[Title 25 CFR H]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter H - LAND AND WATER]
[From the U.S. Government Printing Office]
25INDIANS12004-04-012004-04-01falseLAND AND WATERHSUBCHAPTER HINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
SUBCHAPTER H_LAND AND WATER
PART 150_LAND RECORDS AND TITLE DOCUMENTS--Table of Contents
Sec.
150.1 Purpose and scope.
150.2 Definitions.
150.3 Maintenance of land records and title documents.
150.4 Locations 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.)
Cross Reference: For further regulations pertaining to proceedings
in Indian probate, see 43 CFR part 4, subpart D.
Source: 46 FR 47537, Sept. 29, 1981, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 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.
Sec. 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
Rec ords 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 Rec ords 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
[[Page 391]]
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.
Sec. 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.
Sec. 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.
Sec. 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, DC, provides title
services for all other Indian land not shown above in Sec. 150.4 or in
this section, including the land of the Absentee Wyandottes. The
regulations in this part apply to the Central Office.
Sec. 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
[[Page 392]]
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.
Sec. 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 rec ords, 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
Rec ords Office may initiate corrective action as follows:
(1) An administrative modification shall be issued to modify probate
rec ords 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 393]]
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.
Sec. 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.
PART 151_LAND ACQUISITIONS--Table of Contents
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 On-reservation acquisitions.
151.11 Off-reservation acquisitions.
151.12 Action on requests.
151.13 Title examination.
151.14 Formalization of acceptance.
151.15 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. 2, 9, 409a, 450h, 451, 464, 465, 487, 488, 489, 501, 502, 573,
574, 576, 608, 608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other
authorizing acts.
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 900 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 parts 2561 and
2564; the acquisition of lands by Indians with funds borrowed from the
Farmers Home Administration, see 7 CFR part 1823, subpart N; the
acquisition of land by purchase or exchange for members of the Osage
Tribe not having certificates of competency, see Sec. Sec. 117.8 and
158.54 of this title.
Source: 45 FR 62036, Sept. 18, 1980, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 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
[[Page 394]]
land in trust status in the State of Alaska, except acquisitions for the
Metlakatla Indian Community of the Annette Island Reserve or it members.
Sec. 151.2 Definitions.
(a) Secretary means the Secretary of the Interior or authorized
representative.
(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.
[45 FR 62036, Sept. 18, 1980, as amended at 60 FR 32879, June 23, 1995]
Sec. 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
[[Page 395]]
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 151.10 On-reservation acquisitions.
Upon receipt of a written request to have lands taken in trust, the
Secretary will notify the state and local governments having regulatory
jurisdiction over the land to be acquired, unless the acquisition is
mandated by legislation. The notice will inform the state or local
government that each will be given 30 days in which to provide written
comments as to the acquisition's potential impacts on regulatory
jurisdiction, real property taxes and special assessments. If the state
or local government responds within a 30-day period, a copy of the
comments will be provided to the applicant, who will be given a
reasonable time in which to reply and/or request that the Secretary
issue a decision. The Secretary will consider the following criteria in
evaluating requests for the acquisition of land in trust status when
[[Page 396]]
the land is located within or contiguous to an Indian reservation, and
the acquisition is not mandated:
(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.
(h) The extent to which the applicant has provided information that
allows the Secretary to comply with 516 DM 6, appendix 4, National
Environmental Policy Act Revised Implementing Procedures, and 602 DM 2,
Land Acquisitions: Hazardous Substances Determinations. (For copies,
write to the Department of the Interior, Bureau of Indian Affairs,
Branch of Environmental Services, 1849 C Street NW., Room 4525 MIB,
Washington, DC 20240.)
[45 FR 62036, Sept. 18, 1980, as amended at 60 FR 32879, June 23, 1995]
Sec. 151.11 Off-reservation acquisitions.
The Secretary shall consider the following requirements in
evaluating tribal requests for the acquisition of lands in trust status,
when the land is located outside of and noncontiguous to the tribe's
reservation, and the acquisition is not mandated:
(a) The criteria listed in Sec. 151.10 (a) through (c) and (e)
through (h);
(b) The location of the land relative to state boundaries, and its
distance from the boundaries of the tribe's reservation, shall be
considered as follows: as the distance between the tribe's reservation
and the land to be acquired increases, the Secretary shall give greater
scrutiny to the tribe's justification of anticipated benefits from the
acquisition. The Secretary shall give greater weight to the concerns
raised pursuant to paragraph (d) of this section.
(c) Where land is being acquired for business purposes, the tribe
shall provide a plan which specifies the anticipated economic benefits
associated with the proposed use.
(d) Contact with state and local governments pursuant to Sec.
151.10 (e) and (f) shall be completed as follows: Upon receipt of a
tribe's written request to have lands taken in trust, the Secretary
shall notify the state and local governments having regulatory
jurisdiction over the land to be acquired. The notice shall inform the
state and local government that each will be given 30 days in which to
provide written comment as to the acquisition's potential impacts on
regulatory jurisdiction, real property taxes and special assessments.
[60 FR 32879, June 23, 1995, as amended at 60 FR 48894, Sept. 21, 1995]
Sec. 151.12 Action on requests.
(a) 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.
(b) Following completion of the Title Examination provided in Sec.
151.13 of this part and the exhaustion of any administrative remedies,
the Secretary shall publish in the Federal Register, or in a newspaper
of general circulation serving the affected area a notice of his/her
decision to take land into trust under this part. The notice will state
that a final agency determination to take land in trust has been made
and that the Secretary shall acquire title in the name of the United
States no
[[Page 397]]
sooner than 30 days after the notice is published.
[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23,
1995, as amended at 61 FR 18083, Apr. 24, 1996]
Sec. 151.13 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.
[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23,
1995]
Sec. 151.14 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.
[45 FR 62036, Sept. 18, 1980. Redesignated at 60 FR 32879, June 23,
1995]
Sec. 151.15 Information collection.
(a) The information collection requirements contained in Sec. Sec.
151.9; 151.10; 151.11(c), and 151.13 have been approved by the Office of
Management and Budget under 44 U.S.C. 3501 et seq. and assigned
clearance number 1076-0100. This information is being collected to
acquire land into trust on behalf of the Indian tribes and individuals,
and will be used to assist the Secretary in making a determination.
Response to this request is required to obtain a benefit.
(b) Public reporting for this information collection is estimated to
average 4 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, 18th and C Streets, NW., Washington, DC 20240; and the
Office of Information and Regulatory Affairs [Project 1076-0100], Office
of Management and Budget, Washington, DC 20502.
[60 FR 32879, June 23, 1995; 64 FR 13895, Mar. 23, 1999]
PART 152_ISSUANCE OF PATENTS IN FEE, CERTIFICATES OF COMPETENCY, REMOVAL
OF RESTRICTIONS, AND SALE OF CERTAIN INDIAN LANDS--Table of Contents
Sec.
152.1 Definitions.
152.2 Withholding action on application.
Issuing Patents In Fee, Certificates Of Competency Or Orders Removing
Restrictions
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.
[[Page 398]]
Sales, Exchanges And Conveyances Of Trust Or Restricted Lands
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.
Partitions In Kind Of Inherited Allotments
152.33 Partition.
Mortgages And Deeds Of Trust To Secure Loans To Indians
152.34 Approval of mortgages 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.
Cross References: For further regulations pertaining to the sale of
irrigable lands, see parts 160, 159 and Sec. 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 subpart G of part 11 of this chapter.
Source: 38 FR 10080, Apr. 24, 1973, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 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.
Sec. 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.
Issuing Patents In Fee, Certificates Of Competency Or Orders Removing
Restrictions
Sec. 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
[[Page 399]]
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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 Sec. 152.9, who
[[Page 400]]
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
[[Page 401]]
Sec. 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
Sec. 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 Sec. 152.16.
Sec. 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.
Sec. 152.15 Judicial review of removal of restrictions, Five Civilized
Tribes, without application.
When an order removing restrictions is issued, pursuant to Sec.
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 Sec.
152.16.
Sec. 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).
[[Page 402]]
Sales, Exchanges And Conveyances Of Trust Or Restricted Lands
Sec. 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.
Sec. 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).
Sec. 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).
Sec. 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).
Sec. 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.
Sec. 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
[[Page 403]]
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.)
Sec. 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 Sec. 152.25(d).
Sec. 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.
Sec. 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.
Sec. 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 Sec.
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.
[[Page 404]]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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).
[[Page 405]]
Sec. 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.
Sec. 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.
Partitions In Kind Of Inherited Allotments
Sec. 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
[[Page 406]]
may be accomplished by the heirs executing deeds approved by the
Secretary, to the other heirs for their respective portions.
Mortgages and Deeds of Trust to Secure Loans to Indians
Sec. 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)
Sec. 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.
PART 153_DETERMINATION OF COMPETENCY: CROW INDIANS--Table of Contents
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.
Sec. 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.
Sec. 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.
Sec. 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;
[[Page 407]]
(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.
Sec. 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.
Sec. 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.
Sec. 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.
PART 158_OSAGE LANDS--Table of Contents
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.
Sec. 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).
Sec. 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.''
Sec. 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.''
[[Page 408]]
Sec. 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
Sec. 117.8 of this chapter.
Sec. 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.)
Sec. 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.
Sec. 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.
Sec. 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.
PART 159_SALE OF IRRIGABLE LANDS, SPECIAL WATER CONTRACT REQUIREMENTS
--Table of Contents
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 Sec. Sec. 134.4 and 152.21
[[Page 409]]
of this chapter. For general regulations pertaining to the issuance of
patents in fee, see part 152 of this chapter.
Sec. 159.1 Conditions of contract.
(a) The form of contract (Form 5-462b) \1\ 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.
---------------------------------------------------------------------------
\1\ Forms may be obtained from the Commissioner of Indian Affairs,
Washington, D.C.
---------------------------------------------------------------------------
(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.''
PART 160_INCLUSION OF LIENS IN ALL PATENTS AND INSTRUMENTS EXECUTED
--Table of Contents
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.
Sec. 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 134 and 137 of this chapter.
Sec. 160.2 Instructions.
All superintendents and other officers are directed to familiarize
themselves with this provision of law, and in
[[Page 410]]
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 proj ect (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 Sec. Sec. 134.4 and 152.21 of this chapter.
Sec. 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.
Sec. 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.
PART 162_LEASES AND PERMITS--Table of Contents
Subpart A_General Provisions
Sec.
162.100 What are the purposes of this part?
162.101 What key terms do I need to know?
162.102 What land, or interests in land, are subject to these
regulations?
162.103 What types of land use agreements are covered by these
regulations?
162.104 When is a lease needed to authorize possession of Indian Land?
162.105 Can tracts with different Indian landowners be unitized for
leasing purposes?
162.106 What will BIA do if possession is taken without an approved
lease or other proper authorization?
162.107 What are BIA's objectives in granting or approving leases?
162.108 What are BIA's responsibilities in administering and enforcing
leases?
162.109 What laws, other than these regulations, will apply to leases
granted or approved under this part?
162.110 Can these regulations be administered by tribes, on the
Secretary's or on BIA's behalf?
162.111 Who owns the records associated with this part?
162.112 How must records associated with this part be preserved?
162.113 May decisions under this part be appealed?
Subpart B_Agricultural Leases
General Provisions
162.200 What types of leases are covered by this subpart?
162.201 Must agricultural land be managed in accordance with a tribe's
agricultural resource management plan?
162.202 How will tribal laws be enforced on agricultural land?
162.203 When can the regulations in this subpart be superseded or
modified by tribal laws and leasing policies?
162.204 Must notice of applicable tribal laws and leasing policies be
provided?
162.205 Can individual Indian landowners exempt their agricultural land
from certain tribal leasing policies?
How To Obtain a Lease
162.206 Can the terms of an agricultural lease be negotiated with the
Indian landowners?
162.207 When can the Indian landowners grant an agricultural lease?
[[Page 411]]
162.208 Who can represent the Indian landowners in negotiating or
granting an agricultural lease?
162.209 When can BIA grant an agricultural lease on behalf of an Indian
landowner?
162.210 When can BIA grant a permit covering agricultural land?
162.211 What type of valuation or evaluation methods will be applied in
estimating the fair annual rental of Indian land?
162.212 When will the BIA advertise Indian land for agricultural leases?
162.213 What supporting documents must be provided prior to BIA's grant
or approval of an agricultural lease?
162.214 How and when will BIA decide whether to approve an agricultural
lease?
162.215 When will an agricultural lease be effective?
162.216 When will a BIA decision to approve an agricultural lease be
effective?
162.217 Must an agricultural lease or permit be recorded?
Lease Requirements
162.218 Is there a standard agricultural lease form?
162.219 Are there any provisions that must be included in an
agricultural lease?
162.220 Are there any formal requirements that must be satisfied in the
execution of an agricultural lease?
162.221 How should the land be described in an agricultural lease?
162.222 How much rent must be paid under an agricultural lease?
162.223 Must the rent be adjusted under an agricultural lease?
162.224 When are rent payments due under an agricultural lease?
162.225 Will untimely rent payments made under an agricultural lease be
subject to interest charges or late payment penalties?
162.226 To whom can rent payments be made under an agricultural lease?
162.227 What form of rent payment can be accepted under an agricultural
lease?
162.228 What other types of payments are required under an agricultural
lease?
162.229 How long can the term of an agricultural lease run?
162.230 Can an agricultural lease be amended, assigned, sublet, or
mortgaged?
162.231 How can the land be used under an agricultural lease?
162.232 Can improvements be made under an agricultural lease?
162.233 Who will own the improvements made under an agricultural lease?
162.234 Must a tenant provide a bond under an agricultural lease?
162.235 What form of bond can be accepted under an agricultural lease?
162.236 How will a cash bond be administered?
162.237 What insurance is required under an agricultural lease?
162.238 What indemnities are required under an agricultural lease?
162.239 How will payment rights and obligations relating to agricultural
land be allocated between the Indian landowners and the
tenant?
162.240 Can an agricultural lease provide for negotiated remedies in the
event of a violation?
Lease Administration
162.241 Will administrative fees be charged for actions relating to
agricultural leases?
162.242 How will BIA decide whether to approve an amendment to an
agricultural lease?
162.243 How will BIA decide whether to approve an assignment or sublease
under an agricultural lease?
162.244 How will BIA decide whether to approve a leasehold mortgage
under an agricultural lease?
162.245 When will a BIA decision to approve an amendment, assignment,
sublease, or mortgage under an agricultural lease be
effective?
162.246 Must an amendment, assignment, sublease, or mortgage approved
under an agricultural lease be recorded?
Lease Enforcement
162.247 Will BIA notify a tenant when a rent payment is due under an
agricultural lease?
162.248 What will BIA do if rent payments are not made in the time and
manner required by an agricultural lease?
162.249 Will any special fees be assessed on delinquent rent payments
due under an agricultural lease?
162.250 How will BIA determine whether the activities of a tenant under
an agricultural lease are in compliance with the terms of the
lease?
162.251 What will BIA do in the event of a violation under an
agricultural lease?
162.252 What will BIA do if a violation of an agricultural lease is not
cured within the requisite time period?
162.253 Will BIA's regulations concerning appeal bonds apply to
cancellation decisions involving agricultural leases?
162.254 When will a cancellation of an agricultural lease be effective?
162.255 Can BIA take emergency action if the leased premises are
threatened with immediate and significant harm?
162.256 What will BIA do if a tenant holds over after the expiration or
cancellation of an agricultural lease?
Subpart C--Residential Leases [Reserved]
[[Page 412]]
Subpart D--Business Leases [Reserved]
Subpart E_Special Requirements for Certain Reservations 162.500 Crow
Reservation.
162.500 Crow Reservation.
162.501 Fort Belknap Reservation.
162.502 Cabazon, Augustine, and Torres-Martinez Reservations,
California.
162.503 San Xavier and Salt River Pima-Maricopa Reservations.
Subpart F_Non-Agricultural Leases
162.600 What types of leases are covered by this subpart?
162.601 Grants of leases by Secretary.
162.602 Grants of leases by owners or their representatives.
162.603 Use of land of minors.
162.604 Special requirements and provisions.
162.605 Negotiation of leases.
162.606 Advertisement.
162.607 Duration of leases.
162.608 Ownership of improvements.
162.609 Unitization for leasing.
162.610 Subleases and assignments.
162.611 Payment of fees and drainage and irrigation charges.
162.612 Can a lease provide for negotiated remedies in the event of a
violation?
162.613 Will BIA notify a tenant when a rent payment is due under a
lease?
162.614 Will untimely rent payments made under a lease be subject to
interest charges or late payment penalties?
162.615 What will BIA do if rent payments are not made in the time and
manner required by a lease?
162.616 Will any special fees be assessed on delinquent rent payments
due under a lease?
162.617 How will BIA determine whether the activities of a tenant under
a lease are in compliance with the terms of the lease?
162.618 What will BIA do in the event of a violation under a lease?
162.619 What will BIA do if a violation of a lease is not cured within
the requisite time period?
162.620 Will BIA's regulations concerning appeal bonds apply to
cancellation decisions involving leases?
162.621 When will a cancellation of a lease be effective?
162.622 Can BIA take emergency action if the leased premises are
threatened with immediate and significant harm?
162.623 What will BIA do if a tenant holds over after the expiration or
cancellation of a lease?
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, 107 Stat. 2011, 108 Stat. 4572, March 20, 1996, 110 Stat. 4016; 25
U.S.C. 380, 393, 393a, 394, 395, 397, 402, 402a, 403, 403a, 403b, 403c,
409a, 413, 415, 415a, 415b, 415c, 415d, 477, 635, 3701, 3702, 3703,
3712, 3713, 3714, 3715, 3731, 3733; 44 U.S.C. 3101 et seq.
Source: 66 FR 7109, Jan. 22, 2001, unless otherwise noted.
Subpart A_General Provisions
Sec. 162.100 What are the purposes of this part?
(a) The purposes of this part are to:
(1) Identify the conditions and authorities under which certain
interests in Indian land and Government land may be leased;
(2) Describe the manner in which various types of leases may be
obtained;
(3) Identify terms and conditions that may be required in various
types of leases;
(4) Describe the policies and procedures that will be applied in the
administration and enforcement of various types of leases; and
(5) Identify special requirements that apply to leases made under
special acts of Congress that apply only to certain Indian reservations.
(b) This part includes six subparts, including separate, self-
contained subparts relating to Agricultural Leases (Subpart B),
Residential Leases (Subpart C, reserved), Business Leases (Subpart D,
reserved), and Non-Agricultural Leases (Subpart F), respectively.
Subpart E identifies special provisions applicable only to leases made
under special acts of Congress that apply only to certain Indian
reservations. Leases covered by subpart E are also subject to the
general provisions in subparts A through F, respectively, except to the
extent those general provisions are inconsistent with any of the special
provisions in subpart E or any special act of Congress under which those
leases are made.
[[Page 413]]
(c) These regulations apply to all leases in effect when the
regulations are promulgated; however, unless otherwise agreed by the
parties, these regulations will not affect the validity or terms of any
existing lease.
Sec. 162.101 What key terms do I need to know?
For purposes of this part:
Adult means an individual who is 18 years of age or older.
Agricultural land means Indian land or Government land suited or
used for the production of crops, livestock or other agricultural
products, or Indian land suited or used for a business that supports the
surrounding agricultural community.
Agricultural lease means a lease of agricultural land for farming
and/or grazing purposes.
AIARMA means the American Indian Agricultural Resources Management
Act of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), as
amended on November 2, 1994 (108 Stat. 4572).
Assignment means an agreement between a tenant and an assignee,
whereby the assignee acquires all of the tenant's rights, and assumes
all of the tenant's obligations, under a lease.
BIA means the Bureau of Indian Affairs within the Department of the
Interior and any tribe acting on behalf of BIA under Sec. 162.109 of
this part.
Bond means security for the performance of certain lease
obligations, as furnished by the tenant, or a guaranty of such
performance as furnished by a third-party surety.
Day means a calendar day.
Emancipated minor means a person under 18 years of age who is
married or who is determined by a court of competent jurisdiction to be
legally able to care for himself or herself.
Fair annual rental means the amount of rental income that a leased
tract of Indian land would most probably command in an open and
competitive market.
Fee interest means an interest in land that is owned in unrestricted
fee status, and is thus freely alienable by the fee owner.
Fractionated tract means a tract of Indian land owned in common by
Indian landowners and/or fee owners holding undivided interests therein.
Government land means any tract, or interest therein, in which the
surface estate is owned by the United States and administered by BIA,
not including tribal land that has been reserved for administrative
purposes.
Immediate family means a spouse, brother, sister, lineal ancestor,
lineal descendant, or member of the household of an individual Indian
landowner.
Indian land means any tract in which any interest in the surface
estate is owned by a tribe or individual Indian in trust or restricted
status.
Indian landowner means a tribe or individual Indian who owns an
interest in Indian land in trust or restricted status.
Individually-owned land means any tract, or interest therein, in
which the surface estate is owned by an individual Indian in trust or
restricted status.
Interest, when used with respect to Indian land, means an ownership
right to the surface estate of Indian land that is unlimited or
uncertain in duration, including a life estate.
Lease means a written agreement between Indian landowners and a
tenant or lessee, whereby the tenant or lessee is granted a right to
possession of Indian land, for a specified purpose and duration. Unless
otherwise provided, the use of this term will also include permits, as
appropriate.
Lessee means tenant, as defined in this section.
Life estate means an interest in Indian land that is limited, in
duration, to the life of the life tenant holding the interest, or the
life of some other person.
Majority interest means more than 50% of the trust or restricted
interests in a tract of Indian land.
Minor means an individual who is less than 18 years of age.
Mortgage means a mortgage, deed of trust or other instrument that
pledges a tenant's leasehold interest as security for a debt or other
obligation owed by the tenant to a lender or other mortgagee.
NEPA means the National Environmental Policy Act (42 U.S.C. Sec.
4321, et seq.)
[[Page 414]]
Non compos mentis means a person who has been legally determined by
a court of competent jurisdiction to be of unsound mind or incapable of
managing his or her own affairs.
Permit means a written agreement between Indian landowners and the
applicant for the permit, also referred to as a permittee, whereby the
permittee is granted a revocable privilege to use Indian land or
Government land, for a specified purpose.
Remainder means an interest in Indian land that is created at the
same time as a life estate, for the use and enjoyment of its owner after
the life estate terminates.
Restricted land or 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.
Secretary means the Secretary of the Interior or an authorized
representative.
Sublease means a written agreement by which the tenant grants to an
individual or entity a right to possession no greater than that held by
the tenant under the lease.
Surety means one who guarantees the performance of another.
Tenant means a person or entity who has acquired a legal right of
possession to Indian land by a lease or permit under this part.
Trespass means an unauthorized possession, occupancy or use of
Indian land.
Tribal land means the surface estate of 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 BIA
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. Sec. 476).
Tribal laws means the body of law that governs land and activities
under the jurisdiction of a tribe, including ordinances and other
enactments by the tribe, tribal court rulings, and tribal common law.
Trust land means any tract, or interest therein, that the United
States holds in trust status for the benefit of a tribe or individual
Indian.
Undivided interest means a fractional share in the surface estate of
Indian land, where the surface estate is owned in common with other
Indian landowners or fee owners.
Us/We/Our means the Secretary or BIA and any tribe acting on behalf
of the Secretary or BIA under Sec. 162.110 of this part.
