeds, and to
increase the moisture retention of the soil. Mulch shall be anchored to
the soil surface where appropriate, to ensure effective protection of
the soil and vegetation. Mulch means vegetation residues or other
suitable materials that aid in soil stabilization and soil moisture
conservation, thus providing micro-climatic conditions suitable for
germination and growth, and do not interfere with the postmining use of
the land. Annual grains such as oats, rye and wheat may be used instead
of mulch when it is shown to the satisfaction of the regulatory
authority that the substituted grains will provide adequate stability
and that they will later be replaced by species approved for the
postmining use.
(e) Methods of revegetation. (1) The permittee shall use technical
publications or the results of laboratory and field tests approved by
the regulatory authority to determine the varieties, species, seeding
rates, and soil amendment practices essential for establishment and
self-regeneration of vegetation. The regulatory authority shall approve
species selection and planting plans.
(2) Where hayland, pasture, or range is to be the postmining land
use, the species of grasses, legumes, browse, trees, or forbs for
seeding or planting and their pattern of distribution shall be selected
by the permittee to provide a diverse, effective, and permanent
vegetative cover with the seasonal variety, succession, distribution,
and regenerative capabilities native to the area. Livestock grazing
will not be allowed on reclaimed land until the seedlings are
established and can sustain managed grazing. The regulatory authority,
in consultation with the permittee and the landowner or in concurrence
with the governmental land-managing agency having jurisdiction over the
surface, shall determine when the revegetated area is ready for
livestock grazing.
(3) Where forest is to be the postmining land use, the permittee
shall plant trees adapted for local site conditions and climate. Trees
shall be planted in combination with an herbaceous cover of grains,
grasses, legumes, forbs, or woody plants to provide a diverse,
effective, and permanent vegetation cover with the seasonal variety,
succession, and regeneration capabilities native to the area.
(4) Where wildlife habitat is to be included in the postmining land
use, the permittee shall consult with appropriate Tribal and Federal
wildlife and land management agencies and shall select those species
that will fulfill the needs of wildlife, including food, water, cover,
and space. Plant groupings and water resources shall be spaced and
distributed to fulfill the requirements of wildlife.
(f) Standards for measuring success of revegatation. (1) Success of
revegetation shall be measured on the basis of reference areas approved
by the regulatory authority. Reference areas mean land units of varying
size and shape identified and maintained under appropriate management
for the purpose of measuring ground cover, productivity and species
diversity that are produced naturally. The reference areas must be
representative of geology, soils, slope, aspect, and vegetation in the
permit area. Management of the reference area shall be comparable to
that which will be required for the approved postmining land use of the
area to be mined. The regulatory authority shall approve the estimating
techniques that will be used to determine the degree of success in the
revegetated area.
(2) The ground cover of living plants on the revegetated area shall
be equal to the ground cover of living plants of the approved reference
area for a minimum of two growing seasons. The ground cover shall not
be considered equal if it is less than 90 percent of the ground cover of
the reference area for any significant portion of the mined area.
Exceptions may be authorized by the regulatory authority for:
(i) Previously mined areas that were not reclaimed to the standards
required by this part prior to the effective date of these regulations.
The ground cover of living plants for such areas shall not be less than
required to control erosion, and in no case less than that existing
before redisturbance;
(ii) Areas to be developed immediately for industrial or residential
use. The ground cover of living plants shall not be less than required
to control erosion. As used in this paragraph, immediately means less
than 2 years after regrading has been completed for the area to be used;
and
(iii) Areas to be used for agricultural cropland purposes. Success
in revegatation of crop land shall be determined on the basis of crop
production from the mined area compared to the reference area. Crop
production from the mined area shall be equal to that of the approved
reference area for a minimum of two growing seasons. Production shall
not be considered equal if it is less than 90 percent of the production
of the reference area for any significant portion of the mined area.
(3) Species diversity, distribution, seasonal variety, and vigor
shall be evaluated on the basis of the results which could reasonably be
expected using the methods of revegetation approved under paragraph (e)
of this section.
(g) Seeding of stockpiled topsoil. Topsoil stockpiled in compliance
with 216.107 must be seeded or planted with an effective cover of
nonnoxious, quick growing annual and perennial plants during the first
normal period for favorable planting conditions or protected by other
approved measures as specified in 216.107.
25 CFR 216.111 Steep-slope mining.
(a) The permitee conducting surface coal mining and reclamation
operations on natural slopes that exceed 20 degrees, or on lesser slopes
that require measures to protect the area from disturbance, as
determined by the regulatory authority after consideration of soils,
climate, the method of operation, geology, and other regional
characteristics, shall meet the following performance standards. The
standards of this section do not apply where mining is done on a flat or
gently rolling terrain with an occasional steep slope through which the
mining proceeds and leaves a plain or predominantly flat area; or where
the mining removes entire coal seams running through the upper fraction
of a mountain, ridge, or hill by removing all of the overburden and
creating a level plateau or gently rolling contour.
(1) Spoil, waste materials or debris, including that from clearing
and grubbing, and abandoned or disabled equipment, shall not be placed
or allowed to remain on the downslope.
(2) The highwall shall be completely covered with spoil and the
disturbed area graded to comply with the provisions of 216.105 of this
part. Land above the highwall shall not be disturbed unless the
regulatory authority finds that the disturbance will facilitate
compliance with the requirements of this section.
(3) Material in excess of that required to meet the provisions of
216.105 of this part shall be disposed of in accordance with the
requirements of 216.106 of this part.
(4) Woody materials may be buried in the backfilled area only when
burial does not cause, or add to, instability of the backfill. Woody
materials may be chipped and distributed through the backfill when
approved by the regulatory authority.
25 CFR 216.111 PART 217 -- MANAGEMENT OF TRIBAL ASSETS OF UTE INDIAN
TRIBE, UINTAH AND OURAY RESERVATION, UTAH, BY THE TRIBE AND THE UTE
DISTRIBUTION CORP.
Sec.
217.1 Definitions.
217.2 Authority and purpose.
217.3 Referral of questions by superintendent.
217.4 Referral of questions by the joint managers.
217.5 Management decisions.
217.6 Method of casting votes.
217.7 Implementation of decision.
Authority: Secs. 27 and 28 of the Act of August 27, 1954, 68 Stat.
868 (25 U.S.C. 677-677aa); 5 U.S.C. 301; secs. 463, 465 of the Revised
Statutes (25 U.S.C. 2 and 9) and 230 DM 1 and 2.
Source: 43 FR 40458, Sept. 12, 1978, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 217.1 Definitions.
As used in this part:
''Assets'' means all unadjudicated or unliquidated claims against the
United States, all gas, oil, and mineral rights of every kind, and all
other assets of the Ute Tribe of Uintah and Ouray Reservation as
constituted on August 27, 1954, not distributed in accordance with the
terms of the Ute Partition Act.
''Business Committee'' means the Uintah and Ouray Tribal Business
Committee, created pursuant to the provisions of the constitution and
bylaws of the Ute Indian Tribe of the Uintah and Ouray Reservation.
''Board of directors'' means the board of directors of the Ute
Distribution Corp., a corporation organized and existing under the laws
of the State of Utah.
''Joint manager'' or ''joint managers'' means the business committee
and the board of directors, or either of them, as is appropriate, within
the context where one of those terms is used.
''Superintendent'' means the superintendent of the Uintah and Ouray
Agency, Bureau of Indian Affairs.
''Secretary'' means the secretary of the Interior or a subordinate
official acting pursuant to authority delegated by said Secretary.
25 CFR 217.2 Authority and purpose.
In accordance with the Ute Partition Act approved August 27, 1954 (68
Stat. 868; 25 U.S.C. 677-677aa), as amended by the Act of August 2,
1956 (70 Stat. 936), and the Act of September 25, 1962 (76 Stat. 597),
assets shall be managed jointly by the business committee and the board
of directors. These regulations set out the procedures for exercising
such joint management.
25 CFR 217.3 Referral of questions by superintendent.
The superintendent shall refer all questions and problems related to
the management of the assets as they come to his attention, together
with his analysis of alternative solutions to each question or problem,
to the business committee and to the board of directors for resolution.
Such referrals shall be in writing and shall be addressed to the joint
managers at such addresses as they furnish to the superintendent and to
each other from time to time.
25 CFR 217.4 Referral of questions by the joint managers.
The business committee and the board of directors must refer to each
other for resolution any questions or problems related to joint
management of the assets which they from time to time determine need to
be resolved together with the submitting party's proposal, if any, for
solution. Such referrals shall be in writing, addressed to the other
joint manager at the address furnished in accordance with 217.3 of this
part. Copies of all such referrals shall also be furnished to the
superintendent. Either of the parties may request an analysis of
alternative solutions of each question or problem referred pursuant to
this section, and the superintendent will furnish such analysis within
ten working days, or within such longer period as he may notify the
parties is required to prepare such analysis.
25 CFR 217.5 Management decisions.
In arriving at management decisions concerning the assets, the
business committee shall be entitled to cast 72.83814 votes and the
board of directors shall be entitled to cast 27.16186 votes. Any total
number of votes cast exceeding 50 shall be sufficient to determine an
issue submitted to the joint managers for resolution. A majority of
votes cast will decide an issue.
25 CFR 217.6 Method of casting votes.
Within 30 days after an issue and any analysis provided for in
217.4 and 217.5 have been submitted to the joint managers for
resolution, they shall each notify the superintendent in writing of the
number of votes cast for and against the proposed or alternative
solutions. If either of the joint managers fails or refuses to cast his
votes and to notify the superintendent thereof within the time
specified, the superintendent may conclude that such joint managers'
votes have been cast against the proposed solution or solutions; or, if
no solutions have been proposed, for the maintenance of the status quo.
At the time they notify the superintendent of the votes cast on an
issue, each joint manager shall furnish to the superintendent a
certified copy of a resolution of the business committee or the board of
directors, as the case may be, authorizing such vote.
25 CFR 217.7 Implementation of decision.
The Secretary shall issue such documents as are necessary or
expendient to implement the decisions of the joint managers, insofar as
such issuance is authorized by law, and he shall execute and/or approve
such documents for and on behalf of the joint managers, or either of
them, and on behalf of the United States, as necessary. If it becomes
necessary for the Secretary to execute an instrument on behalf of one or
both of the joint managers and to approve the same instrument as
trustee, two different officials having delegated authority from the
Secretary shall serve as executing and approving officers, respectively.
25 CFR 217.7 PART 226 -- LEASING OF OSAGE RESERVATION LANDS FOR OIL AND
GAS MINING
Sec.
226.1 Definitions.
226.2 Sale of leases.
226.3 Surrender of lease.
226.4 Form of payment.
226.5 Leases subject to current regulations.
226.6 Bonds.
226.7 Provisions of forms made a part of the regulations.
226.8 Corporation and corporate information.
226.9 Rental and drilling obligations.
226.10 Term of lease.
226.11 Royalty payments.
226.12 Government reserves right to purchase oil.
226.13 Time of royalty payments and reports.
226.14 Contracts and division orders.
226.15 Unit leases, assignments and related instruments.
226.16 Commencement of operations.
226.17 How to acquire permission to begin operations on a restricted
homestead allotment.
226.18 Information to be given surface owners prior to commencement
of drilling operations.
226.19 Use of surface of land.
226.20 Settlement of damages claimed.
226.21 Procedure for settlement of damages claimed.
226.22 Prohibition of pollution.
226.23 Easements for wells off leased premises.
226.24 Lessee's use of water.
226.25 Gas well drilled by oil lessees and vice versa.
226.26 Determining cost of well.
226.27 Gas for operating purposes and tribal use.
226.28 Shutdown, abandonment, and plugging of wells.
226.29 Disposition of casings and other improvements.
226.30 Lessees subject to Superintendent's orders; books and records
open to inspection.
226.31 Lessee's process agents.
226.32 Well records and reports.
226.33 Line drilling.
226.34 Wells and tank batteries to be marked.
226.35 Formations to be protected.
226.36 Control devices.
226.37 Waste of oil and gas.
226.38 Measuring and storing oil.
226.39 Measurement of gas.
226.40 Use of gas for lifting oil.
226.41 Accidents to be reported.
226.42 Penalty for violation of lease terms.
226.43 Penalties for violation of certain operating regulations.
226.44 Appeals.
226.45 Notices.
226.46 Information collection.
Authority: Sec. 3, 34 Stat. 543; secs. 1, 2, 45 Stat. 1478; sec.
3, 52 Stat. 1034, 1035; sec. 2(a), 92 Stat. 1660.
Source: 39 FR 22254, June 21, 1974, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 226.1 Definitions.
As used in this part 226, terms shall have the meanings set forth in
this section.
(a) Secretary means the Secretary of the Interior or his authorized
representative acting under delegated authority.
(b) Osage Tribal Council means the duly elected governing body of the
Osage Nation or Tribe of Indians of Oklahoma vested with authority to
lease or take other actions on oil and gas mining pertaining to the
Osage Mineral Estate.
(c) Superintendent means the Superintendent of the Osage Agency,
Pawhuska, Oklahoma, or his authorized representative acting under
delegated authority.
(d) Oil lessee means any person, firm, or corporation to whom an oil
mining lease is made under the regulations in this part.
(e) Gas lessee means any person, firm, or corporation to whom a gas
mining lease is made under the regulations in this part.
(f) Oil and gas lessee means any person, firm, or corporation to whom
an oil and gas mining lease is made under the regulations in this part.
(g) Primary term means the basic period of time for which a lease is
issued during which the lease contract may be kept in force by payment
of rentals.
(h) Major purchaser means any one of the minimum number of purchasers
taking 95 percent of the oil in Osage County, Oklahoma. Any oil
purchased by a purchaser from itself, its subsidiaries, partnerships,
associations, or other corporations in which it has a financial or
management interest shall be excluded from the determination of a major
purchaser.
(i) Casinghead gas means gas produced from an oil well as a
consequence of oil production from the same formation.
(j) Natural gas means any fluid, either combustible or
noncombustible, recovered at the surface in the gaseous phase and/or
hydrocarbons recovered at the surface as liquids which are the result of
condensation caused by reduction of pressure and temperature of
hydrocarbons originally existing in a reservoir in the gaseous phase.
(k) Authorized representative of an oil lessee, gas lessee, or oil
and gas lessee means any person, group, or groups of persons,
partnership, association, company, corporation, organization or agent
employed by or contracted with a lessee or any subcontractor to conduct
oil and gas operations or provide facilities to market oil and gas.
(l) Oil well means any well which produces one (1) barrel or more of
crude petroleum oil for each 15,000 standard cubic feet of natural gas.
(m) Gas well means any well which:
(1) Produces natural gas not associated with crude petroleum oil at
the time of production or
(2) Produces more than 15,000 standard cubic feet of natural gas to
each barrel of crude petroleum oil from the same producing formation.
(39 FR 22254, June 21, 1974, as amended at 41 FR 50648, Nov. 17,
1976; 43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33114, Aug. 14, 1990)
25 CFR 226.1 Leasing Procedure, Rental and Royalty
25 CFR 226.2 Sale of leases.
(a) Written application, together with any nomination fee, for tracts
to be offered for lease shall be filed with the Superintendent.
(b) The Superintendent, with the consent of the Osage Tribal Council,
shall publish notices for the sale of oil leases, gas leases, and oil
and gas leases to the highest responsible bidder on specific tracts of
the unleased Osage Mineral Estate. The Superintendent may require any
bidder to submit satisfactory evidence of his good faith and ability to
comply with all provisions of the notice of sale. Successful bidders
must deposit with the Superintendent on day of sale a check or cash in
an amount not less than 25 percent of the cash bonus offered as a
guaranty of good faith. Any and all bids shall be subject to the
acceptance of the Osage Tribal Council and approval of the
Superintendent. Within 20 days after notification of being the
successful bidder, and said bidder must submit to the Superintendent the
balance of the cash bonus, a $10 filing fee, and the lease in completed
form. The Superintendent may extend the time for the completion and
submission of the lease form, but no extension shall be granted for
remitting the balance of moneys due. If the bidder fails to pay the
full cash consideration within said period or fails to file the
completed lease within said period or extention thereof, or if the lease
is rejected through no fault of the Osage Tribal Council or the
Superintendent, 25 percent of the cash bonus bid will be forfeited for
the use and benefits of the Osage Tribe. The Superintendent may reject
a lease made on an accepted bid, upon evidence satisfactory to him of
collusion, fraud, or other irregularity in connection with the notice of
sale. The Superintendent may approve oil leases, gas leases, and oil
and gas leases made by the Osage Tribal Council in conformity with the
notice of sale, regulations in this part, bonds, and other instruments
required.
(c) Each oil and/or gas lease and activities and installations
associated therewith subject to these regulations shall be assessed and
evaluated for its environmental impact prior to its approval by the
Superintendent.
(d) Lessee shall accept a lease with the understanding that a mineral
not covered by his lease may be leased separately.
(e) No lease, assignment thereof, or interest therein will be
approved to any employee or employees of the Government and no such
employee shall be permitted to acquire any interest in leases covering
the Osage Mineral Estate by ownership of stock in corporations having
leases or in any other manner.
(f) The Osage Tribal Council may utilize the following procedures
among others, in entering into a mining lease. A contract may be
entered into through competitive bidding as outlined in 226.2(b),
negotiation, or a combination of both. The Osage Tribal Council may
also request the Superintendent to undertake the preparation,
advertisement and negotiation. The Superintendent may approve any such
contract made by the Osage Tribal Council.
(39 FR 22254, June 21, 1974, as amended at 43 FR 8135, Feb. 28, 1978.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 226.3 Surrender of lease.
Lessee may, with the approval of the Superintendent and payment of a
$10 filing fee, surrender all or any portion of any lease, have the
lease cancelled as to the portion surrendered and be relieved from all
subsequent obligations and liabilities. If the lease, or portion being
surrendered, is owned in undivided interests by more than one party,
then all parties shall join in the application for cancellation:
Provided, That if this lease has been recorded, Lessee shall execute a
release and record the same in the proper office. Such surrender shall
not entitle Lessee to a refund of the unused portion of rental paid in
lieu of development, nor shall it relieve Lessee and his sureties of any
obligation and liability incurred prior to such surrender: Provided
further, That when there is a partial surrender of any lease and the
acreage to be retained is less than 160 acres or there is a surrender of
a separate horizon, such surrender shall become effective only with the
consent of the Osage Tribal Council and approval of the Superintendent.
(43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 226.4 Form of payment.
Sums due under a lease contract and/or the regulations in this part
shall be paid by cash or check made payable to the Bureau of Indian
Affairs and delivered to the Osage Agency, Pawhuska, Oklahoma 74056.
Such sums shall be a prior lien on all equipment and unsold oil on the
leased premises.
25 CFR 226.5 Leases subject to current regulations.
Leases issued pursuant to this part shall be subject to the current
regulations of the Secretary, all of which are made a part of such
leases: Provided, That no amendment or change of such regulations made
after the approval of any lease shall operate to affect the term of the
lease, rate of royalty, rental, or acreage unless agreed to by both
parties and approved by the Superintendent.
25 CFR 226.6 Bonds.
Lessees shall furnish with each lease a corporate surety bond
acceptable to the Superintendent as follows:
(a) A bond on Form D shall be filed with each lease submitted for
approval. Such bond shall be in an amount of not less than $5,000 for
each quarter section or fractional quarter section covered by said
lease: Provided, however, That one bond in the penal sum or not less
than $50,000 may be filed on Form G covering all oil, gas and
combination oil and gas leases not in excess of 10,240 acres to which
Lessee is or may become a party.
(b) In lieu of the bonds required under paragraph (a) of this
section, a bond in the penal sum of $150,000 may be filed on Form 5-5438
for full nationwide coverage of all leases, without geographic or
acreage limitation, to which the Lessee is or may become a party.
(c) A bond on Form H shall be filed in an amount of not less than
$5,000 covering a lease acquired through assignment where the assignee
does not have a collective bond on form G or nationwide bond, or the
corporate surety does not execute its consent to remain bound under the
original bond given to secure the faithful performance of the terms and
conditions of the lease.
(d) The right is specifically reserved to increase the amount of
bonds prescribed in paragraphs (a) and (c) of this section in any
particular case when the Superintendent deems it proper. The nationwide
bond may be increased at any time in the discretion of the Secretary.
(39 FR 22254, June 21, 1974, as amended at 43 FR 8135, Feb. 28, 1978;
43 FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33114, Aug. 14, 1990)
25 CFR 226.7 Provisions of forms made a part of the regulations.
Leases, assignments, and supporting instruments shall be in the form
prescribed by the Secretary, and such forms are hereby made a part of
the regulations.
25 CFR 226.8 Corporation and corporate information.
(a) If the applicant for a lease is a corporation, it shall file
evidence of authority of its officers to execute papers; and with its
first application it shall also file a certified copy of its Articles of
Incorporation and, if foreign to the State of Oklahoma, evidence showing
compliance with the corporation laws thereof.
(b) Whenever deemed advisable the Superintendent may require a
corporation to file any additional information necessary to carry out
the purpose and intent of the regulations in this part, and such
information shall be furnished within a reasonable time.
25 CFR 226.9 Rental and drilling obligations.
(a) Oil leases, gas leases, and combination oil and gas leases.
Unless Lessee shall complete and place on production a well producing
and selling oil and/or gas in paying quantities on the land embraced
within the lease within 12 months from the date of approval of the
lease, or as otherwise provided in the lease terms, or 12 months from
the date the Superintendent consents to drilling on any restricted
homestead selection, the lease shall terminate unless rental at the rate
of not less than $1 per acre for an oil or gas lease, or not less than
$2.00 per acre for a combination oil and gas lease, shall be paid before
the end of the first year of the lease. The lease may also be held for
the remainder of its primary term without drilling upon payment of the
specified rental annually in advance, commencing with the second lease
year. The lease shall terminate as of the due date of the rental unless
such rental shall be received by the Superintendent, or shall have been
mailed as indicated by postmark on or before said date. The completion
of a well producing in paying quantities shall, for so long as such
production continues, relieve Lessee from any further payment of rental,
except that should such production cease during the primary term the
lease may be continued only during the remaining primary term of the
lease by payment of advance rental which shall commence on the next
anniversary date of the lease. Rental shall be paid on the basis of a
full year and no refund will be made of advance rental paid in
compliance with the regulations in this part: Provided, That the
Superintendent in his discretion may order further development of any
leased acreage or separate horizon if, in his opinion, a prudent
operator would conduct further development. If Lessee refuses to
comply, the refusal will be considered a violation of the lease terms
and said lease shall be subject to cancellation as to the acreage or
horizon the further development of which was ordered: Provided further,
That the Superintendent may impose restrictions as to time of drilling
and rate of production from any well or wells when in his judgment, such
action may be necessary or proper for the protection of the natural
resources of the leased land and the interests of the Osage Tribe. The
superintendent may consider, among other things, Federal and Oklahoma
laws regulating either drilling or production. If a lessee holds both
an oil lease and a gas lease covering the same acreage, such lessee is
subject to the provisions of this section as to both the oil lease and
the gas lease.
(b) The Superintendent may, with the consent of and under terms
approved by the Osage Tribal Council, grant an extension of the primary
term of a lease on which the actual drilling of a well shall have
commenced within the term thereof or for the purpose of enabling Lessee
to obtain a market for his oil and/or gas production.
(43 FR 8135, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 226.10 Term of lease.
Leases issued hereunder shall be for a primary term as established by
the Osage Tribal Council, approved by the Superintendent, and so stated
in the notice of sale of such leases and so long thereafter as the
minerals specified are produced in paying quantities.
(43 FR 8136, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 226.11 Royalty payments.
(a) Royalty on oil -- (1) Royalty rate. Lessee shall pay or cause to
be paid to the Superintendent, as royalty, the sum of not less than 16
2/3 percent of the gross proceeds from sales after deducting the oil
used by Lessee for development and operation purposes on the lease:
Provided, That when the quantity of oil taken from all the producing
wells on any quarter-section or fraction thereof, according to the
public survey, during any calendar month is sufficient to average one
hundred or more barrels per active producing well per day the royalty on
such oil shall be not less than 20 percent. The Osage Tribal Council
may, upon presentation of justifiable economic evidence by Lessee, agree
to a revised royalty rate subject to approval by the Superintendent,
applicable to additional oil produced from a lease or leases by enhanced
recovery methods, which rate shall not be less than 12 1/2 percent of
the gross proceeds from sale of oil produced by enhanced recovery
processes, other than gas injection, after deducting the oil used by
Lessee for development and operating purposes on the lease or leases.
(2) Unless the Osage Tribal Council, with approval of the Secretary,
shall elect to take the royalty in kind, payment is owing at the time of
sale or removal of the oil, except where payments are made on division
orders, and settlement shall be based on the highest of the bona fide
selling price, posted or offered price by a major purchaser (as defined
in 226.1(h)) in Osage County, Oklahoma, who purchases production from
Osage oil leases.
(3) Royalty in kind. Should Lessor, with approval of the Secretary,
elect to take the royalty in kind, Lessee shall furnish free storage for
royalty oil for a period not to exceed 60 days from date of production
after notice of such election.
(b) Royalty on gas -- (1) Oil Lease. All casinghead gas shall belong
to the oil Lessee subject to any rights under existing gas leases. All
casinghead gas removed from the lease from which it is produced shall be
metered unless otherwise approved by the Superintendent and be subject
to a royalty of not less than 16 2/3 percent of the market value of the
gas and all products extracted therefrom, less a reasonable allowance
for manufacture or processing. If an oil Lessee supplies casinghead gas
produced from one lease for operation and/or development of other
leases, either his/hers or others, a royalty of not less than 16 2/3
percent shall be paid on the market value of all casinghead gas so used.
All casinghead gas not utilized by the oil Lessee may, with the
approval of the Superintendent, be utilized or sold by the gas Lessee,
subject to the prescribed royalty of not less than 16 2/3 percent of the
market value.
(2) Gas lease. Lessee shall pay a royalty of not less than 16 2/3
percent of the market value value of all natural gas and products
extracted therefrom produced and sold from his lease. Natural gas used
in the reasonable and prudent operation and development of said lease
shall be exempted from royalty payment.
(3) Combination oil and gas lease. Lessee shall pay royalty as
provided in paragraphs (b) (1) and (2) of this section.
(c) Minimum royalty. In no event shall the royalty paid from
producing leases during any year be less than an amount equal to the
annual rental specified for the lease. Any underpayment of minimum
royalty shall be due and payable within 45 days following the end of the
lease year. After the primary term, Lessee shall submit with his
payment evidence that the lease is producing in paying quantities. The
Superintendent is authorized to determine whether the lease is actually
producing in paying quantities or has terminated for lack of such
production. Payment for any underpayment not made within the time
specified shall be subject to a late charge at the rate of not less than
1 1/2 percent per month for each month or fraction thereof until paid.
(39 FR 22254, June 21, 1974, as amended at 43 FR 8136, Feb. 28, 1978;
43 FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33114, Aug. 14, 1990)
25 CFR 226.12 Government reserves right to purchase oil.
Any of the executive departments of the U.S. Government shall have
the option to purchase all or any part of the oil produced from any
lease at not less than the highest posted price as defined in 226.11
25 CFR 226.13 Time of royalty payments and reports.
(a) Royalty payments due may be paid by either purchaser or Lessee.
Unless otherwise provided by the Osage Tribal Council and approved by
the Superintendent, all payments shall be due by the 25th day of each
month and shall cover the sales of the preceding month. Failure to make
such payments shall subject Lessee or purchaser, whoever is responsible
for royalty payment, to a late charge at the rate of not less than 1 1/2
percent for each month or fraction thereof until paid. The Osage Tribal
Council, subject to the approval of the Superintendent, may waive the
late charges.
(b) Lessee shall furnish certified monthly reports by the 25th of
each following month covering all operations, whether there has been
production or not, indicating therein the total amount of oil, natural
gas, casinghead gas, and other products subject to royalty payment.
(c) Failure to remit payments or reports shall subject Lessee to
further penalties as provided in 226.42 and 226.43 and shall subject
the division order to cancellation.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33114, Aug. 14, 1990)
25 CFR 226.14 Contracts and division orders.
(a) Lessee may enter into division orders or contracts with the
purchasers of oil, gas, or derivatives therefrom which will provide for
the purchaser to make payment of royalty in accordance with his lease:
Provided, That such division orders or contracts shall not relieve
Lessee from responsibility for the payment of the royalty should the
purchaser fail to pay. No production shall be removed from the leased
premises until a division order and/or contract and its terms are
approved by the Superintendent: Provided further, That the
Superintendent may grant temporary permission to run oil or gas from a
lease pending the approval of a division order or contract. Lessee
shall file a certified monthly report and pay royalty on the value of
all oil and gas used off the premises for development and operating
purposes. Lessee shall be responsible for the correct measurement and
reporting of all oil and/or gas taken from the leased premises.