USPAP means the Uniform Standards of Professional Appraisal
Practice, as promulgated by the Appraisal Standards Board of the
Appraisal Foundation to establish requirements and procedures for
professional real property appraisal practice.
Sec. 162.102 What land, or interests in land, are subject to these
regulations?
(a) These regulations apply to Indian land and Government land,
including any tract in which an interest is owned by an individual
Indian or tribe in trust or restricted status.
(b) Where a life estate and remainder interest are both owned in
trust or restricted status, the life estate and remainder interest must
both be leased under these regulations, unless the lease is for less
than one year in duration. Unless otherwise provided by the document
creating the life estate or by agreement, rent payable under the lease
must be paid to the life tenant under part 179 of this chapter.
(c) In approving a lease under these regulations, we will not lease
any fee interest in Indian land, nor will we collect rent on behalf of
any fee owners. The leasing of the trust and restricted interests of the
Indian landowners will not be conditioned on a lease having been
obtained from the owners of any fee interests. Where all of the trust or
restricted interests in a tract are subject to a life estate held in fee
status,
[[Page 415]]
we will approve a lease of the remainder interests only if such action
is necessary to preserve the value of the land or protect the interests
of the Indian landowners.
(d) These regulations do not apply to tribal land that is leased
under a corporate charter issued by us pursuant to 25 U.S.C. Sec. 477,
or under a special act of Congress authorizing leases without our
approval under certain conditions, except to the extent that the
authorizing statutes require us to enforce such leases on behalf of the
Indian landowners.
(e) To the extent any regulations in this part conflict with the
Indian Land Consolidation Act Amendments of 2000, Public Law 106-462,
the provisions of that Act will govern.
Sec. 162.103 What types of land use agreements are covered by these
regulations?
(a) These regulations cover leases that authorize the possession of
Indian land. These regulations do not apply to:
(1) Mineral leases, prospecting permits, or mineral development
agreements, as covered by parts 211, 212 and 225 of this chapter and
similar parts specific parts specific to particular tribes;
(2) Grazing permits, as covered by part 166 of this chapter and
similar parts specific parts specific to particular tribes;
(3) Timber contracts, as covered by part 163 of this chapter;
(4) Management contracts, joint venture agreements, or other
encumbrances of tribal land, as covered by 25 U.S.C. Sec. 81, as
amended;
(5) Leases of water rights associated with Indian land, except to
the extent the use of such water rights is incorporated in a lease of
the land itself; and
(6) Easements or rights-of-way, as covered by part 169 of this
chapter.
(b) Where appropriate, the regulations in this part that
specifically refer to leases will apply to permits that authorize the
temporary, non-possessory use of Indian land or Government land, not
including:
(1) Land assignments and similar instruments authorizing temporary
uses by tribal members, in accordance with tribal laws or custom; and
(2) Trader's licenses issued under part 140 of this chapter.
Sec. 162.104 When is a lease needed to authorize possession of Indian
Land?
(a) An Indian landowner who owns 100% of the trust or restricted
interests in a tract may take possession without a lease or any other
prior authorization from us.
(b) An Indian landowner of a fractional interest in a tract must
obtain a lease of the other trust and restricted interests in the tract,
under these regulations, unless the Indian co-owners have given the
landowner's permission to take or continue in possession without a
lease.
(c) A parent or guardian of a minor child who owns 100% of the trust
interests in the land may take possession without a lease. We may
require that the parent or guardian provide evidence of a direct benefit
to the minor child. When the child reaches the age of majority, a lease
must be obtained under these regulations to authorize continued
possession.
(d) Any other person or legal entity, including an independent legal
entity owned and operated by a tribe, must obtain a lease under these
regulations before taking possession.
Sec. 162.105 Can tracts with different Indian landowners be unitized
for leasing purposes?
(a) A lease negotiated by Indian landowners may cover more than one
tract of Indian land, but the minimum consent requirements for leases
granted by Indian landowners under subparts B through D of this part
will apply to each tract separately. We may combine multiple tracts into
a unit for leases negotiated or advertised by us, if we determine that
unitization is in the Indian landowners' best interests and consistent
with the efficient administration of the land.
(b) Unless otherwise provided in the lease, the rent or other
consideration derived from a unitized lease will be distributed based on
the size of each landowner's interest in proportion to the acreage
within the entire unit.
[[Page 416]]
Sec. 162.106 What will BIA do if possession is taken without an approved
lease or other proper authorization?
(a) If a lease is required, and possession is taken without a lease
by a party other than an Indian landowner of the tract, we will treat
the unauthorized use as a trespass. Unless we have reason to believe
that the party in possession is engaged in negotiations with the Indian
landowners to obtain a lease, we will take action to recover possession
on behalf of the Indian landowners, and pursue any additional remedies
available under applicable law.
(b) Where a trespass involves Indian agricultural land, we will also
assess civil penalties and costs under part 166, subpart I, of this
chapter.
Sec. 162.107 What are BIA's objectives in granting or approving leases?
(a) We will assist Indian landowners in leasing their land, either
through negotiations or advertisement. In reviewing a negotiated lease
for approval, we will defer to the landowners' determination that the
lease is in their best interest, to the maximum extent possible. In
granting a lease on the landowners' behalf, we will obtain a fair annual
rental and attempt to ensure (through proper notice) that the use of the
land is consistent with the landowners' wishes. We will also recognize
the rights of Indian landowners to use their own land, so long as their
Indian co-owners are in agreement and the value of the land is
preserved.
(b) We will recognize the governing authority of the tribe having
jurisdiction over the land to be leased, preparing and advertising
leases in accordance with applicable tribal laws and policies. We will
promote tribal control and self-determination over tribal land and other
land under the tribe's jurisdiction, through contracts and self-
governance compacts entered into under the Indian Self-Determination and
Education Assistance Act, as amended, 25 U.S.C. Sec. 450f et seq.
Sec. 162.108 What are BIA's responsibilities in administering and
enforcing leases?
(a) We will ensure that tenants meet their payment obligations to
Indian landowners, through the collection of rent on behalf of the
landowners and the prompt initiation of appropriate collection and
enforcement actions. We will also assist landowners in the enforcement
of payment obligations that run directly to them, and in the exercise of
any negotiated remedies that apply in addition to specific remedies made
available to us under these or other regulations.
(b) We will ensure that tenants comply with the operating
requirements in their leases, through appropriate inspections and
enforcement actions as needed to protect the interests of the Indian
landowners and respond to concerns expressed by them. We will take
immediate action to recover possession from trespassers operating
without a lease, and take other emergency action as needed to preserve
the value of the land.
Sec. 162.109 What laws, other than these regulations, will apply to
leases granted or approved under this part?
(a) Leases granted or approved under this part will be subject to
federal laws of general applicability and any specific federal statutory
requirements that are not incorporated in these regulations.
(b) Tribal laws generally apply to land under the jurisdiction of
the tribe enacting such laws, except to the extent that those tribal
laws are inconsistent with these regulations or other applicable federal
law. These regulations may be superseded or modified by tribal laws,
however, so long as:
(1) The tribal laws are consistent with the enacting tribe's
governing documents;
(2) The tribe has notified us of the superseding or modifying effect
of the tribal laws;
(3) The superseding or modifying of the regulation would not violate
a federal statute or judicial decision, or conflict with our general
trust responsibility under federal law; and
[[Page 417]]
(4) The superseding or modifying of the regulation applies only to
tribal land.
(c) State law may apply to lease disputes or define the remedies
available to the Indian landowners in the event of a lease violation by
the tenant, if the lease so provides and the Indian landowners have
expressly agreed to the application of state law.
Sec. 162.110 Can these regulations be administered by tribes, on the
Secretary's or on BIA's behalf?
Except insofar as these regulations provide for the granting,
approval, or enforcement of leases and permits, the provisions in these
regulations that authorize or require us to take certain actions will
extend to any tribe or tribal organization that is administering
specific programs or providing specific services under a contract or
self-governance compact entered into under the Indian Self-Determination
and Education Assistance Act (25 U.S.C. Sec. 450f et seq.).
Sec. 162.111 Who owns the records associated with this part?
(a) Records are the property of the United States if they:
(1) Are made or received by a tribe or tribal organization in the
conduct of a federal trust function under 25 U.S.C. Sec. 450f et seq.,
including the operation of a trust program; and
(2) Evidence the organization, functions, policies, decisions,
procedures, operations, or other activities undertaken in the
performance of a federal trust function under this part.
(b) Records not covered by paragraph (a) of this section that are
made or received by a tribe or tribal organization in the conduct of
business with the Department of the Interior under this part are the
property of the tribe.
Sec. 162.112 How must records associated with this part be preserved?
(a) Any organization, including tribes and tribal organizations,
that have records identified in Sec. 162.111(a) must preserve the
records in accordance with approved Departmental records retention
procedures under the Federal Records Act, 44 U.S.C. Chapters 29, 31 and
33. These records and related records management practices and
safeguards required under the Federal Records Act are subject to
inspection by the Secretary and the Archivist of the United States.
(b) A tribe or tribal organization should preserve the records
identified in Sec. 162.111(b) for the period of time authorized by the
Archivist of the United States for similar Department of the Interior
records in accordance with 44 U.S.C. Chapter 33. If a tribe or tribal
organization does not preserve records associated with its conduct of
business with the Department of the Interior under this part, it may
prevent the tribe or tribal organization from being able to adequately
document essential transactions or furnish information necessary to
protect its legal and financial rights or those of persons directly
affected by its activities.
Sec. 162.113 May decisions under this part be appealed?
Yes. Except where otherwise provided in this part, appeals from
decisions by the BIA under this part may be taken pursuant to 25 CFR
part 2.
Subpart B_Agricultural Leases
General Provisions
Sec. 162.200 What types of leases are covered by this subpart?
The regulations in this subpart apply to agricultural leases, as
defined in this part. The regulations in this subpart may also apply to
business leases on agricultural land, where appropriate.
Sec. 162.201 Must agricultural land be managed in accordance with a
tribe's agricultural resource management plan?
(a) Agricultural land under the jurisdiction of a tribe must be
managed in accordance with the goals and objectives in any agricultural
resource management plan developed by the tribe, or by us in close
consultation with the tribe, under AIARMA.
(b) A ten-year agricultural resource management and monitoring plan
must be developed through public meetings and completed within three
years of the initiation of the planning activity.
[[Page 418]]
Such a plan must be developed through public meetings, and be based on
the public meeting records and existing survey documents, reports, and
other research from federal agencies, tribal community colleges, and
land grant universities. When completed, the plan must:
(1) Determine available agricultural resources;
(2) Identify specific tribal agricultural resource goals and
objectives;
(3) Establish management objectives for the resources;
(4) Define critical values of the Indian tribe and its members and
identify holistic management objectives; and
(5) Identify actions to be taken to reach established objectives.
(c) Where the regulations in this subpart are inconsistent with a
tribe's agricultural resource management plan, we may waive the
regulations under part 1 of this title, so long as the waiver does not
violate a federal statute or judicial decision or conflict with our
general trust responsibility under federal law.
Sec. 162.202 How will tribal laws be enforced on agricultural land?
(a) Unless prohibited by federal law, we will recognize and comply
with tribal laws regulating activities on agricultural land, including
tribal laws relating to land use, environmental protection, and historic
or cultural preservation.
(b) While the tribe is primarily responsible for enforcing tribal
laws pertaining to agricultural land, we will:
(1) Assist in the enforcement of tribal laws;
(2) Provide notice of tribal laws to persons or entities undertaking
activities on agricultural land, under Sec. 162.204(c) of this subpart;
and
(3) Require appropriate federal officials to appear in tribal forums
when requested by the tribe, so long as such an appearance would not:
(i) Be inconsistent with the restrictions on employee testimony set
forth at 43 CFR Part 2, Subpart E;
(ii) Constitute a waiver of the sovereign immunity of the United
States; or
(iii) Authorize or result in a review of our actions by a tribal
court.
(c) Where the regulations in this subpart are inconsistent with a
tribal law, but such regulations cannot be superseded or modified by the
tribal law under Sec. 162.109 of this part, we may waive the
regulations under part 1 of this chapter, so long as the waiver does not
violate a federal statute or judicial decision or conflict with our
general trust responsibility under federal law.
Sec. 162.203 When can the regulations in this subpart be superseded or
modified by tribal laws and leasing policies?
(a) The regulations in this subpart may be superseded or modified by
tribal laws, under the circumstances described in Sec. 162.109(b) of
this part.
(b) When specifically authorized by an appropriate tribal resolution
establishing a general policy for the leasing of tribal and
individually-owned agricultural land, we will:
(1) Waive the general prohibition against tenant preferences in
leases advertised for bid under Sec. 162.212 of this subpart, by
allowing prospective Indian tenants to match the highest responsible bid
(unless the tribal leasing policy specifies some other manner in which
the preference must be afforded);
(2) Waive the requirement that a tenant post a bond under Sec.
162.234 of this subpart;
(3) Modify the requirement that a tenant post a bond in a form
described in Sec. 162.235 of this subpart;
(4) Approve leases of tribal land at rates established by the tribe,
as provided in Sec. 162.222(b) of this subpart.
(c) When specifically authorized by an appropriate tribal resolution
establishing a general policy for the leasing of ``highly fractionated
undivided heirship lands'' (as defined in the tribal leasing policy), we
may waive or modify the three-month notice requirement in Sec.
162.209(b) of this subpart, so long as:
(1) The tribal law or leasing policy adopts an alternative plan for
providing notice to Indian landowners, before an agricultural lease is
granted by us on their behalf; and
(2) A waiver or modification of the three-month notice requirement
is needed to prevent waste, reduce idle land acreage, and ensure lease
income to the Indian landowners.
[[Page 419]]
(d) Tribal leasing policies of the type described in paragraphs (b)
through (c) of this section will not apply to individually-owned land
that has been made exempt from such laws or policies under Sec. 162.205
of this subpart.
Sec. 162.204 Must notice of applicable tribal laws and leasing policies
be provided?
(a) A tribe must provide us with an official copy of any tribal law
or leasing policy that supersedes or modifies these regulations under
Sec. Sec. 162.109 or 162.203 of this part. If the tribe has not already
done so, we will provide notice of such a tribal law or leasing policy
to affected Indian landowners and persons or entities undertaking
activities on agricultural land. Such notice will be provided in the
manner described in paragraphs (b) through (c) of this section.
(b) We will provide notice to Indian landowners, as to the
superseding or modifying effect of any tribal leasing policy and their
right to exempt their land from such a policy. Such notice will be
provided by:
(1) Written notice included in a notice of our intent to lease the
land, issued under Sec. 162.209(b) of this subpart; or
(2) Public notice posted at the tribal community building or the
United States Post Office, or published in the local newspaper that
serves the area in which the Indian owners' land is located, at the time
the tribal leasing policy is adopted.
(c) We will provide notice to persons or entities undertaking
activities on agricultural land, as to the general applicability of
tribal laws and the superseding or modifying effect of particular tribal
laws and leasing policies. Such notice will be provided by:
(1) Written notice included in advertisements for lease, issued
under Sec. 162.212 of this subpart; or
(2) Public notice posted at the tribal community building or the
United States Post Office, or published in a local newspaper of general
circulation, at the time the tribal law is enacted or the leasing policy
adopted.
Sec. 162.205 Can individual Indian landowners exempt their agricultural
land from certain tribal leasing policies?
(a) Individual Indian landowners may exempt their agricultural land
from the application of a tribal leasing policy of a type described in
Sec. 162.203(b) through (c) of this subpart, if the Indian owners of at
least 50% of the trust or restricted interests in the land submit a
written objection to us before a lease is granted or approved.
(b) Upon our receipt of a written objection from the Indian
landowners that satisfies the requirements of paragraph (a) of this
section, we will notify the tribe that the owners' land has been
exempted from a specific tribal leasing policy. If the exempted land is
part of a unitized lease tract, such land will be removed from the unit
and leased separately, if appropriate.
(c) The procedures described in paragraphs (a) and (b) of this
section will also apply to withdrawing an approved exemption.
How to Obtain a Lease
Sec. 162.206 Can the terms of an agricultural lease be negotiated with
the Indian landowners?
An agricultural lease may be obtained through negotiation. We will
assist prospective tenants in contacting the Indian landowners or their
representatives for the purpose of negotiating a lease, and we will
assist the landowners in those negotiations upon request.
Sec. 162.207 When can the Indian landowners grant an agricultural lease?
(a) Tribes grant leases of tribally-owned agricultural land,
including any tribally-owned undivided interest(s) in a fractionated
tract, subject to our approval. Where tribal land is subject to a land
assignment made to a tribal member or some other individual under tribal
law or custom, the individual and the tribe must both grant the lease,
subject to our approval.
(b) Adult Indian owners, or emancipated minors, may grant
agricultural leases of their land, including undivided interests in
fractionated tracts, subject to our approval.
[[Page 420]]
(c) An agricultural lease of a fractionated tract may be granted by
the owners of a majority interest in the tract, subject to our approval.
Although prior notice to non-consenting individual Indian landowners is
generally not needed prior to our approval of such a lease, a right of
first refusal must be offered to any non-consenting Indian landowner who
is using the entire lease tract at the time the lease is entered into by
the owners of a majority interest. Where the owners of a majority
interest grant such a lease on behalf of all of the Indian owners of a
fractionated tract, the non-consenting Indian landowners must receive a
fair annual rental.
(d) As part of the negotiation of a lease, Indian landowners may
advertise their land to identify potential tenants with whom to
negotiate.
Sec. 162.208 Who can represent the Indian landowners in negotiating or
granting an agricultural lease?
The following individuals or entities may represent an individual
Indian landowner:
(a) An adult with custody acting on behalf of his or her minor
children;
(b) A guardian, conservator, or other fiduciary appointed by a court
of competent jurisdiction to act on behalf of an individual Indian
landowner;
(c) An adult or legal entity who has been given a written power of
attorney that:
(1) Meets all of the formal requirements of any applicable tribal or
state law;
(2) Identifies the attorney-in-fact and the land to be leased; and
(3) Describes the scope of the power granted and any limits thereon.
Sec. 162.209 When can BIA grant an agricultural lease on behalf of an
Indian landowner?
(a) We may grant an agricultural lease on behalf of:
(1) Individuals who are found to be non compos mentis by a court of
competent jurisdiction;
(2) Orphaned minors;
(3) The undetermined heirs and devisees of deceased Indian owners;
(4) Individuals who have given us a written power of attorney to
lease their land; and
(5) Individuals whose whereabouts are unknown to us, after
reasonable attempts are made to locate such individuals; and
(6) The individual Indian landowners of fractionated Indian land,
when necessary to protect the interests of the individual Indian
landowners.
(b) We may grant an agricultural lease on behalf of all of the
individual Indian owners of a fractionated tract, where:
(1) We have provided the Indian landowners with written notice of
our intent to grant a lease on their behalf, but the Indian landowners
are unable to agree upon a lease during a three-month negotiation period
immediately following such notice, or any other notice period
established by a tribe under Sec. 162.203(c) of this subpart; and
(2) The land is not being used by an Indian landowner under Sec.
162.104(b) of this part.
Sec. 162.210 When can BIA grant a permit covering agricultural land?
(a) We may grant a permit covering agricultural land in the same
manner as we would grant an agricultural lease under Sec. 162.209 of
this part. We may also grant a permit on behalf of individual Indian
landowners, without prior notice, if it is impractical to provide notice
to the owners and no substantial injury to the land will occur.
(b) We may grant a permit covering agricultural land, but not an
agricultural lease, on government land.
(c) We will not grant a permit on tribal agricultural land, but a
tribe may grant a permit, subject to our approval, in the same manner as
it would grant a lease under Sec. 162.207(a) of this subpart.
Sec. 162.211 What type of valuation or evaluation methods will be
applied in estimating the fair annual rental of Indian land?
(a) To support the Indian landowners in their negotiations, and to
assist in our consideration of whether an agricultural lease is in the
Indian landowners' best interest, we must determine the fair annual
rental of the land prior to our grant or approval of the lease, unless
the land may be leased at
[[Page 421]]
less than a fair annual rental under Sec. 162.222(b) through (c) of
this subpart.
(b) A fair annual rental may be determined by competitive bidding,
appraisal, or any other appropriate valuation method. Where an appraisal
or other valuation is needed to determine the fair annual rental, the
appraisal or valuation must be prepared in accordance with USPAP.
Sec. 162.212 When will the BIA advertise Indian land for agricultural
leases?
(a) We will generally advertise Indian land for agricultural
leasing:
(1) At the request of the Indian landowners; or
(2) Before we grant a lease under Sec. 162.209(b) of this subpart.
(b) Advertisements will provide prospective tenants with notice of
any superseding tribal laws and leasing policies that have been made
applicable to the land under Sec. Sec. 162.109 and 162.203 of this
part, along with certain standard terms and conditions to be included in
the lease. Advertisements will prohibit tenant preferences, and bidders
at lease sales will not be afforded any preference, unless a preference
in favor of individual Indians is required by a superseding tribal law
or leasing policy.
(c) Advertisements will require sealed bids, and they may also
provide for further competitive bidding among the prospective tenants at
the conclusion of the bid opening. Competitive bidding should be
supported, at a minimum, by a market study or rent survey that is
consistent with USPAP.
Sec. 162.213 What supporting documents must be provided prior to BIA's
grant or approval of an agricultural lease?
(a) If the tenant is a corporation, partnership or other legal
entity, it must provide organizational and financial documents, as
needed to show that the lease will be enforceable against the tenant and
the tenant will be able to perform all of its lease obligations.
(b) Where a bond is required under Sec. 162.234 of this subpart,
the bond must be furnished before we grant or approve the lease.
(c) The tenant must provide environmental and archaeological
reports, surveys, and site assessments, as needed to document compliance
with NEPA and other applicable federal and tribal land use requirements.
Sec. 162.214 How and when will BIA decide whether to approve an agricultural
lease?
(a) Before we approve a lease, we must determine in writing that the
lease is in the best interest of the Indian landowners. In making that
determination, we will:
(1) Review the lease and supporting documents;
(2) Identify potential environmental impacts and ensure compliance
with all applicable environmental laws, land use laws, and ordinances
(including preparation of the appropriate review documents under NEPA);
(3) Assure ourselves that adequate consideration has been given, as
appropriate, to:
(i) The relationship between the use of the leased premises and the
use of neighboring lands;
(ii) The height, quality, and safety of any structures or other
facilities to be constructed on the leased premises;
(iii) The availability of police and fire protection, utilities, and
other essential community services;
(iv) The availability of judicial forums for all criminal and civil
matters arising on the leased premises; and
(v) The effect on the environment of the proposed land use.
(4) Require any lease modifications or mitigation measures that are
needed to satisfy any requirements of this subpart, or any other federal
or tribal land use requirements.
(b) Where an agricultural lease is in a form that has previously
been accepted or approved by us, and all of the documents needed to
support the findings required by paragraph (a) of this section have been
received, we will decide whether to approve the lease within 30 days of
the date of our receipt of the lease and supporting documents. If we
decide to approve or disapprove a lease, we will notify the parties
immediately and advise them of their right to appeal the decision under
part 2 of this chapter. Copies of agricultural leases that have been
approved will be provided to the tenant, and made available to the
Indian landowners upon request.
[[Page 422]]
Sec. 162.215 When will an agricultural lease be effective?
Unless otherwise provided in the lease, an agricultural lease will
be effective on the date on which the lease is approved by us. An
agricultural lease may be made effective on some past or future date, by
agreement, but such a lease may not be approved more than one year prior
to the date on which the lease term is to commence.
Sec. 162.216 When will a BIA decision to approve an agricultural lease
be effective?
Our decision to approve an agricultural lease will be effective
immediately, notwithstanding any appeal that may be filed under part 2
of this chapter.
Sec. 162.217 Must an agricultural lease or permit be recorded?
(a) An agricultural lease or permit must be recorded in our Land
Titles and Records Office with jurisdiction over the land. We will
record the lease or permit immediately following our approval under this
subpart.
(b) Agricultural leases of tribal land that do not require our
approval, under Sec. 162.102 of this part, must be recorded by the
tribe in our Land Titles and Records Office with jurisdiction over the
land.
Lease Requirements
Sec. 162.218 Is there a standard agricultural lease form?
Based on the need for flexibility in advertising, negotiating and
drafting of appropriate lease terms and conditions, there is no standard
agricultural lease form that must be used. We will assist the Indian
landowners in drafting lease provisions that conform to the requirements
of this part.
Sec. 162.219 Are there any provisions that must be included in an agricultural
lease?
In addition to the other requirements of this part, all agricultural
leases must provide that:
(a) The obligations of the tenant and its sureties to the Indian
landowners will also be enforceable by the United States, so long as the
land remains in trust or restricted status;
(b) 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;
(c) There must not be any unlawful conduct, creation of a nuisance,
illegal activity, or negligent use or waste of the leased premises; and
(d) The tenant must comply with all applicable laws, ordinances,
rules, regulations, and other legal requirements, including tribal laws
and leasing policies.
Sec. 162.220 Are there any formal requirements that must be satisfied
in the execution of an agricultural lease?
(a) An agricultural lease must identify the Indian landowners and
their respective interests in the leased premises, and the lease must be
granted by or on behalf of each of the Indian landowners. One who
executes a lease in a representative capacity under Sec. 162.208 of
this subpart must identify the owner being represented and the authority
under which such action is being taken.
(b) An agricultural lease must be executed by individuals having the
necessary capacity and authority to bind the tenant under applicable
law.
(c) An agricultural lease must include a citation of the provisions
in this subpart that authorize our approval, along with a citation of
the formal documents by which such authority has been delegated to the
official taking such action.
Sec. 162.221 How should the land be described in an agricultural lease?
An agricultural lease should describe the leased premises by
reference to a public or private survey, if possible. If the land cannot
be so described, the lease must include a legal description or other
description that is sufficient to identify the leased premises, subject
[[Page 423]]
to our approval. Where there are undivided interests owned in fee
status, the aggregate portion of trust and restricted interests should
be identified in the description of the leased premises.
Sec. 162.222 How much rent must be paid under an agricultural lease?
(a) An agricultural lease must provide for the payment of a fair
annual rental at the beginning of the lease term, unless a lesser amount
is permitted under paragraphs (b) through (d) of this section. The
tenant's rent payments may be:
(1) In fixed amounts; or
(2) Based on a share of the agricultural products generated by the
lease, or a percentage of the income to be derived from the sale of such
agricultural products.
(b) We will approve an agricultural lease of tribal land at a
nominal rent, or at less than a fair annual rental, if such a rent is
negotiated or established by the tribe.
(c) We will approve an agricultural lease of individually-owned land
at a nominal rent or at less than a fair annual rental, if:
(1) The tenant is a member of the Indian landowner's immediate
family, or a co-owner in the lease tract; or
(2) The tenant is a cooperative or other legal entity in which the
Indian landowners directly participate in the revenues or profits
generated by the lease.
(d) We will grant or approve a lease at less than a fair annual
rental, as previously determined by an appraisal or some other
appropriate valuation method, if the land is subsequently advertised and
the tenant is the highest responsible bidder.
Sec. 162.223 Must the rent be adjusted under an agricultural lease?
(a) Except as provided in paragraph (c) of this section, an
agricultural lease must provide for one or more rental adjustments if
the lease term runs more than five years, unless the lease provides for
the payment of:
(1) Less than a fair annual rental, as permitted under Sec.
162.222(b) through (c) of this part; or
(2) A rental based primarily on a share of the agricultural products
generated by the lease, or a percentage of the income derived from the
sale of agricultural products.
(b) If rental adjustments are required, the lease must specify:
(1) How adjustments are made;
(2) Who makes the adjustments;
(3) When the adjustments are effective; and
(4) How disputes about the adjustments are resolved.
(c) An agricultural lease of tribal land may run for a term of more
than five years, without providing for a rental adjustment, if the tribe
establishes such a policy under Sec. 162.203(b)(4) and negotiates such
a lease.
Sec. 162.224 When are rent payments due under an agricultural lease?
An agricultural lease must specify the dates on which all rent
payments are due. Unless otherwise provided in the lease, rent payments
may not be made or accepted more than one year in advance of the due
date. Rent payments are due at the time specified in the lease,
regardless of whether the tenant receives an advance billing or other
notice that a payment is due.
Sec. 162.225 Will untimely rent payments made under an agricultural
lease be subject to interest charges or late payment penalties?
An agricultural lease must specify the rate at which interest will
accrue on any rent payment not made by the due date or any other date
specified in the lease. A lease may also identify additional late
payment penalties that will apply if a rent payment is not made by a
specified date. Unless otherwise provided in the lease, such interest
charges and late payment penalties will apply in the absence of any
specific notice to the tenant from us or the Indian landowners, and the
failure to pay such amounts will be treated as a lease violation under
Sec. 162.251 of this subpart.
Sec. 162.226 To whom can rent payments be made under an agricultural
lease?
(a) An agricultural lease must specify whether rent payments will be
made directly to the Indian landowners or to
[[Page 424]]
us on behalf of the Indian landowners. If the lease provides for payment
to be made directly to the Indian landowners, the lease must also
require that the tenant retain specific documentation evidencing proof
of payment, such as canceled checks, cash receipt vouchers, or copies of
money orders or cashier's checks, consistent with the provisions of
Sec. Sec. 162.112 and 162.113 of this part.
(b) Rent payments made directly to the Indian landowners must be
made to the parties specified in the lease, unless the tenant receives
notice of a change of ownership. Unless otherwise provided in the lease,
rent payments may not be made payable directly to anyone other than the
Indian landowners.
(c) A lease that provides for rent payments to be made directly to
the Indian landowners must also provide for such payments to be
suspended and the rent thereafter paid to us, rather than directly to
the Indian landowners, if:
(1) An Indian landowner dies;
(2) An Indian landowner requests that payment be made to us;
(3) An Indian landowner is found by us to be in need of assistance
in managing his/her financial affairs; or
(4) We determine, in our discretion and after consultation with the
Indian landowner(s), that direct payment should be discontinued.
Sec. 162.227 What form of rent payment can be accepted under an
agricultural lease?
(a) When rent payments are made directly to the Indian landowners,
the form of payment must be acceptable to the Indian landowners.
(b) Payments made to us may be delivered in person or by mail. We
will not accept cash, foreign currency, or third-party checks. We will
accept:
(1) Personal or business checks drawn on the account of the tenant;
(2) Money orders;
(3) Cashier's checks;
(4) Certified checks; or
(5) Electronic funds transfer payments.
Sec. 162.228 What other types of payments are required under an agricultural
lease?
(a) The tenant may be required to pay additional fees, taxes, and/or
assessments associated with the use of the land, as determined by the
tribe having jurisdiction over the land. The tenant must pay these
amounts to the appropriate tribal official.
(b) Except as otherwise provided in part 171 of this chapter, if the
leased premises are within an Indian irrigation project or drainage
district, the tenant must pay all operation and maintenance charges that
accrue during the lease term. The tenant must pay these amounts to the
appropriate official in charge of the irrigation project or drainage
district. Failure to make such payments will constitute a violation of
the lease under Sec. 162.251.
Sec. 162.229 How long can the term of an agricultural lease run?
(a) An agricultural lease must provide for a definite lease term,
specifying the commencement date. The commencement date of the lease may
not be more than one year after the date on which the lease is approved.
(b) The lease term must be reasonable, given the purpose of the
lease and the level of investment required. Unless otherwise provided by
statute, the maximum term may not exceed ten years, unless a substantial
investment in the improvement of the land is required. If such a
substantial investment is required, the maximum term may be up to 25
years.
(c) Where all of the trust or restricted interests in a tract are
owned by a deceased Indian whose heirs and devisees have not yet been
determined, the maximum term may not exceed two years.
(d) An agricultural lease may not provide the tenant with an option
to renew, and such a lease may not be renewed or extended by holdover.
Sec. 162.230 Can an agricultural lease be amended, assigned, sublet,
or mortgaged?
(a) An agricultural lease may authorize amendments, assignments,
subleases, or mortgages of the leasehold
[[Page 425]]
interest, but only with the written consent of the parties to the lease
in the same manner the original lease was approved, and our approval. An
attempt by the tenant to mortgage the leasehold interest or authorize
possession by another party, without the necessary consent and approval,
will be treated as a lease violation under Sec. 162.251 of this
subpart.
(b) An agricultural lease may authorize us, one or more of the
Indian landowners, or a designated representative of the Indian
landowners, to consent to an amendment, assignment, sublease, mortgage,
or other type of agreement, on the landowners' behalf. A designated
landowner or representative may not negotiate or consent to an
amendment, assignment, or sublease that would:
(1) Reduce the rentals payable to the other Indian landowners; or
(2) Terminate or modify the term of the lease.
(c) Where the Indian landowners have not designated a representative
for the purpose of consenting to an amendment, assignment, sublease,
mortgage, or other type of agreement, such consent may be granted by or
on behalf of the landowners in the same manner as a new lease, under
Sec. Sec. 162.207 through 162.209 of this subpart.
Sec. 162.231 How can the land be used under an agricultural lease?
(a) An agricultural lease must describe the authorized uses of the
leased premises. Any use of the leased premises for an unauthorized
purpose, or a failure by the tenant to maintain continuous operations
throughout the lease term, will be treated as a lease violation under
Sec. 162.251 of this subpart.
(b) An agricultural lease must require that farming and grazing
operations be conducted in accordance with recognized principles of
sustained yield management, integrated resource management planning,
sound conservation practices, and other community goals as expressed in
applicable tribal laws, leasing policies, or agricultural resource
management plans. Appropriate stipulations or conservation plans must be
developed and incorporated in all agricultural leases.
Sec. 162.232 Can improvements be made under an agricultural lease?
An agricultural lease must generally describe the type and location
of any improvements to be constructed by the lessee. Unless otherwise
provided in the lease, any specific plans for the construction of those
improvements will not require the consent of the Indian owners or our
approval.
Sec. 162.233 Who will own the improvements made under an agricultural
lease?
(a) An agricultural lease may specify who will own any improvements
constructed by the tenant, during the lease term. The lease must
indicate whether any improvements constructed by the tenant will remain
on the leased premises upon the expiration or termination of the lease,
providing for the improvements to either:
(1) Remain on the leased premises, in a condition satisfactory to
the Indian landowners and us; or
(2) Be removed within a time period specified in the lease, at the
tenant's expense, with the leased premises to be restored as close as
possible to their condition prior to construction of such improvements.
(b) If the lease allows the tenant to remove the improvements, it
must also provide the Indian landowners with an option to waive the
removal requirement and take possession of the improvements if they are
not removed within the specified time period. If the Indian landowners
choose not to exercise this option, we will take appropriate enforcement
action to ensure removal at the tenant's expense.
Sec. 162.234 Must a tenant provide a bond under an agricultural lease?
Unless otherwise provided by a tribe under Sec. 162.203 of this
subpart, or waived by us at the request of the owners of a majority
interest in an agricultural lease tract, the tenant must provide a bond
to secure:
(a) The payment of one year's rental;
(b) The construction of any required improvements;
(c) The performance of any additional lease obligations, including
the payment of operation and maintenance
[[Page 426]]
charges under Sec. 162.228(b) of this subpart; and
(d) The restoration and reclamation of the leased premises, to their
condition at the commencement of the lease term or some other specified
condition.
Sec. 162.235 What form of bond can be accepted under an agricultural
lease?
(a) Except as provided in paragraph (b) of this section, a bond must
be deposited with us and made payable only to us, and such a bond may
not be modified or withdrawn without our approval. We will only accept a
bond in one of the following forms:
(1) Cash;
(2) Negotiable Treasury securities that:
(i) Have a market value at least equal to the bond amount; and
(ii) Are accompanied by a statement granting full authority to us to
sell such securities in case of a violation of the terms of the lease.
(3) Certificates of deposit that indicate on their face that our
approval is required prior to redemption by any party;
(4) Irrevocable letters of credit issued by federally-insured
financial institutions authorized to do business in the United States. A
letter of credit must:
(i) Contain a clause that grants us the authority to demand
immediate payment if the tenant violates the lease or fails to replace
the letter of credit at least 30 days prior to its expiration date;
(ii) Be payable to us;
(iii) Be irrevocable during its term and have an initial expiration
date of not less than one year following the date of issuance; and
(iv) Be automatically renewable for a period of not less than one
year, unless the issuing financial institution provides us with written
notice that it will not be renewed, at least 90 calendar days before the
letter of credit's expiration date.
(5) A surety bond issued by a company approved by the U.S.
Department of the Treasury; or
(6) Any other form of highly liquid, non-volatile security that is
easily convertible to cash and for which our approval is required prior
to redemption by any party.
(b) A tribe may accept and hold any form of bond described in
paragraph (a) of this section, to secure performance under an
agricultural lease of tribal land.
Sec. 162.236 How will a cash bond be administered?
(a) If a cash bond is submitted, we will retain the funds in an
account established in the name of the tenant.
(b) We will not pay interest on a cash performance bond.
(c) If the bond is not forfeited under Sec. 162.252(a) of this
subpart, we will refund the bond to the tenant upon the expiration or
termination of the lease.
Sec. 162.237 What insurance is required under an agricultural lease?
When necessary to protect the interests of the Indian landowners, an
agricultural lease must require that a tenant provide insurance. Such
insurance may include property, crop, liability and/or casualty
insurance. If insurance is required, it must identify both the Indian
landowners and the United States as insured parties, and be sufficient
to protect all insurable improvements on the leased premises.
Sec. 162.238 What indemnities are required under an agricultural lease?
(a) An agricultural lease must require that the tenant indemnify and
hold the United States and the Indian landowners harmless from any loss,
liability, or damages resulting from the tenant's use or occupation of
the leased premises, unless:
(1) The tenant would be prohibited by law from making such an
agreement; or (2) The interests of the Indian landowners are adequately
protected by insurance.
(b) Unless the tenant would be prohibited by law from making such an
agreement, an agricultural lease must specifically require that the
tenant indemnify the United States and the Indian landowners against all
liabilities or costs relating to the use, handling, treatment, removal,
storage, transportation, or disposal of hazardous materials, or the
release or discharge of any hazardous materials from the leased premises
that occurs during the lease term, regardless of fault.
[[Page 427]]
Sec. 162.239 How will payment rights and obligations relating to
agricultural land be allocated between the Indian landowners and
the tenant?
(a) Unless otherwise provided in an agricultural lease, the Indian
landowners will be entitled to receive any settlement funds or other
payments arising from certain actions that diminish the value of the
land or the improvements thereon. Such payments may include (but are not
limited to) :
(1) Insurance proceeds;
(2) Trespass damages; and
(3) Condemnation awards.
(b) An agricultural lease may provide for the tenant to assume
certain cost-share or other payment obligations that have attached to
the land through past farming and grazing operations, so long as those
obligations are specified in the lease and considered in any
determination of fair annual rental made under this subpart.
Sec. 162.240 Can an agricultural lease provide for negotiated remedies
in the event of a violation?
(a) A lease of tribal agricultural land may provide the tribe with
certain negotiated remedies in the event of a lease violation, including
the power to terminate the lease. An agricultural lease of individually-
owned land may provide the individual Indian landowners with similar
remedies, so long as the lease also specifies the manner in which those
remedies may be exercised by or on behalf of the landowners.
(b) The negotiated remedies described in paragraph (a) of this
section will apply in addition to the cancellation remedy available to
us under Sec. 162.252(c) of this subpart. If the lease specifically
authorizes us to exercise any negotiated remedies on behalf of the
Indian landowners, the exercise of such remedies may substitute for
cancellation.
(c) An agricultural lease may provide for lease disputes to be
resolved in tribal court or any other court of competent jurisdiction,
or through arbitration or some other alternative dispute resolution
method. We may not be bound by decisions made in such forums, but we
will defer to ongoing proceedings, as appropriate, in deciding whether
to exercise any of the remedies available to us under Sec. 162.252 of
this subpart.
Lease Administration
Sec. 162.241 Will administrative fees be charged for actions relating
to agricultural leases?
(a) We will charge an administrative fee each time we approve an
agricultural lease, amendment, assignment, sublease, mortgage, or
related document. These fees will be paid by the tenant, assignee, or
subtenant, to cover our costs in preparing or processing the documents
and administering the lease.
(b) Except as provided in paragraph (c) of this section, we will
charge administrative fees based on the rent payable under the lease.
The fee will be 3% of the annual rent payable, including any percentage-
based rent that can be reasonably estimated.
(c) The minimum administrative fee is $10.00 and the maximum
administrative fee is $500.00, and any administrative fees that have
been paid will be non-refundable. However, we may waive all or part of
these administrative fees, in our discretion.
(d) If all or part of the expenses of the work are paid from tribal
funds, the tribe may establish an additional or alternate schedule of
fees.
Sec. 162.242 How will BIA decide whether to approve an amendment
to an agricultural lease?
We will approve an agricultural lease amendment if:
(a) The required consents have been obtained from the parties to the
lease under Sec. 162.230 and any sureties; and
(b) We find the amendment to be in the best interest of the Indian
landowners, under the standards set forth in Sec. 162.213 of this
subpart.
Sec. 162.243 How will BIA decide whether to approve an assignment
or sublease under an agricultural lease?
(a) We will approve an assignment or sublease under an agricultural
lease if:
(1) The required consents have been obtained from the parties to the
lease under Sec. 162.230 and the tenant's sureties;
(2) The tenant is not in violation of the lease;
[[Page 428]]
(3) The assignee agrees to be bound by, or the subtenant agrees to
be subordinated to, the terms of the lease; and
(4) We find no compelling reason to withhold our approval in order
to protect the best interests of the Indian owners.
(b) In making the finding required by paragraph (a)(4) of this
section, we will consider whether:
(1) The Indian landowners should receive any income derived by the
tenant from the assignment or sublease, under the terms of the lease;
(2) The proposed use by the assignee or subtenant will require an
amendment of the lease;
(3) The value of any part of the leased premises not covered by the
assignment or sublease would be adversely affected; and
(4) The assignee or subtenant has bonded its performance and
provided supporting documents that demonstrate that the lease or
sublease will be enforceable against the assignee or subtenant, and that
the assignee or subtenant will be able to perform its obligations under
the lease or sublease.
Sec. 162.244 How will BIA decide whether to approve a leasehold mortgage
under an agricultural lease?
(a) We will approve a leasehold mortgage under an agricultural lease
if:
(1) The required consents have been obtained from the parties to the
lease under Sec. 162.230 and the tenant's sureties;
(2) The mortgage covers only the tenant's interest in the leased
premises, and no unrelated collateral;
(3) The loan being secured by the mortgage will be used only in
connection with the development or use of the leased premises, and the
mortgage does not secure any unrelated debts owed by the tenant to the
mortgagee; and
(4) We find no compelling reason to withhold our approval in order
to protect the best interests of the Indian landowners.
(b) In making the finding required by paragraph (a)(4) of this
section, we will consider whether:
(1) The tenant's ability to comply with the lease would be adversely
affected by any new loan obligations;
(2) Any lease provisions would be modified by the mortgage;
(3) The remedies available to us or to the Indian landowners would
be limited (beyond any additional notice and cure rights to be afforded
to the mortgagee), in the event of a lease violation; and
(4) Any rights of the Indian landowners would be subordinated or
adversely affected in the event of a loan default by the tenant.
Sec. 162.245 When will a BIA decision to approve an amendment,
assignment, sublease, or mortgage under an agricultural lease be
effective?
Our decision to approve an amendment, assignment, sublease, or
mortgage under an agricultural lease will be effective immediately,
notwithstanding any appeal that may be filed under part 2 of this
chapter. Copies of approved documents will be provided to the party
requesting approval, and made available to the Indian landowners upon
request.
Sec. 162.246 Must an amendment, assignment, sublease, or mortgage
approved under an agricultural lease be recorded?
An amendment, assignment, sublease, or mortgage approved under an
agricultural lease must be recorded in our Land Titles and Records
Office that has jurisdiction over the leased premises. We will record
the document immediately following our approval under this subpart.
Lease Enforcement
Sec. 162.247 Will BIA notify a tenant when a rent payment is due under
an agricultural lease?
We may issue bills or invoices to a tenant in advance of the dates
on which rent payments are due under an agricultural lease, but the
tenant's obligation to make such payments in a timely manner will not be
excused if such bills or invoices are not delivered or received.
Sec. 162.248 What will BIA do if rent payments are not made in the
time and manner required by an agricultural lease?
(a) A tenant's failure to pay rent in the time and manner required
by an
[[Page 429]]
agricultural lease will be a violation of the lease, and a notice of
violation will be issued under Sec. 162.251 of this subpart. If the
lease requires that rent payments be made to us, we will send the tenant
and its sureties a notice of violation within five business days of the
date on which the rent payment was due. If the lease provides for
payment directly to the Indian landowners, we will send the tenant and
its sureties a notice of violation within five business days of the date
on which we receive actual notice of non-payment from the landowners.
(b) If a tenant fails to provide adequate proof of payment or cure
the violation within the requisite time period described in Sec.
162.251(b) of this subpart, and the amount due is not in dispute, we may
immediately take action to recover the amount of the unpaid rent and any
associated interest charges or late payment penalties. We may also
cancel the lease under Sec. 162.252 of this subpart, or invoke any
other remedies available under the lease or applicable law, including
collection on any available bond or referral of the debt to the
Department of the Treasury for collection. An action to recover any
unpaid amounts will not be conditioned on the prior cancellation of the
lease or any further notice to the tenant, nor will such an action be
precluded by a prior cancellation.
(c) Partial payments may be accepted by the Indian landowners or us,
but acceptance will not operate as a waiver with respect to any amounts
remaining unpaid or any other existing lease violations. Unless
otherwise provided in the lease, overpayments may be credited as an
advance against future rent payments, or refunded.
(d) If a personal or business check is dishonored, and a rent
payment is therefore not made by the due date, the failure to make the
payment in a timely manner will be a violation of the lease, and a
notice of violation will be issued under Sec. 162.251 of this subpart.
Any payment made to cure such a violation, and any future payments by
the same tenant, must be made by one of the alternative payment methods
listed in Sec. 162.227(b) of this subpart.
Sec. 162.249 Will any special fees be assessed on delinquent rent
payments due under an agricultural lease?