(b) Lessee shall require the purchaser of oil and/or gas from his/her
lease or leases to furnish the Superintendent, no later than the 25th
day of each month, a statement reporting the gross barrels of oil and/or
gross Mcf of gas sold during the preceding month. The Superintendent
may authorize an extension of time, not to exceed 10 days, for
furnishing this statement.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33114, Aug. 14, 1990)
25 CFR 226.15 Unit leases, assignments and related instruments.
(a) Unitization of leases. The Osage Tribal Council and Lessee or
Lessees, may, with the approval of the Superintendent, unitize or merge,
two or more oil or oil and gas leases into a unit or cooperative
operating plan to promote the greatest ultimate recovery of oil and gas
from a common source of supply or portion thereof embracing the lands
covered by such lease or leases. The cooperative or unit agreement
shall be subject to the regulations in this part and applicable laws
governing the leasing of the Osage Mineral Estate. Any agreement
between the parties in interest to terminate a unit or cooperative
agreement as to all or any portion of the lands included shall be
submitted to the Superintendent for his approval. Upon approval the
leases included thereunder shall be restored to their original terms:
Provided, That for the purpose of preventing waste and to promote the
greatest ultimate recovery of oil and gas from a common source of supply
or portion thereof, all oil leases, oil and gas leases, and gas leases
issued heretofore and hereafter under the provisions of the regulations
in this part shall be subject to any unit development plan affecting the
leased lands that may be required by the Superintendent with the consent
of the Osage Tribal Council, and which plan shall adequately protect the
rights of all parties in interest including the Osage Mineral Estate.
(b) Assignments. Approved leases or any interest therein may be
assigned or transferred only with the approval of the Superintendent.
The assignee must be qualified to hold such lease under existing rules
and regulations and shall furnish a satisfactory bond conditioned for
the faithful performance of the covenants and conditions thereof.
Lessee must assign either his entire interest in a lease or legal
subdivision thereof, or an undivided interest in the whole lease:
Provided, That when an assignment covers only a portion of a lease or
covers interests in separate horizons such assignment shall be subject
to both the consent of the Osage Tribal Council and approval of the
Superintendent. If a lease is divided by the assignment of an entire
interest in any part, each part shall be considered a separate lease and
the assignee shall be bound to comply with all the terms and conditions
of the original lease. A fully executed copy of the assignment shall be
filed with the Superintendent within 30 days after the date of execution
by all parties. If requested within the 30-day period, the
Superintendent may grant an extension of 15 days. A filing fee of $10
shall accompany each assignment.
(c) Overriding royalty. Agreements creating overriding royalties or
payments out of production shall not be considered as an interest in a
lease as such term is used in paragraph (b) of this section. Agreements
creating overriding royalties or payments out of production are hereby
authorized and the approval of the Department of the Interior or any
agency thereof shall not be required with respect thereto, but such
agreements shall be subject to the condition that nothing in any such
agreement shall be construed as modifying any of the obligations of
Lessee under his lease and the regulations in this part. All such
obligations are to remain in full force and effect, the same as if free
of any such royalties or payments. The existence of agreements creating
overriding royalties or payments out of production, whether or not
acutally paid, shall not be considered in justifying the shutdown or
abandonment of any well. Agreements creating overriding royalties or
payments out of production need not be filed with the Superintendent
unless incorporated in assignments or instruments required to be filed
pursuant to paragraph (b) of this section. An agreement creating
overriding royalties or payment out of production shall be suspended
when the working interest income per active producing well is equal to
or less than the operational cost of the well, as determined by the
Superintendent.
(d) Drilling contracts. The Superintendent is authorized to approve
drilling contracts with a stipulation that such approval does not in any
way bind the Department to approve subsequent assignments that may be
provided for in said contracts. Approval merely authorizes entry on the
lease for the purpose of development work.
(e) Combining leases. The lessee owning both an oil lease and gas
lease covering the same acreage is authorized to convert such leases to
a combination oil and gas lease.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
25 CFR 226.15 Operations
25 CFR 226.16 Commencement of operations.
(a) No operations shall be permitted upon any tract of land until a
lease covering such tract shall have been approved by the
Superintendent: Provided, That the Superintendent may grant authority
to any party under such rules, consistent with the regulations in this
part that he deems proper, to conduct geophysical and geological
exploration work.
(b) Lessee shall submit applications on forms to be furnished by the
Superintendent and secure his approval before:
(1) Well drilling, treating, or workover operations are started on
the leased premises.
(2) Removing casing from any well.
(c) Lessee shall notify the Superintendent a reasonable time in
advance of starting work, of intention to drill, redrill, deepen, plug,
or abandon a well.
25 CFR 226.17 How to acquire permission to begin operations on a
restricted homestead allotment.
(a) Lessee may conduct operations within or upon a restricted
homestead selection only with the written consent of the Superintendent.
(b) If the allottee is unwilling to permit operations on his
homestead, the Superintendent will cause an examination of the premises
to be made with the allottee and lessee or his representative. Upon
finding that the interests of the Osage Tribe require that the tract be
developed, the Superintendent will endeavor to have the parties agree
upon the terms under which operations on the homestead may be conducted.
(c) In the event the allottee and lessee cannot reach an agreement,
the matter shall be presented by all parties before the Osage Tribal
Council, and the Council shall make its recommendations. Such
recommendations shall be considered as final and binding upon the
allottee and lessee. A guardian may represent the allottee. Where no
one is authorized or where no person is deemed by the Superintendent to
be a proper party to speak for a person of unsound mind or feeble
understanding, the Principal Chief of the Osage Tribe shall represent
him.
(d) If the allottee or his representative does not appear before the
Osage Tribal Council when notified by the Superintendent, or if the
Council fails to act within 10 days after the matter is referred to it,
the Superintendent may authorize lessee to proceed with operations in
conformity with the provisions of his lease and the regulations in this
part.
25 CFR 226.18 Information to be given surface owners prior to
commencement of drilling operations.
Except for the surveying and staking of a well, no operations of any
kind shall commence until the lessee or his/her authorized
representative shall meet with the surface owner or his/her
representative, if a resident of and present in Osage County, Oklahoma.
Unless waived by the Superintendent or otherwise agreed to between the
lessee and surface owner, such meeting shall be held at least 10 days
prior to the commencement or any operations, except for the surveying
and staking of the well. At such meeting lessee or his/her authorized
representative shall comply with the following requirements:
(a) Indicate the location of the well or wells to be drilled.
(b) Arrange for route of ingress and egress. Upon failure to agree
on route ingress and egress, said route shall be set by the
Superintendent.
(c) Impart to said surface owners the name and address of the party
or representative upon whom the surface owner shall serve any claim for
damages which he may sustain from mineral development or operations, and
as to the procedure for settlement thereof as provided in 226.21
(d) Where the drilling is to be on restricted land, lessee or his
authorized representative in the manner provided above shall meet with
the Superintendent.
(e) When the surface owner or his/her representative is not a
resident of, or is not physically present in, Osage County, Oklahoma, or
cannot be contacted at the last known address, the Superintendent may
authorize lessee to proceed with operations.
(39 FR 22254, June 21, 1974, as amended at 41 FR 50648, Nov. 17,
1976; 43 FR 8136, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
25 CFR 226.19 Use of surface of land.
(a) Lessee or his/her authorized representative shall have the right
to use so much of the surface of the land within the Osage Mineral
Estate as may be reasonable for operations and marketing. This includes
but is not limited to the right to lay and maintain pipelines, electric
lines, pull rods, other appliances necessary for operations and
marketing, and the right-of-way for ingress and egress to any point of
operations. If Lessee and surface owner are unable to agree as to the
routing of pipelines, electric lines, etc., said routing shall be set by
the Superintendent. The right to use water for lease operations is
established by 226.24. Lessee shall conduct his/her operations in a
workmanlike manner, commit no waste and allow none to be committed upon
the land, nor permit any unavoidable nuisance to be maintained on the
premises under his/her control.
(b) Before commencing a drilling operation, Lessee shall pay or
tender to the surface owner commencement money in the amount of $25 per
seismic shot hole and commencement money in the amount of $300 for each
well, after which Lessee shall be entitled to immediate possession of
the drilling site. Commencement money will not be required for the
redrilling of a well which was originally drilled under the currently
lease. A drilling site shall be held to the minimum area essential for
operations and shall not exceed one and one-half acres in area unless
authorized by the Superintendent. Commencement money shall be a credit
toward the settlement of the total damages. Acceptance of commencement
money by the surface owner does not affect his/her right to compensation
for damages as described in 226.20, occasioned by the drilling and
completion of the well for which it was paid. Since actual damage to
the surface from operations cannot necessarily be ascertained prior to
the completion of a well as a serviceable well or dry hole, a damage
settlement covering the drilling operation need not be made until after
completion of drilling operations.
(c) Where the surface is restricted land, commencement money shall be
paid to the Superintendent for the landowner. All other surface owners
shall be paid or tendered such commencement money direct. Where such
surface owners are not residents of Osage County nor have a
representative located therein, such payment shall be made or tendered
to the last known address of the surface owner at least 5 days before
commencing drilling operation on any well: Provided, That should lessee
be unable to reach the owner of the surface of the land for the purpose
of tendering the commencement money or if the owner of the surface of
the land shall refuse to accept the same, lessee shall deposit such
amount with the Superintendent by check payable to the Bureau of Indian
Affairs. The superintendent shall thereupon advise the owner of the
surface of the land by mail at his last known address that the
commencement money is being held for payment to him upon his written
request.
(d) Lessee shall also pay fees for tank sites not exceeding 50 feet
square at the rate of $100 per tank site or other vessel: Provided,
That no payment shall be due for a tank temporarily set on a well
location site for drilling, completing, or testing. The sum to be paid
for a tank occupying more than 50 feet square shall be agreed upon
between the surface owner and lessee or, on failure to agree, the same
shall be determined by arbitration as provided by 226.21.
(39 FR 22254, June 22, 1974, as amended at 43 FR 8136, Feb. 28, 1978;
43 FR 11815, Mar. 22, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
25 CFR 226.20 Settlement of damages claimed.
(a) Lessee or his authorized representative or geophysical permittee
shall pay for all damages to growing crops, any improvements on the
lands, and all other surface damages as may be occasioned by operations.
Commencement money shall be a credit toward the settlement of the total
damages occasioned by the drilling and completion of the well for which
it was paid. Such damages shall be paid to the owner of the surface and
by him apportioned among the parties interested in the surface, whether
as owner, surface lessee, or otherwise, as the parties may mutually
agree or as their interests may appear. If lessee or his authorized
representative and surface owner are unable to agree concerning damages,
the same shall be determined by arbitration. Nothing herein contained
shall be construed to deny any party the right to file an action in a
court of competent jurisdiction if he is dissatisfied with the amount of
the award.
(b) Surface owners shall notify their lessees or tenants of the
regulations in this part and of the necessary procedure to follow in all
cases of alleged damages. If so authorized in writing, surface lessees
or tenants may represent the surface owners.
(c) In settlement of damages on restricted land all sums due and
payable shall be paid to the Superintendent for credit to the account of
the Indian entitled thereto. The Superintendent will make the
apportionment between the Indian landowner or owners and surface Lessee
of record.
(d) Any person claiming an interest in any leased tract or in damages
thereto, must furnish to the Superintendent a statement in writing
showing said claimed interest. Failure to furnish such statement shall
constitute a waiver of notice and estop said person from claiming any
part of such damages after the same shall have been disbursed.
(39 FR 22254, June 21, 1974, as amended at 41 FR 50649, Nov. 17,
1976; 43 FR 8137, Feb. 28, 1978. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 226.21 Procedure for settlement of damages claimed.
Where the surface owner or his lessee suffers damage due to the oil
and gas operations and/or marketing of oil or gas by lessee or his
authorized representative, the procedure for recovery shall be as
follows:
(a) The party or parties aggrieved shall, as soon as possible after
the discovery of any damages, serve written notice to Lessee or his
authorized representative as provided by 226.18. Written notice shall
contain the nature and location of the alleged damages, the date of
occurrence, the names of the party or parties causing said damages, and
the amount of damages. It is not intended by this requirement to limit
the time within which action may be brought in the courts to less than
the 90-day period allowed by section 2 of the Act of March 2, 1929 (45
Stat. 1478, 1479).
(b) If the alleged damages are not adjusted at the time of such
notice, Lessee or his authorized representative shall try to adjust the
claim with the party or parties aggrieved within 20 days from receipt of
the notice. If the claimant is the owner of restricted property and a
settlement results, a copy of the settlement agreement shall be filed
with the Superintendent. If the settlement agreement is approved by the
Superintendent, payment shall be made to the Superintendent for the
benefit of said claimant.
(c) If the parties fail to adjust the claim within the 20 days
specified, then within 10 days thereafter each of the interested parties
shall appoint an arbitrator who immediately upon their appointment shall
agree upon a third arbitrator. If the two arbitrators shall fail to
agree upon a third arbitrator within 10 days, they shall immediately
notify the parties in interest. If said parties cannot agree upon a
third arbitrator within 5 days after receipt of such notice, the
Superintendent shall appoint the third arbitrator.
(d) As soon as the third arbitrator is appointed, the arbitrators
shall meet; hear the evidence and arguments of the parties; and
examine the lands, crops, improvements, or other property alleged to
have been injured. Within 10 days they shall render their decision as
to the amount of the damage due. The arbitrators shall be disinterested
persons. The fees and expenses of the third arbitrator shall be borne
equally by the claimant and Lessee or his authorized representative.
Each Lessee or his authorized representative and claimant shall pay the
fee and expenses for the arbitrator appointed by him.
(e) When an act of an oil or gas lessee or his authorized
representative results in injury to both the surface owner and his
lessee, the parties aggrieved shall join in the appointment of an
arbitrator. Where the injury complained of is chargeable to one or more
oil or gas Lessee, or his authorized representative, such lessee or said
representative shall join in the appointment of an arbitrator.
(f) Any two of the arbitrators may make a decision as to the amount
of damage due. The decision shall be in writing and forthwith shall be
served upon the parties in interest. Each party shall have 90 days from
the date the decision is served in which to file an action in a court of
competent jurisdiction. If no such action is filed within said time and
the award is against Lessee or his/her authorized representative, he/she
shall pay the same, together with interest at an annual rate established
for the Internal Revenue Service from date of award, within 10 days
after the expiration of said period for filing an action.
(g) Lessee or his authorized representative shall file with the
Superintendent a report on each settlement agreement, setting out the
nature and location of the damage, date, and amount of the settlement,
and any other pertinent information.
(39 FR 22254, June 21, 1974, as amended at 41 FR 50649, Nov. 17,
1976. Redesignated at 47 FR 13327, Mar. 30, 1982, and amended at 55 FR
33115, Aug. 14, 1990)
Editorial Note: At 55 FR 33115, Aug. 14, 1990, the Bureau of Indian
Affairs published a document amending 226.21(f) by removing the word
''forthwith'' from the first sentence and adding the word ''forthwith''
to follow directly after the word ''served''; however, because these
terms do not exist in the first sentence, this amendment could not be
incorporated. BIA, Interior, will publish a document correctly amending
226.21(f) at a later date.
25 CFR 226.22 Prohibition of pollution.
(a) All operators, contractors, drillers, service companies, pipe
pulling and salvaging contractors, or other persons, shall at all times
conduct their operations and drill, equip, operate, produce, plug and
abandon all wells drilled for oil or gas, service wells or exploratory
wells (including seismic, core and stratigraphic holes) in a manner that
will prevent pollution and the migration of oil, gas, salt water or
other substance from one stratum into another, including any fresh water
bearing formation.
(b) Pits for drilling mud or deleterious substance used in the
drilling, completion, recompletion, or workover of any well shall be
constructed and maintained to prevent pollution of surface and
subsurface fresh water. These pits shall be enclosed with a fence of at
least four strands of barbed wire, or an approved substitute, stretched
taut to adequately braced corner posts, unless the surface owner, user,
or the Superintendent gives consent to the contrary. Immediately after
completion of operations, pits shall be emptied and leveled unless
otherwise requested by surface owner or user.
(c) Drilling pits shall be adequate to contain mud and other material
extracted from wells and shall have adequate storage to maintain a
supply of mud for use in emergencies.
(d) No earthen pit, except those used in the drilling, completion,
recompletion or workover of a well, shall be constructed, enlarged,
reconstructed or used without approval of the Superintendent. Unlined
earthen pits shall not be used for the continued storage of salt water
or other deleterious substances.
(e) Deleterious fluids other than fresh water drilling fluids used in
drilling or workover operations, which are displaced or produced in well
completion or stimulation procedures, including but not limited to
fracturing, acidizing, swabbing, and drill stem tests, shall be
collected into a pit lined with plastic of at least 30 mil or a metal
tank and maintained separately from above-mentioned drilling fluids to
allow for separate disposal.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
25 CFR 226.23 Easements for wells off leased premises.
The Superintendent, with the consent of the Osage Tribal Council, may
grant commercial and noncommercial easements for wells off the leased
premises to be used for purposes associated with oil and gas production.
Rental payable to the Osage Tribe for such easements shall be an amount
agreed to by Grantee and the Osage Tribal Council subject to the
approval of the Superintendent. Grantee shall be responsible for all
damages resulting from the use of such wells and settlement therefor
shall be made as provided in 226.21.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
25 CFR 226.24 Lessee's use of water.
Lessee or his contractor may, with the approval of the
Superintendent, use water from streams and natural water courses to the
extent that same does not diminish the supply below the requirements of
the surface owner from whose land the water is taken. Similarly, Lessee
or his contractor may use water from reservoirs formed by the
impoundment of water from such streams and natural water courses,
provided such use does not exceed the quantity to which they originally
would have been entitled had the reservoirs not been constructed.
Lessee or his contractor may install necessary lines and other equipment
within the Osage Mineral Estate to obtain such water. Any damage
resulting from such installation shall be settled as provided in
226.21.
25 CFR 226.25 Gas well drilled by oil lessees and vice versa.
Prior to drilling, the oil or gas lessee shall notify the other
lessees of his/her intent to drill. When an oil lessee in drilling a
well encounters a formation or zone having indications of possible gas
production, or the gas lessee in drilling a well encounters a formation
or zone having indication of possible oil production, he/she shall
immediately notify the other lessee and the Superintendent. Lessee
drilling the well shall obtain all information which a prudent operator
utilizes to evaluate the productive capability of such formation or
zone.
(a) Gas well to be turned over to gas lessee. If the oil lessee
drills a gas well, he/she shall, without removing from the well any of
the casing or other equipment, immediately shut the well in and notify
the gas lessee and the Superintendent. If the gas lessee does not,
within 45 days after receiving notice and cost of drilling, elect to
take over such well and reimburse the oil lessee the cost of drilling,
including all damages paid and the cost in-place of casing, tubing, and
other equipment, the oil lessee shall immediately confine the gas to the
original stratum. The disposition of such well and the production
therefrom shall then be subject to the approval of the Superintendent.
In the event the oil lessee and gas lessee cannot agree on the cost of
the well, such cost shall be apportioned between the oil and gas lessee
by the Superintendent. If such apportionment is not accepted, the well
shall be plugged by the oil and gas lessee who drilled the well.
(b) Oil well to be turned over to oil lessee. If the gas lessee
drills an oil well, he/she shall immediately, without removing from the
well any of the casing or other equipment, notify the oil lessee and the
Superintendent. If the oil lessee does not, within 45 days after
receipt of notice and cost of drilling, elect to take over the well,
he/she shall immediately notify the gas lessee, and the disposition of
such well and the production therefrom shall be subject to the approval
of the Superintendent. Should the oil lessee elect to take over the
well, he/she shall pay the gas lessee the cost of drilling the same,
including all damages paid and cost inplace of casing and other
equipment. In the event the oil lessee and gas lessee cannot agree on
the cost of the well, such cost shall be apportioned between the oil and
gas lessee by the Superintendent. If such apportionment is not
accepted, the well shall be plugged by the oil and gas lessee who
drilled the well.
(c) Lands not leased. If the gas lessee shall drill an oil well upon
lands not leased for oil purposes or vice versa, the Superintendent may,
until such time as said lands are leased, permit the lessee who drilled
the well to operate and market the production therefrom. When said
lands are leased, the lessee who drilled and completed the well shall be
reimbursed by the oil or gas lessee, for the cost of drilling said well,
including all damages paid and the cost in-place of casing, tubing, and
other equipment. If the lessee does not elect to take over said well as
provided above, the disposition of such well and the production
therefrom shall be determined by the Superintendent. In the event the
oil lessee and gas lessee cannot agree on the cost of the well, such
cost shall be apportioned between the oil and gas lessee by the
Superintendent. If such apportionment is not accepted, the well shall
be plugged by the oil and gas lessee who drilled the well.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
Editorial Note: At 55 FR 33115, Aug. 14, 1990, the Bureau of Indian
Affairs published a document amending 226.25(b) by removing in the
third sentence the word ''the'' before the word ''receipt'', removing
the word ''such'' before the word ''notice'', removing the words
''notice of the,'' and in the fourth sentence inserting the word
''casing'' preceding and followed by commas after the word ''tubing'';
however, because these terms do not exist in the third and fourth
sentences, this amendment could not be incorporated. BIA, Interior,
will publish a document correctly amending 226.25(b) at a later date.
25 CFR 226.26 Determining cost of well.
The term ''cost of drilling'' as applied where one lessee takes over
a well drilled by another, shall include all reasonable, usual,
necessary, and proper expenditures. A list of expenses mentioned in
this section shall be presented to proposed purchasing lessee within 10
days after the completion of the well. In the event of a disagreement
between the parties as to the charges assessed against the well that is
to be taken over, such charges shall be determined by the
Superintendent.
25 CFR 226.27 Gas for operating purposes and tribal use.
(a) Gas to be furnished oil lessee. Lessee of a producing gas lease
shall furnish the oil lessee sufficient gas for operating purposes at a
rate to be agreed upon, or on failure to agree the rate shall be
determined by the Superintendent: Provided, That the oil lessee shall
at his own expense and risk, furnish and install the necessary
connections to the gas lessee's well or pipeline. All such connections
shall be reported in writing to the Superintendent.
(b) Use of gas by Osage Tribe. (1) Gas from any well or wells shall
be furnished any Tribal-owned building or enterprise at a rate not to
exceed the price less royalty being received or offered by a gas
purchaser: Provided, That such requirement shall be subject to the
determination by the Superintendent that gas in sufficient quantities is
available above that needed for lease operation and that no waste would
result. In the absence of a gas purchaser the rate to be paid by the
Osage Tribe shall be determined by the Superintendent based on prices
being paid by purchasers in the Osage Mineral Estate. The Osage Tribe
is to furnish all necessary material and labor for such connection with
Lessee's gas system. The use of such gas shall be at the risk of the
Osage Tribe at all times.
(2) Any member of the Osage Tribe residing in Osage County and
outside a corporate city is entitled to the use at his own expense of
not to exceed 400,000 cubic feet of gas per calendar year for his
principal residence at a rate not to exceed the amount paid by a gas
purchaser plus 10 percent: Provided, That such requirement shall be
subject to the determination by the Superintendent that gas in
sufficient quantities is available above that needed for lease operation
and that no waste would result. In the absence of a gas purchaser the
amount to be paid by the Tribal member shall be determined by the
Superintendent. Gas to Tribal members is not royalty free. The Tribal
member is to furnish all necessary material and labor for such
connection to Lessee's gas system, and shall maintain his own lines.
The use of such gas shall be at the risk of the Tribal member at all
times.
(3) Gas furnished by Lessee under paragraphs (b) (1) and (2) of this
section may be terminated only with the approval of the Superintendent.
Written application for termination must be made to the Superintendent
showing justification.
25 CFR 226.27 Cessation of Operations
25 CFR 226.28 Shutdown, abandonment, and plugging of wells.
No productive well shall be abandoned until its lack for further
profitable production of oil and/or gas has been demonstrated to the
satisfaction of the Superintendent. Lessee shall not shut down,
abandon, or otherwise discontinue the operation or use of any well for
any purpose without the written approval of the Superintendent. All
applications for such approval shall be submitted to the Superintendent
on forms furnished by him/her.
(a) Application for authority to permanently shut down or discontinue
use or operation of a well shall set forth justification, probable
duration the means by which the well bore is to be protected, and the
contemplated eventual disposition of the well. The method of
conditioning such well shall be subject to the approval of the
Superintendent.
(b) Prior to permanent abandonment of any well, the oil lessee or the
gas lessee, as the case may be, shall offer the well to the other for
his recompletion or use under such terms as may be mutually agreed upon
but not in conflict with the regulations. Failure of the Lessee
receiving the offer to reply within 10 days after receipt thereof shall
be deemed as rejection of the offer. If, after indicating acceptance,
the two parties cannot agree on the terms of the offer within 30 days,
the disposition of such well shall be determined by the Superintendent.
(c) The Superintendent is authorized to shut in a lease when the
lessee fails to comply with the terms of the lease, the regulations,
and/or orders of the Superintendent.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
25 CFR 226.29 Disposition of casings and other improvements.
(a) Upon termination of lease, permanent improvements, unless
otherwise provided by written agreement with the surface owner and filed
with the Superintendent, shall remain a part of said land and become the
property of the surface owner upon termination of the lease, other than
by cancellation. Exceptions include personal property not limited to
tools, tanks, pipelines, pumping and drilling equipment, derricks,
engines, machinery, tubing, and the casings of all wells: Provided,
That when any lease terminates, all such personal property shall be
removed the word ''terminates''; and in the last sentence of the
paragraph, within 90 days or such reasonable extension of time as may be
granted by the Superintendent. Otherwise, the ownership of all casings
shall revert to Lessor and all other personal property and permanent
improvements to the surface owner. Nothing herein shall be construed to
relieve lessee of responsibility for removing any such personal property
or permanent improvements from the premises if required by the
Superintendent and restoring the premises as nearly as practicable to
the original state.
(b) Upon cancellation of lease. When there has been a cancellation
for cause, Lessor shall be entitled and authorized to take immediate
possession of the lease premises and all permanent improvements and all
other equipment necessary for the operation of the lease.
(c) Wells to be abandoned shall be promptly plugged as prescribed by
the Superintendent. Applications to plug shall include a statement
affirming compliance with 226.28(b) and shall set forth reasons for
plugging, a detailed statement of the proposed work including kind,
location, and length of plugs (by depth), plans for mudding and
cementing, testing, parting and removing casing, and any other pertinent
information: Provided, That the Superintendent may give oral permission
and instructions pending receipt of a written application to plug a
newly drilled hole. Lessee shall remit a fee of $15 with each written
application for authority to plug a well. This fee will be refunded if
permission is not granted.
(d) Lessee shall plug and fill all dry or abandoned wells in a manner
to confine the fluid in each formation bearing fresh water, oil, gas,
salt water, and other minerals, and to protect it against invasion of
fluids from other sources. Mud-laden fluid, cement, and other plugs
shall be used to fill the hole from bottom to top: Provided, That if a
satisfactory agreement is reached between Lessee and the surface owner,
subject to the approval of the Superintendent, Lessee may condition the
well for use as a fresh water well and shall so indicate on the plugging
record. The manner in which plugging material shall be introduced and
the type of material so used shall be subject to the approval of the
Superintendent. Within 10 days after plugging, Lessee shall file with
the Superintendent a complete report of the plugging of each well. When
any well is plugged and abandoned, Lessee shall, within 90 days, clean
up the premises around such well to the satisfaction of the
Superintendent.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33115, Aug. 14, 1990)
25 CFR 226.29 Requirements of Lessees
25 CFR 226.30 Lessees subject to Superintendent's orders; books and
records open to inspection.
Lessee shall comply with all orders or instructions issued by the
Superintendent. The Superintendent or his representative may enter upon
the leased premises for the purpose of inspection. Lessee shall keep a
full and correct account of all operations, receipts, and disbursements
and make reports thereof, as required. Lessee's books and records shall
be available to the Superintendent for inspection.
25 CFR 226.31 Lessee's process agents.
(a) Before actual drilling or development operations are commenced on
leased lands, Lessee or Assignee, if not a resident of the State of
Oklahoma, shall appoint a local or resident representative within the
State of Oklahoma on whom the Superintendent may serve notice or
otherwise communicate in securing compliance with the regulations in
this part, and shall notify the Superintendent of the name and post
office address of the representative appointed.
(b) Where several parties own a lease jointly, one representative or
agent shall be designated whose duties shall be to act for all parties
concerned. Designation of such representative should be made by the
party in charge of operations.