The following special fees will be assessed if rent is not paid in
the time and manner required, in addition to any interest or late
payment penalties that must be paid to the Indian landowners under an
agricultural lease. The following special fees will be assessed to cover
administrative costs incurred by the United States in the collection of
the debt:
------------------------------------------------------------------------
The tenant will pay * * * For * * *
------------------------------------------------------------------------
(a) $50.00............................. Administrative fee for
dishonored checks.
(b) $15.00............................. Administrative fee for BIA
processing of each notice or
demand letter.
(c) 18% of balance due................. Administrative fee charged by
Treasury following referral
for collection of delinquent
debt.
------------------------------------------------------------------------
Sec. 162.250 How will BIA determine whether the activities of a tenant
under an agricultural lease are in compliance with the terms of the lease?
(a) Unless an agricultural lease provides otherwise, we may enter
the leased premises at any reasonable time, without prior notice, to
protect the interests of the Indian landowners and ensure that the
tenant is in compliance with the operating requirements of the lease.
(b) If an Indian landowner notifies us that a specific lease
violation has occurred, we will initiate an appropriate investigation
within five business days of that notification.
Sec. 162.251 What will BIA do in the event of a violation under an
agricultural lease?
(a) If we determine that an agricultural lease has been violated, we
will send the tenant and its sureties a notice of violation within five
business days of that determination. The notice of violation must be
provided by certified mail, return receipt requested.
(b) Within ten business days of the receipt of a notice of
violation, the tenant must:
(1) Cure the violation and notify us in writing that the violation
has been cured;
[[Page 430]]
(2) Dispute our determination that a violation has occurred and/or
explain why we should not cancel the lease; or
(3) Request additional time to cure the violation.
Sec. 162.252 What will BIA do if a violation of an agricultural lease
is not cured within the requisite time period?
(a) If the tenant does not cure a violation of an agricultural lease
within the requisite time period, we will consult with the Indian
landowners, as appropriate, and determine whether:
(1) The lease should be canceled by us under paragraph (c) of this
section and Sec. Sec. 162.253 through 162.254 of this subpart;
(2) We should invoke any other remedies available to us under the
lease, including collecting on any available bond;
(3) The Indian landowners wish to invoke any remedies available to
them under the lease; or
(4) The tenant should be granted additional time in which to cure
the violation.
(b) If we decide to grant a tenant additional time in which to cure
a violation, the tenant must proceed diligently to complete the
necessary corrective actions within a reasonable or specified time
period from the date on which the extension is granted.
(c) If we decide to cancel the lease, we will send the tenant and
its sureties a cancellation letter within five business days of that
decision. The cancellation letter must be sent to the tenant by
certified mail, return receipt requested. We will also provide actual or
constructive notice of a cancellation decision to the Indian landowners,
as appropriate. The cancellation letter will:
(1) Explain the grounds for cancellation;
(2) Notify the tenant of the amount of any unpaid rent, interest
charges, or late payment penalties due under the lease;
(3) Notify the tenant of its right to appeal under part 2 of this
chapter, as modified by Sec. 162.253 of this subpart, including the
amount of any appeal bond that must be posted with an appeal of the
cancellation decision; and
(4) Order the tenant to vacate the property within 30 days of the
date of receipt of the cancellation letter, if an appeal is not filed by
that time.
Sec. 162.253 Will BIA's regulations concerning appeal bonds apply to
cancellation decisions involving agricultural leases?
(a) The appeal bond provisions in Sec. 2.5 of part 2 of this
chapter will not apply to appeals from lease cancellation decisions made
under Sec. 162.252 of this subpart. Instead, when we decide to cancel
an agricultural lease, we may require that the tenant post an appeal
bond with an appeal of the cancellation decision. The requirement to
post an appeal bond will apply in addition to all of the other
requirements in part 2 of this chapter.
(b) An appeal bond should be set in an amount necessary to protect
the Indian landowners against financial losses that will likely result
from the delay caused by an appeal. Appeal bond requirements will not be
separately appealable, but may be contested during the appeal of the
lease cancellation decision.
Sec. 162.254 When will a cancellation of an agricultural lease be effective?
A cancellation decision involving an agricultural lease will not be
effective until 30 days after the tenant receives a cancellation letter
from us. The cancellation decision will remain ineffective if the tenant
files an appeal under Sec. 162.253 of this subpart and part 2 of this
chapter, unless the decision is made immediately effective under part 2.
While a cancellation decision is ineffective, the tenant must continue
to pay rent and comply with the other terms of the lease. If an appeal
is not filed in accordance with Sec. 162.253 of this subpart and part 2
of this chapter, the cancellation decision will be effective on the 31st
day after the tenant receives the cancellation letter from us.
Sec. 162.255 Can BIA take emergency action if the leased premises are
threatened with immediate and significant harm?
If a tenant or any other party causes or threatens to cause
immediate and significant harm to the leased premises during the term of
an agricultural
[[Page 431]]
lease, we will take appropriate emergency action. Emergency action may
include trespass proceedings under part 166, subpart I, of this chapter,
or judicial action seeking immediate cessation of the activity resulting
in or threatening the harm. Reasonable efforts will be made to notify
the Indian landowners, either before or after the emergency action is
taken.
Sec. 162.256 What will BIA do if a tenant holds over after the expiration
or cancellation of an agricultural lease?
If a tenant remains in possession after the expiration or
cancellation of an agricultural lease, we will treat the unauthorized
use as a trespass. Unless we have reason to believe that the tenant is
engaged in negotiations with the Indian landowners to obtain a new
lease, we will take action to recover possession on behalf of the Indian
landowners, and pursue any additional remedies available under
applicable law, including the assessment of civil penalties and costs
under part 166, subpart I, of this chapter.
Subpart C--Residential Leases [Reserved]
Subpart D--Business Leases [Reserved]
Subpart E_Special Requirements for Certain Reservations
Sec. 162.500 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
[[Page 432]]
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.
Sec. 162.501 Fort Belknap Reservation.
Not to exceed 20,000 acres of allotted and tribal lands (non-
irrigable 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 ten years.
Sec. 162.502 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 county 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).
Sec. 162.503 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, Arizona, 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 part
[[Page 433]]
162 apply. The purpose of this section 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 ten 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 ten 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 in part 162
of this title shall apply to leases made under the 1966 Act except where
such regulations are inconsistent with this section.
(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.
Subpart F_Non-Agricultural Leases
Sec. 162.600 What types of leases are covered by this subpart?
The regulations in this subpart apply to any leases other than
agricultural leases, as defined in this part. To the extent that any of
the regulations in this subpart conflict with the provisions of the
Indian Land Consolidation Act Amendments of 2000, Pub. Law. 106-462, the
provisions of that Act will govern.
Sec. 162.601 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.
[[Page 434]]
Sec. 162.602 Grants of leases by owners or their representatives.
The following may grant leases:
(a) Adults, other than those non compos mentis,
(b) 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,
(c) 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,
(d) Tribes or tribal corporations acting through their appropriate
officials.
Sec. 162.603 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.
Sec. 162.604 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.
(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.
[[Page 435]]
(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.
Sec. 162.605 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 Sec. 162.602 of this subpart.
(b) Where the owners of a majority interest, or their
representatives, who may grant leases under Sec. 162.602 of this
subpart, 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
Sec. 162.601(a)(1), (2), (3), and (5) of this subpart.
(c) Where the Secretary may grant leases under Sec. 162.601 of this
subpart he may negotiate leases when in his judgment the fair annual
rental can thus be obtained.
Sec. 162.606 Advertisement.
Except as otherwise provided in this part, prior to granting a lease
or permit as authorized under Sec. 162.601 of this subpart the
Secretary shall advertise the land for lease. Advertisements will call
for sealed bids and will not offer preference rights.
Sec. 162.607 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 Sec. 162.604(b)(1) and
(2) of this subpart, 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
[[Page 436]]
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.; which leases may be made for terms
of not to exceed 99 years.
(b) Leases granted by the Secretary pursuant to Sec. 162.601(a)(3)
of this subpart shall be for a term of not to exceed two years except as
otherwise provided in Sec. 162.605(b) of this subpart.
Sec. 162.608 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.
Sec. 162.609 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.
Sec. 162.610 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.
Sec. 162.611 Payment of fees and drainage and irrigation charges.
(a) 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
[[Page 437]]
shall be made to the official designated in the lease to receive such
payments.
(b) We will charge an administrative fee each time we approve an
agricultural lease, amendment, assignment, sublease, mortgage, or
related document. These fees will be paid by the tenant, assignee, or
subtenant, to cover our costs in preparing or processing the documents
and administering the lease.
(c) Except as provided in paragraph (d) of this section, we will
charge administrative fees based on the rent payable under the lease.
The fee will be 3% of the annual rent payable, including any percentage
or cropshare rent that can be reasonably estimated.
(d) The minimum administrative fee is $10.00 and the maximum
administrative fee is $500.00, and any administrative fees that have
been paid will be non-refundable. However, we may waive all or part of
these administrative fees, in our discretion.
(e) If all or part of the expenses of the work are paid from tribal
funds, the tribe may establish an additional or alternate schedule of
fees.
Sec. 162.612 Can a lease provide for negotiated remedies in the event
of a violation?
(a) A lease of tribal land may provide the tribe with certain
negotiated remedies in the event of a lease violation, including the
power to terminate the lease. A lease of individually-owned land may
provide the individual Indian landowners with similar remedies, so long
as the lease also specifies the manner in which those remedies may be
exercised by or on behalf of the landowners.
(b) The negotiated remedies described in paragraph (a) of this
section will apply in addition to the cancellation remedy available to
us under Sec. 162.619(c) of this subpart. If the lease specifically
authorizes us to exercise any negotiated remedies on behalf of the
Indian landowners, the exercise of such remedies may substitute for
cancellation.
(c) A lease may provide for lease disputes to be resolved in tribal
court or any other court of competent jurisdiction, or through
arbitration or some other alternative dispute resolution method. We may
not be bound by decisions made in such forums, but we will defer to
ongoing proceedings, as appropriate, in deciding whether to exercise any
of the remedies available to us under Sec. 162.619 of this subpart.
Sec. 162.613 Will BIA notify a tenant when a rent payment is due under
a lease?
We may issue bills or invoices to a tenant in advance of the dates
on which rent payments are due under a lease, but the tenant's
obligation to make such payments in a timely manner will not be excused
if such bills or invoices are not delivered or received.
Sec. 162.614 Will untimely rent payments made under a lease be subject
to interest charges or late payment penalties?
A lease must specify the rate at which interest will accrue on any
rent payment not made by the due date or any other date specified in the
lease. A lease may also identify additional late payment penalties that
will apply if a rent payment is not made by a specified date. Unless
otherwise provided in the lease, such interest charges and late payment
penalties will apply in the absence of any specific notice to the tenant
from us or the Indian landowners, and the failure to pay such amounts
will be treated as a lease violation under Sec. 162.618 of this
subpart.
Sec. 162.615 What will BIA do if rent payments are not made in the
time and manner required by a lease?
(a) A tenant's failure to pay rent in the time and manner required
by a lease will be a violation of the lease, and a notice of violation
will be issued under Sec. 162.618 of this subpart. If the lease
requires that rent payments be made to us, we will send the tenant and
its sureties a notice of violation within five business days of the date
on which the rent payment was due. If the lease provides for payment
directly to the Indian landowners, we will send the tenant and its
sureties a notice of violation within five business days of the date on
which we receive actual notice of non-payment from the landowners.
(b) If a tenant fails to provide adequate proof of payment or cure
the violation within the requisite time period
[[Page 438]]
described in Sec. 162.618(b) of this subpart, and the amount due is not
in dispute, we may immediately take action to recover the amount of the
unpaid rent and any associated interest charges or late payment
penalties. We may also cancel the lease under Sec. 162.619 of this
subpart, or invoke any other remedies available under the lease or
applicable law, including collection on any available bond or referral
of the debt to the Department of the Treasury for collection. An action
to recover any unpaid amounts will not be conditioned on the prior
cancellation of the lease or any further notice to the tenant, nor will
such an action be precluded by a prior cancellation.
(c) Partial payments and underpayments may be accepted by the Indian
landowners or us, but acceptance will not operate as a waiver with
respect to any amounts remaining unpaid or any other existing lease
violations. Unless otherwise provided in the lease, overpayments may be
credited as an advance against future rent payments, or refunded.
(d) If a personal or business check is dishonored, and a rent
payment is therefore not made by the due date, the failure to make the
payment in a timely manner will be a violation of the lease, and a
notice of violation will be issued under Sec. 162.618 of this subpart.
Any payment made to cure such a violation, and any future payments by
the same tenant, must be made by an alternative payment method approved
by us.
Sec. 162.616 Will any special fees be assessed on delinquent rent payments
due under a lease?
The following special fees will be assessed if rent is not paid in
the time and manner required, in addition to any interest or late
payment penalties that must be paid to the Indian landowners under a
lease. The following special fees will be assessed to cover
administrative costs incurred by the United States in the collection of
the debt:
------------------------------------------------------------------------
The tenant will pay * * * For * * *
------------------------------------------------------------------------
(a) $50.00............................. Administrative fee for
dishonored checks.
(b) $15.00............................. Administrative fee for BIA
processing of each notice or
demand letter.
(c) 18% of balance due................. Administrative fee charged by
Treasury following referral
for collection of delinquent
debt.
------------------------------------------------------------------------
Sec. 162.617 How will BIA determine whether the activities of a tenant
under a lease are in compliance with the terms of the lease?
(a) Unless a lease provides otherwise, we may enter the leased
premises at any reasonable time, without prior notice, to protect the
interests of the Indian landowners and ensure that the tenant is in
compliance with the operating requirements of the lease.
(b) If an Indian landowner notifies us that a specific lease
violation has occurred, we will initiate an appropriate investigation
within five business days of that notification.
Sec. 162.618 What will BIA do in the event of a violation under a lease?
(a) If we determine that a lease has been violated, we will send the
tenant and its sureties a notice of violation within five business days
of that determination. The notice of violation must be provided by
certified mail, return receipt requested.
(b) Within ten business days of the receipt of a notice of
violation, the tenant must:
(1) Cure the violation and notify us in writing that the violation
has been cured;
(2) Dispute our determination that a violation has occurred and/or
explain why we should not cancel the lease; or
(3) Request additional time to cure the violation.
Sec. 162.619 What will BIA do if a violation of a lease is not cured
within the requisite time period?
(a) If the tenant does not cure a violation of a lease within the
requisite time period, we will consult with the Indian landowners, as
appropriate, and determine whether:
(1) The lease should be canceled by us under paragraph (c) of this
section and Sec. Sec. 162.620 through 162.621 of this subpart;
(2) We should invoke any other remedies available to us under the
lease,
[[Page 439]]
including collecting on any available bond;
(3) The Indian landowners wish to invoke any remedies available to
them under the lease; or
(4) The tenant should be granted additional time in which to cure
the violation.
(b) If we decide to grant a tenant additional time in which to cure
a violation, the tenant must proceed diligently to complete the
necessary corrective actions within a reasonable or specified time
period from the date on which the extension is granted.
(c) If we decide to cancel the lease, we will send the tenant and
its sureties a cancellation letter within five business days of that
decision. The cancellation letter must be sent to the tenant by
certified mail, return receipt requested. We will also provide actual or
constructive notice of a cancellation decision to the Indian landowners,
as appropriate. The cancellation letter will:
(1) Explain the grounds for cancellation;
(2) Notify the tenant of the amount of any unpaid rent, interest
charges, or late payment penalties due under the lease;
(3) Notify the tenant of its right to appeal under part 2 of this
chapter, as modified by Sec. 162.620 of this subpart, including the
amount of any appeal bond that must be posted with an appeal of the
cancellation decision; and
(4) Order the tenant to vacate the property within 30 days of the
date of receipt of the cancellation letter, if an appeal is not filed by
that time.
Sec. 162.620 Will BIA's regulations concerning appeal bonds apply to
cancellation decisions involving leases?
(a) The appeal bond provisions in Sec. 2.5 of part 2 of this
chapter will not apply to appeals from lease cancellation decisions made
under Sec. 162.619 of this subpart. Instead, when we decide to cancel
an agricultural lease, we may require that the tenant post an appeal
bond with an appeal of the cancellation decision. The requirement to
post an appeal bond will apply in addition to all of the other
requirements in part 2 of this chapter.
(b) An appeal bond should be set in an amount necessary to protect
the Indian landowners against financial losses that will likely result
from the delay caused by an appeal. Appeal bond requirements will not be
separately appealable, but may be contested during the appeal of the
lease cancellation decision.
Sec. 162.621 When will a cancellation of a lease be effective?
A cancellation decision involving an agricultural lease will not be
effective until 30 days after the tenant receives a cancellation letter
from us. The cancellation decision will remain ineffective if the tenant
files an appeal under Sec. 162.620 of this subpart and part 2 of this
chapter, unless the decision is made immediately effective under part 2.
While a cancellation decision is ineffective, the tenant must continue
to pay rent and comply with the other terms of the lease. If an appeal
is not filed in accordance with Sec. 162.620 of this subpart and part 2
of this chapter, the cancellation decision will be effective on the 31st
day after the tenant receives the cancellation letter from us.
PART 163_GENERAL FORESTRY REGULATIONS--Table of Contents
Subpart A_General Provisions
Sec.
163.1 Definitions.
163.2 Information collection.
163.3 Scope and objectives.
163.4 Secretarial recognition of tribal laws.
Subpart B_Forest Management and Operations
163.10 Management of Indian forest land.
163.11 Forest management planning and sustained yield management.
163.12 Harvesting restrictions.
163.13 Indian tribal forest enterprise operations.
163.14 Sale of forest products.
163.15 Advertisement of sales.
163.16 Forest product sales without advertisement.
163.17 Deposit with bid.
163.18 Acceptance and rejection of bids.
163.19 Contracts for the sale of forest products.
163.20 Execution and approval of contracts.
163.21 Bonds required.
163.22 Payment for forest products.
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163.23 Advance payment for timber products.
163.24 Duration of timber contracts.
163.25 Forest management deductions.
163.26 Forest product harvesting permits.
163.27 Free-use harvesting without permits.
163.28 Fire management measures.
163.29 Trespass.
163.30 Revocable road use and construction permits for removal of
commercial forest products.
163.31 Insect and disease control.
163.32 Forest development.
163.33 Administrative appeals.
163.34 Environmental compliance.
163.35 Indian forest land assistance account.
163.36 Tribal forestry program financial support.
163.37 Forest management research.
Subpart C_Forestry Education, Education Assistance, Recruitment and
Training
163.40 Indian and Alaska Native forestry education assistance.
163.41 Postgraduation recruitment, continuing education and training
programs.
163.42 Obligated service and breach of contract.
Subpart D_Alaska Native Technical Assistance Program
163.60 Purpose and scope.
163.61 Evaluation committee.
163.62 Annual funding needs assessment and rating.
163.63 Contract, grant, or agreement application and award process.
Subpart E_Cooperative Agreements
163.70 Purpose of agreements.
163.71 Agreement funding.
163.72 Supervisory relationship.
Subpart F_Program Assessment
163.80 Periodic assessment report.
163.81 Assessment guidelines.
163.82 Annual status report.
163.83 Assistance from the Secretary of Agriculture.
Authority: 25 U.S.C. 2, 5, 9, 13, 406, 407, 413, 415, 466; and 3101-
3120.
Source: 60 FR 52260, Oct. 5, 1995, unless otherwise noted.
Subpart A_General Provisions
Sec. 163.1 Definitions.
Advance deposits means, in Timber Contract for the Sale of Estimated
Volumes, contract-required deposits in advance of cutting which the
purchaser furnishes to maintain an operating balance against which the
value of timber to be cut will be charged.
Advance payments means, in Timber Contract for the Sale of Estimated
Volumes, non-refundable partial payments of the estimated value of the
timber to be cut. Payments are furnished within 30 days of contract
approval and prior to cutting. Advance payments are normally 25 percent
of the estimated value of the forest products on each allotment. Advance
payments may be required for tribal land.
Alaska Native means native as defined in section 3(b) of the Alaska
Native Claims Settlement Act of December 18, 1971 (43 U.S.C. 1604).
ANCSA corporation means both profit and non-profit corporations
established pursuant to the Alaska Native Claims Settlement Act (43
U.S.C. 1604).
Approval means authorization by the Secretary, Area Director,
Superintendent, tribe or individual Indian in accordance with
appropriate delegations of authority.
Approving officer means the officer approving instruments of sale
for forest products or his/her authorized representative.
Authorized representative means an individual or entity duly
empowered to make decisions under a direct, clear, and specific
delegation of authority.
Authorized tribal representative means an individual or entity duly
empowered to make decisions under a direct, clear, and specific
delegation of authority from an Indian tribe.
Beneficial owner means an individual or entity who holds an
ownership interest in Indian land.
Bid deposit means, in Timber Contract for the Sale of Estimated
Volumes or in Timber Contract for the Sale of Predetermined Volumes, a
deposit with bid furnished by prospective purchasers. At contract
execution, the bid deposit of the successful bidder becomes a portion of
the contract required advance deposit in estimated volume contracts or
an installment payment in predetermined volume contracts.
Commercial forest land means forest land that is producing or
capable of producing crops of marketable forest
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products and is administratively available for intensive management and
sustained production.
Expenditure plan means a written agreement between an Indian tribe
and the Secretary documenting tribal commitment to undertake specified
forest land management activities within general time frames.
Forest or forest land means an ecosystem at least one acre in size,
including timberland and woodland, which: Is characterized by a more or
less dense and extensive tree cover; contains, or once contained, at
least ten percent tree crown cover, and is not developed or planned for
exclusive non-forest resource use.
Forest land management activities means all activities performed in
the management of Indian forest land including:
(a) All aspects of program administration and executive direction
such as:
(1) Development and maintenance of policy and operational
procedures, program oversight, and evaluation;
(2) Securing of legal assistance and handling of legal matters;
(3) Budget, finance, and personnel management; and
(4) Development and maintenance of necessary data bases and program
reports.
(b) All aspects of the development, preparation and revision of
forest inventory and management plans, including aerial photography,
mapping, field management inventories and re- inventories, inventory
analysis, growth studies, allowable annual cut calculations,
environmental assessment, and forest history, consistent with and
reflective of tribal integrated resource management plans where such
plans exist.
(c) Forest land development, including forestation, thinning, tree
improvement activities, and the use of silvicultural treatments to
restore or increase growth and yield to the full productive capacity of
the forest environment.
(d) Protection against losses from wildfire, including acquisition
and maintenance of fire fighting equipment and fire detection systems,
construction of fire breaks, hazard reduction, prescribed burning, and
the development of cooperative wildfire management agreements.
(e) Protection against insects and disease, including:
(1) All aspects of detection and evaluation;
(2) Preparation of project proposals containing project
descriptions, environmental assessments and statements, and cost-
benefit analyses necessary to secure funding;
(3) Field suppression operations and reporting.
(f) Assessment of damage caused by forest trespass, infestation or
fire, including field examination and survey, damage appraisal,
investigation assistance and report, demand letter, and testimony
preparation.
(g) All aspects of the preparation, administration, and supervision
of timber sale contracts, paid and free use permits, and other Indian
forest product harvest sale documents, including;
(1) Cruising, product marketing, silvicultural prescription,
appraisal and harvest supervision;
(2) Forest product marketing assistance, including evaluation of
marketing and development opportunities related to Indian forest
products and consultation and advice to tribes, tribal and Indian
enterprises on maximization of return on forest products;
(3) Archeological, historical, environmental and other land
management reviews, clearances, and analyses;
(4) Advertising, executing, and supervising contracts;
(5) Marking and scaling of timber; and
(6) Collecting, recording and distributing receipts from sales.
(h) Provision of financial assistance for the education of Indians
and Alaska Natives enrolled in accredited programs of postsecondary and
postgraduate forestry and forestry-related fields of study, including
the provision of scholarships, internships, relocation assistance, and
other forms of assistance to cover educational expenses.
(i) Participation in the development and implementation of tribal
integrated resource management plans, including activities to coordinate
current and future multiple uses of Indian forest lands.
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(j) Improvement and maintenance of extended season primary and
secondary Indian forest land road systems.
(k) Research activities to improve the basis for determining
appropriate management measures to apply to Indian forest land.
Forest management deduction means a percentage of the gross proceeds
from the sales of forest products harvested from Indian land which is
collected by the Secretary pursuant to 25 U.S.C. 413 to cover in whole
or in part the cost of managing and protecting such Indian forest lands.
Forest management plan means the principal document, approved by the
Secretary, reflecting and consistent with an integrated resource
management plan, which provides for the regulation of the detailed,
multiple-use operation of Indian forest land by methods ensuring that
such lands remain in a continuously productive state while meeting the
objectives of the tribe and which shall include: Standards setting forth
the funding and staffing requirements necessary to carry out each
management plan, with a report of current forestry funding and staffing
levels; and standards providing quantitative criteria to evaluate
performance against the objectives set forth in the plan.
Forest products means marketable products extracted from Indian
forests, such as: Timber; timber products, including lumber, lath,
crating, ties, bolts, logs, pulpwood, fuelwood, posts, poles, and split
products; bark; Christmas trees, stays, branches, firewood, berries,
mosses, pinyon nuts, roots, acorns, syrups, wild rice, mushrooms, and
herbs; other marketable material; and gravel which is extracted from,
and utilized on, Indian forest land.
Forestry-related field or forestry-related curriculum means a
renewable natural resource management field necessary to manage Indian
forest land and other professionally recognized fields as approved by
the education committee established pursuant to Sec. 163.40(a)(1).
Forest resources means all the benefits derived from Indian forest
land, including forest products, soil productivity, water, fisheries,
wildlife, recreation, and aesthetic or other traditional values of
Indian forest land.
Forester intern means an Indian or Alaska Native who: Is employed as
a forestry or forestry-related technician with the Bureau of Indian
Affairs, an Indian tribe, or tribal forest-related enterprise; is
acquiring necessary academic qualifications to become a forester or a
professional trained in forestry-related fields; and is appointed to one
of the Forester Intern positions established pursuant to Sec.
163.40(b).
Indian means a member of an Indian tribe.
Indian enterprise means an enterprise which is designated as such by
the Secretary or tribe.
Indian forest land means Indian land, including commercial, non-
commercial, productive and non-productive timberland and woodland, that
are considered chiefly valuable for the production of forest products or
to maintain watershed or other land values enhanced by a forest cover,
regardless of whether a formal inspection and land classification action
has been taken.
Indian land means land title which is held by: The United States in
trust for an Indian, an individual of Indian or Alaska Native ancestry
who is not a member of a federally-recognized Indian tribe, or an Indian
tribe; or by an Indian, an individual of Indian or Alaska Native
ancestry who is not a member of a federally recognized tribe, or an
Indian tribe subject to a restriction by the United States against
alienation.
Indian tribe or tribe means any Indian tribe, band, nation,
rancheria, Pueblo or other organized group or community which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians and
shall mean, where appropriate, the recognized tribal government of such
tribe's reservation.
Installment payments means, in Timber Contract for the Sale of
Predetermined Volumes, scheduled partial payments of the total contract
value based on purchaser bid. Payments made are normally not refundable.
Integrated resource management plan means a document, approved by an
Indian tribe and the Secretary, which
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provides coordination for the comprehensive management of the natural
resources of such tribe's reservation.
Noncommercial forest land means forest land that is available for
extensive management, but is incapable of producing sustainable forest
products within the general rotation period. Such land may be
economically harvested, but the site quality does not warrant
significant investment to enhance future crops.
Productive forest land means forest land producing or capable of
producing marketable forest products that is unavailable for harvest
because of administrative restrictions or because access is not
practical.
Reservation means an Indian reservation established pursuant to
treaties, Acts of Congress, or Executive Orders and public domain Indian
allotments, Alaska Native allotments, rancherias, and former Indian
reservations in Oklahoma.
Secretary means the Secretary of the Interior or his or her
authorized representative.
Stumpage rate means the stumpage value per unit of measure for a
forest product.
Stumpage value means the value of a forest product prior to
extraction from Indian forest land.
Sustained yield means the yield of forest products that a forest can
produce continuously at a given intensity of management.
Timberland means forest land stocked, or capable of being stocked,
with tree species that are regionally utilized for lumber, pulpwood,
poles or veneer products.
Trespass means the removal of forest products from, or damaging
forest products on, Indian forest land, except when authorized by law
and applicable federal or tribal regulations. Trespass can include any
damage to forest resources on Indian forest land resulting from
activities under contracts or permits or from fire.
Tribal forest enterprise means an Indian enterprise that is
initiated and organized by a reservation's recognized tribal government.
Unproductive forest land means forest land that is not producing or
capable of producing marketable forest products and is also unavailable
for harvest because of administrative restrictions or because access is
not practical.
Woodland means forest land not included within the timberland
classification, stocked, or capable of being stocked, with tree species
of such form and size to produce forest products that are generally
marketable within the region for products other than lumber, pulpwood,
or veneer.
Sec. 163.2 Information collection.
The information collection requirements contained in 25 CFR part 163
do not require the approval of the Office of Management and Budget under
44 U.S.C. 3504(h) et seq.
Sec. 163.3 Scope and objectives.
(a) The regulations in this part are applicable to all Indian forest
land except as this part may be superseded by legislation.
(b) Indian forest land management activities undertaken by the
Secretary shall be designed to achieve the following objectives:
(1) The development, maintenance and enhancement of Indian forest
land in a perpetually productive state in accordance with the principles
of sustained yield and with the standards and objectives set forth in
forest management plans by providing effective management and protection
through the application of sound silvicultural and economic principles
to the harvesting of forest products, forestation, timber stand
improvement and other forestry practices;
(2) The regulation of Indian forest land through the development and
implementation, with the full and active consultation and participation
of the appropriate Indian tribe, of forest management plans which are
supported by written tribal objectives;
(3) The regulation of Indian forest land in a manner that will
ensure the use of good method and order in harvesting so as to make
possible, on a sustained yield basis, continuous productivity and a
perpetual forest business;
(4) The development of Indian forest land and associated value-added
industries by Indians and Indian tribes to promote self-sustaining
communities,
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so that Indians may receive from their Indian forest land not only
stumpage value, but also the benefit of all the labor and profit that
such Indian forest land is capable of yielding;
(5) The retention of Indian forest land in its natural state when an
Indian tribe determines that the recreational, cultural, aesthetic, or
traditional values of the Indian forest land represents the highest and
best use of the land;
(6) The management and protection of forest resources to retain the
beneficial effects to Indian forest land of regulating water run-off and
minimizing soil erosion; and
(7) The maintenance and improvement of timber productivity, grazing,
wildlife, fisheries, recreation, aesthetic, cultural and other
traditional values.
Sec. 163.4 Secretarial recognition of tribal laws.
Subject to the Secretary's trust responsibilities, and unless
otherwise prohibited by Federal statutory law, the Secretary shall
comply with tribal laws pertaining to Indian forest land, including laws
regulating the environment or historic or cultural preservation, and
shall cooperate with the enforcement of such laws on Indian forest land.
Such cooperation does not constitute a waiver of United States sovereign
immunity and shall include:
(a) Assistance in the enforcement of such laws;
(b) Provision of notice of such laws to persons or entities
undertaking activities on Indian forest land; and
(c) Upon the request of an Indian tribe, the appearance in tribal
forums.
Subpart B_Forest Management and Operations
Sec. 163.10 Management of Indian forest land.
(a) The Secretary shall undertake forest land management activities
on Indian forest land, either directly or through contracts, cooperative
agreements, or grants under the Indian Self-Determination and Education
Assistance Act (Pub. L. 93-638, as amended).
(b) Indian forest land management activities undertaken by the
Secretary shall be designed to achieve objectives enumerated in Sec.
163.3 of this part.
Sec. 163.11 Forest management planning and sustained yield management.
(a) To further the objectives identified in Sec. 163.3 of this
part, an appropriate forest management plan shall be prepared and
revised as needed for all Indian forest lands. Such documents shall
contain a statement describing the manner in which the policies of the
tribe and the Secretary will be applied, 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. Forest management plans
shall be based on the principle of sustained yield management and
objectives established by the tribe and will require approval of the
Secretary.
(b) Forest management planning for Indian forest land shall be
carried out through participation in the development and implementation
of integrated resource management plans which provide coordination for
the comprehensive management of all natural resources on Indian land. If
the integrated resource management planning process has not been
initiated, or is not ongoing or completed, a stand-alone forest
management plan will be prepared.
(c) The harvest of forest products from Indian forest land will be
accomplished under the principles of sustained yield management and will
not be authorized until practical methods of harvest based on sound
economic and silvicultural and other forest management principles have
been prescribed. Harvest schedules will be prepared for a specified
period of time and updated annually. Such schedules shall support the
objectives of the beneficial land owners and the Secretary and shall be
directed toward achieving an approximate balance between net growth and
harvest at the earliest practical time.
Sec. 163.12 Harvesting restrictions.
(a) Harvesting timber on commercial forest land will not be
permitted unless provisions for natural and/or artificial
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reforestation of acceptable tree species is included in harvest plans.
(b) Clearing of large contiguous areas will be permitted only on
land 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 appropriate, based on ecological principles,
to harvest a particular stand of timber by such method and it otherwise
conforms with objectives in Sec. 163.3 of this part.
Sec. 163.13 Indian tribal forest enterprise 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 beneficial Indian owners for their forest products;
(b) Authorized officials of tribal enterprises, operating under
approved agreements for the use of Indian-owned forest products pursuant
to this section, may sell the forest products produced according to
generally accepted trade practices;
(c) With the consent of the beneficial Indian owners, such
enterprises may, without advertisement, contract for the purchase of
forest products on Indian land 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 Sec.
163.22. However, the Secretary may issue special instructions for
payment by methods other than those in Sec. 163.22 of this part; and
(e) Performance bonds may or may not be required in connection with
operations on Indian land by such enterprises as determined by the
Secretary.
Sec. 163.14 Sale of forest products.
(a) Consistent with the economic objectives of the tribe and with
the consent of the Secretary and authorized by tribal resolution or
resolution of recognized tribal government, open market sales of Indian
forest products may be authorized. Such sales require consent of the
authorized representatives of the tribe for the sale of tribal forest
products, and the owners of a majority Indian interest on individually
owned lands. Open market sales of forest products from Indian land
located off reservations will be permitted with the consent of the
Secretary and majority Indian interest of the beneficial Indian
owner(s).
(b) On individually owned Indian forest land not formally designated
for retention in its natural state, the Secretary may, after
consultation, sell the forest products without the consent of the
owner(s) when in his or her judgment such action is necessary to prevent
loss of value resulting from fire, insects, diseases, windthrow or other
catastrophes.
(c) Unless otherwise authorized by the Secretary, each sale of
forest products having an estimated stumpage value exceeding $15,000
will not be approved until:
(1) An examination of the forest products to be sold has been made
by a forest officer; and
(2) A report setting forth all pertinent information has been
submitted to the approving officer as provided in Sec. 163.20 of this
part.
(d) With the approval of the Secretary, authorized beneficial Indian
owners who have been duly apprised as to the value of the forest
products to be sold, may sell or transfer forest products for less than
the appraised value.
(e) Except as provided in Sec. 163.14(d) of this part, in all such
sales, the forest products shall be appraised and sold at stumpage rates
not less than those established by the Secretary.
Sec. 163.15 Advertisement of sales.
Except as provided in Sec. Sec. 163.13, 163.14, 163.16, and 163.26
of this part, sales of forest products shall be made only after
advertising.
(a) The advertisement shall be approved by the officer who will
approve the instrument of sale. Advertised sales shall be made under
sealed bids,
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or at public auction, or under a combination thereof. The advertisement
may limit sales of Indian forest products 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 forest products
offered does not exceed $15,000, the advertisement may be made by
posters and circular letters. If the estimated stumpage value exceeds
$15,000, the advertisement shall also be made in at least one edition of
a newspaper of general circulation in the locality where the forest
products are 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 $250,000, for not
less than 30 days; and if the estimated stumpage value exceeds $250,000,
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 period.
(c) If no instrument of sale 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 forest products. 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.
Sec. 163.16 Forest product sales without advertisement.
(a) Sales of forest products may be made without advertisement to
Indians or non-Indians with the consent of the authorized tribal
representatives for tribal forest products or with the consent of the
beneficial owners of a majority Indian interest of individually owned
Indian land, and the approval of the Secretary when:
(1) Forest products are to be cut in conjunction with the granting
of a right-of-way;
(2) Granting an authorized occupancy;
(3) Tribal forest products are to be purchased by an Indian tribal
forest enterprise;
(4) It is impractical to secure competition by formal advertising
procedures;
(5) It must be cut to protect the forest from injury; or
(6) Otherwise specifically authorized by law.
(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 a
type allowing use of negotiation procedures;
(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.
Sec. 163.17 Deposit with bid.
(a) A deposit shall be made with each proposal for the purchase of
Indian forest products. 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; and
(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 as specified in the advertisement, or in cash.
(c) The deposit of the apparent high bidder, and of others who
submit a 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.
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(d) The deposit of the successful bidder will be forfeited and
distributed as damages to the beneficial owners if the bidder does not:
(1) Furnish the performance bond required by Sec. 163.21 of this
part within the time stipulated in the advertisement for sale of forest
products;
(2) Execute the contract; or
(3) Perform the contract.
(e) Forfeiture of a deposit does not limit or waive any further
claims for damages available under applicable law or terms of the
contract.
(f) In the event of an administrative appeal under 25 CFR part 2,
the Secretary may hold such bid deposits in an escrow account pending
resolution of the appeal.
Sec. 163.18 Acceptance and rejection of bids.
(a) 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.
Sec. 163.19 Contracts for the sale of forest products.
(a) In sales of forest products with an appraised stumpage value
exceeding $15,000, 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.
(b) Unless otherwise directed, the contracts for forest products
from individually-owned Indian land will be paid by remittance drawn to
the Bureau of Indian Affairs and transmitted to the Superintendent. Upon
the request of the tribe, the contracts for tribal forest products may
require that the proceeds be paid promptly and directly into a bank
depository account designated by such tribe, or by remittance drawn to
the Bureau of Indian Affairs and transmitted to the Superintendent.
(c) By mutual agreement of the parties to a contract, contracts may
be extended, modified, or assigned subject to approval by the approving
officer, and may be terminated by the approving officer upon completion
or by mutual agreement.
Sec. 163.20 Execution and approval of contracts.
(a) All contracts for the sale of tribal forest products shall be
executed by the authorized tribal representative(s). There shall be
included with the contract an affidavit executed by the authorized
tribal representative(s) setting forth the resolution or other authority
of the governing body of the tribe. Contracts must be approved by the
Secretary to be valid.
(b) Contracts for the sale of individually owned forest products
shall be executed by the beneficial Indian owner(s) or the Secretary
acting pursuant to a power of attorney from the beneficial Indian
owner(s). 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 beneficial Indian
owners who are non compos mentis.
(2) The Secretary may execute contracts for a decedent's estate
where ownership 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
[[Page 448]]
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 forest
management deductions from such payments.
(4) When consent of only a majority interest has been obtained, the
Secretary may execute the sale on behalf of all owners to fulfill
responsibilities to the beneficiaries of the trust. In such event, the
contract file must contain evidence of the effort to obtain consent of
all owners. When an individual cannot be located, the Secretary, after a
reasonable and diligent search and the giving of notice by publication,
may sign a power of attorney consenting to the sale for particular
interests. For Indian forest land containing undivided restricted and
unrestricted interests, only the restricted interests are considered in
determining if a majority interest has been obtained.
Sec. 163.21 Bonds required.
(a) Performance bonds will be required in connection with all sales
of forest products, except they may or may not be required, as
determined by the approving officer, in connection with the use of
forest products by Indian tribal forest enterprises pursuant to this
part in Sec. 163.13 or in timber cutting permits issued pursuant to
Sec. 163.26 of this part.
(1) In sales in which the estimated stumpage value, calculated at
the appraised stumpage rates, does not exceed $15,000, the bond shall be
at least 20 percent of the estimated stumpage value.
(2) In sales in which the estimated stumpage value exceeds $15,000
but is not over $150,000, the bond shall be at least 15 percent of the
estimated stumpage value but not less than $3,000.
(3) In sales in which the estimated stumpage value exceeds $150,000,
but is not over $350,000, the bond shall be at least 10 percent of the
estimated stumpage value but not less than $22,500.
(4) In sales in which the estimated stumpage value exceeds $350,000,
the bond shall be at least 5 percent of the estimated stumpage value but
not less than $35,000.
(b) Bonds shall be in a form acceptable to the approving officer and
may include:
(1) A corporate surety bond by an acceptable surety company;
(2) A cash bond designating the approving officer to act as trustee
under terms of an appropriate trust;
(3) Negotiable U.S. Government securities supported by an
appropriate trust instrument; or
(4) An irrevocable letter of credit.
Sec. 163.22 Payment for forest products.
(a) The basis of volume determination for forest products 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 Indian tribal forest
enterprises pursuant to Sec. 163.13 of this part, payment for forest
products will be required in advance of cutting for timber, or removal
for other forest products.
(b) Upon the request of an Indian tribe, the Secretary may provide
that the purchaser of the forest products of such tribe, which are
harvested under a timber sale contract, permit, or other harvest sale
document to make advanced deposits, or direct payments of the gross
proceeds of such forest products, less any amounts segregated as forest
management deductions pursuant to Sec. 163.25 of this part, into
accounts designated by such Indian tribe. Such accounts may be in one or
more of the following formats:
(1) Escrow accounts at a tribally designated financial institution
for receiving deposits with bids and advance deposits from which direct
disbursements for timber harvested shall be made to tribes and forest
management deductions accounts; or
(2) Tribal depository accounts for receiving advance payments,
installment payments, payments from Indian tribal forest enterprises,
and/or disbursements from advance deposit accounts or escrow accounts.
(c) The format must allow the Secretary to maintain trust
responsibility through written verification that all
[[Page 449]]
required deposits, payments, and disbursements have been made.
(d) Terms and conditions for payment of forest products under lump
sum (predetermined volume) sales shall be specified in forest product
contract documents.
Sec. 163.23 Advance payment for timber products.
(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 allotted, trust or restricted Indian forest land shall
provide for an advance 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. 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
ownership in a sale exceed 50 percent of the bid stumpage value. Advance
payments shall be credited against the timber of each ownership in the
sale as the timber is cut and scaled at stumpage rates governing at the
time of scaling. Advance payments are not refundable.
(b) Advance payments may be required on tribal land. When required,
advance payments will operate the same as provided for in Sec.
163.23(a) of this part.
Sec. 163.24 Duration of timber contracts.
After the effective date of a forest product contract, unless
otherwise authorized by the Secretary, the maximum period which shall be
allowed for harvesting the estimated volume of timber purchased, shall
be five years.
Sec. 163.25 Forest management deductions.
(a) Pursuant to the provisions of 25 U.S.C. 413 and 25 U.S.C. 3105,
a forest management deduction shall be withheld from the gross proceeds
of sales of forest products harvested from Indian forest land as
described in this section.
(b) Gross proceeds shall mean the value in money or money's worth of
consideration furnished by the purchaser of forest products purchased
under a contract, permit, or other document for the sale of forest
products.
(c) Forest management deductions shall not be withheld where the
total consideration furnished under a contract, permit or other document
for the sale of forest products is less than $5,001.
(d) Except as provided in Sec. 163.25(e) of this part, the amount
of the forest management deduction shall not exceed the lesser amount of
ten percent (10%) of the gross proceeds or, the actual percentage in
effect on November 28, 1990.
(e) The Secretary may increase the forest management deduction
percentage for Indian forest land upon receipt of a written request from
a tribe supported by a resolution executed by the authorized tribal
representatives. At the request of the authorized tribal representatives
and at the discretion of the Secretary the forest management deduction
percentage may be decreased to not less than one percent (1%) or the
requirement for collection may be waived.
(f) Forest management deductions are to be utilized to perform
forest land management activities in accordance with an approved
expenditure plan. Expenditure plans shall describe the forest land
management activities anticipated to be undertaken, establish a time
period for their completion, summarize anticipated obligations and
expenditures, and specify the method through which funds are to be
transferred or credited to tribal accounts from special deposit accounts
established to hold amounts withheld as forest management deductions.
Any forest management deductions that have not been incorporated into an
approved expenditure plan by the end of the fiscal year following the
fiscal year in which the deductions are withheld, shall be collected
into the general funds of the United States Treasury pursuant to 25
U.S.C. 413.
(1) For Indian forest lands located on an Indian reservation, a
written expenditure plan for the use of forest management deductions
shall be prepared annually and approved by the authorized tribal
representative(s) and
[[Page 450]]
the Secretary. The approval of the expenditure plan by the authorized
tribal representatives constitutes allocation of tribal funds for Indian
forest land management activities. Approval of the expenditure plan by
the Secretary shall constitute authority for crediting of forest
management deductions to tribal account(s). The full amount of any
deduction collected by the Secretary plus any income or interest earned
thereon shall be available for expenditure according to the approved
expenditure plan for the performance of forest land management
activities on the reservation from which the forest management deduction
is collected.
(2) Forest management deductions shall be handled in the same manner
as described under Sec. 163.25(f)(1) of this part if the expenditure
plan approved by an Indian tribe and the Secretary provides for the
conduct of forest land management activities on Indian forest lands
located outside the boundaries of an Indian reservation.
(3) For public domain and Alaska Native allotments held in trust for
Indians by the United States, forest management deductions may be
utilized to perform forest land management activities on such lands in
accordance with an expenditure plan approved by the Secretary.
(g) Forest management deductions withheld pursuant to this section
shall not be available to cover the costs that are paid from funds
appropriated for fire suppression or pest control or otherwise offset
federal appropriations for meeting the Federal trust responsibility for
management of Indian forest land.
(h) Within 120 days after the close of the tribal fiscal year,
tribes shall submit to the Secretary a written report detailing the
actual expenditure of forest management deductions during the past
fiscal year. The Secretary shall have the right to inspect accounts,
books, or other tribal records supporting the report.
(i) Forest management deductions incorporated into an expenditure
plan approved by the Secretary shall remain available until expended.
(j) As provided in Sec. 163.25(f) of this part, only forest
management deductions that have not been incorporated into an approved
expenditure plan may be deposited to a U.S. Treasury miscellaneous
receipt account. No amount collected as forest management deductions
shall be credited to any Federal appropriation. No other forest
management deductions or fees derived from Indian forest land shall be
collected to be covered into the general funds of the United States
Treasury.
Sec. 163.26 Forest product harvesting permits.