(c) In the event of the incapacity or absence from the State of
Oklahoma of such designated local or resident representative, Lessee
shall appoint a substitute to serve in his stead. In the absence of
such representative or appointed substitute, any employee of Lessee upon
the leased premises or person in charge of drilling or related
operations thereon shall be considered the representative of Lessee for
the purpose of service of orders or notices as herein provided.
25 CFR 226.32 Well records and reports.
(a) Lessee shall keep accurate and complete records of the drilling,
redrilling, deepening, repairing, treating, plugging, or abandonment of
all wells. These records shall show all the formations penetrated, the
content and character of oil, gas, or water in each formation, and the
kind, weight, size, landed depth and cement record of casing used in
drilling each well; the record of drill-stem and other bottom hole
pressure or fluid sample surveys, temperature surveys, directional
surveys, and the like; the materials and procedure used in the treating
or plugging of wells or in preparing them for temporary abandonment;
and any other information obtained in the course of well operation.
(b) Lessee shall take such samples and make such tests and surveys as
may be required by the Superintendent to determine conditions in the
well or producing reservoir and to obtain information concerning
formations drilled, and shall furnish reports thereof as required by the
Superintendent.
(c) Within 10 days after completion of operations on any well, Lessee
shall transmit to the Superintendent the applicable information on forms
furnished by the Superintendent; a copy of electrical, mechanical or
radioactive log, or other types of survey of the well bore; and core
analysis obtained from the well. Lessee shall also submit other reports
and records of operations as may be required and in the manner and form
prescribed by the Superintendent.
(d) Lessee shall measure production of oil, gas, and water from
individual wells at reasonably frequent intervals to the satisfaction of
the Superintendent.
(e) Upon request and in the manner and form prescribed by the
Superintendent, Lessee shall furnish a plat showing the location,
designation, and status of all wells on the leased lands, together with
such other pertinent information as the Superintendent may require.
25 CFR 226.33 Line drilling.
Lessee shall not drill within 300 feet of boundary line of leased
lands, nor locate any well or tank within 200 feet of any public
highway, any established watering place, or any building used as a
dwelling, granary, or barn, except with the written permission of the
Superintendent. Failure to obtain advance written permission from the
Superintendent shall subject lessee to cancellation of his/her lease
and/or plugging of the well.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33116, Aug. 14, 1990)
25 CFR 226.34 Wells and tank batteries to be marked.
Lessee shall clearly and permanently mark all wells and tank
batteries in a conspicuous place with number, legal description,
operator, and telephone number, and shall take all necessary precautions
to preserve these markings.
(55 FR 33116, Aug. 14, 1990)
25 CFR 226.35 Formations to be protected.
Lessee shall, to the satisfaction of the Superintendent, take all
proper precautions and measures to prevent damage or pollution of oil,
gas, fresh water, or other mineral bearing formations.
25 CFR 226.36 Control devices.
In drilling operations in fields where high pressures, lost
circulation, or other conditions exist which could result in blowouts,
lessee shall install an approved gate valve or other controlling device
which is in proper working condition for use until the well is
completed. At all times preventative measures must be taken in all well
operations to maintain proper control of subsurface strata.
(55 FR 33116, Aug. 14, 1990)
25 CFR 226.37 Waste of oil and gas.
Lessee shall conduct all operations in a manner that will prevent
waste of oil and gas and shall not wastefully utilize oil or gas. The
Superintendent shall have the authority to impose such requirements as
he deems necessary to prevent waste of oil and gas and to promote the
greatest ultimate recovery of oil and gas. Waste as applied herein
includes, but is not limited to, the inefficient excessive or improper
use or dissipation of reservoir energy which would reasonably reduce or
diminish the quantity of oil or gas that might ultimately be produced,
or the unnecessary or excessive surface loss or destruction, without
beneficial use, of oil and/or gas.
25 CFR 226.38 Measuring and storing oil.
All production run from the lease shall be measured according to
methods and devices approved by the Superintendent. Facilities suitable
for containing and measuring accurately all crude oil produced from the
wells shall be provided by Lessee and shall be located on the leasehold
unless otherwise approved by the Superintendent. Lessee shall furnish
to the Superintendent a copy of 100-percent capacity tank table for each
tank. Meters and installations for measuring oil must be approved, and
tests of their accuracy shall be made when directed by the
Superintendent.
25 CFR 226.39 Measurement of gas.
All gas, required to be measured, shall be measured by meter
(preferably of the orifice meter type) unless otherwise agreed to by the
Superintendent. All gas meters must be approved by the Superintendent
and installed at the expense of Lessee or purchaser at such places as
may be agreed to by the Superintendent. For computing the volume of all
gas produced, sold or subject to royalty, the standard of pressure shall
be 14.65 pounds to the square inch, and the standard of temperature
shall be 60 degrees F. All measurements of gas shall be adjusted by
computation to these standards, regardless of the pressure and
temperature at which the gas was acutally measured, unless otherwise
authorized in writing by the Superintendent.
25 CFR 226.40 Use of gas for lifting oil.
Lessee shall not use natural gas from a distinct or separate stratum
for the purpose of flowing or lifting the oil, except where said Lessee
has an approved right to both the oil and the gas, and then only with
the approval of the Superintendent of such use and of the manner of its
use.
25 CFR 226.41 Accidents to be reported.
Lessee shall make a complete report to the Superintendent of all
accidents, fires, or acts of theft and vandalism occurring on the leased
premises.
25 CFR 226.41 Penalties
25 CFR 226.42 Penalty for violation of lease terms.
Violation of any of the terms or conditions of any lease or of the
regulations in this part shall subject the lease to cancellation by the
Superintendent, or Lessee to a fine of not more than $500 per day for
each day of such violation or noncompliance with the orders of the
Superintendent, or to both such fine and cancellation. Fines not
received within 10 days after notice of the decision shall be subject to
late charges at the rate of not less than 1 1/2 percent per month for
each month or fraction thereof until paid. The Osage Tribal Council,
subject to the approval of the Superintendent, may waive the late
charge.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33116, Aug. 14, 1990)
25 CFR 226.43 Penalties for violation of certain operating regulations.
In lieu of the penalties provided under 226.42, penalties may be
imposed by the Superintendent for violation of certain sections of the
regulations of this part as follows:
(a) For failure to obtain permission to start operations required by
226.16(b), $50 per day until permission is obtained.
(b) For failure to file records required by 226.32, $50 per day
until compliance is met.
(c) For failure to mark wells and tank batteries as required by
226.34, $50 for each well and tank battery.
(d) For failure to construct and maintain pits as required by
226.22, $50 for each day after operations are commenced on any well
until compliance is met.
(e) For failure to comply with 226.36 regarding valve or other
approved controlling device, $100.
(f) For failure to notify Superintendent before drilling, redrilling,
deepening, plugging, or abandoning any well, as required by 226.16(c)
and 226.25, $200.
(g) For failure to properly care for and dispose of deleterious
fluids as provided in 226.22, $500 per day until compliance is met.
(h) For failure to file plugging reports as required by 226.29 and
for failure to file reports as required by 226.13, $50 per day for each
violation until compliance is met.
(i) For failure to perform or start an operation within 5 days after
ordered by the Superintendent in writing under authority provided in
this part, if said operation is thereafter performed by or through the
Superintendent, the actual cost of performance thereof, plus 25 percent.
(j) Lessee or his/her authorized representative is hereby notified
that criminal procedures are provided by 18 U.S.C. 1001 for knowingly
filing fraudulent reports and information.
(39 FR 22254, June 21, 1974. Redesignated at 47 FR 13327, Mar. 30,
1982, and amended at 55 FR 33116, Aug. 14, 1990)
25 CFR 226.43 Appeals and Notices
25 CFR 226.44 Appeals.
Any person, firm or corporation aggrieved by any decision or order
issued by or under the authority of the Superintendent, by virtue of the
regulations in this part, may appeal pursuant to 25 CFR part 2.
(55 FR 33116, Aug. 14, 1990)
25 CFR 226.45 Notices.
Notices and orders issued by the Superintendent to the representative
and/or operator shall be binding on the lessee. The Superintendent may
in his/her discretion increase the time allowed in his/her orders and
notices.
(55 FR 33116, Aug. 14, 1990)
25 CFR 226.46 Information collection.
The Office of Management and Budget has determined that the
information collection requirements contained in this part need not be
submitted for clearance pursuant to 44 U.S.C. 3501 et seq.
(55 FR 33116, Aug. 14, 1990)
25 CFR 226.46 PART 227 -- LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN
RESERVATION, WYOMING, FOR OIL AND GAS MINING
Sec.
227.1 Definitions.
227.2 Applications for leases.
227.3 Leases to citizens of the United States except Government
employees.
227.4 Sale of oil and gas leases.
227.5 Terms of leases, procedure for renewal and execution.
227.6 Corporations and corporate information.
227.7 Additional information from applicant.
227.8 Bonds.
227.9 Acreage limitation: Leases on noncontiguous tracts.
227.10 Minerals other than oil and gas.
227.11 Bureau of Land Management to be furnished copy of lease.
227.12 Mineral reserves in nonmineral entries.
227.13 Vested rights to be respected.
227.14 Government reserves right to purchase oil and gas.
227.15 Manner of payment.
227.16 Crediting advance annual payments.
227.17 Rates of rents and royalties.
227.18 Free use of gas by lessor.
227.19 Division orders.
227.20 Permission to start operations.
227.21 Restrictions on operations.
227.22 Diligence and prevention of waste.
227.23 Wells.
227.24 Penalties.
227.25 Inspection of premises, books and accounts.
227.26 Assignments and overriding royalties.
227.27 Stipulations.
227.28 Cancellations.
227.29 Fees.
227.30 Forms.
Authority: Sec. 1, 39 Stat. 519, unless otherwise noted.
Source: 22 FR 10622, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 227.1 Definitions.
(a) The term ''superintendent'' in this part refers to the
superintendent or other officers of the Bureau of Indian Affairs or of
the Government who may have jurisdiction over the Shoshone or Wind River
Reservation.
(b) The term ''supervisor'' in this part refers to a representative
of the Secretary of the Interior, under direction of the Director of the
U.S. Geological Survey, authorized and empowered to supervise and direct
operations under oil and gas mining leases, to furnish scientific and
technical information and advice, to ascertain and record the amount and
value of production, and to determine and record rentals and royalties
due and paid.
Cross Reference: For rules and regulations of the Geological Survey,
see 30 CFR chapter II.
25 CFR 227.1 How To Acquire Leases
25 CFR 227.2 Applications for leases.
Applications for leases should be made to the superintendent.
25 CFR 227.3 Leases to citizens of the United States except Government
employees.
Leases will be made only to persons who are citizens of the United
States or have declared their intention to become so, or corporations
which are organized under the laws of the United States or one of the
States or Territories: Provided, That no lease, assignment thereof, or
interest therein will be approved to any employee or employees of the
United States Government, whether connected with the Bureau or
otherwise, and no employee of the Interior Department shall be permitted
to acquire any interest in such leases by ownership of stock in
corporations having leases or in any other manner.
(R.S. 2078; 25 U.S.C. 68)
25 CFR 227.4 Sale of oil and gas leases.
(a) At such times and in such manner as he may deem appropriate,
after being authorized by the Joint Business Council of the Shoshone and
Arapahoe Tribes or its authorized representative, the superintendent
shall publish notices at least thirty days prior to the sale, unless a
shorter period is authorized by the Secretary of the Interior or his
authorized representative, that oil and gas leases on specific tracts,
each of which shall be in a reasonably compact body, will be offered to
the highest responsible bidder for a bonus consideration, in addition to
stipulated rentals and royalties. Each bid must be accompanied by a
cashier's check, certified check, or postal money order, payable to the
payee designated in the invitation to bid, in an amount not less than 25
percent of the bonus bid. Within 30 days after notification of being
the successful bidder, said bidder must remit the balance of the bonus,
the first year's rental, and his share of the advertising costs, and
shall file with the superintendent the lease in completed form. The
superintendent may for good and sufficient reasons, extend the time for
completion and submission of the lease form, but no extension shall be
granted for remitting the balance of monies due. If the successful
bidder fails to pay the full consideration within said period, or fails
to file the completed lease within said period or extension thereof, or
if the lease is disapproved through no fault of the lessor or the
Department of the Interior, 25 percent of the bonus bid will be
forfeited for the use and benefit of the Shoshone and Arapahoe Tribes.
(b) All notices or advertisements of sales of oil and gas leases
shall reserve to the Secretary of the Interior the right to reject all
bids when in his judgment the interests of the Indians will be best
served by so doing, and that if no satisfactory bid is received, or if
the accepted bidder fails to complete the lease, or if the Secretary of
the Interior shall determine that it is unwise in the interests of the
Indians to accept the highest bid, the Secretary may readvertise such
lease for sale, or if deemed advisable, with the consent of the tribal
council or other governing tribal authorities, a lease may be made by
private negotiations. The successful bidder or bidders will be required
to pay his or their share of the advertising costs. Amounts received
from unsuccessful bidders will be returned; but when no bid is accepted
on a tract, the costs of advertising will be assessed against the
applicant who requested that said tract be advertised.
(22 FR 10622, Dec. 24, 1957, as amended at 25 FR 7185, July 29, 1960.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 227.5 Terms of leases, procedure for renewal and execution.
(a) Leases shall be for a period of twenty years with the
preferential right in the lessee to renew the same for successive
periods of ten years each upon such reasonable terms and conditions as
may be prescribed by the Secretary of the Interior or his authorized
representative, unless otherwise provided by law at the expiration of
any such period. Applications for renewal of leases shall be filed with
the superintendent within ninety days prior to the date of expiration of
the lease. One copy of the application for renewal shall be filed by
the applicant with the Joint Business Council of the Shoshone and
Arapahoe Tribes and no lease shall be renewed unless the Joint Business
Council or its authorized representative is afforded an opportunity to
present the Council's views to the Secretary of the Interior or his
authorized representative.
(b) The Secretary of the Interior or his authorized representative
may execute oil and gas leases with the consent of the Joint Business
Council or its authorized representative, and may execute renewals of
leases after consultation with the Joint Business Council or its
authorized representative.
(25 FR 7185, July 29, 1960. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 227.6 Corporations and corporate information.
(a) If the applicant for a lease is a corporation, it shall file
evidence of authority of its officers to execute papers; and with its
first application it shall also file a certified copy of its articles of
incorporation, and, if foreign to the state in which the lands are
located, evidence showing compliance with the corporation laws thereof.
Statements of changes in officers and stockholders shall be furnished by
a corporation lessee to the superintendent January 1 of each year, and
at such other times as may be requested.
(b) Whenever deemed advisable in any case the superintendent may
require a corporation applicant or lessee to file:
(1) List of officers, principal stockholders, and directors, with
post-office addresses and number of shares held by each.
(2) A sworn statement of the proper officer showing:
(i) The total number of shares of the capital stock actually issued
and the amount of cash paid into the treasury on each share sold; or,
if paid in property, the kind, quantity, and value of same paid per
share.
(ii) Of the stock sold, how much remains unpaid and subject to
assessment.
(iii) The amount of cash the company has in its treasury and
elsewhere.
(iv) The property, exclusive of cash owned by the company and its
value.
(v) The total indebtedness of the company and the nature of its
obligations.
(vi) Whether the applicant or any person controlling, controlled by
or under common control with the applicant has filed any registration
statement, application for registration, prospectus or offering sheet
with the Securities and Exchange Commission pursuant to the Securities
Act of 1933 or the Securities Exchange Act of 1934 or said Commission's
rules and regulations under said acts; if so, under what provision of
said acts or rules and regulations; and what disposition of any such
statement, application, prospectus or offering sheet has been made.
(c) Affidavits of individual stockholders, setting forth in what
corporations, or with what persons, firms, or associations such
individual stockholders are interested in mining leases on restricted
lands within the state, and whether they hold such interest for
themselves or in trust.
Cross Reference: For rules and regulations of the Securities and
Exchange Commission, See 17 CFR chapter II.
25 CFR 227.7 Additional information from applicant.
The superintendent may, either before or after approval of a lease,
call for any additional information desired to carry out the regulations
in this part. If a lessee shall fail to furnish the papers necessary to
put his lease and bond in proper form for consideration, the
superintendent shall forward such lease for disapproval.
25 CFR 227.8 Bonds.
The provisions of 211.6 of this chapter, or as hereafter amended,
are applicable to leases under this part.
25 CFR 227.9 Acreage limitation: Leases on noncontiguous tracts.
No person, firm, or corporation will be allowed to lease for oil and
gas more than 10,240 acres in the aggregate. The land contained in the
lease shall be described by legal subdivisions, and leases may be
executed to cover only adjoining or contiguous subdivisions. In case a
lessee is a successful bidder for two or more tracts of land which are
not contiguous, separate leases shall be executed.
25 CFR 227.10 Minerals other than oil and gas.
Unreserved, unwithdrawn, and unallotted lands which have not been
leased for oil and gas under the act of August 21, 1916 (39 Stat. 519)
and which are not chiefly valuable therefor, are subject to mineral
application or mineral entry, for minerals other than oil and gas, under
the supervision of the Bureau of Land Management.
25 CFR 227.11 Bureau of Land Management to be furnished copy of lease.
The Bureau of Land Management shall be furnished with a copy of each
lease signed by the Secretary of the Interior.
25 CFR 227.12 Mineral reserves in nonmineral entries.
Where lands have been leased under authority of said act of August
21, 1916 (39 Stat. 519), and nonmineral entry is subsequently lawfully
made for such lands with a view to obtaining a restricted patent
therefor, all such subsequently allowed nonmineral entries shall be with
the mineral reservation prescribed by the act of July 17, 1914 (38 Stat.
509).
25 CFR 227.13 Vested rights to be respected.
All drilling and other oil and natural gas developments and mining
operations, work, and improvements, and all other acts and things
necessary to be done, in connection with the exploration for mining and
production of oil and natural gas from the leased premises, under the
terms and conditions of a lease shall be performed with due regard to
the rights, statutory and otherwise, of others, if any, who may have or
who may acquire a lawful claim or estate to the leased premises,
separate and distinct from the oil and gas or other mineral therein
contained. See act of July 17, 1914 (38 Stat. 509).
25 CFR 227.14 Government reserves right to purchase oil and gas.
In time of war or other public emergency any of the executive
departments of the United States Government shall have the option to
purchase at the posted market price on the date of sale all or any part
of the minerals produced under any lease.
25 CFR 227.14 Rents and Royalties
25 CFR 227.15 Manner of payment.
All payments due the lessor shall be made to the superintendent for
the benefit of the Shoshone Indian Tribe, in accordance with the act of
August 21, 1916 (39 Stat. 519), and no credit will be given any lessee
for payments made otherwise. Payments of rentals and royalties except
the first year's rental, which shall be paid to the superintendent as
prescribed in 227.4 shall be transmitted to the superintendent through
the supervisor. All such payments shall be accompanied by a statement,
in triplicate, by the lessee, showing the specific items of royalty or
rental that the remittance is intended to cover, and payment of
royalties on production shall be made not later than the last day of the
calendar month following the production for which such payment is to be
made.
25 CFR 227.16 Crediting advance annual payments.
In the event of discovery of minerals in paying quantities all
advance rents and advance royalties shall be allowed as credit on
stipulated royalties as they accrue for the year for which such advance
payments have been made. No refund of any such advance payment made
under any lease will be allowed in the event the royalty on production
for the year is not sufficient to equal such advance payment; nor will
any part of the moneys so paid be refunded to the lessee because of any
subsequent surrender or cancellation of the lease.
25 CFR 227.17 Rates of rents and royalties.
(a) The lessee shall pay, beginning with the date of execution of
leases by the Secretary of the Interior, a rental of $1.25 per acre per
annum in advance during the continuance thereof, together with a royalty
of 12 1/2 percent of the value or amount of all oil, gas, and/or natural
gasoline, and/or all other hydrocarbon substances produced and saved
from the land leased, save and except oil and/or gas used by the lessee
for development and operation purposes on the lease, which oil or gas
shall be royalty free. A higher rate of royalty may be fixed by the
Secretary of the Interior or his authorized representative, prior to the
advertisement of land for oil and gas leases. During the period of
supervision, ''value'' for the purposes of the lease may, in the
discretion of the Secretary of the Interior, be calculated on the basis
of the highest price paid or offered (whether calculated on the basis of
short or actual volume) at the time of production for the major portion
of the oil of the same gravity, and gas, and/or natural gasoline, and/or
all other hydrocarbon substances produced and sold from the field where
the leased lands are situated, and the actual volume of the marketable
product less the content of foreign substances as determined by the
supervisor. The actual amount realized by the lessee from the sale of
said products may, in the discretion of the Secretary of the Interior,
be deemed mere evidence of or conclusive evidence of such value. When
paid in value, such royalties shall be due and payable monthly at such
time as the lease provides; when royalty on oil produced is paid in
kind, such royalty oil shall be delivered in tanks provided by the
lessee on the premises where produced without cost to the lessor unless
otherwise agreed to by the parties thereto, at such time as may be
required by the lessor. The lessee shall not be required to hold such
royalty oil in storage longer than 30 days after the end of the calendar
month in which said oil is produced. The lessee shall be in no manner
responsible or held liable for loss or destruction of such oil by causes
beyond his control.
(b) The proceeds from all leases shall be taken up in the accounts of
the superintendent for appropriate deposit for the benefit of the
Indians.
25 CFR 227.18 Free use of gas by lessor.
If the leased premises produce gas in excess of the lessee's
requirements for the development and operation of said premises, then
the lessor may use sufficient gas, free of charge, for any desired
school or other buildings belonging to the tribe, by making his own
connections to a regulator installed, connected to the well and
maintained by the lessee, and the lessee shall not be required to pay
royalty on gas so used. The use of such gas shall be at the lessor's
risk at all times.
25 CFR 227.19 Division orders.
(a) Lessees may make arrangements with the purchasers of oil for the
payment of the royalties on production to the superintendent by such
purchasers, but such arrangements, if made, shall not operate to relieve
a lessee from responsibility should the purchaser fail or refuse to pay
such royalties when due. Where lessees avail themselves of this
privilege, division orders permitting the pipeline companies or other
purchasers of the oil to withhold the royalty interest shall be executed
and forwarded to the supervisor for approval, as pipeline companies are
not permitted to accept or run oil from leased Indian lands until after
the approval of a division order showing that the lessee has a lease
regularly approved and in effect. When the lessee company runs its own
oil, it shall execute an intracompany division order and forward it to
the supervisor for his consideration. The right is reserved for the
supervisor to cancel a division order at any time or require the
pipeline company to discontinue to run the oil of any lessee who fails
to operate the lease properly or otherwise violates the provisions of
the lease, of the regulations in this part, or of the operating
regulations.
(b) When oil is taken by authority of a division order, the lessee or
his representatives shall be actually present when the oil is gaged and
records are made of the temperature, gravity and impurities. The lessee
will be held responsible for the correctness and the correct recording
and reporting of all the foregoing measurements, which except lowest
gage, shall be made at the time the oil is turned into the pipeline.
Failure of the lessee to perform properly these duties will subject the
division order to revocation.
Cross Reference: For oil and gas operating regulations of the
Geological Survey, see 30 CFR part 221.
25 CFR 227.19 Operations
25 CFR 227.20 Permission to start operations.
(a) No operations will be permitted on any lease before it is
executed by the Secretary of the Interior.
(b) Written permission must be secured from the supervisor or his
representative before any operations are started on the leased premises.
After such permission is secured the operations must be in accordance
with the operating regulations promulgated by the Secretary of the
Interior. Copies of the regulations in this part may be secured from
either the supervisor or the superintendent, and no operations should be
attempted without a study of the operating regulations.
25 CFR 227.21 Restrictions on operations.
(a) All leases issued under the provisions of the regulations in this
part shall be subject to imposition by the Secretary of the Interior of
such restrictions as to time or times for the drilling of wells and as
to the production from any well or wells as in his judgment may be
necessary or proper for the protection of the natural resources of the
leased land and in the interest of the lessor. In the exercise of his
judgment the Secretary of the Interior may take into consideration,
among other things, the Federal laws, State laws, regulations by
competent Federal or State authorities, lawful agreements among
operators regulating either drilling or production, or both, and any
regulatory action desired by tribal authorities.
(b) All leases issued pursuant to the regulations in this part shall
be subject to a co-operative or unit development plan affecting the
leased lands if and when required by the Secretary of the Interior, but
no lease shall participate in any cooperative or unit plan without prior
approval of the Secretary of the Interior.
25 CFR 227.22 Diligence and prevention of waste.
The lessee shall exercise diligence in drilling and operating wells
for oil and gas on the leased lands while such products can be secured
in paying quantities; carry on all operations in a good and workmanlike
manner in accordance with approved methods and practice, having due
regard for the prevention of waste of oil or gas developed on the land,
or the entrance of water through wells drilled by the lessee to the
productive sands or oil or gas-bearing strata to the destruction or
injury of the oil or gas deposits, the preservation and conservation of
the property for future productive operations, and to the health and
safety of workmen and employees; plug securely all wells before
abandoning the same and to shut off effectually all water from the oil
or gas-bearing strata; not drill any well within 200 feet of any house
or barn on the premises without the lessor's written consent; carry out
at his expense all reasonable orders and requirements of the supervisor
relative to prevention of waste, and preservation of the property and
the health and safety of workmen; bury all pipelines crossing tillable
lands below plow depth unless other arrangements therefor are made with
the superintendent; pay all damages to crops, buildings, and other
improvements on the premises occasioned by the lessee's operations:
Provided, That the lessee shall not be held responsible for delays or
casualties occasioned by causes beyond his control.
25 CFR 227.23 Wells.
The lessee shall agree (a) to drill and produce all wells necessary
to offset or protect the leased land from drainage by wells on adjoining
lands not the property of the lessor, or in lieu thereof, compensate the
lessor in full each month for the estimated loss of royalty through
drainage: Provided, That during the period of supervision by the
Secretary of the Interior, the necessity for offset wells shall be
determined by the supervisor and payment in lieu of drilling and
producing shall be with the consent of, and in an amount determined by
the Secretary of the Interior; (b) at the election of the lessee to
drill and produce other wells: Provided, That the right to drill and
produce such other wells shall be subject to any system of well spacing
or production allotments authorized and approved under the applicable
law or regulations, approved by the Secretary of the Interior and
affecting the field or area in which the leased lands are situated; and
(c) if the lessee elects not to drill and produce such other wells for
any period the Secretary of the Interior may, within 10 days after due
notice in writing, either require the drilling and production of such
wells to the number necessary, in his opinion, to insure reasonable
diligence in the development and operation of the property, or may in
lieu of such additional diligent drilling and production require the
payment on and after the first anniversary date of the lease of not to
exceed $1 per acre per annum, which sum shall be in addition to any
rental or royalty herein specified.
25 CFR 227.24 Penalties.
Failure of the lessee to comply with any provisions of the lease, of
the operating regulations, of the regulations in this part, orders of
the superintendent or his representative, or of the orders of the
supervisor or his representative, shall subject the lessee to a penalty
of not more than $500 per day for each day the terms of the lease, the
regulations, or such orders are violated: Provided, That the lessee
shall be entitled to notice, and hearing within 30 days after such
notice, with respect to the terms of the lease, regulations, or orders
violated, which hearing shall be held by the supervisor, whose findings
shall be conclusive unless an appeal be taken to the Secretary of the
Interior within 30 days after notice of the supervisor's decision, and
the decision of the Secretary of the Interior upon appeal shall be
conclusive.
25 CFR 227.25 Inspection of premises, books and accounts.
Lessee shall agree to allow the lessor and his agents or any
authorized representative of the Interior Department to enter, from time
to time, upon and into all parts of the leased premises for the purposes
of inspection and shall further agree to keep a full and correct account
of all operations and make reports thereof, as required by the
applicable regulations of the Department; and their books and records,
showing manner of operations and persons interested, shall be open at
all times for examination of such officers of the Department as shall be
instructed in writing by the Secretary of the Interior or authorized by
regulations, to make such examination.
25 CFR 227.26 Assignments and overriding royalties.
(a) Leases, or any interest therein, may be assigned or transferred
only with the approval of the Secretary of the Interior, and to procure
such approval the assignee must be qualified to hold such lease under
existing rules and regulations, and shall furnish a satisfactory bond
for the faithful performance of the covenants and conditions thereof.
No lease or any interest therein, or the use of such lease, shall be
assigned, sublet, or transferred directly or indirectly, by working or
drilling contract, or otherwise without the consent of the Secretary of
the Interior. Assignments of leases shall be filed with the
superintendent within 20 days after the date of execution.
(b) An agreement creating overriding royalties or payments out of
production under this part shall be subject to the provisions of
211.26(d) of this chapter, or as hereafter amended.
(22 FR 10622, Dec. 24, 1957, as amended at 23 FR 9759, Dec. 18, 1958.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 227.27 Stipulations.