(a) Except as provided in Sec. Sec. 163.13 and 163.27 of this part,
removal of forest products that are not under formal contract, pursuant
to Sec. 163.19, shall be under forest product harvesting permit forms
approved by the Secretary. Permits will be issued only with the written
consent of the beneficial Indian owner(s) or the Secretary, for harvest
of forest products from Indian forest land, as authorized in Sec.
163.20 of this part. To be valid, permits must be approved by the
Secretary. Minimum stumpage rates at which forest products may be sold
will be set at the time consent to issue the permit is obtained. Payment
and bonding requirements will be stipulated in the permit document as
appropriate.
(b) Free use harvesting permits issued shall specify species and
types of forest products to be removed. It may be stipulated that forest
products removed under this authority cannot be sold or exchanged for
other goods or services. The estimated value which may be harvested in a
fiscal year by any individual under this authority shall not exceed
$5,000. For the purpose of issuance of free use permits, individual
shall mean an individual Indian or any organized group of Indians.
(c) Paid permits subject to forest management deductions, as
provided in Sec. 163.25 of this part, may be issued. Unless otherwise
authorized by the Secretary, the stumpage value which may be harvested
under paid permits in a fiscal year by any individual under this
authority shall not exceed $25,000. For the purpose of issuance of paid
permits, individual shall mean an individual or any operating entity
comprised of more than one individual.
(d) A Special Allotment Timber Harvest Permit may be issued to an
Indian
[[Page 451]]
having sole beneficial interest in an allotment to harvest and sell
designated forest products from his or her allotment. The special permit
shall include provision for payment by the Indian of forest management
deductions pursuant to Sec. 163.25 of this part. Unless waived by the
Secretary, the permit shall also require the Indian to make a bond
deposit with the Secretary as required by Sec. 163.21. Such bonds will
be returned to the Indian upon satisfactory completion of the permit or
will be used by the Secretary in his or 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 shall be
required to provide evidence acceptable to the Secretary that he or she
has arranged a bona fide sale of the forest products, on terms that will
protect the Indian's interests.
Sec. 163.27 Free-use harvesting without permits.
With the consent of the beneficial Indian owners and the Secretary,
Indians may harvest designated types of forest products from Indian
forest land without a permit or contract, and without charge. Forest
products harvested under this authority shall be for the Indian's
personal use, and shall not be sold or exchanged for other goods or
services.
Sec. 163.28 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 land. No expenses for
fighting a fire outside Indian lands may be incurred unless the fire
threatens Indian land or unless the 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
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 land
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 is authorized to conduct a wildfire prevention
program to reduce the number of person-caused fires and prevent damage
to natural resources on Indian land.
(c) The Secretary is authorized to expend funds for emergency
rehabilitation measures needed to stabilize soil and watershed on Indian
land damaged by wildfire.
(d) Upon consultation with the beneficial Indian owners, the
Secretary may use fire as a management tool on Indian land to achieve
land and/or resource management objectives.
Sec. 163.29 Trespass.
(a) Trespassers will be liable for civil penalties and damages to
the enforcement agency and the beneficial Indian owners, and will be
subject to prosecution for acts of trespass.
(1) Cases in Tribal Court. For trespass actions brought in tribal
court pursuant to these regulations, the measure of damages, civil
penalties, remedies and procedures will be as set forth in this Sec.
163.29 of this part. All other aspects of a tribal trespass prosecution
brought under these regulations will be that prescribed by the law of
the tribe in whose reservation or within whose jurisdiction the trespass
was committed, unless otherwise prescribed under federal law. Absent
applicable tribal or federal law, the measure of damages shall be that
prescribed by the law of the state in which the trespass was committed.
(2) Cases in Federal Court. For trespass actions brought in Federal
court pursuant to these regulations, the measure of damages, civil
penalties, remedies and procedures will be as set forth in this Sec.
163.29. In the absence of
[[Page 452]]
applicable federal law, the measure shall be that prescribed by the law
of the tribe in whose reservation or within whose jurisdiction the
trespass was committed, or in the absence of tribal law, the law of the
state in which it was committed.
(3) Civil penalties for trespass include, but are not limited to:
(i) Treble damages, whenever any person, without lawful authority
injures, severs, or carries off from a reservation any forest product as
defined in Sec. 163.1 of this part. Proof of Indian ownership of the
premises and commission of the acts by the trespasser are prima facie
evidence sufficient to support liability for treble damages, with no
requirement to show willfulness or intent. Treble damages shall be based
upon the highest stumpage value obtainable from the raw materials
involved in the trespass.
(ii) Payment of costs associated with damage to Indian forest land
includes, but is not limited to, rehabilitation, reforestation, lost
future revenue and lost profits, loss of productivity, and damage to
other forest resources.
(iii) Payment of all reasonable costs associated with the
enforcement of these trespass regulations beginning with detection and
including all processes through the prosecution and collection of
damages, including but not limited to field examination and survey,
damage appraisal, investigation assistance and reports, witness
expenses, demand letters, court costs, and attorney fees.
(iv) Interest calculated at the statutory rate prescribed by the law
of the tribe in whose reservation or within whose jurisdiction the
trespass was committed, or in the absence of tribal law in the amount
prescribed by federal law. Where tribal law or federal law does not
supply a statutory interest rate, the rate of interest shall be
statutory rate upon judgments as prescribed by the law of the state in
which the trespass was committed. Interest shall be based on treble the
highest stumpage value obtainable from the raw materials involved in the
trespass, and calculated from the date of the trespass until payment is
rendered.
(b) Any cash or other proceeds realized from forfeiture of equipment
or other goods or from forest products damaged or taken in the trespass
shall be applied to satisfy civil penalties and other damages identified
under Sec. 163.29(a) of this part. After disposition of real and
personal property to pay civil penalties and damages resulting from
trespass, any residual funds shall be returned to the trespasser. In the
event that collection and forfeiture actions taken against the
trespasser result in less than full recovery, civil penalties shall be
distributed as follows:
(1) Collection of damages up to the highest stumpage value of the
trespass products shall be distributed pro rata between the Indian
beneficial owners and any costs and expenses needed to restore the
trespass land; or
(2) Collections exceeding the highest stumpage value of the trespass
product, but less than full recovery, shall be proportionally
distributed pro rata between the Indian beneficial owners, the law
enforcement agency, and the cost to restore the trespass land. Forest
management deductions shall not be withheld where less than the highest
stumpage value of the unprocessed forest products taken in trespass has
been recovered.
(c) Indian beneficial owners who trespass, or who are involved in
trespass upon their own land, or undivided land in which such owners
have a partial interest, shall not receive their beneficial share of any
civil penalties and damages collected in consequence of the trespass.
Any civil penalties and damages defaulted in consequence of this
provision instead shall be distributed first toward restoration of the
land subject of the trespass and second toward costs of the enforcement
agency in consequence of the trespass, with any remainder to the forest
management deduction account of the reservation in which the trespass
took place.
(d) Civil penalties and other damages collected under these
regulations, except for penalties and damages provided for in Sec. Sec.
163.29(a)(3) (ii) and (iii) of this part, shall be treated as proceeds
from the sale of forest products from the Indian forest land upon which
the trespass occurred.
(e) When a federal official or authorized tribal representative
pursuant to
[[Page 453]]
Sec. 163.29(j) of this part has reason to believe that Indian forest
products are involved in trespass, such individual may seize and take
possession of the forest products involved in the trespass if the
products are located on reservation. When forest products are seized,
the person seizing the products must at the time of the seizure issue a
Notice of Seizure to the possessor or claimant of the forest products.
The Notice of Seizure shall indicate the date of the seizure, a
description of the forest products seized, the estimated value of forest
products seized, an indication of whether the forest products are
perishable, and the name and authority of the person seizing the forest
products. Where the official initiates seizure under these regulations
only, the Notice of Seizure shall further include the statement that any
challenge or objection to the seizure shall be exclusively through
administrative appeal pursuant to part 2 of title 25, and shall provide
the name and the address of the official with whom the appeal may be
filed. Alternately, an official may exercise concurrent tribal seizure
authority under these regulations using applicable tribal law. In such
case, the Notice of Seizure shall identify the tribal law under which
the seizure may be challenged, if any. A copy of a Notice of Seizure
shall be given to the possessor or claimant at the time of the seizure.
If the claimant or possessor is unknown or unavailable, Notice of
Seizure shall be posted on the trespass property, and a copy of the
Notice shall be kept with any incident report generated by the official
seizing the forest products. If the property seized is perishable and
will lose substantial value if not sold or otherwise disposed of, the
representative of the Secretary, or authorized tribal representative
where deferral has been requested, may cause the forest products to be
sold. Such sale action shall not be stayed by the filing of an
administrative appeal nor by a challenge of the seizure action through a
tribal forum. All proceeds from the sale of the forest products shall be
placed into an escrow account and held until adjudication or other
resolution of the underlying trespass. If it is found that the forest
products seized were involved in a trespass, the proceeds shall be
applied to the amount of civil penalties and damages awarded. If it is
found that a trespass has not occurred or the proceeds are in excess of
the amount of the judgment awarded, the proceeds or excess proceeds
shall be returned to the possessor or claimant.
(f) When there is reason to believe that Indian forest products are
involved in trespass and that such products have been removed to land
not under federal or tribal government supervision, the federal official
or authorized tribal representative pursuant to Sec. 163.29(k) of this
part responsible for the trespass shall immediately provide the
following notice to the owner of the land or the party in possession of
the trespass products:
(1) That such products could be Indian trust property involved in a
trespass; and
(2) That removal or disposition of the forest products may result in
criminal and/or civil action by the United States or tribe.
(g) A representative of the Secretary or authorized tribal
representative pursuant to Sec. 163.29(j) of this part will promptly
determine if a trespass has occurred. The appropriate representative
will issue an official Notice of Trespass to the alleged trespasser and,
if necessary, the possessor or potential buyer of any trespass products.
The Notice is intended to inform the trespasser, buyer, or the
processor:
(1) That a determination has been made that a trespass has occurred;
(2) The basis for the determination;
(3) An assessment of the damages, penalties and costs;
(4) Of the seizure of forest products, if applicable; and
(5) That disposition or removal of Indian forest products taken in
the trespass may result in civil and/or criminal action by the United
States or the tribe.
(h) The Secretary may accept payment of damages in the settlement of
civil trespass cases. In the absence of a court order, the Secretary
will determine the procedure and approve acceptance of any settlements
negotiated by a tribe exercising its concurrent jurisdiction pursuant to
Sec. 163.29(j) of this part.
[[Page 454]]
(i) The Secretary may delegate by written agreement or contract,
responsibility for detection and investigation of forest trespass.
(j) Indian tribes that adopt the regulations set forth in this
section, conformed as necessary to tribal law, shall have concurrent
civil jurisdiction to enforce 25 U.S.C. 3106 and this section against
any person.
(1) The Secretary shall acknowledge said concurrent civil
jurisdiction over trespass, upon:
(i) Receipt of a formal tribal resolution documenting the tribe's
adoption of this section; and
(ii) Notification of the ability of the tribal court system to
properly adjudicate forest trespass cases, including a statement that
the tribal court will enforce the Indian Civil Rights Act or a tribal
civil rights law that contains provisions for due process and equal
protection that are similar to or stronger than those contained in the
Indian Civil Rights Act.
(2) Where an Indian tribe has acquired concurrent civil jurisdiction
over trespass cases as set forth in Sec. 163.29(j)(1) of this part, the
Secretary and tribe's authorized representatives will be jointly
responsible to coordinate prosecution of trespass actions. The Secretary
shall, upon timely request of the tribe, defer prosecution of forest
trespasses to the tribe. Where said deferral is not requested, the
designated Bureau of Indian Affairs forestry trespass official shall
coordinate with the authorized forest trespass official of each tribe
the exercise of concurrent tribal and Federal trespass jurisdiction as
to each trespass. Such officials shall review each case, determine in
which forums to recommend bringing an action, and promptly provide their
recommendation to the Federal officials responsible for initiating and
prosecuting forest trespass cases. Where an Indian tribe has acquired
concurrent civil jurisdiction, but does not request deferral of
prosecution, the federal officials responsible for initiating and
prosecuting such cases may file and prosecute the action in the tribal
court or forum.
(3) The Secretary may rescind an Indian tribe's concurrent civil
jurisdiction over trespass cases under this regulation if the Secretary
or a court of competent jurisdiction determines that the tribal court
has not adhered to the due process or equal protection requirements of
the Indian Civil Rights Act. If it is determined that said rescission is
justified, the Secretary shall provide written Notice of the rescission,
including the findings justifying the rescission and the steps needed to
remedy the violations causing the rescission, to the chief judge of the
tribal judiciary or other authorized tribal official should there be no
chief judge. If said steps are not taken within 60 days, the Secretary's
rescission of concurrent civil jurisdiction shall become final. The
affected tribe(s) may appeal a Notice of Rescission under part 2 of
title 25.
(4) Nothing shall be construed to prohibit or in any way diminish
the authority of a tribe to prosecute individuals under its criminal or
civil trespass laws where it has jurisdiction over those individuals.
Sec. 163.30 Revocable road use and construction permits for removal of
commercial forest products.
(a) In accordance with 25 U.S.C. 415 as amended, the Secretary may
request tribes and/or other beneficial owners to sign revocable permits
designating the Secretary as agent for the landowner and empowering him
or her to issue revocable road use and construction permits to users for
the purpose of removing forest products.
(b) When a majority of trust interest in a tract has consented, the
Secretary may issue revocable road use and con- struction permits for
removal of forest products over and across such land. In addition, the
Secretary may act for individual owners when:
(1) One or more of the individual owner(s) 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(s) of the land or those with an
interest therein are unknown so long as the majority of owner(s) of
interests whose
[[Page 455]]
whereabouts are known, consent to the grant;
(3) The heirs or devisees of a deceased owner of the land or
interest have not been determined, and the Secretary finds the grant
will cause no substantial injury to the land or any land owner; or
(4) The owners of interests in the land are so numerous that the
Secretary finds it would be impractical to obtain the consent of the
majority and finds that such grant in total or an interest therein will
cause no substantial injury to the land or the owner(s), that cannot be
adequately compensated for by monetary damages.
(c) Nothing in this section shall preclude acquisition of rights-of-
way over Indian lands, under 25 CFR part 169, or conflict with
provisions of that part.
Sec. 163.31 Insect and disease control.
(a) The Secretary is authorized to protect and preserve Indian
forest land from disease or insects (Sept. 20, 1922, Ch. 349, 42 Stat.
857). The Secretary shall consult with the authorized tribal
representatives and beneficial owners of Indian forest land concerning
control actions.
(b) The Secretary is responsible for controlling and mitigating
harmful effects of insects and diseases on Indian forest land and will
coordinate control actions with the Secretary of Agriculture in
accordance with 92 Stat. 365, 16 U.S.C. 2101.
Sec. 163.32 Forest development.
Forest development pertains to forest land management activities
undertaken to improve the sustainable productivity of commercial Indian
forest land. The program shall consist of reforestation, timber stand
improvement projects, and related investments to enhance productivity of
commercial forest land with emphasis on accomplishing on-the-ground
projects. Forest development funds will be used to re-establish,
maintain, and/or improve growth of commercial timber species and control
stocking levels on commercial forest land. Forest development activities
will be planned and executed using benefit-cost analyses as one of the
determinants in establishing priorities for project funding.
Sec. 163.33 Administrative appeals.
Any challenge to action under 25 CFR part 163 taken by an approving
officer or subordinate official exercising delegated authority from the
Secretary shall be exclusively through administrative appeal or as
provided in the Indian Self-Determination and Education Assistance Act
(Pub. L. 93-638, as amended). Such appeal(s) shall be filed in
accordance with the provisions of 25 CFR part 2, Appeals from
administrative actions, except that an appeal of any action under part
163 of this title shall:
(a) Not stay any action unless otherwise directed by the Secretary;
and
(b) Define ``interested party'' for purposes of bringing such an
appeal or participating in such an appeal as any person whose own direct
economic interest is adversely affected by an action or decision.
Sec. 163.34 Environmental compliance.
Actions taken by the Secretary under the regulations in this part
must comply with the National Environmental Policy Act of 1969,
applicable Council on Environmental Quality Regulations, and tribal laws
and regulations.
Sec. 163.35 Indian forest land assistance account.
(a) At the request of a tribe's authorized representatives, the
Secretary may establish tribal-specific forest land assistance accounts
within the trust fund system.
(b) Deposits shall be credited either to forest transportation or to
general forest land management accounts.
(c) Deposits into the accounts may include:
(1) Funds from non-federal sources related to activities on or for
the Indian forest land of such tribe's reservation;
(2) Donations or contributions;
(3) Unobligated forestry appropriations for the tribe;
(4) User fees; and
(5) Funds transferred under Federal interagency agreements if
otherwise authorized by law.
(d) For purposes of Sec. 163.35(c)(3) of this part; unobligated
forestry appropriations shall consist of balances that
[[Page 456]]
remain unobligated at the end of the fiscal year(s) for which funds are
appropriated for the benefit of an Indian tribe.
(e) Funds in the Indian forest land assistance account plus any
interest or other income earned shall remain available until expended
and shall not be available to otherwise offset Federal appropriations
for the management of Indian forest land.
(f) Funds in the forest land assistance account shall be used only
for forest land management activities on the reservation for which the
account is established.
(g) Funds in a tribe's forest land assistance account shall be
expended in accordance with a plan approved by the tribe and the
Secretary.
(h) The Secretary may, where circumstances warrant, at the request
of the tribe, or upon the Secretary's own volition, conduct audits of
the forest land assistance accounts and shall provide the audit results
of to the tribe(s).
Sec. 163.36 Tribal forestry program financial support.
(a) The Secretary shall maintain a program to provide financial
support to qualifying tribal forestry programs. A qualifying tribal
forestry program is an organization or entity established by a tribe for
purposes of carrying out forest land management activities. Such
financial support shall be made available through the Indian Self-
Determination and Education Assistance Act (Pub. L. 93-638, as amended).
(b) The authorized tribal representatives of any category 1, 2, or 3
reservation (as defined under Sec. 163.36(b)(1)-(3)) with an
established tribal forestry program or with an intent to establish such
a program for the purpose of carrying out forest land management
activities may apply and qualify for tribal forestry program financial
support. Reservation categories, as determined by the Secretary, are
defined as:
(1) Category 1 includes major forested reservations comprised of
more than 10,000 acres of trust or restricted commercial timberland or
having more than a one million board foot harvest of forest products
annually.
(2) Category 2 includes minor forested reservations comprised of
less than 10,000 acres of trust or restricted commercial timberland and
having less than a one million board foot harvest of forest products
annually, or whose forest resource is determined by the Secretary to be
of significant commercial timber value.
(3) Category 3 includes significant woodland reservations comprised
of an identifiable trust or restricted forest area of any size which is
lacking a timberland component, and whose forest resource is determined
by the Secretary to be of significant commercial woodland value.
(c) A group of tribes that has either established or intends to
establish a cooperative tribal forestry program to provide forest land
management services to their reservations may apply and qualify for
tribal forestry program financial support. For purposes of financial
support under this provision, the cooperative tribal forestry program
and the commercial forest acreage and annual allowable cut which it
represents may be considered as a single reservation.
(d) Before the beginning of each Federal fiscal year, tribes
applying to qualify for forestry program financial support shall submit
application packages to the Secretary which:
(1) Document that a tribal forestry program exists or that there is
an intent to establish such a program;
(2) Describe forest land management activities and the time line for
implementing such activities which would result from receiving tribal
forestry program financial support; and
(3) Document commitment to sustained yield management.
(e) Tribal forestry program financial support shall provide
professional and technical services to carry out forest land management
activities and shall be based on levels of funding assistance as
follows:
(1) Level one funding assistance shall be equivalent to a Federal
Employee General Pay Schedule GS 9 step 5 position salary plus an
additional 40 percent of the annual salary for such a position to pay
for fringe benefits and support costs;
(2) Level two funding assistance shall be equivalent to an
additional Federal Employee General Pay Schedule GS 9
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step 5 position salary plus an additional 40 percent of the annual
salary for such a position to pay for fringe benefits and support costs;
and
(3) Level three funding assistance shall be based on equal
distribution of remaining funds among qualifying applicants.
(f) Determination of qualification for level of funding assistance
shall be as follows:
(1) A funding level qualification value shall be determined for each
eligible applicant using the formula below. Such formula shall only be
used to determine which applicants qualify for level one funding
assistance. Acreage and allowable cut data used in the formula shall be
as maintained by the Secretary. Eligible applicants with a funding level
qualification value of one (1) or greater shall qualify for level one
assistance.
Funding Level Qualification Formula
[GRAPHIC] [TIFF OMITTED] TR05OC95.000
where:
CA=applicant's total commercial Indian forest land acres;
Tot. CA=national total commercial Indian forest land acres;
AAC=applicant's total allowable annual cut from commercial Indian forest
land acres; and
Tot. AAC=national total allowable annual cut from commercial Indian
forest land acres.
(2) All category 1 or 2 reservations that are eligible applicants
under Sec. 163.36(d) of this part are qualified and eligible for level
two assistance.
(3) All category 1, 2 or 3 reservations that are eligible applicants
under Sec. 163.36(d) of this part are qualified and eligible for level
three assistance.
(g) Tribal forestry program financial support funds shall be
distributed based on the following:
(1) All requests from reservations qualifying for level one funding
assistance must be satisfied before funds are made available for level
two funding assistance;
(2) All requests from reservations qualifying for level two funding
assistance must be satisfied before funds are made available for level
three funding assistance; and
(3) If available funding is not adequate to satisfy all requests at
a particular level of funding, funds will be evenly divided among tribes
qualifying at that level.
Sec. 163.37 Forest management research.
The Secretary, with the consent of the authorized Indian
representatives' is authorized to perform forestry research activities
to improve the basis for determining appropriate land management
activities to apply to Indian forest land.
Subpart C_Forestry Education, Education Assistance, Recruitment and
Training
Sec. 163.40 Indian and Alaska Native forestry education assistance.
(a) Establishment and evaluation of the forestry education
assistance programs. (1) The Secretary shall establish within the Bureau
of Indian Affairs Division of Forestry an education committee to
coordinate and implement the forestry education assistance programs and
to select participants for all the forestry education assistance
programs with the exception of the cooperative education program. This
committee will be, at a minimum, comprised of a professional educator, a
personnel specialist, an Indian or Alaska Native who is not employed by
the Bureau of Indian Affairs, and a professional forester from the
Bureau of Indian Affairs.
(2) The Secretary, through the Bureau of Indian Affairs Division of
Forestry, shall monitor and evaluate the forestry education assistance
programs to ensure that there are adequate Indian and Alaska Native
foresters and forestry-related professionals to manage the Bureau of
Indian Affairs forestry programs and forestry programs maintained by or
for tribes and ANCSA Corporations. Such monitoring and evaluating shall
identify the number of participants in the intern, cooperative
education, scholarship, and outreach programs; the number of
participants who completed the requirements to become a professional
forester or forestry-related professional; and the
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number of participants completing advanced degree requirements.
(b) Forester intern program. (1) The purpose of the forester intern
program is to ensure the future participation of trained, professional
Indians and Alaska Natives in the management of Indian and Alaska Native
forest land. In keeping with this purpose, the Bureau of Indian Affairs
in concert with tribes and Alaska Natives will work:
(i) To obtain the maximum degree of participation from Indians and
Alaska Natives in the forester intern program;
(ii) To encourage forester interns to complete an undergraduate
degree program in a forestry or forestry-related field which could
include courses on indigenous culture; and
(iii) To create an opportunity for the advancement of forestry and
forestry-related technicians to professional resource management
positions with the Bureau of Indian Affairs, a tribe, tribal forest
enterprise or ANCSA Corporation.
(2) The Secretary, through the Bureau of Indian Affairs Division of
Forestry, subject to the availability of personnel resource levels
established in agency budgets, shall establish and maintain in the
Bureau of Indian Affairs at least 20 positions for the forester intern
program. All Indians and Alaska Natives who satisfy the qualification
criteria in Sec. 163.40(b)(3) of this part may compete for such
positions.
(3) To be considered for selection, applicants for forester intern
positions must meet the following criteria:
(i) Be eligible for Indian preference as defined in 25 CFR part 5,
subchapter A;
(ii) Possess a high school diploma or its recognized equivalent;
(iii) Be able to successfully complete the intern program within a
three year maximum time period; and
(iv) Possess a letter of acceptance to an accredited post-secondary
school or demonstrate that such a letter of acceptance will be acquired
within 90 days.
(4) The Bureau of Indian Affairs shall advertise vacancies for
forester intern positions semiannually, no later than the first day of
April and October, to accommodate entry into school.
(5) Selection of forester interns will be based on the following
guidelines:
(i) Selection will be on a competitive basis selecting applicants
who have the greatest potential for success in the program;
(ii) Selection will take into consideration the amount of time which
will be required for individual applicants to complete the intern
program;
(iii) Priority in selection will be given to candidates currently
employed with and recommended for participation by the Bureau of Indian
Affairs, a tribe, a tribal forest enterprise or ANCSA Corporation; and
(iv) Selection of individuals to the program awaiting the letter of
acceptance required by Sec. 163.40(b)(3)(iv) of this part may be
canceled if such letter of acceptance is not secured and provided to the
education committee in a timely manner.
(6) Forester interns shall comply with each of the following program
requirements:
(i) Maintain full-time status in a forestry related curriculum at an
accredited post-secondary school having an agreement which assures the
transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a forestry
related program at a bachelor degree granting institution accredited by
the American Association of Universities;
(ii) Maintain good academic standing;
(iii) Enter into an obligated service agreement to serve as a
professional forester or forestry-related professional with the Bureau
of Indian Affairs, the recommending tribe, tribal forest enterprise or
ANCSA Corporation for two years for each year in the program; and
(iv) Report for service with the Bureau of Indian Affairs, a tribe,
tribal forest enterprise or ANCSA Corporation during any break in
attendance at school of more than three weeks duration. Time spent in
such service shall be counted toward satisfaction of the intern's
obligated service.
(7) The education committee established pursuant to Sec.
163.40(a)(1) of this part will evaluate annually the performance of
forester intern program participants against requirements enumerated in
Sec. 163.40(b)(6) of this part to
[[Page 459]]
ensure that they are satisfactorily progressing toward completing
program requirements.
(8) The Secretary shall pay all costs for tuition, books, fees and
living expenses incurred by a forester intern while attending an
accredited post-secondary school.
(c) Cooperative education program. (1) The purpose of the
cooperative education program is to recruit and develop promising Indian
and Alaska Native students who are enrolled in secondary schools, tribal
or Alaska Native community colleges, and other post-secondary schools
for employment as professional foresters and other forestry-related
professionals by the Bureau of Indian Affairs, a tribe, tribal forest
enterprise or ANCSA Corporation.
(2) The program shall be operated by the Bureau of Indian Affairs
Division of Forestry in accordance with the provisions of 5 CFR
213.3202(a) and 213.3202(b).
(3) To be considered for selection, applicants for the cooperative
education program must meet the following criteria:
(i) Meet eligibility requirements stipulated in 5 CFR 213.3202;
(ii) Be accepted into or enrolled in a course of study at a high
school offering college preparatory course work, an accredited
institution which grants bachelor degrees in forestry or forestry-
related curriculums or a post-secondary education institution which has
an agreement with a college or university which grants bachelor degrees
in forestry or forestry-related curriculums. The agreement must assure
the transferability of a minimum of 55 semester hours from the post-
secondary institution which meet the program requirements for a forestry
related program at the bachelor degree-granting institution.
(4) Cooperative education steering committees established at the
field level shall select program participants based on eligibility
requirements stipulated in Sec. 163.40(c)(3) of this part without
regard to applicants' financial needs.
(5) A recipient of assistance under the cooperative education
program shall be required to enter into an obligated service agreement
to serve as a professional forester or forestry- related professional
with the Bureau of Indian Affairs, a recommending tribe, tribal forest
enterprise or ANCSA Corporation for one year in return for each year in
the program.
(6) The Secretary shall pay all costs of tuition, books, fees, and
transportation to and from the job site to school, for an Indian or
Alaska Native student who is selected for participation in the
cooperative education program.
(d) Scholarship program. (1) The Secretary is authorized, within the
Bureau of Indian Affairs Division of Forestry, to establish and grant
forestry scholarships to Indians and Alaska Natives enrolled in
accredited programs for post-secondary and graduate forestry and
forestry-related programs of study as full-time students.
(2) The education committee established pursuant to this part in
Sec. 163.40(a)(1) shall select program participants based on
eligibility requirements stipulated in Sec. Sec. 163.40(d)(5),
163.40(d)(6) and 163.40(d)(7) without regard to applicants' financial
needs or past scholastic achievements.
(3) Recipients of scholarships must reapply annually to continue
funding beyond the initial award period. Students who have been
recipients of scholarships in past years, who are in good academic
standing and have been recommended for continuation by their academic
institution will be given priority over new applicants for selection for
scholarship assistance.
(4) The amount of scholarship funds an individual is awarded each
year will be contingent upon the availability of funds appropriated each
fiscal year and, therefore, may be subject to yearly changes.
(5) Preparatory scholarships are available for a maximum of two and
one half academic years of general, undergraduate course work leading to
a degree in forestry or forestry-related curriculums and may be awarded
to individuals who meet the following criteria:
(i) Must possess a high school diploma or its recognized equivalent;
and
(ii) Be enrolled and in good academic standing or accepted for
enrollment at
[[Page 460]]
an accredited post-secondary school which grants degrees in forestry or
forestry-related curriculums or be in a post-secondary institution which
has an agreement with a college or university which grants bachelor
degrees in forestry or forestry-related curriculums. The agreement must
assure the transferability of a minimum of 55 semester hours from the
post-secondary institution which meet the program requirements for a
forestry-related curriculum at the bachelor degree granting institution.
(6) Pregraduate scholarships are available for a maximum of three
academic years and may be awarded to individuals who meet the following
criteria:
(i) Have completed a minimum of 55 semester hours towards a bachelor
degree in a forestry or forestry-related curriculum; and
(ii) Be accepted into a forestry or forestry-related bachelor
degree-granting program at an accredited college or university.
(7) Graduate scholarships are available for a maximum of three
academic years for individuals selected into the graduate program of an
accredited college or university that grants advanced degrees in
forestry or forestry-related fields.
(8) A recipient of assistance under the scholarship program shall be
required to enter into an obligated service agreement to serve as a
professional forester or forestry-related professional with the Bureau
of Indian Affairs, a tribe, tribal forest enterprise or ANCSA
Corporation for one year for each year in the program.
(9) The Secretary shall pay all scholarships approved by the
education committee established pursuant to this part in Sec.
163.40(a)(1), for which funding is available.
(e) Forestry education outreach. (1) The Secretary shall establish
and maintain a forestry education outreach program within the Bureau of
Indian Affairs Division of Forestry for Indian and Alaska Native youth
which will:
(i) Encourage students to acquire academic skills needed to succeed
in post-secondary mathematics and science courses;
(ii) Promote forestry career awareness that could include modern
technologies as well as native indigenous forestry technologies;
(iii) Involve students in projects and activities oriented to
forestry related professions early so students realize the need to
complete required precollege courses; and
(iv) Integrate Indian and Alaska Native forestry program activities
into the education of Indian and Alaska Native students.
(2) The program shall be developed and carried out in consultation
with appropriate community education organizations, tribes, ANCSA
Corporations, and Alaska Native organizations.
(3) The program shall be coordinated and implemented nationally by
the education committee established pursuant to Sec. 163.40(a)(1) of
this part.
(f) Postgraduate studies. (1) The purpose of the postgraduate
studies program is to enhance the professional and technical knowledge
of Indian and Alaska Native foresters and forestry-related professionals
working for the Bureau of Indian Affairs, a tribe, tribal forest
enterprise or ANCSA Corporations so that the best possible service is
provided to Indian and Alaska Native publics.
(2) The Secretary is authorized to pay the cost of tuition, fees,
books and salary of Alaska Natives and Indians who are employed by the
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA
Corporation who have previously received diplomas or degrees in forestry
or forestry-related curriculums and who wish to pursue advanced levels
of education in forestry or forestry-related fields.
(3) Requirements of the postgraduate study program are:
(i) The goal of the advanced study program is to encourage
participants to obtain additional academic credentials such as a degree
or diploma in a forestry or forestry-related field;
(ii) The duration of course work cannot be less than one semester or
more than three years; and
(iii) Students in the postgraduate studies program must meet
performance standards as required by the graduate school offering the
study program during their course of study.
[[Page 461]]
(4) Program applicants will submit application packages to the
education committee established by Sec. 163.40(a)(1). At a minimum,
such packages shall contain a complete SF 171 and an endorsement, signed
by the applicant's supervisor clearly stating the needs and benefits of
the desired training.
(5) The education committee established pursuant to Sec.
163.40(a)(1) shall select program participants based on the following
criteria:
(i) Need for the expertise sought at both the local and national
levels;
(ii) Expected benefits, both to the location and nationally; and
(iii) Years of experience and the service record of the employee.
(6) Program participants will enter into an obligated service
agreement in accordance with Sec. 163.42(a), to serve as a professional
forester or forestry-related professional with the Bureau of Indian
Affairs, a tribe, tribal forest enterprise or ANCSA Corporation for two
years for each year in the program. However, the obligated service
requirement may be reduced by the Secretary if the employee receives
supplemental funding such as research grants, scholarships or graduate
stipends and, as a result, reduces the need for financial assistance. If
the obligated service agreement is breached, the Secretary is authorized
to pursue collection in accordance with Sec. 163.42(b) of this part.
Sec. 163.41 Postgraduation recruitment, continuing education and training
programs.
(a) Postgraduation recruitment program. (1) The purpose of the
postgraduation recruitment program is to recruit Indian and Alaska
Native graduate foresters and trained forestry technicians into the
Bureau of Indian Affairs forestry program or forestry programs conducted
by a tribe, tribal forest enterprise or ANCSA Corporation.
(2) The Secretary is authorized to assume outstanding student loans
from established lending institutions of Indian and Alaska Native
foresters and forestry technicians who have successfully completed a
post-secondary forestry or forestry- related curriculum at an accredited
institution.
(3) Indian and Alaska Natives receiving benefits under this program
shall enter into an obligated service agreement in accordance with Sec.
163.42(a) of this part. Obligated service required under this program
will be one year for every $5,000 of student loan debt repaid.
(4) If the obligated service agreement is breached, the Secretary is
authorized to pursue collection of the student loan(s) in accordance
with Sec. 163.42(b) of this part.
(b) Postgraduate intergovernmental internships. (1) Forestry
personnel working for the Bureau of Indian Affairs, a tribe, tribal
forest enterprise or ANCSA Corporation may apply to the Secretary and be
granted an internship within forestry-related programs of agencies of
the Department of the Interior.
(2) Foresters or forestry-related personnel from other Department of
the Interior agencies may apply through proper channels for internships
within Bureau of Indian Affairs forestry programs and, with the consent
of a tribe or Alaska Native organization, within tribal or Alaska Native
forestry programs.
(3) Forestry personnel from agencies not within the Department of
the Interior may apply, through proper agency channels and pursuant to
an interagency agreement, for an internship within the Bureau of Indian
Affairs and, with the consent of a tribe or Alaska Native organization,
within a tribe, tribal forest enterprise or ANCSA Corporation.
(4) Forestry personnel from a tribe, tribal forest enterprise or
ANCSA Corporation may apply, through proper channels and pursuant to a
cooperative agreement, for an internship within another tribe, tribal
forest enterprise or ANCSA Corporation forestry program.
(5) The employing agency of participating Federal employees will
provide for the continuation of salary and benefits.
(6) The host agency for participating tribal, tribal forest
enterprise or ANCSA Corporation forestry employees will provide for
salaries and benefits.
(7) A bonus pay incentive, up to 25 percent of the intern's base
salary, may be provided to intergovernmental
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interns at the conclusion of the internship period. Bonus pay incentives
will be at the discretion of and funded by the host organization and
will be conditioned upon the host agency's documentation of the intern's
superior performance, in accordance with the agency's performance
standards, during the internship period.
(c) Continuing education and training. (1) The purpose of continuing
education and training is to establish a program to provide for the
ongoing education and training of forestry personnel employed by the
Bureau of Indian Affairs, a tribe, tribal forest enterprise or ANCSA
Corporation. This program will emphasize continuing education and
training in three areas:
(i) Orientation training, including tribal-Federal relations and
responsibilities;
(ii) Technical forestry education; and
(iii) Developmental training in forest land-based enterprises and
marketing.
(2) The Secretary shall implement within the Bureau of Indian
Affairs Division of Forestry, an orientation program designed to
increase awareness and understanding of Indian culture and its effect on
forest management practices and on Federal laws that affect forest
management operations and administration in the Indian forestry program.
(3) The Secretary shall implement within the Bureau of Indian
Affairs Division of Forestry, a continuing technical forestry education
program to assist foresters and forestry-related professionals to
perform forest management on Indian forest land.
(4) The Secretary shall implement, within the Bureau of Indian
Affairs Division of Forestry, a forest land-based forest enterprise and
marketing training program to assist with the development and use of
Indian and Alaska Native forest resources.
Sec. 163.42 Obligated service and breach of contract.
(a) Obligated service. (1) Individuals completing forestry education
programs with an obligated service requirement may be offered full time
permanent employment with the Bureau of Indian Affairs, a tribe, tribal
forest enterprise or ANCSA Corporation to fulfill their obligated
service within 90 days of the date all program education requirements
have been completed. If such employment is not offered within the 90-day
period, the student shall be relieved of obligated service requirements.
Not less than 30 days prior to the commencement of employment, the
employer shall notify the participant of the work assignment, its
location and the date work must begin. If the employer is other than the
Bureau of Indian Affairs, the employer shall notify the Secretary of the
offer for employment.
(2) Qualifying employment time eligible to be credited to fulfilling
the obligated service requirement will begin the day after all program
education requirements have been completed, with the exception of the
forester intern program, which includes the special provisions outlined
in Sec. 163.40(b)(6)(iv). The minimum service obligation period shall
be one year of full-time employment.
(3) The Secretary or other qualifying employer reserves the right to
designate the location of employment for fulfilling the service
obligation.
(4) A participant in any of the forestry education programs with an
obligated service requirement who receives a degree may, within 30 days
of the degree completion date, request a deferment of obligated service
to pursue postgraduate or postdoctoral studies. In such cases, the
Secretary shall issue a decision within 30 days of receipt of the
request for deferral. The Secretary may grant such a request, however,
deferments granted in no way waive or otherwise affect obligated service
requirements.
(5) A participant in any of the forestry education programs with an
obligated service requirement may, within 30 days of the date all
program education requirements have been completed, request a waiver of
obligated service based on personal or family hardship. The Secretary
may grant a full or partial waiver or deny the request for waiver. In
such cases, the Secretary shall issue a decision within 30 days of
receipt of the request for waiver.
(b) Breach of contract. Any individual who has participated in and
accepted
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financial support under forestry education programs with an obligated
service requirement and who does not accept employment or unreasonably
terminates such employment by their own volition will be required to
repay financial assistance as follows:
(1) Forester intern program--Amount plus interest equal to the sum
of all salary, tuition, books, and fees that the forester intern
received while occupying the intern position. The amount of salary paid
to the individual during breaks in attendance from school, when the
individual was employed by the Bureau of Indian Affairs, a tribe, tribal
forest enterprise, or ANCSA Corporation, shall not be included in this
total.
(2) Cooperative education program--Amount plus interest equal to the
sum of all tuition, books, and fees that the individual received under
the cooperative education program.
(3) Scholarship program--Amount plus interest equal to
scholarship(s) provided to the individual under the scholarship program.
(4) Postgraduation recruitment program--Amount plus interest equal
to the sum of all the individual's student loans assumed by the
Secretary under the postgraduation recruitment program.
(5) Postgraduate studies program--Amount plus interest equal to the
sum of all salary, tuition, books, and fees that the individual received
while in the postgraduate studies program. The amount of salary paid to
that individual during breaks in attendance from school, when the
individual was employed by the Bureau of Indian Affairs, a tribe, a
tribal enterprise, or ANCSA Corporation, shall not be included in this
total.
(c) Adjustment of repayment for obligated service performed. Under
forestry education programs with an obligated service requirement, the
amount required for repayment will be adjusted by crediting time of
obligated service performed prior to breach of contract toward the final
amount of debt.
Subpart D_Alaska Native Technical Assistance Program
Sec. 163.60 Purpose and scope.
(a) The Secretary shall provide a technical assistance program to
ANCSA corporations to promote sustained yield management of their forest
resources and, where practical and consistent with the economic
objectives of the ANCSA Corporations, promote local processing and other
value-added activities. For the purpose of this subpart, technical
assistance means specialized professional and technical help, advice or
assistance in planning, and providing guidance, training and review for
programs and projects associated with the management of, or impact upon,
Indian forest land, ANCSA corporation forest land, and their related
resources. Such technical assistance shall be made available through
contracts, grants or agreements entered into in accordance with the
Indian Self-Determination and Education Assistance Act (Pub. L. 93-638,
as amended).
(b) Nothing in this part shall be construed as: Affecting, modifying
or increasing the responsibility of the United States toward ANCSA
corporation forest land, or affecting or otherwise modifying the Federal
trust responsibility towards Indian forest land; or requiring or
otherwise mandating an ANCSA corporation to apply for a contract, grant,
or agreement for technical assistance with the Secretary. Such
applications are strictly voluntary.
Sec. 163.61 Evaluation committee.
(a) The Secretary shall establish an evaluation committee to assess
and rate technical assistance project proposals. This committee will
include, at a minimum, local Bureau of Indian Affairs and Alaska Native
representatives with expertise in contracting and forestry.
Sec. 163.62 Annual funding needs assessment and rating.
(a) Each year, the Secretary will request a technical assistance
project needs assessment from ANCSA corporations. The needs assessments
will provide information on proposed
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project goals and estimated costs and benefits and will be rated by the
evaluation committee established pursuant to Sec. 163.61 for the
purpose of making funding recommendations to the Secretary. To the
extent practicable, such recommendations shall achieve an equitable
funding distribution between large and small ANCSA corporations and
shall give priority for continuation of previously approved multi-year
projects.
(b) Based on the recommendations of the evaluation committee, the
Secretary shall fund such projects, to the extent available
appropriations permit.
Sec. 163.63 Contract, grant, or agreement application and award process.
(a) At such time that the budget for ANCSA corporation technical
assistance projects is known, the Secretary shall advise the ANCSA
corporations on which projects were selected for funding and on the
deadline for submission of complete and detailed contract, grant or
agreement packages.
(b) Upon the request of an ANCSA corporation and to the extent that
funds and personnel are available, the Bureau of Indian Affairs shall
provide technical assistance to ANCSA corporations to assist them with:
(1) Preparing the technical parts of the contract, grant, or
agreement application; and
(2) Obtaining technical assistance from other Federal agencies.
Subpart E_Cooperative Agreements
Sec. 163.70 Purpose of agreements.
(a) To facilitate administration of the programs and activities of
the Department of the Interior, the Secretary is authorized to negotiate
and enter into cooperative agreements between Indian tribes and any
agency or entity within the Department. Such cooperative agreements
include engaging tribes to undertake services and activities on all
lands managed by Department of the Interior agencies or entities or to
provide services and activities performed by these agencies or entities
on Indian forest land to:
(1) Engage in cooperative manpower and job training and development
programs;
(2) Develop and publish cooperative environmental education and
natural resource planning materials; and
(3) Perform land and facility improvements, including forestry and
other natural resources protection, fire protection, reforestation,
timber stand improvement, debris removal, and other activities related
to land and natural resource management.
(b) The Secretary may enter into such agreements when he or she
determines the public interest will be benefited. Nothing in Sec.
163.70(a) shall be construed to limit the authority of the Secretary to
enter into cooperative agreements otherwise authorized by law.
Sec. 163.71 Agreement funding.
In cooperative agreements, the Secretary is authorized to advance or
reimburse funds to contractors from any appropriated funds available for
similar kinds of work or by furnishing or sharing materials, supplies,
facilities, or equipment without regard to the provisions of 31 U.S.C.
3324, relating to the advance of public moneys.
Sec. 163.72 Supervisory relationship.
In any agreement authorized by the Secretary, Indian tribes and
their employees may perform cooperative work under the supervision of
the Department of the Interior in emergencies or otherwise, as mutually
agreed to, but shall not be deemed to be Federal employees other than
for purposes of 28 U.S.C. 2671 through 2680, and 5 U.S.C. 8101 through
8193.
Subpart F_Program Assessment
Sec. 163.80 Periodic assessment report.
The Secretary shall commission every ten years an independent
assessment of Indian forest land and Indian forest land management
practices under the guidelines established in Sec. 163.81 of this part.
(a) Assessments shall be conducted in the first year of each decade
(e.g., 2000, 2010, etc.) and shall be completed within 24 months of
their initiation date. Each assessment shall be initiated no
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later than November 28 of the designated year.
(b) Except as provided in Sec. 163.83 of this part, each assessment
shall be conducted by a non-Federal entity knowledgeable of forest
management practices on Federal and private land. Assessments will
evaluate and compare investment in and management of Indian forest land
with similar Federal and private land.
(c) Completed assessment reports shall be submitted to the Committee
on Interior and Insular Affairs of the United States House of
Representatives and the Select Committee on Indian Affairs of the United
States Senate and shall be made available to Indian tribes.
Sec. 163.81 Assessment guidelines.
Assessments shall be national in scope and shall include:
(a) An in-depth analysis of management practices on, and the level
of funding by management activity for, specific Indian forest land
compared with similar Federal and private forest land;
(b) A survey of the condition of Indian forest land, including
health and productivity levels;
(c) An evaluation of the staffing patterns, by management activity,
of forestry organizations of the Bureau of Indian Affairs and of Indian
tribes;
(d) An evaluation of procedures employed in forest product sales
administration, including preparation, field supervision, and
accountability for proceeds;
(e) An analysis of the potential for streamlining administrative
procedures, rules and policies of the Bureau of Indian Affairs without
diminishing the Federal trust responsibility;
(f) A comprehensive review of the intensity and utility of forest
inventories and the adequacy of Indian forest land management plans,
including their compatibility with other resource inventories and
applicable integrated resource management plans and their ability to
meet tribal needs and priorities;
(g) An evaluation of the feasibility and desirability of
establishing or revising minimum standards against which the adequacy of
the forestry program of the Bureau of Indian Affairs in fulfilling its
trust responsibility to Indian forest land can be measured;
(h) An evaluation of the effectiveness of implementing the Indian
Self-Determination and Education Assistance Act (Pub. L. 93-638, as
amended) in regard to the Bureau of Indian Affairs forestry program;
(i) A recommendation of any reforms and increased funding and other
resources necessary to bring Indian forest land management programs to a
state-of-the-art condition; and
(j) Specific examples and comparisons from across the United States
where Indian forest land is located.