The lessee under any lease heretofore executed may be stipulation
(Form 5-154i), with the consent of the lessor, make such lease subject
to all the terms, conditions, and provisions contained in the lease form
currently in use. Stipulations shall be filed with the superintendent
within 20 days after the date of execution.
25 CFR 227.28 Cancellations.
Leases shall be irrevocable except for breach of the terms and
conditions of the same and may be forfeited and cancelled by an
appropriate proceeding in the U.S. District Court for the District of
Wyoming whenever the lessee fails to comply with their terms and
conditions; the lessee may, on approval of the Secretary of the
Interior, surrender a lease or any part of it:
(a) That he make application for cancellation to the superintendent
having jurisdiction over the land.
(b) That he pay a surrender fee of $1 at the time the application is
made.
(c) That he pay all royalties and rentals due to the date of such
application.
(d) That he make a satisfactory showing that full provision has been
made for conservation and protection of the property and that all wells,
drilled on the portion of the lease surrendered, have been properly
abandoned.
(e) If the lease has been recorded, that he file, with his
application, a recorded release of the acreage covered by the
application.
(f) If the application is for the cancellation of the entire lease or
the entire undivided portion, that he surrender the lease: Provided,
That where the application is made by an assignee to whom no copy of the
lease was delivered, he will be required to surrender only his copy of
the assignment.
(g) If the lease (or portion being surrendered or canceled) is owned
in undivided interests by more than one party, then all parties shall
join in the application for cancellation.
(h) That all required fees and papers must be in the mail or received
on or before the date upon which rents and royalties become due, in
order for the lessee and his surety to be relieved from liability for
the payment of such royalties and rentals.
(i) In the event oil or gas is being drained from the leased premises
by wells not covered by the lease; the lease, or any part of it may be
surrendered, only on such terms and conditions as the Secretary of the
Interior may determine to be reasonable and equitable.
25 CFR 227.29 Fees.
Unless otherwise authorized by the Secretary of the Interior or his
authorized representative, each lease, sublease, or assignment shall be
accompanied at the time of filing by a fee of $10.
(Sec. 1, 41 Stat. 415, as amended; 25 U.S.C. 413)
(24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 227.30 Forms.
The provisions of 211.30 of this chapter, or as hereafter amended
are applicable to this part.
(24 FR 7949, Oct. 2, 1959. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 227.30 SUBCHAPTER J -- FISH AND WILDLIFE
25 CFR 227.30 PART 241 -- INDIAN FISHING IN ALASKA
Sec.
241.1 Purpose.
241.2 Annette Islands Reserve; definition; exclusive fishery;
licenses.
241.3 Commercial fishing, Annette Islands Reserve.
241.4 Subsistence and sport fishing, Annette Islands Reserve.
241.5 Commercial fishing, Karluk Indian Reservation.
241.6 Enforcement; violation of regulations; corrective action;
penalties; closure of restrictions, Annette Islands Reserve.
Authority: 25 U.S.C. 2, 9; 43 U.S.C. 1457; sec. 15, 26 Stat.
1101, 48 U.S.C. 358; Presidential Proclamation, Apr. 28, 1916, 39
Stat. 1777; sec. 2, 49 Stat. 1250, 48 U.S.C. 358a; sec. 4, 72 Stat.
339, as amended 73 Stat. 141.
Source: 28 FR 7183, July 12, 1963, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 241.1 Purpose.
The purpose of the regulations in this part is to regulate all
fishing within the Annette Islands Reserve and to regulate Indian and
other native commercial fishing in the Karluk Indian Reservation, but
they shall not be construed to limit any rights of Indians or other
natives of Alaska not specifically covered hereby.
25 CFR 241.2 Annette Islands Reserve; definition; exclusive fishery;
licenses.
(a) Definition. The Annette Islands Reserve is defined as the
Annette Islands in Alaska, as set apart as a reservation by section 15
of the Act of March 3, 1891 (26 Stat. 1101, 48 U.S.C. sec. 358), and
including the area identified in the Presidential Proclamation of April
28, 1916 (39 Stat. 1777), as the waters within three thousand feet from
the shore lines at mean low tide of Annette Island, Ham Island, Walker
Island, Lewis Island, Spire Island, Hemlock Island, and adjacent rocks
and islets, located within the broken line upon the diagram attached to
and made a part of said Proclamation; and also the bays of said
islands, rocks, and islets.
(b) Exclusive fishery. The Annette Islands Reserve is declared to be
exclusively reserved for fishing by the members of the Metlakatla Indian
Community and such other Alaskan Natives as have joined or may join them
in residence on the aforementioned islands, and any other person fishing
therein without authority or permission of the Metlakatla Indian
Community shall be subject to prosecution under the provisions of
section 2 of the Act of July 2, 1960 (74 Stat. 469, 18 U.S.C. sec.
1165).
(c) Licenses. Members of the Metlakatla Indian Community, and such
other Alaskan Natives as have joined them or may join them in residence
on the aforementioned islands, shall not be required to obtain a license
or permit from the State of Alaska to engage in fishing in the waters of
the Annette Islands Reserve.
25 CFR 241.3 Commercial fishing, Annette Islands Reserve.
(a) Definition. Commercial fishing is the taking, fishing for, or
possession of fish, shellfish, or other fishery resources with the
intent of disposing of such fish, shellfish, or other fishery resources
or parts thereof for profit, or by sale, barter, trade, or in commercial
channels.
(b) Trap fishing sites; number and location. During 1963, and until
the Secretary of the Interior or his duly authorized representative
determines otherwise, the Metlakatla Indian Community is permitted to
operate not more than one trap per site for salmon fishing at any four
of the following sites in the Annette Islands Reserve, Alaska:
(1) Annette Island at 55 degrees 15 minutes 09 seconds north
latitude, 131 degrees 36 minutes 00 seconds west longitude.
(2) Annette Island at 55 degrees 12 minutes 52 seconds north
latitude, 131 degrees 36 minutes 10 seconds west longitude.
(3) Annette Island at 55 degrees 02 minutes 47 seconds north
latitude, 131 degrees 38 minutes 53 seconds west longitude.
(4) Annette Island at 55 degrees 05 minutes 41 seconds north
latitude, 131 degrees 36 minutes 39 seconds west longitude.
(5) Annette Island at 55 degrees 01 minute 54 seconds north latitude,
131 degrees 38 minutes 36 seconds west longitude.
(6) Annette Island at 55 degrees 00 minutes 45 seconds north
latitude, 131 degrees 38 minutes 30 seconds west longitude.
(7) Annette Island at 54 degrees 59 minutes 41 seconds north
latitude, 131 degrees 36 minutes 48 seconds west longitude.
(8) Ham Island at 55 degrees 10 minutes 13 seconds north latitude,
131 degrees 19 minutes 31 seconds west longitude.
(c) Trap fishing season. Fishing for salmon with traps operated by
the Metlakatla Indian Community is permitted only at such times as
commercial salmon fishing with purse seines is permitted by order or
regulation of the Alaska Board of Fish and Game for Commercial Fishing
in any part of the following area: from the point at which meridian 132
17'30'', thence due east along said parallel to longitude 130 49'15'',
then due south along said meridian to the point at which it intersects
with the United States-Canadian boundary, thence due west along said
boundary to the point of beginning, provided, however, that the
Secretary or his duly authorized representative may upon request by the
Metlakatla Indian Community, authorize fishing for salmon with traps, at
such other times as he shall prescribe, which authorization shall be
based upon the following criteria:
(1) Number of fish required for spawning escapement and any other
requirements reasonable and necessary for conservation;
(2) Fair and equitable sharing of the salmon resource with other user
groups fishing in State waters under State law and within the State
fisheries management system; and
(3) The federal purpose in the establishment and maintenance of the
Metlakatla Indian Reservation.
(d) Size, construction and closure of fish traps -- (1) Size. When
any part of a trap is in a greater depth of water than 100 feet, the
trap as measured from shore at mean high tide to the outer face of the
pot shall not extend beyond 900 feet.
(2) Construction. Poles shall be permanently secured to the webbing
at each side of the mouth of the pot tunnel and shall extend from the
tunnel floor to a height at least four feet above the water. A draw
line shall be reeved through the lower end of both poles and the upper
end of one.
(3) Method of closing. The tunnel walls shall be overlapped as far
as possible across the pot gap and the draw line shall be pulled tight
and both secured so as to completely close the tunnel. In addition, 25
feet of the webbing of the heart on each side next to the pot shall be
lifted or lowered in such manner as to permit the free passage of fish.
(e) Other forms of commercial fishing. All commercial fishing, other
than with traps, shall be in accordance with the season and gear
restrictions established by rule or regulation by the Alaska Board of
Fish and Game for Commercial Fishing in any part of the previously
defined area; provided, however, that the Secretary or his duly
authorized representative may, upon request by the Metlakatla Indian
Community authorize such other commercial fishing at such times as he
shall prescribe, which authorization shall be based upon the following
criteria:
(1) Number of fish required for spawning escapement and any other
requirements reasonable and necessary for conservation;
(2) Fair and equitable sharing of the fishery resource with other
user groups fishing in State waters under State law and within the State
fisheries management system; and
(3) The Federal purpose in the establishment and maintenance of the
Metlakatla Indian Reservation.
(28 FR 7183, July 12, 1963; 28 FR 12273, Nov. 20, 1963, as amended
at 40 FR 24184, June 5, 1975. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 241.4 Subsistence and sport fishing, Annette Islands Reserve.
(a) Definitions. (1) Subsistence fishing is the taking or attempting
to take any species of fish or shellfish for purposes other than sale or
barter, except as provided for in paragraph (a)(2) of this section.
(2) Sport fishing is the taking or attempting to take for personal
use, and not for sale or barter, any fresh water, marine, or anadromous
fish by hook and line or by such means as defined by regulation or
statute of the State of Alaska.
(b) Restrictions. Subsistence fishing within the Annette Islands
Reserve shall be in accordance with the season, gear and bag
restrictions established by rule or regulation of the Alaska Board of
Fish and Game for Commercial Fishing in Fishing District No. 1. Sport
fishing within the Annette Islands Reserve shall be in accordance with
the season, gear and bag restrictions established by rule or regulation
for Southeastern Alaska by the Alaska Board of Fish and Game. Both
subsistence and sport fishing shall also be in accordance with such
ordinances as may be adopted by the Council of the Metlakatla Indian
Community and approved by the Secretary of the Interior.
25 CFR 241.5 Commercial fishing, Karluk Indian Reservation.
(a) Definition. The Karluk Indian Reservation includes all waters
extending 3,000 feet from the shore at mean low tide on Kodiak Island
beginning at the end of a point of land on the shore of Shelikof Strait
about 1 1/4 miles east of Rocky Point and in approximate latitude 57
degrees 39 minutes 40 seconds N., longitude 154 degrees 12 minutes 20
seconds W.; thence south approximately 8 miles to latitude 57 degrees 32
minutes 30 seconds N.; thence west approximately 12 1/2 miles to the
confluence of the north shore of Sturgeon River with the east shore of
Shelikof Strait; thence northeasterly following the easterly shore of
Shelikof Strait to the place of beginning, containing approximately
35,200 acres.
(b) Who may fish; licenses. The waters of the Karluk Indian
Reservation shall be open to commercial fishing by bona fide native
inhabitants of the native village of Karluk and vicinity, and to other
persons insofar as the fishing activities of the latter do not restrict
or interfere with fishing by such natives. Such natives shall not be
required to obtain a license to engage in commercial fishing in the
waters of the Karluk Indian Reservation.
(c) Salmon fishing; restrictions. Commercial fishing for salmon by
native inhabitants of the native village of Karluk and vicinity in the
waters of the Karluk Indian Reservation shall be in accordance with the
seasonal and gear restrictions of the rules and regulations of the
Alaska Board of Fish and Game for Commercial Fishing in the fishing
district embracing the Karluk Indian Reservation except that: (1) Beach
seines up to 250 fathoms in length may be used northeast of Cape Karluk;
and (2) prior to July 1, fishing shall be permitted to within 100 yards
of the Karluk River where it breaks through the Karluk Spit into
Shelikof Strait.
25 CFR 241.6 Enforcement; violation of regulations; corrective
action; penalties; closure of restrictions, Annette Islands Reserve.
(a) Enforcement. The regulations in this part shall be enforced by
any duly authorized representative of the Secretary of the Interior.
Any fish trap, vessel, gear, processing establishment or other operation
or equipment subject to the regulations of this part shall be available
for inspection at all times by such representative.
(b) Violation of regulations. Whenever any duly authorized
enforcement representative of the Secretary of the Interior has
reasonable cause to believe any violation of the regulations of this
part relating to fish traps has occurred, he shall direct immediate
closure of the trap involved and shall affix an appropriate seal thereto
to prevent further fishing. The matter shall be reported without delay
to the Area Director, Bureau of Indian Affairs, who shall thereupon
report and recommend to the Secretary of the Interior appropriate
corrective action.
(c) Corrective action. Any violation of the regulations of this part
relating to fish traps shall be ground for the temporary or permanent
closure, as the Secretary of the Interior may determine, of any or all
traps authorized by 241.3(a), or the withdrawal and rescission of the
right to fish for salmon with traps at any or all sites authorized
thereby.
(d) Penalties. Any person who violates any of the regulations of
this part shall be subject to prosecution under section 2 of the Act of
July 12, 1960 (74 Stat. 469, 18 U.S.C. sec. 1165), which provides as
follows:
''Whoever, without lawful authority or permission, willfully and
knowingly goes upon any land that belongs to any Indian or Indian tribe,
band, or group and either are held by the United States in trust or are
subject to a restriction against alienation imposed by the United
States, or upon any lands of the United States that are reserved for
Indian use, for the purpose of hunting, trapping, or fishing thereon, or
for the removal of game, peltries, or fish therefrom, shall be fined not
more than $200 or imprisoned not more than ninety days, or both, and all
game, fish, and peltries in his possession shall be forfeited.
(e) Closure or restriction, Annette Islands Reserve. The
Commissioner of Indian Affairs, after consultation with officials of the
Metlakatla Indian Community, is authorized and directed, upon a
determination of the necessity to promote sound conversation practices,
to restrict or close to commercial, subsistence or sport fishing any
portion of the Annette Islands Reserve by notice given appropriate local
publicity.
(28 FR 7183, July 12, 1963, as amended at 30 FR 5742, Apr. 23, 1965.
Redesignated at 47 FR 13327, Mar. 30, 1982)
25 CFR 241.6 PART 242 -- COMMERCIAL FISHING ON RED LAKE INDIAN
RESERVATION
Sec.
242.1 Definitions.
242.2 Authority to engage in commercial fishing.
242.3 Authority to operate.
242.4 Fishing.
242.5 Disposition of unmarketable fish.
242.6 Spawning season.
242.7 Suspension.
242.8 Penalty.
242.9 Quotas.
242.10 Fishing equipment limitations.
242.11 Royalty.
242.12 Authority to lease.
Authority: 25 U.S.C. 2; 5 U.S.C. 301.
Source: 25 FR 7784, Aug. 16, 1960, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 242.1 Definitions.
As used in this part:
(a) ''Secretary'' means the Secretary of the Interior or his
authorized representative.
(b) ''Council'' means the General Council of the Red Lake Band of the
Chippewa Indians as recognized by the Secretary of the Interior.
(c) ''Association'' means the Red Lake Fisheries Association,
incorporated under the laws of the State of Minnesota, and whose
articles of incorporation and bylaws and any amendments thereto have
been approved by the Council and the Secretary of the Interior.
(d) ''Member of Association'' means as defined in the Association
By-Laws.
(e) ''Commercial Fishing'' means the catching of any fish for sale
directly or indirectly to others than Indians on the reservations or
licensed traders on the reservation for resale to Indians.
25 CFR 242.2 Authority to engage in commercial fishing.
No person shall engage in commercial fishing in the waters of the Red
Lakes on the Red Lake Indian Reservation in the State of Minnesota
except the Red Lake Fisheries Association, a corporation organized and
incorporated under the laws of Minnesota, and its members, and then only
in accordance with the regulations in this part. The authority hereby
granted to the Association and its members to engage in commercial
fishing may, at any time, be canceled and withdrawn and these
regulations may be modified and amended.
25 CFR 242.3 Authority to operate.
The association may conduct commercial fishing operations on the
reservation under authority of its articles of incorporation and by-laws
only in accordance with the regulations in this part.
25 CFR 242.4 Fishing.
(a) Enrolled members of the Red Lake Band of Chippewa Indians may
take fish at any time except as prohibited by 242.6 from waters of the
Red Lakes on the Red Lake Indian Reservation for their own use and for
sale to: (1) Other Indians on the reservation and (2) licensed traders
on the reservation for resale to Indians.
(b) Fish may be taken for commercial purposes only by the Association
through members of the Association in residence on the reservation
during the fishing season which shall be May 15 to November 15
inclusive. All fish taken for such purposes shall be marketed through
the Association.
(c) In connection with commercial fishing, Association members
fishermen may be assisted only by Indians who are members of the Red
Lake Band.
25 CFR 242.5 Disposition of unmarketable fish.
All unmarketable live fish taken under authority of these regulations
must be returned to the water, and all unmarketable dead fish taken must
be buried by the person taking the same.
25 CFR 242.6 Spawning season.
Walleye and northern pike (or pickerel) shall not be taken during
their spawning season except for propagation purposes.
25 CFR 242.7 Suspension.
All commercial fishing operations may be suspended by order of the
Secretary at any time.
25 CFR 242.8 Penalty.
Any Indian violating the provisions of 242.4 and 242.6 shall
forfeit his right to take fish for any purpose for a period of three
months.
25 CFR 242.9 Quotas.
The Secretary may set such commercial quotas as he may find
desirable, based on available biological and other information, on the
amount of fish which may be taken under authority of the regulations in
this part in any one season. Until otherwise determined by the
Secretary, not more than 650,000 pounds of walleyes may be taken in any
one fishing season.
25 CFR 242.10 Fishing equipment limitations.
(a) Any variety of fish may be taken by enrolled members of the Band
from any waters on the reservation by hook and line, and from Upper and
Lower Red Lakes by gill net or entrapment gear for noncommercial use
only.
(b) For commercial fishing each member of the Association shall be
limited to eight gill nets of 300 feet in length and six feet in depth,
of which not to exceed six of such nets may be of nylon and other
synthetic material.
(c) Gill nets for taking pike shall have a mesh of not less that 3
1/2 inches extension measure.
(d) Gill nets for taking whitefish shall have a mesh of not less than
5 1/2 inches extension measure.
(e) Entrapment gear may only be used by members of the Association
for taking fish of any variety for commercial purposes or propagation,
in accordance with such specifications and directions as the manager of
the Association may provide.
(f) All nets used in Red Lake Reservation waters must be marked with
appropriate tags to be furnished by the Association.
25 CFR 242.11 Royalty.
The Association shall pay five percent of the gross receipts from the
sale of fish by the Association to the designated collection officer of
the Bureau of Indian Affairs, which shall be deposited to the credit of
the Band in the Treasury of the United States.
25 CFR 242.12 Authority to lease.
The Band, with the approval of the Secretary, may execute a lease or
permit on its fisheries plant and hatchery at Redby, Minnesota, to the
Association.
25 CFR 242.12 Part 243
25 CFR 242.12 PART 243 -- REINDEER IN ALASKA
Sec.
243.1 Agent.
243.2 Filing of form.
243.3 Receipt of form.
Authority: Sec. 12, 50 Stat. 902; 48 U.S.C. 250k. Interpret or
apply sec. 3, 50 Stat. 900; 48 U.S.C. 250b.
Source: 22 FR 10543, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 242.12 Declarations of Ownership
25 CFR 243.1 Agent.
The General Reindeer Supervisor at Nome, Alaska, is hereby designated
as the duly authorized agent of the Secretary of the Interior, with whom
all declarations of reindeer ownership required by the act of September
1, 1937 (50 Stat. 900; 48 U.S.C. 250-250p), must be filed within the
time limits specified in the act.
25 CFR 243.2 Filing of form.
Pursuant to the provisions of section 3 of the act, declarations of
ownership of reindeer in Alaska should be made by claimants upon the
prescribed form. This form should be executed in quadruplicate. All
four copies should be submitted in person or by mail to the General
Reindeer Supervisor, Nome, Alaska, who has been designated as the duly
authorized agent of the Secretary of the Interior pursuant to section 3
of the aforementioned act. Envelopes contining declarations of
ownership of reindeer which are mailed to said agent must bear postmarks
not later than midnight of September 1, 1938, in order to meet the
requirements of the law. All declarations submitted in person by the
owner, or his representative, must be filed with said agent at his
office at Nome, Alaska, on or before 5 o'clock p.m., September 1, 1938.
Note: Copies of the form mentioned may be obtained from the General
Reindeer Supervisor, Nome, Alaska.
25 CFR 243.3 Receipt of form.
Upon receipt of each person's declaration of ownership of reindeer in
Alaska, the General Reindeer Supervisor shall sign the receipt thereof
in the proper place in the form, and shall submit two copies of the
declaration to the Commissioner of Indian Affairs, retain one copy in
his record, and return one copy to the claimant. All declarations of
ownership of reindeer in Alaska which are included in the records of the
office of the General Reindeer Supervisor shall be kept open to public
inspection in Alaska in accordance with section 3 of said act.
25 CFR 243.3 PART 248 -- USE OF COLUMBIA RIVER INDIAN IN-LIEU FISHING
SITES
Sec.
248.1 Fishing sites subject to regulation.
248.2 Persons eligible to use sites.
248.3 Identification of eligible users.
248.4 Applicability of laws and regulations.
248.5 Damage to Government-owned property.
248.6 Structures.
248.7 Liability for condition and use of structures.
248.8 Abandoned property.
248.9 Camping and use restrictions.
248.10 Appeals from administrative actions.
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.
Source: 32 FR 3945, Mar. 10, 1967, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 248.1 Fishing sites subject to regulation.
Use of any of the lands acquired by the Secretary of War and
transferred to the Secretary of the Interior pursuant to the Act of
March 2, 1945 (59 Stat. 22), as amended (hereinafter called ''in lieu
fishing sites'' or ''sites'') to replace Indian fishing grounds
submerged or destroyed as a result of the construction of the Bonneville
Dam shall be subject to the following rules and regulations. The Area
Director, Portland Area Office, Bureau of Indian Affairs (hereinafter
called ''Area Director''), may suspend or withdraw the privileges of
access to or use of any or all the sites for any violation of the
regulations in this part or of any rules issued pursuant to the
regulations in this part.
25 CFR 248.2 Persons eligible to use sites.
The in-lieu fishing sites are for the benefit of the Yakima,
Umatilla, and Warm Springs Indian Tribes, and such other Columbia River
Indians, if any, who had treaty fishing rights at locations inundated or
destroyed by Bonneville Dam, to be used is accordance with treaty
rights. The use of the sites is restricted to such Indians; however,
this shall not preclude the use of camping areas on the sites by the
families of such Indians.
25 CFR 248.3 Identification of eligible users.
For the purpose of identification of the persons entitled to use the
sites, each eligible Indian shall, when using said sites, have in his
possession an identification card issued by his tribe identifying him as
a member of that tribe. The Area Director shall issue identification
cards to such other Columbia River Indians, if any, as may be eligible
to use the sites. Any individual using the sites shall exhibit the
identification upon request of authorized Federal, State or local
officials.
25 CFR 248.4 Applicability of laws and regulations.
No Indian shall use any of the sites for any activity that is
contrary to the provisions of any applicable law or regulation of his
tribe or contrary to any applicable State or Federal law or regulation.
The Area Director may in his discretion suspend or withdraw privileges
for future access to or use of the sites for violation of such laws and
regulations: Provided, That, nothing contained in the regulations in
this part is intended or shall be construed as limiting or affecting any
treaty rights of any tribe nor as subjecting any Indian properly
exercising tribal treaty rights to State fishing laws or regulations
which are not compatible with such rights.
25 CFR 248.5 Damage to Government-owned property.
Anyone committing any act of depredation, destruction, theft, or
misuse of the land, buildings, fences, signs, or other structures which
are the property of the United States shall be subject to prosecution
under applicable Federal or State law.
25 CFR 248.6 Structures.
No dwellings or structures shall be erected, placed, or maintained
upon the sites, except that camping facilities may be placed thereon
only as herein described and fish drying facilities and fishing
platforms may be erected by Indians for use during the fishing season.
Facilities for camping on the sites shall be limited to tents, tepees,
campers, and mobile trailers. All such tents, tepees, campers, and
mobile trailers shall be removed from the sites at any time the owners
thereof are not actively engaged in fishing, drying fish, or processing
fish by other means. Any structures erected or maintained in violation
of this section may be removed, demolished or otherwise disposed of,
with or without prior notice, as determined by the Area Director, and
the cost of such disposition shall be assessed against the person
responsible for the structure. Sites must be used in a manner that
conforms to the health, sanitation, and safety requirements of the State
or local law, or, in the absence of appropriate State or local laws, to
the health, sanitation, and safety recommendations of the U.S. Public
Health Service. The privileges or right of access to or use of the
sites of any individual may be suspended or withdrawn, in the discretion
of the Area Director, when such individual having violated such health,
sanitation, and safety requirements repeats such violation after having
been given notice to cease and desist therefrom.
(34 FR 2248, Feb. 15, 1969. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 248.7 Liability for condition and use of structures.
Any private structures including drying sheds, tents, tepees, or
fishing platforms erected, placed, or maintained on the sites are the
sole responsibility of their owners, and all use of such structures
shall be at the user's or owner's sole responsibility and risk. Neither
the United States nor any officer or employee thereof warrants, makes
any representation, or is responsible for the safety or condition of any
such structure.
(34 FR 2248, Feb. 15, 1969. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 248.8 Abandoned property.
No vehicle, trailer, boat, or other personal property shall be
abandoned on the sites. Property abandoned in violation of the
regulations in this part may be removed without prior notice to the
owner and may be disposed of at the owner's expense as determined by the
Area Director.
25 CFR 248.9 Camping and use restrictions.
All camping, picnicking, use of alcoholic beverages, setting or use
of fires, use of the sites for cleaning of fish, the deposit of any
garbage, paper, cans, bottles, or rubbish of any kind, or use of the
sites for any commercial activity (including commercial purchase of
fish) shall be subject to such prohibitions, restrictions, or other
regulations as the Area Director may prescribe and cause to be posted on
the site or sites to which said regulations are applicable; provided
that no fee may be charged to any Indian or member of his family for any
such use.
25 CFR 248.10 Appeals from administrative actions.
Any decision made by the Area Director under this part 248 shall be
subject to appeal to the Commissioner of Indian Affairs, and any
decision on the Commissioner of Indian Affairs on such an appeal may be
appealed to the Secretary of the Interior in accordance with part 2 of
this chapter.
25 CFR 248.10 PART 249 -- OFF-RESERVATION TREATY FISHING
25 CFR 248.10 Subpart A -- General Provisions
Sec.
249.1 Purpose.
249.2 Area regulations.
249.3 Identification cards.
249.4 Identification of fishing equipment.
249.5 Use of unauthorized helpers or agents.
249.6 Enforcement and penalties.
249.7 Savings provisions.
Authority: 25 U.S.C. 2 and 9; 5 U.S.C. 301, unless otherwise noted.
Source: 32 FR 10434, July 15, 1967, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
25 CFR 248.10 Subpart A -- General Provisions
25 CFR 249.1 Purpose.
(a) The purposes of these regulations (part 249) are:
(1) To assist in protecting the off-reservation nonexclusive fishing
rights which are secured to certain Indian tribes by their treaties with
the United States;
(2) To promote the proper management, conservation and protection of
fisheries resources which are subject to such treaties of the United
States;
(3) To provide for determination of restrictions on the manner of
exercising nonexclusive fishing privileges under rights secured to
Indian tribes by such treaties of the United States necessary for
conservation of the fisheries resources;
(4) To assist in the orderly administration of Indian Affairs;
(5) To encourage consultation and cooperation between the states and
Indian tribes in the management and improvement of fisheries resources
affected by such treaties;
(6) To assist the states in enforcing their laws and regulations for
the management and conservation of fisheries resources in a manner
compatible with the treaties of the United States which are applicable
to such resources.
(b) The conservation regulations of this part 249 are found to be
necessary to assure that the nonexclusive rights secured to certain
Indian tribes by treaties of the United States to fish at usual and
accustomed places outside the boundaries of an Indian reservation shall
be protected and preserved for the benefit of present and future members
of such tribes in a manner consistent with the nonexclusive character of
such rights. Any exercise of an Indian off-reservation treaty fishing
right shall be in accordance with this part and any applicable area
regulations issued hereunder.