Sec. 163.82 Annual status report.
The Secretary shall, within 6 months of the end of each fiscal year,
submit to the Committee on Interior and Insular Affairs of the United
States House of Representatives, the Select Committee on Indian Affairs
of the United States Senate, and to the affected Indian tribes, a report
on the status of Indian forest land with respect to attaining the
standards, goals and objectives set forth in approved forest management
plans. The report shall identify the amount of Indian forest land in
need of forestation or other silvicultural treatment, and the quantity
of timber available for sale, offered for sale, and sold, for each
Indian tribe.
Sec. 163.83 Assistance from the Secretary of Agriculture.
The Secretary of the Interior may ask the Secretary of Agriculture,
through the Forest Service, on a nonreimbursable basis, for technical
assistance in the conduct of such research and evaluation activities as
may be necessary for the completion of any reports or assessments
required by Sec. 163.80 of this part.
PART 166_GRAZING PERMITS--Table of Contents
Subpart A_Purpose, Scope, and Definitions
Sec.
166.1 What is the purpose and scope of this part?
166.2 Can the BIA waive the application of these regulations?
[[Page 466]]
166.3 May decisions under this part be appealed?
166.4 What terms do I need to know?
Subpart B_Tribal Policies and Laws Pertaining to Permits
166.100 What special tribal policies will we apply to permitting on
Indian agricultural lands?
166.101 May individual Indian landowners exempt their land from certain
tribal policies for permitting on Indian agricultural lands?
166.102 Do tribal laws apply to permits?
166.103 How will tribal laws be enforced on Indian agricultural land?
166.104 What notifications are required that tribal laws apply to
permits on Indian agricultural lands?
Subpart C_Permit Requirements
General Requirements
166.200 When is a permit needed to authorize possession of Indian land
for grazing purposes?
166.201 Must parents or guardians of Indian minors who own Indian land
obtain a permit before using land for grazing purposes?
166.202 May an emancipated minor grant a permit?
166.203 When can the Indian landowners grant a permit?
166.204 Who may represent an individual Indian landowner in granting a
permit?
166.205 When can the BIA grant a permit on behalf of Indian landowners?
166.206 What requirements apply to a permit on a fractionated tract?
166.207 What provisions will be contained in a permit?
166.208 How long is a permit term?
166.209 Must a permit be recorded?
166.210 When is a decision by the BIA regarding a permit effective?
166.211 When are permits effective?
166.212 When may a permittee take possession of permitted Indian land?
166.213 Must I comply with any standards of conduct if I am granted a
permit?
166.214 Will the BIA notify the permittee of any change in land title
status?
Obtaining a Permit
166.215 How can I find Indian land available for grazing?
166.216 Who is responsible for permitting Indian land?
166.217 In what manner may a permit on Indian land be granted?
166.218 How do I acquire a permit through tribal allocation?
166.219 How do I acquire a permit through negotiation?
166.220 What are the basic steps for acquiring a permit through
negotiation?
166.221 How do I acquire an advertised permit through competitive
bidding?
166.222 Are there standard permit forms?
Permit (Leasehold) Mortgage
166.223 Can I use a permit as collateral for a loan?
166.224 What factors does the BIA consider when reviewing a leasehold
mortgage?
166.225 May a permittee voluntarily assign a leasehold interest under an
approved encumbrance?
166.226 May the holder of a leasehold mortgage assign the leasehold
interest after a sale or foreclosure of an approved
encumbrance?
Modifying a Permit
166.227 How can Indian land be removed from an existing permit?
166.228 How will the BIA provide notice if Indian land is removed from
an existing permit?
166.229 Other than to remove land, how can a permit be amended,
assigned, subpermitted, or mortgaged?
166.230 When will a BIA decision to approve an amendment, assignment,
subpermit, or mortgage under a permit be effective?
166.231 Must an amendment, assignment, subpermit, or mortgage approved
under a permit be recorded?
Subpart D_Land and Operations Management
166.300 How is Indian agricultural land managed?
166.301 How is Indian land for grazing purposes described?
166.302 How is a range unit created?
166.303 Can more than one parcel of Indian land be combined into one
permit?
166.304 Can there be more than one permit for each range unit?
166.305 When is grazing capacity determined?
166.306 Can the BIA adjust the grazing capacity?
166.307 Will the grazing capacity be increased if I graze adjacent trust
or non-trust rangelands not covered by the permit?
166.308 Can the number of animals and/or season of use be modified on
the permitted land if I graze adjacent trust or non-trust
rangelands under an on-and-off grazing permit?
166.309 Who determines livestock class and livestock ownership
requirements on permitted Indian land?
166.310 What must a permittee do to protect livestock from exposure to
disease?
[[Page 467]]
Management Plans and Environmental Compliance
166.311 Is an Indian agricultural resource management plan required?
166.312 Is a conservation plan required?
166.313 Is environmental compliance required?
Conservation Practices and Improvements
166.314 Can a permittee apply a conservation practice on permitted
Indian land?
166.315 Who is responsible for the completion and maintenance of a
conservation practice if the permit expires or is canceled
before the completion of the conservation practice?
166.316 Can a permittee construct improvements on permitted Indian land?
166.317 What happens to improvements constructed on Indian lands when
the permit has been terminated?
Subpart E_Grazing Rental Rates, Payments, and Late Payment Collections
Rental Rate Determination and Adjustment
166.400 Who establishes grazing rental rates?
166.401 How does the BIA establish grazing rental rates?
166.402 Why must the BIA determine the fair annual rental of Indian
land?
166.403 Will the BIA ever grant or approve a permit at less than fair
annual rental?
166.404 Whose grazing rental rate will be applicable for a permit on
tribal land?
166.405 Whose grazing rental rate will be applicable for a permit on
individually-owned Indian land?
166.406 Whose grazing rental rate will be applicable for a permit on
government land?
166.407 If a range unit consists of tribal and individually-owned Indian
lands, what is the grazing rental rate?
166.408 Is the grazing rental rate established by the BIA adjusted
periodically?
Rental Payments
166.409 How is my grazing rental payment determined?
166.410 When are grazing rental payments due?
166.411 Will a permittee be notified when a grazing rental payment is
due?
166.412 What if the permittee does not receive an invoice that a grazing
rental payment is due?
166.413 To whom are grazing rental payments made?
166.414 What forms of grazing rental payments are acceptable?
166.415 What will the BIA do if the permittee fails to make a direct
payment to an Indian landowner?
166.416 May a permittee make a grazing rental payment in advance of the
due date?
166.417 May an individual Indian landowner modify the terms of the
permit on a fractionated tract for advance grazing rental
payment?
166.418 When is a grazing rental payment late?
Late Rental Payment Collections
166.419 What will the BIA do if grazing rental payments are not made in
the time and manner required by the permit?
166.420 Will any special fees be assessed on delinquent grazing rental
payments due under a permit?
166.421 If a permit is canceled for non-payment, does that extinguish
the permittee's debt?
Compensation to Indian Landowners
166.422 What does the BIA do with grazing rental payments received from
permittees?
166.423 How do Indian landowners receive grazing rental payments that
the BIA has received from permittees?
166.424 How will the BIA determine the grazing rental payment amount to
be distributed to each Indian landowner?
Subpart F_Administrative and Tribal Fees
166.500 Are there administrative fees for a permit?
166.501 How are annual administrative fees determined?
166.502 Are administrative fees refundable?
166.503 May the BIA waive administrative fees?
166.504 Are there any other administrative or tribal fees, taxes, or
assessments that must be paid?
Subpart G_Bonding and Insurance Requirements
166.600 Must a permittee provide a bond for a permit?
166.601 How is the amount of the bond determined?
166.602 What form of bonds will the BIA accept?
166.603 If cash is submitted as a bond, how is it administered?
166.604 Is interest paid on a cash performance bond?
166.605 Are cash performance bonds refunded?
166.606 What happens to a bond if a violation occurs?
166.607 Is insurance required for a permit?
166.608 What types of insurance may be required?
[[Page 468]]
Subpart H_Permit Violations
166.700 What permit violations are addressed by this subpart?
166.701 How will the BIA determine whether the activities of a permittee
under a permit are in compliance with the terms of the permit?
166.702 Can a permit provide for negotiated remedies in the event of a
permit violation?
166.703 What happens if a permit violation occurs?
166.704 What will a written notice of a permit violation contain?
166.705 What will the BIA do if a permit violation is not cured within
the required time period?
166.706 Will the BIA's regulations concerning appeal bonds apply to
cancellation decisions involving permits?
166.707 When will a cancellation of a permit be effective?
166.708 Can the BIA take emergency action if the rangeland is threatened
with immediate, significant, and irreparable harm?
166.709 What will the BIA do if a permittee holds over after the
expiration or cancellation of a permit?
Subpart I_Trespass
166.800 What is trespass?
166.801 What is the BIA's trespass policy?
166.802 Who can enforce this subpart?
Notification
166.803 How are trespassers notified of a trespass determination?
166.804 What can I do if I receive a trespass notice?
166.805 How long will a written trespass notice remain in effect?
Actions
166.806 What actions does the BIA take against trespassers?
166.807 When will we impound unauthorized livestock or other property?
166.808 How are trespassers notified if their unauthorized livestock or
other property are to be impounded?
166.809 What happens after my unauthorized livestock or other property
are impounded?
166.810 How do I redeem my impounded livestock or other property?
166.811 How will the sale of impounded livestock or other property be
conducted?
Penalties, Damages, and Costs
166.812 What are the penalties, damages, and costs payable by
trespassers on Indian agricultural land?
166.813 How will the BIA determine the value of forage or crops consumed
or destroyed?
166.814 How will the BIA determine the value of the products or property
illegally used or removed?
166.815 How will the BIA determine the amount of damages to Indian
agricultural land?
166.816 How will the BIA determine the costs associated with enforcement
of the trespass?
166.817 What happens if I do not pay the assessed penalties, damages and
costs?
166.818 How are the proceeds from trespass distributed?
166.819 What happens if the BIA does not collect enough money to satisfy
the penalty?
Subpart J_Agriculture Education, Education Assistance, Recruitment, and
Training
166.900 How are the Indian agriculture education programs operated?
166.901 How will the BIA select an agriculture intern?
166.902 How can I become an agriculture educational employment student?
166.903 How can I get an agriculture scholarship?
166.904 What is agriculture education outreach?
166.905 Who can get assistance for postgraduate studies?
166.906 What can happen if we recruit you after graduation?
166.907 Who can be an intern?
166.908 Who can participate in continuing education and training?
166.909 What are my obligations to the BIA after I participate in an
agriculture education program?
166.910 What happens if I do not fulfill my obligation to the BIA?
Subpart K_Records
166.1000 Who owns the records associated with this part?
166.1001 How must records associated with this part be preserved?
Authority: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C.
9; Sec. 6, 96 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; Sec. 16, 17, 48 Stat. 987, 988, 25 U.S.C. 476, 477; Sec.
1, 2, 4, 5, 6, 69 Stat. 539, 540, 25 U.S.C. 415, 415a, 415b, 415c, 415d,
25 U.S.C. 3701, 3702, 3703, 3711, 3712, 3713, 3714, 3731, 3732, 3733,
3734, 3741, 3742, 3743, 3744, 3745, 107 Stat. 2011; 44 U.S.C. Sec.
3101, et seq.)
[[Page 469]]
Source: 66 FR 7126, Jan. 22, 2001, unless otherwise noted.
Subpart A_Purpose, Scope, and Definitions
Sec. 166.1 What is the purpose and scope of this part?
(a) The purpose of this part is to describe the authorities,
policies, and procedures the BIA uses to approve, grant, and administer
a permit for grazing on tribal land, individually-owned Indian land, or
government land.
(b) If the BIA's approval is not required for a permit, these
regulations will not apply.
(c) These regulations do not apply to any tribal land which is
permitted under a corporate charter issued by us pursuant to 25 U.S.C.
Sec. 477, or under a special act of Congress authorizing permits
without our approval under certain conditions, except to the extent that
the authorizing statutes require us to enforce such permits on behalf of
the Indian landowners.
(d) To the extent that any provisions of this part conflict with
Section 213 of the Indian Land Consolidation Act Amendments of 2000, the
provisions of that act will govern.
(e) In approving a permit on behalf of the Indian landowners, the
BIA will not permit for fee interest owners nor will we collect rent on
behalf of fee interest owners. Our permitting of the trust and
restricted interests of the Indian landowners will not be conditioned on
a permit having been obtained from any fee interest owners. However,
where all of the trust or restricted interests in a tract are subject to
a life estate held in fee status, we will approve a permit of the
remainder interests of the Indian landowners only if such action is
necessary to preserve the value of the land or protect the interests of
the Indian landowners. Where a life estate and remainder interest are
both owned in trust or restricted status, the life estate and remainder
interest must both be permitted under these regulations, unless the
permit is for less than one year in duration. Unless otherwise provided
by the document creating the life estate or by agreement, rent payable
under the permit must be paid to the holder of the life estate under
part 179 of this title.
Sec. 166.2 Can the BIA waive the application of these regulations?
Yes. In any case in which these regulations conflict with the
objectives of the agricultural resource management plan provided for in
Sec. 166.311 of this part, or with a tribal law, the BIA may waive the
application of such regulations unless the waiver would constitute a
violation of a federal statute or judicial decision or would conflict
with the BIA's general trust responsibility under federal law.
Sec. 166.3 May decisions under this part be appealed?
Yes. Except where otherwise provided in this part, appeals from
decisions by the BIA under this part may be taken pursuant to 25 CFR
part 2.
Sec. 166.4 What terms do I need to know?
Adult means an individual Indian who is 18 years of age or older.
Agency means the agency or field office or any other designated
office in the Bureau of Indian Affairs (BIA) having jurisdiction over
trust or restricted property or money.
Agricultural product means:
(1) Crops grown under cultivated conditions whether used for
personal consumption, subsistence, or sold for commercial benefit;
(2) Domestic livestock, including cattle, sheep, goats, horses,
buffalo, swine, reindeer, fowl, or other animals specifically raised and
used for food or fiber or as a beast of burden;
(3) Forage, hay, fodder, food grains, crop residues and other items
grown or harvested for the feeding and care of livestock, sold for
commercial profit, or used for other purposes; and
(4) Other marketable or traditionally used materials authorized for
removal from Indian agricultural lands.
Agricultural resource management plan means a ten-year plan
developed through the public review process specifying the tribal
management goals and objectives developed for tribal agricultural and
grazing resources. Plans developed and approved under AIARMA will govern
the management
[[Page 470]]
and administration of Indian agricultural resources and Indian
agricultural lands by the BIA and Indian tribal governments.
AIARMA means American Indian Agricultural Resources Management Act
of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), and
amended on November 2, 1994 (108 Stat. 4572).
Allocation means the apportionment of grazing privileges without
competition to tribal members or tribal entities, including the tribal
designation of permittees and the number and kind of livestock to be
grazed.
Animal Unit Month (AUM) means the amount of forage required to
sustain one cow or one cow with one calf for one month.
Approving/approval means the action taken by the BIA to approve a
permit.
Assign/assignment means an agreement between a permittee and an
assignee, whereby the assignee acquires all of the permittee's rights,
and assumes all of the permittee's obligations under a permit.
Assignee means the person to whom the permit rights for use of
Indian land are assigned.
BIA means the Bureau of Indian Affairs within the Department of the
Interior and any tribe acting on behalf of the BIA under this part.
Bond means security for the performance of certain permit
obligations, as furnished by the permitee, or a guaranty of such
performance as furnished by a third-party surety.
Conservation plan means a statement of management objectives for
grazing, including contract stipulations defining required uses,
operations, and improvements.
Conservation practice means a management action to protect,
conserve, utilize, and maintain the sustained yield productivity of
Indian agricultural land.
Day means a calendar day.
Encumbrance means mortgage, deed of trust or other instrument which
secures a debt owed by a permittee to a lender or other holder of a
leasehold mortgage on the permit interest.
Emancipated minor means a person under 18 years of age who is
married or who is determined by a court of competent jurisdiction to be
legally able to care for himself or herself.
Fair annual rental means the amount of rental income that a
permitted parcel of Indian land would most probably command in an open
and competitive market.
Farmland means Indian land, excluding Indian forest land, that is
used for production of food, feed, fiber, forage, and seed, oil crops,
or other agricultural products, and may be either dry land, irrigated
land, or irrigated pasture.
Fee interest means an interest in land that is owned in unrestricted
fee status, and is thus freely alienable by the fee owner.
Fractionated tract means a tract of Indian land owned in common by
Indian landowners and/or fee owners holding undivided interests therein.
Government land means any tract, or interest therein, in which the
surface estate is owned by the United States and administered by the
BIA, not including tribal land which has been reserved for
administrative purposes.
Grant/granting means the process of the BIA or the Indian landowner
agreeing or consenting to a permit.
Grazing capacity means the maximum sustainable number of livestock
that may be grazed on a defined area and within a defined period,
usually expressed in an Animal Unit Month (AUM).
Grazing rental payment means the total of the grazing rental rate
multiplied by the number of AUMs or acres in the permit.
Grazing rental rate means the amount you must pay for an AUM or acre
based on the fair annual rental.
I/You means the person to whom these regulations directly apply.
Immediate family means the spouse, brothers, sisters, lineal
ancestors, lineal descendants, or members of the household of an
individual Indian landowner.
Indian agricultural land means Indian land, including farmland and
rangeland, excluding Indian forest land, that is used for production of
agricultural products, and Indian lands occupied by
[[Page 471]]
industries that support the agricultural community, regardless of
whether a formal inspection and land classification has been conducted.
Indian land means any tract in which any interest in the surface
estate is owned by a tribe or individual Indian in trust or restricted
status.
Indian landowner means a tribe or individual Indian who owns an
interest in Indian land in trust or restricted status.
Individually-owned Indian land means any tract, or interest therein,
in which the surface estate is owned by an individual Indian in trust or
restricted status.
Interest means, when used with respect to Indian land, an ownership
right to the surface estate of Indian land that is unlimited or
uncertain in duration, including a life estate.
Life estate means an interest in Indian land which is limited in
duration to the life of the permittor holding the interest, or the life
of some other person.
Majority interest means the ownership interest(s) that are greater
than 50 percent of the trust or restricted ownership interest(s) in a
tract of Indian land.
Minor means an individual who is less than 18 years of age.
Mortgage means a mortgage, deed of trust or other instrument which
pledges a permittee's permit (leasehold) interest as security for a debt
or other obligation owed by the permittee to a lender or other
mortgagee.
Non compos mentis means a person who has been legally determined by
a court of competent jurisdiction to be of unsound mind or incapable of
transacting or conducting business and managing one's own affairs.
On-and-off grazing permit means a written agreement with a permittee
for additional grazing capacity for other rangeland not covered by the
permit.
Permit means a written agreement between Indian landowners and a
permittee, whereby the permittee is granted a revocable privilege to use
Indian land or Government land, for a specified purpose.
Permittee means an a person or entity who has acquired a legal right
of possession to Indian land by a permit for grazing purposes under this
part.
Range unit means rangelands consolidated to form a unit of land for
the management and administration of grazing under a permit. A range
unit may consist of a combination of tribal, individually-owned Indian,
and/or government land.
Rangeland means Indian land, excluding Indian forest land, on which
native vegetation is predominantly grasses, grass-like plants, half-
shrubs or shrubs suitable for grazing or browsing use, and includes
lands re-vegetated naturally or artificially to provide a forage cover
that is managed as native vegetation.
Restricted land or 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.
Subpermit means a written agreement, whereby the permittee grants to
an individual or entity a right to possession (i.e., pasturing
authorization), no greater than that held by the permittee under the
permit.
Surety means one who guarantees the performance of another.
Sustained yield means the yield of agricultural products that a unit
of land can produce continuously at a given level of use.
Trespass means any unauthorized occupancy, use of, or action on
Indian lands.
Tribal land means the surface estate of 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 BIA
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).
[[Page 472]]
Tribal law means the body of non-federal law that governs lands and
activities under the jurisdiction of a tribe, including ordinances or
other enactments by the tribe, tribal court rulings, and tribal common
law.
Trust land means any tract, or interest therein, that the United
States holds in trust status for the benefit of a tribe or individual
Indian.
Undivided interest means a fractional share in the surface estate of
Indian land, where the surface estate is owned in common with other
Indian landowners or fee owners.
Us/We/Our means the BIA and any tribe acting on behalf of the BIA
under 166.1 of this part.
Uniform Standards of Professional Appraisal Practices (USPAP) means
the standards promulgated by the Appraisal Standards Board of the
Appraisal Foundation to establish requirements and procedures for
professional real property appraisal practice.
Written notice means a written letter mailed by way of United States
mail, certified return receipt requested, postage prepaid, or hand-
delivered letter.
Subpart B_Tribal Policies and Laws Pertaining to Permits
Sec. 166.100 What special tribal policies will we apply to permitting on
Indian agricultural lands?
(a) When specifically authorized by an appropriate tribal resolution
establishing a general policy for permitting of Indian agricultural
lands, the BIA will:
(1) Waive the general prohibition against Indian operator
preferences in permits advertised for bid under Sec. 166.221 of this
part, by allowing prospective Indian operators to match the highest
responsible bid (unless the tribal law or leasing policy specifies some
other manner in which the preference must be afforded);
(2) Waive or modify the requirement that a permittee post a surety
or performance bond;
(3) Provide for posting of other collateral or security in lieu of
surety or other bonds; and
(4) Approve permits of tribally-owned agricultural lands at rates
determined by the tribal governing body.
(b) When specifically authorized by an appropriate tribal resolution
establishing a general policy for permitting of Indian agricultural
lands, and subject to paragraph (c) of this section, the BIA may:
(1) Waive or modify any general notice requirement of federal law;
and
(2) Grant or approve a permit on ``highly fractionated undivided
heirship lands'' as defined by tribal law.
(c) The BIA may take the action specified in paragraph (b) of this
section only if:
(1) The tribe defines by resolution what constitutes ``highly
fractionated undivided heirship lands'';
(2) The tribe adopts an alternative plan for notifying individual
Indian landowners; and
(3) The BIA's action is necessary to prevent waste, reduce idle land
acreage and ensure income.
Sec. 166.101 May individual Indian landowners exempt their land from certain
tribal policies for permitting on Indian agricultural lands?
(a) The individual Indian landowners of Indian land may exempt their
land from our application of a tribal policy referred to under Sec.
166.100 of this part if:
(1) The Indian landowners have at least a 50% interest in such
fractionated tract; and
(2) The Indian landowners submit a written objection to the BIA of
all or any part of such tribal policies to the permitting of such parcel
of land.
(b) Upon verification of the written objection we will notify the
tribe of the Indian landowners' exemption from the specific tribal
policy.
(c) The procedures described in paragraphs (a) and (b) of this
section will also apply to withdrawing an approved exemption.