(32 FR 10434, July 15, 1967. Redesignated at 47 FR 13327, Mar. 30,
1982; 48 FR 13414, Mar. 31, 1983)
25 CFR 249.2 Area regulations.
(a) The Secretary of the Interior may upon request of an Indian
tribe, request of a State Governor, or upon his own motion, and upon
finding that Federal regulation of Indian fishing in any waters in which
Indians have a treaty-secured nonexclusive fishing right is necessary to
assure the conservation and wise utilization of the fishery resources
for the present and future use and enjoyment of the Indians and other
persons entitled thereto, promulgate regulations to govern the exercise
of such treaty-secured fishing right in such waters for the purpose of
preventing, in conjunction with appropriate State conservation laws and
regulations governing fishing by persons not fishing under treaty
rights, the deterioration of the fishery resources.
(b) In formulating such regulations the Secretary of the Interior may
incorporate such State laws or regulations, or such tribal regulations
as have been approved by the Commissioner of Indian Affairs, as he finds
to be consistent with the Indians' rights under the Treaty and the
conservation of the fishery resources.
(c) Before promulgating such regulations the Secretary of the
Interior will seek the views of the affected Indian tribes, of the fish
or game management agency or agencies of any affected State, and of
other interested persons. Except in emergencies where the Secretary
finds that the exigencies require the promulgation of regulations to be
effective immediately, a notice of proposed rule making will be
published in the Federal Register in accordance with 5 U.S.C. 553 to
afford an opportunity to submit comments and information, at such times
and in such manner as may be specified in the notice. In the event of
the emergency promulgation of regulations, interested persons will be
afforded, as soon as possible, an opportunity to request amendment or
revocation thereof.
(d) Any regulations issued pursuant to this section shall contain
provisions for invoking emergency closures or restrictions or the
relaxation thereof at the field level when necessary or appropriate to
meet conditions not foreseeable at the time the regulations were issued.
(e) Regulations issued pursuant to this 249.2 may include such
requirements for recording and reporting catch statistics as the
appropriate state fish and game agencies or the Secretary of the
Interior deem necessary for effective fishery management.
25 CFR 249.3 Identification cards.
(a) The Commissioner of Indian Affairs shall arrange for the issuance
of an appropriate identification card to any Indian entitled thereto as
prima facie evidence that the authorized holder thereof is entitled to
exercise the fishing rights secured by the treaty designated thereon.
The Commissioner may cause a federal card to be issued for this purpose
or may authorize the issuance of cards by proper tribal authorities:
Provided, That any such tribal cards shall be countersigned by an
authorized officer of the Bureau of Indian Affairs certifying that the
person named on the card is a member of the tribe issuing such card and
that said tribe is recognized by the Bureau of Indian Affairs as having
fishing rights under the treaty specified on such card. Copies of the
form of any identification card authorized pursuant to this section and
a list of the authorized Bureau of Indian Affairs issuing or
countersigning officials shall be furnished to the fisheries management
and enforcement agencies of any State in which such fishing rights may
be exercised.
(b) No such card shall be issued to any Indian who is not on the
official membership roll of the tribe which has been approved by the
Secretary of the Interior. Provided, That until further notice, a
temporary card may be issued to any member of a tribe not having an
approved current membership roll who submits evidence of his/her
entitlement thereto satisfactory to the issuing officer and, in the case
of a tribally issued card, to the countersigning officer. Any Indian
claiming to have been wrongfully denied a card may appeal the decision
in accordance with part 2 of this chapter.
(c) No person shall be issued an identification card on the basis of
membership in more than one tribe at any one time.
(d) Each card shall state the name, address, tribal affiliation and
enrollment number (if any) of the holder, identify the treaty under
which the holder is entitled to fishing rights, contain such additional
personal identification data as is required on fishing licenses issued
under the law of the State or States within which it is used, and be
signed by the issuing officer and by the holder.
(e) No charge or fee of any kind shall be imposed by the Commissioner
of Indian Affairs for the issuance of an identification card hereunder:
Provided, That this shall not prevent any Indian tribe from imposing any
fee or tax which it may otherwise be authorized to impose upon the
exercise of any tribal fishing right.
(f) All cards issued by the Commisssioner of Indian Affairs pursuant
to this part 249 shall be and remain the property of the United States
and may be retaken by any Federal, State, or tribal enforcement officer
from any unauthorized holder. Any card so retaken shall be immediately
forwarded to the officer who issued it.
(g) The failure of any person who claims to be entitled to the
benefits of a treaty fishing right to have such a card in his immediate
personal possession while fishing or engaging in other activity in the
claimed exercise of such right to display it upon request to any
Federal, State, or tribal enforcement officer shall be prima facie
evidence that the person is not entitled to exercise an Indian fishing
right under a treaty of the United States.
(h) No person shall allow any use of his identification card by any
other person.
(5 U.S.C. 301; R.S. 463 and 465)
(32 FR 10434, July 15, 1967, as amended at 46 FR 4873, Jan. 19, 1981.
Redesignated at 47 FR 13327, Mar. 30, 1982, and amended at 48 FR 1052,
Jan. 10, 1983)
25 CFR 249.4 Identification of fishing equipment.
All fishing gear or other equipment used in the exercise of any
off-reservation treaty fishing right shall be marked in such manner as
shall be prescribed in regulations issued pursuant to 249.2 hereof to
disclose the identity of its owner or user. In the absence of proof to
the contrary, any fishing gear which is not so marked or labeled shall
be presumed not to be used in the exercise of an off-reservation treaty
fishing right and shall be subject to control or seizure under State
law.
25 CFR 249.5 Use of unauthorized helpers or agents.
No Indian shall, while exercising off-reservations treaty-secured
fishing rights, permit any person 12 years of age or older other than
the authorized holder of a currently valid identification card issued
pursuant to this part 249 to fish for him, assist him in fishing, or use
any gear of fishing location identified as his gear or location pursuant
to this part 249.
25 CFR 249.6 Enforcement and penalties.
(a) Any Indian tribe with a tribal court may confer jurisdiction upon
such court to punish violations by its members of this part 249 or of
the area regulations issued pursuant thereto. Jurisdiction is hereby
conferred upon each Court of Indian Offenses established pursuant to
part 11 of this chapter to punish such violations by members of tribes
whose reservations are under the jurisdiction of such court. Courts of
Indian Fishing Offenses may be created pursuant to part 11 of this
chapter to punish such violations by members of any tribe or group of
tribes for which there is otherwise no Court of Indian Offenses or
tribal court with jurisdiction to enforce this part 249. The provisions
of part 11 of this chapter shall apply to any such court with respect to
the exercise of its jurisdiction to enforce this part 249. All
jurisdiction conferred by this section shall apply without regard to any
territorial limitations otherwise applicable to the jurisdiction of such
court.
(b) Acceptance or use of an identification card issued pursuant to
this part 249 or use of any fishing gear marked or identified pursuant
thereto shall constitute an acknowledgment that the fishing done under
such card or with such gear is in the claimed exercise of a tribal
fishing right and is subject to the jurisdiction of the tribal court,
Court of Indian Offenses, or Court of Indian Fishing Offenses. Except
as may be otherwise provided by tribal regulations approved by or on
behalf of the Secretary of the Interior, any person claiming to be
exercising such tribal right and fishing in violation of the regulations
contained in or issued under this part 249 may be punished by a fine of
not to exceed $500, imprisonment of not to exceed 6 months, or both, and
shall have his tribal fishing privileges suspended for not less than 5
days for any violation of this part 249 or of any area regulation issued
pursuant thereto. The court shall impound the fishing rights
identification card of any person for the period which the fishing
privileges are suspended.
25 CFR 249.7 Savings provisions.
Nothing in this part 249 shall be deemed to:
(a) Prohibit or restrict any persons from engaging in any fishing
activity in any manner which is permitted under state law;
(b) Deprive any Indian tribe, band, or group of any right which may
be secured it by any treaty or other law of the United States;
(c) Permit any Indian to exercise any tribal fishing right in any
manner prohibited by any ordinance or regulation of his tribe;
(d) Enlarge the right, privilege, or immunity of any person to engage
in any fishing activity beyond that granted or reserved by treaty with
the United States;
(e) Exempt any person or any fishing gear, equipment, boat, vehicle,
fish or fish products, or other property from the requirements of any
law or regulation pertaining to safety, obstruction of navigable waters,
national defense, security of public property, pollution, health and
sanitation, or registration of boats or vehicles;
(f) Abrogate or modify the effect of any agreement affecting fishing
practices entered into between any Indian tribe and the United States or
any State or agency of either.
25 CFR 249.7 PART 250 -- INDIAN FISHING -- HOOPA VALLEY INDIAN
RESERVATION
Sec.
250.1 Purpose.
250.2 Effect of changes in the regulations.
250.3 Application.
250.4 Definitions.
250.5 Eligible fisher or eligible Indian.
250.6 Information collection.
250.7 Fisher identification cards required.
250.8 Identification of gear.
250.9 Permissible and prohibited fishing.
250.10 Catch marking and transportation of fish.
250.11 Consultation.
250.12 Pre-season and in-season adjustments to regulations.
250.13 Fish catch reporting.
250.14 Identification of persons fishing.
250.15 Enforcement.
250.16 Penalties.
250.17 Forcible assault and impeding a law enforcement officer.
250.18 Hoopa Valley Indian Reservation Court of Indian Offenses.
250.19 Execution of judgments pending appeals.
250.20 Juries.
250.21 Bail forfeiture or no contest plea.
250.22 Notification of address change.
250.23 Immunity.
Authority: 43 U.S.C. 1457; 25 U.S.C. 2, 9, and 13, and the
Reorganization Plan No. 3 of 1950 (65 Stat. 1262).
Source: 52 FR 27330, July 21, 1987, unless otherwise noted.
25 CFR 250.1 Purpose.
(a) The regulations contained in this part govern fishing by eligible
Indians on the Hoopa Valley Indian Reservation. The purpose of these
regulations is to protect the fishery resources and to establish
procedures for the exercise of the fishing rights of Indians of the
Reservation until a Reservation-wide management mechanism is established
with the capability to manage and regulate the Indian fisheries on the
Reservation. The regulations are intended to promote reasonably equal
access to the fishery resources by all eligible Indians of the
Reservation, and to assure adequate spawning escapement.
(b) The limited extent to which regulation is undertaken by this part
is not intended nor should be construed as a conclusion that the
Secretary does not have the authority to take additional measures to
protect fishery resources on the Reservation if it is later determined
that such measures are necessary for conservation reasons.
(c) The regulations of this part govern all eligible Indians of the
Hoopa Valley Indian Reservation except the members of the Hoopa Valley
Tribe, when fishing on the Square portion of the Hoopa Valley Indian
Reservation, who will be governed by the ordinances set forth by the
Hoopa Valley Business Council, provided, however, that these ordinances
restrict harvest not to exceed Reservation Allocation levels established
by the Area Director.
(d) Violations of these regulations are punishable in the Court of
Indian Offenses or by the filing of criminal charges in the appropriate
Federal Court, regardless of whether the offense was committed on or off
the Reservation.
25 CFR 250.2 Effect of changes in the regulations.
A person who violates the regulations of this part may still be
prosecuted after the regulations are changed so long as what that person
did was a violation of the regulations in effect at the time of the
violation.
25 CFR 250.3 Application.
(a) The provisions of these regulations and all pre-season and
in-season adjustment orders issued under them apply to the waters within
the exterior boundaries of the Hoopa Valley Indian Reservation.
(b) Any person who is not an Indian of the Reservation as determined
under 250.5 is not regulated under this part at this time.
(c) Children under the age of 10 years are not liable for violations
of the provisions of this part. Such children are not eligible to
receive fisher identification cards, but may accompany adult eligible
fishers. Adults in the company of such children shall be held liable
for actions of such children that are in violation of the provisions of
this part.
(d) All Court of Indian Offenses and enforcement records concerning
violations or alleged violations which occurred when the violators or
alleged violators were under the age of 18 shall be strictly
confidential. Records may only be released to other agencies or persons
by petition to and approval of the Court of Indian Offenses. Nothing in
this paragraph shall bar the use of statistical compilations of juvenile
records or the use of a violator's prior record in the sentencing phase
of a Court of Indian Offenses prosecution.
25 CFR 250.4 Definitions.
''Agency Superintendent'' means the Superintendent of the Northern
California Agency of the Bureau of Indian Affairs.
''Anadromous fish'' includes all species, stocks and races of salmon,
steelhead, sturgeon, and eels.
''Angling'' means the taking or attempted taking of fish by hook and
line with the line held in the hand or closely attended in such a manner
that the fish voluntarily takes the hook in its mouth.
''Area Director'' means the Area Director of the Sacramento Area
Office of the Bureau of Indian Affairs.
''Assist'' as used in 250.5(c) means providing aid to an eligible
Indian fisher in placing fishing gear, checking it, removing it from the
water, removing any fish caught with the gear or removing fish from the
boat.
''Bureau'' means the Bureau of Indian Affairs, Department of the
Interior.
''Catch site'' means the area within 30 feet of the place where the
fish is caught.
''Ceremony'' means a ritual gathering consisting principally of
Indians of the Reservation for any solemn, religious observance on an
established traditional basis.
''Channel'' means the wetted area from bank to bank.
''Closed'' or ''closure'' refers to waters or areas closed to all
fishing unless otherwise authorized.
''Commercial fishing'' means the taking of fish or fish parts with
the prior or subsequent intent to sell or trade them or profit
economically from them.
''Consumptive or subsistence fishing'' means the taking of fish to be
eaten by Indians of the Reservation or their families.
''Drift-net (pole net)'' means a gillnet which is not staked,
anchored or weighted, but drifts free.
''Eel'' means Pacific lamprey, an anadromous fish.
''Eligible fisher -- eligible Indian'' means any Indian who is
determined to be an Indian of the Reservation under 250.5.
''Enforcement officer'' means:
(a) Any enforcement officer of the Department of the Interior,
(b) Any U.S. Marshal;
(c) Any tribal enforcement officer; or
(d) Any person deputized to enforce these regulations.
''Extension portion of the Reservation'' means that portion of the
Hoopa Valley Indian Reservation not included within the Square portion
of the Reservation.
''Fish or fishing'' means the fishing for, catching, or taking, or
the attempted fishing for, catching or taking of any anadromous fish
within the exterior boundaries of the Reservation. Placement of a net
in the water constitutes fishing regardless of whether or not the person
who placed the net in the water intended to catch fish.
''Fisher identification card'' means the identification (ID) card
issued by the Hoopa Valley Tribe to its members or the card issued by
the Bureau of Indian Affairs identifying the holder as a person eligible
to fish as an Indian of the Reservation. The identification card shall
include the name, basis for eligibility to fish, address, birthdate,
color of hair, color of eyes, height, weight, identification number, and
photograph of the holder and the disclaimer provided in 250.5.
''Fishing gear'' means any gillnet, seine, hook-and-line, or other
apparatus used for taking fish.
''Gillnet''means a flat net suspended vertically in the water with
meshes that allow the head of the fish to pass through and become
entangled.
''Hand dip net'' means a section of netting distended by a rigid
frame operated by a process commonly recognized as dipping. Such nets
may be of any size.
''Identification number'' means the identification number assigned by
the Bureau identifying the eligible fisher by number. This number is to
be obtained by the eligible fisher and placed on his or her fishing gear
where required by these regulations.
''Reservation'' means the Hoopa Valley Indian Reservation as
extended, including those portions known as the ''Extension'' and the
''Hoopa Square.''
''Reservation Allocation'' means a set of Indian harvest quotas
established by the Area Director for designated areas of the
Reservation.
''Secretary'' means the Secretary of the Interior or his/her
designated representative.
''Set-net'' means a gillnet which is staked or anchored or weighted
on at least one end so that it does not drift free.
''Snag gear'' means any hooking implement to catch or hold fish, with
or without handles making possible the taking of fish in such a manner
that the fish does not take the hook voluntarily in its mouth.
''Square portion of the Reservation'' means that portion of the Hoopa
Valley Indian Reservation established by Executive Order of June 23,
1876.
''Stretched measure'' means the distance between the inside of one
knot and the outside of the opposite (vertical) knot on one mesh of a
gillnet. Measurement shall be taken when the mesh is stretched
vertically while wet, by using a tension of ten (10) pounds on any three
(3) consecutive meshes, then measuring the middle mesh of the three
while under tension.
''Subsistence or consumptive fishing'' means the taking of fish to be
eaten by Indians of the Reservation or their families.
''Take'' means the pursuing, capturing, killing, or the attempted
pursuit, capturing or killing of fish.
25 CFR 250.5 Eligible fisher or eligible Indian.
(a) The following persons may exercise fishing rights under the
authority of this part:
(1) Enrolled members of the Hoopa Valley Tribe,
(2) Plaintiffs in the case entitled Jessie Short et al. v. United
States, Ct. Cls. No. 102-63, and
(3) Persons who are allottees or direct descendants of allottees on
the Reservation, who currently and for eight of the past 10 years have
resided on the Reservation or within 60 miles thereof.
(b) Disclaimer: Determination of eligibility to fish under paragraph
(a) of this section shall not be considered evidence of entitlement or
lack of entitlement or in any way affect eligibility for enrollment or
other tribal benefits or rights on the Reservation.
(c) Except as provided under 250.3(c) an eligible Indian who allows
an ineligible person to assist in an Indian fishery on the Reservation
is subject to the penalties set out in 250.15.
25 CFR 250.6 Information collection.
The Office of Management and Budget has determined that the
information collection requirement contained in this part need not be
submitted for clearance pursuant to 44 U.S.C. 3516 and 5 CFR 1320.20.
25 CFR 250.7 Fisher identification cards required.
(a) Persons qualifying as an ''eligible fisher'' or ''eligible
Indian'' under 250.5 shall obtain an Indian fisher identification card
and have it on his/her person before exercising any Indian fishing
rights or transporting fish taken on the Reservation in the exercise of
Indian fishing rights.
(1) Upon the demand of a law enforcement official, each eligible
Indian fisher shall immediately produce for examination his/her Indian
fisher identification card. The failure to produce such card shall be
subject to the penalties set out in 250.16.
(2) If the fisher does not present an eligible Indian fisher
identification card upon demand, but the law enforcement official
believes the person is eligible to fish from other evidence presented to
him/her at the catch site by the person, no seizure of fish or gear
shall occur at that time. However, that fisher shall be issued a
citation requiring him/her to appear within seven days and offer proof
that he/she possesses an identification card. If that person does not
appear within the time specified on the citation, that person's tribal
fishing rights are suspended until proof of compliance is presented to
the court and he or she shall be subject to the penalties specified in
250.16.
(3)(i) If the law enforcement official does not believe upon other
evidence presented by the fisher that the fisher has a current
identification card, the officer shall issue that person a citation and
shall seize any fish and gear within that person's possession.
(ii) If any fish are seized they shall be frozen and stored by the
Bureau for seven (7) days.
(iii) If the fisher appears within the seven (7) days and presents
proof of issuance of a valid fisher identification card, any gear or
fish seized shall be returned to him/her.
(iv) If the fisher does not appear within seven (7) days the fisher
shall forfeit any fish seized and may be subject to the penalties
prescribed in 250.16.
(4) Repeated violators of this section are subject to penalties
prescribed in 250.15.
(b) Fisher identification card. Fisher identification cards may be
obtained by contacting the Agency Superintendent, P.O. Box 494879,
Redding, California, 96049, telephone number (916) 246-5150, or the
Hoopa Valley Tribal Office. The identification card shall include the
name, basis for eligibility to fish, address, birthdate, color of hair,
color of eyes, height, weight, identification number, and photograph of
the holder and the disclaimer provided in 250.5. Cards shall be signed
by the persons to whom they are issued, and countersigned by the
authorized official of the Bureau or the Hoopa Valley Tribe, certifying
that the cardholders are recognized as eligible to exercise Indian
fishing rights on the Reservation.
25 CFR 250.8 Identification of gear.
(a) Each eligible Indian shall indelibly and conspicuously mark the
fisher identification card number assigned to him/her on a float or cork
attached to either end of the net being used so that the number is
obvious without removing the gear from the water.
(b) Only one number may be on a net at one time. Any net not marked
in conformity with these regulations shall be presumed not to be used in
the exercise of the fishing rights of Indians of the Reservation and
will be subject to seizure and forfeiture together with any fish
contained therein.
(c) Except as may be provided for elsewhere in this part, no eligible
Indian fisher may intentionally allow his/her identification number to
be used on a net that he or she is not attending or fishing.
(d) Except as may be provided for elsewhere in this part, no eligible
Indian fisher may attend or fish a net that is not marked with his/her
own identification number unless he/she is accompanied by the eligible
fisher whose identification number is on the net.
(e) The person whose number is on the net shall conclusively be
presumed liable if the net is used in a manner that violates the
regulations of this part. This presumption shall only apply to the
liability of the person whose number is found on the net. The
presumption shall not act to relieve another person of liability for the
conduct charged.
(f) Nothing in the regulations of this part prohibits an eligible
Indian fisher from requesting or giving assistance to another eligible
fisher where the person needing assistance is faced with an emergency
situation that could lead to loss of gear or life.
25 CFR 250.9 Permissible and prohibited fishing.
(a) Except as otherwise prohibited by these regulations, the
Reservation is open to the taking of anadromous fish by eligible Indians
for subsistence and ceremonial purposes unless specifically closed by
the regulations of this part or by properly adopted pre-season or
in-season adjustments to the regulations.
(b) Fishing with gillnets is prohibited from 9 a.m. Monday until 9
a.m. Tuesday of each week during the months of August and September of
each year. Except as provided elsewhere in this part, fishing with
gillnets is permitted at all other times.
(c) From October 1, through July 31 of the following year, fishing
with gillnets is permitted seven days per week and 24 hours per day
except that all nets must be out of the water between the hours of 9
a.m. and 5 p.m. on Monday of each week.
(d) The total take of each species of anadromous fish for
subsistence, ceremonial and commercial purposes shall not exceed
designated Reservation Allocation levels, as determined by the Area
Director.
(e)(1) Anadromous fish not needed for subsistence and ceremonial
purposes may be taken for commercial purposes if provided for in
pre-season or in-season adjustments to the regulations of this part.
Any eligible fisher who, for commercial purposes, takes, possesses or
sells fish in violation of pre-season or in-season regulations
promulgated by the Area Director shall be subject to the penalties set
out in 250.16.
(2) The Area Director shall act in lieu of the unorganized Yurok
Tribe in managing and regulating subsistence, ceremonial, and commercial
fishing by eligible Yurok fishermen.
(3) The Area Director shall publish a notice describing plans
permitting any commercial fishing on or before June 15 of each year in
the Eureka Times Standard Newspaper. The notice shall specify
Reservation Allocation levels for the Extension and Square portions of
the Reservation.
(f) Ceremonial fishing may be conducted during closed hours pursuant
to a special permit issued by the Agency Superintendent. The Agency
Superintendent may impose any conditions on the permittee that are
necessary to protect fishery resources or to assure that all fish caught
are used exclusively for ceremonial purposes.
(g) Drift netting is prohibited from the top of Blake's Riffle to the
mouth of the Klamath River.
(h) No eligible fisher may use more than two gillnets, the combined
length of which may not exceed one hundred (100) feet.
(i) Set-nets or drift-nets may be joined end-to-end so as to form a
single straight-line net as long as the new length does not exceed one
hundred (100) feet. One (1) or more eligible fishers may not place
set-nets or drift-nets within thirty (30) feet of each other if the
combined lengths of the nets is more than 100 feet measured in a
straight line from the end of the net that is closest to the shore.
(j) At least one end of a set-net shall be anchored or staked at all
times it is in use.
(k) The anchoring of nets to any boat dock or placement of nets in
such a manner as to impede boat traffic from docking at or departing
from any boat dock is prohibited.
(l) No set-net or combination of set-nets, staggered or joined, may
be placed in such a way that it or they cover more than one-third ( 1/3)
of the distance across any channel.
(m) No set-net may be placed in any tributary creek of either the
Klamath or Trinity River or within one hundred (100) feet of the mouth
of any of the following creeks:
(1) Bear Creek
(2) Blue Creek
(3) Campbell Creek
(4) Cappell Creek
(5) Hostler Creek
(6) Hunter Creek
(7) Johnson Creek
(8) Omagar Creek
(9) Panther Creek
(10) Pecwan Creek
(11) Pine Creek
(12) Richardson Creek
(13) Roach Creek
(14) Salt Creek
(15) Supply Creek
(16) Surpur Creek
(17) Tectah Creek
(18) Terwer Creek
(19) Tish-Tang Creek
(20) Tully Creek
(n) No set-nets may be placed within five-hundred (500) feet in any
direction of the confluence of the Klamath and Trinity Rivers.
(o) The use of or possession of traps, wire, fencing material, snag
gear, explosives, stunning agents or caustic or lethal chemicals in any
form, that will assist in the taking of any fish is prohibited. Eels
may be caught by snag gear or traps made for that purpose. Any
material, device or substance used or possessed in violation of this
subsection shall be subject to seizure and forfeiture as provided in
250.16.
(p) No set-net may be placed within 400 feet of the test seining
operation conducted by either the U.S. Fish and Wildlife Service or the
California Department of Fish and Game. Set-nets placed in an area
normally used for test seining may be removed by law enforcement
officers and held for the owner to claim if their removal is necessary
in order to permit test seining operations to be conducted.
(q) Any eligible Indian who uses another eligible Indian's
identification number shall be subject to the penalties set out in
250.16.
(r) Set-net locations: Set-net locations shall be determined by the
individual Indian fishers in accordance with tradition and custom and in
a manner consistent with the provisions of this section. Disputes over
set-net locations are to be resolved among the parties. Unresolved
disputes are to be referred by the parties to elders or knowledgeable
adults of the community for the particular area in which the dispute
takes place.
(s) Dip net and hook-and-line fishing: Eligible Indians may engage
in dip net fishing or angling at all times on the Reservation except
when fishing is prohibited for all the eligible fishers by pre-season or
in-season regulations adopted for conservation purposes. A fisher
identification card shall be carried by each eligible Indian when
engaged in dip net fishing or angling.
(t) Test fisheries: Test fisheries including trapping, netting and
electrofishing may be conducted by biologists of fisheries management
agencies working on the Reservation for resource management purposes.
Indians of the Reservation may observe test fishery operations upon
making arrangements with the agency conducting the activity.
(u) Any eligible fisher who catches and allows a fish taken to become
inedible is subject to the penalties set out in 250.16.
(v) Eels may be taken only by snag gear or traps made for the taking
of eels.
25 CFR 250.10 Catch marking and transportation of fish.
(a) Marking. Eligible fishers shall mark each fish by removing the
dorsal fin prior to removing it from the catch site and/or prior to
placing it in a motor vehicle or other land transportion device.
(b) Off-Reservation transportation of fish. No eligible fisher or
combination of fishers may transport at one time fifteen (15) or more
fish taken on the Reservation without having in his, her or their
possession a valid transportation permit. A transportation permit may
be obtained from the Agency Superintendent, or his/her designee.
Violations of this section shall be subject to the penalties set forth
in 250.16. The permit so issued shall state the following:
(1) The name and address of the person to whom the permit is issued.
(2) The date of issue.
(3) License number of the vehicle to be used to transport the fish.
(4) The name and address of the person to receive the fish.
(5) The estimated time of arrival.
(6) The quantity of fish to be transported.
(7) The name of the issuing officer and agency.
25 CFR 250.11 Consultation.
The Agency Superintendent or his/her designee shall hold meetings as
deemed necessary by the Agency Superintendent to consult with Indians of
the Reservation about the status of the resources and fisheries, to
discuss pre-season and in-season adjustments to the regulations and to
discuss other relevant matters. At the end of each presentation,
comments will be received from those in attendance. A recorded summary
of those comments shall be maintained by the Agency Superintendent.
25 CFR 250.12 Pre-season and in-season adjustments to regulations.
(a) The Area Director may make pre-season and in-season changes to
the regulations for resource conservation and harvest management
purposes.
(b) Changes to the regulations authorized by paragraph (a) of this
section are effective 24 hours after publication in the ''Eureka Times
Standard.'' They remain in effect until modified or rescinded by the
Area Director or until they expire by their own terms. Failure to
comply with the provisions of paragraph (c) of this section shall not
invalidate any such change.
(c) Notification of pre-season and in-season adjustments:
(1) The Agency Superintendent is responsible for having each
pre-season or in-season adjustment to the fishing regulations published
in the Eureka Times Standard Newspaper as a legal notice at least
twenty-four (24) hours before it is to become effective, and in the Del
Norte Triplicate within a reasonable time.
(2) The Area Director shall have each pre-season or in-season
adjustment published in the Federal Register as promptly as possible.
(3) The Agency Superintendent shall attempt to post each pre-season
and in-season adjustment at least twenty-four (24) hours before it is to
become effective at each of the following locations:
(i) Hoopa Post Office;
(ii) Northern California Agency, Bureau of Indian Affairs;
(iii) Weitchpec Bulletin Board, Pierson's Store;
(iv) Pecwan Elementary School;
(v) Klamath Post Office; and
(vi) Klamath Field Office, Bureau of Indian Affairs.
25 CFR 250.13 Fish catch reporting.
(a) Each eligible Indian shall display all fish he or she has taken
upon the demand of any authorized biologist, law enforcement official or
Indian trainee for the purpose of monitoring the harvest or to check for
compliance with the provisions of this part. The failure to immediately
so display any fish taken shall subject the Indian fisher to seizure and
forfeiture of any gear or any fish in his/her possession, and to all
other penalties set out in 250.16.
(b) The Area Director shall arrange to have a catch data compiled,
summarized and made available upon request.
(c) In-season catch data will be compiled from information obtained
through spot checks, landing counts, net census work and from other
sources.
25 CFR 250.14 Identification of persons fishing.
Each eligible fisher shall produce for examination the applicable
Indian fisher identification card required under these regulations upon
demand of an enforcement officer.
25 CFR 250.15 Enforcement.
(a) Eligible Indians who violate this part or any pre-season or
in-season adjustment promulgated under this part are subject to
prosecution before the Court of Indian Offenses or before an appropriate
Federal Court. The Indian Civil Rights Act and, except as modified by
this part, 25 CFR 11.5(a) and (b), 11.6 and 11.8, 11.11, 11.12(a), 11.14
through 11.19, 11.21 and 11.33 through 11.37, apply.
(b) Citations. Law enforcement officers may issue citations to any
eligible Indian believed to have committed a violation of the
regulations of this part. Such citation shall state when and where the
person cited is expected to appear in court and the offense with which
the person is charged.
(c) Search of Transportation vehicles. Any law enforcement officer
who with probable cause, believes that any transportation vehicle
contains fish taken on the Reservation by an eligible Indian fisher may
demand access to said fish for inspection, and may search the vehicle to
see if fish are possessed in violation of the regulations of this part.
(1) Any net or other fishing gear used in violation of this part and
any fish taken or possessed in violation of this part may be seized by a
law enforcement officer. Fish and gear so seized shall be held pending
disposition by court order except as specifically provided in these
regulations. The prosecutor may authorize law enforcement officers to
release, without a court order, any gear or fish seized when the
prosecutor declines to prosecute an eligible fisher for the suspected
violation for which the gear and/or fish were seized.
(2) When a net or other fishing gear is seized and the owner is
unknown to the enforcement officer, the prosecutor shall, without
unreasonable delay, commence proceedings in the Court of Indian Offenses
by petitioning the Court for a judgment forfeiting the fishing gear
and/or fish. When a net or other fishing gear is seized, the prosecutor
shall, without unreasonable delay, notify by registered mail the holder
of the identification number that his/her fishing gear has been seized.
The notice of seizure shall state the date, place and time of the
seizure, and shall direct the person whose gear was seized to notify the
court directly to arrange to have the matter placed on the court's
calendar.
(3) Upon filing of such petition, the enforcement officer shall set
out details of the seizure, citing time, place, and location of such
seizure. A notice of seizure shall be left at the site where the
fishing gear and/or fish were confiscated. The court, upon receipt of
the petition, shall set the matter on its calendar for the next
quarterly hearing after all procedural requirements have been completed
and shall cause notices for unidentified gear and/or fish to be posted
and published. A notice shall be posted at least 10 days prior to the
forfeiture hearing of the Court of Indian Offenses. The Clerk of the
Court shall publish notices in at least one (1) local news medium having
circulation on the Reservation. Such notice shall be published at least
once five (5) days or more before said hearing and shall set forth the
reason for the hearing. The Court shall hold hearings once each three
months to determine the disposition of the unmarked gear and fish
seized.
(4) Any fishing gear forfeited shall be sold at public sale as
directed by the Agency Superintendent.
(5) One or more eligible Indians may appear at the forfeiture
proceeding and intervene prior to the Court's disposition of the gear
and/or fish confiscated. In order to claim the gear and/or fish, the
intervenor must present evidence, under oath, subject to the
cross-examination of the prosecutor, and satisfy the Court with proof
beyond a reasonable doubt that the intervenor is the owner of the gear
claimed and an eligible fisher. If the Court finds that the intervenor
is the owner of the gear, then the gear and/or fish shall be held
pending prosecution of the person responsible for the violation.
(6) If there is no objection by the seizing agency, nor any Federal
statutory or regulatory prohibition, all fish seized may be sold by the
Agency Superintendent. Proceeds may be held pending a Court
determination that fish were taken in violation of these regulations.
In the event of such a determination, proceeds will be transferred to a
special Hoopa-Yurok Fund in the U.S. Treasury. Nothing in this section
shall be construed to prevent undercover law enforcement officers from
selling fish as part of their duties or to make legal the purchase of
fish from such officers.
(d) Complaint procedures. Any person regulated under this part may
file a complaint, in writing, against a law enforcement officer. The
Agency Superintendent shall, without unreasonable delay, conduct an
investigation into any allegation of misconduct by a Bureau law
enforcement officer in carrying out the duties of that office. Upon
completion of the investigation the Agency Superintendent shall make
available to the complainant, upon written request, the findings of the
investigation.
25 CFR 250.16 Penalties.
(a) Any eligible Indian who violates the time closure provisions in
paragraph (a), (b), or (c) of 250.9, shall be subject to the following
penalties:
(1) First violation. If any person is convicted without any previous
conviction(s) of any of the regulations of this part within seven (7)
years, that person shall be punished by forfeiture of all fish seized
and by a fine of not less than fifty dollars ($50) nor more than one
hundred dollars ($100).
(2) Second violation. If a person is convicted within seven (7)
years of another conviction for violation of any regulation contained in
this part, that person shall be punished by forfeiture of all fish
seized and by a fine of not less than one hundred dollars ($100) nor
more than two hundred fifty dollars ($250), or three (3) months in jail,
or suffer suspension of tribal fishing rights for ninety (90) days
during the fall salmon run, or suffer forfeiture of any fishing gear, or
any combination of the above.
(3) Third or subsequent violations. If a person is convicted within
seven (7) years of two (2) or more violations of the regulations
contained in this part, the offender shall be punished by forfeiture of
all fish seized and by a fine of not less than two hundred dollars
($200) nor more than five hundred dollars ($500), or six (6) months in
jail, or suffer suspension of tribal fishing rights for one hundred
eighty (180) days during the fishing season, or suffer forfeiture of any
fishing gear, or any combination of the above.
(b) Any eligible Indian fisher who violates 250.8, 250.6(c), or
250.22 of this part shall be subject to the following penalties:
(1) First violation. If any person is convicted without any previous
conviction of the regulations of this part within seven (7) years, that
person shall be punished by fine of not less than fifty dollars ($50)
nor more than one hundred dollars ($100), or forfeiture of the fish or
fishing gear, or thirty (30) days suspension of tribal fishing rights
during the fall salmon run, or any combination of the above.
(2) Second violation. If the offense occurred within seven (7) years
of a separate violation of any regulation contained in this part, the
offender shall be punished by a fine of not less than one hundred
dollars ($100) nor more than two hundred dollars ($200), or forfeiture
of fish or fishing gear, or sixty (60) days suspension of tribal fishing
rights during the fall salmon run, or any combination of the above.
(3) Third or subsequent violations. If the offense occurred within
seven (7) years of two or more separate violations of any regulations
contained in the part, the offender shall be punished by a fine of not
less than two hundred dollars ($200) nor more than four hundred dollars
($400), or forfeiture of fish or fishing gear, or ninety (90) days
suspension of tribal fishing rights during the fall salmon run, or any
combination of the above.
(c) Any eligible fisher who violates 250.8(g), 250.8(h), 250.8(i),
250.9(j), 250.9(1), 250.9(m), 250.9(n), 250.9(p) or 250.9(s) shall
be subject to the following penalties:
(1) First violation. If any person is convicted of any violation of
the above regulations without any previous conviction of any of the
regulations of the part within seven (7) years, that person shall be
punished by a fine of not less than one hundred dollars ($100) nor more
than two hundred dollars ($200), or forfeiture of fish or fishing gear,
or suffer thirty (30) days suspension of tribal fishing rights during
the fall salmon run, or any combination of the above.
(2) Second violation. If the offense occurred within seven (7)
years, of two (2) or more violations of any of the regulations contained
in this part, the offender shall be punished by a fine of not less than
one hundred dollars ($100), or fifteen (15) days in jail, or forfeiture
of fish or fishing gear, or suffer sixty (60) days suspension of tribal
fishing rights during the fall salmon run, or any combination of the
above.
(3) Third or subsequent violations. If the offense occurred within
seven (7) years of two (2) or more violations of any of the regulations
contained in the part, the offender shall be punished by a fine of not
less than two hundred dollars ($200) nor more than five hundred dollars
($500), or forty (40) days in jail, or forfeiture of fish or fishing
gear, or suffer one hundred twenty (120) days suspension of tribal
fishing rights during the fall salmon run, or any combination of the
above.
(d) If an eligible Indian fisher fails to appear after being issued a
citation pursuant to 250.7 and offer proof that he/she has an
identification card, the court shall order suspension of the fisher's
fishing right pending the presentation of the required proof.
(e) If an eligible fisher violates 250.7, a penalty shall be imposed
of a fine of not less than fifty dollars ($50) nor more than five
hundred dollars ($500) or twenty (20) days in jail, or forfeiture of
fish or fishing gear, or shall suffer sixty (60) days suspension of
tribal fishing rights during the fall salmon run, or any combination of
the above.
(f) If any eligible Indian violates the provisions of 250.9(e),
250.9(f), 250.9(o), 250.9(q), 250.9(v), or any provision of 250.10,
or 250.13, that person shall be punished by a fine of not less than two
hundred fifty dollars ($250) nor more than five hundred dollars ($500),
or sentenced to jail for a period of not more than six (6) months, or
have his/her tribal fishing rights suspended for not more than one
hundred eighty (180) days during the fishing season including the fall
salmon run, or shall suffer forfeiture of all fish and/or fishing gear
seized, or any combination of the above.
(g) Any eligible Indian who violates the prohibition against impeding
boat and dock traffic contained in 250.9(k) shall be fined not more
than twenty-five dollars ($25), or sentenced to perform no more than two
(2) days community service as directed by the Court of Indian Offenses
or Federal court.
(h) Any eligible Indian who refuses to obey a lawful order of the
Court of Indian Offenses shall be fined not more than five hundred
dollars ($500), or suffer suspension of fishing rights for a period not
to exceed 365 days, or any combination thereof.
(i) Any eligible Indian who violates a lawful order of the Court of
Indian Offenses suspending that person's tribal fishing rights shall be
fined not less than Three Hundred Dollars ($300) nor more than Five
Hundred Dollars ($500); or sentenced to jail for a period not to exceed
ninety (90) days; or suffer further suspension of tribal fishing rights
during the fishing season fall salmon run, not to exceed one hundred
eighty (180) days, and forfeiture of all fish and gear seized; or any
combination of the above.
(j) Except as otherwise provided for in this part, for purposes of
determining imposition of fines and sentences under this part, the
number of prior violations shall include all violations occurring in the
previous seven (7) years. The court shall not suspend any fine, or
portion thereof for the purpose of avoiding the mandatory fines as
stated in the regulations of this part.
25 CFR 250.17 Forcible assault and impeding a law enforcement officer.
Any person who forcibly assaults or resists, impedes, delays, gives
false information to, or interferes with a law enforcement officer
engaged in the enforcement of the regulations of this part shall be
prosecuted in the Federal Courts under 18 U.S.C. 111 or in the Court of
Indian Offenses under this section. Such violators shall be fined not
less than Two Hundred Fifty Dollars ($250) nor more than Five Hundred
Dollars ($500) and have his/her tribal fishing rights suspended for not
less than thirty (30) days nor more than one hundred eighty (180) days,
or be sentenced to jail for a period not to exceed six (6) months, or
both.
25 CFR 250.18 Hoopa Valley Indian Reservation Court of Indian Offenses.
The Hoopa Valley Indian Reservation Court of Indian Offenses
established under 25 CFR part 11 has jurisdiction which is limited to
trying persons accused of violating these regulations and determining
whether nets, or other fishing gear and fish are forfeited.
25 CFR 250.19 Execution of judgments pending appeals.
Notwithstanding the provisions of 11.6 of this title, the judgment
of the trial court is not automatically stayed upon the filing of an
appeal. A judgment may be stayed only by the order of the trial court
or the court of appeals.
25 CFR 250.20 Juries.
(a) A jury trial shall be provided upon demand by the defendant in
any case in which the court determines, assuming all allegations are
proved true, that a jail sentence may be imposed.
(b) No juror may be seated unless the court concludes beyond a
reasonable doubt that he/she is able to render a fair and impartial
verdict.
(c) The judge shall instruct the jury in the law governing the case
and the jury shall reach a verdict of guilt or innocence as to each
count charged.
(d) Verdicts shall be rendered by unanimous vote.
(e) The jury shall return a verdict of guilty if it concludes beyond
a reasonable doubt that the defendant committed the offense with which
he/she is charged.
25 CFR 250.21 Bail forfeiture or no contest plea.
A plea of no contest to, or forfeiture of bail from, a charge of a
violation, of the regulations of this part, or order made or adopted
under these regulations, is a conviction of a violation thereof for
purpose 250.16 of this part.
25 CFR 250.22 Notification of address change.
(a) Whenever any person, after applying for or receiving an
identification card, acquires an address different from the address
shown on the fisher identification card issued, he/she shall, within ten
(10) days, notify the Agency Superintendent of his/her old and new
addresses. The Bureau may thereupon take such action as necessary to
insure that the identification card reflects the proper address of the
identification card holder.
(b) All notices, demands and requests under this part by the Court of
Indian Offenses and the Prosecutor shall be hand delivered or sent by
U.S. Mail, First Class Mail, addressed to the defendant at the address
supplied by the eligible fisher.
(c) Notices, demands and requests delivered in the above manner shall
be considered sufficiently given or served for all purposes under these
regulations at the time the notice, demand, or request is hand delivered
or the execution of a proof of service to the address shown.
25 CFR 250.23 Immunity.
Each Judge and prosecutor of the Court of Indian Offenses has the
immunity of a Judicial Officer and Prosecutor, respectively, from civil
liability while performing his/her duties as a judge or prosecutor.
25 CFR 250.23 SUBCHAPTER K -- HOUSING
25 CFR 250.23 PART 256 -- HOUSING IMPROVEMENT PROGRAM
Sec.
256.1 Purpose.
256.2 Definitions.
256.3 Policy.
256.4 Program categories.
256.5 HIP application.
256.6 Eligibility.
256.7 HIP selection criteria.
256.8 Program implementation.
256.9 Inspections.
256.10 Appeals.
256.11 Flood Disaster Protection.
256.12 Information Collection.
Appendix A to Part 256 -- Summary of Selection Criteria -- Point
Schedule
Appendix B to Part 256 -- HIP Selection Criteria.
Authority: 42 Stat. 208. (25 U.S.C. 13).
Source: 57 FR 3105, Jan. 27, 1992, unless otherwise noted.
25 CFR 256.1 Purpose.
The purpose of this part is to prescribe the terms and conditions
under which assistance is given to Indians under the Housing Improvement
Program (HIP).
25 CFR 256.2 Definitions.
As used in this part 256:
Area Director means the Officer in charge of one of the Bureau of
Indian Affairs Area Offices, or his/her authorized delegate.
Assistant Secretary means the Assistant Secretary -- Indian Affairs,
or his/her authorized representative.
Dilapidated means a state of disrepair.
Family means one or more persons maintaining a household.
Handicapped means legally blind; legally deaf; lack of or inability
to use one or more limbs; chair or bed bedbound; inability to walk
without crutches or walker; mental disability in an adult of a severity
that requires a companion to aid in basic needs, such as dressing,
preparing food, etc., or severe heart and/or respiratory problems
preventing even minor exertion.
Indian means any person who is a member of any of those tribes listed
in the Federal Register pursuant to 25 CFR part 83 as recognized by and
receiving services from the Bureau of Indian Affairs.
Nonmember Indian means any person who is a member of a Federally
recognized tribe living in another tribe's approved service area.
Ownership means having fee title, trust title, leasehold interest,
use permit, indefinite assignment or other exclusive possessory
interest. In the case of Alaska, the term also includes one who the
Superintendent determines has a reasonable prospect of becoming an
owner, in accordance with the provisions of the Alaska Native Claims
Settlement Act (85 Stat. 688).
Secretary means the Secretary of the Interior.
Service area means reservations (former reservations in Oklahoma),
and allotments, restricted lands, Indian-owned fee lands (including
lands owned by Corporations established pursuant to the Alaska Native
Claims Settlement Act) within a geographical area designated by the
tribe, and approved by the Area Director to which equitable services can
be delivered.
Standard Housing means a dwelling in a condition which is decent,
safe, and sanitary so that it meets the following minimum standards;
(a) General construction conforms to applicable tribal, county, state
or national codes and to appropriate building standards for the region.
(b) The heating system has the capacity to maintain a minimum
temperature of 70 degrees in the dwelling during the coldest weather in
the area. It must be safe to operate and maintain and deliver a uniform
distribution of heat.
(c) The plumbing system includes a properly installed system of
piping and fixtures.
(d) The electrical system includes wiring and equipment properly
installed to safely supply electrical energy for lighting and for the
operation of appliances.
(e) Occupants per dwelling do not exceed these limits:
(1) Two-bedroom dwelling: Up to four persons;
(2) Three-bedroom dwelling: Up to seven persons;
(3) Four-bedroom dwelling: Adequate for all but the very largest
families;
(f) Bedroom size: The first bedroom must have at least 120 sq. ft.
of floor space, additional bedrooms must have a minimum of 100 sq. ft.
of floor space each.
(g) Two exceptions to standard housing will be permitted:
(1) Where one or more of the utilities are not available and there is
no prospect of the utilities becoming available; and
(2) In areas of severe climate, house size may be reduced to meet
applicable building standards of the region.
(h) The house site must be chosen so that access to utilities is most
economical, the ingress and egress are adequate and aesthetics and
proximity to school bus routes are considered.
Superintendent means the Officer in charge of the Agency or other
local office of the Bureau of Indian Affairs.
Tribe means any Indian Tribe, Band, Nation, Rancheria, Pueblo,
Colony, or Community, including any Alaska Native Village which is
federally recognized as eligible by the United States Government for the
special programs and services provided by the Secretary to Indian tribes
because of their status as Indians.
25 CFR 256.3 Policy.
(a) The Bureau of Indian Affairs' housing policy is consistent with
the specific objectives of the national housing policy which declares
that every American family should have the opportunity for a decent home
and suitable living environment. To the maximum extent possible, tribes
will be involved in the administration of the program.
(b) Every Indian, as defined in 256.2 and eligible pursuant to
256.6, is entitled to participate in this program irrespective of tribal
affiliation, provided equitable services can be delivered to the
geographic area within which they reside.
(c) The general distribution of HIP funds among tribes is based on a
consistent, valid, and certified inventory of tribal housing needs, a
viable work plan, and the tribe being in compliance with the intent of
the program. Every effort will be made to use HIP funds in conjunction
with other programs so that the result will be a greater amount of
housing improvements than would otherwise be possible with the HIP funds
alone. An example of this is the agreement with the Indian Health
Services to provide water and sanitation facilities for HIP houses. In
cases where training programs are used in conjunction with the HIP,
funds are to be limited to the purchase of materials, and to the
provision of inspection and skilled labor which are otherwise not
available.
(d) Tribal allocation levels are determined on the basis of the HIP's
responsibility of the total housing needs derived from the tribal
inventories of need. The emphasis of the HIP will be on repair and
renovation of existing housing while other federally-assisted programs
are responsible for the bulk of the new house building effort. As such,
the BIA's funding calculations are based on 90% of the repair need and
up to 10% of the new construction need indicated by tribal housing
inventories. (The exception is Alaska, where the percentage is 95% of
repairs and 35% of new construction). The HIP may provide a grant for
the financing of the construction of a limited amount of new standard
housing when it is established that the applicant has been denied
housing assistance from sources other than the HIP. Thus, each fiscal
year, the BIA will allocate funds appropriated for HIP in proportion to
the identified housing needs.
25 CFR 256.4 Program categories.
The HIP will provide assistance in the following categories:
(a) Repairs that will remain nonstandard. Under this category:
(1) Financial assistance will be granted to finance repairs and
additions to existing substandard housing needing replacement so that it
is safe, more sanitary, and livable until such time as standard housing
is available.
(2) The standard to be applied in deciding whether to provide
assistance is improvement in the condition of the house, i.e., improved
livability or reduced health and safety hazards, even though it may be
obvious that such an undertaking will not improve the house to the
extent that it will meet the standard of decent, safe, and sanitary.
Examples of the improvement that may be undertaken are: Weather
tightening and the repair of doors, windows, roof, electrical wiring,
plumbing, and chimney.
(3) The cumulative total expenditure of the HIP funds shall not
exceed $2,500 for any one dwelling.
(4) The funds shall be granted and no restrictions on the use of the
home may be imposed.
(b) Repairs to housing that will become standard. Under this
category:
(1) Financial assistance will be granted to finance repairs,
renovation and/or enlargement of existing structurally sound, but
deteriorated dwellings which can economically be placed in a standard
condition.
(2) Upon completion of work, the dwelling shall fit the definition of
standard housing as defined in 256.2.
(3) The total expenditure of the HIP Program Funds shall not exceed
$20,000 for any one dwelling. (In the case of Alaska, reasonable,
substantiated freight costs in accordance with Federal Property
Management Regulation (FPMR) 101-40, not to exceed 100% of the material
cost, may be added).
(4) Undertakings under this category are for applicants who are
living in their own homes.
(5) The applicant must sign a written agreement that if he/she sells
the house within five years following the date of completion of the
repairs, the grant will be voided and the grantee will repay the full
amount of the grant at the time of settlement to the Bureau of Indian
Affairs.
(c) Down Payments. Under this category:
(1) The HIP provides grants in order to make the applicant eligible
to receive housing loans from tribal, Federal or other sources of
credit. The applicant must establish that he/she has an inadequate
income of limited financial resources to meet the full cost of the loan.
Grants are only for standard housing.
(2) The grant shall not exceed the amount necessary to secure the
loan plus the closing costs or ten percent (10%) of the purchase price
of the house plus the closing costs or $5,000, whichever is less. (In
the case of Alaska, the grant amount shall not exceed $6,000).
(3) The method of advancing the grant must ensure that the funds are
used for the purpose intended. The applicant must sign a written
agreement that if he/she sells the house within five years following the
date of purchase, the grant is voided and the amount of the grant will
be fully repaid by the grantee to the Bureau of Indian Affairs at time
of settlement.
(d) New housing. Under this category:
(1) The HIP may provide a grant for the financing of the construction
of a limited amount of new standard housing, either site-built or
factory-built, when it is established that the applicant has been denied
housing assistance from sources other than the HIP.
(2) The housing provided under this category must meet the housing
standards of this Part. Mobile units with an integral frame are
specifically excluded.
(3) The total expenditure of HIP funds shall not exceed $45,000 for a
dwelling and equipment. (In the case of Alaska, the total expenditure
of funds shall not exceed $55,000, plus reasonable, substantiated
freight costs in accordance with FPMR 101-40, not to exceed 100% of the
materials cost). The occupant will be responsible for all maintenance
of the completed dwelling and all utility fees, deposits or costs
required for service.
(4) The applicant must have ownership of the land on which the house
is located. In the case of a leasehold interest, it must be for not
less than 25 years. The applicant must sign a written agreement that if
he/she sells the house within the first ten years from the date of
ownership, the grant is voided and the full amount of the HIP grant will
be repaid by the grantee to the Bureau of Indian Affairs at time of
settlement. Subsequent to the first ten years, if the grantee sells the
house, he/she may retain 10% of the original grant amount per year
beginning in the eleventh year, with the remaining amount to be repaid
to the Bureau of Indian Affairs. If the sale occurs twenty years or
more after the date of ownership, no repayment of any part of the grant
will be due the Bureau of Indian Affairs.
(5) Adequate fire insurance, where determined feasible, must be
carried.
25 CFR 256.5 HIP application.
Individuals wishing to participate in the Housing Improvement Program
must fill out BIA Form 6407. Application forms may be obtained from
tribes or the nearest Bureau of Indian Affairs Office. Completed
applications should be submitted to tribes or the nearest BIA office,
where applicable. Each application for assistance should be approved by
the tribe. Nonmember Indians apply for assistance through the tribe in
whose jurisdiction they reside.
25 CFR 256.6 Eligibility.
(a) To establish eligibility for selection to receive a grant under
256.7, an applicant must show that:
(1) The applicant is an Indian.
(2) The present housing of the applicant is substandard or inadequate
in terms of capacity to meet the physical needs of the family.
(3) The applicant has been denied, or is ineligible for, housing
assistance from sources other than the HIP.
(4) The economic resources of the applicant are inadequate or factors
exist which make the applicant unable to obtain housing from other
local, state or Federal sources. Applicants whose annual income exceeds
the Department of Health and Human Services Poverty Income Guidelines by
225% or more shall be ineligible for HIP assistance on the basis of
need. Determination of eligibility will be made on a case-by-case
basis.
(5) The applicant for assistance under one of the categories in
256.4 meets the ownership requirements given under that category.
(b) After October 1, 1986, an applicant may only receive assistance
once under categories given in paragraphs (b), (c), or (d) of 256.4.
(c) The Department of Housing and Urban Development (HUD) financed
houses under the administration of an Indian Housing Authority (IHA)
will not be eligible for assistance until the end of the entire project
indebtedness to the Federal Government.
25 CFR 256.7 HIP selection criteria.
Once the eligibility requirements of 256.6 are satisfied,
development of priority lists of eligible applicants shall be
accomplished by a ranking system based on six basic factors of need:
Annual income, family size, overcrowded living conditions, age, handicap
or disability, and HUD-IHA financed housing. Eligible applicants may
receive points for any or all of these six factors. Priority will be
given relative to the number of points received. Appendix A to this
provides a summary of selection criteria.
(a) Factor No. 1 -- Annual Household Income (Up to 40 points
available).
(1) The eligible applicant's total annual household income and other
resources, if any, must be evaluated in order to determine priority in
terms of degree of poverty. If an individual is counted as a family
member for the purpose of determining Family Size (Factor No. 2), the
annual income of that person must be included in the total annual
household income on the HIP application. Examples of income which must
be included are royalties and onetime income. A specific definition of
the type of resources which must be included is set forth in 25 CFR part
20.
(2) In order to determine whether or not the applicant is entitled to
points under Factor No. 1, it is necessary to compare the total
combined annual household income against the Federal Poverty Income
Guidelines which are published annually by the Department of Health and
Human Services. The most current issue of the Guidelines published in
the Federal Register by Health and Human Services (HHS) will be used
during the selection process. A yardstick for determining applicant
income priority is provided based upon 125% of the Poverty Income
Guidelines. In addition, even greater point values are available for
applicants whose annual income falls substantially (25% or more) below
the poverty level. In order to facilitate calculations, a chart of the
various income levels is provided to each tribe annually upon
publication of new revised Poverty Guidelines by HHS each year.
(b) Factor No. 2 -- Family Size (5 points per dependent child). A
dependent child for purposes of this subsection is a person meeting the
definition of ''child'' in 25 CFR part 20.
(c) Factor No. 3 -- Overcrowded Living Conditions (Up to 10 points
possible).
(1) The definition of ''standard housing'' identifies the acceptable
limits for family size per dwelling (see 256.2). In order to earn
points under Factor No. 3, the applicant family must exceed the limits
for its dwelling established in 256.2. A family is overcrowded if:
(i) Three or more persons occupy a one-bedroom dwelling.
(ii) Five or more persons occupy a two-bedroom dwelling.
(iii) Eight or more persons occupy a three-bedroom dwelling.
(2) Depending upon the circumstances and the degree of overcrowding,
as well as the family structure, the committee reviewing HIP
applications can award as little as 1 point, or as many as 10 points,
for the overcrowding factor.
(3) The preceding overcrowded living description is not feasible in
Alaska where, because of the unique climatic conditions, a dwelling is
frequently not divided into the conventional room arrangement customary
in the contiguous 48 states. Recommended guidelines for Alaska only are
therefore based upon gross square feet per occupant, ranging from 2 to
10 points for Factor No. 3. (See appendix A to this part.)
(d) Factor No. 4 -- Age -- (1) Elderly couple. (Up to 21 points per
individual available.) Points are awarded based upon age, beginning at
age 55, with a maximum of 21 points per elderly person available.
Appendix B to this part is a schedule, by age, of the number of points
to be awarded in this category. If an applicant family has an elderly
relative who is a permanent household member, points are added to the
application for this person.
(2) Single, Elderly, Living Alone (Up to 32 points). Special
priority amounting to 150% of the Factor No. 4 standard schedule, as
identified in paragraph (d)(1) of this section, is provided only for an
elderly individual living alone and applying for a grant from HIP. An
elderly widower/widow, age 70, living by him/herself plus 50% (8 points)
adds up to a total of 24 points. In calculating allowable points using
the schedule shown in appendix B, decimals should be eliminated by
rounding to the next higher whole number.
(e) Factor No. 5 -- Handicap or Disability (Up to 20 points
available per application).
(1) The many and varied degrees and types of disability present a
complex ranking situation. A general definition of handicapped is
provided as a guide. The selection committee evaluating HIP
applications shall determine the number of points, up to the maximum of
20, merited by the applicant (or family member) based upon the degree of
disability.
(2) Applicants should provide as much documentation as possible
concerning the disabled person's condition. This could include a
doctor's certification, Veteran's Administration determination, Social
Security determination of degree of disability, or similar information
which would assist the HIP committee in its point calculation.
(f) Factor No. 6 -- HUD/IHA Financed Houses (Deduct 30 points). A
deduction of 30 points shall be applied to applicants who own HUD-IHA
houses after the project indebtedness ends, as described in 256.6(c).
These houses represent new standard housing obtained with Federal
housing assistance.
(g) Tie Breaker. If two applications are assigned the same number of
points, two considerations will determine which application has
priority.
(1) Tie Breaker No. 1 -- The applicant living in the most
dilapidated conditions will receive priority.
(2) Tie Breaker No. 2 -- The family with the lower income will be
served first.
25 CFR 256.8 Program Implementation.
The HIP will be implemented either by means of Pub. L. 93-638
contracts with the tribes, or administered directly by BIA, according to
the HIP plans and priority of the tribe served. The HIP consists of two
parts: Receipt, review, and screening of applications submitted by
Indians for housing assistance, determination of eligibility, and
development of applicant priority lists; and design, construction, and
repair/renovation of dwelling units. The implementation of HIP will be
accomplished as follows:
(a) Develop and maintain a consistent and valid tribal inventory of
needs.
(b) Select families and/or individuals for assistance. To accomplish
this task:
(1) A current inventory of HIP applicants shall be developed.
(2) All HIP applications shall be received, reviewed, and screened.
(3) The BIA will ensure that HIP applications contain adequate
information to determine eligibility. At a minimum, each application
must include the information required in 256.6, i.e., name, family
size, income, and financial status, condition of present housing, the
type of housing assistance requested (Category A, B, C or D).
(4) A determination shall be made as to which HIP applicants are
eligible to receive assistance and a priority list of applicants
developed in accordance with the HIP Selection Criteria under 256.7.
(5) The type of assistance to be provided each selected applicant,
the estimated cost, and construction schedule thereof shall be
determined.
(c) Applicant Case File. A case file shall be kept on each approved
applicant. The case file shall contain at a minimum:
(1) Tribal enrollment information.
(2) The condition of existing housing.
(3) Family size and composition.
(4) Income.
(5) Evidence of the inability of the applicant to secure housing from
other sources.
(6) Evidence that the applicant has not received HIP assistance after
October 1, 1986.
The case file shall become a part of the record and must be retained
for at least three years after the completion of the project.
(d) Construction Work Plan -- Repair and renovation of existing
housing or construction of new housing. A work plan shall be prepared
specifying, by HIP Categories, the number of housing units to be
repaired, renovated or built new. The repair, renovation, and new
housing construction work shown on the plan must be consistent with the
housing assistance work specified on the priority list for each
applicant. The plan shall include the following:
(1) Category A Nonstandard Repairs. This category shall include a
description of each repair to be performed, the cost estimate for each
repair, the location of each unit to be repaired, a schedule, and the
name of each applicant that is receiving this assistance.
(2) Category B Standard Repairs and Category D New Housing. This
category shall include location of each unit to be repaired or built
new, and the names of applicants to receive these units. In addition,
for Category B repairs and Category D new housing, the plan shall also
include preliminary drawings, specifications, cost estimates, and a
phased construction schedule for each unit to be repaired, renovated, or
built new. Drawings should fix and illustrate what is required to
repair or build new houses by providing, when applicable: A design,
elevations, unit and room total square feet, general construction,
placement of heating mechanical, electrical, and utility systems, site
layout for grading and utility distribution. Specifications should
describe clearly the scope of work to repair or build a new house, the
workmanship involved, and a statement describing the quality of
materials.
(3) Category C Down Payments. This category shall include a
description and location of the house to be purchased, verification of
the applicant's intent to purchase a standard house, the sale price of
the house, and a verification by the lender as to the amount of down
payment and closing costs required for the applicant to qualify for the
loan.
(e) Construction Start and Completion Dates. An anticipated
construction start and completion date for each repair and new
construction project to be performed shall be established. The
construction start time should consider such factors as weather,
location, family participation, availability of materials, and site
preparation. All HIP recipients listed on the priority list must be
notified of the work to be performed.
(f) Applicable Codes. Depending upon the type of construction
involved, the appropriate local codes will be followed. If local codes
are not available, applicable State or National codes will be followed.
(g) Reporting Requirements. Quarterly reports shall be prepared on
construction work undertaken and expenditures related to that
construction work. The quarterly reports are due on the 15th day after
the end of each calendar quarter, and shall contain for each HIP grant,
at a minimum:
(1) Name of Grantee.
(2) Date of Construction start.
(3) Date of Completion.
(4) Cost.
(h) The HIP will serve those eligible applicants on an approved
priority list. Design, construction, and repair of dwelling units may
be accomplished through:
(1) Direct grants to individual applicants.
(2) Contracts or grant agreements with Indian tribes.
(3) Contracts with private Indian or non-Indian contracting firms in
accordance with normal BIA contract procedures; or
(4) Programs administered directly by the BIA.
25 CFR 256.9 Inspections.
(a) The BIA is responsible for inspection or the assurance that there
is adequate provision for inspection by BIA employees, contractors, or
subcontractors during the course of construction. The BIA shall have
access at all reasonable times to work under contract for monitoring and
inspection.
(b) Final payment for work performed will not be made until a final
inspection is conducted by the BIA, and a determination is made that the
work complies with all contract requirements.
25 CFR 256.10 Appeals.
Actions taken by BIA officials may be appealed pursuant to part 2 of
this chapter.
25 CFR 256.11 Flood Disaster Protection.
No HIP funds, under Categories in paragraphs (b), (c), and (d) of
256.4, will be expended in areas designated as having special flood
hazards under the Flood Disaster Protection Act of 1973 (Pub. L.
93-234, 87 Stat. 977), unless the requirements for suitable flood
insurance are met.
25 CFR 256.12 Information Collection.
The information collection requirements contained in 256.5 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1076-0084. The information will be
used to determine eligibility to participate in the HIP. Individuals
who wish to participate in the HIP must contact the tribe in whose
jurisdiction they reside, or the BIA office closest to their residence.
Eligibility is determined based upon the criteria listed in 256.6.
Response is required to obtain a benefit. Public reporting burden for
this form is estimated to average thirty minutes per response, including
the time for reviewing instructions, gathering and maintaining data, and
completing and reviewing the form.
25 CFR 256.12 Pt. 256, App. A
25 CFR 256.12 -- -- SUBCHAPTER L -- HERITAGE PRESERVATION
25 CFR 256.12 -- -- PART 261 -- PRESERVATION OF ANTIQUITIES
Sec.
261.1 Penalty.
261.2 Permits.
261.3 Supervision.
261.4 (Reserved)
261.5 Restoration of land after work completed.
261.6 Superintendents authorized to confiscate antiquities illegally
obtained or possessed.
261.7 Notice to public.
261.8 Report of violations.
261.9 Report on objects of antiquity.
Authority: Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.
Source: 22 FR 10570, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Cross Reference: For uniform regulations issued by the Secretaries
of the Interior, Agriculture, and Army pertaining to the preservation of
antiquities, see Public Lands; Interior, 43 CFR part 3.
25 CFR 261.1 Penalty.
The appropriation, excavation, injury, or destruction of any historic
or prehistoric ruin or monument, or any object of antiquity situated on
lands owned or controlled by the Government of the United States, by any
person or persons, without the permission of the Secretary of the
department having jurisdiction over the lands on which said antiquities
are situated, shall, upon conviction, subject such person or persons to
be fined not to exceed $500 or imprisoned for not to exceed 90 days, or
both.
25 CFR 261.2 Permits.
The Departmental Consulting Archeologist may grant permits for the
examination of ruins, the excavation of archeological sites, and the
gathering of objects of antiquity on Indian tribal lands or on
individually owned trust or restricted Indian lands. Permit application
forms may be obtained from the Departmental Consulting Archeologist,
National Park Service, Interior Building, Washington, D.C. 20240.
Completed applications should be directed to the Departmental Consulting
Archeologist who will grant permits to reputable museums, universities,
colleges or other recognized scientific or educational institutions, or
to their duly authorized agents, subject to the regulations in this part
and 43 CFR part 3. Copies of these regulations will be attached to the
permit. Permits may be granted only after obtaining the consent of the
Indian landowners, who may impose special conditions for inclusion in
the permit, and the concurrence of the Bureau of Indian Affairs official
having immediate jurisdiction over the property. Said Bureau official
should not permit any excavation or explorations except as granted to
the holders of permits.
(38 FR 18547, July 12, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 261.3 Supervision.
Superintendents may at all times examine the permit of any person or
institution claiming the privileges referred to, and may fully examine
all work done under such permit.
261.4 (Reserved)
25 CFR 261.5 Restoration of land after work completed.
After the work is completed, institutions and persons receiving
permits for excavation shall restore the lands upon which they have
worked to their customary condition, to the satisfaction of the Indian
owners and the Bureau of Indian Affairs official having immediate
jurisdiction over said lands.
(38 FR 18548, July 12, 1973. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 261.6 Superintendents authorized to confiscate antiquities
illegally obtained or possessed.
Superintendents or others in administrative charge of reservations
are hereby directed and authorized to confiscate any antiquities that
may have been illegally obtained or that may now be illegally in the
possession of licensed Indian traders or others and to submit a report
and description of the articles confiscated and request instructions as
to their disposition.
Note: This section prescribed to carry out provisions of 43 CFR
3.16.
25 CFR 261.7 Notice to public.
Copies of the act of June 8, 1906 (34 Stat. 225), and the
interdepartmental regulations of December 28, 1906 (43 CFR part 3),
shall be posted conspicuously at all agency offices where the need is
justified, and warning notices posted on the reservations and at or near
the ruins or other articles to be protected. All licensed traders shall
be notified immediately that failure to cease traffic in antiquities
will result in a revocation of their license.
Note: This section prescribed to carry out provisions of 43 CFR
3.16.
25 CFR 261.8 Report of violations.
Any and all violations of the regulations in this part should be
reported to the Bureau of Indian Affairs immediately.
Note: This section prescribed to carry out provisions of 43 CFR
3.16.
25 CFR 261.9 Report on objects of antiquity.
Superintendents shall from time to time inquire and report as to the
existence, on or near their reservations, of ruins, and archaeological
sites, historic or prehistoric ruins, or monument, historic landmarks
and prehistoric structures, and other objects of antiquity.
25 CFR 261.9 PART 265 -- ESTABLISHMENT OF ROADLESS AND WILD AREAS ON
INDIAN RESERVATIONS
Sec.
265.1 Definition of roadless area.
265.3 Roads prohibited.
Cross Reference: For general regulations pertaining to the
construction of roads, see part 170 of this chapter.
25 CFR 265.1 Definition of roadless area.
A roadless area has been defined as one which contains no provision
for the passage of motorized transportation and which is at least
100,000 acres in extent. Under this definition the Secretary of the
Interior ordered (3 FR 609, Mar. 22, 1938) certain roadless areas
established on Indian reservations. The following is the only presently
existing roadless area:
Name of area -- Wind River Reserve.
Reservation -- Shoshone.
State -- Wyoming.
Approximate acreage -- 180,387
(a) The boundaries of the Wind River Reserve roadless area are as
follows:
Starting at the SW corner of sec. 22, T. 2 S., R. 3 W., on the
south boundary of the Wind River Indian Reservation, thence north six
(6) miles to the NE corner of sec. 28, T. 1 S., R. 3 W., thence west
three (3) miles to the SW corner of sec. 19, T. 1 S., R. 3 W., thence
north four (4) miles along range line to the Wind River Base Line,
thence west one (1) mile along Wind River Base Line to the SW corner of
Sec. 36, T. 1 N., R. 4 W., thence north six (6) miles to the NW corner
of sec. 1, T. 1 N., R. 4 W., thence west five (5) miles along township
line to the NE corner of sec. 1, T. 1 N., R. 5 W., thence north four
and one-half (4 1/2) miles along range line to the NE corner of the SE
1/4 of sec. 12, T. 2 N., R. 5 W., thence west one and one-half (1 1/2)
miles to the center of sec. 11, T. 2 N., R. 5 W., thence on a straight
line in a northwesterly direction to the top of Bold Mountain, thence on
a straight line to the SE corner of sec. 35, T. 4 N., R. 6 W., thence
west one (1) mile along township line to the SW corner of sec. 35, T.
4 N., R. 6 W., thence north two (2) miles to the NW corner of sec. 26,
T. 4 N., R. 6 W., thence on a straight line in a northwesterly
direction to the point where the north line of sec. 15, T. 4 N., R. 6
W. intersects the west boundary of the reservation, thence south,
southeasterly and east along the reservation boundary to point of
beginning.
(5 U.S.C. 301)
(30 FR 9813, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30,
1982)
25 CFR 265.3 Roads prohibited.
(a) Within the boundaries of this officially designated roadless area
it will be the policy of the Interior Department to refuse consent to
the construction or establishment of any routes passable to motor
transportation, including in this restriction highways, roads, truck
trails, work roads, and all other types of ways constructed to make
possible the passage of motor vehicles either for transportation of
people or for the hauling of supplies and equipment, unless the
requirements of fire protection, commercial use for the Indians' benefit
or actual needs of the Indians clearly demand otherwise.
(b) Foot trails and horse trails are not barred. The Superintendent
of the Wind River Reservation on which this roadless area has been
established will be held strictly accountable for seeing that the area
is maintained in a roadless condition. Elimination of this area or any
part thereof from the restriction of this order will be made only upon a
written showing of an actual and controlling need.
(5 U.S.C. 301)
(30 FR 9814, Aug. 6, 1965. Redesignated at 47 FR 13327, Mar. 30,
1982)
Cross Reference: For rights-of-way for highways over Indian lands,
see part 169 of this chapter.
25 CFR 265.3 SUBCHAPTER M -- INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT PROGRAM
25 CFR 265.3 PART 271 -- CONTRACTS UNDER INDIAN SELF-DETERMINATION ACT
25 CFR 265.3 Subpart A -- General Provisions
Sec.
271.1 Purpose and scope.
271.2 Definitions.
271.3 Revision or amendment of regulations.
271.4 Statement of policy.
271.5 Information collection.
25 CFR 265.3 Subpart B -- Application Process
271.11 Eligible applicants.
271.12 Contractable Bureau programs.
271.13 Application information.
271.14 Contents of contract application.
271.15 Criteria for declining to contract.
271.16 Access to Bureau records.
271.17 Pre-application technical assistance.
271.18 Tribal request for initial contract.
271.19 Status of contracts in effect before effective date of
regulations.
271.20 Recontracting.
271.21 Submission of requests to contract.
271.22 Review and action by Superintendent.
271.23 Review and action by Area Director.
271.24 Area Director's recommendation to decline.
271.25 Review and action by Commissioner.
271.26 (Reserved)
271.27 Technical assistance after declination.
271.28 Failure of Bureau Agency or Area Office to act.
25 CFR 265.3 Subpart C -- Additional Requirements for Trust
Responsibilities
271.31 Applicability.
271.32 Contractable functions or programs.
271.33 Content of application.
271.34 Criteria for declining to contract.
25 CFR 265.3 Subpart D -- General Contract Requirements
271.41 Advance payments.
271.42 Use of government property.
271.43 Wage and labor standards.
271.44 Indian preference.
271.45 Liability and motor vehicle insurance.
271.46 Recordkeeping.
271.47 Records -- access to and retention.
271.48 Freedom of information.
271.49 Annual reporting.
271.50 Penalties.
271.51 Federal contracting laws and regulations.
271.52 Term of contract.
271.53 Performing personal services.
271.54 Contract funds.
271.55 Savings under contract.
271.56 Privacy Act requirements.
25 CFR 265.3 Subpart E -- Contract Revision or Amendment
271.61 Requesting revision or amendment.
271.62 Review and action by contracting officer.
271.63 Contracting officer's recommendation to decline.
271.64 Review and action by Area Director or Commissioner.
271.65 (Reserved)
271.66 Revisions or amendments proposed by Bureau.
25 CFR 265.3 Subpart F -- Retrocession and Reassumption
271.71 Retrocession.
271.72 Full retrocession procedures.
271.73 Tribal assumption of retroceded contracts.
271.74 Reassumption.
271.75 Cancellation of contract for cause.
271.76 Bureau operation of retroceded, reassumed or cancelled for
cause contracts.
271.77 Authorized position and end-of-year employment ceiling reserve
for Bureau operation of retroceded, reassumed, or cancelled contracts.
25 CFR 265.3 Subpart G -- Hearings and Appeals
271.81 Informal conference and formal hearing.
271.82 Appeals from decision or action by Commissioner.
Authority: Sec. 102, Pub. L. 93-638, 88 Stat. 2203, 2206 (25
U.S.C. 450f).
Source: 40 FR 51286, Nov. 4, 1975, unless otherwise noted.
25 CFR 265.3 Subpart A -- General Provisions
25 CFR 271.1 Purpose and scope.
(a) The purpose of the regulations in this part is to give the
application and approval process for non-profit contracts with the
Bureau under section 102 of Title I of the Indian Self-Determination and
Education Assistance Act (Pub. L. 93-638, 88 Stat. 2203). Title I is
known as the Indian Self-Determination Act. Contracts under the Act
include ''tribal governmental functions'' as defined in 271.2(q),
''business related functions'' as defined in 271.2(d), and certain
contractable trust resources programs or parts of programs as set forth
in 271.32. The nature of contracts with Indian entities which do not
fall within the purview of the Act, including contracts which may
provide for profit, and the conditions for entering into such contracts,
are set forth in the regulations implementing the Act of June 25, 1910
(36 Stat. 861, 25 U.S.C. 47), commonly referred to as the ''Buy Indian''
Act.
(b) Section 104 of Title I of the Act provides authority for making
grants for certain purposes. It is the Bureau's policy to make grants
for the purpose specified in section 104 of the Act in lieu of
contracts. Part 272 of this chapter gives the procedures and
requirements for obtaining grants under section 104 of the Act.
(c) Nothing in these regulations shall be construed as:
(1) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by an Indian tribe;
(2) Authorizing or requiring the termination of any trust
responsibility of the United States with respect to the Indian People;
or
(3) Permitting significant reduction in services to Indian people as
a result of this part.
(d) Nothing in these regulations shall be construed to mandate a
tribe to apply for a contract or contracts with the Bureau to plan,
conduct, and administer all or parts of any Bureau program. Such
applications under these regulations are strictly voluntary.
25 CFR 271.2 Definitions.
As used in this part:
(a) ''Act'' means the Indian Self-Determination and Education
Assistance Act (Pub. L. 93-638, 88 Stat. 2203).
(b) ''Area Director'' means the official in charge of a Bureau of
Indian Affairs area office except that:
(1) The term means the Director, Office of Tribal Resources
Development, for matters regarding contracting for all or part of the
Indian action team program whenever a tribal organization elects to
submit such a contract application through the Indian Technical
Assistance Center and the tribal governing body(s) has authorized such
application in its resolution pursuant to 271.18(b).
(2) The term means the Director, Office of Administration, for
matters regarding contracting for all or part of the construction,
building and utilities programs which is contractable under this part
and which is within the responsibility of the Division of Facilities
Engineering.
(c) ''Bureau'' means the Bureau of Indian Affairs.
(d) ''Business related function'' means all programs authorized to be
administered by the Bureau for the benefit of Indians enumerated as line
items in the Bureau's annual budget request under Tribal Resources
Development as the Subactivities of Business Enterprise Development,
Credit and Indian Action Teams; Revolving Funds for Loans; Indian Loan
Guaranty and Insurance Funds; and also programs or parts of programs
connected with construction projects but exclusive of the actual
construction of the project.
(e) ''Commissioner'' means the Commissioner of Indian Affairs, under
the direction and supervision of the Assistant Secretary -- Indian
Affairs, is responsible for the direction of day-to-day operations of
the Bureau of Indian Affairs.
(f) ''Days'' means calendar days.
(g) ''Economic enterprise'' means any commercial, industrial,
agricultural, or business activity that is at least 51 percent Indian
owned, established or organized for the purpose of profit.
(h) ''Indian tribe'' means any Indian Tribe, Band, Nation, Rancheria,
Pueblo, Colony or Community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
federally recognized as eligible by the U.S. Government through the
Secretary for the special programs and services provided by the
Secretary to Indians because of their status as Indians.
(i) ''Indian'' means a person who is a member of an Indian tribe.
(j) ''Previously private school'' means a school (other than a
Federal school formerly operated by the Bureau) that is operated
primarily for Indian students in any grade or grades from age 3 years
through grade(s) 12; and, which at the time of application is
controlled, and sanctioned or chartered by the governing body(s) of an
Indian tribe(s).
(k) ''Recontracting'' means the entering into a contract with a
tribal organization which holds a contract for the same program.
(l) ''Resolution'' means the formal manner in which the tribal
government expresses its legislative will in accordance with its organic
documents. In the absence of such organic document, a written
expression adopted pursuant to tribal practices will be acceptable.
(m) ''Secretary'' means the Secretary of the Interior.
(n) ''Superintendent'' means the official in charge of a Bureau of
Indian Affairs agency office except that:
(1) The term means the chief, Indian Technical Assistance Center, for
matters regarding contracting for all or part of the Indian action team
program whenever a tribal governing body elects to submit such a
contract application through the Indian Technical Assistance Center and
so indicates in its resolution pursuant to 271.18(b).
(2) The term means the Chief, Division of Facilities Engineering, for
matters regarding contracting for all or part of the construction,
building, and utilities program which is contractable under this part
and which is within the responsibility of the Division of Facilities
Engineering.
(o) ''Tribal Chairman'' means tribal chairman, governor, chief or
other person recognized by the tribal government as its chief executive
officer.
(p) ''Tribal government,'' ''tribal governing body'' and ''tribal
council'' means the recognized governing body of an Indian tribe.
(q) ''Tribal governmental function'' means all programs authorized to
be administered by the Bureau for the benefit of Indians enumerated as
line items in the Bureau's annual budget requests under the Activities
of Education and Indian Services, the Subactivities of Direct Employment
and Road Maintenance, and those programs related to Irrigation and Power
Operation and Maintenance identified as a part of the subactivity
minerals, mining, irrigation and power under the Activity of Tribal
Resources Development.
(r) ''Tribal organization'' means the recognized governing body of
any Indian tribe; or any legally established organization of Indians or
tribes which is controlled, sanctioned, or chartered by such governing
body or bodies or which is democratically elected by the adult members
of the Indian community to be served by such organization and which
includes the maximum participation of Indians in all phases of its
activities; Provided, That a request for a contract must be made by the
tribe that will receive services under the contract; Provided further,
That in any case where a contract is let to an organization to perform
services benefiting more than one Indian tribe, the approval of each
such Indian tribe shall be a prerequisite to the letting of such
contract.
(s) ''Trust resources'' means natural resources, land, water,
minerals, funds or property, asset, or claim, including any intangible
right or interest in any of the foregoing, which is held by the United
States in trust for any Indian tribe or any Indian individual or which
is held by any Indian tribe or Indian individual subject to a
restriction on alienation imposed by the United States.
(t) ''Trust responsibility'' means, for the purposes of this part
only, to protect, manage, develop and approve authorized transfers of
interests in trust resources held by Indian tribes and Indian
individuals to a standard of the highest degree of fiducary
responsibility.
(u) ''Assistant Secretary -- Indian Affairs'' means the Assistant
Secretary -- Indian Affairs who discharges the authority and
responsibility of the Secretary for activities pertaining to Indians and
Indian Affairs.
(40 FR 51286, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976;
43 FR 37440, Aug. 23, 1978; 45 FR 13448, Feb. 29, 1980)
25 CFR 271.3 Revision or amendment of regulations.
In order to make any substantive revisions or amendments to the
regulations in this part, the Secretary shall take the following
actions:
(a) Consult with Indian tribes and national and regional Indian
organizations to the extent practicable about the need for revision or
amendment and consider their views in preparing the proposed revision or
amendment.
(b) Present the proposed revision or amendment to the Committees on
Interior and Insular Affairs of the United States Senate and House of
Representatives.
(c) Publish the proposed revisions or amendments in the Federal
Register as proposed rulemaking to provide adequate notice to, and
receive comments from, all interested parties.
(d) After consideration of all comments received, publish the
regulations in the Federal Register in final form not less than 30 days
before the date they are made effective.
(e) Annually consult with Indian tribes and national and regional
Indian organizations about the need for revision or amendment, and
consider their views in preparing the revision or amendment.
(f) Nothing in this section shall preclude Indian tribes or national
or regional Indian organizations from initiating request for revisions
or amendments subject to paragraphs (a), (b), (c) and (d) of this
section.
25 CFR 271.4 Statement of policy.
(a) The Congress has recognized the obligation of the United States
to respond to the strong expression of the Indian people for
self-determination by assuring maximum Indian participation in the
direction of educational as well as other Federal services to Indian
communities so as to render such services more responsive to the needs
and desires of those communities.
(b) The Congress has declared its commitment to the maintenance of
the Federal Government's unique and continuing relationship with and
responsibilities to the Indian people through the establishment of a
meaningful Indian self-determination policy which will permit an orderly
transition from Federal domination of programs for and services to
Indians to effective and meaningful participation by the Indian people
in the planning, conduct, and administration of those programs and
services.
(c) It is the policy of the Bureau to facilitate the efforts of
Indian tribes to plan, conduct, and administer programs, or portions
thereof, which the Bureau is authorized to administer for the benefit of
Indians and to facilitate the coordination of all Federal and other
programs on Indian reservations.
(d) It is the policy of the Bureau to continually encourage Indian
tribes to become increasingly knowledgeable about Bureau programs and
the opportunities Indian tribes have regarding them; however, it is the
policy of the Bureau to leave to Indian tribes the initiative in making
requests for contracts and to regard self-determination as including the
decision of an Indian tribe not to request contracts.
(e) It is the policy of the Bureau not to impose sanctions on Indian
tribes with regard to contracting or not contracting; however, the
special resources made available to facilitate the efforts of those
Indian tribes which do wish to contract should be made known to all
tribes, as should the current realities of funding and Federal personnel
limitations.
(f) Contracting is one of several mechanisms by which Indian tribes
can exercise their right to plan, conduct, and administer programs or
portions thereof which the Secretary is authorized to administer for the
benefit of Indians. Another mechanism afforded Indian tribes is the use
of a grant, as provided in part 272 of this chapter, or other resources,
to plan the manner in which it wishes the Bureau to operate a program or
portion thereof.
(g) Contracting by its very nature places Bureau officials in the
dual position of assisting Indian tribes, in many instances, by
furnishing technical assistance in preparation of contract proposals,
and of carrying out their fiscal and administrative responsibilities as
officials of the Federal Government. It is recognized that very often
these two positions are in opposition to each other. The Act and these
regulations are designed to address this problem to the degree
practicable. The Commissioner, Area Directors and Superintendents, as
line officers of the Bureau, are expected to balance these two positions
within the framework of the regulations in this part.
(h) The regulations in this part are not meant to and do not change
the eligibility criteria which individuals must meet to be eligible for
any program currently operated by the Bureau. The eligibility criteria
for each Bureau program is given in the part of 25 CFR chapter I, which
deals with that program. A contractor shall use the existing Bureau
eligibility criteria in operating all or parts of a Bureau program under
a contract under this part unless a waiver is obtained from the
Commissioner. The Commissioner may not waive eligibility criteria
established by statute. The Commissioner may waive eligibility criteria
established by regulation in 25 CFR chapter I.
25 CFR 271.5 Information collection.
The Office of Management and Budget has approved, under 44 U.S.C.
3501 et seq., the information collection requirements in 271.14,
271.17, 271.18, and 271.21 under assigned control number 1076-0088;
271.33 under control number 1076-0090; and 271.41, 271.42, 271.44,
271.46, 271.47, and 271.49 under control number 1076-0091. The
information for 1076-0088 is being collected to determine the
eligibility of applicants, to protect the service population, and
safeguard Federal funds and other resources. The information is used to
determine eligibility and to permit the Bureau to administer, monitor
and evaluate contract programs. The information for 1076-0090 is being
collected to ensure that the trust responsibilities are not abrogated
and to protect, preserve and perpetuate the resources of an Indian tribe
or individual. The information will be used to determine eligibility of
trust related activities or functions under proposed contract
applications, to protect tribal resources, to insure fair return on such
resources and to assure a satisfactory standard of contract performance.
The information for 1076-0091 is being collected to insure proper
administration, monitoring and evaluation of contracts, as well as to
protect Federal funds and the service recipient population. The
information will be used to assess program performance, to monitor
contract expenditures, and to insure fairness and uniformity of
services, including the maintenance of current and accurate records
which allow for clear audit facilitating data. Responses are required
to obtain a benefit.
(53 FR 21995, June 13, 1988)
25 CFR 271.5 Subpart B -- Application Process
25 CFR 271.11 Eligible applicants.
Any tribal organization is eligible to apply for a contract or
contracts with the Bureau to plan, conduct, and administer all or parts
of Bureau programs under section 102 of the Act. However, before the
Bureau can enter into a contract with a tribal organization, it must be
requested to do so by the Indian tribe or tribes to be served by the
contract in accordance with 271.18.
25 CFR 271.12 Contractable Bureau programs.
(a) Tribal organizations are entitled to contract with the Bureau to
plan, conduct, and administer all or parts of any program which the
Bureau is authorized to administer for the benefit of Indians. All or
parts of any program include:
(1) Any part of a Bureau program which is divisible from the
remainder of the program so long as the contract does not significantly
reduce benefits to Indians served by the non-contracted part(s) of the
program. However, to the extent that it is within the Bureau's existing
authority and the program or part thereof involves only one tribe and
one Bureau Agency or Area Office, the benefits provided to Indians by
the non-contracted part(s) of the program may be reduced at the request
of the tribe. When the program or part thereof serves more than one
tribe, the benefits provided by the non-contracted part(s) of the
program may be reduced when all of the tribes served consent to a
reduction.
(2) A single employee position only when the functions to be
performed provide a direct service to Indians and meets the criteria in
paragraph (a) of this section.
(3) Programs or parts of programs or services that are authorized but
not currently operated or provided by the Bureau.
(4) Operation of, or services provided by, previously private
schools.
(5) Alterations and repairs in direct support of a contracted
program. Individual construction projects are not contracted under
title I of the act, but can be contracted under other authorities.
(6) Architect and engineer services.
(b) Paragraph (a) of this section also applies to trust resources
programs or portions thereof. Additional criteria for contractable
trust resources programs, or portions thereof, are given in 271.32.
(40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37440, Aug. 23, 1978)
25 CFR 271.13 Application information.
Application instructions and related materials may be obtained from
Superintendents, Area Directors, and the Commissioner.
25 CFR 271.14 Contents of contract application.
Application for a contract under this part shall contain the
following information in sufficient detail to permit evaluation of the
application in light of the declination criteria set forth in 271.15.
No further detail is, or shall be, required.
(a) Full name, address and telephone number of the tribal
organization which is applying for the contract.
(b) Full name of tribe(s) with which the tribal organization is
affiliated.
(c) Full name of tribe(s) directly benefiting or receiving services
from the proposed contract.
(d) Documentation of the tribal request to contract as required in
271.18.
(e) Date of submission to the Bureau and the name of the office where
the application was submitted.
(f) Signature by the authorized representative of the tribal
organization and the date thereof.
(g) Estimated number of Indian people who will receive benefits or
services from the contract, based on available data including tribal
records.
(h) Descriptive narrative of what functions, Bureau programs, or
portions of programs the tribal organization wants to contract for.
(i) Plan of operations, which shall include but is not limited to:
(1) A statement of tribal goals and objectives to be obtained by the
contract.
(2) The organization, methods and procedures to be used to accomplish
the tribal goals and objectives.
(3) (Reserved)
(4) The budget showing the amount and sources of funding and other
resources required for the contract.
(5) Staffing plan, including extent, if any, that Bureau personnel
may be utilized. (See part 275 of this chapter for staffing options the
applicant may wish to consider).
(6) The evaluation criteria and control systems that the tribal
organization will use to measure progress and accomplishment and to
assure that the quality and quantity of actual performance conforms to
the requirements of the plans.
(j) Statement of tribal organization's substantive knowledge of the
program, part of a program or functions to be contracted.
(k) Description of personnel system and position descriptions for key
personnel.
(l) Listing of equipment, facilities, and buildings needed to carry
out the contract and how the tribal organization intends to obtain them.
(m) Certification by a licensed accountant that the bookkeeping and
accounting procedures which the tribal organization presently uses meet
the standards of 276.7 of this chapter. In place of the certification;
the tribal organization may submit a written agreement to establish a
bookkeeping and accounting system that meets the standards of 276.7 of
this chapter and to have the bookkeeping and accounting system certified
before the Bureau disburses any funds under a contract awarded as a
result of the application. The accounting system shall provide for the
accumulation of costs throughout the contract term or performance period
in such a manner as to facilitate audit or review of the financial
records. When a certification has been submitted in connection with a
previous application, the applicant may state this fact instead of
submitting a new certification.
(n) Proposed system for managing property and keeping records or
agreement to establish within 90 days of contract execution, a
satisfactory system for managing property and keeping records.
(o) Any advance payments required by the tribal organization for
contract including the type of advance, time period, and justification
for the advance payments.
(p) Term of contract requested and proposed starting date of
contract.
(q) A listing of the procedures which the applicant has in place to
assure that services and assistance shall be provided to the Indians
affected by the contract in a fair and uniform manner. If the applicant
does not have such procedures but agrees to establish them, a statement
to that effect should be included in the application. Such procedures
include eligibility criteria for tribal members to receive services,
recordkeeping adequate to verify the fairness and uniformity of services
in case of formal complaints, an adequate complaint procedure available
to all Indians affected, and an explanation of what rights an individual
will retain pending resolution of a complaint.
(r) A statement that the applicant agrees to keep such records as
required pursuant to 271.46, to make reports required by 271.49, and
to make such information and reports available to Indian clients as
required by 271.48.
(s) Identification of any subcontractor(s); the amount and purpose
of the subcontract; the manner in which the subcontractor was selected;
and the basis for the cost of the subcontract. If a subcontract has
not yet been awarded the contract application should include a statement
that the applicant agrees to comply with 41 CFR 14H-70.409 in awarding
any subcontracts; except that in the case of a tribal organization
applying for a contract under 273.11 the statement should be that the
applicant agrees to comply with 273.36 in awarding any subcontracts.
(40 FR 51286, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976;
43 FR 37440, Aug. 23, 1978)
25 CFR 271.15 Criteria for declining to contract.
(a) The Commissioner may decline to contract only for the specific
causes given in paragraph (b) of this section. The burden of proof is
on the Commissioner to demonstrate, through substantial evidence, that
one of the specific grounds for declination exists and that, therefore,
the application must be declined.
(b) The Commissioner may decline to contract when:
(1) The services to be provided to the intended Indian beneficiaries
of the particular program or function to be contracted will not be
satisfactory.
(i) It will be presumed by the Bureau that the program plan and
budget set forth by the tribal organization provides a basis for the
delivery of satisfactory services to the Indian people unless it can be
demonstrated by the Bureau by substantial evidence that the program will
yield results which will be deleterious to the welfare of the Indian
people to be served.
(ii) The service to be provided shall be deemed satisfactory if the
contract application indicates that the applicant has or will establish
procedures to assure that services and assistance shall be provided to
the Indians affected by the contract in a fair and uniform manner. Such
procedures include eligibility criteria for a tribal member to receive
services; recordkeeping adequate to verify the fairness and uniformity
of services in case of formal complaints; an adequate complaint
procedure available to all Indians affected; and those rights the
individual will retain following the complaint.
(2) Adequate protection of trust resources is not assured. Criteria
for determining if there is adequate protection of trust resources are
given in 271.34.
(3) The proposed project or function to be contracted cannot be
properly completed or maintained by the proposed contract.
(4) The application is not within the purview of 271.1(a).
(c) In arriving at his finding, the Commissioner shall consider
whether the tribal organization would be deficient in performance under
the contract with respect to the factors listed in this paragraph.
(1) Equipment, buildings and facilities. No higher standards with
regard to buildings, facilities, or equipment shall be applied to tribal
organizations than have previously been applied to the Bureau. As
provided in 271.42, the Bureau shall make available the use of all
equipment which has been allocated to the operation of the program by
the Bureau in the past, unless the Bureau proves the provision of the
equipment will seriously interfere with the Bureau's ability to provide
services to Indian people in non-contracted programs. Where equipment
is shared by the programs to be contracted and other non-contracted
programs, equipment-sharing or other suitable arrangements shall be
stated in the contract.
(2) Bookkeeping and accounting procedures. It must be clearly
demonstrated by the Bureau that the tribal organization which will
undertake the contract does not have or cannot set in place, using the
contract funds, an accounting and bookkeeping system which will be
adequate.
(3) Substantive knowledge of the program to be contracted. (i) Where
the tribal organization proposing to contract is the tribal governing
body and the program or function to be contracted is a tribal
governmental function, there shall be an absolute presumption that the
tribal governing body has substantive knowledge of the program or
function to be contracted.
(ii) Where the tribal organization proposing to contract is not the
tribal governing body or the program or function to be contracted is not
a tribal governmental function, the tribal organization shall be
presumed to have substantive knowledge of the program to be contracted
if the tribal organization meets one or more of the following
conditions:
(A) The tribal organization has adequately managed a similar program
before through grant or contract.
(B) The tribal organization which is to manage the project possesses
by virtue of its knowledge and/or experience substantive knowledge of
the program to be contracted.
(C) The tribal organization has been a consumer of such services in
the past and thus has developed an understanding of the issues involved
with the program sufficient to enable it to effectively carry out the
contract operation; and, the tribal organization can secure through the
resources of the contract, Bureau staff or other resources, the training
in the particular subject area which will develop its substantive
knowledge of the program.
(4) Community support. Before the Bureau can enter into a contract
there must be a request made in accordance with 271.18. The tribal
governing body's resolution under 271.18 shall be presumed to
demonstrate that there is community support for the proposed contact.
Unless it can be demonstrated by substantial evidence that there is a
lack of community support for the contract and the lack of support will
result in unsatisfactory services, inadequate protection of trust
resources or impossibility of service maintenance, the tribal governing
body's resolution shall be deemed conclusive. Those asserting that
there is a lack of community support for a proposed contract must
demonstrate that they have exhausted their tribal remedies before the
matter is considered by the Bureau. In any event, there will be no
finding by the Bureau of a lack of community support that would result
in deficiencies in performance under the contract until those asserting
it have exhausted all their tribal remedies.
(5) Adequacy of trained personnel. The adequacy of trained personnel
available to the tribal organization to carry out the proposed contract
will be presumed if any of the following conditions exist:
(i) If the tribal organization has a personnel system that prescribes
minimum occupational qualification standards which insure equal access
to all qualified tribal members; procedures for the selection of
personnel on the basis of such standards; and the personnel to be used
under the proposed contract are to be employed under the personnel
system.
(ii) If there is no tribal personnel system, it will be assumed that
the personnel to be employed under the proposed contract are adequately
trained if the tribal organization has established position descriptions
for key personnel to be employed under the contract and agrees to
establish a personnel system similar to the one described in paragraph
(c)(5)(i) of this section.
(6) Other necesssary components of contract performance. (i) All
other necessary components of contract performance will be deemed to be
met unless a tribal organization:
(A) Does not agree to develop an adequate personnel system that
provides selection standards which insure equal access to all qualified
tribal members;
(B) Has not agreed to establish and maintain a property management
system which will adequately account for and protect government
property.
(C) Has not agreed to keep such records as required pursuant to
271.46, make reports required by 271.49, or to make such reports and
information available to Indian clients as required by 271.48.
(D) Has not submitted a completed contract application.
(ii) All ''other necessary components'' have been specifically
identified in this section. No other components shall be defined which
may serve as a basis for declination unless they are added to these
regulations by revision or amendment of the regulations.
(d) Program plans and designs of tribal organizations for contract
operation of Bureau programs or parts may be inconsistent with other
parts of this chapter if a waiver is obtained from the Commissioner.
Inconsistencies between such plans and designs and Bureau manuals,
guidelines or other procedures that are appropriate to programs or parts
of programs operated by the Bureau are not grounds for declination.
(e) Tribes; or tribal organizations acting under delegated authority
pursuant to 271.18(c)(2)(vii); may request from the Commissioner a
waiver under 25 CFR 1.2 of any regulations in this chapter.
(f) Bureau officials may not decline to enter into a contract with a
tribal organization because of any objection that could be overcome
through the contract.
(40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37441, Aug. 23, 1978)
25 CFR 271.16 Access to Bureau records.
(a) Upon the request of a tribal organization, the Superintendent or
Area Director shall make available any information requested and such
other information as the tribal organization may need to prepare a
contract application or carry out a contract. Tribal organizations,
other than the governing body of an Indian tribe (except when operating
under a contract authorized under the Act), shall seek such information
through that tribe's chairman or other official(s) designated by the
tribal governing body, unless the tribal resolution under 271.18(c)(2)
or subsequent resolution sets forth another procedure. Requests for
information are subject only to the limits of the Freedom of Information
Act (5 U.S.C. 552) as amended by the Act of November 21, 1974 (Pub. L.
93-502, 88 Stat. 1561), the Privacy Act (5 U.S.C. 552a) and other
applicable laws. Information to be made available shall include, but
not be limited to:
(1) Data on program services to intended beneficiaries;
(2) Reports on Bureau program operations for the past three years;
(3) Present Bureau staffing pattern and grade levels, existing
vacancies and position decriptions;
(4) Data on the amount of funds which have been provided for the
direct operation of the specific program(s) or portions thereof by the
Bureau during the past fiscal year and proposed contract period;
(5) Existing appraisals, inventories, and assessment of trust
resources.
(b) The tribal organization shall have access to Bureau records as
follows:
(1) The tribal organization shall have access to needed Bureau
records at the appropriated Bureau office for review and making copies
of selected records.
(2) If the tribal contractor needs a reasonable volume of
identifiable Bureau records, the Bureau will furnish the copies to the
tribal organization.
(3) Where a large volume of records are needed and copying is not
practical or feasible, the records may be physically located at the
contract site provided that a Bureau official is designated by the
Commissioner or Area Director as custodian of the records.
(c) Failure of the Bureau to provide such access may be appealed
under the provisions set out in 43 CFR 2.17.
(40 FR 51286, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976;
43 FR 37441, Aug. 23, 1978)
25 CFR 271.17 Pre-application technical assistance.
(a) Upon the request of a tribe, Bureau Agency and Area Offices shall
provide technical assistance to a tribal organization to assist them in:
(1) Determining the appropriateness of contracting.
(2) Developing an effective program design and plan of operations.
(3) Preparing technical parts of the contract application.
(4) Such other ways as may be requested.
(b) Upon the request of a tribe, to the extent that funds are
available, the Bureau may make technical assistance available to the
tribal organizations from sources including, but not limited to:
(1) Technical assistance organizations under contract with the
Bureau.
(2) Grants under part 272 of this chapter.
(3) Other technical assistance resources funded by the Bureau.
(c) Upon the request of a tribe, the Bureau will also assist tribal
organizations in obtaining technical assistance from other Federal
agencies.
25 CFR 271.18 Tribal request for initial contract.
(a) Before the Bureau can enter into a contract with a tribal
organization, it must be requested to do so by the tribe to be served
under the contract. The tribe's request shall be in the form of a
resolution by the tribal governing body. If the tribal organization is
applying for a contract to perform services benefiting more than one
tribe, an authorizing resolution from each tribal governing body must be
obtained before submitting the application to the Bureau for approval.
A tribal governing body may pass a single resolution authorizing a
tribal organization to apply for, negotiate, and execute more than one
contract if the resolution specifies for each contract the same
information required in paragraphs (b) and (c) of this section.
(b) The resolution of the tribal governing body shall authorize the
applicant tribal organization to apply for, negotiate and contract with
the Bureau, subject to the specific terms, conditions and limitations of
the resolution and applicable tribal laws, codes, and regulations. The
resolution shall include the results of the vote (the number for and
against), the date the resolution was approved, and signature of the
person authorized to certify the accuracy of the information contained
in the resolution. If the contract application is for all or part of
the Indian Action Team program and the tribal governing body elects to
submit the application through the Indian Technical Assistance Center,
instead of through the Agency, this choice shall be indicated in the
resolution.
(c) The tribal governing body's request (resolution) should include
the following:
(1) When the tribal organization is the tribal governing body:
(i) A brief statement of the contract scope.
(ii) The tribal official authorized to negotiate the contract and any
amendments thereto.
(iii) The tribal official authorized to execute the contract and any
amendments thereof.
(iv) The expiration date of the authorities granted by the
resolution.
(v) The extent and procedure, if any, for review of the contract and
any amendments thereto by the tribal governing body before execution.
(vi) The proposed date for contract commencement.
(vii) The proposed term of the contract.
(2) When the tribal organization is other than the tribal governing
body:
(i) The name of the tribal organization.
(ii) A brief statement of the contract scope.
(iii) The extent and procedure for review by the tribal governing
body of the contract and any amendments thereto prior to execution by
the tribal organization.
(iv) The tribal office or official to which the Bureau should send
copies of contract documents and correspondence.
(v) The proposed term of the contract.
(vi) The proposed date for contract commencement.
(vii) Any delegations of authority and any limitations on authorities
granted the tribal organization, including those in regard to:
(A) Access to Bureau records under 271.16. Unless specified
otherwise in the tribal resolution under this section or in a subsequent
resolution, a tribal organization which is not the governing body of an
Indian tribe is required to seek access to Bureau records through that
tribe's chairman or other official(s) designated by the tribal governing
body.
(B) Recontracting under 271.20.
(C) (Reserved)
(D) Requests to revise or amend a contract under 271.61 and 271.62.
(E) Requests for contract retrocession under 271.71 and 271.72.
(F) Right to appeal under 271.81 and 271.82.
(G) Requests for waivers of the regulations in this chapter under
271.15(e).
(viii) The expiration date of the authorities granted by the
resolution. If applicable, a statement that the authorities granted
continue until revoked by the tribal governing body will be sufficient.
(d) Any procedures given in this section concerning the manner in
which a tribal governing body passes a tribal resolution shall apply
except where inconsistent with the tribe's organic documents or in the
absence of such organic documents the tribal practice.
(40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37441, Aug. 23, 1978;
45 FR 13448, Feb. 29, 1980)
25 CFR 271.19 Status of contracts in effect before effective date of
regulations.
(a) Contracts between the Bureau and tribal organizations, which were
entered into before the effective date of these regulations and are
still in effect, shall continue until expiration of that contract. Any
revisions or amendments requested during the contract period shall be
subject to the provisions of subpart E of this part.
(b) Upon completion of contracts in effect before the effective date
of the regulations, one of the following will occur:
(1) Where the tribal organization was authorized to enter into its
existing contract by a tribal resolution, even if the resolution was
passed before the effective date of these regulations, the tribal
organization shall have the right to recontract subject to the
provisions given in 271.20.
(2) Where the tribal organization did not have a tribal resolution
authorizing it to enter into the existing contract, it shall not be
entitled to recontract, but must obtain a tribal request as provided in
271.18 and submit an application as provided in 271.14.
25 CFR 271.20 Recontracting.
The Bureau will recontract for the same function(s) or program(s) (as
defined in 41 CFR 14H-70.104) as the original contract at the written
request of the tribal organization designated in the tribal resolution.
Requests for recontracting shall be made as follows unless restricted by
the resolution under 271.18(c)(2) or subsequent resolutions:
(a) If the original contract provided services to only one Indian
tribe, written applications to recontract shall be sent by the tribal
organization to the Area Office as follows:
(1) Directly, when the tribal organization involved is the governing
body of the tribe.
(2) Through the governing body of the tribe for review when the
tribal organization is not the governing body of the tribe. Submission
shall be made to the governing body at least 120 days before the
original contract expires. Copies of the submission shall be sent to
the Superintendent and Area Director at the time of submission to the
tribal governing body. The tribal organization shall promptly notify
the Area Director in writing of the date the tribal governing body
received the application. If, within 45 days after receiving the
application, the tribal governing body does not provide the Area
Director with a formal resolution objecting to the application to
recontract, the absence of receipt of such resolution shall constitute
the tribe's request to recontract.
(b) If the original contract provided services to more than one
Indian tribe, the tribal organization must give a copy of the written
application to recontract to each tribal governing body 120 days before
the original contract expires. The tribal organization shall promptly
notify the Bureau office, where the application is to be submitted under
271.21, in writing of the date the tribal governing bodies received
copies of the application. If, within 45 days after receiving copies of
the application, none of the tribal governing bodies provide the
appropriate Bureau office with a formal resolution objecting to the
application to recontract, the absence of receipt of such resolutions
shall constitute the tribe's request to recontract. If one or more of
the tribal governing bodies involved object to the contract, they may
withdraw from the contract. In such case those withdrawing can
stipulate how they wish the previously contracted services to be
rendered and the remainder may be recontracted at the option of the
tribes involved.
(40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37441, Aug. 23, 1978)
25 CFR 271.21 Submission of requests to contract.
(a) Tribal requests to contract and contract applications shall be
submitted to the Bureau, as follows:
(1) To the Superintendent when the tribe(s) or Indians to be served
by the contract are within the jurisdiction of that Agency office.
However, whether in the past they have been submitted to the
Superintendent, Area Director, or the Commissioner, tribal requests and
the related applications to contract for all or part of the Indian
Action Team program may be submitted to the Chief, Indian Technical
Assistance Center, at the option of the tribal governing body when so
indicated in its resolution pursuant to 271.18(b). All tribal requests
and the related applications to contract for all or part of the
Construction, Building and Utilities program which is contractable under
this part and which is within the responsibility of the Division of
Facilities Engineering must be submitted to the Chief, Division of
Facilities Engineering, instead to the Superintendent, Area Director, or
Commissioner.
(2) To the Area Director when the tribe(s) or Indians to be served by
the contract are within the jurisdiction of more than one Agency office
in the same Bureau Area.
(3) To the Commissioner when the tribe(s) or Indians to be served by
the contract are within the jurisdiction of more than one Area Office.
(b) An application for a contract under this part may be submitted at
any time. However, when the proposed contract may result in the
displacement of Bureau personnel, the application must be submitted to
the appropriate Bureau official at least 120 days before the contract's
proposed starting date so the Bureau can comply with all Civil Service
Commission requirements which apply to separation and/or reassignment of
Federal employees. If these required actions can be completed in less
than 120 days, the contract may begin at an earlier date.
(40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37441, Aug. 23, 1978)
25 CFR 271.22 Review and action by Superintendent.
The Superintendent shall take the following actions after receiving
the contract application:
(a) Within five days of receipt, the Superintendent shall notify the
applicant and the tribal governing body, if different from the
applicant, that the application was received.
(b) Within 15 days of receipt, the Superintendent shall review the
application for completeness and request any additional information from
the applicant or from the requesting tribe that is needed to satisfy the
requirements of 271.14. If the application involves contracting for all
or parts of the Indian Action Team program, the Superintendent shall
also contact the Chief of the Indian Technical Assistance Center for the
necessary information on funding. The funding information shall be
obtained without sending the application to the Center.
(c) Within 30 days of receipt, the Superintendent shall review the
application to determine whether funds are available at the Agency to
finance the proposed contract, the effect of services to be provided by
the proposed contract, the effect of the proposed contract on other
services or programs provided by the Agency, and whether any
deficiencies exist which could possibly result in declination.
(1) If funds are not available at the Agency to adequately finance
the proposed contract without significantly reducing services under the
noncontracted programs or parts of programs, the Superintendent shall so
notify the applicant in writing and offer alternative solutions to the
funding problem. The applicant may propose alternative solutions to
solve the funding problem. Upon receiving written notice of the
applicant's choice of alternative(s), the Superintendent shall determine
whether the alternative(s) chosen will solve the funding problem. If
the applicant's choice of alternative(s) is sufficient to solve the
funding problem, or if the solution involves reprograming which requires
congressional action, the Superintendent shall take the actions in
paragraph (c)(2), (d), or (e) of this section, as appropriate. If the
applicant's choice of alternative(s) will not solve the funding problem,
the applicant shall be notified in writing and will be asked to
reconsider the matter and select another choice. After the applicant
has reconsidered and notified the Superintendent in writing of its
second choice of alternative(s), the Superintendent shall determine
whether the applicant's choice is sufficient to solve the funding
problem. If the Superintendent determines that the applicant's second
choice of alternative(s) will not solve the funding problem, or if the
applicant refuses to make a selection, the Superintendent will refer the
funding problem to the Area Director for a decision. The Superintendent
shall notify the applicant of the referral in writing. An additional 15
days shall be allowed for the Superintendent to try to resolve the
funding problem. The alternatives offered by the Superintendent may
include the following which can be used alone or in combination to solve
the funding problem:
(i) The Bureau may make available additional funds resulting from
savings in other Bureau programs, subject to established reallocation or
reprograming procedures.
(ii) The tribe(s) may obtain grant funds under part 272 of this
chapter to cover any initial ''start up'' costs included in the
proposal.
(iii) The Bureau may redesign or consolidate operations involving
noncontracted programs or parts of programs.
(iv) The tribe(s) may redesign the contract proposal or consolidate
all or parts of the proposal with other tribal programs.
(v) The tribe(s) may obtain additional funds from sources outside the
Bureau to supplement the Bureau funds available to finance the proposal.
(vi) The tribe(s) may accept lower service levels under the proposed
contract or under the noncontracted programs or parts of programs,
except where such lower levels are inconsistent with the requirements of
regulations or statutes, through reallocation or reprograming of Bureau
funds.
(vii) The tribe(s) may choose to withdraw the contract proposal and
allow the Bureau to continue to operate the program either as presently
operated or as redesigned by the tribe(s).
(2) If funds are available at the Agency to adequately finance the
proposed contract without significantly reducing services under the
noncontracted programs or parts of programs, the Superintendent shall
make in writing to the applicant and the tribal governing body those
recommendations which he determines are needed in order to avoid
possible declination and shall indicate the technical assistance
available from the Agency Office to correct any deficiencies. This
action shall also be taken within 30 days after receiving the
application.
(d) The Superintendent shall provide the technical assistance offered
in the written recommendation as requested by the tribal organization
and tribal governing body.
(e)(1) The Superintendent shall forward the appliction to the area
Office with his comments and recommendations. The recommendations shall
include:
(i) A statement on the availability of Bureau equipment, facilities,
and buildings requested in the application.
(ii) A recommendation on who should be the Contracting Officer's
Representative.
(iii) A citation of funds to be charged.
(iv) A certification of the amount of funds actually available for
the contract. if the agency funds available are less than the amount
requested in the application, the Superintendent must state his efforts
and extent of his success or failure in resolving the funding problems.
(2) The Superintendent shall forward the application and his comments
and recommendations within the following time limits:
(i) Within 30 days after receiving the application when the
Superintendent has no recommendations to make to the applicant.
(ii) Within 10 days after making written recommendations to the
applicant if the applicant does not respond, request additional time in
which to respond, or refuses the technical assistance offered.
(f) Within 15 days after receiving an application to contract for all
or part of the Indian Action Team Program, the Chief, Indian Technical
Assistance Center shall contact the Superintendent for the tribe(s) or
Indians to be served by the contract concerning the availability of the
equipment, facilities, and buildings requested in the application. This
contact shall be made without sending the application to the
Superintendent. The Chief, Indian Technical Assistance Center, shall
then forward the application to the Director, Office of Tribal Resources
Development, with his comments and recommendations within the time frame
prescribed in paragraph (e) of this section.
(g) Within 15 days after receiving an application, to contract for
all or part of the Construction, Building and Utilities program, the
Chief of the Division of Facilities Engineering shall contact the
Superintendent for the tribe(s) or Indians to be served by the contract
concerning the availability of the equipment, facilities, and buildings
requested in the application. This contact shall be made without
sending the application to the Superintendent. The Chief, Division of
Facilities Engineering, shall then forward the application to the
Director, Office of Administration, with his comments and
recommendations within the time frame prescribed in paragraph (e) of
this section.
(40 FR 51286, Nov. 4, 1975, as amended at 43 FR 37441, Aug. 23, 1978)